People v. Jones

• Decision Date: 06 April 1992
• Docket Number: Docket No. 120006
• Citation: 484 N.W.2d 688,193 Mich.App. 551
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mearl Elton JONES, Defendant-Appellant. 193 Mich.App. 551, 484 N.W.2d 688

Page 688

484 N.W.2d 688

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mearl Elton JONES, Defendant-Appellant.

Docket No. 120006.

193 Mich.App. 551, 484 N.W.2d 688

Court of Appeals of Michigan.

Submitted Feb. 11, 1992, at Detroit.

Decided April 6, 1992, at 10:40 a.m.

Released for Publication June 22, 1992.

[193 MICHAPP 551] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Carolyn Schmidt, Asst. Pros. Atty., for the people.

[193 MICHAPP 552] Law Office of Bill Colovos by Bill Colovos, Southgate, for defendant-appellant on appeal.

Before DOCTOROFF, C.J., and MICHAEL J. KELLY and BRENNAN, JJ.

BRENNAN, Judge.

Following a bench trial, defendant was convicted of attempted felonious assault, M.C.L. Sec. 750.92; M.S.A. Sec. 28.287 and M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, and entry of a dwelling without the owner or occupant's permission, M.C.L. Sec. 750.115; M.S.A. Sec. 28.310. Defendant was sentenced to one to two years in prison for the conviction of attempted felonious assault and ninety days for the conviction of entry without permission. He appeals as of right. We affirm in part and reverse in part.

Defendant first argues that his conviction of attempted felonious assault must be reversed because there is no such offense. We agree. Attempted felonious assault, by its very definition and by examination of its elements, cannot exist. To prove the crime of attempt, the prosecution must establish the specific intent to commit a crime and an overt act going beyond mere preparation toward committing the crime. People v. Stapf, 155 Mich.App. 491, 494, 400 N.W.2d 656 (1986). For years, assault was defined "as an attempt or offer, with force and violence, to do bodily hurt to another with a present means of accomplishing the hurt." People v. Patskan, 29 Mich.App. 354, 357, 185 N.W.2d 398 (1971), rev'd. on other grounds 387 Mich. 701, 199 N.W.2d 458 (1972). Several panels of this Court determined that, according to the definition of assault, there could be no crime of attempted assault because an attempted assault would amount to an attempt to attempt or offer. See People v. Richard Banks, 51 Mich.App. 685, 216 N.W.2d 461 (1974), and People v. [193 MICHAPP 553] Maxwell, 36 Mich.App. 127, 128, 193 N.W.2d 176 (1971).

Subsequently, in People v. Joeseype Johnson, 407 Mich. 196, 284 N.W.2d 718 (1979), our Supreme Court broadened the definition of assault to include both "an attempt to commit a battery" as well as "an unlawful act which places another in reasonable apprehension of receiving an immediate battery." Since Joeseype Johnson, panels of this Court have disagreed concerning whether attempted assault is a valid crime. See People v. LeBlanc, 120 Mich.App. 343, 345-346, 327 N.W.2d 471 (1982), holding that no such crime exists. See also People v. Etchison, 123 Mich.App. 448, 453, 333 N.W.2d 309 (1983), and People v. Laster, 169 Mich.App. 768, 771, 426 N.W.2d 806 (1988), holding that attempted assault may exist under the expanded definition of assault. Those cases found that a defendant could attempt, without success, to commit an unlawful act that places another in reasonable apprehension of receiving an immediate battery.

We find that after the Joeseype Johnson decision, there is more support than ever for the position that there is no crime of attempted assault. An assault now requires an affirmative act by a defendant, either toward attempting a battery or toward some action that places another in reasonable apprehension of an immediate battery. Under the current definition, there can be no attempted assault that does not also constitute an assault. The actions that could have formerly constituted an attempted assault are now included within the definition of assault. Accordingly, we find there is no crime of attempted assault. Consequently, defendant's conviction of attempted felonious assault must be vacated.

Defendant also contends that his conviction of [193 MICHAPP 554]...