Order Michigan Supreme Court
Lansing, Michigan
March 31, 2017 Stephen J. Markman,
Chief Justice
154492 Robert P. Young, Jr.
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen,
Plaintiff-Appellant, Justices
v SC: 154492
COA: 326389
Wayne CC: 14-003866-FH
LEONARD WAYNE WESSON,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the August 2, 2016
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
MARKMAN, C.J. (concurring).
Defendant was convicted of “larceny from the person of another.” The victim had
dropped his money clip on the ground at a casino, and defendant reached past another
person’s legs to pick up the clip while it was lying at the victim’s feet. On appeal, the
Court of Appeals held that because another individual was standing between defendant
and the victim, defendant was not in the “immediate presence” of the victim, and the
Court of Appeals therefore reversed defendant’s conviction.
I respectfully believe the Court of Appeals erred. The controlling legal standard
for this issue was established in People v Smith-Anthony, 494 Mich 669, 681-683 (2013).
In that case, this Court said that in order to sustain a “larceny from the person”
conviction, the property stolen must have been in the “immediate presence” of the victim.
Id. In this case, the Court of Appeals majority concluded that, because “there was
another person and object intervening between the victim and the defendant,” the
defendant was not in the victim’s immediate presence and thus the evidence was legally
insufficient. People v Wesson, unpublished opinion per curiam of the Court of Appeals,
issued August 2, 2016 (Docket No. 326389), p 3. However, the relevant legal inquiry is
whether “the property was in immediate proximity to the victim at the time of the
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taking.” Smith-Anthony, 494 Mich at 688 (emphasis added). Here, as noted by the Court
of Appeals dissent, the majority erred by not “focusing on the location of the stolen
property relative to the victim . . . .” Wesson (RIORDAN, J., dissenting), unpub op at 1.
The only relevant legal inquiry under Smith-Anthony is the location of the property stolen
in relation to the victim.
That said, I concur in the decision to deny leave to appeal. The trial court
instructed the jury that to convict the defendant, the property stolen must have been
within the victim’s “immediate area of control or immediate presence.” The trial court
gave that instruction even though this Court expressly rejected the “immediate area of
control” standard in Smith-Anthony. Id. at 682. Were we to reverse and remand to the
Court of Appeals for consideration of defendant’s allegation of instructional error, at
most he would receive a new trial with a properly instructed jury. However, because
defendant is already on parole, it is unlikely that the prosecutor would choose to
reprosecute. In other words, regardless of whether we deny or reverse and remand, the
ultimate outcome will in all likelihood be the same-- defendant will not be convicted of
“larceny from the person.” Therefore, while I believe the Court of Appeals clearly erred
in its analysis, I concur in this Court’s denial of leave to appeal.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 31, 2017
t0228
Clerk