People v. Jackson , 42 Mich. App. 391 ( 1972 )

Bronson, J.

Defendant was convicted by a jury verdict of larceny in a building. MCLA 750.360; MSA 28.592. He was sentenced to serve a prison term of 2-1/2 to 4 years. Defendant challenges the validity of this conviction, claiming that there was insufficient evidence to support a finding of his participation in the crime charged.

The nature of the issue raised requires a longer statement of facts than usual. At approximately noon on April 16, 1970, a man entered the Stadium Hardware Store in Ann Arbor, Michigan, and talked to the co-owner about purchasing some casters. During this conversation a second customer entered the store and went to the paint department at the rear of the store. Upon a suggestion by the first customer the co-owner went to the paint department to assist the other customer. While he was so occupied, the first customer left the store. Thereafter the second customer also left.

A short time later, the co-owner discovered that a cashbox containing approximately $140 in cash which was normally kept on a shelf under the counter was missing. The co-owner could not identify either of the two men he had waited upon immediately prior to the discovery.

A witness in the vicinity of the hardware store at approximately noon observed two men enter a silver grey Cadillac with a black vinyl top bearing out-of-state license plates. He testified that one of the men "was concealing something under his coat”. The car was not hurriedly driven away but rather waited a few minutes during which a third man approached the car and entered the back seat.

On the same day between noon and 12:10 p.m., a meter maid for the Ann Arbor Police Department heard on her radio that a robbery had occurred at Stadium Hardware and that a silver Cadillac with a black vinyl top bearing out-of-state license plates might be involved. Since she had just ticketed such a car she radioed its location and continued to observe it until a patrol car arrived. Three men got into the car but were intercepted by a patrol car one block later. Defendant was an occupant in the car and was arrested for the crime charged.

At trial the people produced additional evidence indicating that the stolen cashbox was found in a rural area of town with defendant’s fingerprints thereon. Defendant offered exculpatory testimony attempting to explain his presence in the car and fingerprints on the cashbox. He stated that he was en route to a job interview in Detroit, for which purpose he had obtained a ride with the others. The trio stopped in Ann Arbor for the purpose of obtaining food and gas. While at a Marathon gas station defendant went into the restroom for approximately 15 minutes. When he came out he found the car parked down the street in front of a store waiting for him. As he entered the back seat he observed a grey metal box which he may have moved by his hands or feet. The trio then proceeded downtown to Kresge’s to find something to eat. Not finding anything they wanted to eat, they decided to leave. The others proceeded to the car while defendant attended the restroom, after which he rejoined them. As they proceeded to leave town they were arrested by the police.

Defendant claims that this evidence proves only that he was in the car and accompanied the others. He argues that the circumstantial evidence offered is as consistent with innocence as guilt. By way of explanation defendant states that although he may have touched the cashbox in the back seat he did not participate in the theft. He further opined that since he did not observe the others open the box, it must have been opened and discarded while he was in the restroom at Kresge’s store.

The circumstantial nature of the evidence in this case requires our allegiance to the jury’s function of fact-finding. We conclude that this question of whether there was sufficient evidence of defendant’s participation in the crime charged to send the case to the jury should be answered in the affirmative.

We cannot agree that the only evidence implieating defendant was as consistent with innocence as guilt. There are sufficient facts and inferences which support the jury’s verdict. This is not merely a fingerprint case in which the fingerprints fail to occur under such circumstances that they could only have been impressed at the time the crime was committed. Defendant’s attempt to answer how and under what circumstances his fingerprints were placed on the stolen money box created a question of fact to be resolved by the jury. People v Miller, 301 Mich 93 (1942); People v Hudson, 386 Mich 665 (1972); People v McIntosh, 6 Mich App 62 (1967). Defendant’s ability to persuade the jury that his alternative theory exculpating him from the crime was true depended upon his credibility. Evaluations of such credibility likewise fall exclusively within the purview of the jury. People v Yancy, 33 Mich App 352 (1971); People v Stewart, 36 Mich App 93 (1971). Its failure to believe him should not be subject to challenge by a claim that there was insufficient evidence to send the case to it. ■

The jury’s disbelief may be attributed to the fact that defendant’s recitation of the sequence of events failed to provide sufficient time in which the crime could have occurred in his absence. This shortcoming, combined with a challenge to defendant’s credibility, the facts in evidence and the permissible inferences, constitute sufficient circumstantial evidence to be heard by the jury. People v Eaves, 4 Mich App 457 (1966); People v Williams, 11 Mich App 62 (1968); People v Ware, 12 Mich App 512 (1968). The jury’s function of determining credibility, resolving conflicts, and judging the validity of permissible inferences drawn from the facts at issue must be held inviolate. The fact that the present case is based upon circumstantial evidence should not lead us away from this principle. Defendant’s conviction should not be set aside.¹

Affirmed.

Lesinski, C. J., concurred.

1 Cf. People v Fry, 17 Mich App 229 (1969).