People v. Gimotty , 216 Mich. App. 254 ( 1996 )

549 N.W.2d 39 (1996) 216 Mich. App. 254

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Donald J. GIMOTTY, Defendant-Appellant.

Docket No. 174635.

Court of Appeals of Michigan.

Submitted February 7, 1996, at Lansing. Decided April 9, 1996, at 9:05 a.m. Released for Publication June 11, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Thomas S. Richards, Assistant Prosecuting Attorney, for People.

State Appellate Defender, by P.E. Bennett, for defendant on appeal.

Before TAYLOR, P.J., and MacKENZIE and TALBOT^[*], JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of felony murder, M.C.L. § 750.316; M.S.A. § 28.548, fleeing a police officer with resultant serious bodily injury, M.C.L. § 750.479a(5); M.S.A. § 28.747(1)(5), conspiracy to commit first-degree retail fraud, M.C.L. § 750.356c; M.S.A. § 28.588(3) and M.C.L. § 750.157a; M.S.A. § 28.354(1), first-degree retail fraud, M.C.L. § 750.356c; M.S.A. § 28.588(3), and felonious driving, M.C.L. § 752.191; M.S.A. § 28.661. He was sentenced to life imprisonment for the felony-murder conviction, two to four years' imprisonment for the fleeing conviction, and one to two years' imprisonment for the conspiracy, retail fraud, and felonious driving convictions. Defendant appeals as of right. We affirm in part and vacate in part.

On July 24, 1993, Calvin Billingslea walked into a women's clothing store and fled with six dresses priced at $69 each. He then got into a gray Thunderbird driven by defendant.

A police pursuit ensued and, while being pursued in a high-speed chase, defendant failed to stop at a red light and struck another car. The driver of that car was seriously injured and her three-year-old passenger died as a result of the collision. Defendant testified that he was unaware that Billingslea planned to take the dresses or that the license plate on the Thunderbird had been taped over. According to defendant, Billingslea— who was on parole—slapped him on the side of the head and forced him to drive.

On appeal, defendant first contends that the trial court erred in denying his request to instruct the jury with regard to the defense of duress. The claim is without merit. It is well settled that duress is not a defense to homicide. People v. Etheridge, 196 Mich.App. 43, 56, 492 N.W.2d 490 (1992); People v. Moseler, 202 Mich.App. 296, 299, 508 N.W.2d 192 (1993); People v. Travis, 182 Mich.App. 389, 392, 451 N.W.2d 641 (1990). Nor was defendant entitled to a duress instruction with regard to the fleeing charge. To establish a duress defense, defendants must show, among other elements, that they faced threatening conduct of sufficient magnitude to create fear of death or serious injury in the minds of reasonable persons. See People v. Luther, 394 Mich. 619, 623, 232 N.W.2d 184 (1975). Here, defendant testified that Billingslea slapped him and ordered him to drive. This evidence does not establish that defendant's flight from the police was necessitated by conduct that would cause reasonable persons to fear death or serious bodily harm. Accordingly, we find no instructional error.

Defendant next contends that the charge of felony murder was invalid because retail fraud is not an enumerated felony within the felony-murder statute. We disagree.

M.C.L. § 750.316; M.S.A. § 28.548 defines felony murder as a murder committed during the perpetration of, among other things, "larceny of any kind." Larceny is the taking and carrying away of the property of another, done with felonious intent and without the owner's consent. People v. Malach, 202 Mich.App. 266, 270, 507 N.W.2d 834 (1993). Simple larceny and first-degree retail fraud are both defined in the Larceny chapter of the Penal Code. Compare Malach, supra. M.C.L. § 750.356; M.S.A. § 28.588 governs simple larceny and prohibits "larceny, by stealing, of the property of another...." (Emphasis added.) M.C.L. § 750.356c; M.S.A. § 28.588(3) provides in relevant part that a person who, "[w]hile a store is open to the public, steals property of the store that is offered for sale at a price of more than $100.00" is guilty of the felony of first-degree retail fraud. (Emphasis added.) The plain language of the first-degree retail fraud statute makes it clear that the Legislature intended the offense as a larceny offense. Accordingly, defendant was properly charged with felony murder.

Defendant also argues that he should not have been bound over on the felony-murder charge because when the murder occurred, he had reached temporary safety in his escape from the clothing store. This argument is premised on the principle that a murder committed while attempting to escape from or prevent detection of a felony is felony murder only if the murder is committed as part of a continuous transaction with, or is otherwise immediately connected with, the underlying felony. See People v. Turner, 120 Mich.App. 23, 28, 328 N.W.2d 5 (1982); People v. Oliver, 63 Mich.App. 509, 523, 234 N.W.2d 679 (1975); People v. Goree, 30 Mich.App. 490, 495, 186 N.W.2d 872 (1971). Here, defendant sped out of the store's parking area and onto Coolidge Road, where he was observed by another driver, who called the police on his car phone and then followed defendant until the police began their pursuit. Defendant was in the midst of a high-speed police chase when the victim was killed; he had not reached a place of temporary safety. We find no error.

Defendant next claims that the trial court erred in allowing the prosecutor to ask defendant on cross-examination whether he wanted to flee from the police because he was on probation, rather than because Billingslea was threatening him. According to defendant, this ruling was in violation of MRE 404(b), governing impeachment with evidence of other acts. However, relevant other acts evidence does not violate Rule 404(b) unless it is offered solely to show the criminal propensity of an individual to establish that he acted in conformity therewith. People v. VanderVliet, 444 Mich. 52, 65, 508 N.W.2d 114 (1993). Thus, other acts evidence is admissible whenever it is relevant on a noncharacter theory. Id. (Emphasis in original.) Here, the prosecutor's question was clearly intended to delve into defendant's motive for fleeing from the police, and not to call his character into question. Defendant's reasons for trying to elude the police were relevant and had been placed in issue by defendant during his direct examination. We find no abuse of discretion.

Defendant's final claim is that his convictions and sentences for both felony murder and the predicate felony of first-degree retail fraud violate his right against double jeopardy Const.1963, art. 1, § 15. Defendant is correct. People v. Passeno, 195 Mich.App. 91, 96, 489 N.W.2d 152 (1992); People v. Minor, 213 Mich.App. 682, 689-690, 541 N.W.2d 576 (1995). When a defendant is erroneously convicted of both felony murder and the underlying felony, the proper remedy is to vacate the conviction and sentence for the underlying felony. Passeno, supra, at p. 97, 489 N.W.2d 152. We therefore vacate defendant's conviction and sentence for first-degree retail fraud.

Affirmed in part and vacated in part.

NOTES

[*] Michael J. Talbot, 3rd Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.