People v. Bailey , 69 Mich. App. 92 ( 1976 )

D. E. Holbrook, P. J.

Following a bench trial, defendant was convicted of possession of burglary tools, contrary to MCLA 750.116; MSA 28.311, and breaking and entering an unoccupied building with intent to commit larceny, contrary to MCLA 750.110; MSA 28.305. Defendant received a sentence of from 3 to 10 years in prison on each count, the sentences to run concurrently. Defendant brings this appeal as of right.

On June 6, 1974 at approximately 4:30 a.m., three or four men were seen in an alley near the Curran Lumber Company in Oscoda, Michigan. One of them was described as a man wearing a brown leather jacket. Another appeared to be carrying some sort of a container. Eventually, an automobile described as a 1965 light blue Imperial or Lincoln Continental bearing a silver insignia of an eagle on the trunk, appeared, picked up the group of people who had been in the alley,, and left. Later that day, it was discovered that a break-in had occurred at the Curran Lumber Company. The next day at 1:30 in the morning, based on a description of the vehicle which had been implicated in the Curran Lumber Company break-in, the Oscoda Township police stopped the automobile in which defendant was riding. The owner and driver of the automobile, Edward Voelker, was notified that the car was being stopped because there was reason to believe it had been involved in a breaking and entering. Defendant Bailey was a passenger in the back seat. The police officers had the spotlights of their patrol car focused on the rear window of the suspicious vehicle, and they observed defendant pick up a brown leather jacket, lean forward, and then straighten up again while seated in the vehicle. With permission of the owner, the police proceeded to search the vehicle. They found two crowbars under the front seat. One was a three-foot long black bar and the other a blue pry bar. The bars were kept for examination and the men were released.

Later that same day, the police were notified that an auto parts store had been broken into sometime during the previous night. Entry had been gained into the building by prying and tearing away a portion of the metal wall. There were two groups of footprints, each containing the prints of three persons, found near the rear of the building. Near one set of footprints was a furrow in the ground which indicated that someone had dragged a pointed object along as they walked.

Defendant and his companions were then arrested and charged with the break-in at the auto parts store and with possession of burglary tools.

At trial, it was established that the blue pry bar had made certain markings which appeared in the metal of the auto parts building at the point of entry. Sand was found on the tip of the blue pry bar, tending to support the theory that someone had allowed it to drag on the ground while walking through a sandy area. Paint which was similar in color to that on the auto parts building was found on both bars. The stop and search of the vehicle in which defendant had been a passenger had occurred in the immediate vicinity of the auto parts store.

The defendant took the stand in his own behalf and presented what was essentially an alibi defense. He was the only defense witness.

Defendant first contends that both of his convictions are impermissibly based upon inferences founded upon other inferences. In support of this claim defendant cites People v Atley, 392 Mich 298; 220 NW2d 465 (1974). We believe Atley to be distinguishable and hold defendant’s claim on this issue to be without merit.

In Atley, the defendant appealed his conviction for conspiracy to sell marijuana. The Supreme Court held that, in order to establish a conspiracy, it must be shown that more than one person possessed the intent to sell marijuana, and that more than one person had agreed to sell marijuana. Viewing the evidence, the Court decided that the intent had been inferred from the presence of the defendant in a car with other people and 127 pounds of marijuana. The Supreme Court then decided that the agreement to sell had been inferred from the aforementioned intent to sell. This was held to be an impermissible inference upon an inference. The Court said at p 315; 220 NW2d at 473: "The 'no inference upon an inference’ doctrine is a difficult concept at best, but it clearly applies to the instant situation”. We agree that the concept is difficult, but it clearly does not apply to this case. Defendant points to no element of either crime which is inferred solely from another inference.

Defendant next alleges that the trial court erred in failing to direct a verdict for the defendant at the close of the people’s case.

When a motion for directed verdict of acquittal or dismissal is made in a criminal case, the trial court is compelled to examine the evidence, direct or circumstantial, entered by the people and decide whether or not there is at least some evidence on each material element of the offense. The motion will be granted if, on any material element of the offense, there is no evidence. People v DeClerk, 58 Mich App 528, 531; 228 NW2d 447, 448 (1975). An examination of the record leads us to the conclusion that the trial court properly decided that the prosecution had presented evidence on each material element of both of the offenses charged in this case.

Defendant next asserts that his conviction should be reversed because he was denied effective assistance of counsel at trial.

A close examination of the record leads us to the conclusion that this claim by defendant is without merit. People v Davis, 57 Mich App 505; 226 NW2d 540 (1975), People v Lawrence, 32 Mich App 591; 189 NW2d 48 (1971), People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969).

We have examined defendant’s other allegations of error and find them to be without merit.

Affirmed.

D. F. Walsh, J., concurred.