People v. McFarland, Docket No. 88131

• Decision Date: 26 February 1988
• Docket Number: Docket No. 88131
• Citation: 419 N.W.2d 68,165 Mich.App. 779
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alma Jean McFARLAND, Defendant-Appellant. 165 Mich.App. 779, 419 N.W.2d 68
• Court: Court of Appeal of Michigan — District of US

Page 68

419 N.W.2d 68

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alma Jean McFARLAND, Defendant-Appellant.

Docket No. 88131.

165 Mich.App. 779, 419 N.W.2d 68

Court of Appeals of Michigan.

Submitted April 14, 1987.

Decided Feb. 1, 1988.

Released for Publication Feb. 26, 1988.

[165 MICHAPP 780] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and David A. King, First Asst. Pros. Atty., for people.

Barr, Anhut & Sacks, P.C. by John M. Barr, Ypsilanti, for defendant-appellant.

Before CYNAR, P.J., and SHEPHERD and JASPER, ^* JJ.

JASPER, Judge.

Defendant was convicted of larceny in a building, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592, and was sentenced to one year's probation and assessed a $100 fine, $500 in court costs and $399 in restitution.

Defendant's conviction stems from an incident which took place at a Best Products store in Pittsfield Township. Defendant and her son, Randall, were looking at men's rings. Amidst some confusion, one of four rings defendant and her son looked at disappeared. Defendant, her son, and the clerk, Elizabeth Wallgren, proceeded to look for the ring, but to no avail. The defendant left her name and phone number with the store manager.

After the defendant had departed, a customer, [165 MICHAPP 781] Victor Van Houghtegen, who had also been at the jewelry counter, approached a second sales clerk, Teresa Bogos, and told her that he had seen defendant put the ring in one of her gloves. He stated that, while searching for the ring, defendant never let go of her gloves and no one asked to check the gloves. This account was corroborated by the two sales clerks who stated that defendant never shook her gloves and, when defendant picked them up, she picked them up by the cuffs.

Defendant raises two issues on appeal, neither of which merit reversal. The first is that there was insufficient evidence of an actual or constructive taking of the ring and asportation with a felonious intent to support defendant's conviction. We disagree.

When reviewing whether sufficient evidence was presented to support a conviction, this Court views the evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Frank Johnson, 146 Mich.App. 429, 435, 381 N.W.2d 740 (1985), lv. den. 425 Mich. 855 (1986), citing People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980).

The elements of larceny in a building are: (1) an actual or constructive taking, (2) an asportation, (3) with a felonious intent, (4) of someone else's property, (5) without that person's consent, (6) in a building. People v. Cavanaugh, 127 Mich.App. 632, 636, 339 N.W.2d 509 (1983). In the instant case, defendant contends that insufficient evidence of elements (1) through (3) was presented at trial to support her conviction.

Defendant's argument is without merit. In Freeman v. Meijer, Inc., 95 Mich.App. 475, 479, 291 [165 MICHAPP 782] N.W.2d 87 (1980), citing People v. Bradovich, 305 Mich. 329, 9 N.W.2d 560 (1943), this Court noted that an asportation with criminal intent may be found when goods have been concealed. Concealment is one way of expressing criminal intent. The Freeman Court noted that as soon as criminal intent is present, the slightest movement of goods within a self-service store constitutes asportation, and the crime is complete. 95 Mich.App. 479, 291 N.W.2d 87.

In the instant case, Victor Van Houghtegen testified that he saw defendant conceal the ring in her glove when Wallgren's back was turned. Although his description of the ring was inaccurate, the ring he saw was probably the missing ring. Teresa Bogos testified that although defendant emptied her purse she never shook her gloves, and when she picked them up, she picked them up by the cuffs.

Elizabeth Wallgren also testified that defendant never shook her gloves. Defendant took her gloves with her when she left the jewelry counter. When the evidence that was presented is viewed in a light most favorable to the prosecution, it is clearly sufficient to establish an actual or constructive taking of the ring,...