People v. Starghill, Docket No. 45921

• Decision Date: 02 September 1980
• Docket Number: Docket No. 45921
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael STARGHILL, Defendant-Appellant. 99 Mich.App. 790, 298 N.W.2d 641
• Court: Court of Appeal of Michigan — District of US

Page 641

298 N.W.2d 641

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael STARGHILL, Defendant-Appellant.

Docket No. 45921.

99 Mich.App. 790, 298 N.W.2d 641

Court of Appeals of Michigan.

Sept. 2, 1980.

Released for Publication Dec. 9, 1980.

[99 MICHAPP 791] Brenda J. Maxwell, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief Asst. Pros. Atty., Michael D. Lehto, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and KELLY and CORSIGLIA, ^* JJ.

PER CURIAM.

On April 2, 1979, defendant was convicted of felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, following a bench trial. The charge arose out of a confrontation between police officers and defendant near Olympia Stadium in Detroit. Defendant, leaving a parking space with the police in pursuit, drove forward into a police cruiser and then backed up directly towards a police officer who fired his weapon in self-defense. Defendant presented testimony that his transmission was worn out, causing unexpected "lunging".

The trial court in its decision from the bench on April 2, 1979, found that defendant did not intend [99 MICHAPP 792] to run the officer down with his automobile but, nevertheless, was guilty of felonious assault because he participated in a high risk situation which caused the officer physical jeopardy, placing him in fear. In reaching this decision the court ruled that felonious assault is not a specific intent crime.

On appeal, defendant argues the evidence does not support the court's decision and that felonious assault is a specific intent crime.

Before People v. Joeseype Johnson, 407 Mich. 196, 284 N.W.2d 718 (1979), the weight of authority in Michigan was that felonious assault was not a specific intent crime. People v. Burk, 238 Mich. 485, 489, 213 N.W. 717 (1927); People v. Jordan, 51 Mich.App. 710, 718, 216 N.W.2d 71 (1974); People v. Rohr, 45 Mich.App. 535, 536, 206 N.W.2d 788 (1973); People v. Richard Johnson, 42 Mich.App. 544, 202 N.W.2d 340 (1972). The cases relied upon by defendant, People v. Dozier, 39 Mich.App. 88, 197 N.W.2d 314 (1972) and People v. Crane, 27 Mich.App. 201, 183 N.W.2d 307 (1970), were anomalous decisions rejected in People v. Rohr and People v. Richard Johnson, supra.

Joeseype Johnson, supra, held that there must be either an intent to injure or an intent to put the victim in reasonable fear or apprehension of immediate battery to sustain a conviction of felonious assault. 407 Mich. 196, 210, 284 N.W.2d 718.

However, Joeseype Johnson was decided on October 29, 1979, after defendant's conviction. We decline to apply it retroactively in these circumstances. See People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971). Therefore, we review the trial court's decision under prior law.

Defendant also argues that the evidence does not support the court's findings. We will not reverse[99 MICHAPP 793] unless, on the entire record, we are left with a definite and firm conviction that a mistake has been committed. GCR 1963, 517.1, People v. White, 53 Mich.App. 51, 55, 218 N.W.2d 403 (1974). Tuttle v. Dep't of State Highways, 397 Mich. 44, 243 N.W.2d 244 (1976).

Under prior law, felonious assault was considered a simple assault with the use of a dangerous weapon converting it into a felony. People v. Richard Johnson, supra. A simple criminal assault is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate...