People v. Kyllonen , 66 Mich. App. 467 ( 1976 )

66 Mich. App. 467 (1976) 239 N.W.2d 410

PEOPLE
v.
KYLLONEN

Docket No. 21679.

Michigan Court of Appeals.

Decided January 7, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Torger Omdahl, Prosecuting Attorney (Prosecuting Attorney Appellate Service, Edward R. Wilson, Director, by Lee W. Atkinson, Special Assistant Attorney General), for the people.

Barbara L. Betsey, Assistant State Appellate Defender, for defendant.

Before: DANHOF, P.J., and QUINN and D.E. HOLBROOK, JR., JJ.

Leave to appeal applied for.

DANHOF, P.J.

On June 11, 1974, David Kyllonen was found guilty by a jury of receiving or aiding in the concealment of stolen property. MCLA 750.535; MSA 28.803. The defendant was sentenced to a term of a minimum of two years to a maximum of five years in prison on June 26, 1974.

At the trial, the service manager for a Lansing automobile sales business testified that a new 1974 Toyota pickup truck was noticed as missing on January 28, 1974. The vehicle was thereafter reported to the police department as stolen. An undersheriff for Iron County testified that the pickup truck, identified by its serial number, was found by the sheriff's department at a farm in Iron River Township. The defendant was arrested and taken to the county jail on February 12, 1974. While at the jail, the undersheriff stated the defendant gave a written confession, which was signed by the defendant and witnessed by others present on February 14, 1974.

During the trial, the court held a Walker hearing^[1] to determine the voluntariness of the defendant's confession. After determining the statement was knowingly and voluntarily made by the defendant, it was received in evidence.

The confession indicated the defendant had driven the vehicle away from the Lansing business, where he had worked as a maintenance man. He stated that he had driven the truck to the farm on February 5, 1974. He left it parked there until it was eventually recovered by the police. According to the defendant, there were other men at the farm who knew the vehicle was stolen and who had driven it. Further, one of the other men was in the process of stripping the vehicle to sell the parts.

Another witness at the trial identified the defendant as the man he saw drive the truck into his service station at Iron River in February.

At the close of the prosecutor's proofs, the defendant made a motion for a directed verdict on the grounds that the prosecution had not proven all the elements of the crime charged. The motion was denied.

The first issue is whether the defendant, who confessed to taking the vehicle, may be convicted under the statute for receiving or aiding in the concealment of stolen property.

MCLA 750.535; MSA 28.803 reads in relevant part:

"A person who buys, receives, or aids in the concealment of any stolen, embezzled, or converted money, goods, or property knowing the same to have been stolen, embezzled, or converted, if the property purchased, received, or concealed exceeds the value of $100.00, is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00, or both."

The court in People v Allen, 252 Mich. 553, 554; 233 N.W. 412 (1930) stated:

"Under our statute (Act No. 175, Pub. Acts 1927, Chap. 7, § 69) [MCLA 767.69; MSA 28.1009], a count for receiving the stolen property, knowing it to have been stolen, may be added where larceny is charged, and the jury may find the accused person guilty of either of these offenses. They are, however, distinct offenses, and a conviction on one count works an acquittal on the other. The same person may not be the thief who stole the property and the person who received it from the thief, knowing it to have been stolen."

While it appears that a defendant convicted of larceny may not be convicted for receiving or aiding in the concealment of the stolen goods and vice versa, he may be prosecuted for both offenses. Thus, a defendant alleged to be the thief, but not convicted for his thievery, may be convicted under the statute for receiving or aiding in the concealment of stolen property. MCLA 750.535; MSA 28.803. See also People v Randall, 42 Mich. App. 187, 193; 201 NW2d 292 (1972), and People v Simon, 23 Mich. App. 64; 178 NW2d 106 (1970).

The next issue raised is whether the trial court erred in denying the defendant's motion for a directed verdict.

In reviewing the trial court's denial of a directed verdict on the same offense charged in the present case, the court in People v Keshishian, 45 Mich. App. 51, 53; 205 NW2d 818 (1973), stated:

"The only meritorious issue is whether defendant's motion for directed verdict made at the close of the prosecution's proofs should have been granted.

"The elements of this offense are as follows: (1) the property was stolen, (2) the receiving of the property by the defendant, (3) the identity of the goods as those previously stolen, (4) the value of the property, and (5) the guilty knowledge of the defendant. People v Tantenella, 212 Mich. 614 [180 N.W. 474] (1920), People v Martinovich, 18 Mich. App. 253 [170 NW2d 899] (1969).

* * *

"The question to be decided on a motion for directed verdict of not guilty is whether there is evidence from which the jury can reasonably infer all the elements of the crime charged. People v Compton, 23 Mich. App. 42 [178 NW2d 233] (1970)."

Item (2) would also include aiding in the concealment of stolen property by the defendant as an element of the offense.

In the instant case, the defendant argued to the trial court that the prosecution failed to prove items (2) and (5) above. An examination of the record indicates that the jury could have found the defendant had knowledge that the truck was stolen based upon his confession. Further, both from the confession and the witnesses called by the prosecution, the jury could have believed the defendant took the truck from Lansing to a farm in Iron River Township to conceal it from the police. The confession also indicates there were others at the farm, who knew the vehicle was stolen, and one of the others was in the process of stripping the truck down to sell the parts. Thus, the jury could have reasonably inferred the defendant was aiding in the concealment, possibly to help the one who was taking parts off the vehicle. These were reasonable inferences which the jury in its role as factfinder could properly determine. Therefore, the trial court did correctly deny the defendant's motion for a directed verdict because the jury could have reasonably inferred (2) and (5) above from the evidence presented by the prosecution.

The third issue is whether the trial court correctly determined that the defendant's confession had been voluntary.

People v Robinson, 386 Mich. 551, 557; 194 NW2d 709 (1972), states the applicable standard of review:

"In any event the sole purpose of the Walker hearing is to determine the fact of voluntariness and a reviewing court is concerned only with the correctness of that determination. The role of reviewing court is accurately stated in People v Summers, 15 Mich. App. 346, 348 [166 NW2d 672] (1968):

"`On this appeal we are required to "examine the entire record and make an independent determination of the ultimate issue of voluntariness". Davis v North Carolina, 384 U.S. 737, 741, 742; 86 S. Ct. 1761, 1764; 16 L. Ed. 2d 895, 898 (1966). See, also, Clewis v Texas, 386 U.S. 707, 708; 87 S. Ct. 1338, 1339; 18 L. Ed. 2d 423, 426 (1967); Greenwald v Wisconsin, 390 U.S. 519; 88 S. Ct. 1152; 20 L. Ed. 2d 77 (1968); People v Hamilton, 359 Mich. 410, 418; 102 NW2d 738 (1960); People v Pallister, 14 Mich. App. 139; 165 NW2d 319 (1968) and the discussion of the clearly erroneous rule in 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 596.'"

In line with the above authority, we have examined the entire record of the instant case. The undersheriff informed the defendant of his rights. There was no coercion shown or claimed to make the defendant confess. While the defendant did state he was depressed on the day he gave the confession, he stated the reason he confessed was that he "felt like gettin' it over with". Based upon the record, we find the trial court did not err in determining that the defendant's confession had been voluntarily given.

The final issue raised on appeal is whether the trial court correctly instructed the jury on the insanity defense.

No objection was made to the instructions at the trial.

While this alleged error is not properly before the Court, we find the instructions "were adequate and are not inconsistent with substantial justice". People v Fry, 55 Mich. App. 18, 26; 222 NW2d 14 (1974).

Affirmed.

NOTES

[1] People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).