People v. Jolly

• Citation: 502 N.W.2d 177,442 Mich. 458
• Decision Date: 22 June 1993
• Docket Number: Nos. 93492,93493,No. 9,s. 93492,9
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Paul Michael JOLLY, Defendant-Appellee. Calendar
• Court: Supreme Court of Michigan

Page 177

502 N.W.2d 177

442 Mich. 458

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Paul Michael JOLLY, Defendant-Appellee.

Nos. 93492, 93493.

Calendar No. 9.

Supreme Court of Michigan.

Argued Dec. 9, 1992.

Decided June 22, 1993.

[442 Mich. 461] Robert E. Weiss, Pros. Atty., Genesee County, Donald A. Kuebler, Chief, Appellate Div., Flint, for plaintiff-appellant.

State Appellate Defender Office, Ralph C. Simpson, Asst. Defender, Detroit, for defendant-appellee.

OPINION

RILEY, Justice.

In this case, we are asked to determine the requisite elements of proof in proceedings for armed robbery. More specifically, we consider today the quantum of proof necessary to submit the issue of "armed" robbery to a jury. We conclude that the evidence presented in this case was sufficient for a rational factfinder to conclude that the element of armed robbery at issue here was established beyond a reasonable doubt by circumstantial evidence. Accordingly, we treat the question as a factual rather than a legal one that is therefore within the province of the jury to decide.

I

On September 28, 1987, Jose Lopez was working an evening shift at Arby's Restaurant on South Dort Highway in Flint, Michigan. About midnight, a man and a woman entered the restaurant. After ordering some food from Mr. Lopez, the woman handed him a paper bag and told him her companion had a gun and would shoot him unless he filled the bag with money. Mr. Lopez never saw a gun, and the male robber's hands were in view at all times, however, he did as the woman asked. The couple then left, taking about $91.

Jennifer Herzog and Paul Jolly were arrested for this robbery. Jolly was charged with armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and of being an habitual offender, ¹ M.C.L. § 760.10; M.S.A. § 28.1082. The armed robbery statute provides:

"Any person who shall assault another, and shall feloniously rob, steal or take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony...." M.C.L. § 750.529; M.S.A. § 28.797 (Emphasis added).

Herzog agreed to testify against Jolly in exchange for dismissal of the charge against her, and acceptance of a plea of guilty to unarmed robbery in another case.

At trial, defendant claimed that the victim had mistakenly identified him. He also suggested that Ms. Herzog's testimony was influenced by the favorable bargain she had made with the people. The defense also argued that the requirements of the armed robbery statute were not satisfied. The people conceded at trial that defendant had no weapon, but proceeded on a theory, based on the "article" prong of the armed robbery statute, that defendant had used or fashioned some article in a manner to lead the victim to reasonably believe that it was a dangerous weapon.

At trial, the people asked Mr. Lopez what, other than Herzog's assertion, made him think that the male robber had a gun. The following exchange occurred:

"[Lopez ]: [S]he said, 'He has a gun.'

"[People ]: Okay. Was there anything else that made you believe or think about a gun, in your mind?

"A. Not really. Normally when, you know, somebody says they have a gun, I just, you know, I just thought that he had a gun.

"Q. Okay. Was there anything that made you think that, though, any more?

* * * * * * "A. Well, there was like when he came in he was standing right in front of me. I saw a bulge in his mid, mid area of his--he had a vest on, I saw a bulge. I didn't know if it was a gun or not. She said that he had a gun and I assumed because there was a bulge it could have been a buckle or anything, and I didn't know. So I just went by what she said and just did what she asked."

Lopez later went to the Flint Police Department and looked at some photographs of possible perpetrators. He picked out one of the defendant. Lopez testified that he had told the police that he was not completely sure that the suspect in the photograph was the man who robbed him, but that he was fairly sure.

Herzog testified that she had been involved romantically with Jolly and that they lived together at the time of the robbery. She testified that on September 28, 1987, the day of the robbery she and defendant decided to rob a store to get the money to buy some drugs. After some discussion, they decided to rob Arby's. She testified that they did not have a weapon. The people asked her to describe their plan, and the following exchange occurred:

"[Herzog ]: I was to go in and, and ask for the money.

"[People ]: Yes, how were you going to ask for it?

"A. I was going to tell them 'Put the money in the bag or he would shoot you.'

"Q. Or what?

"A. 'He would shoot you, kill you,' or whatever.

"Q. That was discussed between you and Mr. Jolly before you even went in?

"A. Yes."

The jury convicted defendant of unarmed robbery. He subsequently pleaded guilty of being an habitual offender and, in another courtroom, of violating his probation. He was sentenced to 9 to 22 1/2 years for the unarmed robbery charge and to 6 years, 4 months to 10 years for probation violation.

Defendant appealed these convictions in the Court of Appeals which on March 3, 1992, set aside all defendant's convictions. 193 Mich.App. 192, 483 N.W.2d 679 (1992). The Court held that the trial court erred in submitting the armed robbery charge to the jury because the people did not present sufficient evidence. In order to survive a directed verdict motion, the Court stated the evidence must be sufficient to enable a rational trier of fact to find that the essential elements of the crime were proven beyond a reasonable doubt. Id. at 196, 483 N.W.2d 679. Specifically, according to the Court, the people must have presented evidence that could enable a rational trier of fact to find beyond a reasonable doubt either that defendant was actually armed with a dangerous weapon or actually armed with an article used or fashioned to induce a victim to reasonably believe that defendant was armed with a dangerous weapon. Id. at 201, 483 N.W.2d 679. The Court found that the evidence produced was inadequate to support either of these conclusions and, thus, the trial judge erred in denying a directed verdict for the armed robbery count. Id. at 199, 483 N.W.2d 679. The Court stated:

"While a victim need not see the entire article, the defendant must at least have the article in hand and fashion it to lead the victim to believe it is a dangerous weapon." Id. at 201, 483 N.W.2d 679.

The Court further held that it was necessary to vacate the conviction and remand the case for a new trial. It based this holding on the ground that unfair prejudice always occurs when a jury is allowed to consider a charge unwarranted by the proofs because the possibility of a compromise verdict substantially decreases defendant's chance of acquittal. Id. at 199, n. 1, 483 N.W.2d 679. The people appeal.

II

Conviction of armed robbery requires a finding that the defendant was armed either with a dangerous weapon or with an article used or fashioned in such a way as to lead a reasonable person to believe that it was a dangerous weapon at the time of the robbery. M.C.L. § 750.529; M.S.A. § 28.797. See also People v. Parker, 417 Mich. 556, 565, 339 N.W.2d 455 (1983). Because the record is devoid of evidence that defendant actually possessed a dangerous weapon during the robbery, the prosecutor opted to follow the second method of establishing armed robbery, specifically, whether defendant used or fashioned an article to resemble a dangerous weapon. It is to this question that we now turn.

Working from the premise that an accused is innocent until proven guilty, it is the prosecution's burden in a criminal case to prove beyond a reasonable doubt the essential elements of a crime. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979) (opinion of Coleman, C.J.); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As a threshold inquiry, the prosecutor must offer enough evidence for a court to conclude that a rational trier of fact could find that the essential elements of the crime have been established. People v. Wolfe, 440 Mich. 508, 513-515, 489 N.W.2d 748 (1992); Hampton, supra, 407 Mich. at 368, 285 N.W.2d 284. Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime. People v. Petrella, 424 Mich. 221, 275, 380 N.W.2d 11 (1985). See also Wolfe, supra, 440 Mich. at 524-526, 489 N.W.2d 748 (circumstantial evidence of possession with intent to deliver cocaine was held sufficient to submit the question to the jury); People v. Schollaert, 194 Mich.App. 158, 170, 486 N.W.2d 312 (1992) (the elements of premeditation and deliberation may be inferred from the circumstances in an alleged first-degree murder); People v. Sharp, 57 Mich.App. 624, 626, 226 N.W.2d 590 (1975) (the requisite intent to commit armed robbery may be inferred by the jury from circumstantial evidence).

Defendant argued, and the Court of Appeals agreed, that the trial court erred in denying his motion for a directed verdict. 193 Mich.App. at 201, 483 N.W.2d 679. A trial court assesses the merits of a directed verdict motion through consideration of the evidence presented by the prosecution in a light most favorable to the prosecution, to determine whether a rational trier of fact could find that the elements of a crime were proven beyond a reasonable doubt. Wolfe, supra, 440 Mich. at 515, 489 N.W.2d 748; Hampton, ² supra, 407 Mich. at 368, 285 N.W.2d 284; Schollaert, supra, 194 Mich.App. at 169-170, 486 N.W.2d 312. We believe that the evidence presented was sufficient to permit a rational trier of fact to conclude that the elements of armed robbery were proven beyond a reasonable...