Opinion
No. 332479
06-20-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CODY IAN SIMMONS, Defendant-Appellant.
UNPUBLISHED Washtenaw Circuit Court
LC No. 15-000163-FH Before: SWARTZLE, P.J., and SAAD and O'CONNELL, JJ. PER CURIAM.
Following a jury trial, defendant appeals his convictions of first-degree home invasion, MCL 750.110a(2); larceny of a firearm, MCL 750.357b; receiving and concealing a stolen firearm, MCL 750.535b; two counts of second-degree home invasion, MCL 750.110a(3); two counts of safe breaking, MCL 750.531; and possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b. For the reasons provided below, we affirm.
This case arises out of three home invasions that occurred in Washtenaw County, Michigan. Defendant took electronics and jewelry from all three homes. The police discovered many of the items taken from those homes in defendant's possession. Defendant also sold other stolen items to two local pawn shops.
I. JURY INSTRUCTION
Defendant argues that the trial court violated his due process rights by instructing the jury regarding aiding and abetting. We disagree.
"This Court reviews de novo claims of instructional error." People v Martin, 271 Mich App 280, 337; 721 NW2d 815 (2006). In reviewing instructional error claims, "this Court examines the instructions as a whole, and, even if there are some imperfections, there is no basis for reversal if the instructions adequately protected the defendant's rights by fairly presenting to the jury the issues to be tried." Id. at 337-338 (quotation marks and citation omitted).
To support a finding that a defendant aided and abetted a crime, the prosecution must show that (1) the crime charged was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) the defendant
intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid and encouragement. [People v Izarraras-Placante, 246 Mich App 490, 495-496; 633 NW2d 18 (2001) (quotation marks and citations omitted).]Thus, a jury instruction on aiding and abetting is appropriate "where there is evidence that (1) more than one person was involved in committing a crime, and (2) the defendant's role in the crime may have been less than direct participation in the wrongdoing." People v Barlett, 231 Mich App 139, 157; 585 NW2d 341 (1998).
Contrary to defendant's position, there was sufficient evidence to support the aiding and abetting instruction. First, although stolen property from all three homes was tracked to defendant, defendant consistently denied throughout the investigation that he ever broke into any of the homes. If believed by the jury, then it would be impossible for him to be convicted as the principal for home invasion. But there was evidence that, near the time of the break-ins, defendant was spotted peering through another home's window and was forced to leave after being confronted by the homeowners. Thus, based on the evidence, a jury could infer that it was defendant's modus operandi to scout out potential robbing locations, while someone else did the actual breaking and entering. This scouting of robbery locations is sufficient to constitute the assisting of the commission of the crimes. In addition, one sheriff's deputy testified that there were two sets of footprints leading up to the home where defendant was living, and one detective testified that the footprints outside of one of the victim's house could have been made by two people. Based on the evidence presented, it was possible for the jury to find that more than one person was involved with the home invasions and that defendant's role "may have been less than direct participation in the [break-ins]." Id. Therefore, the aiding and abetting instruction was proper, and defendant was not denied due process.
II. DOUBLE JEOPARDY
Defendant also argues that his two convictions for safe breaking violated his double jeopardy protections. We disagree. Because defendant failed to raise the issue of double jeopardy at the trial court, the issue is not preserved, and we review for plain error affecting defendant's substantial rights. People v Meshell, 265 Mich App 616, 628; 696 NW2d 754 (2005).
"Both the United States and the Michigan constitutions protect a defendant from being placed twice in jeopardy, or subject to multiple punishments, for the same offense." People v McGee, 280 Mich App 680, 682; 761 NW2d 743 (2008).
In pertinent part, MCL 750.531 states that:
Any person who . . . shall attempt to break, burn, blow up or otherwise injure or destroy any safe, vault or other depository of money, bond or other valuables in any building or place, shall, whether he succeeds or fails in the perpetration of such larceny or felony, be guilty of a felony . . . .
Defendant asserts that the two incidents of safe breaking occurred during the home invasion of one home and, therefore, both incidents of safe breaking occurred as part of the same criminal transaction. However, the evidence showed that defendant broke into the green safe at his own residence. Regardless of where the safes were located, defendant's safe-breaking convictions were based on two separate actions: (1) the breaking of a safe attached to a night stand in the master bedroom of one of the homes, and (2) the breaking of a different green safe. In People v Shipe, 190 Mich App 629, 634; 476 NW2d 490 (1991), this Court held that a defendant could not "be convicted of more than one bank robbery offense for taking money from multiple tellers during one robbery of a single bank" because the crime involved was "bank robbery, and it [was] clear that there was only one transaction and only one bank robbed." However, here, the offense charged was the breaking of "any safe," MCL 750.531, and although the safes were both initially located in one home, defendant was convicted of breaking into two different safes. See People v Hall, 249 Mich App 262, 273; 643 NW2d 253 (2002) (stating that "double jeopardy does not apply to crimes committed against different victims, even if the crimes occurred during the same criminal transaction"). Therefore, defendant's safe-breaking convictions do not violate double jeopardy protections.
Affirmed.
/s/ Brock A. Swartzle
/s/ Henry William Saad
/s/ Peter D. O'Connell