People v. Watts , 133 Mich. App. 80 ( 1984 )

133 Mich. App. 80 (1984) 348 N.W.2d 39

PEOPLE
v.
WATTS

Docket No. 71016.

Michigan Court of Appeals.

Decided March 21, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph P. Kwiatkowski, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.

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

Before: R.M. MAHER, P.J., and R.B. BURNS and J.G. ROSKOPP,^[*] JJ.

J.G. ROSKOPP, J.

After a jury trial, defendant was convicted of receiving and concealing stolen property of a value of greater than $100, MCL 750.535; MSA 28.803. Defendant was sentenced to be confined in a county jail for eight months and was ordered to pay attorney fees, witness fees, and jury fees within 18 months or to work an equivalent amount of time at some public service project to discharge the obligations at the rate of $4.00 per hour. He appeals as of right.

Defendant first argues that the trial court erred by holding that receiving and concealing stolen property is not a specific intent crime for which a defense of voluntary intoxication is available. Voluntary intoxication is a defense to a specific intent crime because such a crime cannot be committed where the intent did not exist; however, voluntary intoxication is not a defense to a general intent crime. People v Langworthy, 416 Mich 630, 637-638; 331 NW2d 171 (1982). An essential element of the crime of receiving and concealing stolen property is knowledge that the property was previously stolen. People v Lauzon, 84 Mich App 201, 207; 269 NW2d 524 (1978).

Some Michigan decisions have asserted that crimes for which an essential element is that some act be done "knowingly" are specific intent crimes. See People v Lerma, 66 Mich App 566, 569; 239 NW2d 424 (1976) (dicta), and People v American Medical Centers of Michigan, Ltd, 118 Mich App 135, 153; 324 NW2d 782 (1982) (Medicaid fraud). However, other Michigan decisions have examined the intent behind the legislative or judicial inclusion of an element of knowledge in order to determine whether the crime is a specific intent crime. People v Lane, 102 Mich App 11, 14-15; 300 NW2d 717 (1980) (carrying a concealed weapon); People v Gleisner, 115 Mich App 196, 198-200; 320 NW2d 340 (1982) (resisting and obstructing a police officer); People v Laur, 128 Mich App 453; 340 NW2d 655 (1983) (using a vehicle without authority but without an intent to steal). In Lane and Laur, the Court reasoned that the element of knowledge was necessary to prevent innocent acts from constituting the commission of a crime. Therefore, the element of knowledge in the crimes at issue in Lane and Laur was intended merely to require a general criminal intent, not to place the crimes in the category of specific intent crimes. We agree with the reasoning of Lane and Laur. Because the element of knowledge that the property was previously stolen in the crime of receiving and concealing stolen property was intended to prevent the innocent receipt or possession of stolen property from constituting the commission of the crime, receiving and concealing stolen property is not a specific intent crime.

Defendant points out that LaFave and Scott, Criminal Law, § 93, p 690 states that voluntary intoxication is a defense to receiving and concealing stolen property. However, LaFave and Scott, supra, § 45, p 344, also reject the distinction between general and specific intent crimes. In People v Langworthy, supra, pp 639-642, the Court considered scholarly criticism of the distinction, including that of LaFave and Scott, but declined to abandon it.

Defendant also argues that the trial court erred by permitting the owners of the stolen property to testify as to its value without a prior showing of their expertise in evaluating such property. We reject this argument, because an owner is qualified to testify as to the value of his property unless his evaluation is based on personal or sentimental value. People v Clemons, 91 Mich App 68, 75; 282 NW2d 838 (1979). The testimony of the owners here showed that their evaluation was not based on personal or sentimental value.

Defendant also argues that his sentence was invalid. A court may only require a convicted defendant to pay costs where such a requirement is expressly authorized by statute. People v Wallace, 245 Mich 310, 313; 222 NW 698 (1929). Because defendant was not fined, the assessment of costs provisions of the conditional sentence statute, MCL 769.3; MSA 28.1075, are not applicable. See People v Tims, 127 Mich App 564; 339 NW2d 488 (1983). Similarly, because defendant was not placed on probation, the assessment of costs provision of the probation statute, MCL 771.3; MSA 28.1133, are not applicable.

Although the Court in Tims vacated the assessment of costs, we believe that the better result where part of the sentence is void is to remand the case to the trial court for resentencing.

Affirmed in part, reversed in part, and remanded for resentencing. We retain no jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.