Defendant Wrongly Convicted Of Both Larceny "In A Building" And Larceny "From A Person"

by: Matt Newburg

02/26/2018 06:30 PM EST

While the larceny may be “from a person” or “in a building,” both cannot occur at the same time and a person cannot be convicted of both crimes, the Michigan Court of Appeals has ruled in People v Williams.

“The fact that the victim of a larceny from a person is in a building at the time of the larceny, is not sufficient to convict of larceny in a building,” the Court of Appeals held in Williams, a published (binding) decision. “Thus, although a defendant may be charged with these offenses in the alternative as to the same larceny, he may not be convicted of both.”

The defendant in Williams was charged with larceny from a person under MCL 750.357 and larceny in a building under MCL 750.360, as part of a sting operation at the Greektown Casino in Detroit. Using a decoy, the Michigan State Police placed a $100 ticket on the deck of a slot machine and sat about a foot away with her back to the ticket, while she played on her cell phone. The defendant approached the decoy and the ticket, passed by twice, walked behind the decoy, then reached down, took the ticket and walked away. The police arrested the defendant after she walked about five feet with the ticket in her hand. The defendant was convicted of both offenses and sentenced to two years’ probation for each conviction.

On appeal, the defendant claimed that her convictions should be vacated. At oral argument, the Court of Appeals directed the parties to brief an additional issue in the case: whether the convictions for larceny from a person and larceny in a building are inconsistent, such that one of the defendant’s two convictions had to be vacated.

After reviewing the record and the briefs that were submitted, the Court of Appeals concluded the two convictions require findings that are “mutually exclusive,” a circumstance resulting in a situation “where a guilty verdict on one count logically excludes a finding of guilt on the other.”

In reaching this conclusion, the Court of Appeals relied on People v Smith-Anthony, 494 Mich 669 (2013), a case where the Michigan Supreme Court addressed the same two offenses. In Smith-Anthony, the defendant stole a perfume bottle in a store and, while doing so, was observed by a security guard on closed circuit television in an office inside the store. The Smith-Anthony Court held that, in order to be a larceny from a person, the stolen item must have been under the “personal protection” of a person who is in the “immediate presence” of the item and that “[t]his standard is satisfied when the defendant takes property that is in the physical possession of a victim or property that is in immediate proximity to a victim when the taking occurs.”

The Court of Appeals explained that Smith-Anthony contrasted the situation where an item is under the protection of a person with that underlying the crime of larceny in a building. According to the Smith-Anthony Court, the latter occurs when the property is not within the “dominion” of a person and is “only under the ‘protection’ of the store.”

In its analysis, the Smith-Anthony Court also relied on a legal treatise that said: “Goods on open shelves, goods standing on the floor, goods arranged on tables or counters are normally treated as within the protection of the building. One distinction, however, is to be noted. If a jewel or other valuable thing, normally kept out of open reach of customers, is placed on the counter under the eye of the storekeeper or clerk while it is being examined by a customer, this is regarded as under the personal protection of the storekeeper or clerk at the moment, rather than under the protection of the building; whereas articles placed on the counter with the expectation that they will remain there all day, unless purchased, are under the protection of the building.”

In Williams, the Court of Appeals noted this treatise provided additional details concerning the common-law treatment of these two offenses: “The issue is whether the property was under the protection of the [building]. … If the property is in the pocket of some person within the building, or under his personal care at the moment in some other way, it is not regarded as within the protection of the building. The stealing of such property … will be larceny from the person rather than larceny from a building.”

Further, the Court of Appeals pointed to its 2017 decision in People v Davis, 320 Mich App 484. In Davis, the defendant was convicted of assault with intent to commit great bodily harm and aggravated domestic violence. The Davis panel concluded that the two offenses are mutually exclusive from a legislative standpoint, where the statutes “reveal[] that a defendant cannot violate both statutes with one act as he or she cannot both intend and yet not intend to do great bodily harm ….”

Therefore, consistent with the principle in Davis, the Court of Appeals in Williams found that a larceny may be “from a person” or “in a building” – but not both at the same time. “We affirm defendant’s conviction of larceny from a person and vacate her conviction of larceny in a building,” the appeals court concluded.

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