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Docket Number

Docket No. 92333.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division Research, Training and Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for appellee. Sobel, Colton Giovanni, P.C. (by Michael W. Colton), for appellant.

Judges

PER CURIAM.

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Smart Summary

Case Summary: In re Vaughn (Michigan Court of Appeals, Dec. 1, 1987)

Factual and Procedural Background

Following a bench trial in probate court, a juvenile respondent was found guilty of assault with intent to commit unarmed robbery (MCL 750.88; MSA 28.283) and possession of a short-barreled shotgun (MCL 750.224b; MSA 28.421(2)). The respondent was committed to the Department of Social Services for placement.

The underlying incident occurred on December 13, 1985, when John Poirier was assaulted by the respondent and two other youths in front of Spud's Bar in Detroit. A police officer observed the incident and arrested the three youths. Upon searching them, the officer found that each boy was concealing a different part of a double-barreled, sawed-off shotgun: one had the butt and handle of the firing mechanism, a second had the form of the mechanism, and the respondent had the barrel.

The probate court concluded that the three pieces, when assembled, constituted a single shotgun and, applying the aiding and abetting statute (MCL 767.39; MSA 28.979), found each youth guilty of possession of a short-barreled shotgun. On appeal, the respondent disputed the possession finding on the basis that none of the boys possessed the whole shotgun but only individual parts.

Legal Issues Presented

Whether possession of separate, disassembled parts of a shotgun by different individuals can be treated as possession of a single short-barreled shotgun for purposes of the possession statute.
Whether an aiding and abetting theory can be applied to hold a defendant criminally liable for possession of a weapon when no one person actually possessed an operable firearm (i.e., whether aiding and abetting may be used to "bootstrap" liability where no underlying crime of possession by another occurred).

Arguments of the Parties

Respondent's Arguments

The respondent argued on appeal that none of the youths possessed a whole short-barreled shotgun; rather, each possessed different parts of a disassembled shotgun, and the individual parts alone were incapable of firing a dangerous projectile.

The opinion does not contain a detailed account of the appellee's or prosecution's counter-arguments within the text provided.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Mann, 395 Mich. 472, 478; 236 N.W.2d 509 (1975)	Illustrates aiding and abetting principle: prosecution must prove that an underlying crime was committed by someone and that the defendant committed or aided and abetted that crime.	Used to state the general requirement for aiding and abetting liability (that an underlying criminal act must have been committed by someone).
People v Brown, 120 Mich. App. 765, 770; 328 N.W.2d 380 (1982), lv den 417 Mich. 991 (1983)	Applied with Mann to the aiding and abetting principle described above.	Cited as authority supporting the formulation of the aiding and abetting rule the court applied.
People v Paige, 131 Mich. App. 34, 39-40; 345 N.W.2d 639 (1983)	Applied with Mann and Brown regarding the aiding and abetting framework.	Cited to support the court's statement of the prosecution's burden under aiding and abetting law.
People v Poindexter, 138 Mich. App. 322, 333; 361 N.W.2d 346 (1984)	Example of panels holding that operability of a weapon is irrelevant where a defendant is charged with felony-firearm or carrying a concealed weapon.	Referenced to distinguish contexts in which operability has been held irrelevant from the present case where the gun was completely disassembled among different persons.
People v Brooks, 135 Mich. App. 193, 199; 353 N.W.2d 118 (1984)	Another example of panels holding operability irrelevant in certain firearm-related charges.	Referenced for the same distinguishing purpose as Poindexter.
People v Sanchez, 98 Mich. App. 562, 567; 296 N.W.2d 312 (1980)	Another cited case for the proposition that operability may be irrelevant in some firearm offenses.	Referenced by the court to explain prior case law on operability in different statutory contexts.
People v Jiminez, 27 Mich. App. 633; 183 N.W.2d 853 (1970)	Also cited among cases holding operability irrelevant in particular firearm-offense contexts.	Referenced alongside other cases to distinguish those holdings from the present facts.
People v Stevens, 409 Mich. 564; 297 N.W.2d 120 (1980)	Cited by the court with the abbreviation "Cf." (used for comparison).	Referenced for comparative purposes in the court's discussion of whether disassembled parts constitute a "firearm" under the statute.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps, based solely on the text of the opinion:

Confirmed the factual findings from the probate bench trial: three youths assaulted a victim, and each youth was found on arrest to be carrying different parts of a sawed-off double-barreled shotgun (butt and handle of the firing mechanism; the form of the mechanism; and the barrel).
Recognized the legal framework for aiding and abetting liability: while a principal's conviction is not necessary to convict an accessory, the prosecution must nevertheless prove that an underlying crime was actually committed by someone and that the defendant committed or aided and abetted that crime (citing People v Mann and related authority).
Analyzed the statutory definition of "firearm" and shotgun: the court noted statutory definitions indicating a firearm is "any weapon from which a dangerous object may be shot or propelled" (citing MCL provisions set out in the opinion).
Applied the statute to the facts: because the shotgun was completely disassembled and the separate parts were in the possession of different individuals, each part alone was incapable of firing a dangerous projectile; therefore, the individual parts did not constitute "firearm[s]" within the meaning of the statute.
Distinguished prior panel authority concerning operability: the court acknowledged that panels of the Court of Appeals have held operability irrelevant in the context of felony-firearm or carrying a concealed weapon charges, but treated those authorities as inapposite to the present circumstance where no single person possessed an operable firearm.
Rejected an aiding-and-abetting bootstrap: the court concluded it could not attribute the other youths' possession of their retained parts to respondent so as to convict him of possession of a whole shotgun when, in fact, no underlying possession offense had been committed by any of the youths. Doing so would impermissibly bootstrap liability.
Noted an alternative charge that could have been brought: the opinion observes that the youths could have been charged with conspiracy to possess a short-barreled shotgun (MCL 750.157a; MSA 28.354(1)), but that is a different offense than the possession charge on which the probate court convicted.

Holding and Implications

HOLDING: The Court of Appeals reversed in part and affirmed in part.

Reversed (in part): The probate court's finding that the respondent was guilty of possession of a short-barreled shotgun was reversed. The appellate court held that the separate, nonoperable parts in the separate youths' possession did not constitute a "firearm" for purposes of the possession statute, and aiding and abetting could not be used to create liability where no one actually possessed an operable firearm.
Affirmed (in part): The court affirmed the respondent's conviction for assault with intent to commit unarmed robbery.

Implications: The direct effect is that the respondent's possession conviction was vacated while the assault conviction and associated commitment remain in place. The court observed that the youths could have been charged with conspiracy to possess a short-barreled shotgun, but the opinion does not announce any broader rule beyond the specific holdings explained above. The opinion does not state that it establishes a new precedent beyond its application to these facts.

Citation notes (from the opinion): Docket No. 92333; Michigan Court of Appeals; Decided May 1, 1987; leave to appeal denied, 428 Mich. ___.

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In re VAUGHN

PER CURIAM.

Following a bench trial in probate court, respondent, a minor, was found guilty of committing the offense of assault with intent to commit unarmed robbery, MCL 750.88; MSA 28.283, and possession of a short-barreled shotgun, MCL 750.224b; MSA 28.421(2). Respondent was committed to the Department of Social Services for placement.

On December 13, 1985, John Poirier was assaulted by respondent and two other youths in front of Spud's Bar on Gratiot in Detroit. Detroit police officer Dennis Griffiths observed the incident while in an unmarked car. Griffiths arrested the three youths and upon searching them discovered that each boy was concealing a part of a double-barreled, sawed-off shotgun. One boy had the butt and handle of the firing mechanism, the second had the form of the mechanism, and respondent had the barrel. The probate court concluded that since the three pieces assembled constituted a shotgun, under the aiding and abetting statute, MCL 767.39; MSA 28.979, each of the youths was guilty of possession of a short-barreled shotgun. Respondent disputes this finding on appeal on the basis that none of the boys possessed the whole shotgun but, rather, only pieces of the shotgun.

We agree with respondent's argument. Although under an aiding and abetting theory conviction of a principal is not necessary to conviction of an accessory, the prosecution must prove that the underlying crime was committed by someone and that the defendant either committed or aided and abetted the commission of that crime. People v Mann, 395 Mich. 472, 478; 236 N.W.2d 509 (1975); People v Brown, 120 Mich. App. 765, 770; 328 N.W.2d 380 (1982), lv den 417 Mich. 991 (1983); People v Paige, 131 Mich. App. 34, 39-40; 345 N.W.2d 639 (1983).

In the instant case, none of the youths involved possessed a short-barreled shotgun. Rather, each possessed different parts of a disassembled shotgun which, without the other parts, were incapable of firing a dangerous projectile. We note that panels of this Court have held that the operability of a weapon is irrelevant in cases where a defendant is charged with felony-firearm or carrying a concealed weapon. See, e.g., People v Poindexter, 138 Mich. App. 322, 333; 361 N.W.2d 346 (1984); People v Brooks, 135 Mich. App. 193, 199; 353 N.W.2d 118 (1984); People v Sanchez, 98 Mich. App. 562, 567; 296 N.W.2d 312 (1980); People v Jiminez, 27 Mich. App. 633; 183 N.W.2d 853 (1970). However, a shotgun is a firearm, MCL 750.222(d) and (e); MSA 28.419(d) and (e), and a firearm is statutorily defined as "any weapon from which a dangerous object may be shot or propelled." MCL 8.3t; MSA 2.212(20), MCL 752.841; MSA 28.436(11). Where, as in the instant case, a firearm is completely disassembled, and the individual parts, which are in the possession of different individuals, are alone incapable of being fired, the individual parts do not constitute "firearm[s]" within the meaning of the statute. Therefore, none of the youths could be charged with possession of one shotgun. Cf., People v Stevens, 409 Mich. 564; 297 N.W.2d 120 (1980).

We do not believe that we can attribute to respondent the other youths' possession of the remaining parts of the shotgun so as to impose upon him criminal liability for possession of a whole shotgun. Using an aiding and abetting theory to do so where, in fact, no underlying crime has been committed by any of the others is bootstrapping which we will not allow in this case. Accordingly, we must reverse the probate court's finding that defendant was guilty of committing the offense of possession of a short-barreled shotgun. We do note, however, that the youths could have been charged with conspiracy to possess a short-barreled shotgun. MCL 750.157a; MSA 28.354(1). We affirm the finding of guilt on the charge of assault with intent to commit unarmed robbery.

Reversed in part and affirmed in part.

IN RE VAUGHN