People v. Parker

• Decision Date: 06 October 1980
• Docket Number: Docket No. 78-4174
• Citation: 100 Mich.App. 406,299 N.W.2d 56
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Deval PARKER, Defendant-Appellant. 100 Mich.App. 406, 299 N.W.2d 56
• Court: Court of Appeal of Michigan — District of US

Page 56

299 N.W.2d 56

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Deval PARKER, Defendant-Appellant.

Docket No. 78-4174.

100 Mich.App. 406, 299 N.W.2d 56

Court of Appeals of Michigan.

Oct. 6, 1980.

Released for Publication Dec. 9, 1980.

[100 MICHAPP 408] James R. Neuhard, State Appellate Defender, Mardi Crawford, Asst. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and CAVANAGH and ELLIOTT, ^* JJ.

ELLIOTT, Judge (On Rehearing).

Defendant was charged with and convicted by a jury of first-degree criminal sexual conduct, M.C.L. § 750.520b(1); M.S.A. § 28.788(2), and armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. He claims this appeal by right.

The complaining witness testified that defendant sprayed something in her face as she exited from her car, told her that he would stab her with a knife if she were not quiet, took $12 from her wallet, then had her drive to a secluded spot where he raped her after a struggle. Defendant denied having taken any money and testified that the complainant consented to intercourse. Defendant's wallet was recovered from the complainant's car, and he was arrested at his boarding house that same night with $12 and a nail file found in the clothes that he was reportedly wearing at the time of the rape and robbery.

At trial, and now on appeal, defendant argues that because the complaining witness never actually[100 MICHAPP 409] saw the knife which defendant purportedly threatened her with, there was insufficient evidence to establish the dangerous weapon element of the crimes charged. The trial court found that sufficient evidence had been produced on this element to submit it to the jury.

We find that there was sufficient evidence for the jury to find that the defendant was armed with a knife or with an article, such as his nail file, used or fashioned in a manner to lead the rape-robbery victim to reasonably believe that the article was a knife. Compare People v. Klimek, 172 Cal.App.2d 36, 341 P.2d 722 (1959).

We would be of the same opinion based upon the facts of this case-repeated threats to stab, arm around her neck with the other hand pressed against her side-even if we thought People v. Krist, 93 Mich.App. 425, 287 N.W.2d 251 (1979), lv. den. 407 Mich. 963 (1980), was correct. We wish to express the view that Krist, supra, is wrong.

The pertinent facts are stated, as follows, on page 430 of Krist, supra :

"Witness Timothy Tiegeler, a clerk at the Beverage Barn, testified that as he returned from the stockroom he was struck, thrown to the floor near the cash register and ordered to lie still. One of the assailants said, 'that they had a .357 magnum and they were going to blow my head off'. Tiegeler stated that although he never saw a gun, nor anything that looked like a gun, he conducted himself as though one was trained on him because of the threat made."

The Krist Court vacated the jury conviction of armed robbery and remanded for entry of a conviction of unarmed robbery. We disagree.

If either Krist or his confederate, Surline, was actually armed with the .357 magnum pistol at the [100 MICHAPP 410] time of the robbery, they were both guilty of armed robbery although the gun was not used by either robber nor seen by the victim.

"The word 'armed' as used in statutes of this nature, means furnished or equipped, and the actual display or use of the weapon is unnecessary, since it is the possible use to which the weapon might have been put that controls." 77 C.J.S. Robbery §§ 25, 464, 465.

In fact, the victim does not even have to be aware or believe that the robber is armed. See People v. Hall, 105 Cal.App. 359, 287 P. 533 (1930), People v. Klimek, supra, State v. Farmer, 324 A.2d 739 (Me., 1974), and State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). What would otherwise be an unarmed robbery becomes armed robbery if, in fact, the robber or a partner carried a weapon although it was concealed at all times.

Whether or not Krist or Surline, his accomplice, actually possessed the .357 magnum that one of them said he had was a fact for the jury. The effect and the value of the evidence is for the jury to decide. In People v. Mosden, 381 Mich. 506, 510, 164 N.W.2d 26, 27 (1969), our Supreme Court held:

"Determination of the factual questions was definitely a function for the jury, not the trial court on motion for new trial nor this Court on appeal. We find there was testimony which, if believed by the jury, as it apparently was, warranted a finding of defendant's guilt beyond a reasonable doubt. We cannot reverse on this ground."

There was evidence that Krist or Surline was armed. One of them told Tiegeler, the victim, that he had a .357 magnum and would blow his head off. That verbal statement was direct evidence that the robber who made it was armed. The jury could [100 MICHAPP 411] believe it and find that he was then telling the truth and was armed. The jury did not have to believe the trial testimony of Krist or of Surline that neither of them really had a gun. The Court of Appeals in Krist, supra, held that: "(a) verbal statement, without more, is insufficient"; but it was for the jury, not the Court of Appeals, to decide whether Krist or Surline was armed and whether the verbal statement of one of them of that fact was sufficient to establish that element of the crime.

The fallacy of the Kris...