In 1931, the Michigan Legislature made the crime of safebreaking a criminal offense that was comparable in punishment to some of the worst crimes on the books in this state:
- “Any person who… 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.” MCL 750.531.
A person is guilty of safebreaking, contrary to MCL 750.531, if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 18.5):
- First, that the individual attempted to break into, damage or destroy a safe, vault or other depository of money, bonds or other valuables, whether he or she succeeded or not.
- Second, that the individual intended to commit a larceny or other felony. It is not necessary that the crime of larceny or other felony be completed.
This is a class A felony in Michigan punishable by up to life in prison or any term of years.
Safebreaking is a specific intent crime, meaning that the prosecutor must show beyond a reasonable doubt that the defendant tried to break into the depository with the specific intent to commit a larceny or felony. Obviously, judges and juries are not mind-readers and the intent of the accused must be inferred from the circumstances. In People v Sawicki, 34 Mich App 240; 191 NW2d 104, leave to appeal denied 386 Mich 770 (1941), the Michigan Court of Appeals sustained a conviction for safebreaking under the following evidence:
- “At approximately 3:21 a.m., Sunday, January 26, 1969, a burglar alarm in the city treasurer’s office in Sterling Heights sounded. City police officers were immediately dispatched to the city hall. On arrival, after entry to the building, they went to the treasurer’s office. The door was ajar. The defendants were arrested in the treasurer’s office. The safe, as that word is used in the quoted statute, was tipped on its side. A top covering had been removed and certain insulating material was scattered around the floor. The following items, which it may be safely assumed are not normally kept in this business office, were on the floor near the safe; a crowbar, a sledge hammer, a metal punch (sometimes called a “drifter pin”), red rubber gloves and brown cotton gloves. Perhaps the foregoing items might have been forgetfully left there by a careless employee or even one who had come earlier to transact legitimate business there. However, it would seem that there is at least a fact question as to whether they had not been brought in by the two nocturnal visitors. The record contains testimony which, if believed by the jury, would establish that at the close of the preceding business day the office was left in a neat, tidy condition — the safe locked, the other door to the building locked, the door to the involved office closed, and the burglar alarm activated.” 34 Mich App at 242-243.
The prosecutor can also charge the accused with crimes involving other people present at the time of the safebreaking such as armed robbery without any violation of the Sixth Amendment guaranteed against double jeopardy:
- “Like the carjacking statute, which involves assaultive conduct directed at a person yet its focus is on the theft of particular property, the [safebreaking] statute, though it may involve assaultive conduct against a person, has its core and focus on the attempted theft of property from a bank, safe, vault, or other depository. The “unit of prosecution” under MCL 750.531 is the bank, vault, or safe. In contrast, the focus of the armed robbery statute is quite different. The focus of the armed robbery statute is on the person assaulted. Indeed, the primary purpose of the armed robbery statute is the protection of persons, and the appropriate “unit of prosecution” for armed robbery is the person assaulted and robbed. Accordingly, because the armed robbery statute and the [safebreaking] statute are intended to protect different social norms, the statutes can generally be viewed as separate and amenable to permitting multiple punishments.” People v Ford, 262 Mich App 443, 456; 687 NW2d 119 (2004). [internal citations deleted].
For purposes of the safe-breaking statute, what is a “safe, vault or depository”? In enacting MCL 750.531, the Michigan Legislature sought to protected structures intentionally constructed to protect valuables. People v Ferguson, 60 Mich App 302; 230 NW2d 406 (1975). This covers depository safes at post offices and banks, coin boxes, gun safes, jewelry safes and even simple fire-resistant safes. This can also include the following:
- A converted walk-in refrigerator. People v Devriese, 77 Mich App 737; 258 NW2d 93 (1977). In the court’s opinion, a “safe, vault or depository” includes “those constructed by a manufacturer for sale or an individual for his own use so long as the structure is one which is substantially impenetrable.” Id at 738. “The issue of whether a depository is substantially impenetrable so as to fall within the terms of the statute is a question of fact.” Id at 738.
- An ATM. People v Ray, unpublished per curiam opinion of the Court of Appeals decided December 18, 2008 (Docket No. 273541).
- The kiosk serving as the structural housing for the ATM. People v Villa, unpublished per curiam opinion of the Court of Appeals decided November 16, 2001 (Docket No. 220751), aff’d People v Villa, No. 120771 (June 24, 2002).
The location of a “safe, vault or other depository” is not an element of the safebreaking statute. In People v Greenway, 365 Mich 547; 114 NW2d 188 (1962), the defendant was charged and convicted with safebreaking involving a safe taken from a restaurant with the intent to commit larceny. The Michigan Supreme Court determined that the prosecutor’s alteration of the felony information containing charge, from referring to a safe “in a certain building” to “taken from” the building, did not prejudice the defendant. The offense charged was not changed from breaking a safe to taking a safe, so the safe’s location is not an element of MCL 750.531. Id at 549.
A safebreaking charge is extremely serious and requires top-notch legal representation. Very often, prosecutors will also charge additional crimes coming out of the safebreaking allegation such as breaking and entering with intent (MCL 750.110) or possession of burglar’s tools (MCL 750.116). If the evidence is strong against you and your prior criminal record is minimal, a good attorney may be able to negotiate a plea bargain to a reduced charge that avoids possible jail or prison time. In addition, a skilled criminal defense lawyer can assert many possible defenses to a charge of safebreaking:
- INSUFFICIENT EVIDENCE FOR ATTEMPT – The prosecutor must be able to prove sufficient evidence that the defendant legally “attempted” to break into the safe, assuming he or she was not successful. Otherwise, the defendant should be acquitted. Michigan Criminal Jury Instruction 18.7 provides “[a]n attempt has 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. It is not enough to prove that the defendant made preparations for committing the crime. Things like planning the crime or arranging how it will be committed are just preparations; they do not qualify as an attempt. 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.”
- ALIBI OR MISTAKEN IDENTITY – The defendant may assert that he was in another location at the date and time that the safebreaking occurred, provided that there are sufficient witnesses and proper notice to the prosecutor to establish the alibi.
- DURESS, COERCION OR INDUCEMENT BY ANOTHER – If you were forced or manipulated into safebreaking due to the influence of another person, then you may have a defense to the prosecutor’s required showing that you had the mindset to commit a crime.
- DID NOT BREAK INTO A “SAFE” – The defendant must break into a depository that is designed to be “substantially impenetrable” by design. This would likely exclude devices that can be easily entered such as a mailbox, purse, automobile, jewelry box or kitchen drawer. Although the defendant can be subject to breaking and entering a building or vehicle, or larceny from a building or vehicle, all of those possible offenses are less serious than safebreaking.
A charge of safebreaking can cause you to spend the rest of your life in prison. You can’t leave anything to chance. You must have the very best legal representation from the beginning to ensure the best outcome in your case.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
