People v. Richardson, Docket No. 55864

• Decision Date: 09 November 1982
• Docket Number: Docket No. 55864
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Brian RICHARDSON, Defendant-Appellant. 118 Mich.App. 492, 325 N.W.2d 419
• Court: Court of Appeal of Michigan — District of US

Page 419

325 N.W.2d 419

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Brian RICHARDSON, Defendant-Appellant.

Docket No. 55864.

118 Mich.App. 492, 325 N.W.2d 419

Court of Appeals of Michigan.

Submitted Feb. 9, 1982.

Decided May 26, 1982.

Released for Publication Nov. 9, 1982.

[118 MICHAPP 493] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, [118 MICHAPP 494] Chief Appellate Asst. Pros. Atty., and A. George Best II, Asst. Pros. Atty., for the people.

Turner & Turner, P.C. by Donald A. Turner, Southfield, and Gary L. Kohut, Southfield, for defendant on appeal.

Before RILEY, P.J., and HOLBROOK and KELLY, JJ.

PER CURIAM.

The information charged that defendant "did willfully and maliciously destroy or injure the following described personal property, to-wit: window of Scout Car # 61, under the care, custody, or control of the above-named COMPLAINANT, of the Melvindale Police Department, resulting in damage thereto". Defendant was convicted by a jury of malicious destruction of police property, M.C.L. Sec. 750.377b; M.S.A. Sec. 28.609(2). He was sentenced to from one to four years imprisonment and appeals as of right. Defendant assigns error to the court's refusal to grant his motion for a directed verdict at the close of the people's proofs and alternatively argues that the evidence was insufficient to support the jury's verdict.

When ruling on a motion for a directed verdict of acquittal, the trial court must consider all of the evidence presented by the prosecution up to the time the motion is made, and view it in the light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979). The essential elements of malicious destruction of police property are that the defendant did (1) willfully and maliciously destroy or injure, (2) personal property belonging to the police department. These elements in this case were clearly established by the [118 MICHAPP 495] testimony of Melvindale Police Officers Peters and Morabito, which was corroborated in part by the testimony of three Allen Park police officers.

Defendant is claiming that the people failed to prove that the property destroyed was the window of scout car number 61, which was under the care, custody or control of the complainant. It was the failure of proof on this "element" that defendant contends required the granting of the directed verdict of acquittal. A variance between nonessential descriptive language in an information and the evidence adduced at the trial does not require a directed verdict of acquittal. People v. Durr, 16 Mich.App. 763, 168 N.W.2d 633 (1969). All unnecessary allegations in an information are to be rejected as surplusage. M.C.L. Sec. 767.47; M.S.A. Sec. 28.987.

The reference to scout car number 61 and which officer had custody of the vehicle is surplusage. This language was included to identify the specific act for which defendant was charged. We conclude that defendant was sufficiently apprised of the charged offense and the facts against which he would be required to defend.

Defendant's alternative argument is that the jury verdict was contrary to the "law" as given by the trial court. This argument attacks the sufficiency of the evidence to support the verdict. The essence of the argument is that the jury instructions specifically stated that the destroyed property was scout car number 61 and no proof of this fact was shown.

The standard of review for an issue regarding sufficiency of evidence requires that the court view the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a...