Opinion
Docket No. 26372.
Decided May 28, 1976.
Appeal from Recorder's Court of Detroit, James Del Rio, J. Submitted May 4, 1976, at Detroit. (Docket No. 26372.) Decided May 28, 1976.
Archie T. Nichols was convicted of breaking or entering an automobile for the purpose of stealing goods valued at $5 or more. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
Elliot P. Kramer, for defendant.
Before: BRONSON, P.J., and D.E. HOLBROOK, JR. and D.F. WALSH, JJ.
The defendant was convicted by a jury of breaking or entering an automobile for the purpose of stealing goods valued at $5 or more. MCLA 750.356a; MSA 28.588(1). He was sentenced to prison for a term of 3-1/3 to 5 years. Subsequently, the defendant filed a motion for a new trial which was denied by the trial court. He now appeals as of right.
The twin pillars supporting our criminal justice system are: (1) that the defendant is entitled to be presumed innocent until proven guilty, and (2) that to overcome the presumption of innocence the prosecutor is required to prove each element of the crime charged beyond a reasonable doubt. See People v Palmer, 392 Mich. 370, 375; 220 N.W.2d 393 (1974). There are three essential elements of the crime of breaking or entering an automobile for the purpose of stealing goods valued at $5 or more that the prosecutor must prove beyond a reasonable doubt in order to convict the defendant.
"1) That the defendant entered or broke into a vehicle.
"2) That he either entered or broke into a vehicle with the purpose or intent of stealing or unlawfully removing property.
* * *
"3) [T]hat the defendant intended to remove property valued at $5 or more." (Emphasis in original.) People v Chronister, 44 Mich. App. 478, 479-480; 205 N.W.2d 238 (1973).
Contrary to the defendant's assertion, the actual value of the goods taken or intended to be taken is not an element of the offense the defendant stands convicted of. People v Chronister, supra at 480. Contra People v Fuzi, 46 Mich. App. 204, 211 ; 208 N.W.2d 47 (1973). The defendant's contention would be correct if the statute required a completed larceny to sustain a conviction. Cf., People v Westman, 53 Mich. App. 662, 664; 220 N.W.2d 169 (1974). However, a cursory reading of the relevant portion of the statute reveals that the statute punishes a breaking or entering of a motor vehicle; it does not only punish a completed larceny from a motor vehicle.
MCLA 750.356a; MSA 28.588(1) reads in relevant part:
"Any person who shall enter or break into any motor vehicle * * * for the purpose of stealing or unlawfully removing therefrom any goods, chattels or property of the value of not less than $5.00 * * * shall be guilty of a felony * * *."
The cases cited by the defendant in support of his position rely on People v Hanenberg, 274 Mich. 698, 699; 265 N.W. 506 (1936). That case is factually distinguishable since it dealt with a conviction under the receiving stolen property statute. MCLA 750.535; MSA 28.803. Under that statute, before the crime is completed the defendant must have acquired possession of goods valued at over $100. Under the statute in the instant case, the defendant does not have to obtain possession of any goods.
People v Fuzi, 46 Mich. App. 204, 211; 208 N.W.2d 47 (1973), People v Haynes, 36 Mich. App. 705, 706; 193 N.W.2d 899 (1971). See also People v Westman, 53 Mich. App. 662, 664; 220 N.W.2d 169 (1974).
The defendant claims on appeal that the evidence adduced to support the third element is not sufficient to support an adverse finding beyond a reasonable doubt. At trial, Darnell Walton, the defendant's accomplice, testified that he "was looking into the parked cars * * * for merchandise or something that was worth taking". Al Perkins, the owner of the automobile that was broken into, testified that he had approximately 50 record albums on the front floorboard at the time his car was broken into.
Walton had previously pled guilty to attempted breaking or entering of a motor vehicle for the purpose of stealing goods valued at $5 or more. MCLA 750.92; MSA 28.287, MCLA 750.356a; MSA 28.588(1).
We believe that this evidence was sufficient, if believed by the jury, to establish the third element of the crime beyond a reasonable doubt. People v Chronister, supra, at 480. From this testimony the jury could reasonably infer that Walton believed that the 50 record albums on the floorboard of Perkins' car had a value of $5 or more when he broke into the automobile. However, the evidence would be insufficient if the prosecutor were attempting to establish the actual value of the albums under the general larceny statute. People v Cole, 54 Mich. 238, 239; 19 N.W. 968 (1884).
Although the defendant was charged as a principal, the only evidence introduced indicated that at most the defendant was an aider and abettor. Accordingly, the trial court instructed the jury on the issue of aiding and abetting. See MCLA 767.39; MSA 28.979, People v Hooper, 50 Mich. App. 186, 191; 212 N.W.2d 786 (1973), lv den, 391 Mich. 808 (1974). The defendant attacks the necessarily implied adverse finding of fact by the jury that the defendant was an aider and abettor, claiming that the evidence is insufficient and that the verdict is against the great weight of the evidence.
In reviewing the claim that the evidence is insufficient, this Court must determine if there is some evidence which will support the jury's findings. People v Palmer, supra at 376-377, quoting People v Howard, 50 Mich. 239, 242-243; 15 N.W. 101 (1883). In the present case, there is evidence which supports the jury's necessarily implied finding of fact on this issue. A security guard testified for the prosecution that he observed the defendant and Walton glance into several vehicles before Walton broke into Perkins' automobile. He also opined that he thought that the defendant was acting as a look-out for Walton while Walton committed the break-in. See People v Fuller, 395 Mich. 451; 236 N.W.2d 58 (1975).
In reviewing a claim that the verdict is against the great weight of the evidence, this Court reviews the record to determine if the trial court abused its discretion in denying defendant's motion for a new trial. People v Mattison, 26 Mich. App. 453, 459-460; 182 N.W.2d 604 (1970). Even though there was a clear conflict in the testimony between the security guard and Walton about the defendant's involvement in the crime, we cannot say that the trial court abused its discretion. The issue was one of credibility, and whereas we must look at a cold typewritten transcript, the trial court had an opportunity to observe the witnesses as they testified.
Affirmed.