Opinion
Docket No. 81323.
Decided March 4, 1986. Leave to appeal denied, 425 Mich. 862.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Michael W. La Beau, Prosecuting Attorney, and Lawrence J. VanWasshenova, Assistant Prosecuting Attorney, for the people.
John E. Luchansky, Jr., for defendant on appeal.
Defendant was charged with one count of criminal sexual conduct in the first degree, MCL 750.520b(1)(d); MSA 28.788(2)(1)(d), and with one count of assault with intent to commit murder, MCL 750.83; MSA 28.278. Pursuant to a bench trial, defendant was acquitted of the criminal sexual conduct count and convicted of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. Defendant appeals as of right.
On appeal, defendant claims that the evidence at trial was insufficient to support his conviction. We disagree.
In reviewing the sufficiency of the evidence in an appeal from a bench trial, this Court must determine whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt, People v Marlin Smith, 119 Mich. App. 91, 94; 326 N.W.2d 434 (1982); People v Gregory Johnson, 112 Mich. App. 483, 489; 316 N.W.2d 247 (1982), or whether the court clearly erred, People v Triplett, 105 Mich. App. 182, 190-191; 306 N.W.2d 442 (1981), remanded 414 Mich. 898; 323 N.W.2d 7 (1982); People v Anderson, 112 Mich. App. 640, 648; 317 N.W.2d 205 (1981).
Defendant was convicted of assault with intent to do great bodily harm on an aider and abettor theory. In People v Vicuna, 141 Mich. App. 486, 495-496; 367 N.W.2d 887 (1985), this Court summarized the law applicable to aiding and abetting:
"One who procures, aids or abets in the commission of an offense may be tried and convicted as if he directly committed the offense. MCL 767.39; MSA 28.979. The phrase `aiding and abetting' describes all forms of assistance rendered to the perpetrator of the crime and comprehends all words or deeds which may support, encourage or incite the commission of a crime. People v Palmer, 392 Mich. 370; 220 N.W.2d 393 (1974); People v Cortez, 131 Mich. App. 316; 346 N.W.2d 540 (1984); People v Turner, 125 Mich. App. 8; 336 N.W.2d 217 (1983). Mere presence, even with knowledge that an offense is about to be committed, is not enough to make one an aider or abettor. People v Burrel, supra. To be convicted, the defendant must either himself possess the required intent or participate while knowing that the principal possessed the required intent. Turner, supra; People v Karst, 118 Mich. App. 34; 324 N.W.2d 526 (1982); People v Triplett, 105 Mich. App. 182; 306 N.W.2d 442 (1981), remanded on other grounds 414 Mich. 898; 323 N.W.2d 7 (1982)."
Assault with intent to do great bodily harm less than murder is a specific intent crime. People v Mack, 112 Mich. App. 605; 317 N.W.2d 190 (1981); People v Gillian, 27 Mich. App. 314; 183 N.W.2d 364 (1970), lv den 384 Mich. 790 (1970). In order to convict the defendant at bar, therefore, the prosecution had to establish that defendant either possessed the specific intent to do great bodily harm or knew that the principal possessed that specific intent. Defendant's specific intent or his knowledge of the principal's specific intent may be inferred from circumstantial evidence. People v Vicuna, supra, p 496; People v Kramer, 108 Mich. App. 240; 310 N.W.2d 347 (1981).
At the trial in this case, complainant indicated that defendant and his brother, Robert Eggleston, threw her in the back of defendant's truck. Defendant raped the complainant and then entered the cab of the truck. Robert Eggleston then entered the rear of the truck and yelled to defendant to drive to Toledo.
Robert then raped the complainant and stabbed her six or seven times in the chest with a pocket knife. The complainant tried to play dead, but Robert continued to rape her.
After a while, defendant stopped the truck, came around to the back and, upon seeing that the complainant was bleeding, told Robert to let her go. Robert refused, saying that he was going to finish her off and dump her in the water. Defendant got back in the cab of the truck and continued to drive south.
Complainant continued to struggle with Robert, who stabbed her again and again. Complainant tried to climb out the back window and eventually fell off the truck onto a gravel road. When she saw the brake lights of the truck go on, she ran away.
The complainant ran an unknown distance until she spotted a house. After she smashed through a window of the bathroom, the owners of the house called the police and rescue squad. The complainant was taken to a hospital where she was treated for multiple stab wounds, a collapsed right lung, contusions and abrasions.
Approximately one-half hour after complainant was found, defendant and his brother were pulled over by the police for speeding. Upon finding blood on the truck and a female shoe, woman's watch, underwear and a blood stained knife in the truck, the police arrested defendant and his brother for the assault on the complainant.
Defendant testified on his own behalf and contradicted the complainant's story. He denied raping complainant and indicated that complainant got into the back of the truck with Robert willingly. He also indicated that he could not see or hear what transpired in the back of the truck because of the rain that was falling, the noise from the snow tires on the gravel road and the music from the radio.
He claimed that he stopped the truck when he heard a window break in the back of the truck. When he went to the rear, he was shocked to see his brother covered with blood. His brother told him that complainant had jumped out of the truck. Defendant turned the truck around, looked for complainant for a while and then headed for home. On the way home, Robert told him that he had stabbed the complainant.
Robert Eggleston also testified at trial and basically corroborated defendant's testimony. He explained that, when he and complainant got into the back of the truck, he was unable to have intercourse with complainant because of his intoxicated condition. The complainant got angry about this and assaulted Robert with an electrical cord that was in the truck. Robert pulled his knife out in self-defense. He admitted stabbing her and stated that, when he tried to stop her bleeding, she jumped out of the truck. Robert yelled for his brother to stop the truck and banged on the window, leaving a bloody handprint. Defendant eventually heard him and stopped the truck.
The prosecution introduced into evidence a voluntary tape recorded statement that defendant had made several hours after he was taken into custody. This statement contradicted several parts of his trial testimony, particularly as to defendant's ability to see and hear what was occurring in the back of the truck.
In its findings of fact, the trial court stated that defendant could not help but be aware of the struggle taking place in the back of the truck, given the victim's calls for help, the pounding on the window, and defendant's position to observe what was transpiring in the back of the truck through the window in the cab. The trial court also found that the defendant must have known that the complainant was suffering from a severe battery at defendant's brother's hands. However, the trial court did not believe that defendant knew that his brother intended murder. Therefore, the trial court convicted defendant of assault with intent to commit great bodily harm less than murder.
Our review of the record indicates that the credibility of the various witnesses was a critical factor in the determination of defendant's guilt. This Court gives great deference to the superior ability of the trial court to assess the credibility of the witnesses. People v Gregory Johnson, 112 Mich. App. 483, 489; 316 N.W.2d 247 (1982); People v Thomas, 387 Mich. 368, 372; 197 N.W.2d 51 (1972). Viewing the evidence in the case at bar in a light most favorable to the prosecution, we conclude that the evidence was sufficient to sustain defendant's conviction.
Defendant's final issue on appeal is that the trial court's findings of fact do not satisfy GCR 1963, 517.1.
Currently, there is a split among the panels of this Court concerning the degree of specificity necessary to satisfy the above court rule. In People v Davis, 126 Mich. App. 66; 337 N.W.2d 315 (1983), this Court held that specific findings of fact on each element of the crime are necessary to satisfy the court rule. Another panel in People v Taylor, 133 Mich. App. 762; 350 N.W.2d 318 (1984), rev'd and remanded on other grounds 422 Mich. 554, 568; 375 N.W.2d 1 (1985), stated that, so long as it appears from the court's findings of fact that the trial court was aware of the issues in the case and correctly applied the law, the requirements of GCR 1963, 517.1 have been met. As of the date that the instant case was decided, this conflict has not been resolved.
This panel is of the opinion that the holding in People v Taylor, supra, is the better view. Judging the instant trial court's findings of fact under the standard utilized in Taylor, we find they are sufficient.
Judge HOOD acknowledges that he was a member of the panel deciding People v Davis, supra; however, he no longer subscribes to the Davis view.
Affirmed.