People v. Yarbrough
| Decision Date | 17 June 1981 |
| Docket Number | Docket No. 48975 |
| Citation | 309 N.W.2d 602,107 Mich.App. 332 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Perry Mason YARBROUGH, Defendant-Appellant. 107 Mich.App. 332, 309 N.W.2d 602 |
| Court | Court of Appeal of Michigan — District of US |
[107 MICHAPP 333] Carol S. Irons, Grand Rapids, for plaintiff-appellee.
George S. Buth, Grand Rapids, for defendant-appellant.
Before MacKENZIE, P. J., and V. J. BRENNAN and CAVANAGH, JJ.
On August 22, 1979, defendant was convicted by a jury of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced to the mandatory two-year term on the felony-firearm conviction to be served prior to concurrent sentences of from eight to 20 years on the armed robbery conviction and from two to four years on the felonious assault conviction. He appeals as of right.
The first issue is whether, on the facts of this case, defendant's convictions of both armed robbery and felonious assault are in violation of the Double Jeopardy Clause. Complainant testified that at around dusk on November 29, 1978, defendant approached her as she was getting into her car in a parking lot in Grand Rapids. According to complainant, defendant stopped two to three feet from her, said, "This is a stick up", and reached [107 MICHAPP 334] his open right hand to his nose. Thinking he was kidding, complainant said that she stared at defendant momentarily. Complainant stated that defendant then said, "Give me your purse". When she still hesitated in disbelief and because her hands were full of books, complainant stated that defendant suddenly pulled his left hand from his pocket, said, "I've got a gun", and pointed a small metal object at her. Complainant said that she thought that it was a very small gun. Then complainant testified:
The prosecution contends that defendant committed two distinct assaults upon complainant, first by pointing a gun at her and secondly by using the gun to beat her about the head while stealing her purse. Under this theory, the first assault constituted the basis for defendant's felonious assault conviction, and the second assault supplied the assault element of his armed robbery conviction. The prosecution argues that, as the assaults did not occur simultaneously, defendant's double jeopardy argument must fail under People v. Richard Johnson, 94 Mich.App. 388, 288 N.W.2d 436 (1979).
In Johnson, the Court held that, on the facts of that case, defendant's right against multiple prosecution and punishment for one offense was not [107 MICHAPP 335] violated by his convictions of armed robbery and felonious assault. Citing People v. Jones, 75 Mich.App. 261, 270-271, 254 N.W.2d 863 (1977), the Court recognized the following rule:
"Even if offenses share common elements or one constitutes a lesser offense of the other, there is no violation based on double prosecution if one crime is complete before the other takes place." Johnson, supra, 94 Mich.App. 391, 288 N.W.2d 436.
In Johnson, defendant first committed an armed robbery with a butcher knife. A few minutes later, defendant committed a felonious assault by striking the same complainant on the shoulder.
The crucial distinction herein is that from the time defendant pointed the gun at complainant saying "This is a stick up", through his actions in beating her and shoving her against the wall, he was attempting to take her purse from her. Thus, neither of the two alleged assaults was complete before the robbery began. Nor was the robbery complete prior to the pointing of the gun or the beating. We conclude that complainant was the victim of a continuing assault during an armed robbery.
The elements of armed robbery under M.C.L. § 750.529; M.S.A. § 28.797 include an assault while being armed with a dangerous weapon. Thus, in an armed robbery, a felonious assault utilized to accomplish the larceny factually is included within the greater charge. See People v. Jankowski, 408 Mich. 79, 289 N.W.2d 674 (1980). People v. Hale (On Remand), 103 Mich.App. 273, 303 N.W.2d 17 (1981). The notion that the Legislature did not intend to punish such an assault as a separate offense where injury is inflicted but to provide for a greater penalty for armed robbery is supported by the [107 MICHAPP 336] following language from the armed robbery statute:
"If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years' imprisonment in the state prison."
This Court has held that assault is an included offense of armed robbery, People v. Johnson, 90 Mich.App. 415, 421, 282 N.W.2d 340 (1979); People v. Thomas Jones, 48 Mich.App. 470, 474-475, 210 N.W.2d 497 (1973); People v. Henderson, 22 Mich.App. 128, 177 N.W.2d 254 (1970); People v. Norman, 14 Mich.App. 673, 166 N.W.2d 9 (1968). In summary, an assault should be punished as an offense separate from armed robbery only where it can clearly be established that the offenses occurred at separate times. On the facts herein, defendant's right against double jeopardy was violated by his convictions of both crimes. Therefore, his felonious assault conviction must be vacated.
Next, defendant contends that the following instruction on the elements of felony-firearm was deficient:
"If you find that a handgun was used in the commission of a felony beyond a reasonable doubt, you may find defendant guilty of that charge."
Both the prosecutor and defense counsel agreed on the record that the instruction was adequate to inform the jury of the elements of the offense under M.C.L. § 750.227b; M.S.A. § 28.424(2) which provides, in pertinent part, as follows:
(Footnote omitted).
At the time of trial, CJI 11:9:01 had not yet been adopted. That instruction reads as follows:
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People v. Davis
...of a weapon with unlawful intent could rest upon proof of a "separate" act of assault with a pistol. Cf. [122 MICHAPP 608] People v. Yarbrough, 107 Mich.App. 332, 309 N.W.2d 602 (1981). In this case, however, no such distinction was made in the information, the jury instructions or the pros......
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...The Government also contends that felonious assault is a lesser-included offense of armed robbery, relying on People v. Yarbrough, 309 N.W.2d 602, 604 (Mich. Ct. App. 1981). The court in Harris stated that any "person who assaults another person with a gun, revolver, pistol, knife, iron bar......
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