In these consolidated appeals, defendants Frank LeFlore and Joseph LeFlore were charged with unarmed robbery, MCL 750.530; MSA 28.798. Joseph LeFlore was also charged with assault with intent to commit murder, MCL 750.83; MSA 28.278. Following a bench trial, defendants were found guilty as charged. Defendant Frank LeFlore was sentenced to 7 to 15 *560 years imprisonment. Defendant Joseph LeFlore was sentenced to 10 to 15 years for unarmed robbery and to life imprisonment for the assault. Both now appeal as of right.
Complainant testified that she and her sister-in-law were verbally abused by the defendants, both on the street and in a store. After buying some groceries at the store she put her money into her brassiere and began walking home with her sister-in-law. According to complainant and her sister-in-law, the two men then began kicking and hitting complainant and then tore open her blouse so that her money fell out. One of the two defendants picked up the fallen money and the struggle continued. The encounter ended with Joseph LeFlore attempting to run over complainant with his car, resulting in injuries to complainant’s arm. Defendant Frank LeFlore testified and denied this version of the incident.
Both defendants assert that insufficient evidence was presented to and recognized by the trial court to establish the unarmed robbery. They argue that the evidence shows no more than larceny from the person, MCL 750.357; MSA 28.589, since the taking of complainant’s money could only have occurred as an afterthought during the scuffle.
The statute of unarmed robbery provides:
"Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than fifteen (15) years.” MCL 750.530; MSA 28.798.
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It is the element of force
1
that distinguishes this offense from that of larceny from the person.
People v Chamblis,
There is support for defendant’s position in Chamblis, supra. There defendant was charged with armed robbery, MCL 750.529; MSA 28.797, based on his cohort’s knocking the complainant unconscious and then taking his money. He was found guilty of larceny from the person, a conviction upheld by the Supreme Court which said:
"In light of the evidence adduced at trial, the jury could have believed defendant’s story that he was reluctant to return to the house and intended to rob no one, and that the initial pistol crack across complainant’s head by the brother was in retribution for the earlier cane beating defendant had suffered. They could have believed the complainant became unconscious and the men only then decided to take his money. If the money were taken from the complainant under those circumstances, the offense would be larceny from the person.” (Emphasis added.) Chamblis, supra at 425.
Normally, the assault and the taking are concomitant, so that intent may readily be inferred.
People v Beebe,
We believe that this "transaction approach” is appropriate for analyzing any larceny, particularly robbery, where the forceful act may greatly precurse or lag behind the taking. Both the armed and unarmed robbery statutes are clear that the forceful act must be
used to accomplish
the taking. See MCL 750.529; MSA 28.797, MCL 750.530; MSA 28.798,
People v Gould,
In the instant case, there are insufficient factual findings as to the defendants’ intent, so it is impossible to determine if adequate evidence was presented to support the unarmed robbery convictions. It is necessary then to remand to the trial court for more specific findings of fact on whether defendants intended to force complainant to part
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with her money by assaulting her prior to or at the time of taking, or whether, following the taking, force was purposefully inflicted to ensure complainant’s loss of possession. In either case, unarmed robbery would be established. If however, the violence was perpetrated upon complainant with no larcenous intent and the intent to steal only occurred at the time of the taking, only larceny from the person and assault would be proven.
People v Jackson,
Defendant Joseph LeFlore further contends that it was error not to produce an alleged res gestae witness at trial. The missing witness was a meat clerk in the store in which the alleged verbal confrontation took place, which later erupted into the on-the-street assault.
A res gestae witness is one "who was an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense”.
People v Hadley,
In the instant case, defendant never moved for a hearing on the issue of the clerk’s endorsement or production during or following trial. However, we believe this should not bar review since manifest injustice will result if this issue is not resolved. The lower court transcript reveals that the meat clerk was present at the time the altercation in the store occurred. Since there is a vast discrepancy between defendant’s version of what happened and the account given by complainant and her sister-in-law, the unbiased testimony of the meat clerk witness might have had an illuminative effect. On remand, the trial court should inquire into this issue according to the dictates of Pearson, supra, determining if the clerk was a res gestae witness, whether the prosecution adequately attempted to produce him and if defendant was prejudiced by the prosecution’s failure to produce the witness at trial. Pearson, supra at 722-723.
Defendant Joseph LeFlore’s final contention regarding ineffective assistance of counsel is without merit.
People v Garcia,
Remanded for proceedings consistent with this opinion.
Notes
Force, violence and assault will be used interchangeably in this opinion (since all are acceptable under the unarmed robbery statute) to refer to the distinguishing element of robbery.