People v. Reeves

• Decision Date: 25 February 1997
• Docket Number: Docket No. 185225
• Citation: 222 Mich.App. 32,564 N.W.2d 476
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred Daniel REEVES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 476

564 N.W.2d 476

222 Mich.App. 32

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred Daniel REEVES, Defendant-Appellant.

Docket No. 185225.

Court of Appeals of Michigan.

Submitted Nov. 20, 1996, at Detroit.

Decided Feb. 25, 1997, at 9:20 a.m.

Released for Publication May 15, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for People.

Paul G. Staten, Detroit, for defendant-appellant on appeal.

Before TAYLOR, P.J., and MARKMAN and P.J. CLULO ^*, JJ.

MARKMAN, Judge.

Defendant appeals as of right from his bench trial conviction of assault with intent to rob while unarmed (AWIR-U), M.C.L. § 750.88; M.S.A. § 28.283. We vacate defendant's conviction of AWIR-U and remand for determination if sufficient evidence was presented to convict defendant of a lesser included offense and, if so, for entry of a judgment of conviction of such charge and for resentencing.

Complainant Brown, a truckdriver, testified that in April 1994 he was making a delivery of beer to a party store when defendant approached him at his truck and requested a case of beer. When Brown refused, defendant threatened him and Brown saw that defendant had his hand in a diaper bag that he was holding suggesting that he was in the possession of a gun. Defendant then instructed Brown to give him two cases of beer and Brown complied by placing two cases on the sidewalk. As Brown was about to return to his truck, he saw a nearby police car and reported the incident.

The officers testified that they observed defendant walking down the street with a diaper bag. They stopped him and found no weapons after searching him. Because a crowd gathered, they were unable to recover and search the diaper bag but they recovered the two cases of beer that were still on the sidewalk. Defendant admitted carrying a diaper bag and requesting a case of beer. But he indicated that he was not trying to steal the beer by explaining that he continued walking past the truck after requesting the beer, that the alleged "threat" was just a line from a television commercial, and that he saw the nearby police car. The trial court stated that the present matter presented a credibility contest between Brown and defendant. It stated that it believed Brown's testimony and found defendant guilty of AWIR-U.

The elements of AWIR-U are "(1) an assault with force and violence, (2) an intent to rob and steal, and (3) defendant being unarmed." People v. Chandler, 201 Mich.App. 611, 614, 506 N.W.2d 882 (1993). Robbery requires the intent to permanently deprive the owner of his property. People v. King, 210 Mich.App. 425, 428, 534 N.W.2d 534 (1995).

On appeal, defendant focuses on the issue of intent. Defendant first contends that the prosecution failed to present sufficient evidence of his intention to permanently deprive Brown of his property to convict him of AWIR-U. When reviewing the sufficiency of the evidence in a criminal case, this Court views the evidence in the light most favorable to the prosecution to determine whether a rational factfinder could have found the essential elements of the crime proved beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), amended on other grounds 441 Mich. 1201 (1992). "Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime." People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993). Contrary to defendant's contention, "it is unnecessary for the prosecutor to negate every reasonable theory consistent with the defendant's innocence." People v. Carson, 189 Mich.App. 268, 269, 471 N.W.2d 655 (1991). On the basis of the evidence presented here, a rational trier of fact could find that when defendant requested the beer and threatened Brown, he did so with the intention of permanently depriving Brown of the beer.

Defendant next argues that the trial court's findings of fact were insufficient because they do not address the issue of intent. Findings of fact are sufficient if it appears from the record that the trial court "was aware of the issues in the case and correctly applied the law." People v. Legg, 197 Mich.App. 131, 134, 494 N.W.2d 797 (1992). A trial court is not required to make specific findings regarding each element of a crime. Id. at 134, 494 N.W.2d 797. Here, the trial court noted that it was faced with a credibility contest and that it believed Brown's testimony over defendant's testimony. It specifically found that defendant's behavior--walking away and not picking up the cases of beer--was explained by his having seen the police, albeit at a later time than he testified. These findings indicate that the trial court considered defendant's arguments regarding intent, but was unpersuaded by them. We hold that the court's findings of fact were sufficient.

Next, defendant contends that one of the trial court's findings was contrary to the evidence. On appeal, this Court will not disturb trial court findings of fact unless they are clearly erroneous. People v. Gistover, 189 Mich.App. 44, 46, 472 N.W.2d 27 (1991). Defendant claims that the trial court's finding that defendant saw the police before walking away from the beer truck contradicted his testimony. In fact, defendant testified that he saw the police car as he was passing Brown and that he saw the police "all the time." Accordingly, this finding of the trial court was not clearly erroneous.

While we find no merit in defendant's arguments regarding the intent element of AWIR-U, Michigan Supreme Court precedent obligates us to find that the prosecution failed to introduce sufficient evidence of another element of AWIR-U: an assault with force and violence. In Chandler, this Court held that the assault element of AWIR-U requires "an attempt or offer to do corporal injury with the present intention and present ability to carry out that offer, with force and violence...." Chandler, supra at 615, 506 N.W.2d 882, citing People v. Sanford, 402 Mich. 460, 474, n. 1, 265 N.W.2d 1 (1978). Here, as in Chandler, the prosecution failed to introduce evidence of defendant's present ability to carry out his threat. Defendant used no physical force or violence, Brown never actually saw a weapon, the police found no weapon during their search of defendant, and the contents of the diaper bag were never discovered. Defendant, armed only with a diaper bag, could not have "presently" carried out his implied threat to shoot Brown. Therefore, under Sanford and Chandler, the assault element of AWIR-U is not met here.

Because the evidence is insufficient to convict defendant of AWIR-U under Sanford and Chandler, we will vacate defendant's conviction of AWIR-U and remand this matter to the trial court. In such circumstances, the appropriate remedy is to remand for consideration of entry of a conviction of a lesser included offense and for resentencing. People v. Johnson, 206 Mich.App. 122, 125, 520 N.W.2d 672 (1994); Chandler, supra at 615, 506 N.W.2d 882. Accordingly, on remand, we direct the trial court to determine if sufficient evidence was presented to convict defendant of a lesser included offense, and if so, to enter a judgment of conviction of such charge and resentence defendant.

We question the language in the Michigan Supreme Court's Sanford opinion and in this Court's opinion in Chandler that indicates that an assault requires a "present ability" to carry out a threat of violence. This definition is contrary to traditional definitions of assault that focus on an apparent present ability from the perspective of the victim. For example, Black's Law Dictionary (5th ed) states "[a]ny willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do, and any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm, constitutes an assault." 2B Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 1015, p. 325, defines assault as "an attempt or offer, with force and violence, to do corporal hurt to another, with an apparent present means of carrying out the attempt."

In Sanford, the complainant was actually struck by the defendants; therefore whether there was the "present ability" to carry out a threat was not at issue. Sanford involved claims that the elements of AWIR-U, M.C.L. § 750.88; M.S.A. § 28.283 (fifteen-year maximum sentence), and attempted unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798 and M.C.L. § 750.92; M.S.A. § 28.287 (five-year maximum sentence), were identical and that it was a violation of equal protection principles for statutes prohibiting the same conduct to have different penalties. This Court had earlier affirmed the convictions of AWIR-U. People v. Sanford, 65 Mich.App. 101, 237 N.W.2d 201 (1975). It had defined criminal assault as "any intentional, unlawful offer of violence to another with the apparent present ability to carry out the offer, creating a reasonable fear of immediate injury." Id. at 105, 237 N.W.2d 201. It distinguished AWIR-U from attempted unarmed robbery on the basis that AWIR-U requires an assault while attempted unarmed robbery requires either an assault or actual force and violence (which does not necessarily require that there be a perception or apprehension of danger before its occurrence). Id. The Michigan Supreme Court affirmed the convictions of AWIR-U. Sanford, 402 Mich. 460, 265 N.W.2d 1. However, it specifically disagreed with this Court's definition of assault that required that "the victim be put in reasonable fear of immediate harm." 402 Mich. at 475, 479, 265 N.W.2d 1. It held, at 479, 265 N.W.2d 1:

We adopt what Perkins on Criminal Law (2d ed.), p. 117 says is the majority rule, namely "a simple criminal assault 'is made out...