People v. Flowers

186 Mich. App. 652 (1990) 465 N.W.2d 43

PEOPLE
v.
FLOWERS

Docket No. 122798.

Michigan Court of Appeals.

Decided December 17, 1990, at 9:15 A.M.

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Richard Thompson, Prosecuting Attorney, Michael J. Modelski, Chief, Appellate Division, and Thomas R. Grden, Assistant Prosecuting Attorney, for the people.

Law Offices of Louis Demas, P.C. (by Randy E. Davidson), for the defendant on appeal.

Before: DOCTOROFF, P.J., and GRIFFIN and REILLY, JJ.

PER CURIAM.

Defendant pled guilty of armed robbery, MCL 750.529; MSA 28.797, and was sentenced to five to ten years' imprisonment. Defendant appeals as of right and argues that his conviction violates the prohibition against double jeopardy because defendant had already been convicted of possession of the same property stolen during the armed robbery. We disagree and affirm.

The incident for which defendant was convicted occurred on March 21, 1989, when defendant committed an armed robbery of an individual in the City of Ferndale and stole the victim's vehicle. The next day, defendant was apprehended and charged in Wayne County under MCL 750.535(1); MSA 28.803(1) with possession of stolen property. The stolen property was the vehicle taken in Ferndale. Defendant argues that his conviction in Wayne County of possession of stolen property bars his subsequent conviction in Oakland County of armed robbery because of the prohibition against double jeopardy.

In People v White, 390 Mich. 245, 258; 212 NW2d 222 (1973), the Court adopted the same-transaction test as the proper standard to be applied in examining a claim of double jeopardy. When a general intent crime is involved, the test to determine whether crimes arise out of the same transaction is whether the offenses are part of the same criminal episode and whether the offenses involved laws intended to prevent the same or similar harm or evil, not a substantially different kind of harm or evil. Crampton v 54-A Dist Judge, 397 Mich. 489, 501-502; 245 NW2d 28 (1976). Armed robbery is a specific intent crime. People v Ramsey, 23 Mich. App. 11; 178 NW2d 105 (1970). Possession of stolen property with a value greater than $100, however, is not a specific intent crime. People v Watts, 133 Mich. App. 80, 83; 348 NW2d 39 (1984). Hence, the same-transaction test is applicable here. We conclude that armed robbery and possession of stolen property on different days are not part of the same transaction and that the harm or evil to be prevented by the armed robbery statute, MCL 750.529; MSA 28.797, and by the statute that prohibits possession of stolen property, MCL 750.535; MSA 28.803, are substantially different. Under the same-transaction test, the prohibition against double jeopardy was not violated here. White, supra.

The federal test was set forth in Blockburger v United States, 284 U.S. 299; 52 S. Ct. 180; 76 L. Ed. 306 (1932). Under the Blockburger test, two separate offenses exist where each offense requires proof of at least one fact which the other does not. People v Wilson, 180 Mich. App. 12, 16; 446 NW2d 571 (1989). Defendant concedes that the prosecution for armed robbery survives the Blockburger test. Our analysis, however, cannot stop here. In Grady v Corbin, 495 U.S. ___; 110 S. Ct. 2084; 109 L. Ed. 2d 548 (1990), the United States Supreme Court adopted a new standard to be applied in examining a claim that successive prosecutions violate the Double Jeopardy Clause of the Fifth Amendment. The Court held:

[T]he Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted. [110 S. Ct. 2087; 109 L. Ed. 2d 557.]

The critical inquiry is what conduct the state will prove, not what evidence the state will use to prove the conduct. 110 S. Ct. 2093; 109 L. Ed. 2d 564. The inquiry regarding what conduct the state will prove is to be performed after the court determines that the offense survives the Blockburger test. Id.

Application of the Grady standard to the offenses before us indicates that double jeopardy was not violated. The conduct that constitutes the offense of possession of stolen property is possession. It is not necessary to prove the conduct of possession in order to establish any of the essential elements of armed robbery.

Affirmed.