PEOPLE OF MICHIGAN V EDDIE JAMES JOHNSON
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 5, 1996
Plaintiff-Appellee,
v
No. 153020
LC No. 91-010882
EDDIE JAMES JOHNSON,
Defendant-Appellant.
Before: O’Connell, P.J., and Gribbs and T. P. Pickard,* JJ.
PER CURIAM.
Defendant, Eddie James Johnson, appeals as of right his convictions and sentences for unarmed
robbery, MCL 750.530; MSA 28.798, and unlawfully driving away an automobile (UDAA), MCL
750.413; MSA 28.645. He was sentenced to ten to fifteen years’ imprisonment on the robbery
conviction and to two to five years’ imprisonment on the UDAA conviction. We affirm.
The charges in this case arose out of an attack on David Otlowski and the theft of his vehicle.
Otlowski also lost a gold chain in the attack.
Defendant first argues that convictions for unarmed robbery and UDAA constitute double
jeopardy. This argument is without merit. Convictions for armed robbery and UDAA do not constitute
double jeopardy. People v Hurst, 205 Mich App 634, 636-639; 571 NW2d 858 (1994). While the
other offense in this case was unarmed robbery, we do not see how this fact distinguishes this case from
Hurst. Therefore, defendant is not entitled to relief on this issue.
Defendant next argues that there was insufficient evidence of the element of larceny to support
the unarmed robbery conviction. Specifically, defendant argues that there was insufficient evidence of
intent to permanently deprive Otlowski of his vehicle and insufficient evidence that defendant took
Otlowski’s gold chain. With respect to the vehicle, defendant argues that he took the vehicle only for
joyriding purposes, and supports this argument by pointing out that the vehicle was recovered near the
* Circuit judge, sitting on the Court of Appeals by assignment.
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scene of the crime. With respect to the chain, defendant points out that it was not recovered in his
possession.
In reviewing a sufficiency of the evidence claim, this Court must view the evidence in the light
most favorable to the prosecution and determine whether a rational trier of fact could have found that
the essential elements of the offense were proven beyond a reasonable doubt. People v Wolfe, 440
Mich 508, 515; 489 NW2d 748 (1992). Taken in the light most favorable to the prosecution, the fact
that Otlowski’s car was recovered near the scene of the crime does not disprove defendant’s intent to
permanently deprive Otlowski of the vehicle. Defendant also lived near the crime scene. From this
evidence, a reasonable juror could infer that the car was left near the crime scene not because it was no
longer being used, but because it was a convenient place to park it while not in use. With respect to the
gold chain, evidence that a defendant was one of the victim’s attackers and that the victim no longer
possessed certain property after the attack is sufficient to support a conviction of the attacker for
unarmed robbery. People v Martin, 37 Mich App 295, 295-296; 194 NW2d 464 (1971). The same
amount of evidence was presented in the present case and, therefore, the evidence was sufficient to
support an unarmed robbery conviction.
Defendant next argues that his statement to police should have been suppressed because it was
involuntary due to prearraingment delay. We review the trial court’s findings with respect to this issue
for clear error. People v Bender, 208 Mich App 221, 226-227; 527 NW2d 66 (1994). Defendant
was in custody less than forty-eight hours before his arraignment. Therefore, defendant cannot prevail
simply by pointing to the delay. People v McCray, 210 Mich App 9, 12; 533 NW2d 359 (1995).
Rather, the test remains whether the suspect’s will was overborne and his capacity for self
determination critically impaired. Prearraignment delay is but one factor to be considered in this
analysis. People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988).
In this case, the only evidence suggesting that defendant’s will was overborne was the fact that
he was in custody for twelve hours before giving his statement. The only evidence suggesting that the
police delayed arraignment to obtain a statement is a notation in a police report that the case was as
good as closed. That report was written three hours before defendant gave his statement. On the other
hand, there is no evidence that defendant was injured or in ill health, or that police deprived defendant of
food or sleep, or threatened defendant with abuse. In this context, the trial court’s voluntariness
determination was not clearly erroneous.
Defendant’s final argument is that his sentence of ten to fifteen years’ imprisonment is
disproportionate. This sentence is within the guidelines range. To challenge the proportionality of a
sentence which is within the guidelines range, the defendant must present unusual circumstances to the
trial court before sentencing in order to preserve this issue for review. People v Sharp, 192 Mich App
501, 505-506; 481 NW2d 773 (1992). Defendant did not do so at any of his sentencing hearings and,
therefore, this issue is waived.
Affirmed.
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/s/ Peter D. O’Connell
/s/ Roman S. Gribbs
/s/ Timothy P. Pickard
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