Opinion
Docket No. 44831.
Decided August 13, 1980. Leave to appeal denied, 410 Mich. 863.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Michael Lehto, Assistant Prosecuting Attorney, for the people.
Lawrence R. Green, for defendant.
Before: M.F. CAVANAGH, P.J., and R.M. MAHER and D.F. WALSH, JJ.
The defendant was found guilty by jury of attempting to break and enter an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, MCL 750.92; MSA 28.287. He was sentenced to two to five years imprisonment and appeals as of right.
The defendant contends that the evidence of the defendant's prior breaking and entering, introduced by the prosecution at trial, was erroneously admitted under the similar acts statute. We agree and reverse defendant's conviction.
The defendant was apprehended outside the complainant's house following the complainant's call to the police. The complainant testified that the defendant was trying to open the doors of the house and was peering into her windows. She was naturally apprehensive that the defendant would break in. The defendant had been attending a party that evening in the complainant's neighborhood, and there was testimony that the defendant had been drinking heavily and was intoxicated to the point of stupor. The police told a different story. While one officer noted the smell of liquor on the defendant's breath, neither apprehending officer noted any overt signs of excessive intoxication. No sobriety test was administered.
Evidence of similar acts may be admitted in any criminal case, to show a defendant's "motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question". MCL 768.27; MSA 28.1050. Under the holding of People v Major, 407 Mich. 394, 400; 285 N.W.2d 660 (1979), there are two prerequisites to admitting such evidence:
"1) It must be probative of one or more of the statutorily specified purposes, and 2) one or more of those purposes must be material, that is, a proposition `in issue' in the case."
The prosecution's introduction of similar acts evidence was cursory and undeveloped, the prosecution merely asking the defendant if he had broken into the apartment of another named person with a crowbar approximately a year and a half before. The defendant answered affirmatively. The prosecution, during closing arguments, did, however, emphasize this evidence as tending to nullify the defense of intoxication negating specific intent. We view the evidence so admitted as wholly lacking in probative value under the standard set forth in Major, supra, and by this Court in such cases as People v Wilkins, 82 Mich. App. 260; 266 N.W.2d 781 (1978), lv den 403 Mich. 849 (1978), People v Kraai, 92 Mich. App. 398; 285 N.W.2d 309 (1979), People v Bolden, 92 Mich. App. 421; 285 N.W.2d 210 (1979), and People v Bates, 94 Mich. App. 568; 288 N.W.2d 655 (1980).
In Major, the Court stated:
"It is the distinguishing characteristics which constitute the acts as similar within the meaning of MCL 768.27 and MRE 404(b), not the fact that all constitute the same crime or are violative on the same statute. The distinguishing, peculiar or special characteristics which are common to the acts and thus personalize them are said to be the defendant's `signature' which identifies him as the perpetrator, or, if his identity is not contested, negates the suggestion that his behavior in performing the challenged act was unintended, accidental, a mistake, or otherwise innocent." Major, supra, 398-399.
While the defendant's intent is clearly in issue here, there has been no requisite showing that the defendant's prior act is probative in demonstrating defendant's intent in committing the offense charged in the instant case. See Wilkins, supra, 267. It is not enough merely to show that the defendant made an earlier attempt to break and enter, as specific intent on an earlier occasion is not in itself probative in proving specific intent on the present occasion.
What is required is a showing that the defendant's "signature" on an earlier offense is "distinguishing, peculiar or special enough" to demonstrate that defendant held the specific intent to commit larceny in the instant case. The degree of specificity required is substantial. See Bolden, supra, Bates, supra. Certainly that burden was not met by evidence that the defendant previously entered another dwelling with a crowbar. In the instant case, no tools were found on the defendant at the time of his apprehension. The prosecution demonstrated no similarities between the two offenses that could indicate the defendant's specific intent in the case at bar. Such evidence was admitted in error. Not finding the error to be harmless beyond a reasonable doubt, we reverse the defendant's conviction.
The defendant further contends that the evidence was not sufficient to support the verdict that the defendant held the specific intent to commit larceny. The question is a close one; however, we are persuaded the evidence was sufficient to justify a rational trier of fact in finding guilt beyond a reasonable doubt. People v Hampton, 407 Mich. 354; 285 N.W.2d 284 (1979).
Reversed and remanded for a new trial.