Zmija v. Baron

326 N.W.2d 908, 119 Mich. App. 524

Opinions

D. C. Riley, J.

The facts in this case are adequately set forth in Judge Walsh’s opinion. For the reasons stated in that opinion we concur in the resolution of all issues presented except the issue relating to the propriety of the trial court’s denial of defendant Sitek’s motion for a directed verdict. As to that issue we disagree with Judge Walsh and find no error in the denial of that motion. In a recent case, a panel of this Court accurately and succinctly set forth the standard for reviewing a motion for a directed verdict.

"In reviewing a motion for a directed verdict, this Court is required to view the evidence, and all legitimate inferences emanating from that evidence, in a light most favorable to the nonmoving party. If reasonable minds could not differ on the meaning of the evidence the motion is correctly granted.” Miller v Great Lakes Steel Corp, 112 Mich App 122, 125; 315 NW2d 558 (1982), citing Bosca v J A Ferguson Construction Co, 79 Mich App 177; 261 NW2d 249 (1977).

Thus, the question becomes whether reasonable minds could differ as to plaintiff’s claim that Sitek was involved in a conspiracy to obstruct justice.

Plaintiff presented evidence at trial establishing that plaintiff’s attorney wrote to Sitek, Acting Chief of Police, requesting that plaintiff’s mug shot be removed from the file and either placed in the department’s nonpublic file or sent to the attorney’s office. The letter specifically requested that Sitek not destroy the photo because it was needed for impending litigation. Despite Sitek’s having received this letter, the photo was destroyed. In addition, there is testimony that Sitek had a discussion with an officer at the Identification Bureau concerning plaintiff’s request.

Based upon this evidence, it would seem that reasonable persons could honestly reach different conclusions as to whether the photograph was destroyed accidentally or with the. purpose of destroying evidence which plaintiff had expressly stated he intended to use at trial. One could reasonably infer, based on the circumstantial evidence, that it had been something more than an accident. Therefore, the trial court did not err in denying defendant Sitek’s motion for a directed verdict.

Finally, it is of no consequence that the evidence against Sitek was largely circumstantial. It must be kept in mind that proof of a conspiracy is generally circumstantial in nature. Bahr v Miller Bros Creamery, 365 Mich 415, 421; 112 NW2d 463 (1961). In our recent decision in Vincent v Raglin, 114 Mich App 242, 250; 318 NW2d 629 (1982), we quoted, with approval, the following language from People v Atley, 392 Mich 298, 311; 220 NW2d 465 (1974):

"Direct proof of agreement is not required, nor is it necessary that a formal agreement be proven. It is sufficient if the circumstances, acts, and conduct of the parties establish an agreement in fact.

"Furthermore, conspiracy may be established, and frequently is established by circumstantial evidence, and may be based on inference.” (Citations omitted.)

In the case at bar, the circumstantial evidence was sufficient to support a reasonable inference of a conspiratorial design. We hold that the trial court did not err in denying defendant Sitek’s motion for a directed verdict.

Affirmed in part, reversed in part, and remanded for proceedings consistent herewith. We retain no jurisdiction. No costs, neither party having prevailed in full.

R. M. Maher, P.J., concurred.