People v. Staples, Docket No. 23977

• Decision Date: 24 March 1976
• Docket Number: Docket No. 23977
• Citation: 242 N.W.2d 74,68 Mich.App. 220
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry STAPLES, Defendant-Appellant. 68 Mich.App. 220, 242 N.W.2d 74
• Court: Court of Appeal of Michigan — District of US

Page 74

242 N.W.2d 74

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry STAPLES, Defendant-Appellant.

Docket No. 23977.

68 Mich.App. 220, 242 N.W.2d 74

Court of Appeals of Michigan.

March 24, 1976.

Released for Publication June 4, 1976.

[68 MICHAPP 222] Waterman and Campbell, P.C. by Joseph DeVal Welton, Detroit, for defendant-appellant.

[68 MICHAPP 221] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Raymond P. Walsh, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and BASHARA and CAVANAGH, JJ.

BASHARA, Judge.

Defendant appeals from a bench trial and conviction of receiving and concealing stolen property over the value of $100, contrary to M.C.L.A. § 750.535; M.S.A. § 28.803.

At trial Detroit police officer Henry testified that he stopped a 1972 Thunderbird automobile at 4:00 a.m. for speeding. When defendant could not produce a registration, the officer noticed that although the car motor was running there were no keys in the ignition. A passenger, one Tony Washington, was ordered to exit from the automobile and further investigation revealed that the glove box had been forced open. Defendant could not produce the ignition key upon request, although he stated that he had the key.

Testimony was adduced from the owner of the automobile that it had been stolen shortly before defendant was apprehended. It was further shown the ignition key was in the possession of the owner.

Defendant testified that Tony Washington picked him up at his house at 3:00 a.m. The defendant claimed that he did not initially notice that the ignition key was missing because the engine was running and Washington was driving. Within one block Washington requested the defendant to drive. Places were exchanged while the engine remained on. The defendant stated that he still had not noticed the lack of an ignition key. Defendant explained that he only realized that the car was stolen just prior to being stopped by the police.

[68 MICHAPP 223] The first issue raised on appeal is that there was insufficient evidence to sustain the trial court's finding of defendant's guilt. Defendant particularly claims lack of evidence showing guilty knowledge. However, guilty knowledge may be inferred from facts and circumstances brought out at trial. People v. Blackwell, 61 Mich.App. 236, 232 N.W.2d 368 (1975). Defendant's possession of recently stolen goods, coupled with the damaged ignition and his false statement that he had the key are sufficient to find guilty knowledge. People v. Tantenella, 212 Mich. 614, 180 N.W. 474 (1920), People v. White, 22 Mich.App. 65, 176 N.W.2d 723 (1970).

Defendant also contends that reversible error resulted from the trial court's failure to require production of indorsed witness Tony Washington. We need not dwell on this issue since People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973), precludes appellate review unless a motion for new trial raising the question is made in the trial court. It is true that a delayed motion for new trial was made and denied in the trial court. However, the sole issue raised there was the sufficiency of the evidence. We find this contention to be without merit.

Affirmed.

CAVANAGH, Judge (concurring).

I agree with Judge Bashara that the conviction should be affirmed and that a retrial is not necessary. But I do not agree that the issue of the prosecutor's failure to produce an indorsed witness was not preserved for appeal. When defendant objects at trial and a hearing is had on the issue of due diligence or cumulativeness, the requirements of Robinson are met. People v. Jones, 65 Mich.App. 619, 237 N.W.2d 584 (1975).

[68 MICHAPP 224] However, remand is not necessary. The record supports the conclusion that the trial court ruled in defendant's favor on the due diligence issue and drew the inference that the witness's testimony would have been unfavorable to the prosecutor's case. See People v. Barker, 18 Mich.App. 544, 171 N.W.2d 574 (1969).

BRONSON, Presiding Judge (dissenting).

I cannot agree with the majority's conclusion that the issue of the prosecutor's failure to produce the indorsed witness, Tony Washington, was not preserved for appeal. When defendant objects at trial and evidence is taken, the Robinson requirements are met. People v. Jones, 65 Mich.App. 619, 237 N.W.2d...