Opinion
Docket No. 73120.
Decided September 24, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people.
Gerald S. Surowiec, for defendant.
After a nonjury trial, defendant was convicted of receiving and concealing stolen property of a value exceeding $100, MCL 750.535; MSA 28.803. Defendant was sentenced to imprisonment for from two to five years, and he appeals as of right.
At trial, Sonia Abu-Sawwan testified that she had custody and control of a 1981 Pontiac Firebird automobile, license plate No. WWR 800, worth more than $100. She parked the car on the street in front of her home at about 1:30 a.m. on January 2, 1983, and she discovered it missing about 8:00 a.m. the same morning. She had given no one permission to take it.
Thomas Berry, a Detroit police officer, testified that at about 3:00 p.m. on January 3, 1983, he observed a 1981 Pontiac Firebird automobile, license plate No. WWR 800, with two men inside. He discovered the car had been reported stolen, so he continued to observe it. He observed defendant and another man get out of the car, defendant on the driver's side. Defendant spoke to a bystander, while the other man went into a store, then both got back into the car. The officer approached in his car, and both men again got out of the car, defendant again on the driver's side. Defendant looked toward the officer, then ran into the store, where he was apprehended. The bystander testified and corroborated Officer Berry's testimony.
Defendant testified that he was employed at the store and that on January 3, 1983, he started work between 12:00 and 12:30 p.m. A stranger brought a car to the store to show to the store owner; defendant examined the car and advised the owner that it was probably "hot". Three or four minutes later, the police entered the store and arrested defendant. A regular customer of the store who was present at the time of the arrest testified and corroborated defendant's testimony.
Defendant argues that the evidence was insufficient to sustain his conviction. Evidence is sufficient to sustain a conviction if, viewed in the light most favorable to the prosecution, it would enable a rational trier of fact to conclude that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich. 354, 368; 285 N.W.2d 284 (1979). The elements of the crime of receiving and concealing stolen property of a value exceeding $100 were listed in People v Matuja, 77 Mich. App. 291, 295; 258 N.W.2d 79 (1977):
"(1) that the property was stolen; (2) the value of the property; (3) the receiving, possession or concealment of such property by the defendant with the knowledge of the defendant that the property had been stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty constructive or actual knowledge of the defendant that the property received or concealed had been stolen."
Defendant points out that Sonia Abu-Sawwan testified that she had possession and control of the car at issue, not that she owned it, and defendant argues that the prosecution therefore failed to show that the car was stolen. However, it is well-settled that a larceny can be committed by a wrongful taking from a person in actual possession or custody of the goods taken; ownership need not be show. Durand v People, 47 Mich. 332, 334; 11 N.W. 184 (1882); People v Cabassa, 249 Mich. 543, 547; 229 N.W.2d 442 (1930); People v Gould, 384 Mich. 71, 79, 81; 179 N.W.2d 617 (1970).
Defendant also argues that insufficient evidence of knowledge that the property was stolen was produced. However, such knowledge could be inferred from defendant's flight when he observed Officer Berry approaching in a police car; moreover, defendant admitted such knowledge in his own testimony. On this record, ample evidence to satisfy the Hampton standard was produced for every essential element of the crime.
Defendant also complains of the prosecution's failure to endorse or call certain alleged res gestae witnesses. Because defendant failed to comply with the requirements of People v Robinson, 390 Mich. 629; 213 N.W.2d 106 (1973), and People v Willie Pearson, 404 Mich. 698; 273 N.W.2d 856 (1979), by raising this issue in the lower court during trial or by a motion for a new trial, appellate review is foreclosed absent manifest injustice. See, for example, People v Jeffery Johnson, 113 Mich. App. 650, 662; 318 N.W.2d 525 (1982).
Defendant first points to the man who, according to defendant's testimony, tried to sell the car to the store owner in defendant's presence. However, the prosecutor's duty to endorse and call res gestae witnesses does not extend to accomplices. See, for example, People v Belenor, 408 Mich. 244, 246; 289 N.W.2d 719 (1980). A potential witness falls within the accomplice exception if he or she could have been charged with the same crime as the defendant. People v Threlkeld, 47 Mich. App. 691, 696; 209 N.W.2d 852 (1973). Even assuming that defendant's testimony as to the existence of this person was true, the testimony clearly shows that this person could have been charged with receiving and concealing stolen property of a value exceeding $100. The prosecution therefore was not obliged to endorse or call this person.
Defendant also points to persons present in the store at the time of his arrest, including the owner, a worker, and several customers. The term "res gestae witness" has been defined to include all persons who are eyewitnesses to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged offense. See, for example, People v Austin, 95 Mich. App. 662, 674; 291 N.W.2d 160 (1980). In People v Harrison, 44 Mich. App. 578, 591; 205 N.W.2d 900 (1973), the term was defined broadly to include any witness whose testimony is reasonably necessary to protect the defendant against a false accusation.
Here, if Officer Berry's testimony is believed, the persons in the store saw only defendant's arrest. Persons who see an arrest but nothing more are not res gestae witnesses, because they have not seen an event in the continuum of the criminal transaction and because their testimony is not reasonably necessary to protect against a false accusation. If the defendant's testimony rather than that of Officer Berry is believed, the persons in the store could have testified that defendant was in the store with them at the time that Officer Berry's testimony placed defendant outside the store in possession of the stolen car. However, an alibi witness is a person whose testimony places the defendant elsewhere than at the scene of the crime. See, for example, People v McGinnis, 402 Mich. 343, 345; 262 N.W.2d 669 (1978). Therefore, under defendant's theory, the persons in the store were alibi witnesses. Alibi witnesses conceivably fall within some of the broadest definitions of the term "res gestae witness" but defendant does not cite, and we cannot find, any authority in which an alibi witness was held to be a res gestae witness. The separate and inconsistent statutory schemes for dealing with res gestae and alibi witnesses convince us that alibi witnesses are not res gestae witnesses whom the prosecutor is obliged to endorse and call. Compare MCL 767.40; MSA 28.980, with MCL 768.20; MSA 28.1043.
On this record, no mainifest injustice is presented by the prosecution's failure to endorse and call the persons at issue.
Affirmed.