People v. Reeves

• Decision Date: 21 July 1998
• Docket Number: No. 7,Docket No. 109446,7
• Citation: 580 N.W.2d 433,458 Mich. 236
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Fred Daniel REEVES, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 433

580 N.W.2d 433

458 Mich. 236

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

Docket No. 109446.

Calendar No. 7.

Supreme Court of Michigan.

Argued April 7, 1998.

Decided July 21, 1998.

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

Paul G. Staten, Detroit, for defendant.

BRICKLEY, Justice.

We are asked to consider whether evidence of a victim's reasonable apprehension of an immediate battery satisfies the assault element of assault with intent to rob while unarmed (AWIR-U). ¹ The Court of Appeals reversed defendant's conviction of that offense on the basis that there was no proof that defendant possessed the actual ability to carry out the threatened battery. We conclude that an assailant's undisclosed inability to do harm to an intended victim does not preclude a conviction of an AWIR-U offense, as long as the victim's apprehension of imminent injury was reasonable. We reverse the decision of the Court of Appeals and remand this case to the trial court for reinstatement of defendant's conviction.

I

Testimony at defendant's trial discloses that complainant Michael Brown, a beer distribution driver, was returning to his truck after making a delivery when defendant Fred Reeves approached him with his hand inside what appeared to be a "small baby bag." When defendant asked Brown if he could have some beer, Brown replied, "[N]o, I'll lose my job." Brown testified, "[T]hen I noticed his bag and his hand right up to me and he said, 'What's more important, your job or your life?' " When asked how defendant was holding the bag, Brown answered, "[a]s if to have a gun in it," and that he believed defendant did have a gun. Defendant then ordered Brown to place two cases of beer on the sidewalk and to walk back to the truck as if nothing happened. Brown complied with the demand, returned to his truck, saw a nearby police car, and reported the incident.

The officers testified that they observed defendant walking away from the truck holding a white canvas bag. After conducting an unsuccessful search for weapons, they placed defendant under arrest. The beer remained untouched on the sidewalk, and the canvas bag was never recovered.

Defendant was charged with armed robbery. At his bench trial, defendant admitted carrying a diaper bag and requesting a case of beer, but that the alleged threat was a joke based on a line from a television commercial. Treating the case as a credibility contest between Brown and defendant, the trial court accepted Brown's testimony that defendant approached Brown with his hand inside the baby bag in a menacing fashion, and that Brown was fearful for his safety and his life. On the basis of those findings, defendant was convicted of the AWIR-U offense and sentenced to a prison term of one to fifteen years.

Defendant claimed on appeal that the prosecution failed to prove the assault element of the AWIR-U offense, arguing that because no weapon was recovered, he did not possess the actual ability to carry out the threat. The Court of Appeals, despite "deep misgivings," vacated defendant's conviction, and read our decision in People v. Sanford, 402 Mich. 460, 265 N.W.2d 1 (1978), as requiring a showing of an actual ability to carry out an offer to do corporal injury, proofs of which were lacking in this case. The panel urged this Court to "revisit" the question of the meaning of assault in order to bring that element in line with the "traditional" definition. 222 Mich.App. 32, 564 N.W.2d 476 (1997). We granted the prosecutor's application for leave to appeal, and now reverse. 456 Mich. 899, 573 N.W.2d 615 (1997).

II

Although the trial court's fact finding suggests that the proofs may have been sufficient to sustain a conviction under the more heavily punished offenses of armed robbery, ² or assault with intent to rob while armed, ³ the question here is whether defendant's conviction may be sustained under the AWIR-U statute, which provides:

Any person, not being armed with a dangerous weapon, who shall assault another with force and violence, and with intent to rob and steal, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years. [M.C.L. § 750.88; M.S.A. § 28.283.]

In Michigan, the penalty for and constituent elements of aggravated assaults such as AWIR-U are codified, but the definition of assault is left to the common law. As noted by this Court in People v. Jones, 443 Mich. 88, 92, 504 N.W.2d 158 (1993), our courts at one time "struggled with changing definitions of criminal assault." In the early common law, a criminal assault was defined as an attempted battery, leaving to the civil law the tort version of assault, i.e., intentionally placing another in apprehension of an immediate battery. ⁴ More recently, this Court joined the majority of jurisdictions by explicitly incorporating aspects of the tort concept into the definition of criminal assault:

We adopt what Perkins on Criminal Law (2d ed.), p. 117, says is the majority rule, namely "a simple criminal assault 'is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery.' " [Sanford, supra at 479, 265 N.W.2d 1.][ ⁵ This adjunctive definition not only broadens the concept of criminal assault to include aspects of assault's definition in tort, but also treats that form of assault as a substantive offense with a mental element that is distinct from the attempted-battery form of assault, and is satisfied where an actor engages in some form of threatening conduct designed to put another in apprehension of an immediate battery. ⁶

Although it acknowledged the Sanford Court's recognition of both forms of criminal assault, the Court of Appeals in the instant case interpreted a footnote from that decision as compelling a conclusion that the assault element of AWIR-U requires proof that an assailant possess the actual ability to carry out the threat. Because we believe that the Court of Appeals misapprehends the "present ability" phrase, we reject that conclusion.

In Sanford, the precise issue before the Court concerned whether the offenses of AWIR-U and attempted unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798, as affected by the general attempt statute, M.C.L. § 750.92; M.S.A. § 28.287, were identical crimes. ⁷ The Court found that the respective statutes defined distinct crimes, and detailed the difference in a footnote:

The essential elements of [AWIR-U] are (1) an assault with force and violence, (2) an intent to rob and steal, and (3) defendant being unarmed....

The essential elements of an attempted unarmed robbery are (1) an attempted felonious taking of property from the person of another or in his presence, (2) by force and violence or by assault or by putting in fear, and (3) defendant being unarmed.

* * * * * *

An [AWIR-U] necessarily involves an offer to do injury with the present ability to carry out that offer. Hence, the crime is always more dangerous vis-a-vis potential victims. [Sanford at 474, n. 1, 265 N.W.2d 1 (emphasis added).]

Although Sanford does not discuss whether the "present ability" to carry out the threatened harm must be actual or apparent, the Court of Appeals in the instant case seemingly interpreted the phrase as representing a synonym for actual present ability:

The specific discussion of AWIR-U includes a "present ability" requirement not contained in the Sanford Court's own definition of assault, id. at 479, 265 N.W.2d 1. Accordingly, there is some ambiguity in Sanford regarding whether "present ability" is an essential element of an assault. [222 Mich.App. at 39, 564 N.W.2d 476.][ ⁸

We find no such "ambiguity" because our criminal jurisprudence has consistently emphasized that for a criminal assault to occur, a greater degree of proximity to completion of the offense, i.e., present ability, is required than for nonassault attempts. As the Court of Appeals noted, the "present ability" phrase can be traced to People v. Lilley, 43 Mich. 521, 5 N.W. 982 (1880), in which the Court determined that an assault is not made out absent proof that the assailant is within actual striking range of the victim. ⁹ More recently, the Court of Appeals in People v. Smith (On Rehearing ), 89 Mich.App. 478, 280 N.W.2d 862 (1979), reiterated that "present ability" refers to proximity, a conclusion that has received approval in an opinion by Justice Boyle:

That the defendant must have "present ability" means that the act done must have been sufficiently proximate to the thing intended, i.e., "it must have proceeded far enough towards a consummation thereof," so as to be an actual assault. [People v. Worrell, 417 Mich. 617, 634, 340 N.W.2d 612 (1983) (Boyle, J., dissenting on other grounds) (emphasis added; citations omitted).]

We find that the foregoing clarifies the idea that proximity is a requisite component of present ability because the cases cited all frame their analyses in terms of spatial and temporal proximity, rather than on an assailant's actual ability to consummate the threat. Accordingly, we reaffirm that "present ability" is a necessary component of all criminal assaults.

Clearly, attempted-battery assaults, i.e., those that are sufficiently proximate to the intended victim, evince an assailant's actual ability to inflict injury on the victim. For the apprehension-type assault, however, a lack of actual ability to inflict the threatened harm is largely irrelevant and unnecessary, as long as the victim reasonably apprehends an imminent battery. 2 LaFave & Scott, Substantive Criminal Law, § 7.16(b), p. 315. Thus, the inquiry turns on what the victim perceived, and whether the apprehension of imminent injury was reasonable. As the Massachusetts...