People v. Karst, Docket No. 57110

• Decision Date: 07 October 1982
• Docket Number: Docket No. 57110
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Danny Roger KARST, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 526

324 N.W.2d 526

118 Mich.App. 34

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Danny Roger KARST, Defendant-Appellant.

Docket No. 57110.

Court of Appeals of Michigan.

Submitted May 10, 1982.

Decided July 13, 1982.

Leave to Appeal Denied Sept. 20, 1982.

Released for Publication Oct. 7, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Frank R. Del Vero, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

Peter L. Conway, Bloomfield Hills, for defendant-appellant.

Before ALLEN, P. J., and CYNAR and FALAHEE, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit a larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. Subsequently, he was found guilty by the trial judge of being a third-time felony offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083, M.C.L. Sec. 769.13; M.S.A. Sec. 28.1085. He was sentenced to a term of from 10 to 30 years imprisonment and now appeals as of right.

On the morning of October 18, 1980, defendant was released from a Pontiac hospital where he had been treated for an injury suffered while cleaning a hunting rifle. Some time after his release, he began consuming copious amounts of alcohol and drugs and continued to do so until about 9 a. m. the next day. At that time, defendant and two accomplices began driving around in a borrowed car. Defendant was in the back seat asleep or passed out. The accomplices had discussed committing a breaking and entering in Brighton or Howell earlier that day and the previous day. Upon arriving at a house in Howell, the accomplices awoke defendant. They asked him to drive around for five minutes and then come back to pick them up. Defendant's accomplices broke into the house and an alarm went off. The accomplices ran into a corn field and did not see defendant again that day. Meanwhile, defendant drove past the house again and shortly thereafter was arrested by the state police. Subsequently, defendant was charged with breaking and entering and being a third-time felony offender.

On appeal, defendant raises two issues, one of which is dispositive.

At trial, after the jury had been deliberating for awhile, the following occurred:

"THE COURT: Let the record show I have received a note from the jury. It says, 'Concerning interpretation of the law, if a person didn't realize that a B & E was going to occur, but realized one had occurred, and then intended (but didn't succeed) assisting in the escape, is that person guilty of aiding and abetting?'

"Ladies and gentlemen, I can't answer that type of question for you. To do so would have me participate in your deliberations. I will read to you again the instructions I gave you on aiding and abetting.

"It is charged in this case that Danny Karst did not directly commit the crime, but he intentionally aided or assisted another in the commission of that crime. All persons who aid or assist in the commission of a crime are as liable as if they had directly committed the crime and may be convicted of the principal offense or as an aider and abetter.

"Before you may convict, you must be convinced of the following beyond a reasonable doubt:

"First, the crime charged must have been committed either by the Defendant or some other person;

"Second, the Defendant must have performed an act or given encouragement which aided or assisted the commission of that crime, either before or at the time of the commission of the crime;

"Third, the Defendant must have intended the commission of the crime charged at the time of giving the aid or encouragement. It does not matter how much aid, advice or encouragement was given; however, you must find that the Defendant intended the commission of the crime and that the aid, advice or encouragement the Defendant gave, did, in fact, aid, advise or encourage the commission of the crime.

"In answer to your question, additionally I would only add, I suppose you must discuss and decide whether the escape from the crime is part of the commission of a crime, and that is for your decision, along with every other fact situation in this case."

After the jury again retired, defense counsel objected "to the last comment" as being "prejudicial" to the defendant and moved for a mistrial. The motion was denied.

Essentially, defendant claims that the last paragraph of the reinstruction permitted the jury to find him guilty of aiding and abetting, contrary to M.C.L. Sec. 767.39; M.S.A. Sec. 28.979, even if he was merely an accessory after-the-fact. We agree.

A person may be prosecuted for aiding and abetting without regard to the conviction or acquittal of the principal. People v. Mann, 395 Mich. 472, 478, 236 N.W.2d 509 (1975). All that need be proved is that the crime was committed by someone and that the defendant either committed or aided and abetted the commission of that crime. Id. To be convicted as an aider and abettor, a defendant must either himself possess the required intent to commit the substantive offense or participate while knowing that his co-participant possessed the requisite intent. People v. Triplett, 105 Mich.App. 182, 306 N.W.2d 442 (1981). Either a defendant's intent or his knowledge that his co-participant had the necessary intent may be inferred from circumstantial evidence. Id., 188, 306 N.W.2d 442. However, a defendant's mere presence at the scene of a crime is not enough, in and of itself, to make him an aider and abettor:

"Mere presence, even with knowledge that an offense is about to be committed or is being committed, is not enough to make a person an aider or abettor or a principal in the second degree nor is mere mental approval, sufficient, nor passive acquiescence or consent." People v. Burrel, 253 Mich. 321, 323, 235 N.W. 170 (1931), quoting 1 Cyc Crim Law (Brill), Sec. 233.

On the other hand, it is clear that an accessory after-the-fact is not an aider or abettor under M.C.L. Sec. 767.39; M.S.A. Sec. 28.979. Rather, as noted by the Court in People v. Lucas, 402 Mich. 302, 304, 262 N.W.2d 662 (1978):

"An 'accessory after the fact', at common law, * * * is 'one who, with knowledge of the other's guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment'."

Further, it is error to instruct a jury that a defendant might be guilty as a principal of an offense if he was an accessory after-the-fact. Id., 305, 262 N.W.2d 662. See also, People v. Wilborn, 57 Mich.App. 277, 225 N.W.2d 727 (1975), lv. den. 394 Mich. 809 (1975). Rather than being charged as a principal, an accessory after-the-fact may be charged under M.C.L. Sec. 750.505; M.S.A. Sec. 28.773. Lucas, supra, 402 Mich. at 305, 262 N.W.2d 662.

The distinction between aiders and abettors and accessories after-the-fact is not always clear, and, given the facts, even less so in this case. Acts undertaken subsequent to the commission of a breaking and entering do not necessarily limit a defendant's liability to that of an accessory after-the-fact, as consideration must be taken of the intent of the actors. It is a question of fact whether a...