Summary
noting that "[t]he crime of breaking and entering is complete when the entrance is gained."
Summary of this case from People v. SmithOpinion
Docket No. 61154.
Decided December 20, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, James J. Gregart, Prosecuting Attorney, and Douglas E. Weldon, Assistant Prosecuting Attorney, Appellate Division, for the people.
Marovich Stroba (by Milton J. Marovich), for defendant on appeal.
Before: MacKENZIE, P.J., and T.M. BURNS and D.F. WALSH, JJ.
On July 27, 1981, defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and was subsequently sentenced to from 3 to 15 years imprisonment. He appeals as of right.
Defendant argues that the factual basis was insufficient to support breaking and entering a dwelling with intent to commit larceny. During the plea-taking proceeding, defendant admitted that on July 3, 1981, his brother had broken into a house through the basement window. The brother then came out through the patio door and went back home and told defendant about it. Defendant had not previously known about this crime. Then, both went to the house and stole a number of items. Although they put all the stolen goods in defendant's brother's room, they intended to divide the property.
To be convicted of this crime as a principal, defendant would have had to (1) break and (2) enter (3) an occupied dwelling (4) with felonious intent. People v Flores, 92 Mich. App. 130; 284 N.W.2d 510 (1979), lv den 407 Mich. 932 (1979). The last three elements have obviously been shown here: defendant himself entered an occupied dwelling intending to steal. The first element, a breaking, is established if even the slightest force is used in pushing open an already open door. People v White, 153 Mich. 617; 117 N.W. 161 (1908). Unfortunately, the record is just too unclear on this point. Defendant's brother could have left the patio doors wide open and, conceivably, neither opened any doors or windows during the second and all subsequent entries into the house. We do not believe that the factual basis is sufficient to establish the inculpatory inference that a second breaking (one committed by defendant) occurred. As such, the factual basis is insufficient to prove that defendant committed the crime as a principal. People v Kyllonen, 80 Mich. App. 327; 263 N.W.2d 55 (1977); People v Stewart, 69 Mich. App. 528; 245 N.W.2d 121 (1976).
However, one may also be convicted as a principal even if he merely aided and abetted in the crime. MCL 767.39; MSA 28.979. One need not actually do the breaking to be guilty as an aider and abettor to breaking and entering. People v Clark, 34 Mich. App. 70; 190 N.W.2d 726 (1971). A defendant could be guilty as an aider and abettor even if he were merely the "lookout", DeLoach v State, 142 Ga. App. 666; 236 S.E.2d 904 (1977), or the driver of the car used in taking the principal to the building, State v Wilson, 221 Kan. 359; 559 P.2d 374 (1977).
People v Hill, 36 Mich. App. 679, 681; 193 N.W.2d 909, 910-911 (1971), is quite close to the present case. There, this Court affirmed based on the following colloquy:
"Q. [Court]: Did you go into that house?
"A. [Defendant]: Yes, sir.
"Q. What time of the day or night?
"A. About 12:30, 11:00 o'clock.
"Q. How did you get in?
"A. It was already open, some of our boys had broke into it. They were talking about going back and get the stuff so I went in and tried to get it before them."
Unfortunately, Hill is a little ambiguous. The facts tend to show that the defendant knew about the breaking ahead of time, being involved in a conspiracy with the others. This same ambiguity is even more apparent in People v Hailey, 67 Mich. App. 540; 241 N.W.2d 282 (1976).
State v Franks, 377 So.2d 1231 (La, 1979), is directly on point. There, the defendant discussed the burglary with others but decided not to join in. Later, one of the burglars asked the defendant for his truck and to help them cart away the stolen property. The defendant then drove his truck to the apartment and helped the others unload the stolen property. The court ruled that the defendant could be convicted under these facts as a principal. However, it also ruled that the defendant had been properly charged as an accessory after the fact to the burglary. Such a result is impossible in Michigan. A person guilty of the substantive offense cannot also be guilty of being an accessory after the fact. People v Lucas, 402 Mich. 302; 262 N.W.2d 662 (1978).
We realize that the terms "burglary" and "breaking and entering" have different meanings in Michigan. People v Whetstone, 119 Mich. App. 546; 326 N.W.2d 552 (1982); People v Saxton, 118 Mich. App. 681; 325 N.W.2d 795 (1982), lv den 414 Mich. 931 (1982). However, this particular difference is not material in the present case. We believe that we may justifiably look to "burglary" statutes of other states without confusing the distinction Michigan places on the different terms.
State v Best, 232 N.C. 575; 61 S.E.2d 612 (1950), is also on point. There, the court affirmed where the principal had entered the house and opened the door ahead of time. It held that the defendant was guilty of "nonburglariously" breaking into the house as an aider and abettor when he and the principal later went into the house and stole a number of items. However, this case does not exactly explain why such a result should be correct.
To be convicted as an aider and abettor, a defendant must have aided, encouraged, instigated, or assisted the criminal enterprise in some way. People v Palmer, 392 Mich. 370; 220 N.W.2d 393 (1974); LaFave Scott, Criminal Law, p 504. Furthermore, he must have either intended to aid the substantive offense or participated while knowing that the co-participant possessed the requisite intent. People v Triplett, 105 Mich. App. 182; 306 N.W.2d 442 (1981). See also Hicks v United States, 150 U.S. 442; 14 S Ct 144; 37 L Ed 1137 (1893). Mere knowledge of the crime is insufficient. People v Burrel, 253 Mich. 321; 235 N.W. 170 (1931); People v Killingsworth, 80 Mich. App. 45; 263 N.W.2d 278 (1977).
Yes, defendant did intend to aid his brother in committing a crime. However, he did not specifically intend to aid in the breaking and entering but in the larceny itself:
"Burglary is complete upon entry of the structure with the requisite intent to commit a felony or petit larceny, even if the intent is not subsequently fulfilled. * * * It is the intent which exists in the mind of the perpetrator at the moment of entry which defines burglary.
* * *
"It is the intent at the moment of entry of the structure which appellant must have shared with his companion in order to be guilty of burglary as a principal. If appellant did not know at that moment what was afoot, there is no way that he could have shared the specific criminal intent required for guilt as a principal." (Emphasis in original.) People v Markus, 82 Cal.App.3d 477, 481-482; 147 Cal.Rptr. 151 (1978).
Merely being subsequently connected with the stolen property after the breaking and entering is insufficient to convict of breaking and entering:
"Breaking and entering being essential elements of the crime of burglary, no subsequent connection with property stolen as the result of a burglary can make one guilty of burglary who was not connected with the original breaking and entry." Maines v State, 97 Okla. Cr. 386, 388; 264 P.2d 361 (1953).
See also People v Hunt, 90 Ill. App.3d 496; 45 Ill Dec 882; 413 N.E.2d 215 (1980); Beard v State, 410 P.2d 567 (Okla Crim, 1965).
In People v Turner, 120 Mich. App. 23; 328 N.W.2d 5 (1982), we affirmed the defendant's conviction for armed robbery where she had hidden the stolen money in her bra after the robbery had occurred. However, Turner is different. There, the defendant intended to aid the armed robbery itself. Armed robbery, being a continuing offense, is not terminated until the perpetrators reach a place of temporary safety. See People v Clark, 113 Mich. App. 477; 317 N.W.2d 664 (1982). However, defendant in the present case clearly intended to aid his brother in the larceny. He did not need to aid his brother in the breaking and entering since it had already occurred. As such, he did not have both the knowledge and the criminal intent to bring about the illegal end required to be convicted as an aider and abettor. He did not specifically intend by his conduct to aid in the breaking and entering. See Hensel v State, 604 P.2d 222 (Alas, 1979).
Turner can be distinguished in another way too. Even though robbery is a continuing offense, breaking and entering is not. People v Jardine, 116 Cal.App.3d 907, 919; 172 Cal.Rptr. 408 (1981). The crime of breaking and entering is complete when the entrance is gained. State v Allen, 125 Ariz. 158; 608 P.2d 95 (1980). In Carr v Sheriff, Clark County, 95 Nev. 688, 689; 601 P.2d 422 (1979), the court reversed the defendant's conviction for burglary with the use of a deadly weapon even though he had used the knife once inside the house: "[T]he crime of burglary was complete upon his alleged unlawful entry of the house and was not accomplished with the use of the knife". See Frost v Sheriff, Clark County, 95 Nev. 781; 602 P.2d 193 (1979). Defendant could not have aided in his brother's breaking and entering since it had already terminated. See People v Karst, 118 Mich. App. 34; 324 N.W.2d 526 (1982), lv den 414 Mich. 927 (1982).
This analysis does not necessarily imply that a defendant cannot be convicted of felony murder in the perpetration of a breaking and entering unless he kills his victim while actually entering the building. The cases have affirmed convictions where the killing was incidental to the felony and associated with it as one of its hazards. State v Conner, 241 N.W.2d 447 (Iowa, 1976); United States v Naples, 192 F. Supp. 23 (D DC, 1961), rev'd on other grounds 113 US App DC 281; 307 F.2d 618 (1962).
This case is remanded with instructions to follow the procedure outlined in Guilty Plea Cases, 395 Mich. 96, 129; 235 N.W.2d 132 (1975), cert den 429 U.S. 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977). See also People v Sees, 104 Mich. App. 477; 304 N.W.2d 612 (1981), lv den 412 Mich. 897 (1982).