People v. Pohl

• Decision Date: 19 October 1993
• Docket Number: Docket No. 144633
• Citation: 507 N.W.2d 819,202 Mich.App. 203
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Gerard POHL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 819

507 N.W.2d 819

202 Mich.App. 203

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Gerard POHL, Defendant-Appellant.

Docket No. 144633.

Court of Appeals of Michigan.

Submitted Aug. 11, 1993, at Lansing.

Decided Oct. 19, 1993, at 9:20 a.m.

Released for Publication Dec. 3, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Donald E. Martin, Pros. Atty., and Susan L. LeDuc, Asst. Pros. Atty., for People.

State Appellate Defender by Gail Rodwan, for defendant-appellant.

Before HOOD, P.J., and MARK J. CAVANAGH and TAYLOR, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305. He was sentenced to a term of eighty-six months to fifteen years' imprisonment and appeals as of right. We affirm.

Defendant and his wife were in the midst of a divorce. There was a restraining order prohibiting defendant from entering the marital home and "from removing any personal property" from the home. The locks on the doors had been changed.

Defendant admits that he broke into the home by pushing against the back door until it separated from its frame. He also admits that he removed personal property from the home, some of which was his own, but which he admits was covered by the restraining order. He nevertheless argues that there was insufficient evidence of larcenous intent because he took the property under a claim of right. We view claims of insufficiency of the evidence in the light most favorable to the prosecution. People v. Petrella, 424 Mich. 221, 268-269, 380 N.W.2d 11 (1985). Against this standard, defendant's claim fails.

Larceny requires an intent to take and carry away someone else's property without that person's consent. People v. McFarland, 165 Mich.App. 779, 781, 419 N.W.2d 68 (1988). For purposes of larceny, the "owner" is the person who has rightful possession and control of the property. People v. Hatch, 156 Mich.App. 265, 267, 401 N.W.2d 344 (1986). Further, there is no right to enter into one's home, in violation of a restraining order or, by analogy, to remove one's property under similar restraint. See People v. Szpara, 196 Mich.App. 270, 273-274, 492 N.W.2d 804 (1992). However, "[i]f the defendant in good faith believed that the [property] ... was his ... and that he was entitled to its possession, he could not be guilty of ... larceny in taking it, because there would be no felonious intent, 'and if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been committed.' " People v. Holcomb, 395 Mich. 326, 333, 235 N.W.2d 343 (1975) (emphasis added), quoting People v. Walker, 38 Mich. 156 (1878).

Here, the evidence showed that defendant was prohibited by a court order from entering the marital home and from removing personal property found therein. Therefore, defendant's testimony--that he, in good faith, believed that he had a right to take the property in question even though he was fully aware of the restraining order--created a question of fact for the jury regarding the issue of felonious intent. Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that defendant's belief was not held in good faith and that he therefore had the requisite felonious intent. Defendant's argument with regard to the claim of right was placed before the jury, which obviously rejected it.

Defendant next argues, relying on the spousal testimonial ¹ privilege statute, that he was denied a fair trial when his wife was allowed to testify. We disagree.

Section 2162 of the Revised Judicature Act, M.C.L. § 600.2162; M.S.A. § 27A.2162,

bars one spouse from testifying for or against the other without the other's consent except in (1) actions for divorce, (2) prosecutions for bigamy or for a crime committed against the children of either or both, (3) actions growing out of a personal wrong or injury done by one to the other or the refusal or neglect to furnish the spouse or children with suitable support, (4) cases of desertion or abandonment, and (5) certain cases relating to marriage and title to property. [People v. Hamacher, 32 Mich. 157, 161, 438 N.W.2d 43 (1989); emphasis added.]

Defendant contends that he merely committed a property crime, not "a personal wrong or injury done by one [spouse] to the other" and that, therefore, his wife could not be called to testify. We strongly disagree.

Clearly, this exception applies to obviously personal crimes committed against a spouse, such as attempted murder, kidnapping, criminal sexual conduct, and felonious assault. See, e.g., People v. Love, 425 Mich. 691, 391 N.W.2d 738 (1986) (kidnapping); People v. Ellis, 174 Mich.App. 139, 436 N.W.2d 383 (1988) (kidnapping and first-degree criminal sexual conduct); People v. Sykes, 117 Mich.App. 117, 323 N.W.2d 617 (1982) (felonious assault); People v. Thompson, 111 Mich.App. 324, 314 N.W.2d 606 (1981) (assault with intent to do great bodily harm). However, arson has also been found to "clearly" be "a personal wrong or injury" covered by the exception. See People v. Butler, 430 Mich. 434, 439, 424 N.W.2d 264 (1988) (rejecting a contrary interpretation as illogical and unreasonable). In Butler, the Supreme Court specifically disapproved of a requirement that the wrong or injury be "purely personal in its character, and in no sense ... embrace public wrongs, which are personal only in the sense that they wound feelings or annoy or humiliate, but inflict no injury upon the person." Id. (criticizing People v. Quanstrom, 93 Mich. 254, 257-260, 53 N.W. 165 [1892], which held that bigamy was not a personal wrong or injury). The Butler Court noted that arson not only "places the person in great danger, [but also] ... threatens or destroys personal property." 430 Mich. 440. Therefore, in the appropriate case, the destruction of personal property can constitute "a personal wrong or injury."

Here, defendant broke into the marital home, damaged the door frame, and took not only his personal property, but also joint property and property belonging to his wife. ² He did this knowing that it would violate a restraining order. As in Butler, defendant did more than "wound the feelings or annoy or humiliate." He clearly interfered with his wife's right of possession arising from the restraining order. See Szpara, supra 196 Mich.App. at 273-274, 492 N.W.2d 804. He also interfered with her right of peaceful habitation, causing her to change the locks and phone number, vacate the home, and seek psychological help. SeePeople v. Winhoven, 65 Mich.App. 522, 527-528, 237 N.W.2d 540 (1975) (breaking and entering statutes protect the right of peaceful habitation). We also note, as will be discussed below, that defendant's conduct was part of a pattern of hostile behavior against his family, which included a felonious assault upon his sixteen-year-old stepdaughter.

In our opinion, defendant's conduct constitutes "a personal wrong or injury" against his wife. As in Butler, "we reject a contrary interpretation as illogical and unreasonable." 430 Mich. at 439, 424 N.W.2d 264. We agree that

[i]f the wife could not complain of or be a witness against her husband in these cases, she might not unfrequently (sic) be subjected to the most atrocious and brutal conduct from her husband without remedy. Not only the ends of justice, but public policy alike, require that she should be at liberty to complain and prosecute as if she were a feme sole in criminal cases. The law will not allow the marriage relation to be so used as to protect the criminal, or shield him from the just penalty for his crime. [People v. Sebring, 66 Mich. 705, 707, 33 N.W. 808 (1887) (involving an assault with intent to do great bodily harm) (quoted approvingly in Butler, supra 430 Mich. at 440-441, 424 N.W.2d 264).]

Defendant's wife was properly allowed to testify.

Finally, defendant argues that his minimum sentence of eighty-six months violates the principle of proportionality announced in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), because it is more than seven times the highest minimum sentence recommended by the guidelines. We disagree.

Under Milbourn, "[w]here there is a departure from the sentencing guidelines, an appellate court's first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guidelines." Id. at 659-660, 461 N.W.2d 1. Thus, "in the absence of factors not adequately reflected in the guidelines[, a departure] should alert the appellate court to the possibility that the trial court has violated the principle of proportionality and abused its sentencing discretion." Id. at 660, 461 N.W.2d 1. Further, "[e]ven where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality." Id.

Thus, in determining the proportionality of a minimum sentence that exceeds the range recommended by the guidelines, an appellate court should ask: "What unique facts exist that are not already adequately reflected in the guidelines, and why do such facts justify any departure from the guidelines?" and "If there is to be a departure, what should be its magnitude and the justification for the specific departure imposed?" People v. Harris, 190 Mich.App. 652, 668-669, 476 N.W.2d 767 (1991) ³; see also People v. Benson, 200 Mich.App. 598, 603, 504 N.W.2d 911 (1993).

Milbourn identifies "the prior relationship ... between the victim and the offender" as an "important sentencing factor ... not included in the sentencing guidelines." 435 Mich. at 660, 461 N.W.2d 1. The Court noted that such a relationship "can be a very mitigating circumstance or a very aggravating circumstance, depending upon the history of interaction...