People v. Frank Johnson

381 N.W.2d 740, 146 Mich. App. 429
CourtMichigan Court of Appeals
DecidedOctober 21, 1985
DocketDocket 73073
StatusPublished
Cited by41 cases

This text of 381 N.W.2d 740 (People v. Frank Johnson) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Frank Johnson, 381 N.W.2d 740, 146 Mich. App. 429 (Mich. Ct. App. 1985).

Opinions

Allen, J.

Following a three-day trial by jury, defendant was convicted April 7, 1983, of two counts of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during commis[432]*432sion of a felony, MCL 750.227b; MSA 28.424(2). Sentenced on May 31, 1983, to two concurrent terms of from 10 to 20 years’ imprisonment, plus two years for the felony-firearm conviction, defendant appeals as of right raising three issues. The second issue presents a question of first impression.

Defendant’s convictions stem from a January 6, 1983, armed robbery of the Felpausch Food Store in Battle Creek. On that evening several armed, masked men entered the store shortly before closing. Four persons inside the store observed the robbery. Also, because the store had been staked out by the police for observance, Clifford DeFeyter, a detective-sergeant with the Michigan State Police, who was parked in the Felpausch lot, observed a lone person standing in front of the store just moments before six or seven persons bolted from the store running north. One of the persons carried a large grocery sack or plastic bag. Another person carried what appeared to be a sawed-off shotgun.

Officer DeFeyter followed the group by car and soon spotted four individuals running between houses at 69 Boyd Street. When DeFeyter fired a warning shot in the air and identified himself as a police officer, two of the subjects hit the ground. The remaining two subjects continued fleeing, one running east and the other west. Within inches of one of the subjects lying on the ground, a .38-caliber pistol was found. At the same time Alan Tolf, a Battle Creek police officer and one of the surveillance team covering the Felpausch store, drove to a field-like area at 20 Redner Street just east of where DeFeyter had apprehended the two individuals. There, Officer Tolf found defendant lying underneath a large fir tree. Searching the immediate area, the officer found a .38-caliber [433]*433revolver, a pair of tan men’s gloves, and a tan hat which contained a homemade ski mask made from a sweater sleeve. The gloves were one foot and the hat and gun were six to ten inches from where defendant was found. Tolf also discovered tracks in the grass where defendant was found and followed them to a residence at 69 Boyd Street where DeFeyter had confronted the four fleeing subjects moments before. Along the route of the tracks, Tolf found a dark ski mask. In the yard at 69 Boyd Street a 12-gauge sawed-off shotgun was found.

At trial, no one inside the store could identify defendant as one of the robbers. Claiming alibi, defendant testified in his own behalf.. He stated that he had spent the evening of January 6, 1983, at the home of Shirley Sweet, from whom he rented a room. Later that evening he left Shirley’s house and proceeded to the home of his girlfriend, Julia Sheppard. After awhile, he felt dizzy and took a walk to get some fresh air. While walking, an acquaintance offered him a ride and an opportunity to "get high”. Defendant asked to be dropped off because of the heat and smoke inside the car. He was left off near the housing complex on Redner Street. Feeling the need to urinate, he stopped, removed his gloves and urinated. Suddenly he saw a car appear in the driveway, heard a shot, and ran for cover under a fir tree. The testimony of Shirley Sweet, Ken Sweet and Julia Sheppard corroborated defendant’s story.

I. Did the prosecutor present sufficient evidence of defendant’s participation in the armed robbery?

Defendant first contends that only circumstantial evidence was presented connecting him with the crime. According to defendant, his alibi is not inconsistent with the evidence produced by the [434]*434prosecutor since the area where defendant was found was not so tightly encircled that defendant could not have wandered into the area without being spotted. CJI 4:2:01(7), defendant argues, requires the jury to accept a theory of innocence when two reasonable explanations, one indicating guilt and the other innocence, are presented.1 The prosecutor argues that the testimony was sufficient to reasonably convince a jury that defendant was either one of the robbers or a lookout and that the people are not required to negate every reasonable theory consistent with defendant’s innocence.

Defendant does not challenge the fact that the articles found near defendant and along the tracks in the grass left by defendant were articles stolen from the store. Nor does defendant challenge the finding that the sawed-off shotgun, the ski mask, the plastic garbage bag, and gloves were articles used in the Felpausch store robbery. Defendant challenges only the sufficiency of the evidence identifying him as one of six or seven persons who robbed the store.

However, circumstantial evidence and reasonable inferences arising from it may constitute satisfactory proof of the elements of the offense. People v Richardson, 139 Mich App 622, 625-626; 362 NW2d 853 (1984), citing People v Hunten, 115 Mich App 167, 171; 320 NW2d 68 (1982), and People v Mumford, 60 Mich App 279, 283; 230 NW2d 395 (1975). In the case at bar, circumstantial evidence was presented of defendant’s participation in the armed robbery. The temporal and physical proximity of defendant to the store, the discovery of a gun, a ski mask and a pair of gloves [435]*435under the tree close to defendant at the time of his discovery and arrest, tracks in the grass where defendant was found leading back to where Officer DeFeyter had encountered four fleeing suspects, together with the testimony of Sykes and DeFeyter that a group of six or seven individuals ran from the store, constitutes sufficient evidence from which a reasonable inference arises that defendant was one of the robbers. In our opinion, sufficient evidence was presented on the element of defendant’s participation in the armed robbery to send the case to the jury.

When reviewing an issue of the sufficiency of evidence, this Court views the evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den sub nom Michigan v Hampton, 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). The concept of sufficiency (as distinguished from the weight to be accorded evidence) focuses upon whether the evidence, taken as a whole, justifies submission of the case to the trier of fact or requires a judgment as a matter of law. People v Hampton, supra, p 367.

Defendant argues that subsection (7) of CJI 4:2:01 requires the jury to accept defendant’s theory of innocence when two reasonable explanations, one indicating guilt and the other innocence, are offered. Applied to the facts in the instant case, the argument is flawed in two respects. First, it assumes that the jury found defendant’s explanation credible. It well may be that the jury chose not to believe defendant. Second, other than the language in subsection (7), defendant has cited no authority, and we find none, supporting the propo[436]*436sition that a jury is required to accept defendant’s theory.

Defendant also argues that under People v Davenport, 39 Mich App 252, 256; 197 NW2d 521 (1972), the prosecution is required to negate every reasonable theory consistent with defendant’s innocence. On this issue our Court is split. In

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Cite This Page — Counsel Stack

Bluebook (online)
381 N.W.2d 740, 146 Mich. App. 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-frank-johnson-michctapp-1985.