PEOPLE OF MI V GLENN TERRANCE WILLIAMS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
April 8, 2010
9:00 a.m.
Plaintiff-Appellee,
v
GLENN TERRANCE WILLIAMS, a/k/a GLEN
TERRANCE WILLIAMS,
No. 284585
Muskegon Circuit Court
LC No. 06-053640-FC
Defendant-Appellant.
Before: OWENS, P.J., and TALBOT and GLEICHER, JJ.
TALBOT, J.
Defendant appeals by leave granted1 the trial court’s denial of his request to withdraw his
guilty plea to armed robbery. MCL 750.529. The trial court sentenced defendant, as a fourth
habitual offender, MCL 769.12, to 24 to 40 years’ imprisonment. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Defendant was initially charged with two separate armed robberies, which occurred on
consecutive days at different locations involving a Clark Gas Station and the Admiral Tobacco
Shop. As part of a “package” deal, defendant pleaded guilty to armed robbery on both files.
Difficulties were encountered when the trial court tried to establish a factual basis for
defendant’s pleas. In this appeal, we are interested solely in defendant’s plea in the Admiral
Tobacco Shop case.
With regard to the Admiral Tobacco Shop, defendant acknowledged that his intent, upon
entering the store, was to steal money. Defendant also admitted that he had placed his hand “up
under” his coat, suggesting the possession of a weapon and told the clerk, “[Y]ou know what this
is, just give me what I want.” The trial court accepted the plea finding it “to be knowing,
voluntary, understanding, and accurate.” Subsequently, defendant was sentenced to 24 to 40
years’ imprisonment for the armed robbery.
1
People v Williams, unpublished order of the Michigan Court of Appeals, issued June 16, 2008
(Docket No. 284585). Our Supreme Court denied defendant’s subsequent application for leave
to appeal. People v Williams, 482 Mich 1035; 757 NW2d 81 (2008).
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Approximately one year after pleading guilty and six months after being sentenced,
defendant filed a motion seeking to withdraw his pleas. Defendant argued that his plea in the
Admiral Tobacco Shop case was deficient because there was no demonstration or showing that
defendant actually took any property from the store. Following the submission of additional
briefs, the trial court issued a written opinion and order denying defendant’s motion to withdraw
his plea. This appeal ensued.
II. STANDARD OF REVIEW
The issue before this Court can be summarized as whether a completed larceny is
necessary to sustain a conviction for armed robbery, pursuant to MCL 750.529. Consequently,
the outcome of this appeal is completely dependent on the statutory language comprising MCL
750.529 and MCL 750.530. It is well recognized:
“[T]he interpretation and application of statutes is a question of law that is
reviewed de novo.” People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998).
The primary goal of statutory interpretation is to give effect to the intent of the
Legislature. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). The
objective of statutory interpretation is to discern the intent of the Legislature from
the plain language of the statute. People v Sobczak-Obetts, 463 Mich 687, 694695; 625 NW2d 764 (2001). “We begin by examining the plain language of the
statute; where that language is unambiguous, we presume that the Legislature
intended the meaning clearly expressed-no further judicial construction is
required or permitted, and the statute must be enforced as written.” People v
Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). In doing so, we must be
mindful that “[i]t is the role of the judiciary to interpret, not write, the law.”
People v Schaefer, 473 Mich 418, 430-431; 703 NW2d 774 (2005), clarified in
part on other grounds People v Derror, 475 Mich 316, 320; 715 NW2d 822
(2006). [People v Barrera, 278 Mich App 730, 735-736; 752 NW2d 485 (2008).]
This Court also reviews de novo whether specific conduct falls within the prohibitions of a
statute as a question of law. People v Adkins, 272 Mich App 37, 39; 724 NW2d 710 (2006).
Relevant to this appeal, we would further note that there exists no absolute right to withdraw a
guilty plea, which is within the trial court’s discretion. People v Ovalle, 222 Mich App 463, 465;
564 NW2d 147 (1997).
III. ANALYSIS
The four statutes pertaining to robbery are contained within Chapter LXXVIII of the
Michigan Penal Code.2 In this appeal, we are concerned with the statutes pertaining to robbery
and unarmed robbery following their legislative revision in 2004 PA 128. Specifically, MCL
750.529, defining armed robbery, currently provides:
2
Specifically: MCL 750.529 (armed robbery), MCL 750.529a (carjacking), MCL 750.530
(robbery), and MCL 750.531 (bank robbery).
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A person who engages in conduct proscribed under section 530 and who
in the course of engaging in that conduct, possesses a dangerous weapon or an
article used or fashioned in a manner to lead any person present to reasonably
believe the article is a dangerous weapon, or who represents orally or otherwise
that he or she is in possession of a dangerous weapon, is guilty of a felony
punishable by imprisonment for life or for any term of years. If an aggravated
assault or serious injury is inflicted by any person while violating this section, the
person shall be sentenced to a minimum term of imprisonment of not less than 2
years.
Robbery is defined within MCL 750.530, which states:
(1) A person who, in the course of committing a larceny of any money or
other property that may be the subject of larceny, uses force or violence against
any person who is present, or who assaults or puts the person in fear, is guilty of a
felony punishable by imprisonment for not more than 15 years.
(2) As used in this section, “in the course of committing a larceny”
includes acts that occur in an attempt to commit the larceny, or during
commission of the larceny, or in flight or attempted flight after the commission of
the larceny, or in an attempt to retain possession of the property.
Based on these recent revisions, it must be determined whether a perpetrator must actually
commit a completed larceny to be convicted of an armed robbery.3 Specifically, with reference
to the issue on appeal, we must address whether the trial court erred in accepting defendant’s
guilty plea to the offense of armed robbery when there was no proof or evidence of a completed
larceny. We find that the statutory language now encompasses attempts and that, as a result, a
completed larceny is no longer required for a conviction of armed robbery.4
It is undisputed that MCL 750.529 and MCL 750.530 must be read together because
armed robbery requires that a person be “engage[d] in conduct proscribed under section [MCL
750].530.” MCL 750.529. In addition, for a robbery to rise to the level of an armed robbery,
MCL 750.529 requires that the individual “possess[] a dangerous weapon or an article used or
fashioned in a manner to lead any person . . . to reasonably believe the article is a dangerous
weapon, or who represents orally or otherwise that he or she is in possession of a dangerous
weapon.” Notably, defendant acknowledged during his plea that he acted in a manner to suggest
to the store clerk that he possessed a weapon. Hence, the issue before us is restricted solely to
whether a larceny must be completed for defendant’s armed robbery conviction to stand.
3
Larceny is defined as: “The unlawful taking and carrying away of someone else's personal
property with the intent to deprive the possessor of it permanently.” Black’s Law Dictionary (8th
ed).
4
In contrast, the dissent finds that the absence of a completed larceny precludes a conviction
under the statute.
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Clearly, other than separately requiring the existence or representation of the presence of
a weapon, the crime of armed robbery is restricted to the “conduct proscribed under section
530.” MCL 750.529. In turn, MCL 750.530 indicates that the conduct “proscribed” is the use of
“force or violence” while “in the course of committing a larceny of any money or other property
that may be the subject of larceny.” Our analysis must focus on the definition, contained in
MCL 750.530(2), of the term “in the course of committing a larceny,” which “includes acts that
occur in an attempt to commit the larceny, or during the commission of the larceny, or in flight
or attempted flight after the commission or the larceny, or in an attempt to retain possession of
the property.”5 (Emphasis added.) This Court has no alternative but to strictly adhere to the
language used by the Legislature in revising this statute and not seek to attribute either motive or
reasoning beyond the plain and ordinary meaning of the wording chosen for use. As such, the
crime of armed robbery now also encompasses attempts to commit that offense.
“Where, as here, a statute supplies its own glossary, courts may not import any other
interpretation, but must apply the meaning of the terms as expressly defined.” People v Muzzin
& Vincenti, Inc, 74 Mich App 634, 639; 254 NW2d 599 (1977). When dealing with statutory
language, it is a well-defined precept:
While courts may decide the validity of statutes and ordinances and construe laws
in order to determine the actual legislative intent, the duty of the courts, both with
respect to city ordinances and with respect to enactments of the legislature, is
merely to interpret and apply the law as it is found to be. They cannot, under the
guise of construction, redraft, or change the plain phrasing of the legislative fiat.
They may not legislate, or undertake to compel legislative bodies to do so. [1
Michigan Pleading & Practice, Statutory Construction (2d ed), § 2:28 (footnotes
omitted).]
In other words:
[W]hen a statute specifically defines a given term, that definition alone controls.
Therefore, a statutory definition supersedes a commonly accepted dictionary or
judicial definition of a term. [22 Michigan Civil Jurisprudence, Legislative
Definitions, § 202 (footnotes omitted).]
The legislative definition of “in the course of committing a larceny” specifically “includes acts
that occur in an attempt to commit the larceny.” The term “attempt,” which is not defined within
the statute, is recognized to mean:
1. The act or an instance of making an effort to accomplish something,
esp. without success. 2. Criminal law. An overt act that is done with the intent to
5
The dissent elects to interpret this provision to indicate merely the legislative reinstitution of a
transactional approach that would allow an armed robbery to be charged if a weapon, or the
threat of a weapon, is used at any point in the continuum of the completion of a larceny.
Interpreted in this manner, a completed larceny is a necessary component to meet the statutory
definition.
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commit a crime but that falls short of completing the crime. • Attempt is an
inchoate offense distinct from the attempted crime. Under the Model Penal Code,
an attempt includes any act that is a substantial step toward commission of a
crime, such as enticing, lying in wait for, or following the intended victim or
unlawfully entering a building where a crime is expected to be committed.
[Black’s Law Dictionary (8th ed).]
As such, the statutory language specifically considers and incorporates acts taken in an attempt
to commit a larceny, regardless of whether the act is completed. This is consistent with the
language of MCL 750.530(2), which distinguishes by the use of the word “or” between acts
committed in “an attempt to commit the larceny” from those acts occurring “during the
commission of the larceny” or any subsequent acts comprising flight or efforts to retain any
property. The term “or” is “used to connect words, phrases, or clauses representing alternatives.”
Random House Webster’s College Dictionary (1997). Hence, an attempt to commit a larceny
comprises a separate and distinct action and is not merely a component of the completed act. In
addition, we would note that MCL 750.530(2) defines “in the course of committing a larceny”
(emphasis added) and not “the larceny.” The term “a larceny” denotes a more generic, nonspecific or generalized act. The fact that the term “the larceny” is subsequently used within this
subsection of the statute merely denotes a reference back to the more generalized “a larceny.”
Logically, acts taken in the process of committing a larceny necessarily includes steps or
behaviors occurring at any point in the continuum, despite whether they are successfully
completed. This language necessarily demonstrates the Legislature’s intent to include attempts
to commit a larceny, both by implication and by the specific language contained in this statutory
provision.
Consistent with the statutory language, which expands the crime of armed robbery to
include attempts, is the recently revised criminal jury instruction relating to this crime.6 The
language of the criminal jury instruction pertaining to armed robbery is clearly consistent with
the language of MCL 750.529 and MCL 750.530, providing:
(1) The defendant is charged with the crime of armed robbery. To prove
this charge, the prosecutor must prove each of the following elements beyond a
reasonable doubt:
(2) First, the defendant [used force or violence against / assaulted / put in
fear] [state complainant’s name].
(3) Second, the defendant did so while [he / she] was in the course of
committing a larceny. A “larceny” is the taking and movement of someone else’s
property or money with the intent to take it away from that person permanently.
“In the course of committing a larceny” includes acts that occur in an
attempt to commit the larceny, or during the commission of the larceny, or in
6
We recognize that the standard criminal jury instructions are not binding authority. People v
Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985).
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flight or attempted flight after the commission of the larceny, or in an attempt to
retain possession of the property or money.
(4) Third, [state complainant’s name] was present while defendant was in
the course of committing the larceny.
(5) Fourth, that while in the course of committing the larceny, the
defendant:
[Choose one or more of the following as warranted by the charge and proofs:]
(a) possessed a weapon designed to be dangerous and capable of causing
death or serious injury; [or]
(b) possessed any other object capable of causing death or serious injury
that the defendant used as a weapon; [or]
(c) Possessed any [other] object used or fashioned in a manner to lead the
person who was present to reasonably believe that it was a dangerous weapon;
[or]
(d) represented orally or otherwise that [he / she] was in possession of a
weapon.
[Add the following paragraph if appropriate:]
(6) Fifth, the defendant inflicted an aggravated assault or serious injury to
another while in the course of committing the larceny. [CJI2d 18.1 (footnotes
omitted).]
Attempt is defined within this section of the criminal jury instructions as having “two elements:”
First, the defendant must have intended to commit the crime. Second, the
defendant must have taken some action toward committing the alleged crime, but
failed to complete the crime . . . . In order to qualify as an attempt, the action must
go beyond mere preparation, to the point where the crime would have been
completed if it had not been interrupted by outside circumstances. To qualify as
an attempt, the act must clearly and directly be related to the crime the defendant
is charged with attempting and not some other goal. [CJI 2d 18.7.]
Clearly, the criminal jury instructions have specifically been revised to fully coincide with the
statutory language of MCL 750.529 and MCL 750.5307 and to include a definition of the term
7
“This revised instruction is intended to set forth the elements of the armed robbery offense
created by 2004 PA 128, effective July1, 2004, MCL 750.529.” Commentary following CJI 2d
18.1.
-6-
“attempt” separate from the more general instruction of a crime comprising an attempt. CJI 2d
9.1.
We would note that the immediate or prior version of the relevant statute, MCL 750.529,
before its amendment by 2004 PA 128, read:
Any person who shall assault another, and shall feloniously rob, steal and
take from his person, or in his presence, any money or other property, which may
be the subject of larceny, such robber being armed with a dangerous weapon, or
any article used or fashioned in a manner to lead the person so assaulted to
reasonably believe it to be a dangerous weapon, shall be guilty of a felony . . . .
In revising this language, the Legislature not only recognized the actual possession of a weapon
or representation by a criminal that he or she is armed, irrespective of the actual presence of a
weapon, but also removed the language mandating the actual behavior of to “rob, steal and take.”
Had the Legislature not intended a broader revision of the statute, this language could have
remained untouched. In addition, the revised language helps to delineate this offense from
assault with the intent to rob and steal while armed, MCL 750.89, which provides:
ASSAULT WITH INTENT TO ROB AND STEAL BEING ARMED--Any person,
being armed with a dangerous weapon, or any article used or fashioned in a
manner to lead a person so assaulted reasonably to believe it to be a dangerous
weapon, who shall assault another with intent to rob and steal shall be guilty of a
felony, punishable by imprisonment in the state prison for life, or for any term of
years.
Hence, MCL 750.89, while similar to MCL 750.529, requires the additional element of an actual
“assault.”8
Clearly, 2004 PA 128 was enacted, at least in part, to legislatively reinstitute a
transactional approach to this crime, in response to our Supreme Court’s decision in People v
Randolph, 466 Mich 532; 648 NW2d 164 (2002). While the Legislature was motivated to enact
a provision that would establish a transactional approach to robbery in order to not limit or
restrict to a temporal point during the commission of the crime when the threat of violence or use
of a weapon had to occur, the statutory language has exceeded this restricted purpose and it is
8
MCL 750.529 does include a provision for imposition of a minimum two-year sentence “[i]f an
aggravated assault or serious injury is inflicted by any person while violating this section.” This
merely provides a prosecutor with a certain degree of latitude in electing to charge a particular
offender, based on the circumstances of the case. Notably, both statutory provisions, MCL
750.89 and MCL 750.529 indicate that punishment for either offense is “imprisonment . . . for
life, or for any term of years.” A panel of this Court has indicated, in an unpublished opinion,
that assault with intent to rob while armed comprises a necessarily included lesser offense of
armed robbery but goes further to suggest that “[t]he offenses are distinguished only by whether
a larceny occurred.” People v Hunt, unpublished opinion per curiam of the Court of Appeals,
issued May 12, 2009 (Docket No. 284648), slip op p 2.
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beyond the role of this Court to speculate regarding what the Legislature intended to do. Rather,
we can only enforce the language of the statute as it is actually written.
We would assert that the two remaining criminal statutes in this chapter of the Penal
Code also reflect this broader perspective. Notably, the carjacking statute, MCL 750.529a, is
almost identical to the wording of MCL 750.530. Specifically, MCL 750.529a provides, in
relevant part:
(1) A person who in the course of committing a larceny of a motor vehicle
uses force or violence or the threat of force or violence, or who puts in fear any
operator, passenger, or person in lawful possession of the motor vehicle, or any
person lawfully attempting to recover the motor vehicle, is guilty of carjacking, a
felony punishable by imprisonment for life or for any term of years.
(2) As used in this section, “in the course of committing a larceny of a
motor vehicle” includes acts that occur in an attempt to commit the larceny, or
during commission of the larceny, or in flight or attempted flight after the
commission of the larceny, or in an attempt to retain possession of the motor
vehicle.
As noted, supra, 2004 PA 128 also revised this statute. Similar to MCL 750.529, the earlier
version of the carjacking statute provided:
(1) A person who by force or violence, or by threat of force or violence, or
by putting in fear robs, steals, or takes a motor vehicle as defined in section 412
from another person, in the presence of that person or the presence of a passenger
or in the presence of any other person in lawful possession of the motor vehicle, is
guilty of carjacking, a felony punishable by imprisonment for life or for any term
of years.
Once again, the Legislature removed the language “robs, steal, or takes” insinuating that the
revised statute was intended to include attempts to commit the designated crime. In contrast,
MCL 750.531, which has not been subject to any recent revisions, clearly indicates that it
encompasses the “intent” to commit the crime. Specifically, MCL 750.531 states:
BANK, SAFE AND VAULT ROBBERY--Any person who, with intent to commit
the crime of larceny, or any felony, shall confine, maim, injure or wound, or
attempt, or threaten to confine, kill, maim, injure or wound, or shall put in fear
any person for the purpose of stealing from any building, bank, safe or other
depository of money, bond or other valuables, or shall by intimidation, fear or
threats compel, or attempt to compel any person to disclose or surrender the
means of opening any building, bank, safe, vault or other depository of money,
bonds, or other valuables, or shall attempt to break, burn, blow up or otherwise
injure or destroy any safe, vault or other depository of money, bonds or other
valuables in any building or place, shall, whether he succeeds or fails in the
perpetration of such larceny or felony, be guilty of a felony, punishable by
imprisonment in the state prison for life or any term of years.
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This is important to demonstrate that the concept or legislative act of including language which
encompasses an attempt within the statutory definition of a crime is neither unusual nor
inconsistent with the most current revisions pursuant to 2004 PA 128. In fact, the revisions to
MCL 750.529 through MCL 750.530 now render all of the statutes within this chapter of the
Penal Code internally consistent.9
A recognized “rule of statutory interpretation provides that well-settled common-law
principles are not to be abolished by implication, and when an ambiguous statute contravenes the
common law, it must be interpreted so that it makes the least change in the common law.” Heinz
v Chicago Road Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). However,
simultaneously, “this court is instructed to avoid any construction that would render a statute, or
any part of it, surplusage or nugatory.” Id. First and foremost, concerns regarding the revised
statute’s alleged abrogation of the common law by no longer requiring a completed larceny are
unnecessary. This particular concern pertaining to statutory interpretation pertains to ambiguous
statutes and we believe the language of MCL 750.529 and MCL 750.530 to be clear in
encompassing attempts within the purview of “in the course of committing a larceny” by
definition. Second, the very fact that the Legislature has elected to use a transactional approach
is according to our Supreme Court, in and of itself “contrary to the common law.” Randolph,
supra at 545. If the Legislature intended this statute to adopt a transactional approach, it is
reasonable to assume it was aware of its abrogation of the common law and intended to take it a
step further. See 22 Michigan Civil Jurisprudence Statutes (2009), § 220. In addition, the
statute, even before its revision, superseded the common law. Specifically:
When a statute takes up and completely covers a subject previously
governed by the common law, the common law ceases to operate upon it, except
where the statute has made no provisions for its punishment. The statute
declaring how penalties will be enforced covers the entire ground and leaves
nothing to be supplied by the common law. By statute the common law prevails
where there is no specific statute determining what constitutes an offense . . . .
The state is not tied down by any provision of the Federal Constitution to
the practice and procedure which existed at common law; and thus, subject to the
provisions of its own constitution, it may avail itself of the wisdom gathered from
experience to make such changes as may be deemed necessary. [1 Gillespie,
Michigan Criminal Law & Procedure (2d), § 1:5 (footnotes omitted).]
Finally, as a general observation, in defining a robbery, the “essential elements [of unarmed
robbery] are assault with force and violence while the defendant is not armed, accompanied by
the intent to rob and steal.” 4 Gillespie, Michigan Criminal Law & Procedure (2d), § 133:2.
9
We would note that other jurisdictions have adopted the approach of including an attempt to
commit the offense within the statute defining the crime. “Under some new penal codes robbery
does not require an actual taking of property. If force or intimidation is used in the attempt to
commit theft this is sufficient.” Black’s Law Dictionary (8th ed) defining “robbery.” See, also:
Irons v Mississippi, 886 So2d 726 (2004)
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Hence, it is the violence or threat of force and the intent that constitute the primary elements
rather than the successful completion of a particular act that comprise this offense.
Further, the legislative history pertaining to the statutory revisions supports that the
inclusion of attempts within the offense was deliberate. Specifically, in discussing the content of
the proposed revisions it was noted:
The bill would amend the Michigan Penal Code to specify that certain offenses
involving larceny would include acts that occurred in an attempt to commit the
larceny, during the commission of the larceny, in flight or attempted flight after
the larceny was committed, or in an attempt to retain possession of the stolen
property. This would apply to armed robbery, unarmed robbery, and carjacking.
[Michigan Senate Fiscal Agency Bill Analysis, HB 5105, May 17, 2004
(emphasis added).]
Unfortunately, following revision of the statutory language, the application and
interpretation of these provisions has not been consistent within case law. In People v
Chambers, 277 Mich App 1, 8 n 7; 742 NW2d 610 (2007), this Court acknowledged the revision
of MCL 750.529 and MCL 750.530 and denoted the alteration of previously recognized elements
defining these crimes. Subsequently, in an unpublished opinion, this Court, citing to Chambers
opined, in pertinent part:
Under the plain language of the armed robbery statute, the phrase “in the course
of committing a larceny” includes acts that occur in an attempt to commit a
larceny, during its commission, and ones that occur in flight after the larceny.
MCL 750.530. Thus, the armed robbery statute does not require that a felonious
taking or completed larceny occur; it requires that the use of force or the
placement of a person in fear, occur “in the course of committing a larceny” and
with the use of a dangerous weapon, or an object reasonably believed to be a
dangerous weapon. [People v Nelson, unpublished opinion per curiam of the
Court of Appeals, issued January 8, 2009 (Docket No. 281662), slip op p 2.]
Other opinions appear to retain the previous requirements of a completed larceny but lack a
certain level of clarity in their analysis. By way of example, in People v Thomas, unpublished
opinion per curiam of the Court of Appeals, issued October 6, 2009 (Docket No. 287382), the
Court distinguished between the revised armed robbery statute and the bank robbery statute.
However, in undertaking this analysis the Court did not recognize any significant departure in
the elements for armed robbery from case law that existed before the revision of MCL 750.529,
resulting in the determination that “[a]rmed robbery continues to require a theft from a person.”
Id., slip op p 2. Notably, in and of itself this is an inaccuracy as the current statute encompasses
the use or threat of force (with the presence or representation of a weapon) against a person
while “in the course of committing a larceny of any money or other property that may be the
subject of larceny.” MCL 750.529; MCL 750.530(1). It does not require a direct “taking” or
“theft from a person.” Similarly, a statement by this Court in People v Monk, unpublished
opinion per curiam of the Court of Appeals, issued January 22, 2009 (Docket No. 280291),
contains an obvious contradiction. On the one hand, the Court states, “Acts included in the
phrase ‘in the course of committing a larceny’ include all acts that occur during a larceny’s
attempt or commission . . . . An attempted or committed larceny by an armed individual, or by a
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person the victim reasonably believes is armed, is required under the statute.” Id., slip op p 2.
However, this statement is immediately followed by a reference indicating the necessity of a
taking despite recognition that the statute encompasses attempts to commit the crime.
Specifically, the Court opined, “The statute does not expressly require that any property actually
taken must be owned by the victim. Rather the property must just be taken from the victim or his
presence in the course of a larceny.”10 Id.
Courts must proceed with greater caution in their use and reliance on prior published
opinions delineating the elements of armed robbery, which preceded the revision of MCL
750.529. “[A] change by amendment in the phraseology of a statute is presumed to indicate a
legislative purpose to change the meaning.” 3A Michigan Pleading & Practice (2d ed),
Presumptions, § 36:146; see also, People v Automotive Service Councils of Michigan, Inc, 123
Mich App 774, 787; 333 NW2d 352 (1983) (“It is reasonable to presume some intentionality in
the insertion of this additional language.”). Clearly, the Legislature has enacted changes
impacting the elements comprising this offense and it is our responsibility to correctly apply the
revised language of MCL 750.529 to the particular evidence and facts of each individual case.
V. Conclusion
“[W]hen determining whether sufficient evidence has been presented to sustain a
conviction, a court must view the evidence in a light most favorable to the prosecution and
determine whether any rational trier of fact could have found that the essential elements of the
crime were proven beyond a reasonable doubt.” People v Wolfe, 440 Mich 508, 515; 489 NW2d
748 (1992), amended 441 Mich 1201 (1992). In the factual circumstances of this case, defendant
acknowledged that he represented to the store clerk that he was in possession of a weapon at the
Admiral Tobacco Shop. From the colloquy at sentencing, it was also established that defendant
had the intent to take or obtain money from the store’s cash register. It was not established that
defendant had any intention to harm the store’s clerk. While defendant was not successful in that
10
This same inconsistency is also present within case law involving MCL 750.529a, the
carjacking statute. In discussing concerns pertaining to double jeopardy between the carjacking
statute and the assault with intent to rob while armed statute, this Court noted: “[T]he assault
with the intent to rob while armed statute does not require the larceny of a motor vehicle, as does
the carjacking statute,” implying the necessity of a completed larceny. See also, People v
Carter, unpublished opinion per curiam of the Court of Appeals, issued March 27, 2007 (Docket
No. 268408), slip op p 2, indicating the carjacking statute requires a “taking and asportation;”
People v Richardson, unpublished opinion per curiam of the Court of Appeals, issued October
25, 2007 (Docket No. 270606), slip op p 3, implying the necessity of a completed taking but not
retention of a vehicle to be convicted of carjacking. In contrast, in People v Morgan,
unpublished opinion per curiam of the Court of Appeals, issued May 19, 2009 (Docket No.
284986), slip op p 2, this Court recognized the necessity of only an attempt to commit a larceny
as meeting the statutory requirements for carjacking. In People v Dearmin, unpublished opinion
per curiam of the Court of Appeals, issued May 11, 2006 (Docket No. 259432), slip op p 3, a
panel of this Court clearly recognized the inclusion of an attempt within MCL 750.529a, stating
in relevant part: “While the new statute makes clear that actions taken in an attempt to commit a
larceny are included in the ambit of the statute, it also makes clear that the required criminal act
or attempt is a larceny.”
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he left the store without money from the cash register, sufficient elements of the crime were
established to sustain his conviction for armed robbery based on the language of the statute.
Affirmed.
/s/ Michael J. Talbot
/s/ Donald S. Owens
-12-
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