People v. Lesperance

• Decision Date: 21 March 1986
• Docket Number: Docket No. 76029
• Citation: 382 N.W.2d 788,147 Mich.App. 379
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darrell Wayne LESPERANCE, Defendant-Appellant. 147 Mich.App. 379, 382 N.W.2d 788
• Court: Court of Appeal of Michigan — District of US

Page 788

382 N.W.2d 788

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darrell Wayne LESPERANCE, Defendant-Appellant.

Docket No. 76029.

147 Mich.App. 379, 382 N.W.2d 788

Court of Appeals of Michigan.

Submitted Oct. 10, 1985.

Decided Dec. 2, 1985.

Released for Publication March 21, 1986.

[147 MICHAPP 381] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty. and Martha G. Mettee, Asst. Pros. Atty., for People.

Thomas J. Bleau, Bay City, for defendant-appellant on appeal.

Before J.H. GILLIS, P.J., and CYNAR and EVANS, ^* JJ.

CYNAR, Judge.

Defendant was convicted by a jury in Bay County Circuit Court of breaking and entering a motor vehicle with intent to commit larceny, M.C.L. Sec. 750.356a; M.S.A. Sec. 28.588(1), and larceny over $100, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588. Defendant was sentenced to from 5 to 10 years on each count, to run concurrently. He now appeals as of right.

On or about April 28, 1983, defendant allegedly broke into a car parked in front of a residence located at 3016 East Birch Drive in Bangor Township. After breaking into the car, defendant removed several items, including: a cassette tape deck, two speakers, a console, several cassette tapes, and a watch missing a crystal.

On April 29, 1983, defendant was stopped by Police Officer Gibson for a traffic equipment violation. During the stop Officer Gibson observed that there was a Realistic cassette player and four speakers located in defendant's car. Because the property had not yet been reported as stolen, Officer Gibson did not arrest defendant. Shortly thereafter, Gibson's partner contacted him to advise him of a stolen property report, and Gibson [147 MICHAPP 382] realized that the stolen property matched the property he had seen in defendant's car. A search warrant was secured. Some of the property was eventually recovered.

Relying on People v. West, 122 Mich.App. 517, 332 N.W.2d 517 (1983), lv. den. 418 Mich. 909, 342 N.W.2d 522 (1984), ¹ defendant argues that his conviction for both breaking and entering a motor vehicle with intent to commit larceny, M.C.L. Sec. 750.356a; M.S.A. Sec. 28.588(1), and larceny over $100, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588, violated his constitutional right to be protected against double jeopardy. The West Court found double jeopardy where the defendant pled guilty to both breaking and entering a store with intent to commit larceny and larceny in a store on the basis that defendant's plea-based convictions were based on proof of a single act. The Court stated that:

" * * * under Michigan law rather than federal, if, factually, the convictions are based on proof of a single act, the separate crimes are held to consist of nothing more than a greater crime and certain of its lesser included offenses. See People v Jankowski, 408 Mich 79, 86; 289 NW2d 674 (1980). In such a case, multiple convictions cannot be allowed to stand. Jankowski, supra, p 86 ." 122 Mich.App. 521, 332 N.W.2d 517.

The above analysis was rejected in People v. Wakeford, 418 Mich. 95, 110-111, 341 N.W.2d 68 (1983), where the Supreme Court stated:

"[D]efendant's claim of factual double jeopardy depends not upon whether most or all of the same evidence was utilized to convict of both counts of armed robbery, but whether the legislative intent or statutory purpose was that two convictions should result. To the extent certain language in Martin [People v. Martin, [147 MICHAPP 383] 398 Mich. 303, 247 N.W.2d 303 (1976) ], Stewart [People v. Stewart (On Reh.), 400 Mich. 540, 256 N.W.2d 31 (1977) ], and Jankowski suggests that the critical test is whether the defendant committed 'one single wrongful act', we specifically disavow that test. It is up to the Legislature, not this Court, to determine what constitutes a single offense. The so-called 'factual double jeopardy' doctrine simply asks whether the Legislature authorized multiple punishment under the circumstances."

The Wakeford Court did not deal with the issue of multiple punishment under two statutes, but, instead, with multiple punishment under a single statute. The issue before the Court was whether the robbery of two grocery store cashiers constituted one or two robberies under the robbery statute.

In the instant case we are confronted with a single prosecution which resulted in multiple punishments under two statutes. In People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984), our Supreme Court considered a defendant's right against double jeopardy in single-trial ² multiple punishment cases involving more than one statute and concluded that "[T]he only interest of the defendant is in not having more punishment imposed than that intended by the Legislature". 419 Mich. 485, 355 N.W.2d 592. In determining whether the Legislature intended multiple punishments under two statutes, the Robinson Court rejected the commonly [147 MICHAPP 384] called Blockburger test, ³ Blockburger v. United States, 284 U.S 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1936), and set forth the following general principles to aid courts in the double jeopardy analysis.

"Statutes prohibiting conduct that is violative of distinct social norms can generally be viewed as separate and amenable to permitting multiple punishments. A court must identify the type of harm the Legislature intended to prevent. Where two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments. For example, the crimes of larceny over $100, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588, and larceny in a building, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592, although having separate elements, are aimed at conduct too similar to conclude that multiple punishment was intended.

"A further source of legislative intent can be found in the amount of punishment expressly authorized by the Legislature. Our criminal statutes often build upon one another. Where one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes. The Legislature has taken conduct from the base statute, decided that aggravating conduct deserves additional punishment, and imposed it accordingly, instead of imposing dual convictions.

"We do not intend these principles to be an exclusive [147 MICHAPP 385] list. Whatever sources of legislative intent exist should be considered. If no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the conclusion that separate punishments were not intended." (Footnotes omitted.) 419 Mich. 487, 355 N.W.2d 592.

Applying the above principles to the present case, we conclude that the Legislature intended multiple punishment for both the breaking and entering with intent to commit larceny and the subsequent larceny. We believe that the Legislature intended to punish for the crime of breaking and entering when it enacted M.C.L. Sec. 750.356a; M.S.A. Sec. 28.588(1). As this Court concluded in People v. Wise, 134 Mich.App. 82, 93, 351 N.W.2d 255 (1984), lv. den. 422 Mich. 852 (1985), a case decided before Robideau, supra, "[b]reaking and entering is not a continuing offense. It is completed once the burglar is inside the building", or, as in this case, the motor vehicle. Hence, any crime the burglar commits once inside the motor vehicle is a separate act and defendant is not placed in double jeopardy if convicted of both the breaking and entering charge and the larceny charge. People v. Petrella, 124 Mich.App. 745, 765, 336 N.W.2d 761 (1983).

We conclude that defendant's convictions on the charged offenses did not place defendant in double jeopardy.

Defendant next argues that the trial court erred in instructing the jury on the alternative charges of larceny over $100 and receiving and concealing stolen property over $100 without instructing that the jury could not find defendant guilty of both offenses.

Defendant failed to object to the challenged jury instruction. Indeed, defendant agreed to the trial court's instruction. Defendant's failure to object to the jury instruction precludes appellate review [147 MICHAPP 386] absent manifest injustice. People v. Vicuna, 141 Mich.App. 486, 492, 367 N.W.2d 887 (1985). The trial court entered a conviction on the larceny offense only. The penalties for larceny over $100 and receiving and concealing stolen property over $100 are equivalent. Defendant therefore did not receive a sentence in excess of what he should have received. While the better practice would have been to inform the jury that they could only convict on one of the alternative charges, under the circumstances no manifest injustice resulted from the trial court's jury instruction. We therefore decline to reverse on this point.

Relying on People v. Allen, 252 Mich. 553, 233 N.W. 412 (1930), defendant claims that the jury verdict in this case is void and must therefore be overturned. In Allen the information contained two counts. In the first the defendant was charged with larceny of personal property over $100, and in the second with the receiving of such property, knowing it to be stolen. The trial judge in his instruction to the jury carefully defined both offenses. The jury rendered a verdict "guilty as charged". Our Supreme Court reversed the jury verdict, finding that the two charges were distinct offenses and a "conviction on one count works an acquittal on the other". 252 Mich. 554, 233 N.W. 412.

Because the jury in this case rendered a separate verdict finding defendant guilty of both larceny and receiving or concealing stolen property, instead of a general guilty verdict, this case is distinguishable from the facts presented in Allen. The Allen Court concluded that under the verdict rendered in that case, "a part of the jury might have found the defendant...