People v. Rodgers

• Decision Date: 06 March 2002
• Docket Number: Docket No. 223130.
• Citation: 645 N.W.2d 294,248 Mich. App. 702
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric Keith RODGERS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

645 N.W.2d 294

248 Mich. App. 702

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric Keith RODGERS, Defendant-Appellant.

Docket No. 223130.

Court of Appeals of Michigan.

Submitted June 13, 2001, at Detroit.

Decided December 14, 2001, at 9:20 a.m.

Released for Publication March 6, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, and Kathryn G. Barnes, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Randy E. Davidson), for the defendant on appeal.

Before: SMOLENSKI, P.J., and McDONALD and JANSEN, JJ.

SMOLENSKI, P.J.

Defendant appeals as of right from his jury convictions and sentences on three counts of armed robbery, M.C.L. § 750.529, one count of felon in possession of a firearm, M.C.L. § 750.224f, and four counts of possessing a firearm during the commission of a felony, M.C.L. § 750.227b. The trial court sentenced defendant, as a third-offense habitual offender, M.C.L. § 769.11, to concurrent terms of life imprisonment for each count of armed robbery, along with a term of five to ten years' imprisonment for the felon in possession of a firearm charge. In addition, the trial court sentenced defendant to the mandatory terms of two years' imprisonment for each of the felony-firearm convictions, those sentences to run concurrently with each other but consecutively to the sentences for armed robbery and felon in possession. We affirm.

I. Factual Background

This case arises from the robbery of a Speedy Muffler shop in Pontiac on November 25, 1998. At the time of the robbery, three employees were present in the shop: Steven VanAssche, Mark Babala, and Jake Fournier. VanAssche, the store manager, was standing by the cash drawer in the front office. Babala, a mechanic and assistant manager, was seated in the front office, reading a magazine. Fournier, a mechanic, was working on a vehicle in the back room.

VanAssche and Babala testified that defendant entered the front office, brandishing a pistol-gripped, sawed-off shotgun. Defendant announced a "stick-up" and racked the shotgun, causing a live round to fall to the floor. When defendant demanded cash, VanAssche unlocked the cash drawer and told defendant to take whatever he wanted. As defendant began emptying the cash drawer, he ordered VanAssche and Babala into the back room. The two employees complied, and VanAssche informed Fournier that an armed robbery was in progress. Fournier stepped away from his vehicle and observed defendant emptying the cash drawer.

After warning Fournier, VanAssche headed for a back door, seeking an escape route. Defendant entered the back room and ordered Babala and Fournier to their knees, pointing the shotgun at Babala's head. Noticing VanAssche near the back door, defendant ordered him to return, threatening to kill Babala and Fournier if he failed to comply. Defendant then ordered all three men to empty their pockets. VanAssche testified that he surrendered approximately $250 to defendant. Babala and Fournier both testified that their pockets were empty and that defendant did not take any money or property from their persons.

II. Armed Robbery

Defendant first argues that the prosecutor failed to present sufficient evidence to support defendant's conviction on three separate counts of armed robbery. Specifically, defendant argues that he took money only from VanAssche, and did not take any money or property from either Babala or Fournier. Therefore, defendant contends that the elements of armed robbery could have been satisfied with respect to VanAssche only. The prosecutor responds that defendant was properly convicted of robbing Babala and Fournier because he took money from the company cash box while they were present.

When reviewing the sufficiency of the evidence in a criminal case, we must 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 proved beyond a reasonable doubt. People v. Jaffray, 445 Mich. 287, 296, 519 N.W.2d 108 (1994); People v. Fetterley, 229 Mich.App. 511, 515, 583 N.W.2d 199 (1998). Viewed in that light, we conclude that the evidence was sufficient to support defendant's convictions of robbing Babala and Fournier while armed.

The armed robbery statute provides, in pertinent part:

Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony.... [MCL 750.529.]

Thus, the elements of armed robbery are "(1) an assault, (2) a felonious taking of property from the victim's presence or person, (3) while the defendant is armed with a weapon described in the statute." People v. Turner, 213 Mich.App. 558, 569, 540 N.W.2d 728 (1995). Further, in an armed robbery case, the prosecutor need not show that the victim actually owned the property taken. Rather, the prosecutor need only show that the property was taken in the victim's "presence" and that the victim's right to possess the property was superior to the defendant's right to possess it. People v. Jones, 71 Mich.App. 270, 272, 246 N.W.2d 381 (1976); People v. Beebe, 70 Mich.App. 154, 159, 245 N.W.2d 547 (1976).

Defendant's argument on appeal centers on Babala's and Fournier's rights to possess the cash contained in the company cash box. Defendant does not argue that he possessed superior rights to the company's cash, when compared to these two employees. However, defendant argues that VanAssche, as store manager, possessed superior rights to the company's cash, when compared to Babala and Fournier. Therefore, defendant argues that he robbed only VanAssche, and did not rob either Babala or Fournier.

Defendant relies on People v. McMichael, unpublished opinion per curiam of the Court of Appeals, issued October 21, 1993 (Docket No. 139297),¹ to support his argument. In McMichael, the defendant and another man decided to rob the home of Ralph and Angela Schultz. Id., slip op. at 1. When the two men forced their way inside, the two adults were home with their children, who were eleven and ten years old respectively. Id. The two robbers, both of whom were armed, ransacked the premises and took some money and jewelry. Id. A jury convicted the defendant of four counts of armed robbery, among other offenses. Id. On appeal, this Court reversed defendant's armed robbery convictions relating to the two children:

The intended unit of prosecution under the [armed robbery] statute is the person assaulted and robbed. The victim need not be the actual owner of the stolen property; mere custody or right of control by the victim is sufficient to support a charge of larceny or robbery. In this case, there was no evidence that any of the property taken by defendant [or his co-defendant] actually belonged to [the children]. Further, there was no evidence from which it could be inferred that the two Schultz children had any joint rights to the stolen jewelry or money. As noted by the prosecution, had this been a case where the children were home alone when robbed, they could be found to be robbery victims since their ownership rights to the property within the house would be superior to defendant's. In this case, however, as between the children and their parents, the only reasonable inference from the record is that the parents had superior rights to the property. Because the children were merely present when their parents were robbed and were not themselves deprived of property within their custody or control, there was insufficient evidence to sustain the armed robbery convictions and related felony-firearm convictions related [sic] to them. Accordingly, we vacate those convictions. [Id., slip op. at 1-2 (citations omitted).]

In People v. Courts, 205 Mich.App. 326, 329, 517 N.W.2d 785 (1994), this Court considered the appeal of McMichael's codefendant, who was also convicted of four counts of armed robbery, arising from the same incident. In that case, the defendant argued on appeal that two of his armed robbery convictions and two of his felony-firearm convictions should be vacated, "because there is no evidence that any property was taken from the Schultzes' two children." Id. The prosecutor concurred with the defendant's argument. Id. Citing McMichael, and without further explanation, this Court vacated two of the defendant's armed robbery and felony-firearm convictions. Id.

In the present case, defendant contends that the McMichael analysis involving parents and children also applies to situations involving supervisory and subordinate employees.² Defendant points to the fact that only VanAssche, the store manager, opened the cash box at gunpoint. Arguing that neither Babala nor Fournier opened the cash box, and arguing that their rights to control the contents of the cash box were inferior to the rights of VanAssche, defendant contends that the evidence was insufficient to support a conviction of robbing Babala and Fournier while armed.

The prosecutor responds by arguing that McMichael was wrongly decided. In the alternative, the prosecutor contends that this Court should not extend the McMichael analysis beyond the parent-child context. Instead, the prosecutor urges this Court to adopt the reasoning set forth in People v. Martin, unpublished opinion per curiam of the Court of Appeals, issued August 22, 1995 (Docket No. 167348). In that case, two armed men entered a Burger King restaurant while a manager and two subordinate employees were present. Id., slip op. at 1. One of the men held the two subordinate employees in the break room, guarding them at gunpoint, while the other man forced the manager to...