People v. Olszewski, Docket No. 55697

Decision Date03 December 1982
Docket NumberDocket No. 55697
Citation119 Mich.App. 455,326 N.W.2d 394
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Joseph OLSZEWSKI, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Chief, Appellate Asst. Pros. Atty., Appeals, and A. George Best II, Asst. Pros. Atty., for the People.

Deputy State Appellate Defender (by Rolf E. Berg), for defendant-appellant on appeal.

Before BRONSON, P.J., and CYNAR and ERNST, * JJ.


After a bench trial conducted in Wayne County Circuit Court on January 2 and 7, 1980, defendant was convicted of breaking and entering with intent to commit larceny, contrary to M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. On January 21, 1980, defendant was sentenced to a term of from 18 months to 10 years in prison. Defendant appeals as of right.

Defendant first contends that the evidence presented by the prosecution was insufficient to sustain his conviction since the requisite intent was not proven beyond a reasonable doubt. Since the prosecution proceeded on an aiding and abetting theory, M.C.L. Sec. 767.39; M.S.A. Sec. 28.979, evidence must have been introduced to show that defendant encouraged, counseled or assisted another in the breaking and entering. People v. Spry, 74 Mich.App. 584, 595, 254 N.W.2d 782 (1977), lv. den. 401 Mich. 825 (1977). In addition, the prosecution must prove beyond a reasonable doubt that defendant either possessed the specific intent to commit a larceny at the time of the breaking and entering or knew of the principal actor's specific intent. People v. Rigsby 2 Mich.App. 95, 97, 284 N.W.2d 499 (1979), lv. den. 408 Mich. 879 (1980).

In the present case, the prosecution met its burden of introducing evidence which, if believed, was sufficient to show that on the evening of October 11 or in the early morning of October 12, 1979, a breaking and entering occurred at Tony's Gun Shop located in Brownstown Township. That evidence also indicated that at the time of the breaking and entering, approximately 15 guns and 2 knives were taken from the shop.

The prosecution introduced evidence of three separate circumstances from which the factfinder might infer the requisite intent: (1) defendant's presence at the scene of the crime, (2) defendant's knowledge that Mr. Donnelly was accompanying the other two men to "get a hold of a gun" and (3) defendant's receipt of some of the stolen goods. No direct evidence was presented at trial to show that defendant intended to commit larceny or knew that Mr. Donnelly intended to commit a larceny after breaking and entering into Tony's Gun Shop. Nor was there direct evidence presented at trial to show that defendant had encouraged, counseled or assisted Mr. Donnelly in the breaking and entering.

Circumstantial evidence may be used to prove the requisite intent in a charge of breaking and entering with intent to commit larceny. People v. Triplett, 105 Mich.App. 182, 189, 306 N.W.2d 442 (1981). In passing on a motion for dismissal based on the insufficiency of the evidence, this Court must: (1) consider the evidence which had been introduced at the time the motion was made, (2) view that evidence in the light most favorable to the prosecution, and (3) determine whether that evidence, if credible and believed, would justify a reasonable person in concluding that all elements of the crime were established, beyond a reasonable doubt. People v. Royal, 62 Mich.App. 756, 757-758, 233 N.W.2d 860 (1975), People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979).

In the instant case, the uncontroverted evidence presented placed defendant at the scene of a breaking and entering. There is also uncontroverted evidence that defendant received and sold guns which were taken during that breaking and entering. The defense is that, although defendant was present at the scene of the crime, he did not participate in the offense as a principal or as an accomplice and that, because defendant allegedly remained in the car and slept throughout the actual breaking and entering due to his intoxication, he did not have the requisite specific intent to sustain the charge brought against him.

It is true that "mere presence" at the scene of a crime is insufficient evidence to convict without more. People v. Burrel, 253 Mich. 321, 323, 235 N.W. 170 (1931). However, in this case, we do not have simply mere presence. Defendant was in the car while the crime was planned and defendant received the stolen property.

Moreover, assuming, arguendo, that defendant did remain in the car during the commission of the crime and its planning, defendant may still be found guilty as an aider and abettor. M.C.L. Sec. 767.39; M.S.A. Sec. 28.979. Specific intent is not required of an aider and abettor if it can be shown that defendant "rendered his aid and assistance to the principal actor with the knowledge that the principal himself...

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3 cases
  • People v. Marks
    • United States
    • Court of Appeal of Michigan — District of US
    • 2 Febrero 1987
    ...the police, the jury could conclude that Holmes shared Marks' felonious intent and participated in the crime. People v. Olszewski, 119 Mich.App. 455, 326 N.W.2d 394 (1982). Compare the facts in People v. Henry, 395 Mich. 367, 236 N.W.2d 489 We lastly address Holmes' arguments that the court......
  • People v. Petrella
    • United States
    • Michigan Supreme Court
    • 10 Enero 1986
    ...243 (1983); People v. Pawlak, 120 Mich.App. 585, 589, 327 N.W.2d 528 (1982), lv. den. 417 Mich. 1074 (1983); People v. Olszewski, 119 Mich.App. 455, 458, 326 N.W.2d 394 (1982); People v. Marlin Smith, 119 Mich.App. 91, 94, 326 N.W.2d 434 (1982); People v. Gregory Johnson, 112 Mich.App. 483,......
  • People v. Karst, Docket No. 71415
    • United States
    • Court of Appeal of Michigan — District of US
    • 7 Enero 1985
    ...proves that the defendant acted with knowledge that his coparticipants possessed the requisite intent. People v. Olszewski, 119 Mich.App. 455, 459, 326 N.W.2d 394 (1982). Where the offense is a specific intent crime, [138 MICHAPP 416] as here, voluntary intoxication of the defendant would b......

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