Docket No. 53275.
Decided October 7, 1981. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for the people.
Bell Hudson, P.C., for defendant on appeal.
Defendant was originally charged with armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of or attempt to commit a felony, MCL 750.227b; MSA 28.424(2). Defendant was convicted of the lesser offense of felonious assault, MCL 750.82; MSA 28.277, after a jury trial and was sentenced to a term of one to four years in prison. He appeals as of right.
Defendant argues that the trial court erred in giving an instruction on felonious assault as a lesser included offense of armed robbery. Defendant objected to the instruction, which was requested by the prosecutor. The lower court found that the instruction was proper since felonious assault is a cognate lesser offense of armed robbery and since there was evidence to support the instruction.
In People v Ora Jones, 395 Mich. 379, 388; 236 N.W.2d 461 (1975), the Supreme Court held that if a lesser offense is of the same class or category, or closely related to the originally charged offense, so as to provide fair notice to the defendant that he will be required to defend against it, the lesser offense may be included within the greater and instructions pertaining to the lesser offense properly may be given. Where there is a request to charge on a lesser offense which is not a necessarily included offense, refusal to give the requested instruction is error if evidence has been presented which would support conviction of the lesser offense. People v Richardson, 409 Mich. 126; 293 N.W.2d 332 (1980). The prosecution, as well as the defendant, has the option of precluding "all or nothing" verdict choices as long as the inclusion of the lesser offense does not create notice problems and is supported by the evidence. People v King, 98 Mich. App. 146, 153; 296 N.W.2d 211 (1980).
This Court has set forth a two-fold test for determining whether an offense is a cognate lesser included offense, as follows: "Cognate lesser included offenses share overlapping elements with the greater offense and such overlapping elements relate to a common statutory purpose." See, also, People v Robinson, 101 Mich. App. 687, 692; 301 N.W.2d 41 (1980), People v Bryant, 80 Mich. App. 428, 433; 264 N.W.2d 13 (1978), lv den 402 Mich. 942 (1978). The offenses of felonious assault and armed robbery meet both prongs of this test.
The elements of armed robbery have been defined as follows:
"Armed robbery is a statutory offense. MCL 750.529; MSA 28.797. Under the statute, the essential elements of armed robbery are: (1) that an assault was committed by defendant upon the complainant, (2) that the defendant feloniously took any property which might be the subject of larceny, from the complainant or in his presence, and (3) that the defendant was armed with a weapon described in the statute." People v McGuire, 39 Mich. App. 308, 313; 197 N.W.2d 469 (1972), lv den 387 Mich. 810 (1972).
Accord, People v Beebe, 70 Mich. App. 154; 245 N.W.2d 547 (1976), People v Harris, 82 Mich. App. 135; 266 N.W.2d 477 (1978). The elements which must be proven to sustain a conviction of felonious assault are an assault and that a dangerous weapon was used in making the assault. People v Childs, 11 Mich. App. 408; 161 N.W.2d 428 (1968), People v Hooper, 36 Mich. App. 123; 193 N.W.2d 203 (1971). From these definitions, it is apparent that the offenses of felonious assault and armed robbery share overlapping elements. The statutory offense of armed robbery may consist of a felonious assault with the additional element of larceny.
The overlapping elements of armed robbery and felonious assault relate to a common statutory purpose. They have the shared purpose of protecting the public from assaults which subject the victims to increased risk of harm because of the use of dangerous weapons. The similarity of the danger sought to be avoided in both offenses is shown in the fact that both felonious assault cases and armed robbery cases have employed the same test for determining whether an instrument is a dangerous weapon. See, People v Winfield, 39 Mich. App. 281, 289; 197 N.W.2d 541 (1972), lv den 389 Mich. 766 (1973).
We therefore conclude that the trial court properly determined that felonious assault is a lesser included offense of armed robbery. This conclusion is in accord with cases which have indicated that assault with intent to rob while armed is a necessarily lesser included offense of armed robbery, and that felonious assault is an included offense of assault with intent to rob being armed. See, People v Johnson, 90 Mich. App. 415; 282 N.W.2d 340 (1979), People v Guidry, 67 Mich. App. 653, 658, fn 2; 242 N.W.2d 461 (1976).
The final inquiry in the determination of whether the instruction on felonious assault was properly given is whether the record would support a conviction of felonious assault. People v Robinson, supra, 692-693. As is stated above, the elements which must be proven to sustain a conviction of felonious assault are an assault and that a dangerous weapon was used in making the assault. People v Childs, supra, People v Hooper, supra. The complainant testified that when defendant and his companion came into his place of work, defendant was carrying a pool cue. Defendant stated, "We're not joking, this is a stickup", and hit complainant with the pool cue. Two other witnesses also testified that defendant hit complainant with the pool cue. While defendant does not deny that a pool cue is a dangerous weapon, he maintains that his actions did not constitute an assault upon the complainant. In light of the definition of an assault which was set forth by the Supreme Court in People v Joeseype Johnson, 407 Mich. 196, 210; 284 N.W.2d 718 (1979), we find that the evidence presented was sufficient for a rational trier of fact to find that the essential elements of the crime were established beyond a reasonable doubt.
We therefore conclude that the instruction on felonious assault was proper. We have reviewed defendant's other contentions and find them to be without merit.