People v. Bridges

296 N.W.2d 275, 98 Mich. App. 436, 1980 Mich. App. LEXIS 2763

• Court: Michigan Court of Appeals
• Decided: July 1, 1980
• Docket: Docket 43371
• Status: Published

Opinions

Bronson, J.

Defendant was convicted on his pleas of guilty to three counts of armed robbery, MCL 750.529; MSA 28.797, and to one count under the felony-firearm statute, MCL 750.227b; MSA 28.424(2). He was sentenced to concurrent prison terms of from four to ten years on the armed robbery convictions, and to the mandatory two-year consecutive term on the felony-firearm conviction. He now appeals as of right.

As Judge Riley’s dissent notes, defendant’s sole argument on appeal is that an insufficient factual basis existed for acceptance of his plea to the felony-firearm charge because there was no evidence that defendant ever personally possessed a firearm. See Guilty Plea Cases, 395 Mich 96, 128-132; 235 NW2d 132 (1975), GCR 1963, 785.7(3)(a). The facts as established at the guilty plea proceeding showed that defendant was shooting pool in a bar when two men entered with pistols and announced a stick-up. Defendant, armed with his pool cue, aided in the robbery by relieving one woman and two men of their money. He then left with the two armed men and the three divided the proceeds among them. There was no evidence to establish that defendant knew the other two robbers or that there was any plan or prior agreement amongst the three concerning the hold-up.

The felony-firearm statute, MCL 750.227b; MSA 28.424(2), states in part:

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years.”

The question of whether a person who does not actually possess a firearm may be convicted under the statute as an aider and abettor has engendered a split in the decisions of this Court. Compare People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Walter Johnson, 85 Mich App 654, 658-659; 272 NW2d 605 (1978), lv gtd 407 Mich 882 (1979), with People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979), lv gtd 407 Mich 882 (1979). I would follow Powell and Walter Johnson, and hold that personal possession is required.¹

I believe this result is mandated by the extraordinary nature of the felony-firearm statute. In response to the rising incidence of the use of firearms during the commission of crimes, the Legislature enacted a statute with a very broad scope and additionally provided for a mandatory two-year sentence, removed the possibility of the sentence being served concurrently with the sentence on the underlying felony, and disallowed suspension, probation, or parole.² The unique characteristics of the statute were recognized by the Supreme Court in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich 374; 280 NW2d 793 (1979). The statute clearly speaks in terms of personal possession. It is possession during the course of a felony, or attempted felony, that is required for conviction. While the aiding and abetting statute³ has been applied to a possessory crime,⁴ it has not been applied to a possessory crime of such an extraordinary nature.

While I would premise the vacation of defendant’s felony-firearm conviction solely on these grounds, I would also suggest that even if defendant could be convicted as an aider and abettor, an insufficient factual basis was established to convict defendant as an aider and abettor of a felony-firearm offense. The statute provides:

"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.” MCL 767.39; MSA 28.979.

To be convicted as an aider and abettor, one must encourage, counsel, or assist another in the commission of a crime with the intention of rendering such help and with the knowledge that the criminal act is contemplated. People v Gary Spry, 74 Mich App 584, 594; 254 NW2d 782 (1977), lv den 401 Mich 825 (1977). The question of what is required for aiding and abetting a possessory crime is more problematic, as it is conceptually more difficult to assist another in possessing an item than it is to assist in doing an act. Nevertheless, this Court has held that, to be convicted as an aider and abettor of a possessory crime, "[t]he act or encouragement must be done knowingly with the intent to aid the possessor [to] obtain or retain possession”. People v Doemer, 35 Mich App 149, 152; 192 NW2d 330 (1971).⁵ Accordingly, the conviction in Doemer was upheld, as there was evidence from which the jury could infer that the defendant drove a codefendant to Ypsilanti for the purpose of purchasing marijuana. In People v Tavolacci, supra, a sufficient factual basis was said to exist because it was established that defendant had participated in a plot to kill an undercover narcotics agent. In each of these cases, there was sufficient testimony to establish that the defendant aided and abetted others in obtaining possession. In the instant case, however, the evidence falls far short of even allowing an inculpatory inference to be drawn. People v Haack, 396 Mich 367; 240 NW2d 704 (1976), Guilty Plea Cases, supra, 130. There is no evidence that defendant had any prior knowledge that an armed robbery would occur so that it could be inferred that he encouraged, counseled, or assisted in obtaining possession of a firearm. Similarly, there is nothing in the record that tends to establish that defendant aided the others in the retention of their weapons during the course of the felony. Accordingly, even if personal possession was not required for a conviction under the felony-firearm statute, defendant’s conviction would have to be vacated for failure to establish a sufficient factual basis to support his conviction as an aider and abettor.

Because defendant’s testimony clearly established that he did not possess a firearm during the robbery, his conviction under the felony-firearm statute must be vacated for failure to establish the requisite factual basis. Alternatively, I would reverse his felony-firearm conviction for failure to establish that he aided and abetted others in the possession of a firearm in the course of a felony. His armed robbery convictions should be affirmed.

Affirmed in part and reversed in part.

1 Judge Kelly’s opinion also expresses approval of the rationale in Powell and Walter Johnson.

2 See generally, Schwartz, Multiple Punishment for the "Same Offense": Michigan Grapples with the Deñnitional Problem, 25 Wayne L Rev 825, 839-841 (1979).

3 MCL 767.39; MSA 28.979.

4 It was applied to the offense of possession of marijuana in People v Doemer, 35 Mich App 149; 192 NW2d 330 (1971).

5 See 47 ALR3d 1236.