People v. Wise

Decision Date12 July 1984
Docket NumberDocket No. 69725
Citation351 N.W.2d 255,134 Mich.App. 82
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Virgil Lee WISE, Defendant-Appellant. 134 Mich.App. 82, 351 N.W.2d 255
CourtCourt of Appeal of Michigan — District of US

[134 MICHAPP 86] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief, Appellate Asst. Pros. Atty., and Rosemary A. Gordon, Asst. Pros. Atty., for the People.

Rose Mary C. Robinson, Detroit, for defendant-appellant on appeal.

[134 MICHAPP 87] Before WAHLS, P.J., and MAHER and SIMON, * JJ.

MAHER, Judge.

On September 22, 1982, defendant was convicted after a jury trial of breaking and entering with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and two counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. He was acquitted on four counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). 1 He was subsequently sentenced to from 10 to 15 years imprisonment for breaking and entering concurrent with two concurrent terms of from 25 to 50 years for the armed robbery conviction. He appeals as of right.

Defendant first argues that the evidence against him for all three convictions was insufficient. Specifically, he claims that the corpus delicti was not adequately established. One of the two victims testified that while she and her husband were in bed in their home at about 2 a.m. on September 2, 1981, six people woke her up and stole some of her property at gunpoint. Because identity is not an element of the corpus delicti, People v. Harris, 64 Mich.App. 503, 236 N.W.2d 118 (1975); People v. Randall, 42 Mich.App. 187, 201 N.W.2d 292 (1972), this testimony clearly sufficiently established the corpus delicti for the two armed robbery counts.

Whether or not the corpus delicti was established for the breaking and entering count, however, is a more difficult question. The prosecution must prove the corpus delicti before being allowed to use the defendant's confession. People v. Zwierkowski, 368 Mich. 56, 117 N.W.2d 179 (1962). However, the elements need not be proven beyond a [134 MICHAPP 88] reasonable doubt. People v. Trine, 164 Mich. 1, 129 N.W. 3 (1910). Courts may draw reasonable inferences and weigh the probabilities. Peterson v. Oceana Circuit Judge, 243 Mich. 215, 219 N.W. 934 (1928). The evidence must show that the acts constituting the essential elements have been committed and that someone's criminality is responsible. People v. Conklin, 118 Mich.App. 90, 324 N.W.2d 537 (1982). In summary, "the evidence adduced need only tend to show consistency with unlawfulness in causing the injury in question". 1 Wharton, Criminal Evidence (13th ed), Sec. 17, p. 28.

In addition to the testimony related above, a police officer testified that within an hour or two of the robberies, he entered the house and noticed that the building's side door was unlocked and left open. In People v. Tiszae, 23 Mich.App. 114, 178 N.W.2d 138 (1970), this Court found that the corpus delicti had been sufficiently established where the defendants were arrested in a store at 3:25 a.m. They had their guns drawn and the store's merchandise was scattered. One of the store's windows had been broken. Similar facts are found in People v. Lambo, 8 Mich.App. 320, 154 N.W.2d 583 (1967).

The only element that could be contested here is the breaking. In Michigan, any amount of force used to open a door or window to enter the building, no matter how slight, is sufficient to constitute the breaking. People v. White, 153 Mich. 617, 117 N.W. 161 (1908); People v. Clark, 88 Mich.App. 88, 276 N.W.2d 527 (1979). Although the victims might possibly have left the door to their house open, we find this extremely doubtful. It is highly unlikely that a person living in Detroit in the Six Mile-Corner area in 1981 would not at least have closed the doors before retiring to bed. Hence, we can reasonably infer under this case's facts that the [134 MICHAPP 89] door was closed. Therefore, the corpus delicti was adequately established for the breaking and entering count.

Relying on People v. West, 122 Mich.App. 517, 332 N.W.2d 517 (1983), lv. den. 418 Mich. 909, 342 N.W.2d 522 (1984), 2 defendant next argues that his convictions for both breaking and entering with intent to commit larceny and armed robbery constitute double jeopardy. 3 Under the facts of its own case, West found double jeopardy where the defendant pled guilty to both breaking and entering with intent to commit larceny and larceny in a building.

"When larceny in a store is charged along with breaking and entering a store with the intent to commit a larceny, it is the completed larceny that is being used as the 'some circumstance reasonably leading to the conclusion that a larceny was intended'. The only factual evidence that defendant intended to commit a larceny when he broke and entered is his completed larceny. As such, the two convictions are based on proof of a single act. Under Michigan law, such proof cannot sustain double convictions." 122 Mich.App. 521-522, 332 N.W.2d 517. 4

However, this analysis was recently rejected in People v. Wakeford, 418 Mich. 95, 110-111, 341 N.W.2d 68 (1983):

[134 MICHAPP 90] "[D]efendant's claim of factual double jeopardy depends not upon whether most or all of the same evidence was utilized to convict of both counts [charged], but whether the legislative intent or statutory purpose was that two convictions should result. To the extent certain language in [People v. Martin, 398 Mich 303; 247 N.W.2d 303 (1976) ], [People v. Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977) ], and [People v. Jankowski, 408 Mich 79; 289 N.W.2d 674 (1980) ] suggests that the critical test is whether the defendant committed 'one single wrongful act, we specifically disavow that test. It is up to the Legislature, not this Court, to determine what constitutes a single offense. The so-called 'factual double jeopardy' doctrine simply asks whether the Legislature authorized multiple punishment under the circumstances." 5

Therefore, we must determine whether or not the Legislature intended to allow multiple punishment for both the breaking and entering with intent to commit larceny and the subsequent larceny.

To a certain extent, only one criminal act (or transaction) is committed when a person breaks into a building and then steals something. His main intent is the larceny; the breaking and entering is usually merely the necessary prerequisite before he can accomplish the larceny. Accordingly, the breaking and entering can be viewed as a particular form of an attempted larceny in a building. See People v. Cavanaugh, 127 Mich.App. 632, 637-638, 339 N.W.2d 509 (1983).

One of the main questions asked under the factual double jeopardy analysis Michigan uses is whether or not the one crime is a lesser included [134 MICHAPP 91] offense of the other. Double jeopardy can be found even if the one offense is merely a cognate lesser included offense of the other and not only a necessarily lesser included offense. People v. Carter, 415 Mich. 558, 584, 330 N.W.2d 314 (1982); People v. Wilder, 411 Mich. 328, 344, 308 N.W.2d 112 (1981). Larceny in a building is a cognate lesser included offense of breaking and entering with intent to commit larceny. People v. Brager, 406 Mich. 1004, 280 N.W.2d 826 (1979); People v. Kamin, 405 Mich. 482, 496, 275 N.W.2d 777 (1979).

But merely because under the facts of a particular case one offense is a cognate lesser included offense of another does not mean that factual double jeopardy will necessarily therefore be found. A cognate lesser included offense is a "lesser offense * * * of the same class or category, or closely related to the originally charged offense, so as to provide fair notice to the defendant that he will be required to defend against it * * * ". People v. Ora Jones, 395 Mich. 379, 388, 236 N.W.2d 461 (1975). To a large extent, lesser included offense doctrine rests on the jury's mercy function. People v. Chamblis, 395 Mich. 408, 420-423, 236 N.W.2d 473 (1975). Therefore, provided that the facts would sustain a conviction and that the defendant had fair notice, if properly instructed, the jury could convict the defendant of a cognate lesser included offense even if that offense formed a separate criminal act. Consequently, the issue before us is still the Legislature's intent. 6

[134 MICHAPP 92] Because of the unique nature of breaking and entering, we find the legislative intent to permit double punishment. Some commentators have criticized breaking and entering as an unnecessary offense:

"The modern offense cannot be justified from its history. It cannot be rationalized as giving a recognized protection to citizens who have secured themselves in their homes, as was its ancestor, for the requirements of a breaking and entering of a dwelling house have been eroded. It cannot be justified any longer as protecting helpless citizens from the brigands who roam in the night, as the requirement that the acts occur in the nighttime is also vanishing. Nor is protection from serious crime a justification for the offense, for the intent requirement itself is beginning to be eroded.

"Burglary is in fact a rather unique type of attempt law, as all the required elements merely comprise a step taken toward the commission of some other offense. While such an approach might have filled a void in the law of attempts during an earlier period, the offense is no longer required to punish or deter such preliminary conduct. The law of attempts is now adequate to reach such conduct.

* * *

"It is impossible to justify punishing a man so much more severely for attempting to commit a crime when the attempted goal is within some structure than we would for his completing the offense a few feet away. The best way to deal with the offense of...

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