People v. Winquest, Docket No. 57365

Citation115 Mich.App. 215,320 N.W.2d 346
Decision Date11 June 1982
Docket NumberDocket No. 57365
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee WINQUEST, Sr., Defendant-Appellant. 115 Mich.App. 215, 320 N.W.2d 346
CourtCourt of Appeal of Michigan (US)

[115 MICHAPP 217] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the People.

George C. Bush, Saginaw, for defendant-appellant.

Before BEASLEY, P. J., and T. M. BURNS and QUINNELL, * JJ.

PER CURIAM.

Defendant, Robert Lee Winquest, Sr., was charged in a three-count information with one count of carrying a dangerous weapon with unlawful intent, M.C.L. Sec. 750.226; M.S.A. Sec. 28.423, and with two counts of felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. He was convicted by a jury of carrying a dangerous weapon with unlawful intent and was sentenced to five years probation. Several conditions of probation were ordered. The defendant appeals his conviction and sentence as of right.

Defendant's conviction arose out of a fight which took place at a party at the home of a neighbor of the defendant. Witnesses testified that the defendant, while intoxicated, approached a group at the party while swinging a baseball bat. The three charges involve attacks on three different persons at the party.

On appeal, defendant asserts three grounds of error. Defendant first argues that his prosecution for two counts of felonious assault and one count of carrying a dangerous weapon with unlawful [115 MICHAPP 218] intent violates the Double Jeopardy Clause in that the latter charge was a lesser included offense of felonious assault.

The Fifth Amendment guarantee against double jeopardy protects against multiple punishments for the same offense. People v. Davenport, 89 Mich.App. 678, 282 N.W.2d 179 (1979). Defendant argues that the three attacks were part of the same criminal transaction and, thus, were part of the same offense. We disagree. Each charge was for an attack on a different person. In People v. Lovett, 90 Mich.App. 169, 174, 283 N.W.2d 357 (1979), we said:

"Where crimes against persons are involved we believe a separate interest of society has been invaded with each victim and that, therefore, where two persons are assaulted, there are two separate offenses."

We adhere to this reasoning in this case and we find no violation of double jeopardy.

Defendant next argues that the trial court committed error requiring reversal by denying his pretrial motion to strike one count of felonious assault. A finding of probable cause requires that the magistrate be satisfied, after an examination of the whole matter, that the offense charged has been committed and that there is probable cause to believe that the defendant committed it. People v. King, 412 Mich. 145, 312 N.W.2d 629 (1981). In reviewing the decision of a magistrate to bind over an accused person, the trial court may not properly substitute its judgment for that of the magistrate but may reverse a magistrate's decision only if it appears on the record that there has been an abuse of discretion. People v. Talley, 410 Mich. 378, 385, 301 N.W.2d 809 (1981). A review of the testimony at the preliminary examination convinces this Court that the magistrate did not abuse his [115 MICHAPP 219] discretion in finding that there was probable cause to believe that the defendant committed the crime charged in Count III. Therefore, the trial court did not err in denying the motion to quash this count.

Defendant also argues that the trial court erred in denying his motion for a directed verdict made at the close of the People's proofs on the grounds of insufficient evidence. The standard for reviewing the sufficiency of evidence was set out in People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980):

"In summary, the trial judge when ruling on a motion for a directed verdict of acquittal must consider the evidence presented by the prosecution up to the time the motion is made, [People v.] Garcia, [398 Mich. 250, 247 N.W.2d 547] supra, view that evidence in a light most favorable to the prosecution, People v. Vail, 393 Mich. 460, 463, 227 N.W.2d 535 (1975), and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt, Jackson [v. Virginia] supra, [443 U.S. at] p. 319 [99 S.Ct. 2781, 61 L.Ed.2d 560]."

The trial testimony relevant to Count III introduced up to the time the motion for a directed verdict was made is summarized as follows: Kim O'Laughlin saw the defendant and his son return to the party with baseball bats. Randy Smith and Peter Datzko both saw the defendant's son swinging a baseball bat, but they did not testify that they saw the defendant swinging a bat. Oliver Glaspell testified that he was struck in the back of the head by a hard instrument but did not see who struck him. Charles Cunningham testified that the older man struck Glaspell. George Sweeney testified that the defendant struck him with a baseball bat.

[115 MICHAPP 220] Thus, the only testimony linking the defendant to the attack against Glaspell is the testimony of Charles Cunningham that the older man struck Glaspell. Nevertheless, we believe that this testimony would have been sufficient to permit a rational trier of fact to find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, supra.

Defendant's final claim on appeal is that the trial court erred in including in the provisions of his probation restitution for the injuries of one of the persons who was struck during the fight because the defendant was acquitted of the offense against that complainant.

At the sentencing hearing, the trial judge imposed numerous conditions on defendant's five-year probation including the condition that the defendant pay restitution for the injuries suffered by George Sweeney. Defense counsel objected to the imposition of this condition. The defendant had been acquitted of the charge of felonious assault against George...

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  • Ex parte Rathmell
    • United States
    • Texas Court of Criminal Appeals
    • September 17, 1986
    ...S.W.2d 220 (1940); State v. Pettle, 286 So.2d 625 (La.1973); Cousins v. State, 354 A.2d 825, 277 Md. 383 (1976); People v. Winquest, 115 Mich.App. 215, 320 N.W.2d 346 (1982); State v. Fredlund, 200 Minn. 44, 273 N.W. 353, 113 A.L.R. 215 (1937); Burton v. State, 226 Miss. 31, 79 So.2d 242 (1......
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    ...for striking Wells and Peters with the broom. Where two persons are assaulted, there are two separate offenses. People v. Winquest, 115 Mich.App. 215, 218, 320 N.W.2d 346 (1982). Hence, the two felonious assault convictions, based on assaults on two different persons, do not constitute a do......
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    • August 2, 1984
    ...be held criminally liable for conduct to which he never pled guilty or for which he was never tried and convicted. People v. Winquest, 115 Mich.App. 215, 320 N.W.2d 346 (1982). The condition of restitution imposed as part of defendant's sentence is vacated. Defendant next argues that the tr......
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