309 N.W.2d 569 | Mich. Ct. App. | 1981
PEOPLE
v.
MOSLEY.
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people.
Darcelle D. Kanoyton, for defendant on appeal.
Before: N.J. KAUFMAN, P.J., and ALLEN and D.C. RILEY, JJ.
PER CURIAM.
Defendant was charged with armed robbery and tried by a jury in August, 1979. When the jury was unable to reach a verdict, a mistrial was declared and a second trial was held in November, 1979. On November 15, the second day of trial, the prosecutor moved to add Ernest Doster, the owner of the stolen car used in the robbery, to the information as a witness. Despite objections by defense counsel, the trial court allowed the witness to be added.
The jury returned a verdict of guilty as charged, and on December 7, 1979, defendant was sentenced to from 4 to 20 years in prison. He appeals of right claiming that the trial court erred by adding Doster, a non-res gestae witness, to the witness *395 list, thus allowing Doster to testify about another crime with which defendant was not charged.
Complainant had just stepped out of her car in the Emerald Isle Pub parking lot in Detroit when another car pulled up and a man alleged to be defendant's accomplice got out of the passenger side and robbed complainant of her purse, using a handgun. Shortly thereafter, complainant attracted the attention of an on-duty police officer, who radioed a description of the car and the assailant to other officers in the area. Two officers in an unmarked police car noticed the car used in the robbery and pursued it. They lost sight of it momentarily when it pulled into an alley, and when they saw it again it was stopped, both front doors were open, and two men were running down the alley. The police circled the block and arrested defendant as he emerged from between two houses. The officers testified that they found complainant's wallet in defendant's coat and complainant's purse and a handgun between the houses near the tracks which defendant left in the snow.
Ernest Doster, owner of the automobile, testified during trial that it had been stolen from in front of his home some time prior to 11:30 p.m. on the night of the robbery. The trial court then instructed the jury that this evidence was to be considered only for the purpose of showing that whoever was using the automobile was acting purposefully and that his actions were not the result of accident, mistake, or misjudgment. Defendant argues on appeal that this evidence should have been excluded under the prior bad acts exclusionary rule on the ground that whatever probative value the evidence contained was outweighed by the prejudicial effect it would have upon the jury's view of defendant. We disagree.
*396 The rule regarding the admissibility in evidence of prior bad acts is summarized in People v Berry, 101 Mich. App. 399, 403-404; 300 NW2d 575 (1980):
"The admissibility of evidence of a defendant's other bad acts should be carefully considered by the trial court because of the great potential that its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant. People v Oliphant, 399 Mich. 472; 250 NW2d 443 (1976).
"This Court in People v Wilkins, 82 Mich. App. 260, 267-268; 266 NW2d 781 (1978), lv den 406 Mich. 857 (1979), rev'd on other grounds 408 Mich. 69; 288 NW2d 583 (1980), stated that three requirements must be met before evidence of prior bad acts may be admitted:
"(1) There must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced.
"(2) There must be a showing that the `facts', or circumstances of the other bad acts are probative of the defendant's motive, intent, absence of mistake or accident, scheme, plan, or system in committing the charged offense.
"(3) Defendant's motive, intent, absence of mistake or accident, scheme, plan, or system must be material to the determination of defendant's guilt of the charged offense.
"The general rule is that evidence of other bad acts may be introduced only when the matter which they tend to prove is disputed. Wilkins, supra, 268."
The three requirements set forth in Wilkins, supra, have been met in the instant case. There was substantial evidence that defendant participated in the theft of the automobile. The police testimony indicated that defendant was apprehended late at night, shortly after the armed robbery, in possession of the victim's wallet and purse, in the vicinity of the stolen automobile, and in the location where one of the persons in the *397 automobile had fled. The jury justifiably could have concluded from this evidence that defendant was in the automobile. It is a well-established principle that possession of recently stolen property permits an inference that the possessor committed the theft. People v Bradley, 54 Mich. App. 89, 93; 220 NW2d 305 (1974), People v Helcher, 14 Mich. App. 386, 388; 165 NW2d 669 (1968).
The use of a stolen automobile in an armed robbery generally is considered to be indicative of motive, intent, absence of mistake or accident, scheme, plan, or system of committing the charged offense. It significantly minimizes the chances of being apprehended by the police.
Moreover, the evidence of the car's theft was admissible as part of the res gestae of the crime. People v Castillo, 82 Mich. App. 476, 479; 266 NW2d 460 (1978), stated:
"`It is elementary that the acts, conduct and demeanor of a person charged with crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to show the commission of another crime. (Emphasis supplied.)
* * *
"`Res gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.'"
See also People v Cramer, 97 Mich. App. 148, 156, 158; 293 NW2d 744 (1980).
The trial court did not err by allowing admission of evidence pertaining to the theft of the automobile.
Affirmed.