People v. Hunt
542 N.W.2d 609
Mich. Ct. App.
1995
Check Treatment

AFTER REMAND

Before: Mackenzie, P.J., and Fitzgerald and J. P. O’Brien, * JJ. Per Curiam.

The prosecution appeals as of right from an opinion and order, entered on remand from this Court, vacating on the ground of double jeopardy defendant’s conviction of breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305. Alternatively, the court ordered a new trial on grounds of evidentiary error, instructional error, and ineffective assistance of counsel. We agree that the conviction must be vacated as violative of the Double Jeopardy Clause of the Michi *315 gan Constitution, Const 1963, art 1, § 15, and, therefore, affirm.

On September 21, 1989, a breaking and entering took place at an Eaton County residence. Among the items taken was an imitation Rolex watch. On that same day, defendant pawned the watch in Ingham County. He subsequently was charged in Ingham County with receiving and concealing stolen property. On May 10, 1990, defendant pleaded guilty of attempted receiving and concealing stolen property under $100. He was sentenced to forty-five days in jail, with credit for seventy-four days served.

On May 18, 1990, the Eaton County authorities received information that defendant committed the breaking and entering involving the watch. Defendant subsequently was charged with, and following a jury trial convicted of, that offense.

As noted above, defendant’s conviction of breaking and entering subsequently was vacated by the trial court as being in violation of the Double Jeopardy Clause. On appeal, the prosecution contends that the trial court erred in vacating the conviction. We disagree.

Individuals are constitutionally protected from being placed twice in jeopardy for the same offense. People v Gonzalez, 197 Mich App 385, 392; 496 NW2d 312 (1992). There are three separate protections afforded within the guarantee: (1) protection against prosecution for the same offense after an acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense. Id. This case involves the second protection, that is, the protection against successive prosecution after a conviction.

In Michigan, the term "same offense” for pur *316 poses of the protection against multiple prosecutions is defined by the "same transaction” test. People v White, 390 Mich 245, 258; 212 NW2d 222 (1973); People v Sturgis, 427 Mich 392, 401; 397 NW2d 783 (1986). This test requires the prosecution, except in the most limited circumstances, to join at one trial all the charges against a defendant arising out of a single criminal act, occurrence, episode, or transaction. Crampton v 54-A Dist Judge, 397 Mich 489, 501-502; 245 NW2d 28 (1976); People v Ainsworth, 197 Mich App 321, 323; 495 NW2d 177 (1992). In cases involving a series of specific criminal intent offenses, the same transaction test requires a continuous time sequence and display of a single intent and goal. Crampton, supra, pp 499, 501-502. Where one or more of the offenses does not have specific criminal intent as an element,

the criterion is whether the offenses are part of the same criminal episode, and whether the offenses involve laws intended to prevent the same or similar harm or evil, not a substantially different, or a very different kind of harm or evil. [Crampton, supra, p 502.]

See also Ainsworth, supra, p 323.

Receiving and concealing stolen property — the crime of which defendant was prosecuted in Ingham County — is not a specific intent crime, Ainsworth, supra, p 325, while breaking and entering includes specific intent as an- element, People v Cannoy, 136 Mich App 451, 453; 357 NW2d 67 (1984). Under Crampton, therefore, the question becomes whether defendant’s offenses were part of the same criminal episode and involved laws intended to prevent the same or similar harm. Ainsworth, supra, p 325.

In this case, the evidence indicated that defen *317 dant broke into the victim’s home on September 21, 1989, and stole, among other items, an imitation Rolex watch. He then pawned the watch the same day for $30. The breaking and entering and the possession of the stolen goods were clearly part of a single criminal episode in which defendant intended to convert the victim’s property into his own. Compare People v Flowers, 186 Mich App 652; 465 NW2d 43 (1990) (armed robbery and possession of stolen property on different days are not part of same transaction). Moreover, the offenses are closely related and in the same class or category, see People v Adams, 202 Mich App 385, 387; 509 NW2d 530 (1993), and, thus, unlike the crimes at issue in Flowers, the laws involved may be said to be intended to prevent similar harms. Accordingly, under Crampton, the prohibition against successive prosecutions was violated in this case. The trial court did not err in vacating defendant’s breaking and entering conviction on the ground of double jeopardy.

We reject the prosecution’s suggestion that this case falls within the exception to the same transaction test that allows successive prosecutions where a crime is not completed or not discovered despite due diligence on the part of the police until after a prosecution for other crimes arising out of the same transaction. See, e.g., People v Harding, 443 Mich 693, 703-705; 506 NW2d 482 (1993). Here, both crimes were completed and discovered long before either prosecution, and, as noted by the trial court, the Eaton County authorities had been aware for several months before their prosecution of defendant that the victim’s watch had been stolen in a break-in and that defendant had been in possession of that watch. This Court has never recognized that the Harding exception extends to a situation where, despite knowledge of a *318 completed crime, investigators decided to charge a defendant with a lesser crime because, at the time, they were unable to accumulate enough evidence to convict the defendant of a greater crime.

Finally, contrary to the prosecution’s argument, this is not an appropriate case to hold that it would be "inequitable” not to allow both of defendant’s convictions to stand despite the constitutional prohibition against successive prosecutions. As noted by defendant and the trial court, had the charges against defendant been properly joined in a single prosecution, he could not have been convicted of both breaking and entering and receiving and concealing. People v Johnson, 176 Mich App 312, 315; 439 NW2d 345 (1989).

Our conclusion that defendant’s breaking and entering conviction was properly vacated makes it unnecessary to address the parties’ remaining claims.

Affirmed.