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Michigan Court of Appeals Vacates Two-For-One Larceny Conviction

On February 22nd, 2018, the Michigan Court of Appeals released their decision in People v Williams, __ Mich App __; __ NW2d __ (2018)(Docket No. 332834) holding that the Defendant could not have been convicted of both Larceny From The Person and Larceny From A Building, all felonies, from her one single act of theft.

The Michigan State Police were running a string operation at Greektown Casino in Detroit, Michigan in the hopes of entrapping thieves. A woman working with the police (a "decoy") placed a $100 ticket on the deck of a slot machine and sat a short distance away appearing distracted by her cell phone. Her back was turned away from the ticket. The Defendant passed by the decoy several times and looked at the ticket at least twice. Finally, the Defendant made one more pass and reached out to take the ticket with her right hand. To her detriment, she only made it approximately five feet away before she was stopped by police and arrested. The Defendant was charged and convicted of Larceny From The Person and Larceny From A Building in the Wayne Court Circuit Court.

The crime of Larceny From The Person requires that "[a]ny person who shall commit the offense of larceny by stealing from the person of another shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years." A person convicted may also be subject to a fine up to $15,000.00 or 3 times the value of the property stolen, whichever is greater. MCL 750.357.

The crime of Larceny From A Building requires that "[a]ny person who shall commit the crime of larceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony [punishable by imprisonment not more than 4 years]." A person convicted may also be subject to a fine up to $5,000.00. MCL 750.360.

The Michigan Court of Appeals upheld the conviction for Larceny From The Person against the challenge that the Defendant did not take the ticket with the intent to steal it and that it was not taken from the decoy's "immediate area of control or immediate presence". The court determined that the facts showed the Defendant intended to take the ticket from both her surveillance of the area over several passes and her admission that the ticket was not hers. The court also determined that the location of the ticket only a foot and a half away from the decoy was sufficiently close enough to be in her immediate area of control and immediate presence, even if she wasn't looking at it. Slip op at 3.

However, the Michigan Court of Appeals determined that the Larceny From A Building conviction should be vacated because it was not "mutually exclusive" from the Larceny From The Person conviction. If a person is convicted of two crimes out of the same transaction, the trial court is required to find that the convictions are mutually exclusive of one another, meaning that a guilty verdict on one count would exclude a finding of guilt on the other. The appellate court acknowledged a recent case where they upheld mutually exclusive verdicts for a defendant convicted of assault with intent to commit great bodily harm and aggravated domestic violence, concluding that "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. Slip op at 5, citing People v Davis, 320 Mich App 484, 486; 905 NW2d 482 (2017).

In this case, the Defendant committed a single act where she may be guilty of both Larceny From The Person or Larceny From A Building, but not both at the same time. "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". Slip op at 5. The prosecutor may charge her with both offenses in the alternative as to the same act, but she could only be convicted of one of them. As a result, her conviction of Larceny In A Building was reversed.

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