Opinion
Docket No. 78-1063.
Decided November 6, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.
George S. Buth, for defendant on appeal.
Before: ALLEN, P.J., and R.B. BURNS and T.M. BURNS, JJ.
On December 7, 1977, defendant pled guilty to robbery armed, contrary to MCL 750.529; MSA 28.797, and possession of a firearm in the commission thereof, contrary to MCL 750.227b; MSA 28.424(2). On January 23, 1978, he was sentenced to prison for 7-1/2 to 20 years for the robbery charge and to a mandatory two years consecutive imprisonment on the felony-firearm charge. Two issues are raised on appeal.
First, defendant claims that the felony-firearm statute is unconstitutional on grounds of double jeopardy. This claim was rejected by the Michigan Supreme Court in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979). We likewise reject the contention here.
The second issue raised by defendant-appellant questions whether he, as an aider and abettor, can be convicted under the felony-firearm statute where there is no indication that defendant personally carried, or had in his possession, a firearm at the time of the robbery. There is a difference of opinion in this Court on this issue. Compare People v Walter Johnson, 85 Mich. App. 654, 658; 272 N.W.2d 605 (1978), and People v Powell, 90 Mich. App. 273, 274-5; 282 N.W.2d 803 (1979), with People v Walter Johnson, supra at 672-673 (KAUFMAN, J., dissenting), People v Tavolacci, 88 Mich. App. 470; 276 N.W.2d 919 (1979), People v Powell, supra at 275-276 (CYNAR, J., dissenting). Careful reading of People v Tavolacci, supra, and the relevant portions of Judge KAUFMAN'S dissenting opinion in People v Walter Johnson, supra, persuades us that MCL 750.227b; MSA 28.424(2) does not require proof of personal possession of the firearm when used in the commission of a felony. See United States v James, 528 F.2d 999, 1015 (CA 5, 1976), reh den 532 F.2d 1054 (1976), cf., United States v Brant, 448 F. Supp. 781 (WD Pa, 1978), United States v Giannoni, 472 F.2d 136 (CA 9, 1973), cert den, 411 U.S. 935; 93 S Ct 1911; 36 L Ed 2d 396 (1973).
However, in order that an accused may be convicted as an aider and abettor of a possessory crime such as felony-firearm, it must be shown that he knowingly acted or encouraged, with the intent to aid, the possessor to obtain or retain possession of or to use the firearm during the course of a felony. People v Doemer, 35 Mich. App. 149; 192 N.W.2d 330; 47 ALR3d 1236 (1971), and see, People v Pearce, 20 Mich. App. 289; 174 N.W.2d 19 (1969), People v Little, 58 Mich. App. 12; 226 N.W.2d 735 (1975).
Therefore, the question still remains whether defendant supplied a sufficient factual basis for the felony-firearm plea. GCR 1963, 785.7(3)(a). Although it is clear that the accused, as an aider and abettor, need not be present at the scene of the crime, it is necessary that a sufficient factual basis be provided to show that he procured, counseled, aided or abetted in the commission of the possessory offense. People v Tavolacci, supra, at 475. Thus, while we affirm defendant's conviction on the armed robbery charge, People v Sharp, 57 Mich. App. 624; 226 N.W.2d 590 (1975), People v Spry, 74 Mich. App. 584, 595; 254 N.W.2d 782 (1977), it is necessary to examine the record of defendant's guilty plea in order to determine if there was a sufficient factual basis provided for defendant's conviction as an aider and abettor to "felony-firearm". We find that there is.
Defendant admitted driving the stolen automobile used to transport him and his cohorts to a house where they all broke and entered, taking four guns, including a shotgun. Defendant and his companions subsequently used these guns to rob three business establishments. However, during the particular robbery for which defendant pled guilty, he did not enter the food store, but instead waited outside in the car. Despite his lack of personal, physical possession of the shotgun used to rob this establishment, defendant admits that he knew that his companions went into the store with a shotgun in order to rob someone. Moreover, the proceeds of the robbery were equally divided among defendant and his companions. This evidence is sufficient to establish that defendant knowingly acted and encouraged his companions to obtain possession of a firearm and that he assisted and encouraged them to use the firearm during the commission of a felony.
Affirmed.
The operable language of the felony-firearm statute states that a person "who carries or has in his possession" a firearm at the time that he commits or attempts to commit a felony is guilty of a felony. MCL 750.227b(1); MSA 28.424(2)(1). Statutes that define criminal acts must be strictly construed. People v Hall, 391 Mich. 175, 189; 215 N.W.2d 166 (1974). Therefore, I concur in the opinions of this Court in People v Powell, 90 Mich. App. 273; 282 N.W.2d 803 (1979), and People v Walter Johnson, 85 Mich. App. 654; 272 N.W.2d 605 (1978), which held that the felony-firearm statute requires that a defendant personally carry or have in his possession a firearm in order to be found guilty thereunder. I would hold that defendant cannot be convicted of violating the felony-firearm statute as an aider and abettor.