PEOPLE
v.
DUTRA
Docket No. 80944.
Michigan Court of Appeals.
Decided August 6, 1986.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Juris Kaps, Prosecuting Attorney, for the people.
Allen J. Lewis, for defendant on appeal.
Before: D.E. HOLBROOK, JR., P.J., and WAHLS and M.E. DODGE,[*] JJ.
PER CURIAM.
Defendant was convicted by a jury of unlawfully driving away an automobile, MCL 750.413; MSA 28.645, and was sentenced to four months in the county jail. Defendant appeals as of right raising three issues, none of which requires reversal.
Defendant first argues that the trial court erred by denying his request for paragraph (3) of CJI 3:1:12 which provided:
(1) If there is a conflict in the testimony of witnesses, it is your responsibility as jurors to determine, if you can, what testimony you believe to be true.
*683 (2) Consider the extent to which conflicting testimony is supported by other evidence and whether the conflict involves a matter of importance or merely some detail.
(3) However, if you have a reasonable doubt as to which testimony you believe, it is your duty to accept the testimony favorable to the defendant.
Paragraphs (1) and (2) were given.[1] The trial court denied the request for paragraph (3) citing People v Vernon Johnson, 127 Mich. App. 587; 339 NW2d 489 (1983), lv den 419 Mich. 860 (1984). In Johnson, supra, pp 589-590, this Court held that paragraph (3) does not accurately state the law:
The published comments regarding the instruction give no indication of its source.... The issue is whether there is reasonable doubt as to the guilt of the defendant, not as to which testimony to believe. Certainly conflicting testimony may create a reasonable doubt but we find no basis for the statement that the jury has a duty to accept any testimony where there is a conflict. Therefore, it appears that the instructions of the court, when read in their entirety, correctly instructed the jury on the burden of proof and the jury's duty in considering and weighing the evidence.
We agree with the panel in Johnson and adopt its reasoning herein.[2]
*684 The trial court instructed the jury on its role in evaluating the testimony for weight, credibility and believability. The jury was given the greater portion of CJI 3:1:12 and the trial court fully instructed the jury on the burden of proof and the necessity for proof beyond a reasonable doubt. We find no error.
Defendant next argues that because his conviction was based upon circumstantial evidence, the prosecution was required to disprove defendant's reasonable theory of innocence as presented by the testimony of Charles Cowper.[3] We disagree for the reasons stated in People v Doss, 122 Mich. App. 571, 574-575; 332 NW2d 541 (1983), lv den 417 Mich. 1100.16 (1983):
In People v Davenport, 39 Mich. App. 252, 256; 197 NW2d 521 (1972), the Court stated that:
"[W]here the People's case is based on circumstantial evidence the prosecution has the burden of proving `that there is no innocent theory which will, without violation of reason, accord with the facts'."
This oft-cited rule does not require the prosecutor to specifically disprove all innocent theories, rather:
"It should be sufficient if the prosecution proves its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defense may produce." [People v Edgar, 75 Mich. App. 467, 474; 255 NW2d 648 (1977).]
See also People v Richardson, 139 Mich. App. 622, 626; 362 NW2d 853 (1984).
*685 Defendant's final claim of error is that there was insufficient evidence of the element of specific intent. We disagree. The elements of an unauthorized driving away of a motor vehicle are: (1) the possession of the vehicle must be taken; (2) there must be a driving away; (3) done wilfully; and (4) possession and the driving away must be done without authority. People v Shipp, 68 Mich. App. 452; 243 NW2d 18 (1976), lv den 397 Mich. 826 (1976). The "done wilfully" element of the offense does not require the prosecution to establish an intent to permanently deprive the owner of possession of the vehicle, but defendant must have guilty knowledge. People v Andrews, 45 Mich. App. 354; 206 NW2d 517 (1973).
William Thompson, one of defendant's accomplices, testified that he agreed to pay defendant $50 if defendant would help him steal a tow truck. Thompson also testified that defendant was concerned that his fingerprints were on the truck. Viewing the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found that the essential elements, including guilty knowledge, were proven beyond a reasonable doubt. People v Hampton, 407 Mich. 354, 368; 285 NW2d 284 (1979), cert den sub nom Michigan v Hampton, 449 U.S. 885 (1980); People v Frank Johnson, 146 Mich. App. 429, 435; 381 NW2d 740 (1985).
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] CJI 3:1:12 was deleted by the Jury Instruction Committee on July 13, 1984:
[The essence of instructions contained in CJI 3:1:12 has been moved into more general instructions: CJI 3:1:12(2) now appears in CJI 3:1:11(2), and CJI 3:1:12(3) appears in proposed CJI 3:1:03(3). See Commentary, pages 5-87 through 5-90.]
[2] See also People v Stewart, 126 Mich. App. 374, 376-377; 337 NW2d 68 (1983), and People v Hatch, 126 Mich. App. 399, 404-405; 337 NW2d 79 (1983), where it was held that the trial court's refusal to give CJI 3:1:12(3) in itself is insufficient to support a defendant's claim of error requiring reversal where the jury is instructed on reasonable doubt, burden of proof, the elements of the crime charged, and the responsibilities and duties of the jury.
[3] Cowper, one of defendant's accomplices, testified that he (Cowper) knew that the tow truck was stolen but that he did not convey the information to defendant and that defendant did not become aware of that fact until they were stopped by the police.