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instructing that the intent element for possession of burglary tools is “the intent to use them for breaking and entering”
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Docket No. 106252.
Decided September 5, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Carol K. Bucher, Assistant Prosecuting Attorney, for the people.
Hachnel Calomeni (by E. Craig Smith), for defendant on appeal.
Following a jury trial, defendant was convicted of attempted breaking and entering of a motor vehicle with intent to steal property worth over five dollars, MCL 750.356a; MSA 28.588(1); MCL 750.92; MSA 28.287, and possession of burglary tools, MCL 750.116; MSA 28.311. Defendant also pled guilty to being a habitual offender, third offense, MCL 769.11; MSA 28.1083. Defendant was sentenced to concurrent prison terms of two to five years on the attempted breaking and entering conviction, and three to twenty years on the possession of burglary tools conviction. Defendant appeals as of right. We affirm.
Defendant first argues that the trial court erred in denying his motion to dismiss the charge of possession of burglary tools since there was no proof that the items used were "adapted and designed" for breaking into a depository, as required under the statute. MCL 750.116; MSA 28.311. We do not agree. The circumstances surrounding defendant's arrest fully support such a finding by the jury.
In People v Dorrington, 221 Mich. 571, 574; 191 N.W. 831 (1923), our Supreme Court stated:
The term "adapted and designed" means something more than mere common household articles capable of use in breaking and entering. To come within the statute, the tools must not only be adapted, that is, capable of being used in breaking and entering, but as well designed, that is, contrived or taken to be employed for such purpose.
Our own Court in People v Gross, 118 Mich. App. 161, 167; 324 N.W.2d 557 (1982), found that an ordinary crowbar was a burglary tool adapted and designed for an illegal purpose where the arresting officer testified that he observed the defendant using the crowbar during the burglary to pry off a coin unit on a pool table, and to smash the glass on pinball machines, a jukebox, and a cigarette machine.
The same situation exists here. The items at issue were a thin fiberglass antenna, and a flat piece of steel, about two feet long and a half inch wide, resembling a baling strip. The arresting officer testified that he saw defendant trying to open the car door by moving the items up and down between the door and window. In his twelve years on the police force, the officer had also opened locked automobiles using a flat piece of metal in a similar fashion. In fact, defendant himself admitted that he knew from "watching television" that a car could be broken into using the flat piece of steel in the manner described.
We also find no merit to defendant's contention that § 116 was not intended to apply to the passenger compartment of an automobile as an "other depository" for purposes of a charge of breaking and entering. In People v Andrew Smith, 36 Mich. App. 180, 184; 193 N.W.2d 397 (1971), our Court held that an automobile trunk is clearly a place where things are deposited or stored for safekeeping or convenience, and as such it is within the scope and purpose of the statute. In reaching that conclusion, the panel relied on three opinions from other jurisdictions with similar statutes, including State v Klein, 91 N.J. Super. 509; 221 A.2d 550 (1966). In Klein, supra, p 513, the court reasoned simply that "[c]ommon sense dictates that the statute includes a locked automobile as an `other depository.'" We agree.
Defendant's next argument is that his conviction and punishment for both possession of burglary tools and the attempted breaking and entering for which they were used constitutes double jeopardy in violation of both the federal and state constitutions. US Const, Am V; Const 1963, art 1, § 15. Defendant argues the possession conviction should be vacated as a lesser included offense of the breaking and entering conviction. We disagree.
One of the protections afforded by the Fifth Amendment guarantee against double jeopardy is the protection against multiple punishment for the same offense to insure that courts confine their sentences within the limits established by the Legislature. People v Sturgis, 427 Mich. 392, 399; 397 N.W.2d 783 (1986). Under the federal test, two separate offenses exist where each offense requires proof of at least one fact which the other does not. Blockburger v United States, 284 U.S. 299, 304; 52 S Ct 180; 76 L Ed 306 (1932). In Michigan, the Blockburger test is helpful as a "rough proxy" for analysis of the essential issue, i.e., whether the Legislature intended multiple punishments in order to address distinctly different evils. Sturgis, supra, p 409; People v Walker, 167 Mich. App. 377, 383-384; 422 N.W.2d 8 (1988).
Conviction for possession of burglary tools requires proof that the defendant possessed tools adapted and designed for breaking and entering, that defendant had knowledge that the tools were adapted and designed for that purpose, and that the defendant possessed them with the intent to use them for breaking and entering. MCL 750.116; MSA 28.311; People v Murphy, 28 Mich. App. 150, 157; 184 N.W.2d 256 (1970), lv den 384 Mich. 807 (1971).
The evil intended to be addressed by that statute is plainly the possession of such tools. That is clearly not an element of, nor the interest behind, the crime of attempted breaking and entering of a motor vehicle, where the focus is plainly on the attempted act of breaking and entering. The offense does not require proof of possession of any burglary tools for conviction. MCL 750.356a; MSA 28.588(1); MCL 750.92; MSA 28.287; People v Nichols, 69 Mich. App. 357, 359; 244 N.W.2d 335 (1976), lv den 399 Mich. 808 (1977).
Finally, defendant argues unpersuasively that he was denied effective assistance of counsel in violation of both US Const, Am VI and Const 1963, art 1, § 20 by his trial attorney's failure to present expert testimony to controvert the possible use of the fiberglass antenna and the flat strip of baling metal as burglary tools.
Defendant relies on People v Garcia, 398 Mich. 250, 264-266; 247 N.W.2d 547 (1976), reh den 399 Mich. 1041 (1977). While at least one panel of our Court is of the opinion that the federal standard articulated in Strickland v Washington, 466 U.S. 668, 687-689; 104 S Ct 2052; 80 L Ed 2d 674 (1984), reh den 467 U.S. 1267 (1984), overrules Garcia even under the Michigan Constitution, creating an apparent conflict which our Supreme Court has not yet resolved, see People v Dalessandro, 165 Mich. App. 569, 574-575; 419 N.W.2d 609 (1988), consideration of conflict declined 430 Mich. 880 (1988), we find little or no practical difference between the two tests. Both standards presume effective assistance of counsel, and both require defendant to overcome the presumption by showing deficient and unreasonable conduct by counsel, and resultant prejudice.
Nevertheless, regardless of the test employed, defendant fails to carry his burden here. Since there was no motion for a new trial or request for an evidentiary hearing, review is limited to the record. People v Kenneth Johnson, 144 Mich. App. 125, 129-130; 373 N.W.2d 263 (1985), lv den 424 Mich. 854 (1985). The record reveals that defendant was indeed attempting to break into the car with the antenna and the piece of steel. Whether he would have actually succeeded if allowed to continue is immaterial. In addition, defendant admitted that he knew that the piece of steel could be used as a burglary tool to break into an automobile. Therefore, defendant, at the very least, has failed to establish any prejudice by the failure of his counsel to present expert testimony on this issue.
Affirmed.