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  • Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Robert F. Davisson, Assistant Prosecuting Attorney, for the people. Hatchett, Dewalt, Hatchett, Mitchell Morgan, for defendant on appeal.
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  • Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Robert F. Davisson, Assistant Prosecuting Attorney, for the people. Hatchett, Dewalt, Hatchett, Mitchell Morgan, for defendant on appeal.
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Smart Summary

People v. Flores — Michigan Court of Appeals (Decided August 21, 1979)

Factual and Procedural Background

Defendant was convicted by a jury of (1) breaking and entering an occupied dwelling with intent to commit criminal sexual conduct in the first degree (MCL 750.110; MSA 28.305) and (2) first-degree criminal sexual conduct where sexual penetration was accomplished by use of force or coercion causing personal injury to the victim (MCL 750.520b(1)(f); MSA 28.788(2)(1)(f)). He received concurrent prison terms of 10–15 years and 15–25 years, respectively, and appealed by leave granted. The record reflects that the complainant reported the rape and breaking and entering, that a neighbor discovered footprints in the snow leading from the complainant's home to a nearby house where defendant was found, and that officers interviewed and arrested the defendant without a warrant shortly after these events.

Legal Issues Presented

  1. Whether defendant's warrantless arrest shortly after the complainant's report was supported by probable cause, and whether evidence admitted at trial "flowed from" an allegedly illegal arrest and therefore should have been suppressed.
  2. Whether the trial court erred by admitting, over defendant's relevancy objection, testimony of the complainant's 13-year-old neighbor regarding his discovery of footprints in the snow that led from the complainant's home to the house where defendant was found.
  3. Whether separate convictions for breaking and entering an occupied dwelling with intent to commit first-degree criminal sexual conduct and for first-degree criminal sexual conduct itself violated the double jeopardy clauses of the United States and Michigan constitutions when both offenses arose out of the same transaction.

Arguments of the Parties

Defendant's Arguments

  • The warrantless arrest lacked probable cause; therefore, all evidence admitted at trial that flowed from that arrest should have been suppressed.
  • The testimony of the 13-year-old neighbor about footprints in the snow was irrelevant and should have been excluded.
  • Conviction for both breaking and entering with intent to commit first-degree criminal sexual conduct and first-degree criminal sexual conduct itself amounted to impermissible double punishment because the breaking and entering was an essential element of the criminal sexual conduct and arose from the same transaction.

The opinion does not contain a detailed account of the prosecution's separate legal arguments beyond the court's recitation of facts and its legal conclusions resolving the defendant's claims.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v Ferguson, 376 Mich. 90; 135 N.W.2d 357 (1965) Timeliness requirement for motions to suppress/error preservation. Used to state the general rule that error cannot be claimed unless a suppression motion was timely made in the trial court.
People v Blassingame, 59 Mich. App. 327, 332-333; 229 N.W.2d 438 (1975) Procedural preservation and appellate review of constitutional claims raised first on appeal. Cited alongside Ferguson to explain preservation rule and the standard for appellate review when a constitutional question is raised for the first time on appeal.
People v Merchant, 86 Mich. App. 355, 358; 272 N.W.2d 656 (1978) When a constitutional question is first raised on appeal, determine if erroneously admitted evidence was decisive to outcome. Applied to frame inquiry into whether evidence allegedly flowing from an illegal arrest was decisive to defendant's conviction.
People v Summers, 70 Mich. App. 584, 586-587; 246 N.W.2d 152 (1976) Whether evidence was erroneously admitted is a prerequisite to determining prejudice. Cited to support the sequence of inquiry: first determine erroneous admission, then whether exclusion would probably have meant acquittal.
MCL 764.15(d); MSA 28.874(d) Statutory standard for warrantless arrest supported by probable cause. Referenced in evaluating whether officers had sufficient probable cause to arrest without a warrant.
People v Robinson, 71 Mich. App. 287; 248 N.W.2d 237 (1976) Probable cause/warrantless arrest principles. Used in assessing that officers had reasonably trustworthy information supporting arrest.
People v Langston, 57 Mich. App. 666, 671-673; 226 N.W.2d 686 (1975) Probable cause/warrantless arrest principles. Also cited in support of finding probable cause for the warrantless arrest.
People v Whalen, 390 Mich. 672; 213 N.W.2d 116 (1973) Admissibility of evidence seized incident to a valid arrest. Applied to conclude that evidence seized incident to a valid warrantless arrest was admissible at trial.
People v Krontz, 50 Mich. App. 495; 213 N.W.2d 593 (1973) Seizure incident to arrest/admissibility. Cited with Whalen to support admissibility of evidence seized after a valid arrest.
People v Nichols, 341 Mich. 311, 331; 67 N.W.2d 230 (1954) Relevancy standards for admission of evidence. Cited to support that the footprints testimony was logically and legally relevant.
People v DerMartzex, 390 Mich. 410, 415; 213 N.W.2d 97 (1973) Trial judge's discretion in ruling on admissibility/relevancy. Relied on to explain and affirm trial judge's discretionary role in admitting relevant evidence.
MRE 401, 403 Rules defining relevance and excluding prejudicial evidence. Invoked in analyzing admissibility of the footprints testimony.
People v Utter, 217 Mich. 74; 185 N.W. 830 (1921) Trial court's discretion over admissibility of evidence. Cited to reinforce deference to trial judge's relevancy rulings.
People v Ranes, 63 Mich. App. 498; 234 N.W.2d 673 (1975) Standard for overturning trial court's discretionary evidentiary rulings (clear error/abuse of discretion). Used to state that the trial court's relevancy decision will not be reversed absent clear error.
People v Abdalla, 70 Mich. App. 697, 701; 247 N.W.2d 332 (1976) Nonexpert testimony on footprint identification is a matter of weight for the trier of fact. Cited to support that the nonexpert witness' testimony about footprints goes to weight, not admissibility.
People v Keep, 123 Mich. 231; 81 N.W. 1097 (1900) Historical authority on admissibility and weight of footprint evidence. Used as authority for admitting footprint testimony despite nonexpert identification.
People v Swearington, 84 Mich. App. 372; 269 N.W.2d 467 (1978) Double jeopardy issue when an underlying felony is an essential element of first-degree criminal sexual conduct (felony-rape doctrine). Cited as the case in which this Court previously vacated a breaking-and-entering conviction because it was an essential element of first-degree criminal sexual conduct; the Court distinguished the instant case from Swearington.
People v Benevides, 71 Mich. App. 168; 247 N.W.2d 341 (1976) Elements of breaking and entering with intent to commit a felony. Cited to enumerate the elements of the breaking-and-entering offense charged.
People v D'Argis, 44 Mich. App. 186; 205 N.W.2d 19 (1972) Elements of breaking and entering with intent to commit a felony. Cited with Benevides to support the elements of the breaking-and-entering offense.
People v Matuja, 77 Mich. App. 291; 258 N.W.2d 79 (1977) Breaking and entering is complete regardless of whether the intended felony is attempted or completed. Cited to support that the breaking-and-entering offense was a distinct completed crime regardless of the underlying felony intended.
People v Scotts, 80 Mich. App. 1; 263 N.W.2d 272 (1977) Permutation: prosecution, conviction and sentencing for multiple crimes arising out of same transaction. Cited to show that multiple convictions arising from the same transaction may be prosecuted, convicted and sentenced when crimes are distinct.
People v White, 390 Mich. 245; 212 N.W.2d 222 (1973) Same-transaction prosecution principles. Used to state that while crimes may arise out of the same transaction for prosecution purposes, they can be distinct offenses.
People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976) Analysis of when offenses share common elements for double jeopardy purposes. Cited to support the court's conclusion that the crimes in the instant case share no common elements.
People v Stewart (ON REHEARING), 400 Mich. 540; 256 N.W.2d 31 (1977) Double jeopardy and elements/common-element analysis. Cited in the group of authorities addressing when separate convictions are permissible despite arising from the same transaction.
Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979) Same-transaction prosecution principles and related double jeopardy analysis. Cited among authorities supporting that separate convictions can stand when crimes are factually and legally independent.
People v Anderson, 62 Mich. App. 475; 233 N.W.2d 620 (1975) Cases addressing whether crimes share common elements for double jeopardy analysis. Cited to support the proposition that the crimes in the instant case do not share common elements.
People v Anderson, 83 Mich. App. 744, 749; 269 N.W.2d 288 (1978) Illustration where conviction for one offense was used as the factual basis for another. Cited to explain that in Swearington the sexual conduct conviction was necessarily based upon guilt for breaking and entering, requiring vacation of underlying conviction.

Court's Reasoning and Analysis

The court addressed the three issues raised by defendant in sequence.

1) Warrantless arrest and suppression: The court first noted that no motion to suppress evidence based on an allegedly illegal arrest was timely made in the trial court, invoking the general preservation rule. Because defendant raised the constitutional claim for the first time on appeal, the Court framed the inquiry by asking whether the evidence was erroneously admitted and whether it was decisive to the outcome. Upon reviewing the full record, the court found that the arresting officers possessed sufficiently trustworthy information from the complainant (description of assailant's height, build, hair, accent, clothes) and information that a neighbor had observed footprints in the snow leading from the victim's home to the house where defendant was found. The officers' initial interview with the defendant, combined with that information, furnished probable cause under MCL 764.15(d) to effect the warrantless arrest. Because the arrest was valid, evidence seized incident to the arrest was properly obtained and admissible at trial.

2) Admission of footprint testimony: The court held that the 13-year-old neighbor's testimony about discovering footprints was logically and legally relevant (citing MRE 401, 403 and authority). It emphasized the trial judge's discretion in ruling on relevancy and that such a discretionary ruling will not be reversed unless clearly erroneous. The judge determined the jury could properly infer from the footprints the presence of their maker at the time of the criminal act. Although the prosecutor could not identify the footprints as defendant's, the court treated that limitation as a question of weight for the jury rather than a bar to admissibility, and noted that nonexpert testimony about footprints goes to weight, not admissibility.

3) Double jeopardy claim: The court distinguished People v Swearington, where this Court had vacated a breaking-and-entering conviction because it was an essential element of a first-degree criminal sexual conduct conviction based upon commission of another felony (the felony-rape theory). In the present case, the breaking-and-entering charge had elements (breaking and entering an occupied dwelling with felonious intent) that were established independently, and the first-degree criminal sexual conduct charge was based on force/coercion and personal injury—an independent statutory basis that could support first-degree CSC regardless of whether another felony was committed. The court concluded the two convictions were for distinct crimes that do not share common elements; therefore, double jeopardy did not require vacation of either conviction despite arising from the same transaction.

Holding and Implications

Affirmed.

Holding: The Court of Appeals affirmed the defendant's convictions and sentences. Specifically, it held (1) the warrantless arrest was supported by probable cause and evidence seized incident to that arrest was admissible; (2) testimony regarding footprints discovered by a neighbor was relevant and its admission was not an abuse of the trial court's discretion; and (3) the convictions for breaking and entering with intent to commit first-degree criminal sexual conduct and for first-degree criminal sexual conduct based on force/coercion and personal injury do not violate the double jeopardy clauses because they are distinct offenses that do not share common elements.

Implications: The direct effect is that the defendant's convictions and concurrent sentences were upheld. The opinion distinguishes the present factual and statutory basis from cases in which an underlying felony is an essential element of a first-degree criminal sexual conduct conviction (requiring vacation of the underlying felony). The court did not announce a new legal rule; it applied existing authorities to the facts to conclude the crimes here were legally and factually distinct.

Show full summary ...

PEOPLE v. FLORES

PER CURIAM.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit criminal sexual conduct in the first degree contrary to MCL 750.110; MSA 28.305 and first-degree criminal sexual conduct where sexual penetration is accomplished by use of force or coercion causing personal injury to the victim contrary to MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). Defendant was sentenced to concurrent terms of 10 to 15 years and 15 to 25 years imprisonment, respectively, and is before this Court by leave granted.

Defendant raises three issues on appeal.

First, defendant claims that his warrantless arrest, shortly after the complainant reported the rape and breaking and entering, was without probable cause and that all evidence admitted at trial flowed from the illegal arrest and should have been suppressed. Review of the record reveals that no objection was made in the form of a motion to suppress evidence obtained as a result of an allegedly illegal arrest. Generally, error cannot be claimed unless the motion is timely made in the court below. People v Ferguson, 376 Mich. 90; 135 N.W.2d 357 (1965), People v Blassingame, 59 Mich. App. 327, 332-333; 229 N.W.2d 438 (1975). However where a defendant "raises a constitutional question for the first time on appeal, the Court must determine if the allegedly erroneously admitted evidence was decisive to the outcome of the case". People v Merchant, 86 Mich. App. 355, 358; 272 N.W.2d 656 (1978), People v Blassingame, supra. Before we determine whether the complained of evidence was decisive, i.e., its exclusion probably would have meant acquittal for the defendant, it is necessary to ask whether the evidence was erroneously admitted into evidence in the first instance. People v Summers, 70 Mich. App. 584, 586-587; 246 N.W.2d 152 (1976), People v Blassingame, supra. We find that it was not.

Review of the full record convinces us that the arresting officers were provided with sufficient probable cause to effect defendant's warrantless arrest. The testimony of the arresting officers indicates that they had received reasonably trustworthy information from the complainant regarding her assailant's height, build, hair, accent, and the clothes he wore. Furthermore, the officers had been advised that a neighbor had detected footprints in the snow from the victim's home across the street to a house a short distance away where defendant was found. This information, combined with the officers' initial interview with the defendant, is sufficient to warrant a prudent person in believing that the defendant had committed a felony offense. MCL 764.15(d); MSA 28.874(d), People v Robinson, 71 Mich. App. 287; 248 N.W.2d 237 (1976), People v Langston, 57 Mich. App. 666, 671-673; 226 N.W.2d 686 (1975). Since the warrantless arrest was valid, evidence seized incident to that arrest was properly obtained and, hence, admissible into evidence at the subsequent trial. People v Whalen, 390 Mich. 672; 213 N.W.2d 116 (1973), People v Krontz, 50 Mich. App. 495; 213 N.W.2d 593 (1973).

Second, defendant claims that the trial court erred in admitting, over his objection on grounds of relevancy, the testimony of the complainant's 13-year-old neighbor regarding his discovery of footprints in the snow which led from the complainant's home to the house in which the defendant was found. Contrary to defendant's assertion we hold that the evidence was both logically and legally relevant. People v Nichols, 341 Mich. 311, 331; 67 N.W.2d 230 (1954), People v DerMartzex, 390 Mich. 410, 415; 213 N.W.2d 97 (1973), MRE 401, 403.

The trial judge enjoys the discretion of ruling on the admissibility of evidence on the basis of relevancy. People v DerMartzex, supra, People v Utter, 217 Mich. 74; 185 N.W. 830 (1921). That decision will not be reversed unless it is clearly erroneous and indicates an abuse of discretion. People v Ranes, 63 Mich. App. 498; 234 N.W.2d 673 (1975). The trial judge determined that the jury could properly infer from the footprints the presence of the maker at the time of the criminal act. And although the prosecutor was unable to identify the footprints as being those of the defendant (2 Wigmore, Evidence [3d ed]) this factor was properly determined to be a matter of weight for the trier of fact, and not of law, People v Abdalla, 70 Mich. App. 697, 701; 247 N.W.2d 332 (1976), and see People v Keep, 123 Mich. 231; 81 N.W. 1097 (1900), notwithstanding the nonexpertise of the witness regarding the identification or tracking of footprints. 3 Wharton's Criminal Evidence (13th ed), § 610, p 179. As such, the trial court did not abuse its discretion in admitting the challenged testimony. People v Abdalla, supra, People v Keep, supra. See also, Anno: Footprints as evidence, 31 ALR 204, Anno: Footprints as evidence, 35 ALR2d 856, 29 Am Jur 2d, Evidence, § 377, p 427, 32 CJS, Evidence, § 546(9), (24), (59), 1 Wharton's Criminal Evidence (13th ed), § 193, p 394.

Finally, defendant claims that his conviction for breaking and entering an occupied dwelling with intent to commit first-degree criminal sexual conduct is constitutionally prohibited because the double jeopardy clauses of the United States and Michigan constitutions forbid double punishment where the acts of breaking and entering and first-degree criminal sexual conduct arose out of the same transaction. In short, defendant contends that the prosecution proved, at best, that there was but a single intent by the complainant's assailant, and that was to have sexual intercourse with the complainant. Since the breaking and entering was an essential element of the offense of the first-degree criminal sexual conduct, defendant contends that separate convictions violate the double jeopardy clause on authority of People v Swearington, 84 Mich. App. 372; 269 N.W.2d 467 (1978). We disagree.

In People v Swearington, supra, the defendant was convicted of breaking and entering with intent to commit larceny, contrary to MCL 750.110; MSA 28.305, and first-degree criminal sexual conduct, contrary to MCL 750.520b(1); MSA 28.788(2)(1). While it is not clear from the face of the opinion what aggravating circumstance resulted in bringing a charge of first-degree criminal sexual conduct against the defendant, as opposed to a charge of merely third-degree criminal sexual conduct MCL 750.520d; MSA 28.788(4), we have examined the record in Swearington and have determined that the defendant in that case had been charged with the offense of engaging

"in sexual penetration with another person, * * * under circumstances involving the commission of another felony, to wit: breaking and entering an occupied dwelling with intent to commit a larceny therein, contrary to MSA 28.788(2)(1)(c)."

Upon conviction of both the breaking and entering and the criminal sexual conduct charges, the defendant appealed to this Court which reversed the conviction for breaking and entering on the grounds that the breaking and entering was an essential element of the first-degree criminal sexual conduct conviction in violation of the double jeopardy clause of the Federal and state constitutions.

The instant case is clearly distinguishable from Swearington. In the case at bar, the defendant was charged with breaking and entering with intent to commit a felony, to wit: criminal sexual conduct in the first degree. The elements of that crime include (1) the breaking and entering of (2) an occupied dwelling with (3) felonious intent. People v Benevides, 71 Mich. App. 168; 247 N.W.2d 341 (1976), People v D'Argis, 44 Mich. App. 186; 205 N.W.2d 19 (1972). The record clearly reflects, and the defendant does not dispute, that each of these elements was properly established by the prosecution. As such, the criminal breaking and entering was completed regardless of whether the defendant was guilty of, or even attempted to complete, the felony (e.g. larceny, murder, arson, or criminal sexual conduct) which he allegedly intended to commit by his breaking and entering. People v Matuja, 77 Mich. App. 291; 258 N.W.2d 79 (1977).

In the case at bar the defendant was also charged with criminal sexual conduct in the first degree because he caused personal injury to the victim, and force or coercion was used to accomplish sexual penetration. MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). The basis of this first-degree criminal sexual conduct charge is materially different from the basis of the first-degree criminal sexual conduct charge in Swearington. That is, under the facts presented, the defendant was charged with criminal sexual conduct in the first degree because he used force and coercion to penetrate the complainant and because he caused her personal injury in so doing. Under the factual situation in the instant case, the defendant could have been charged with and convicted of first-degree criminal sexual conduct regardless of whether he committed another felony, e.g., breaking and entering with intent to commit a felony. In essence, defendant in the case at bar was charged and tried for acts which constituted two separate crimes, People v Scotts, 80 Mich. App. 1; 263 N.W.2d 272 (1977). While the perpetration of the criminal act arose out of the same transaction for purposes of prosecution, conviction and sentencing, People v White, 390 Mich. 245; 212 N.W.2d 222 (1973), the crimes share no common elements. People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976), People v Stewart (ON REHEARING), 400 Mich. 540; 256 N.W.2d 31 (1977), Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979), People v Anderson, 62 Mich. App. 475; 233 N.W.2d 620 (1975).

In contrast, the defendant's conviction of first-degree criminal sexual conduct in Swearington was based upon his guilt for breaking and entering. The trier of fact necessarily found him guilty of the latter offense in order to convict him of the former. People v Anderson, 83 Mich. App. 744, 749; 269 N.W.2d 288 (1978). In essence, defendant's criminal sexual conduct in Swearington was punished as a first-degree criminal sexual conduct because sexual penetration occurred during the commission of another felony. As in cases where the trial court is required on the basis of double jeopardy to vacate the underlying felony where the defendant is convicted of first-degree murder under the felony-murder doctrine, MCL 750.316; MSA 28.548, so too, in Swearington, was this Court compelled to vacate the defendant's breaking and entering conviction where it was used to convict the defendant of first-degree criminal sexual conduct under the "felony-rape" doctrine, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c). Cf. People v Anderson, supra. However, where defendant is convicted and punished for two distinct criminal acts, factually and legally independent of one another, the double jeopardy clause does not require that one of the convictions be vacated, despite the fact that they arose out of the same transaction.

Affirmed.

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PEOPLE v. FLORES
(Aug 21, 1979)