People v. Banks

Riley, J.

(dissenting). In the matter now before this Court, we are asked to determine, viewing the record as a whole and in a light most favorable to the people,1 whether the evidence presented was sufficient to raise a question of fact for reasonable persons to draw differing conclusions with regard to whether defendant “ ‘fashioned [an article] in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon.’ ” People v Shipp, 34 Mich App 67, 69; 190 NW2d 750 (1971), quoting People v Jury, 3 Mich App 427, 429; 142 NW2d 910 (1966). Considering the record in its entirety, I am persuaded that the evidence was sufficient to present to the jury the factual dispute regarding whether defendant was armed. In other words, I dissent because I believe that the victim testified about “some objective evidence”2 regarding the existence of a weapon or an article *482used or fashioned “ ‘in a manner to lead [her] to reasonably believe it to be a dangerous weapon.’ ” Shipp, Jury, supra. I also disagree that our decision in People v Jolly, 442 Mich 458, 468; 502 NW2d 177 (1993), “constitutes the absolute minimum level of evidence sufficient to support an armed robbery conviction . . . .” Ante, p 475.

i

Defendant contends that the announcing of a robbery does not constitute an illegal act which places another in reasonable fear of an immediate battery, i.e., the announcement itself does not equate to an assault. However, there was more than a mere announcement. Defendant and his accomplice were flanked on either side of the victim — with defendant in front of the victim and his accomplice at her side. For all practical purposes, the victim was cornered behind the counter. Codefendant proceeded to announce that she was being robbed. At the same time, codefendant had his hand in his pocket, moving it around in a circular motion. He then demanded that she open the cash register and set its drawer on the counter top. Codefendant had not removed his hand from his pocket. Rather, he moved it around and did not take it out while the victim followed his instructions in collecting the money. Codefendant removed his hand from his pocket only after the victim handed over the money.

Consequently, viewing the evidence in a light most favorable to the people, I conclude that any reasonable person in the victim’s position could have concluded that failure to comply could have resulted in personal injury.

*483Notwithstanding, defendant asserts that the people failed to establish that defendant and his accomplice were armed as intended by the Legislature under MCL 750.529; MSA 28.797.

This Court’s decision in People v Saenz, 411 Mich 454; 307 NW2d 675 (1981), is directly on point. In Saenz, this Court noted that the armed robbery statute requires that the robber be “armed with a dangerous weapon, or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon.” Id. at 455-456. The Saenz Court recognized that “testimony that defendant used his hand and a covering so as to resemble a gun raises a factual question for the jury’s consideration . . . .’’Id. at 458. However, where the victim testifies “that he neither saw a bulge or hand underneath the defendant’s coat nor was he told by the defendant that he had a weapon,”3 this Court concluded that the victim’s belief that the defendant was armed was completely subjective and, thus, unacceptable for consideration by the jury. The Saenz Court stated that pursuant to the plain language of the statute, it was not enough for the victim merely to believe that his assailant was armed.4 Instead, that *484belief had to have been induced by the use or fashion of “any article” with which the assailant was armed.5

In Jolly, supra, this Court revisited the issue what satisfies the armed element of armed robbery.

When questioned by the people regarding his conclusion that his assailant was armed, the victim in Jolly testified:

Well, there was like when he came in he was standing right in front of me. I saw a bulge in his mid, mid area of his — he had a vest on, I saw a bulge. I didn’t know if it was a gun or not. She said that he had a gun and I assumed because there was a bulge it could have been a buckle or anything, and I didn’t know. [Id. at 463.]

On the basis of this testimony, we affirmed the defendant’s armed robbery conviction because the existence of a bulge in the perpetrator’s jacket “objectively supported submission.” Id. at 471. However, we also expressly recognized the precedent set in People v Parker, 417 Mich 556; 339 NW2d 455 (1983), stating:

A fair reading of Parker does not require submission of a dangerous weapon or other article into evidence, nor does it require that a witness see the make or model number of a gun or knife before the issue can be submitted to the jury. What cannot reach the jury is proof that only focuses on the subjective belief of the victim. In other words, there must be some objective evidence of the existence of a weapon or article before a jury will be permitted to assess *485the merits of an armed robbery charge. For example, an object pointing out from under a coat, together with statements threatening a victim with being shot, clearly satisfies the statutory definition of armed robbery. In such a case, there is evidence of actual possession of a weapon or article and the testimony regarding statements that, if believed, make clear an intent to convince the victim of the existence of such a weapon or article. The facts in Parker indicate that the victim never saw anything that could have been the knife with which she was being threatened! [Jolly, supra at 468-469 (emphasis added).]

I agree with the majority that the armed element of armed robbery is not satisfied by proffering, without more, that the victim believed that the defendant was armed. However, I disagree that the assailant’s verbal threats that he “would shoot the victim if he did not comply and the victim’s observation of a bulge under the male robber’s vest . . . constitutes the absolute minimum level of evidence sufficient to support an armed robbery conviction . . . .” Ante, p 475. To the contrary, in Jolly, supra at 469-470, we noted:

The typical armed robbery case prosecuted under the feigned weapon method involves either the use of a toy gun or a finger or other object hidden in a bag or under a coat to simulate the appearance of a weapon together with threatening behavior and statements indicating the existence of a weapon. The existence of some object, whether actually seen or obscured by clothing or something such as a paper bag, is objective evidence that a defendant possesses a dangerous weapon or an article used or fashioned to look like one. Related threats, whether verbal or gesticulatory, further support the existence of a weapon or article. [Emphasis added.]

On this basis, in the instant case, the people must demonstrate that codefendant did more than merely *486keep his hands concealed. However, this Court has never held that. the victim must have observed a “bulge” or that the assailant must have threatened to injure the victim if he did not comply. Instead, the people merely need to present “objective evidence that a defendant possesses a dangerous weapon or article used or fashioned to look like one.” Id. Stated otherwise, the people must present proof of “[t]he existence of some object, whether actually seen or obscured by clothing . . . [that] simulate [s] the appearance of a weapon.” Id. “Related threats, whether verbal or gesticulatory, further support the existence of a weapon or article.” Id. (emphasis added). But, we have never ruled that threats are essential to sustain a conviction for armed robbery. The majority mischaracterizes the extent of the rule of law set forth in Jolly, supra. The majority takes our application of the law in Jolly and holds that this “constitutes the absolute minimum level of evidence sufficient to support an armed robbery conviction . . . .” Ante, p 475. Jolly does not stand for that proposition. In Jolly, we explicitly held that “[wjords or threats may be evidence of the fact of being armed and under some circumstances they alone might support a verdict of guilty.” Id. at 468 (emphasis added).

Therefore, with this in mind, the dispositive question in this case is whether the victim testified regarding “some objective evidence of the existence of a weapon or article before [the] jury [could] be permitted to assess the merits of [the] armed robbery charge.” Id.

*487n

On the basis of the record presented, I am persuaded that the victim testified about “some objective evidence.” Id. On cross-examination, when asked whether codefendant did “anything with his hand or with his jacket,”6 the victim answered that he “Lj]ust kind of moved it around a little bit.” Ante, p 478. Later, when defense counsel attempted to clarify his point regarding whether defendant did anything else, the victim responded that he “[j]ust kept moving whatever he had in his pocket around.” Id.

The victim added that she did not ask what was in codefendant’s pocket. Id. I note that she need not make such an inquiry. Under the armed robbery statute, the victim was not required to ask, or test for that matter, whether defendant was bluffing. The victim need only have been “lead” by defendant with respect to whatever may be in defendant’s pocket so that she could have “reasonably believe [d] it to be a dangerous weapon.” See MCL 750.529; MSA 28.797. Furthermore, the victim answered a resounding “No!” when asked about “the prior two occasions when [defendant] came in the store [and whether] he ever ha[d] his hand in his pocket,” making it even easier to conclude, viewing the “evidence in a light most favorable to the prosecution,”7 that the victim reasonably believed that codefendant did not have good intentions when he came into the store a third time, “never [taking] his hand out of [his] pocket the whole *488time [the victim] was getting the cash out”8 of the register.

Because of “what [the victim] saw that day and the actions that he made,”9 I find that the record evidences that the victim’s testimony was sufficient to meet the minimum threshold requirement espoused by this Court in Jolly, supra at 468, i.e., that “there must be some objective evidence of the existence of a weapon or article before a jury will be permitted to assess the merits of an armed robbery charge.” As such, the matter was properly presented to the jury.

Boyle and Weaver, JJ., concurred with Riley, J.

See People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).

People v Jolly, 442 Mich 458, 468; 502 NW2d 177 (1993).

Jolly, supra at 469 (emphasis added).

In Jolly, supra at 468, quoting People v Parker, 417 Mich 556, 565; 339 NW2d 455 (1983), this Court observed:

“Words or threats alone can never be dangerous weapons because the statute is concerned with weapons, not words.
“To convict, the factfinder must make the determination that at the time of the robbery the assailant was in fact armed with something and not just that the victim thought he was armed. The determination must be based on the evidence.
“Words or threats may be evidence of the fact of being armed and under some circumstances they alone might support a verdict of guilty. When no other evidence of the presence of the weapon is *484adduced, however, it is imperative that the instructions stress the focus of the jury on the presence of the weapon or article and not the fear or belief of the victim.” [Citation omitted; emphasis added.]

See also People v Johnson, 206 Mich App 122; 520 NW2d 672 (1994) (the defendant placed his hand in his “baggy” shirt while giving instruction to the victim to stop).

Ante, p 478.

Ante, p 477, Jolly, supra at 476 (Brickley, J., dissenting), citing Hampton, n 1 supra at 368.

Ante, p 476.

Id., p 480 (emphasis added).