PEOPLE OF MI V RANDY WILLIAM TARASOFF
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 24, 2007
Plaintiff-Appellee,
v
No. 269575
Macomb Circuit Court
LC No. 2005-003837-FC
RANDY WILLIAM TARASOFF,
Defendant-Appellant.
Before: Meter, P.J., and Talbot and Owens, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of unarmed robbery, MCL 750.530, and
sentenced as an habitual offender, second offense, MCL 769.10, to 29 to 270 months’
imprisonment.1 He appeals as of right. We affirm.
I
Defendant was convicted of robbing the twenty-year-old complainant, a traveling doorto-door magazine salesperson, in July 2005 in Sterling Heights. The complainant testified that,
as she was working, defendant and Joseph Markus approached her and asked about her
magazines, and the three began to converse. As the complainant was smoking a cigarette with
Markus and defendant, Markus took her “pat case” containing her receipts, lists, and Visa card,
as well as $220. At the complainant’s insistence, her case was returned, but without the money.
The complainant attempted to retrieve the money and, as she patted down Markus, he revealed a
knife underneath his shirt. Markus told the complainant that he would return the money if she
“h[u]ng out” with him later. The complainant then used defendant’s cellular telephone and
feigned calling friends to arrange the later meeting, but instead she called her supervisor, who
was driving around the area. When defendant noticed the complainant talking “gibberish,”
1
Defendant was charged with armed robbery, MCL 750.529 (with larceny from a person, MCL
750.357, as an alternative offense) and conspiracy to commit armed robbery, MCL 750.157a and
MCL 750.529 (with conspiracy to commit larceny from a person, MCL 750.157a and MCL
750.357, as an alternative offense). The trial court dismissed the conspiracy charges after a
directed verdict motion. The court instructed the jury on unarmed robbery as a lesser-included
offense of armed robbery.
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defendant said, “don’t make me bust out my gun.” Within minutes of the call, the supervisor
arrived, and defendant and Markus fled in different directions.
The complainant’s supervisor was unable to catch defendant or Markus. A passerby
testified that he saw defendant running and eventually hiding in a bush near a garage. A resident
of the area testified that defendant ran into his garage and asked to be hidden because the police
were looking for him. Defendant said that he robbed a magazine salesperson and hid a ninemillimeter gun and that Markus had the money. Defendant changed his clothes while in the
garage and was picked up by an acquaintance after making a telephone call.
The police located defendant after retrieving his cellular telephone number from the
complainant’s supervisor’s cellular telephone. When the police approached defendant at his
home, defendant denied robbing the complainant but accused Markus of doing so. When asked
if he had a gun at the time, defendant admitted that he told the complainant that he had
“something.” The police arrested Markus at his home and found $194 and a folding knife, which
the complainant identified at trial.
II
Defendant first argues that he was denied the effective assistance of counsel because
defense counsel failed to request an adjournment “when faced with late discovery.” We
disagree.
As stated in People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995):
Effective assistance of counsel is presumed, and the defendant bears a
heavy burden of proving otherwise. To establish ineffective assistance of
counsel, a defendant must show that counsel's performance was below an
objective standard of reasonableness under prevailing professional norms and
there is a reasonable probability that, but for counsel's error, the result of the
proceedings would have been different.
Defendant has failed to demonstrate that, had defense counsel moved for an adjournment,
there is a reasonable probability that the motion would have been successful. “No adjournments,
continuances or delays of criminal causes shall be granted by any court except for good cause
shown . . . .” MCL 768.2. A trial court’s ruling on a motion for an adjournment is reviewed for
an abuse of discretion. People v Snider, 239 Mich App 393, 421; 608 NW2d 502 (2000).
Moreover, “a defendant must show prejudice as a result of the trial court’s abuse of discretion”
in denying an adjournment. Id.
Defendant was initially charged with larceny from a person. Subsequently, in a separate
information, defendant was charged with armed robbery, conspiracy to commit armed robbery,
and conspiracy to commit larceny from a person. Both cases were set for trial on the same day.
On the first day of trial, the trial court allowed the prosecutor to consolidate the two cases,
thereby amending the second information to add larceny from a person as an “alternative” or
lesser-included offense of armed robbery, pursuant to MCR 6.120(a). In doing so, the court
explained that the offense of larceny from a person arose out of the same facts and circumstances
as the charges of armed robbery, conspiracy to rob while armed, and conspiracy to commit
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larceny from a person. Defense counsel objected to the consolidation, arguing that he did not
have an amended information, that he did not receive an amended witness list so “he was at a
loss” as to which witnesses from the two cases would be called, and that he was at a “significant
disadvantage” in having to try a completely different case. In response, the trial court noted that
“[a]ll of the information within these informations had already been furnished to the defendant”
and that the witness list “is the same in both cases.”
Defendant has not established a reasonable basis for an adjournment. Initially, contrary
to defendant’s statement, the defense was not “faced with late discovery.” As aptly noted by the
trial court, all of the evidence, including the witnesses, were the same in both cases, and the
larceny from a person charge was only an alternative offense to the armed robbery charge. In
addition, defense counsel was appointed to represent defendant for the charge of armed robbery
in August 2005, and trial commenced in January 2006. Thus, defense counsel was fully aware of
the facts in this case, which were not complex. Further, defendant does not claim that he was
surprised by any witness and makes no specific claims of prejudice. There is simply nothing in
the record to support defendant’s assertion that defense counsel should have moved for an
adjournment or that defense counsel was unprepared to try the case.
Under these circumstances, a request for an adjournment would have been futile.
Consequently, defense counsel was not ineffective. Snider, supra at 425.
III
Defendant also argues that the trial court deprived him of due process when it refused to
allow him to plead guilty to the lesser offense of larceny from a person. We disagree. A trial
court’s decision to reject a defendant’s guilty plea is reviewed for an abuse of discretion. See,
generally, People v Grove, 455 Mich 439, 444; 566 NW2d 547 (1997).
On the first day of trial, defendant requested to enter a plea of guilty to larceny from a
person. The prosecutor objected. In refusing to accept defendant’s plea, the court stated:
No, I’m not taking your client’s plea. I’m consolidating those matters
under one file. It’s clear that that was the intention. That’s what the Court is
going to do. It’s clear that they arise under the same facts and circumstances.
In denying defendant’s motion for a new trial on this issue, the trial court explained:
[T]he most serious charge here was robbery armed. Prior to the trial the
prosecution did move to consolidate all charges in one information, and larceny
from a person was added at that time. That - - at the time the Court ruled that the
larceny from a person arose out of the same facts and circumstances as the armed
robbery, and - - and under those circumstances tendering of the plea to the lesser
included offense of larceny from a person would have been an invasion into the
prosecutorial function. The attempt to - - in other words, the attempt to plead to
the lesser included offense and walk from the armed robbery was apparently the
tactic that was being employed at the time, and the Court would have none of it
since larceny from a person was merely an included offense.
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The trial court consolidated the larceny and robbery charges because they arose out of the
same offense, and larceny is a lesser offense of robbery. A defendant does not have a
constitutional right to plead guilty to a lesser offense to avoid prosecution on a greater charge.
See Santobello v New York, 404 US 257, 262; 92 S Ct 495; 30 L Ed 2d 427 (1971) (“There is, of
course, no absolute right to have a guilty plea accepted,” and a “court may reject a plea in
exercise of sound judicial discretion.”). In addition, “the decision whether to bring a charge and
what charge to bring lies in the discretion of the prosecutor.” People v Venticinque, 459 Mich
90, 100; 586 NW2d 732 (1998); see also People v Nichols, 262 Mich App 408, 415; 686 NW2d
502 (2004). Defendant has not demonstrated that the prosecutor’s decision to charge larceny
from a person as an alternative offense to armed robbery was an abuse of discretion. See People
v Barksdale, 219 Mich App 484, 488; 556 NW2d 521 (1996) (a prosecutor abuses his discretion
only if “a choice is made for reasons that are unconstitutional, illegal, or ultra vires”) (internal
citation and quotation marks omitted). The trial court did not abuse its discretion in rejecting
defendant’s plea.
IV
Defendant finally argues that the trial court erred in refusing to instruct the jury on the
misdemeanor offenses of (1) larceny less than $200 and (2) larceny of $200 or more, but less
than $1,000, as lesser-included offenses of armed robbery and larceny from a person. We
disagree.
“MCL 768.32 only permits instruction on necessarily included lesser offenses, not
cognate lesser offenses.” People v Reese, 466 Mich 440, 446; 647 NW2d 498 (2002); see also
People v Cornell, 466 Mich 335, 357-358; 646 NW2d 127 (2002).
A necessarily included offense is one that must be committed as part of the
greater offense; it would be impossible to commit the greater offense without first
having committed the lesser. In other words, if a lesser offense is a necessarily
included offense, the evidence at trial will always support the lesser offense if it
supports the greater. [People v Alter, 255 Mich App 194, 199; 659 NW2d 667
(2003) (internal citations and quotation marks omitted).]
A cognate offense may contain one or more elements not found in the greater offense. Cornell,
supra at 345. The determination whether an offense is a lesser-included offense is a question of
law subject to de novo review. See People v Mendoza, 468 Mich 527, 531; 664 NW2d 685
(2003).
Larceny less than $200, and larceny of $200 or more, but less than $1,000,2 are not
necessarily included offenses of armed robbery,3 or larceny from a person.4 A person can
2
MCL 750.356 provides:
(1) A person who commits larceny by stealing any of the following
property of another person is guilty of a crime as provided in this section:
(continued…)
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commit the offenses of armed robbery and larceny from a person by stealing property from a
person or in a person’s presence, regardless of the value of the property. In contrast, “[a] larceny
is committed when one steals the property of another outside the person’s presence.” People v
Perkins, 473 Mich 626, 635 n 9; 703 NW2d 448 (2005) (emphasis added); see also People v
Beach, 429 Mich 450, 483; 418 NW2d 861 (1988) (“only larceny from the person is necessarily
included in robbery”). In addition, the plain language of both MCL 750.356(4)(a) and (5)
require that the property taken have a specific monetary value. Because larceny less than $200,
and larceny of $200 or more, but less than $1,000, are not necessarily included lesser offenses of
armed robbery or larceny from a person, the trial court’s refusal to instruct the jury on those
offenses was not error. Reese, supra at 446.
Affirmed.
/s/ Patrick M. Meter
/s/ Michael J. Talbot
/s/ Donald S. Owens
(…continued)
(a) Money, goods, or chattels.
***
(4) If any of the following apply, the person is guilty of a misdemeanor . . .
:
(a) The property stolen has a value of $200.00 or more but less than
$1,000.00.
***
(5) If the property stolen has a value of less than $200.00, the person is
guilty of a misdemeanor . . . .
3
The elements of armed robbery are (1) an assault, and (2) a felonious taking of property from
the victim’s presence or person, (3) while the defendant is armed with a dangerous weapon or
with an article used or fashioned in such a way as to lead a reasonable person to believe that it is
a dangerous weapon. People v Ford, 262 Mich App 443, 458; 687 NW2d 119 (2004); MCL
750.529.
4
“The elements of larceny from a person are (1) the taking of someone else’s property without
consent, (2) movement of the property, (3) with the intent to steal or permanently deprive the
owner of the property, and (4) the property was taken from the person or from the person’s
immediate area of control or immediate presence.” People v Perkins, 262 Mich App 267, 271272; 686 NW2d 237 (2004), aff’d 473 Mich 626 (2005); see also MCL 750.357.
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