People v. Smith–Anthony

• Decision Date: 03 May 2012
• Docket Number: Docket No. 300480.
• Citation: 821 N.W.2d 172,296 Mich.App. 413
• Parties: PEOPLE v. SMITH–ANTHONY.
• Court: Court of Appeal of Michigan — District of US

296 Mich.App. 413

821 N.W.2d 172

PEOPLE

v.SMITH–ANTHONY.

Docket No. 300480.

Court of Appeals of Michigan.

Submitted Dec. 13, 2011, at Detroit.

Decided May 3, 2012, at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Matthew A. Fillmore, Assistant Prosecuting Attorney, for the people.

Law Office of John D. Roach, Jr., PLC, Detroit, (by John D. Roach, Jr.), for defendant.

Before: SHAPIRO, P.J., and WHITBECK and GLEICHER, JJ.

GLEICHER, J.

Defendant, Chandra Valencia Smith–Anthony, placed a $58 box of fragrance in a shopping bag and left the Macy's department store in Northland Mall without paying for it. After completing her larceny and leaving the store, defendant engaged in a scuffle with a store security officer. A jury acquitted defendant of unarmed robbery but convicted her of larceny from the person in violation of MCL 750.357. Because the statute punishes “stealing from the person of another” and defendant's conduct does not fall within that definition, we reverse.

I. FACTUAL BACKGROUND

While monitoring a closed-circuit television in Macy's loss-prevention office, Khai Krumbhaar, a loss-prevention detective, observed defendant “darting her eyes around and holding her handbags very, very closely.” Krumbhaar believed that defendant looked suspicious, and paid close attention to the television monitors as defendant traversed the aisles. In the women's fragrance department, Krumbhaar saw defendant select “a large gold White Diamonds box,” priced at $58, from a display. Krumbhaar walked from her office vantage point to an area within “visual range” of defendant and “kept watching her” while pretending to be just another shopper. Under Krumbhaar's surveillance, defendant carried the White Diamonds box to the women's shoe department, sat down, and tried on some shoes. Defendant then rose from her seat and while making her way to the optical department, pushed the box into her shopping bag. After stopping to verify that defendant had not paid for the fragrance, Krumbhaar followed in pursuit. As defendant browsed near the fashion jewelry area, Krumbhaar “stayed back giving her some space.” Krumbhaar then caught sight of defendant “walking very quickly” out of the store. Krumbhaar confronted defendant approximately 30 or 35 feet into the mall surrounding the store, and the two scuffled. Krumbhaar claimed that during the struggle, defendant bit and scratched Krumbhaar's arm.

The prosecution charged defendant with unarmed robbery, MCL 750.530, second-degree retail fraud, second or subsequent offense, MCL 750.356d(4), and possession of marijuana, MCL 333.7403(2)(d). On the day of trial, the prosecution dismissed the marijuana and retail-fraud charges.¹ The jury acquitted defendant of unarmed robbery, but convicted her of the lesser offense of larceny from the person, MCL 750.357. The court subsequently sentenced defendant to 4 to 20 years' imprisonment.

II. ANALYSIS

Defendant argues that the prosecution presented no evidence that she stole any item from the person of another and therefore failed to sufficiently support the convicted offense. When reviewing a defendant'schallenge to the sufficiency of the evidence, we review “the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt.” People v. Robinson, 475 Mich. 1, 5, 715 N.W.2d 44 (2006). We review de novo underlying issues of statutory interpretation. People v. Tennyson, 487 Mich. 730, 735, 790 N.W.2d 354 (2010). We must apply the plain, unambiguous language of a statute as written and may only engage interpretative tools when the statutory language is equally susceptible to more than one meaning. People v. Valentin, 457 Mich. 1, 5–6, 577 N.W.2d 73 (1998).

The statute at issue in this case could not be simpler. It provides: “Any person who shall commit the offense of larceny by stealing from the person of another shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years.” MCL 750.357 (emphasis added). To establish a larceny-from-the-person charge beyond a reasonable doubt, the prosecution must prove “(1) the taking of someone else's property without consent, (2) movement of the property, (3) with the intent to steal or permanently deprive the owner of the property, and (4) the property was taken from the person or from the person's immediate area of control or immediate presence.” People v. Perkins, 262 Mich.App. 267, 271–272, 686 N.W.2d 237 (2004), aff'd 473 Mich. 626, 703 N.W.2d 448 (2005) (emphasis added).

In People v. Adams, 128 Mich.App. 25, 31–32, 339 N.W.2d 687 (1983), this Court explained that separate and distinct policies animate the statutes punishing simple larceny and larceny from the person:

[T]he Legislature decided that larceny from a person presents a social problem separate and apart from simple larceny. This separate social problem must be the invasion of the person or immediate presence of the victim, because that is what distinguishes larceny from a person and simple larceny. Because the Legislature clearly intended the statute defining the crime of larceny from a person to protect the person or immediate presence of the victim from invasion, the Legislature clearly intended to permit a separate conviction for each victim whose person or immediate presence is invaded. [Emphasis added; citation omitted.]

In United States v. Payne, 163 F.3d 371, 375 (C.A.6, 1998), the United States Court of Appeals for the Sixth Circuit construed larceny from the person in violation of MCL 750.357 as “a crime that creates a substantial risk of physical harm to another.” The Sixth Circuit reasoned:

Michigan law interprets “from the person” narrowly to require that the property be taken from the possession of the victim or be taken from within the immediate presence or area of control of the victim. This is clearly the type of situation that could result in violence. Any person falling victim to a crime involving such an invasion of personal space would likely resist or defend in a manner that could lead to immediate violence. [Id.]

Thus, theft from the person constitutes an aggravated offense because of its hybrid nature as a crime against both a person and a person's property rights.

The larceny-from-the-person statute punishes pickpockets, purse- and wallet-snatchers, and others who invade the person or “immediate presence” of the victim to accomplish a theft. See People v. Gould, 384 Mich. 71, 80, 179 N.W.2d 617 (1970); Perkins, 262 Mich.App. at 272, 686 N.W.2d 237. Indirect contact with the victim may also constitute larceny from the person. For example, a thief who snatches a suitcase that the victim has momentarily set down while hailing a cab commits larceny from the person, as does a customer who snatches a diamond ring from a tray presented by a jeweler for inspection. In both instances, the theft instills fear or places a resistant victim in danger. The statute enhances punishment in these situations precisely because violating a person's privacy or personal space results in a risk of violent confrontation. Perkins, 262 Mich.App. at 272, 686 N.W.2d 237.

The prosecution presented no evidence that defendant committed larceny from Krumbhaar's person when she stole the fragrance box from Macy's. No testimony supported that Krumbhaar ever possessed the fragrance box or that the merchandise was in Krumbhaar's area of immediate presence or control at any point during the larceny. When defendant first removed the White Diamonds box from the display, Krumbhaar sat in an office around the corner from the women's fragrance department, watching the event on closed-circuit television. As defendant made her way through Macy's with the box in hand, Krumbhaar remained “in visual range.” But Krumbhaar never testified that she was even within an arm's length of defendant or that defendant knew Krumbhaar was nearby. Nor does the record substantiate that Krumbhaar was within defendant's “immediate presence” when defendant pushed the perfume box into her brown grocery bag, completing the act of larceny. See People v. Randolph, 466 Mich. 532, 549, 648 N.W.2d 164 (2002) (“[W]hen defendant placed the merchandise under his clothing, he committed a taking without force, and his conduct constituted a completed larceny.”).² Although Krumbhaar could see defendant commit the larceny, the prosecution failed to establish that defendant was ever close enough to Krumbhaar to invade Krumbhaar's personal space.³

We respectfully disagree with the dissent's proposition that larceny from the person may be accomplished if the victim and the perpetrator are merely in sight or hearing range of each other. Post at 178. Proof of “stealing from the person of another” requires more than vague proximity between victim and perpetrator. See People v. Gadson, 348 Mich. 307, 308–310, 83 N.W.2d 227 (1957) (overturning a larceny-from-the-person conviction when the prosecution failed to establish beyond a reasonable doubt that the defendant took the money from the victim's person rather than simply “surreptitious[ly] taking” the money after it fell from the victim's pocket). As interpreted by our Supreme Court in Gould, the statute protects property on a victim's person or within a victim's “immediate” custody and control, and the prosecution must present proof beyond a reasonable doubt of that proximity element. Gould, 384 Mich. at 80, 179 N.W.2d 617.

Further, we find no support in any jurisdiction's caselaw for the dissent's broad definition of “immediate presence.” To the extent that the dissent relies on Gould, we believe that reliance is misplaced. The defendant and the codefendants in Gould entered a restaurant, announced a holdup, and forced a waitress and a customer to lie on the floor of another room. Goul...