Opinion
Docket No. 175885.
Submitted February 7, 1996, at Detroit.
Decided March 12, 1996, at 9:05 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Peter Jon Van Hoek), for the defendant on appeal.
Defendant appeals as of right his bench trial conviction of entering without breaking, MCL 750.111; MSA 28.306, and plea of guilty of being a fourth-offense habitual offender, MCL 769.12; MSA 28.1084. The three- to five-year sentence for the entering without breaking conviction was set aside, and defendant was sentenced to three to ten years' imprisonment for the habitual offender conviction. We affirm.
At approximately 7:45 P.M. on January 16, 1994, Officers Adam Pasciak and David Holt of the Redford Township Police Department received a call regarding activity at a 7-Up distributing center. When Pasciak and Holt arrived, they went to the back area of the property, which was fenced. According to the manager of the plant, the facility was surrounded by a seven-foot-tall fence, which was topped with barbed wire. The officers approached the fence and saw one individual hanging from an aluminum recycling truck. Pasciak called to the man, later identified as defendant, who eventually told the officers that a man named "Carl" had given him permission to enter and collect empty and loose soft drink cans. Defendant demonstrated to the officers how he had entered the facility: he had crawled underneath the sliding gate, the bottom of which was approximately six to eight inches off the ground. A patdown search of defendant's outer clothing was conducted and four crushed soft drink cans were found in his coat pockets.
After the close of the prosecution's proofs, defendant moved for a directed verdict. The court found that the prosecutor presented sufficient evidence of an entry, but not a breaking, and granted defendant's motion to the extent of reducing the original charge of breaking and entering, MCL 750.110; MSA 28.305, to entering without breaking. After testimony from defendant and a witness, the trial court returned a verdict of guilty of entering without breaking. The court reasoned that the enclosure was part of a business and therefore was encompassed within the statute. Defendant entered his plea with regard to the habitual offender charge, and this appeal followed.
Defendant first argues that the trial court erred in admitting the statements he made to the officers in answer to their questions before he had been advised of his rights under Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). For purposes of this argument, defendant asserts that he was in police custody when the officers called to him from outside the fence, asked him whether he had permission to be on the property, and asked him how he got in. Initially, we note that defendant failed to raise this issue below. As a general rule, we consider issues that are raised for the first time on appeal to be waived. People v Connor, 209 Mich. App. 419, 422; 531 N.W.2d 734 (1995). However, even if the admission of these statements was error, we find that, in light of the other evidence supporting defendant's conviction, the verdict in this case would not have been different had the challenged statements not been admitted. People v Lee, 212 Mich. App. 228, 240-241; 537 N.W.2d 233 (1995), citing People v Grant, 445 Mich. 535, 553-554; 520 N.W.2d 123 (1994).
Defendant's next claim of error is based on his assertion that the trial court failed to require the prosecution to demonstrate that it exercised due diligence in seeking to locate and subpoena a res gestae witness. However, because defendant failed to move for a new trial, made no attempt to call the witness, and did not object to the witness' absence, seek to establish that the witness was a res gestae witness, or otherwise indicate to the court that he was dissatisfied with the absence of the witness, we conclude that this issue is not preserved for appeal. See People v Jackson, 178 Mich. App. 62, 66; 443 N.W.2d 423 (1989).
Finally, defendant asserts that the prosecution presented insufficient evidence to find him guilty beyond a reasonable doubt of entering without breaking. Although we find that this issue requires analysis, we disagree with defendant's conclusions. To review a claim of insufficiency of the evidence, this Court must consider the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have concluded that the essential elements of the crime were proved beyond a reasonable doubt. People v Hurst, 205 Mich. App. 634, 640; 517 N.W.2d 858 (1994). Defendant was found guilty under the statute prohibiting the entry, without breaking, of
any dwelling, house, tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, boat, ship, railroad car or structure used or kept for public or private use . . . with intent to commit a felony or any larceny therein. [MCL 750.111; MSA 28.306.]
He argues on appeal, as he did below in a motion for a directed verdict, that his entry into the fenced-in property does not fit the requirements under the statute because a fence is neither a "building" nor a "structure."
As support for his argument, defendant cites People v Williams, 368 Mich. 494; 118 N.W.2d 391 (1962), People v Walters, 186 Mich. App. 452; 465 N.W.2d 29 (1990), and People v Adams, 75 Mich. App. 736; 255 N.W.2d 752 (1977). While none of these cases directly address the issue before us, that is, whether a fence is encompassed within the terms "building" or "structure" for purposes of the entering without breaking statute, consideration of each is helpful to our resolution of the question.
We note that because of the similarities in the language of the breaking and entering statute, MCL 750.110; MSA 28.305, and the entering without breaking statute, MCL 750.111; MSA 28.306, our analysis may be applied to both statutes. The current breaking and entering statute provides:
A person who breaks and enters, with intent to commit a felony or a larceny therein, a tent, hotel, office, store, shop, warehouse, barn, grainary [sic], factory or other building, structure, boat, ship, or railroad car is guilty of a felony. [MCL 750.110; MSA 28.305.]
The defendants in Williams were convicted after they entered a metal structure in which tires were stored that was entirely enclosed and had locking doors. The defendants were found guilty of larceny in a building:
Any person who shall commit the crime of larceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony. [MCL 750.360; MSA 28.592.]
The Supreme Court affirmed the defendants' convictions after concluding that the tire shed was a "building" under the statute. The language from Williams that has been latched onto by defendant was drawn from Truesdell v Gay, 79 Mass. (13 Gray) 311 (1859): "The word `building' cannot be held to include every species of erection on land, such as fences, gates or other like structures." Williams, supra at 497. Significantly, we note that the term at issue in Williams was "building." While Williams may support a finding that a fence is not a building, it does not help defendant with regard to the scope of the term "structure."
The defendants in Adams and Walters were convicted of breaking and entering, MCL 750.110; MSA 28.305. That section prohibits the breaking and entering of certain "buildings" and other structures. In Adams, a wooden shed enclosing a gasoline pump was found to be a "structure." Adams, supra at 738. The Court defined both "building" and "structure":
"A building is a structure which has capacity to contain, and is designed for the habitation of, man or animals, or the sheltering of property, even though it is unfinished.
"The word `structure' is in its widest sense defined as any production or piece of work artificially built up or composed of parts joined together in some definite manner; any construction or edifice for any use; or that which is built, such as a dwelling house, church, shed, or store." [ Id., quoting 2 Wharton, Criminal Law Procedure, § 428, pp 49-50.]
In finding the gas pump shed to be either a building or a structure, the Court stated that it "was a permanent fixture, attached to realty, and designed to be used for the sheltering of personal property." Id.
Finally, in Walters, the defendant argued that his conviction was improper because he had been charged with breaking and entering a construction trailer. The defendant asserted that the construction trailer was not permanently affixed to the land and therefore was not a "building." This Court disagreed and stated that the proper focus was not on the permanence of the "building," but on its use. Walters, supra at 455. Because the trailer was used and occupied as an office, it was a "building." Id. at 457.
This then leads us to determine the status of a fence. Contrary to defendant's assertion, our courts have not concluded that a fence is not a "structure," but have indicated only that fences are not "buildings." The issue before us, therefore, is one of first impression. The reasoning of those courts that have found fenced-in areas to be "structures" under burglary statutes is persuasive. We conclude that the prosecution presented sufficient evidence that defendant entered a "structure."
In State v Roadhs, 71 Wn.2d 705; 430 P.2d 586 (1967), the defendants were apprehended while inside a three-sided shed located within a public utility compound. The compound was entirely surrounded by cyclone fencing, which was topped with barbed wire. The defendants had gained access to the compound by cutting a section of barbed wire and climbing over the fence. Id. at 707. The burglary statute prohibited the breaking and entering of "any building . . . or other structure wherein any property is kept." Id. The statute defined "building," but did not define "structure." The court concluded that a fence was not encompassed within the term building, but considered whether it could fall within the definition of "structure."
The Roadhs court followed the general rule of statutory construction that undefined words in a statute should be interpreted according to their common and approved usage, that is, their ordinary meaning. Id. at 708; see People v Fields, 448 Mich. 58, 67; 528 N.W.2d 176 (1995). The Roadhs court stated: "The term `structure' in its ordinary meaning includes `any production or piece of work artificially built up or composed of parts joined together in some definite manner.'" Id. at 708, quoting 2 Anderson, Wharton's Criminal Law Procedure, § 428 (1957). Because, under this definition, the term "structure" could be interpreted very broadly, the Roadhs court found it necessary to apply the principle of noscitur a sociis: more general terms in a statute must be interpreted consistent with and analogous to the more specific terms within the statute. Id. at 708. The court continued:
Considering the statutory definition given to the more specific term "building," and assuming, as we must, that the legislature intended to enlarge the scope of the burglary statute by the addition of the words "or other structure" . . . we conclude that a fence of the sort here in question constitutes a "structure" within the meaning of that statute. Were the fence a mere boundary fence or one erected for the sole purpose of esthetic beautification, it would not constitute a "structure" as that term was intended to be interpreted by the legislature. However, where the fence is of such a nature that it is erected mainly for the purpose of protecting property within its confines and is, in fact, an integral part of a closed compound, its function becomes analogous to that of a "building" and the fence itself constitutes a "structure" subject to being burglarized. [ Id. at 708-709 (emphasis in original).]
The reasoning of Roadhs has been followed in other jurisdictions. In Joy v State, 460 N.E.2d 551 (Ind App, 1984), the Indiana burglary statute, which criminalized the breaking and entering of a "building or structure," was found to encompass a fence surrounding a lumber company. The court concluded that a fence was a structure for purposes of the burglary statute because its purpose was clearly to protect "property within its confines and [was], in fact, an integral part of a closed compound." Id. at 558, quoting Roadhs, supra at 708-709. See also Stanley v State, 512 P.2d 829 (Okla Crim App, 1973).
In Townsend v State, 308 Ark. 266; 824 S.W.2d 821 (1992), the Supreme Court of Arkansas affirmed the breaking and entering convictions of the defendants, who had cut through a fence surrounding a business. The breaking and entering statute specifically included any building or structure, as well as a variety of containers. Id. at 268. In the absence of a statutory definition of "structure," the court referred to Black's Law Dictionary (5th ed), which defined "structure" as "`any construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner.'" Townsend, supra at 268. Further, the court found that "fence" was defined by Black's Law Dictionary as "`a hedge, structure, or partition, erected for the purpose of inclosing a piece of land.'" Townsend, supra at 268. (Emphasis in original.)
We recognize that this reasoning has not been adopted in all jurisdictions. For example, in State v Gamble, 56 N.C. App. 55; 286 S.E.2d 804 (1982), the court refused to include the breaking and entering of a fenced-in area within the scope of North Carolina's breaking and entering statute. The statute specifically covers the breaking and entering of "any building," and defines "building" to include "any other structure designed to house or secure within it any activity or property." Id. at 57. That court followed the principle of ejusdem generis:
"[W]here general words follow a designation of particular subjects or things, the meaning of the general words will ordinarily be presumed to be, and construed as, restricted by the particular designations and as including only things of the same kind, character and nature as those specifically enumerated." [ Id. at 58 (citation omitted; emphasis in original).]
The court concluded that the definitions of "building" and "fenced-in area" are not subject to the principle of ejusdem generis because the legislature always intended a "building" to have at least one wall and a roof, which a fenced-in area does not have. We are not persuaded by the reasoning of Gamble, because our statute does not restrict its application to those things falling within a specific definition of a building.
On the basis of the reasoning of those courts so concluding, and the guidance of our Court in Walters that the focus is on the use made of the structure or building, we conclude that our Legislature contemplated a fence that is used to enclose and protect property and is "an integral part of a closed compound," Roadhs, supra at 708-709, when it included the term "structure" in the breaking and entering and entering without breaking statutes. By demonstrating that defendant had crawled under the gate into the fenced area of the 7-Up distribution center, the prosecution presented sufficient evidence upon which a trier of fact could find defendant guilty of entering without breaking.
Affirmed.