People v. Murph

• Citation: 185 Mich.App. 476,463 N.W.2d 156
• Decision Date: 06 November 1990
• Docket Number: Docket No. 109778
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon Capers MURPH, Defendant-Appellant. 185 Mich.App. 476, 463 N.W.2d 156
• Court: Court of Appeal of Michigan (US)

Page 156

463 N.W.2d 156

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon Capers MURPH, Defendant-Appellant.

Docket No. 109778.

185 Mich.App. 476, 463 N.W.2d 156

Court of Appeals of Michigan.

Submitted Feb. 13, 1990.

Decided Sept. 17, 1990.

Released for Publication Nov. 6, 1990.

[185 MICHAPP 477] Frank J. Kelley, Atty. Gen. Gay Secor Hardy, Sol. Gen., G. Michael Hocking, Pros. Atty., and William M. Worden, Asst. Pros. Atty., for the People.

Patricia S. Slomski, Detroit, for defendant-appellant on appeal.

Before MICHAEL J. KELLY, P.J., and WAHLS and SAWYER, JJ.

SAWYER, Judge.

Defendant was convicted, following a jury trial, of two counts of kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, two counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, two counts of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and unlawfully driving away an automobile (UDAA), M.C.L. Sec. 750.413; M.S.A. Sec. 28.645. Defendant was thereafter [185 MICHAPP 478] sentenced to serve concurrent terms of forty to sixty years in prison on each of the kidnapping and armed robbery convictions, thirty to sixty months for the UDAA conviction, and two terms of two years in prison for the felony-firearm convictions. Defendant now appeals and we affirm.

The victims, Diane Allen and Tracy Lynn Roberts, were stopped at a gas station on Waverly Road during the early morning hours of September 26, 1987, where they purchased gas and visited a friend. As they were driving away, Roberts heard paper rustling in the back of the van and saw what appeared to be a man's head in her rearview mirror. The man, later identified as defendant, approached the driver's area, warned the two women to "be cool" and advised them that he possessed a gun and that they should do as he said. Defendant ordered Roberts to continue driving and not to look back. Roberts continued driving and when Allen turned around, defendant put a gun to her head. Defendant then asked them for their wallets, purses and other valuables. Ultimately, defendant had Roberts stop the van, he ordered them out of the van, and he drove off. Two days later, the van was recovered, though the contents of the van, including various items of audio equipment, were missing. Additionally, defendant had obtained money and jewelry from the victims at the time of the robbery.

On appeal, defendant first argues that the trial court erred by admitting for impeachment purposes evidence of defendant's 1980 conviction for conspiracy to commit larceny from a person. However, we conclude that it is not necessary to determine whether the trial court erred in its application of MRE 609 to defendant's prior conviction because, after reviewing the record and the evidence against defendant, we conclude that any [185 MICHAPP 479] error in admitting evidence of the prior conviction is harmless beyond a reasonable doubt. People v. Allen, 429 Mich. 558, 612, 420 N.W.2d 499 (1988).

Next, defendant argues that the trial court erred in admitting evidence of a prior bad act not resulting in conviction concerning the passage of forged checks. See MRE 404(b). However, the evidence defendant complains of was not inadmissible under MRE 404(b) as it was not offered to show defendant's character, but rather was offered to impeach defendant's testimony. Specifically, defendant first testified that he did not know one Clifford Loften, but then admitted, when presented with the check at issue which was drawn upon the account of Clifford Loften, that he had received the check from someone who claimed to be Loften. Accordingly, the evidence was properly admitted.

Next, defendant argues that he was denied the effective assistance of counsel. Specifically, defendant objects to the comments made by trial counsel to the jury concerning defendant's prior conviction, as well as questioning and comments by defense counsel concerning other bad acts defendant had engaged in. These items, however, represent issues of trial strategy and, as such, we will not second guess trial counsel. People v. Barnett, 163 Mich.App. 331, 338, 414 N.W.2d 378 (1987). The fact that the strategy may not have worked does not constitute ineffective assistance of counsel. Id.

Defendant next argues that there was insufficient evidence to sustain the kidnapping convictions. Specifically, defendant argues that there was insufficient evidence to establish the element of asportation. To establish asportation in a kidnapping case, there must be some moving of the victim and that movement is not sufficient if it is merely incidental to the commission of another underlying lesser crime, unless that underlying [185 MICHAPP 480] crime involves murder, extortion or taking a hostage. People v. Adams, 389 Mich. 222, 238, 205 N.W.2d 415 (1973). Defendant argues that the movement of the victims in the case at bar was merely incidental to the commission of the robberies and UDAA. In reviewing a sufficiency of the evidence question, the evidence must be viewed in the light most favorable to the prosecutor, and the evidence is sufficient if a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979). In the case at bar, we conclude that a rational trier of fact could reach the conclusion that the movement of the victims was for the purposes of kidnapping and not merely incidental to the other underlying crimes. Accordingly, we conclude that there was sufficient evidence to establish the asportation element of the kidnapping charges.

Next, defendant argues that his convictions for both armed robbery and UDAA constitute double jeopardy. We disagree. Defendant is correct that the theft of several items at the same time constitutes a single larceny and, therefore, the constitutional prohibitions against double jeopardy prohibit the charging of separate larcenies for each item taken. People v. Wakeford, 418 Mich. 95, 112, 341 N.W.2d 68 (1983). With respect to armed robberies, a separate armed robbery may be charged for each victim, though separate armed robberies may not be charged for each item taken. Id. at 112-113, 341 N.W.2d 68.

The flaw in defendant's argument is that UDAA is not a larceny. That is, robbery, like the underlying offense of larceny, requires that the defendant intend to permanently deprive the victim of the property which is the subject of the robbery or [185 MICHAPP 481] larceny. People v. Fordham, 132 Mich.App. 70, 75, 346 N.W.2d 899 (1984). UDAA, on the other hand, does not require an intent to permanently deprive the owner of his property. People v. Hayward, 127 Mich.App. 50, 62, 338 N.W.2d 549 (1983), quoting 7A AmJur2d, Automobiles and Highway Traffic, ...