People v. Patterson

212 Mich. App. 393 (1995) 538 N.W.2d 29

PEOPLE
v.
PATTERSON

Docket No. 168418.

Michigan Court of Appeals.

Submitted April 4, 1995, at Detroit. Decided June 2, 1995. Approved for publication July 27, 1995, at 9:00 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael R. Smith, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, for the people.

Jeanice Dagher-Margosian, for the defendant.

Before: CAVANAGH, P.J., and JANSEN and D.C. KOLENDA,^[*] JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of larceny over $100, MCL 750.356; MSA 28.588, conspiracy to commit larceny over $100, MCL 750.157(a); MSA 28.354(1), breaking and entering a building with intent to commit a larceny, MCL 750.110; MSA 28.305, and conspiracy to break and enter a building with intent to commit a larceny, MCL 750.157(a); MSA 28.354(1). Defendant subsequently pleaded guilty of being an habitual offender, third offense, MCL 769.11; MSA 28.1083. Defendant appeals as of right. We affirm in part, vacate in part, and remand.

Defendant's conviction arose from the theft of four baby goats. Defendant argues that the prosecutor abused his discretion by charging defendant with larceny over $100 instead of larceny of livestock, MCL 750.357a; MSA 28.589(1). The larceny of livestock statute provides:

Any person who shall commit the offense of larceny by stealing the livestock of another shall be guilty of a felony.

The term "livestock" shall apply to horses, stallions, colts, geldings, mares, sheep, rams, lambs, bulls, bullocks, steers, heifers, cows, calves, mules, jacks, jennets, burros, goats, kids, and swine. [Emphasis added.]

The prosecutor has broad discretion in determining under which of two applicable statutes a prosecution will be initiated. However, that discretion is not unlimited. Where two statutes prohibit the same conduct, the defendant must be charged under the more specific, most recently enacted statute. People v Robinson, 97 Mich. App. 542, 545-546; 296 NW2d 99 (1980).

The prosecutor contends that the goats in question were "show goats" and therefore more akin to personal property than livestock. However, the prosecutor's argument is not supported by the plain language of the larceny of livestock statute, which specifically addresses the larceny of goats. The larceny of livestock statute, enacted in 1943, is also more recent than the general larceny statute, which was enacted in 1931. Because the larceny of livestock statute is both more specific and more recently enacted than the general larceny statute, the prosecutor abused his discretion in charging defendant under the general larceny statute. Robinson, supra. We therefore vacate defendant's conviction under the general larceny statute and direct the trial court on remand to enter a conviction under the larceny of livestock statute.

Defendant also argues that his convictions of both larceny over $100 and breaking and entering with intent to commit the crime of larceny violate the prohibition against double jeopardy. However, breaking and entering is not a continuing offense. It is completed once the actor has entered the building. Any crime committed once inside the building is a separate act. People v Wise, 134 Mich. App. 82, 93; 351 NW2d 255 (1984). Thus, the prohibition against double jeopardy is not violated if a defendant is convicted of both larceny and breaking and entering. People v Lesperance, 147 Mich. App. 379, 385; 382 NW2d 788 (1985).

We vacate defendant's conviction of and sentence for larceny over $100, affirm defendant's other convictions, and remand to the trial court for entry of a conviction of larceny of livestock and sentencing in accordance with that conviction.

NOTES

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