PEOPLE v. DAVIS

Citation Codes

Equivalent Citations

citation codes

Docket Number

Docket No. 49674.

Advocates

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard S. Allen, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Appellate Service), for the people. Thomas P. McLaughlin, Jr., for defendant on appeal.

Judges

PER CURIAM.

See more information ...

Smart Summary

Factual and Procedural Background

Defendant was charged in a four-count information with (1) criminal sexual conduct, (2) possession of a firearm while committing criminal sexual conduct, (3) armed robbery, and (4) possession of a firearm while committing armed robbery. Pursuant to a plea agreement, counts three and four were dropped and defendant pled guilty to counts one and two. At the plea-taking hearing defendant described events: he and a codefendant went to the complainant's cabin at about 4 a.m., both were armed and wearing nylon stocking masks, they entered the cabin, took a purse and three bottles of liquor, left and later returned still armed, took both female occupants to the beach, and at the beach defendant (who had been carrying a .22-caliber rifle when he "took" complainant to the beach) threw the weapon down and proceeded to have intercourse with the victim while the gun lay approximately six feet away. On November 5, 1979, defendant was sentenced to 8 to 20 years in prison for the criminal sexual conduct conviction (count one) and two years for the firearm possession count (count two). Defendant appealed of right, claiming four grounds for reversal or resentencing; two of those grounds (that the 8-to-20 year sentence was cruel and unusual and that the court considered inaccurate or improper information in the presentence report) were disposed of peremptorily by the Court of Appeals.

Legal Issues Presented

Whether an actor is "armed with a weapon" under MCL 750.520b(1)(e); MSA 28.788(2)(1)(e) when, at the time of sexual penetration, the actor is not physically holding the weapon but the weapon lies approximately six feet away.
Whether the sentence of 8 to 20 years constituted cruel and unusual punishment (raised by defendant).
Whether the trial court erred by considering or relying on allegedly inaccurate or improper subjective statements contained in the presentence report.

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 Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972)	Standards governing validity of a sentence relative to statutory maximums and proportions.	Used to conclude that the imposed sentence was within statutory limits and acceptable because the minimum was less than two-thirds of the maximum.
People v Jackson, 29 Mich. App. 654, 656; 185 N.W.2d 608 (1971)	Authority cited in assessing whether a sentence is disproportionate or shocks the conscience.	Relied upon in concluding that the prison term did not shock the conscience or was not disproportionate given the seriousness and circumstances of the offense.
People v Koch, 74 Mich. App. 132, 137; 253 N.W.2d 684 (1977)	Principle concerning trial court's handling of objections to subjective portions of presentence reports.	Cited to support the finding that the trial judge's disclaimer of reliance on the contested subjective evaluation removed any error.
People v Mumford, 60 Mich. App. 279, 282-283; 230 N.W.2d 395 (1975)	The term "possession" includes both actual and constructive possession.	Used to support the proposition that defendant could have constructive possession of the weapon even if not physically holding it.
Mumford, supra, People v Harper, 365 Mich. 494, 506-507; 113 N.W.2d 808 (1962)	Constructive possession defined as proximity plus indicia of control.	Applied as part of the test for constructive possession (knowledge of the weapon's location, proximity, and indicia of control).
People v Little, 58 Mich. App. 12; 226 N.W.2d 735 (1975)	The prosecution need not prove physical possession of weapons in order to convict under certain statutes; constructive possession can suffice.	Supported the view that physical possession is not strictly necessary to sustain a conviction when other indicia of possession exist.
People v Khan, 80 Mich. App. 605; 264 N.W.2d 360 (1978)	Testimony concerning a rifle that had been dropped and was not in the actor's hands was admissible and relevant in sexual assault context; jury could consider availability of the rifle together with threats and other acts.	Analogized as a factually similar case where availability of a rifle supported conviction despite the weapon having been dropped; used to show relevance of weapon evidence when weapon was not in hand at the time of the sexual act.
People v Oliphant, 399 Mich. 472; 250 N.W.2d 443 (1976)	Discussed in quotation in Khan regarding relevant evidence standards (citation used in Khan).	Referenced via Khan to support admissibility and materiality of rifle testimony.
People v Der Martzex, 390 Mich. 410, 415; 213 N.W.2d 97 (1973)	Authority cited in Khan concerning the trial court's discretion to admit relevant evidence.	Referenced in the chain of authority supporting admissibility of weapon-related testimony.
Mack v State, 312 A.2d 319 (Del. 1973)	Delaware test that "possession" requires availability and accessibility; physical availability or accessibility during the commission of the crime is controlling.	Used as out-of-state support for upholding convictions where weapons were located separately but were available/accessible to the actor.
Wilson v State, 343 A.2d 613 (Del. 1975)	Delaware authority sustaining conviction despite weapons being some distance (e.g., 25 feet) from where the crime occurred, emphasizing accessibility.	Relied upon as additional out-of-state support for an accessibility-based test of possession/armed status.
Guilty Plea Cases, 395 Mich. 96, 130; 235 N.W.2d 132 (1975)	Rule that an inference of control may be drawn in the context of a conviction by guilty plea.	Cited to justify drawing an inference of control over the weapon given the guilty plea, reinforcing the court's finding of constructive possession.

Court's Reasoning and Analysis

The Court proceeded in three analytic steps.

Sentencing challenges: The Court first disposed peremptorily of two challenges. It observed that the criminal sexual conduct sentence (8 to 20 years) was within the statutory maximum and that the minimum was less than two-thirds of the maximum, invoking People v Tanner. Given the seriousness and circumstances of the offense, the sentence did not "shock the conscience" nor was it disproportionate (People v Jackson). As to the presentence report objection, defense counsel objected to a subjective statement; the trial judge expressly disclaimed reliance on the contested portion, and the Court found no error, citing People v Koch.
Statutory construction and issue framing: The Court identified the principal question of first impression as whether an actor is "armed with a weapon" under MCL 750.520b(1)(e) when the weapon is not physically held at the moment of penetration but lies nearby (about six feet away). The Court quoted the statute and emphasized the phrase "The actor is armed with a weapon."
Possession/armed analysis and application to facts: The Court surveyed tangential Michigan authority establishing that "possession" may include constructive possession and that constructive possession can be shown by proximity plus indicia of control (People v Mumford and People v Harper). It noted Michigan decisions holding physical possession is not always required (People v Little) and cited People v Khan as a factually similar case where a rifle had been dropped but testimony concerning it was relevant. The Court also cited Delaware decisions (Mack v State and Wilson v State) adopting an accessibility test (availability and accessibility during the crime). Applying these principles, the Court found that defendant had constructive possession when penetration occurred: the weapon lay six feet away, only the two victims and a codefendant were present, the weapon was within the defendant's control, and an inference of control could be drawn from the guilty plea (Guilty Plea Cases). Accordingly, the Court concluded defendant was "armed" within the meaning of the statute and that the guilty plea to counts one and two was sufficient.

Holding and Implications

Holding: The Court affirmed the convictions and sentences. It held that a defendant need not be physically holding a weapon at the moment of sexual penetration to be "armed with a weapon" under MCL 750.520b(1)(e); constructive possession (knowledge of location, proximity, and indicia of control) or reasonable accessibility suffices, and under the facts (weapon approximately six feet away, limited presence of others, guilty plea permitting an inference of control) the defendant was "armed" for purposes of the statute.

Implications: The direct effect is that defendant's convictions and sentences were affirmed. The opinion announces the Court of Appeals' interpretation that "armed" includes circumstances of constructive possession or reasonable accessibility as applied to these facts. No separate relief was granted to the defendant on the sentencing or presentence-report grounds.

Show full summary ...

PEOPLE v DAVIS

PER CURIAM.

At the plea-taking hearing, defendant stated that he and a codefendant, Walker, went to the complainant's cabin at about 4 a.m., that both were armed and wearing nylon stocking masks, that they opened the cabin door and entered, that one of the two female occupants awakened, that they took the purse of one of the occupants and three bottles of liquor and left, that later they returned still armed and took both girls to the beach, that defendant was carrying a .22-caliber rifle when he "took" complainant to the beach, that, upon reaching the beach, he threw the weapon down and proceeded to have intercourse with the victim, and that during the period of intercourse, the gun lay approximately six feet away.

Of the four grounds which defendant raises as reasons for reversal, two may be disposed of peremptorily. First-degree criminal sexual conduct is punishable by life imprisonment or any term of years. The maximum sentence imposed by the court was well within the statutory maximum, and the minimum was less than two-thirds of the maximum. Thus, the sentence complied with People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972). Though defendant was only 18 years of age and had never been charged with an offense before, the seriousness of the act and the bizarre circumstances under which it was committed lead us to conclude that the prison term imposed by the court neither shocks the conscience of this Court nor is disproportionate to the crime committed. People v Jackson, 29 Mich. App. 654, 656; 185 N.W.2d 608 (1971).

That the sentence of 8 to 20 years imprisonment was cruel and unusual punishment, and that the court considered inaccurate or improper information contained in the presentence report when sentencing defendant.

At sentencing, counsel for defendant objected to a statement in the presentence report that the defendant's attitude evidenced "a lack of caring for things". The court responded that "the court will disregard those portions which you felt were injurious to the well being of your client". Given the fact that the trial judge disclaimed reliance on the subjective evaluation in that part of the report to which counsel objected, we find no error. People v Koch, 74 Mich. App. 132, 137; 253 N.W.2d 684 (1977).

The principal ground on which defendant relies for reversal is that at the time of sexual penetration defendant was not armed with a weapon. Penetration occurred at the beach, at which time the gun was lying approximately six feet away. First-degree criminal sexual conduct is defined as follows:

"A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exist:

"(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon." MCL 750.520b(1)(e); MSA 28.788(2)(1)(e). (Emphasis supplied.)

The issue raised is of first impression. Is an actor "armed with a weapon", as that term is used in the statute defining first-degree criminal sexual conduct, if, at the time of sexual penetration, the actor is not physically holding the rifle but the rifle lies some six feet away?

While there are no Michigan cases directly on point, tangential Michigan case law suggests that the answer is "yes". Thus, the term "possession" has been held to include both actual and constructive possession. People v Mumford, 60 Mich. App. 279, 282-283; 230 N.W.2d 395 (1975). One has constructive possession if one has proximity to the article together with indicia of control. Mumford, supra, People v Harper, 365 Mich. 494, 506-507; 113 N.W.2d 808 (1962). In People v Little, 58 Mich. App. 12; 226 N.W.2d 735 (1975), our Court held the prosecution need not prove physical possession of weapons in order to convict under a statute reading in pertinent part: "Any person who shall carry a * * * dangerous weapon * * * in any vehicle operated or occupied by him * * * shall be guilty of a felony * * *." MCL 750.227; MSA 28.424. In People v Khan, 80 Mich. App. 605; 264 N.W.2d 360 (1978), a case factually similar to the situation before us, defendant pulled the complainant into a garage and had intercourse with her after he first had pointed a rifle at complainant's brother and had threatened to kill her sister. Defendant had dropped the rifle before dragging complainant into the garage. The Court sustained a conviction of third-degree criminal sexual conduct saying:

"In the instant case, complainant had witnessed defendant pointing a rifle at her brother, had heard defendant threaten to kill her sister and had received a hard slap from defendant when she spurned his advances. At the very least, then, the jury could have interpreted the slap as a `threat * * * to use force or violence' and it could have considered the availability of the rifle together with the defendant's previous threatening words and deeds as justifying a belief in complainant that defendant `ha[d] the present ability to execute these threats'. Accordingly, we rule that testimony concerning the rifle constituted relevant and material evidence, People v Oliphant, 399 Mich. 472, 488-489; 250 N.W.2d 443 (1976), properly admitted in the trial court's discretion. Id. at 490, People v Der Martzex, 390 Mich. 410, 415; 213 N.W.2d 97 (1973)." 80 Mich. App. 605, 610.

Our decision that the actor need not have the weapon in his hands while committing the offense charged, so long as he has knowledge of the weapon's location and the weapon is reasonably accessible to the actor, is supported by two decisions from another jurisdiction. In Mack v State, 312 A.2d 319 (Del, 1973), defendant's conviction of possession of a deadly firearm during commission of a felony (possession of narcotics with intent to sell) was sustained even though the loaded gun was found in a chest of drawers separate and apart from the dresser in which the narcotics were found. In Wilson v State, 343 A.2d 613 (Del, 1975), the Delaware Supreme Court sustained a conviction of possession of a deadly firearm during the commission of a felony even though the weapons were located some 25 feet from the place where the narcotics were found.

"As used in this Statute, we think that the word `possession' has a more limited meaning; that it requires the elements of availability and accessibility. We hold that a felon is in `possession' of a deadly weapon, within the meaning of § 468A, only when it is physically available or accessible to him during the commission of the crime. General `dominion and control' of a weapon located elsewhere, and not reasonably accessible to the felon, obviously is not the test under § 468A." 312 A.2d 319, 322.

Under either the knowledge, proximity, and indicia of control test laid down in the Michigan cases or the accessibility test announced in Delaware, we find defendant had constructive possession of the weapon when penetration occurred. Lying but six feet away, with no persons present other than the two victims and the codefendant, the weapon was clearly within defendant's control. Furthermore, the instant case being a conviction by plea, an inference of control may be drawn. Guilty Plea Cases, 395 Mich. 96, 130; 235 N.W.2d 132 (1975). Accordingly, we hold that defendant was "armed" within the meaning of MCL 750.520b(1)(e); MSA 28.788(2)(1)(e) and that his plea of guilty to counts one and two was sufficient.

Affirmed.