People v. Nicen
Decision Date | 06 May 1983 |
Docket Number | Docket No. 61494 |
Citation | 123 Mich.App. 258,333 N.W.2d 243 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifford Henry NICEN, Jr., Defendant-Appellant. 123 Mich.App. 258, 333 N.W.2d 243 |
Court | Court of Appeal of Michigan — District of US |
[123 MICHAPP 259] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Asst. Pros. Atty., and Janice M. Joyce-Bartee, Asst. Pros. Atty., for the people.
Monash & Monash, P.C. by Richard A. Monash, Detroit, for defendant-appellant.
Before CYNAR, P.J., and KAUFMAN and MacKENZIE, JJ.
Following a bench trial, defendant was convicted as charged of larceny in a building. M.C.L. Sec. 750.360; M.S.A. Sec. 28.592. Defendant was sentenced to two to four years imprisonment. He appeals as of right.
Relying on dicta in People v. Carmichael, 86 Mich.App. 418, 272 N.W.2d 667 (1978), lv. den. 406 Mich. 949 (1979), defendant argues that the prosecutor abused his discretion by charging defendant with the felony of larceny in a building rather than the misdemeanor of simple larceny.
Even if Carmichael is considered competent authority for the rule that a defendant accused of shoplifting may not be charged with larceny from a building, that rule is not applicable in this case. Defendant's act cannot be construed as shoplifting. Defendant, an employee of Hudson's employed in other than a sales position, stole money from an open cash register of his employer. Further, although[123 MICHAPP 260] the trial court correctly found that the prosecutor need only prove that property of some value was taken by defendant, the prosecutor presented evidence that defendant took property valued over $100. The proofs showed that defendant took cash from register # 273 and put that cash in his right hand. The security guard observed those actions and pursued defendant. When caught, defendant turned over the cash in his hand to the security guard. The value of that cash was $160. Moreover, the audited shortage in register # 273 was $194.84, the total of the $160 cash and a $34.84 check defendant had in his possession. This evidence could convince a fact finder beyond a reasonable doubt that the value of the stolen property was over $100. See also, People v. Bolton, 112 Mich.App. 626, 317 N.W.2d 199 (1981), and People v. Ditto, 110 Mich.App. 654, 313 N.W.2d 177 (1981), where panels of this Court rejected the argument that it was an abuse of discretion to charge a violation under the more harsh of two statutes.
Defendant's additional allegations also lack merit.
The prosecutor presented sufficient evidence that defendant specifically intended to commit a larceny in a building. See People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), and People v. Thompson, 114 Mich.App. 302, 319 N.W.2d 568 (1982). The proofs established that defendant not only possessed a stolen check and money when he was caught but was observed taking money from his employer's cash register and leaving with that property belonging to his employer. Such actions are sufficient for a rational fact finder to conclude...
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