People v. Jolly

502 N.W.2d 177, 442 Mich. 458

• Court: Michigan Supreme Court
• Decided: June 22, 1993
• Docket: Docket Nos. 93492, 93493, (Calendar No. 9)
• Status: Published

Opinions

Riley, J.

In this case, we are asked to determine the requisite elements of proof in proceedings for armed robbery. More specifically, we consider today the quantum of proof necessary to submit the issue of "armed” robbery to a jury. We conclude that the evidence presented in this case was sufficient for a rational factfinder to conclude that the element of armed robbery at issue here was established beyond a reasonable doubt by circumstantial evidence. Accordingly, we treat the question as a factual rather than a legal one that is therefore within the province of the jury to decide.

i

On September 28, 1987, Jose Lopez was working an. evening shift at Arby’s Restaurant on South Dort Highway in Flint, Michigan. About midnight, a man and a woman entered the restaurant. After ordering some food from Mr. Lopez, the woman handed him a paper bag and told him her companion had a gun and would shoot him unless he filled the bag with money. Mr. Lopez never saw a gun, and the male robber’s hands were in view at all times, however, he did as the woman asked. The couple then left, taking about $91.

Jennifer Herzog and Paul Jolly were arrested for this robbery. Jolly was charged with armed robbery, MCL 750.529; MSA 28.797, and of being an habitual offender,¹ MCL 760.10; MSA 28.1082. The armed robbery statute provides:

Any person who shall assault another, and shall feloniously rob, steal or take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony .... [MCL 750.529; MSA 28.797. Emphasis added.]

Herzog agreed to testify against Jolly in exchange for dismissal of the charge against her, and acceptance of a plea of guilty to unarmed robbery in another case.

At trial, defendant claimed that the victim had mistakenly identified him. He also suggested that Ms. Herzog’s testimony was influenced by the favorable bargain she had made with the people. The defense also argued that the requirements of the armed robbery statute were not satisfied. The people conceded at trial that defendant had no weapon, but proceeded on a theory, based on the "article” prong of the armed robbery statute, that defendant had used or fashioned some article in a manner to lead the victim to reasonably believe that it was a dangerous weapon.

At trial, the people asked Mr. Lopez what, other than Herzog’s assertion, made him think that the male robber had a gun. The following exchange occurred:

\Lopez]: [S]he said, "He has a gun.” _

[People]: Okay. Was there anything else that made you believe or think about a gun, in your mind?

A. Not really. Normally when, you know, somebody says they have a gun, I just, you know, I just thought that he had a gun.

Q. Okay. Was there anything that made you think that, though, any more?

A. Well, there was like when he came in he was standing right in front of me. I saw a bulge in his mid, mid area of his — he had a vest on, I saw a bulge. I didn’t know if it was a gun or not. She said that he had a gun and I assumed because there was a bulge it could have been a buckle or anything, and I didn’t know. So I just went by what she said and just did what she asked.

Lopez later went to the Flint Police Department and looked at some photographs of possible perpetrators. He picked out one of the defendant. Lopez testified that he had told the police that he was not completely sure that the suspect in the photograph was the man who robbed him, but that he was fairly sure.

Herzog testified that she had been involved romantically with Jolly and that they lived together at the time of the robbery. She testified that on September 28, 1987, the day of the robbery she and defendant decided to rob a store to get the money to buy some drugs. After some discussion, they decided to rob Arby’s. She testified that they did not have a weapon. The people asked her to describe their plan, and the following exchange occurred:

[Herzog]: I was to go in and, and ask for the money.

[People]: Yes, how were you going to ask for it?

A. I was going to tell them "Put the money in the bag or he would shoot you.”

Q. Or what?

A. "He would shoot you, kill you,” or whatever.

Q. That was discussed between you and Mr. Jolly before you even went in?

A. Yes.

The jury convicted defendant of unarmed robbery. He subsequently pleaded guilty of being an habitual offender and, in another courtroom, of violating his probation. He was sentenced to 9 to 22V2 years for the unarmed robbery charge and to 6 years, 4 months to 10 years for probation violation.

Defendant appealed these convictions in the Court of Appeals which on March 3, 1992, set aside all defendant’s convictions. 193 Mich App 192; 483 NW2d 679 (1992). The Court held that the trial court erred in submitting the armed robbery charge to the jury because the people did not present sufficient evidence. In order to survive a directed verdict motion, the Court stated the evidence must be sufficient to enable a rational trier of fact to find that the essential elements of the crime were proven beyond a reasonable doubt. Id. at 196. Specifically, according to the Court, the people must have presented evidence that could enable a rational trier of fact to find beyond a reasonable doubt either that defendant was actually armed with a dangerous weapon or actually armed with an article used or fashioned to induce a victim to reasonably believe that defendant was armed with a dangerous weapon. Id. at 201. The Court found that the evidence produced was inadequate to support either of these conclusions and, thus, the trial judge erred in denying a directed verdict for the armed robbery count. Id. at 199. The Court stated:

While a victim need not see the entire article, the defendant must at least have the article in hand and fashion it to lead the victim to believe it is a dangerous weapon. [Id. at 201.]

The Court further held that it was necessary to vacate the conviction and remand the case for a new trial. It based this holding on the ground that unfair prejudice always occurs when a jury is allowed to consider a charge unwarranted by the proofs because the possibility of a compromise verdict substantially decreases defendant’s chance of acquittal. Id. at 199, n 1. The people appeal.

n

Conviction of armed robbery requires a finding that the defendant was armed either with a dangerous weapon or with an article used or fashioned in such a way as to lead a reasonable person to believe that it was a dangerous weapon at the time of the robbery. MCL 750.529; MSA 28.797. See also People v Parker, 417 Mich 556, 565; 339 NW2d 455 (1983), cert den 466 US 962 (1984). Because the record is devoid of evidence that defendant actually possessed a dangerous weapon during the robbery, the prosecutor opted to follow the second method of establishing armed robbery, specifically, whether defendant used or fashioned an article to resemble a dangerous weapon. It is to this question that we now turn.

Working from the premise that an accused is innocent until proven guilty, it is the prosecution’s burden in a criminal case to prove beyond a reasonable doubt the essential elements of a crime. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979) (opinion of Coleman, C.J.); Jackson v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979), reh den 444 US 890 (1979). As a threshold inquiry, the prosecutor must offer enough evidence for a court to conclude that a rational trier of fact could find that the essential elements of the crime have been established. People v Wolfe, 440 Mich 508, 513-515; 489 NW2d 748 (1992); Hampton, supra at 368. Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime. People v Petrella, 424 Mich 221, 275; 380 NW2d 11 (1985). See also Wolfe, supra at 524-526 (circumstantial evidence of possession with intent to deliver cocaine was held sufficient to submit the question to the jury); People v Schollaert, 194 Mich App 158, 170; 486 NW2d 312 (1992) (the elements of premeditation and deliberation may be inferred from the circumstances in an alleged first-degree murder); People v Sharp, 57 Mich App 624, 626; 226 NW2d 590 (1975) (the requisite intent to commit armed robbery may be inferred by the jury from circumstantial evidence).

Defendant argued, and the Court of Appeals agreed, that the trial court erred in denying his motion for a directed verdict. 193 Mich App 201. A trial court assesses the merits of a directed verdict motion through consideration of the evidence presented by the prosecution in a light most favorable to the prosecution, to determine whether a rational trier of fact could find that the elements of a crime were proven beyond a reasonable doubt. Wolfe, supra at 515; Hampton,2 supra at 368; Schollaert, supra at 169-170. We believe that the evidence presented was sufficient to permit a rational trier of fact to conclude that the elements of armed robbery were proven beyond a reasonable doubt and would therefore affirm the decision of the trial court. Accordingly, submission of the armed robbery issue was appropriate under the circumstances considered here. That the jury in this case concluded that defendant did not fashion an article to resemble a weapon indicates the closeness of the question, but this is of no consequence to the issue before us.

The operative language at issue is whether defendant was armed with "any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon . . . .” MCL 750.529; MSA 28.797. This language has been interpreted to require the actual possession of an article used or fashioned as a weapon in order to establish an armed robbery charge under the second method of proof. Parker, supra at 564. The question thus boils down to what constitutes "actual possession.”

In Parker, a majority of this Court stated in dicta that the threat of being stabbed, without more, was insufficient to establish the existence either of a dangerous weapon or of an article used or fashioned to look like one.³ The majority explained its reasoning in the following manner:

To constitute armed robbery the robber must be armed with an article which is in fact a dangerous weapon — a gun, knife, bludgeon, etc., or some article harmless in itself, but used or fashioned in a manner to induce the reasonable belief that the article is a dangerous weapon.

Words or threats alone can never be dangerous weapons because the statute is concerned with weapons, not words.

To convict, the factfinder must make the determination that at the time of the robbery the assailant was in fact armed with something and not just that the victim thought he was armed. The determination must be based on the evidence.

Words or threats may be evidence of the fact of being armed and under some circumstances they alone might support a verdict of guilty. When no other evidence of the presence of the weapon is adduced, however, it is imperative that the instructions stress the focus of the jury on the presence of the weapon or article and not the fear or belief of the victim. [417 Mich 565. Emphasis added.]

A fair reading of Parker does not require submission of a dangerous weapon or other article into evidence, nor does it require that a witness see the make or model number of a gun or knife before the issue can be submitted to the jury. What cannot reach the jury is proof that only focuses on the subjective belief of the victim. In other words, there must be some objective evidence of the existence of a weapon or article before a jury will be permitted to assess the merits of an armed robbery charge. For example, an object pointing out from under a coat, together with statements threatening a victim with being shot, clearly satisfies the statutory definition of armed robbery. In such a case, there is evidence of actual possession of a weapon or article and the testimony regarding statements that, if believed, make clear an intent to convince the victim of the existence of such a weapon or article. The facts in Parker indicate that the victim never saw anything that could have been the knife with which she was being threatened.

In People v Saenz, 411 Mich 454, 458; 307 NW2d 675 (1981), the Court recognized that "testimony that defendant used his hand and a covering so as to resemble a gun raises a factual question for the jury’s consideration . . . .” (Emphasis in original.) In Saenz, the victim testified that he neither saw a bulge or hand underneath the defendant’s coat nor was he told by the defendant that he had a weapon. In short, the victim’s belief that the defendant was armed was completely subjective. Thus, the Court of Appeals reliance on Saenz was inappropriate because Saenz is easily distinguishable.

The typical armed robbery case prosecuted under the feigned weapon method involves either the use of a toy gun⁴ or a finger or other object hidden in a bag or under a coat to simulate the appearance of a weapon⁵ together with threatening behavior and statements indicating the existence of a weapon. The existence of some object, whether actually seen or obscured by clothing or something such as a paper bag, is objective evidence that a defendant possesses a dangerous weapon or an article used or fashioned to look like one. Related threats, whether verbal or gesticulatory, further support the existence of a weapon or article.

In this case, an Arby’s employee stated that he saw a bulge in defendant’s vest. It was his belief that the bulge was a gun, especially in light of the fact that defendant’s accomplice threatened that defendant would shoot or kill the employee if he failed to comply with the demand for money. Both the bulge and the threat are circumstantial evidence that defendant was armed either with a dangerous weapon or an article fashioned to look like one. Moreover, we were unable to locate any authority to the effect that testimony of threats regarding the use of a weapon must be divorced from any other evidence of a weapon’s existence, such as a bulge. Accordingly, we need not focus solely on the size of the bulge in defendant’s vest as the dissenters would have us do.

Instead, the factfinder must be permitted to determine the existence of a dangerous weapon or an article used or fashioned to resemble one on the basis of all circumstantial evidence where the evidence is "sufficient.” See, e.g., State v Mc-Cracken, 829 SW2d 634 (Mo App, 1992) (threats of a killing and the existence of a bulge in the defendant’s pocket were sufficient to prove the threatened use of a dangerous weapon even though the victims never actually saw an instrument). In the case before us, defendant elicited the aid of an accomplice, the accomplice called attention to defendant while threatening the Arby’s employee that defendant would shoot him if he did not comply, and the employee noticed a bulge under defendant’s vest located in a place where a handgun could conceivably be concealed. To require that the article either be seen by the victim or recovered from a defendant would not only be unrealistic, but runs counter to established case law holding that the essential elements of a crime may be proven by circumstantial evidence. Petrella, Wolfe, Schollaert, and Sharp, supra. Moreover, we cannot believe that the Legislature intended such a result when it codified the armed robbery statute. We therefore conclude that the existence of the bulge objectively supported submission of the "armed” robbery question to the jury for a determination based on all the circumstances rather than solely on the size and position of the bulge.

Accordingly, we reverse the decision of the Court of Appeals and reinstate the jury’s verdict.⁶

Levin, Boyle, Geippin, and Mallett, JJ., concurred with Riley, J.

1 Defendant had pleaded guilty of larceny from a person in 1986, and had been sentenced to a year in jail and four years probation, the terms of which included in-patient drug treatment. He was on probation at the time of the robbery.

2 In Hampton, this Court specifically rejected the "any evidence” test in favor of the "sufficiency of the evidence” test.

3 The conviction was reversed and the case remanded for a new trial because the arrest of the defendant in his home without a warrant and more than five hours after the alleged abduction and rape of his victim was held not to stem from any exigent circumstances that would obviate the necessity of securing a search warrant. 417 Mich 563. The majority stated, however, that it would have reversed the conviction because of the following jury instruction, which it considered erroneous:

“Ladies and gentlemen, in order to fulfill the dangerous weapon element of the charge of robbery armed, it is not necessary that a weapon be introduced at trial, nor is it necessary for the complainant to see the weapon. All that is required is that the complainant have a reasonable belief that the defendant was armed with a dangerous weapon at the time of the incident, and for you to be convinced beyond a reasonable doubt of this belief ” . . . . [417 Mich 566.]

4 People v Crittle, 38 Mich App 118; 195 NW2d 799 (1972), rev’d on other grounds 390 Mich 367; 212 NW2d 196 (1973); People v Schofield, 124 Mich App 134; 333 NW2d 607 (1983), rev’d on other grounds 417 Mich 988; 334 NW2d 376 (1983). See, generally, anno: Robbery by means of toy or simulated gun or pistol, 81 ALR3d 1006.

5 See, e.g., People v Jury, 3 Mich App 427; 142 NW2d 910 (1966); People v Washington, 4 Mich App 453; 145 NW2d 292 (1966); People v Tullie, 141 Mich App 156; 366 NW2d 224 (1985); People v DeMeyers, 183 Mich App 286; 454 NW2d 202 (1990). See also People v McKenzie, 439 Mich 910; 478 NW2d 661 (1992), wherein a majority of this Court denied leave to appeal a conviction for armed robbery where the defendant stated that he had a gun and kept his hand in his pocket.

6 Because of our holding in this issue, we do not address the other arguments raised by the defendant.