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Docket Number

Docket No. 65213.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people. Patricia S. Slomski, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

Case Summary: PEOPLE v DAVIS, Docket No. 65213 (Mich. Ct. App. May 18, 1983)

Factual and Procedural Background

Following a bench trial on April 28, 1983, defendant Gary Douglass Davis was convicted of felonious assault, MCL 750.82; MSA 28.277, and felony-firearm, MCL 750.227b; MSA 28.424(2), and sentenced to consecutive terms of from one to four years and two years imprisonment. He appeals as of right.

The trial court's factual findings (quoted in the opinion) describe testimony that a 26-year-old female acquaintance who had been staying with defendant on the evening in question (November 10, 1981, near 6334 Mack Avenue) testified to an argument, that defendant smelled of alcohol, that he was "playing with a gun," that he miscalculated the chamber which resulted in pointing and clicking the gun in the direction of her head and it discharged, and that defendant provided a cloth to stop bleeding and called EMS. The trial court found that the people did not satisfy the burden for assault with intent to murder but did find felonious assault and possession of a firearm in the commission or attempt to commit a felony (felony-firearm).

Legal Issues Presented

Whether the trial court's findings of fact complied with GCR 1963, 517.1 (i.e., whether the findings were sufficiently detailed to show resolution of credibility issues and to reveal the law applied).
Whether the trial court's findings specifically identified the elements of felonious assault (a specific intent crime) and of felony-firearm, and whether remand is required for explicit findings on elements and on asserted defenses (intoxication and accident).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979)	Felonious assault is a specific intent crime requiring either intent to injure or intent to put victim in reasonable fear of immediate battery.	Court observes the trial court acknowledged felonious assault is specific intent but did not specifically find either alternative as required by Joeseype Johnson.
Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374, 397-398; 280 N.W.2d 793 (1979)	To prove felony-firearm, prosecution must show defendant carried or possessed the firearm during a felony or attempted felony.	Cited for the rule; court notes possession must be knowing and that the trial court failed to specify the elements in its findings.
People v Hunt, 120 Mich. App. 736; 327 N.W.2d 547 (1982)	Possession of a firearm must be knowing (in felony-firearm context).	Cited as authority that possession must be knowing; the trial court did not specifically find this element.
People v Yarbrough, 107 Mich. App. 332; 309 N.W.2d 602 (1981)	Possession must be knowing (supporting authority).	Cited in support of the knowing-possession requirement; trial court failed to state elements.
People v Eaton, 413 Mich. 862 (1982)	GCR 1963, 517.1 requires full findings to show how the trial court resolved credibility issues and conflicts in the evidence.	Used to support requirement that findings show resolution of credibility issues to facilitate appellate review.
People v Bruce Ramsey, 89 Mich. App. 468; 280 N.W.2d 565 (1979), lv den 407 Mich. 861 (1979)	Findings must reveal the law the trial court applied.	Cited to support the proposition that findings must reveal the legal basis applied by the trial court.
People v Kelly, 122 Mich. App. 427; 333 N.W.2d 68 (1983)	Full findings are necessary to facilitate appellate review.	Cited to emphasize appellate-review necessity of full findings under GCR 517.1.
Wolfe v Howatt, 119 Mich. App. 109; 326 N.W.2d 442 (1982)	Full findings facilitate appellate review.	Cited in support of the necessity for detailed findings.
People v McShan, 120 Mich. App. 496; 327 N.W.2d 509 (1982)	Remand is required where the trial court failed to mention the specific intent element in felonious assault.	Cited as precedent remanding for failure to state the specific intent element; court relies on this to mandate remand here.
People v Triplett, 414 Mich. 898; 323 N.W.2d 7 (1982)	Supporting authority related to need for explicit findings (cited alongside McShan).	Listed with other authorities as further support for remand when elements are not stated.
People v Rae, 103 Mich. App. 293; 302 N.W.2d 845 (1980)	Supporting authority regarding insufficiency of generalized findings.	Included among cases supporting remand where elements are not explicitly found.
People v Jackson, 390 Mich. 621, 627, fn 3; 212 N.W.2d 918 (1973)	Exception: a judge's failure to find facts does not require remand where it is manifest he resolved the issue and further explication would not facilitate review (example: identification-only issue).	Court acknowledges the exception but holds it is limited to resolving credibility issues and does not excuse failure to find each element of a crime.
People v Vandergrift, 107 Mich. App. 555; 309 N.W.2d 665 (1981)	Illustrative of application of the Jackson exception.	Cited in discussing the limited scope of the Jackson exception.
People v Jackson, 81 Mich. App. 18; 264 N.W.2d 101 (1978)	Earlier instance where court failed to remand on a felonious assault general verdict of guilty.	Court declines to follow this earlier Jackson decision, noting criticism and that it predates Joeseype Johnson.
People v Smith, 101 Mich. App. 110; 300 N.W.2d 470 (1980)	Criticism of the earlier Jackson (81 Mich. App. 18) decision.	Cited as criticizing the earlier Jackson ruling; used to justify declining to follow that case.
People v Hale, 411 Mich. 1002; 308 N.W.2d 166 (1981)	Joeseype Johnson is to be applied retroactively.	Cited to support retroactive application of Joeseype Johnson.
People v Norwood, 123 Mich. App. 287; 333 N.W.2d 255 (1983)	Example of panels addressing intent characterization post-Joeseype Johnson (mentioned for procedural context).	Cited in discussion of panels' prior positions and application of Joeseype Johnson.
People v Ideis, 101 Mich. App. 179; 300 N.W.2d 489 (1980), lv den 411 Mich. 854 (1981)	Example of pre-Joeseype Johnson panels treating felonious assault as general intent.	Cited to show historical variance in panels' treatment of felonious assault.
People v Jordan, 51 Mich. App. 710; 216 N.W.2d 71 (1974)	Example of earlier panel ruling felonious assault as general intent.	Listed as an example of pre-Joeseype Johnson rulings.
People v Rohr, 45 Mich. App. 535; 206 N.W.2d 788 (1973)	Example of earlier panel ruling felonious assault as general intent.	Listed as an example of earlier panel decisions.
People v McKeever, 123 Mich. App. 533; 332 N.W.2d 596 (1983)	On remand, trial courts should consider and make findings on intoxication and accident defenses.	Cited to instruct that the trial court on remand must specifically consider intoxication and accident defenses.
People v Stanford, 68 Mich. App. 168, 174-175; 242 N.W.2d 56 (1976)	Authority directing consideration of intoxication and accident defenses on remand.	Cited along with McKeever as guidance for required findings on defenses.
People v Polk (On Rehearing), 123 Mich. App. 737; 333 N.W.2d 499 (1983)	Intoxication is a defense to felonious assault.	Cited to support the statement that intoxication is a defense and must be considered on remand.
People v Wilson, 113 Mich. App. 591; 318 N.W.2d 479 (1981)	Intoxication as a defense to felonious assault.	Cited in support of intoxication being a defense requiring findings on remand.

Court's Reasoning and Analysis

The court began by quoting the trial court's findings of fact regarding the witness testimony and the circumstances of the incident. The narrow appellate issue identified was whether those findings complied with GCR 1963, 517.1.

The court applied controlling precedent: because felonious assault is a specific intent crime (People v Joeseype Johnson), the trial court must specifically find which specific-intent alternative it relied upon (intent to injure or intent to put the victim in reasonable fear of immediate battery). Although the trial court acknowledged the specific-intent characterization, it did not identify which specific intent it found, which the appellate court found insufficient.

Regarding felony-firearm, the court noted controlling law requiring proof that the defendant carried or possessed a firearm during a felony and that the possession be knowing (Wayne County Prosecutor v Recorder's Court Judge; People v Hunt; People v Yarbrough). The trial court's general finding of guilt on felony-firearm without stating the requisite elements was inadequate.

The court explained the dual purposes of GCR 1963, 517.1: (1) to show how credibility issues and conflicts in the evidence were resolved (People v Eaton), and (2) to reveal the law the trial court applied (People v Bruce Ramsey). Both purposes are necessary to facilitate appellate review (People v Kelly; Wolfe v Howatt). Because the trial court failed to specifically state that it had found each element of both crimes, the appellate court concluded remand was necessary.

The court addressed an exception (People v Jackson) where remand is not required if it is manifest the judge resolved the factual issue and further explication would not aid review (example: identification-only). It limited that exception to credibility-resolution situations and held it does not apply to failures to find the elements of a crime.

Finally, the court directed the trial court on remand to specifically consider and make findings on defendant's intoxication and accident defenses (People v McKeever; People v Stanford), noting that intoxication is a defense to felonious assault (People v Polk; People v Wilson).

Holding and Implications

Holding: The court ordered a remand for the trial court to make findings of fact pursuant to GCR 1963, 517.1. The core ruling is: REMAND FOR ADDITIONAL FINDINGS OF FACT.

Implications:

The trial court must on remand explicitly state the elements it found for felonious assault (identifying which specific intent was established) and for felony-firearm (including knowing possession and that the firearm was possessed during the commission or attempted commission of a felony).
The trial court must specifically consider and make findings regarding defendant's intoxication and accident defenses.
The appellate court did not retain jurisdiction because defendant's sole request was for remand; the court considered its task complete by granting the remand.
The opinion remands based on application of existing precedent and rules; it does not announce a new legal principle beyond the cited authorities.

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PEOPLE v DAVIS

PER CURIAM.

On April 28, 1983, following a bench trial, the defendant was convicted of felonious assault, MCL 750.82; MSA 28.277, and felony-firearm, MCL 750.227b; MSA 28.424(2), and was subsequently sentenced to consecutive terms of from one to four years and two years imprisonment. He appeals as of right.

Defendant's only issue on appeal is that the trial court's findings of fact did not sufficiently comply with GCR 1963, 517.1. The court's findings are as follows:

"Well, looking at the testimony of the original witness for the people * * *, she stated she did know Mr. Davis, had been friends for some time. She herself was 26 years old. She was staying with Mr. Davis on this particular evening in the area of Mt. Elliott. She did testify that there was an argument on this particular evening. She testified to the effect that she was going to see a doctor, get a check-up.

"Mr. Davis said something to the effect that he was going to put her in the hospital. She went on to testify, she said that Mr. Davis had been drinking. He had smelled of alcohol, and that in her view Mr. Davis was playing with a gun, that he miscalculated in putting a bullet in the second chamber rather than the third chamber which resulted in pointing the gun and clicking the gun off in the direction of her head and it discharged.

"There was some testimony that Mr. Davis did present her with some type of cloth or rag to stop the bleeding and he did, in fact, make a telephone call to EMS.

"I don't think the people have satisfied their burden with regard to the charge in the information, that being assault with intent to murder. I do believe though that there is some authority stating that the crime of felonious assault is, in fact, a specific intent crime.

"I think if this was a jury trial, this court would have to give the instruction on specific intent. This court does believe, however, that intent is established by the prosecution with regard to Mr. Gary Douglass Davis was one of felonious assault.

"It's this court's finding of fact that on this particular date, November 10, 1981, in the area of 6334 Mack Avenue, Mr. Gary Douglass Davis did commit the crime of felonious assault, and also did commit the crime of possession of a firearm in the commission or attempt to commit a felony. That being the case, the people have satisfied their burden to this court beyond a reasonable doubt * * *."

Felonious assault is a specific intent crime. It requires that the defendant either intend to injure the victim or intend to put him in reasonable fear of immediate battery. People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979). Although the trial court acknowledged that felonious assault is a specific intent crime, it did not specifically find either of these alternatives as required by Joeseype Johnson.

To prove felony-firearm, the prosecution must show that the defendant carried or possessed the firearm and that it was carried or possessed during a felony or an attempted felony. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374, 397-398; 280 N.W.2d 793 (1979). The possession must be knowing. People v Hunt, 120 Mich. App. 736; 327 N.W.2d 547 (1982); People v Yarbrough, 107 Mich. App. 332; 309 N.W.2d 602 (1981). In the present case, the trial court merely found defendant guilty of this crime without specifically finding any of the elements.

GCR 1963, 517.1 requires a full finding of fact for two reasons. First, it shows how the trial court resolved credibility issues and conflicts within the evidence. See People v Eaton, 413 Mich. 862 (1982). Second, it reveals the law the trial court applied. People v Bruce Ramsey, 89 Mich. App. 468; 280 N.W.2d 565 (1979), lv den 407 Mich. 861 (1979). 2 Honigman Hawkins, Michigan Court Rules Annotated (2d ed), p 592. Both of these requirements are necessary to facilitate appellate review. People v Kelly, 122 Mich. App. 427; 333 N.W.2d 68 (1983); Wolfe v Howatt, 119 Mich. App. 109; 326 N.W.2d 442 (1982).

The findings of fact in the present case did not comply with the court rule. In order for this Court to know what law was applied, the trial court must at least find the elements of the crime. In People v McShan, 120 Mich. App. 496; 327 N.W.2d 509 (1982), this Court remanded where the trial court failed to mention in its opinion the specific intent element in felonious assault. See also People v Triplett, 414 Mich. 898; 323 N.W.2d 7 (1982); People v Rae, 103 Mich. App. 293; 302 N.W.2d 845 (1980). The trial court's failure to specifically state that it had found each element for both crimes necessitates remand.

Under certain circumstances, appellate courts will not remand for a full fact-finding even if the fact-finding is inadequate:

"A judge's failure to find the facts does not require remand where it is manifest that he was aware of the factual issue, that he resolved it and it would not facilitate appellate review to require further explication of the path he followed in reaching the result as, for example, where the only factual issue is identification." People v Jackson, 390 Mich. 621, 627, fn 3; 212 N.W.2d 918 (1973).

See People v Vandergrift, 107 Mich. App. 555; 309 N.W.2d 665 (1981). However, this exception by its own terms is limited only to the first reason for GCR 1963, 517.1 — resolving credibility issues and conflicts within the evidence. It does not apply to finding the elements of the crime in criminal cases. An appellate court cannot sufficiently know that the trial court has found the defendant guilty of the crime charged unless it specifically finds each element.

In People v Jackson, 81 Mich. App. 18; 264 N.W.2d 101 (1978), this Court failed to remand where the trial court's findings to a felonious assault charge was a general verdict of guilty. However, we decline to follow it. Not only has this case already been criticized, People v Smith, 101 Mich. App. 110; 300 N.W.2d 470 (1980), but it was decided before Joeseype Johnson, supra. Even though Joeseype Johnson is to be applied retroactively, People v Hale, 411 Mich. 1002; 308 N.W.2d 166 (1981); People v Norwood, 123 Mich. App. 287; 333 N.W.2d 255 (1983) (MAHER, J., concurring); People v Ideis, 101 Mich. App. 179; 300 N.W.2d 489 (1980), lv den 411 Mich. 854 (1981), a number of panels on this Court had ruled before Joeseype Johnson that felonious assault is merely a general intent crime. E.g., People v Jordan, 51 Mich. App. 710; 216 N.W.2d 71 (1974); People v Rohr, 45 Mich. App. 535; 206 N.W.2d 788 (1973).

On remand, the trial court is also to specifically consider and make findings on defendant's intoxication and accident defenses. See People v McKeever, 123 Mich. App. 533; 332 N.W.2d 596 (1983); People v Stanford, 68 Mich. App. 168, 174-175; 242 N.W.2d 56 (1976). Intoxication is a defense to felonious assault. People v Polk (On Rehearing), 123 Mich. App. 737; 333 N.W.2d 499 (1983); People v Wilson, 113 Mich. App. 591; 318 N.W.2d 479 (1981).

Remanded to make findings of fact pursuant to GCR 1963, 517.1. We do not retain jurisdiction.

Under normal circumstances, we retain jurisdiction when remanding on this issue. E.g., Eaton, supra; Stanford, supra. However, because defendant's only request is for a remand, we have completed our task in this case by granting it. See Jackson, supra, p 628.

PEOPLE v. DAVIS