People v. Stapf, Docket No. 86153

• Decision Date: 20 February 1987
• Docket Number: Docket No. 86153
• Citation: 400 N.W.2d 656,155 Mich.App. 491
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myron Randall STAPF, Defendant-Appellant. 155 Mich.App. 491, 400 N.W.2d 656
• Court: Court of Appeal of Michigan — District of US

Page 656

400 N.W.2d 656

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myron Randall STAPF, Defendant-Appellant.

Docket No. 86153.

155 Mich.App. 491, 400 N.W.2d 656

Court of Appeals of Michigan.

Submitted Aug. 4, 1986.

Decided Oct. 20, 1986.

Released for Publication Feb. 20, 1987.

[155 MICHAPP 493] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Kraag C. Lieberman, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the People.

State Appellate Defender by Stuart B. Lev, for defendant-appellant on appeal.

Before HOOD, P.J., and HOLBROOK and PETERSON, ^* JJ.

PER CURIAM.

Defendant was charged with kidnapping and appeals as of right from a jury trial conviction for attempted kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581 and M.C.L. Sec. 750.92; M.S.A. Sec. 28.287. Defendant was sentenced to from three to five years in prison. This appeal of his conviction and sentence raises six issues.

Defendant first challenges the sufficiency of the evidence adduced at trial to sustain his conviction. On sufficiency of evidence claims, we review the evidence in a light most favorable to the prosecutor to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Vicuna, 141 Mich.App. 486, 495, 367 N.W.2d 887 (1985); People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 [155 MICHAPP 494] (1980). To prove the crime of attempt the evidence must show (1) the specific intent to commit a crime and (2) an overt act going beyond mere preparation toward committing the crime. People v. Coleman, 350 Mich. 268, 86 N.W.2d 281 (1957); People v. Frost, 148 Mich.App. 773, 776, 384 N.W.2d 790 (1985). The parties agree that the elements of kidnapping under the particular facts at hand are: (1) forcible confinement or imprisonment, (2) against the victim's will, maliciously or without authority, and (3) with asportation. People v. Wesley, 421 Mich. 375, 388, 365 N.W.2d 692 (1984).

The evidence showed that fourteen-year-old Stephanie Vandenbout and her eleven-year-old sister Sarah were walking along M-75 returning from a swim when they noticed defendant following them. Stephanie testified that defendant began walking faster and when he caught up to her he grabbed her arm and dragged her into the woods. Defendant was holding a gun in front of her, but did not point it at her, and he told her to be quiet. Stephanie began screaming and attempting to get away by kicking and hitting the defendant. About seventy-five feet into the woods defendant abruptly let Stephanie go, and she ran back to the highway, where her sister and a passerby met her. She estimated the incident took less than one minute.

Defendant argues that the evidence was not sufficient to prove that he specifically intended to commit an attempted kidnapping. He submits that his letting the victim go after such a short period of time shows the lack of specific intent. He also points to the lack of evidence of planning and motive and suggests that only speculation supports a finding of specific intent.

Defendant made two statements shortly after his arrest which were read to the jury. In one statement he admitted he intended to take the girl [155 MICHAPP 495] farther into the woods. Defendant also testified that he grabbed Stephanie when she started screaming and that he did not intend to confine her, he was just pushing her.

We disagree that a jury could not have found the specific intent to kidnap from these facts. Defendant's use of physical force to take the girl into the woods and his use of the gun (which proved to be a toy) to scare her are sufficient evidence of his intent. From his actions the jury could have reasonably concluded that he intended to forcibly confine or imprison his victim against her will.

Defendant also contends that the evidence shows that he realized that the incident had gotten carried away and blown out of proportion and that even if he once had criminal intent to kidnap he later abandoned his attempt. This Court recognized the defense of voluntary abandonment to a charge of attempted kidnapping in People v. Kimball, 109 Mich.App. 273, 311 N.W.2d 343 (1981); modified 412 Mich. 890, 313 N.W.2d 285 (1981). Kimball held that the burden is on the defendant to prove by a preponderance of the evidence that he has voluntarily and completely abandoned his criminal purpose. The Court pointed out what did not constitute "voluntary" abandonment:

"Abandonment is not 'voluntary' when the defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, or circumstances which increase the probability of detention or apprehension. Nor is the abandonment 'voluntary' when the defendant fails to consummate the attempted offense after deciding to postpone the criminal conduct until another time or to substitute another victim or another but similar objective." 109 Mich App 286-287, 311 N.W.2d 343.

[155 MICHAPP 496] Under the present circumstances, defendant's abandonment was not voluntary. In defendant's confession, he stated that he saw a flash of something, apparently believed someone was coming, and let the victim go. Defendant's actions in going to the lake and hiding under a dock reinforced the idea that he abandoned his attempt because he thought someone was coming and he feared getting caught. According to Kimball, circumstances which increase the probability of apprehension negate the voluntariness of abandonment.

Defendant next asserts that the trial court erred in admitting a real gun owned by his stepfather which the police seized from a locked cabinet in his stepfather's home where defendant had been staying. Defendant admitted showing a toy gun to Stephanie. He told the police where he had hidden the toy gun, which they recovered, and Stephanie testified that the toy gun looked like the gun defendant showed her. However, the prosecutor claimed the real gun was relevant to prove the toy gun looked like a real gun to Stephanie and the trial court admitted it for this limited purpose. We conclude that admission of the real gun was error.

Evidence which is not relevant is not admissible. MRE 402. Although the prosecutor claimed the real gun was relevant to prove the toy gun looked like a real gun, it was unnecessary to use defendant's stepfather's gun and to argue during closing argument that defendant could have used either gun. The presence of a weapon is not an element of kidnapping. Nonetheless, although the real gun was irrelevant, and its admission error, we find the error harmless. Even if the jury believed from this irrelevant evidence that defendant had a real gun at the time of the offense, we are unconvinced that any juror might have voted to acquit defendant[155 MICHAPP 497] absent this evidence. People v. Hudgins, 125 Mich.App. 140, 145, 336 N.W.2d 241 (1983).

Next, we address whether the trial court's jury instructions were deficient because the instructions were inadequate to inform the jury that attempted kidnapping is a specific intent crime and because the judge failed to instruct sua sponte on the defense of intoxication and voluntary abandonment. As to the intoxication instruction, defense counsel never argued at trial that defendant was impaired by the alcohol and marijuana defendant admitted he consumed prior to the incident. Nor did he ever argue that he intended to kidnap Stephanie but abandoned that intent. When the defendant presents no evidence relating to a defense, the trial court is not expected to sua sponte instruct the jury regarding those defenses. People v. Freeman, 149 Mich.App. 119, 126, 385 N.W.2d 617 (1985).

Likewise, we disagree with defendant's argument that the trial court failed to instruct that attempted kidnapping is a specific intent crime. While kidnapping is not a specific intent crime, attempted kidnapping is a specific intent crime. People v. Wesley, supra; People v. Joeseype Johnson, 407 Mich. 196, 239, 284 N.W.2d 718 (1979). The trial court did give the jury the appropriate elements of attempt and gave a specific intent instruction. However, in doing so the court erroneously referred to specific intent in relation to the kidnapping charge itself. Nonetheless, we find that the instruction as given, when read as a whole, contained all the information required by the jury to return a proper verdict. People v. Freeman, supra.

Because they are closely related, we address in tandem two additional assignments of error....