*1 App 42 PEOPLE ORSIE 4, 1978, January Rapids. Docket No. 30864. Submitted at Grand 8,May appeal applied Decided 1978. Leave to for. by jury Joseph Court, Billie J. Orsie was convicted a in St. Circuit J., Boyle, attempting Robert E. A. break enter a safe larceny willfully maliciously with intent to commit and of or burning building. appeal, alleges On as reversible tracking-dog error that evidence introduced at trial lacked sufficient foundation for introduction and that his conviction on piling circumstantial evidence introduсed amounted to upon inference inference from the same evidence. Defendant appeals. Held: precedent 1. Four conditions must be satisfied before track- (a) ing-dog necessary evidence is to be it admitted: to show (b) qualified dog; that the handler is to handle the it must be dog tracking shown that was trained and accurate in (c) humans; necessary dog placed it is to show that the culprit been; the trail where circumstances indicate the has (d) necеssary it is to show that the trail had not become tracking stale when the occurred. object precluded appel- 2. Failure to to admission of evidence late review. nothing wrong inherently basing 3. There is with a valid inference a valid inference. actually against basing 4. What is meant the rule an an inference is that an inference cannot be speculative based evidence which is uncertain or or merely conjecture possibility. raises or Affirmed.
[1] [2] [ 5] [5] [6] 3— Evidencе of Modern status of the rules 30 Am Jur 30 Am Jur 75 Am Jur 30 Am Jur 29 Am Jur inference or a 29 Am Jur 2d, trailing by dogs 2d, 2d, 2d, 2d, References 2d, Evidence 1146. Evidence Trial 166. Evidence Evidence § presumption upon presumption. Evidence § § §§ §§ for Points in Headnotes 1125. §§ 1170-1172. 378, in criminal against basing 379. 211. cases. ALR3d 5 ALR3d 1221. 100. J., affirmation of defend- R. M. concurred with the attempting a safe with to break or enter ant’s conviction larceny the affirmation of but dissented from intent to commit burning willfully maliciously conviction of defendant’s majority’s "no *2 abandonment or the and from the рyra- upon inference” rule. He would hold prosecution, improper miding that the of inferences evidence, pres- upon must circumstantial sustain a conviction guilt points only to defendant’s but also ent evidence that not theory negates any or innocence. reasonable
Opinion of the Court Evidence—Tracking-Dog Evidence —Admissibil- 1. Law — Criminal ity Proper— Foundation. Tracking-dog criminal cases where a is admissible in evidence (1) showing proper the handler foundаtion is laid (2) dog; dog qualified accurate is trained and to handle (3) humans; tracking dog placed on the trail where (4) been; culprit to have circumstances indicate tracking occurred. had not become stale when the trail Evidence—Admissibility—Preserving 2. Criminal Law — Question. precludes appellate object of evidence Failure to to the admission review. Based In-
3. Criminal Law —Evidence—Inferences—Inference ference. basing nothing inherently wrong or erroneous in a valid
There is inference; by actually meant a valid what is upon an inference that an inference cannot be based statement which is cannot be based is that an inference merely conjecture speculative or which raises uncertain or or possibility. Part, J. R. M. Part Concurrence Dissent Based on In- 4. Criminal Law —Evidence—Inferences—Inference ference. impermissible. Pyramiding of inferences is Upon an In- 5. Criminal Law —Evidence—Inferences—Inference ference. be abandoned an inference” rule cannot
The "no inference complex concept nature simpler to the is unsuitable because because, evidentiary questions in certain involved and Opinion op the Court cases, deprive right abandonment would a defendant of his proven beyond have each element of the crime a reasonable doubt. 6. Criminal Law —Prosecutors—Evidence—-Circumstantial Evi- op dence —Burden Proof. рrosecution, to obtain a conviction circumstantial evi- dence, present points only must evidence that not to defend- guilt negates any theory ant’s but also reasonable of innocence. Appel- Cummins,
Kathleen M. Assistant State appeal. Defender, late for defendant on J., Before: D. F. P. and R. M. Maher and Walsh, Beasley, JJ. Defendant, J. Orsie,
Beasley, Billie Joe jury, attempt- convicted one, under count ing to break or enter a safe with intent to commit larceny in violation of MCL MSA 28.799 wilfully and, maliciously two, under count *3 burning in violation of MCL 750.73; MSA one, 28.268. Under count he was sentenced to years prison not less than 10 nor more than 15 and, two, under count he was sentenced to not less years years, than 6 8 months nor more than 10 concurrently. appeals sentences to run right, raising He as of require two issues which he claims reversal.
First, defendant claims there was no sufficient
tracking-dog
foundation
which to admit
evi-
majority
dence. In
igan
view,
accordance with the
Mich-
tracking-dog
admits
But,
evidence.1
four con-
precedent
ditions
must be satisfied before such
1)
They
necessary
evidence is admitted.
are:
it is
qualified
show that
dog;
the handler
is
to handle the
2)
dog
it must be shown that the
was trained
3)
tracking
necessary
and accurate in
humans;
it is
1People Harper,
(1972);
to show that was on the trail where 4) culprit was; circumstances indicate that the necessary it to show that the trail had not tracking become stale when the occurrеd.2 lacking Defendant claims foundation was as to dog’s training accuracy tracking hu- mans. support
Review of the record tends to defend- objection However, ant’s assertion. no was made at respecting qualifications trial tracking dog either the are, or his owner-trainer. We concerning therefore, left without evidence experience tracking dog and his owner- objection perhaps trainer. made, Since no qualifica- defense counsel wаs satisfied to their right object. and, thus, tions waived his object pre- Failure admission of evidence appellate question cludes review; the is deemed preserved appellate not review.3 improper 28.1096, Under MCL MSA ad- reversing mission of evidence not a basis for granting a new trial unless "after an examination appear affirmatively of the entire it cause shall complained the error of has resulted in a miscarriage any justice”. In this there was not injustice аdmitting tracking-
manifest dog testimony evidence. The indicated visually officer could follow the tracks the snow of shoes similar to those worn defendant. The print shoes left a distinctive in the snow which fully testimony. described in the The trail led from the location of the crime to the basement of apartment building ap- where defendant was *4 prehended ledge. Thus, hidden on while the tracking-dog may evidence be described as cumula-
2People Harper, supra; People Norwоod, supra. v v 3People Miller, (1969). App 647; v 16 Mich 83 Opinion op Court overwhelming proofs tive, against its addition to miscarriage did not constitute defendant justice. the circumstantial claims Defendant also piling him convict constituted used the same evidence. based on inference inference on People Atley.4 support, As cites In Atley,5 "no indicated in concept at best. is a difficult inference” doctrine pay lip supra, Atley, continues Court the generally "no infer- discredited to the now service terminology. Indication of an inference” ence repute held, is is this doctrine ill Wigmore following on Evidence:6 from an 'inference suggested that "It was once permitted, that a fact desired i.e. not be inference’ will be established circumstantially must itself used to be re- evidence; suggestion has been and this testimonial Courts, actually sometimes en- and peated by several omitted.) (Footnotes forced.” rule; If there nor can be. suсh orthodox "There no prose- were, adequately single trial could be hardly * * * daily instances In these and innumerable cuted. inference, yet no Court up build we (until times) thought forbidding very ever modern it.” expressed Eaves,7
A
similar view
citing
approval.
104-105, which
5 ALR3d
with
states:
legal
presumptions
"The discussion of the
effects
cloudy
as much
perhaps
inferences has evoked
(1974).
298; 220
392 Mich
NW2d 465
298, 315;
thinking and terminology confusion of any other area of law. origin against "The bаsing the so-called rules an inference an a presumption inference or obscure,
presumption is applications but statements and appeared and, early reports thereof in the despite the legal almost unanimous criticisms scholars and of gone those courts which have length, into the any * matter at ** amazing the 'rules’ have vitality, shown .” (Footnotes omitted.) Atley, convicted defendant of three conspiracy marijuana, one, counts; two, tо sell possession marijuana, three, unlawful un- marijuana. judge lawful control of The trial va- cated and possession dismissed Convictions for unlawful marijuana
and unlawful control of
conspiracy
reduced the sentence on the
conviction.
Supreme
saying
The
Court reversed the conviction
it was not "a fair inference” to infer the ultimate
conspiracy
acquisition.8
joint
fact of
to sell from
underlying theory
of the cases that use the no
terminology
inference
is well and
accurately
People Helcher,9
stated
which cites
quoted
an often
Indiana case as follows:
"
actually
'What
meant
the statement
found in
cases,
many
an inference cannot be based
inference,
that an
cannot
be based
evidence which
speculative
is uncertain or
or which
conjecture
merely
raises
possibility.’
Shutt v State
(117
(1954),
892, 894),
233 Ind
quoted approv-
NE2d
ingly
App
v Eaves
4 Mich
457.”
(Footnote omitted.)
Similarly,
suggested
while we exercise the caution
386, 390;
upon means that a conviction As inference.’ rarely justified by could be *6 rule is evidence circumstantial not that an omitted.] how [citation reasonable, inference, is to matter no turn, it, depends another reasona- rejected if be ble merely inference; is whether thе question the rather inferences, evidence, when including reasonable total put that defendant jury conclude together sufficient warrant is guilty a reasonable doubt. beyond enough pieces jigsaw puzzle of a If omitted.] [Citations though may even together subject the be identified fit some case finding beyond ant Reviewing lacking. the evidence in this pieces are whole, warranted in jury as a we think the picture the of defend- a reasonable doubt Dirring.” abandoning prefеrence express short, for
In terminology upon an inference the no inference misleading and uncer- believe it to be because we tain of nothing inherently meaning. There basing wrong or erroneous in a valid indicating, In we do not a valid inference. so precedents acting contrary consider that we are by Supreme are, the Court which established binding; contrary, course, on the we are consistent the of those decisions. with substance objections by In this no wеre made defend- that ant at trial to the circumstantial guilt. jury of his Neither does de- convinced appeal objections should that fendant claim trial been made at trial and sustained have Ed 2d 83 People 328 F2d 12 L Ed Atley, 2d 1052 supra, pp (CA 1, 1964), 315-316, reh den, cert 2.n 379 US den, 874; US 85 S Ct 1003; S Ct L Opinion Court court. No motion for directed verdict was made completion trial, defendant at either on prosecutor’s proofs subsequent to both sides resting. request jury No was made for instruc- advising they permit- tion that were not pile ted to one inference another. Neither objection made in the trial court to the trial jury. court’s instruction to the this As Court Horowitz,12 indicated most arson cases are based circumstantial affirming evidence. in Horowitz, a conviction this Court said: bearing
"As evidence upon the opportunity and mo- blaze, tive of defendants to set prosecutor following introduced the facts: that was of from secured the outside and there was no evidence premisеs breaking-in; that defendants were on the not long conflagration began; before the it would have easy fire, been set although defendants not physically present, by device; timing means of a rent; defendants they owed three months were *7 Michigan Department indebted the of Revenue for tax; sales that defendants owed gas the com- $650 $40,000 pany; and that defendants carried in fire insur- ance.” simply,
Stated
the issue here was
is:
the circum-
stantial evidence sufficient for the
to find
guilty beyond
defendant
a reasonable doubt? police
this
the evidence indicates that a
coming
officer saw smoke
out of
duct
a ventilation
Kentucky
building
Sturgis
in a
Fried Chicken
near
shortly
January 15,
sometime
before
a.m. on
manager
1976; that firemen and the assistant
of
building
the
called;
were
that
the
had
previous night;
been secured around 9:20 the
that
App 151, 157;
lv
den
on black ing his An officer from the State and also on shoes. comparison that a Police Crime Lab testified gloves with found on the shoes and substance samples taken from the the safe insulation Kentucky indicated that Fried Chicken safe source. come from the same two could have paper found on A of K-Mart matches was book testi- his arrest. There was defendant’s at kept mony that a of K-Mart matchbooks was box Kentucky Fried Chicken office. in a desk There was evidence that been rifled
the desk had paper partially A burned thief-arsonist. match was in the safe. That match was found compared found on with the matches tested person. testimony that defendant’s There was come from match found in safe could have carrying when arrested. matchbook defendant was attempting respect to the conviction With injure to commit with intent break or safe *8 larceny contrary 28.799, the to MCL MSA language here, is: relevant of the statute insofar as People v Orsie Opinion op the Court "Any person who, with intent to commit crime of * * * larceny, attempt break, burn, shall up to blow or * * * injure safe, otherwise or destroy any any in * ** shall, building whether he succeeds or fails in the * * * perpetration of larceny such guilty felony be ." * * *
From the that the safe had been testimony moved, that the safe had been damaged so make a hole the upper left-hand corner of the big safe enough to reach to the money tray left, where the cash had been a valid inference arises that attempt had been made to break into the safe.
From the testimony manager assistant there was approximately in currency $100 (bills) and in coin in the safe he $60 when locked it and that when he damaged observed it its condition around or after 5 a.m. the next morning, none in coin and currency $160 was in the safe, a valid inference arises someone had broken into the safe with intent to commit lar- ceny.
From the testimony tracks led snow from the building where the safe was to the base- ment apartment where defendant hidden with ledge leg hanging his down and with a containing pair box a roll of bills of gloves ledge located about from the three feet was, where defendant a valid inference arisеs that defendant was the attempted who had larceny. into the break safe with intent commit evidence, con- detailing Without the other support clude that there was sufficient *9 App 42 Opinion of the Court 750.531; MSA under MCL defendant’s conviction 28.799.13 for arson under respect the conviction
With 28.268, 750.73; question by the raised MCL MSA The statute under defendant has more substance. charged provides: defendant which any burns wilfully maliciously or "Any person who thereof, or contents property, other reаl the or * * * * * * felony guilty shall be of a of burn contained definition statutory 28.266, as follows: MCL MSA chapter mean in this shall as used "The term 'burn’ to, doing the setting any act which results fire or fire, counseling, inducing, per- aiding, starting a or or do such act acts.” suading procuring another to that, based expert testified Police fire The State five the subject premises inspection his sepa- incident, had been two there after days manager’s in the building; one in the rate fires rear, storage area аt office and other agent. a human ignition was caused and that placed had been He the burned said paper burning no there was fire because prior floor ignition of concluded He papers. underneath his examina- agent human because fires a materials, and materials tion of burned all had and origins area fires’ had been of the areas burning and of the subjected been no occurred, revealed building where the fires had ignition. other source of in- testimony
Thus, expert this uncontroverted (observation the physical cluded direct evidence facts) and circumstantial conditions (valid expert). a qualified inferences by Ferguson, 230 NW2d Opinion of the^,Court testimony
Also, there was that in the safe were paper toweling bits found of brown burned paper burned arrested, match. When paper had matchbook with some of the matches missing and K-Mart matchbook cover. Defendant cigarette lighter also had on his lighter prosеcu- However, no had fluid. while the expert said tor’s the match found the safe could have come from the book of matches taken from *10 say defendant, he it was unable to did come from that book. totality
Thus, the issue is whether this of evi jury dence is sufficient for a to find defendant guilty of 750.73; arson under MCL MSA 28.268. Compared supra,14 Horowitz, to the circumstantial stronger, strong evidence is but evidence of lacking. People motive found Horowitz is In v perpetration Belcher,15 which is a murder оf arson this Court found credible evidence sufficient find of to all the elements established beyond a reasonable doubt. job judgment here
Our
is not to substitute our
only
jury;
for that of the
review
decide
sufficient,
whether
there was
credible evidence
which,
believed,
if
would
of
establish the elements
the offense.16
Supreme
Smock,17
Court found
14
App
157;
(1971),
37 Mich
753
whether, 28.266, under MCL MSA 750.73 28.268 guilty showing can be found an aider and abetter without guilty principal, the Court found that there was sufficient evidenсe to support jury against guilty verdicts of the defendants in arson case though linking even there was no direct with the defendants starting actual a fire. App 42 Maher, Partial R. M. J. concurrence guilty of arson evidence to sustain sufficient appear carry did not verdict inferences present greater weight those here. than was sufficient evidence there We conclude that supported which, believed, verdict here, if guilty of arson.
Affirmed. J.,
D. F. P. Walsh, concurred. (concurring dissenting рart; M.R. J. part). I defendant’s conviction would affirm attempting enter a safe with intent to break or agree majority, larceny. with the I cannot commit however, was sufficient evidence there wilfully maliciously burn- convict defendant of building. ing a presence in the was infer-
Defendant’s
footprints leading
that build-
to and from
red from
ing.
footprints,
followed,
when
The tracks of those
apartment building
where defendant
led to
hiding
worn
in the basement. The shoes
discovered
pattern
similar
on their soles
defendant had a
*11
money
in
A box
tracks
the snow.
of
to the
found near
hiding
place
the
defendant was
and
insulation
found
his
basement
safe
gloves.
allegedly
and
on his
shoes
that
It can be
from these circumstances
inferred
building.
inference is
was in the
The
It
is not
drawn from circumstantial
evidence.
speculative
facts,
but
based
uncertain
permissi
upon proven
thus
The
is
facts.
People
457, 464; 145
Eaves,
v
4 Mich
ble.
(1966).
NW2d
however,
arson,
In order to convict defendant
building
in
and
infer
he was
thе
must
person could
the
found on his
matches
then
People v Orsie
Partial concurrence
R. M.
J.
have come from the same book as those found at
after
the fire. Then we must
infer
that defendant
started
fire. We draw farther
away
proven
and farther
from
fact and move into
speculation
possibility.
the realm of
Such a
pyramiding
impermissible. People
of inferences is
Atley,
v
It defendant of the to be proved guilty beyond a reasonable doubt. McGregor, App 397; mаjority simply holding The has abandoned the People Atley, supra. stating While it suggested Atley exercises using caution in when language Dirring in States, v United (CA 1964), practice majority 1, F2d 512 does disregards language Atley not. It which Dirring states that did not even involve an infer- ignores inference, ence it the asser- Atley Dirring language, tion in that "the in its clearly inadequate.” form, unconditional is 316, Mich at n 2. majority
The finds the no misleading inference standard to be and uncertain meaning. Dirring, Yet the statement majority finds instructive”, "clear and that "if enough pieces jigsaw puzzle together of a fit subject may though pieces be identified even some lacking” expressly disapproved Atley are being subjective proper "too a view to establish a jury may instruction or to decide whether a case go notwithstanding to the or be directed verdict”. 392 Mich at n 2. is, no inference an inference rule concept.
indeed, a difficult But that is no to to reason majority only it, abandon as the too anxious simpler concept complex do. A is unsuitable to the *12 App 56 83 42 Mich M. J. Partial concurrence R. question evidentiary of here involved.
nature concepts times, must, deal with difficult Courts at opt than their abandonment. In cases rather for abandoning concept present one, as the such protection loses the of his means right proved guilty each to be of element beyond doubt. crime a reasonable impermissible pyramiding of Aside from the upon inference, defendant’s conviction separate It is for arson under standard. fails prosecution incumbent to show that there on theory possible will, is no innocent without People reason, accord with the facts. v violation (1884), People Millard, Spann, 18 562 v Mich NW App 444; circumstantial order evidence, obtain conviction present prosecution must guilt only points that not to defendant’s but also negates any theory of Peo reasonable innocencе. ple Davenport, v 197 NW2d (1972), People Wingfield, App 161; Mich v Talley, NW2d 239; 240 prosecution negate did In this not every theory There is a reasonable of innocence. possibility reasonable the matches found defendant’s matches did not come from the book building. There found burned possibility likewise reasonable that defendant The did not use the start fire. matches to possibilities comprising theory of defendant’s negated by prosecution. not innocence were evidence was insufficient circumstantial support finding beyond doubt a reasonable guilt. Talley, supra, 243- at defendant’s 244. I would reverse defendant’s conviction arson.