text:
    WOLFORD v TRAVELERS INSURANCE COMPANY
    Docket No. 30819.
    Submitted June 13, 1979, at Grand Rapids.
    Decided October 1, 1979.
    Donald O. Wolford was injured in the course of his employment while operating a vehicle owned by his employer. Travelers Insurance Company, the insurer of the vehicle, acknowledged liability for payment of personal protection insurance benefits, but in computing those benefits subtracted the amounts which Wolford received as social security disability benefits and worker’s compensation benefits. Wolford brought an action against Travelers for a declaratory judgment that the set-off provision of the no-fault act which allows subtraction of government benefits from no-fault benefits is unconstitutional. The Berrien Circuit Court, Chester J. Byrns, J., granted summary judgment to the plaintiff. Travelers appeals. Held:

    1. The set-off provision is a rational promotion of legitimate legislative objectives and does not violate the constitutional guarantee of equal protection.
    2. Social security disability benefits and worker’s compensation benefits are benefits provided under the laws of the state and Federal governments and are, therefore, the type of benefits contemplated by the statutory set-off provision.
    Reversed, and summary judgment is entered in favor of the defendant.
    1. Insurance — No-Fault Insurance — Reduction of Benefits — Constitutional Law — Equal Protection — Statutes.
    The differing treatment in the no-fault insurance act of recipients of private health or accident benefits and recipients of government benefits in reducing no-fault benefits is supported by a rational basis and does not violate the constitutional guarantee of equal protection; the distinction rationally promotes the legislative objectives of enabling persons with economic needs or wages exceeding the maximum benefits permitted under the no-fault act to obtain the supplemental coverage they need and of placing the burden of such extra coverage directly on those persons (US Const, Am XIV; Const 1963, art 1, §2, MCL 500.3109[1]; MSA 24.13109[1]).

      References for Points in Headnotes

       New Topic Service Am Jur 2d, No-Fault Insurance § 22.

      2. Insurance — No-Fault Insurance — Reduction of Benefits — Statutes.
    Social security disability benefits and worker’s compensation benefits are benefits provided under the laws of the state and Federal governments and are, therefore, to be set off against no-fault insurance personal protection benefits payable to an injured person who is entitled to benefits from all three sources as a result of injuries received in an accident involving a vehicle owned by the injured person’s employer (MCL 500.3109[1]; MSA 24.13109[1]).

      Fisher, Troff & Fisher (by Roger Alan Petzke), for defendant.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   E. F. Oppliger, J.

This appeal involves the statutory set-off for governmental benefits against personal protection insurance benefits under the no-fault act. MCL 500.3109(1); MSA 24.13109(1).

Facts

Plaintiff-appellee filed a complaint for declaratory judgment alleging that he was injured in the course of the operation of a vehicle owned by his employer. Defendant-appellant was the no-fault auto insurance carrier for the vehicle. Plaintiff alleged that defendant acknowledged liability for personal protection insurance benefits, but in the computation of such benefits subtracted those amounts received by plaintiff in the form of social security disability benefits and workers’ disability compensation benefits. Plaintiff sought a ruling that the statutory set-off provision of the no-fault act is unconstitutional as it denies plaintiff equal protection of the laws.

Plaintiff moved for and was granted summary judgment primarily on the strength of this Court’s decision in O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487; 245 NW2d 801 (1976). This Court extended the time for defendant’s appeal until after the Michigan Supreme Court’s decision in O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979). Of course, the Supreme Court’s reversal in O’Donnell bears great weight in determining the outcome of this case.

Issue

At issue is that portion of the Michigan no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq., providing for the reduction of the otherwise payable no-fault insurance benefits by the amount of benefits payable to a beneficiary by the state or Federal government. MCL 500.3109(1); MSA 24.13109(1) provides:

"Benefits provided or required to be provided under the lqws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.”

This provision was attacked in the O’Donnell case on the grounds that it impermissibly provided unequal treatment between an insured receiving private benefits and another insured receiving government benefits. Section 3109(1) provides for a set-off of government benefits but not of private benefits such as private health or accident insurance benefits.

O’Donnell upheld the constitutionality of § 3109(1), finding that the Legislature’s judgment in differentiating between public and private benefits is supported by a rational basis. Specifically, the Court found:

"This distinction rationally promotes the legitimate legislative objectives of enabling persons with economic needs and/or wages exceeding the maximum benefits permitted under the No-Fault Act to obtain the supplemental coverage they need and of placing the burden of such extra coverage directly on the shoulders of those persons, instead of spreading it throughout the ranks of no-fault insureds.” 404 Mich at 537-538.

Further, the Court in O’Donnell was asked to determine whether social security survivor’s benefits were of a type required to be set-off under § 3109(1). O’Donnell held that a set-off was required. Specifically limiting the holding to the facts of that case, the Court said:

"We conclude that § 3109(1) does require a set-off of these government benefits but is not arbitrary because the benefits are paid as a result of the same accident and duplicate in varying degrees the no-fault benefits otherwise due. All persons who receive redundant government survivors’ benefits arising from one accident are treated the same and all are guaranteed a maximum survivor’s loss benefit of $1,000 per month for three years. It therefore does not violate the Due Process Clause of the state or Federal Constitutions.” 404 Mich at 538.

We now come to the question of whether the social security disability benefits and worker’s disability compensation benefits involved in this case are distinguishable from social security survivor’s benefits in any way that would render § 3109(1) unconstitutional as it applies to the former. We hold that they are not.

Social security disability benefits and worker’s compensation benefits are "benefits provided * * * under the laws of any state or the federal government”. Further, they are paid as a result of the same accident and serve substantially to compensate the same loss. In O’Donnell the Supreme Court found that the Legislature intended, by way of the set-off provision, to avoid duplicative recovery "and thereby reduce or contain the cost of basic insurance”. 405 Mich at 544. We find that the Legislature’s intention applies equally to the benefits here in question.

In light of the Supreme Court’s decision in O’Donnell, supra, we hold that § 3109(1) is constitutional and that it requires the set-off of social security disability benefits and worker’s disability compensation benefits received for an injury against the amount of no-fault personal protection benefits otherwise payable for the same injury.

Accordingly, the trial court’s grant of summary judgment in favor of plaintiff is reversed and summary judgment is entered in favor of defendant. GCR 1963, 117.2(1).

No costs, a public question being involved.


source: Caselaw Access Project

author: MacKenzie, J.

license: Public Domain

text:
    MOSHIER v FINANCIAL INDEMNITY COMPANY
    Docket No. 77-3481.
    Submitted March 6, 1979, at Grand Rapids.—
    Decided October 1, 1979.
    Leave to appeal applied for.
    Gayle M. Moshier brought an action for herself and as next friend of her minor children against Financial Indemnity Company to recover survivors’ benefits under a policy of no-fault insurance as a result of the death of her husband in an automobile accident. Upon plaintiffs motion for partial summary judgment, the Kalamazoo Circuit Court, Robert L. Borsos, J., found that the section of the no-fault act allowing a set-off in the amount of Social Security survivors’ benefits was unconstitutional, and prohibited the defendant from taking such a set-off. The court denied a motion for partial summary judgment brought by defendant which alleged that expenses for obtaining services in place of those performed by the decedent should be limited to $20 per day for all of the dependents and that those expenses are limited to a statutory maximum of $1,000 per 30-day period for no more than three years. Defendant appeals. Held:

    1. The statutory set-off of Social Security benefits is not unconstitutional.
    2. Defendant’s motion should have been granted. The reimbursement for expenses incurred in obtaining replacement services is limited to $20 per day, regardless of the number of dependents, and this benefit is included in survivors’ loss benefits which are limited to $1,000 per 30-day period for a period of three years.
    Reversed and remanded.
    1. Insurance — Automobiles — No-Fault — Personal Protection Benefits — Social Security Benefits — Statutes.
    The section of the no-fault automobile insurance statute which allows the subtraction from personal protection benefits of benefits provided under state or Federal law is not unconstitutional; an insurer is thus entitled to subtract from survivors’ loss benefits any amounts of Social Security survivors’ benefits received by the dependents of an insured who was fatally injured in an automobile collision (MCL 500.3109[1]; MSA 24.13109[1]).

      References for Points in Headnotes

       Am Jur 2d New Topic Service, No Fault Insurance § 22.

       Am Jur 2d New Topic Service, No Fault Insurance § 30.

       Am Jur 2d New Topic Service, No Fault Insurance § 31.

      2. Insurance — Automobiles — No-Fault — Replacement Services — Amount of Recovery — Statutes.
    Reimbursement for replacement services otherwise performed by an injured person, payable under the no-fault act, is limited by statute, and in the event of a fatal injury, the dependents of the deceased are entitled to recover such reimbursement; their right to recover is derivative of the decedent’s right to recover had he lived, and their recovery is limited, in the aggregate, to the statutory maximum amount, regardless of the number of dependents (MCL 500.3108; MSA 24.13108).
    3. Insurance — Automobiles — No-Fault — Survivors’ Benefits — Statutes.
    The statutory maximum of $1,000 in a 30-day period, payable for no more than three years, payable under the no-fault insurance act as survivors’ losses to dependents of a person who is fatally injured in an automobile accident, is applicable to both loss of contributions of tangible things the deceased would have provided for support of the dependents and to expenses for services to replace those which the decedent would have performed (MCL 500.3108; MSA 24.13108).

      Sloan, Zarbock, Risdon, Beneñel & Farrer, for plaintiff.

      Howard & Howard, for defendant.
    Before: R. B. Burns, P.J., and Allen and Mackenzie, JJ.
   MacKenzie, J.

On August 17, 1974, George Mo-shier was killed in an automobile accident. Mrs. Moshier, individually and as next friend of her children, brought suit against defendant Financial Indemnity Company for the no-fault insurance benefits.

Prior to trial, in response to plaintiffs motion for partial summary judgment, the trial court held that § 3109(1) of the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq., was unconstitutional, and, thus, the court prohibited the defendant from taking a set-off for Social Security benefits being received by the plaintiff. The defendant also brought a motion for partial summary judgment based on two separate grounds. First, that the court hold that expenses in obtaining services in place of those that the deceased would have performed pursuant to § 3108 be limited to a maximum of $20 per day for all dependents. Second, that the aggregate survivors’ loss benefits provided for by § 3108 be subject to a maximum benefit of $1,000 in a single 30-day period, and that the benefits not be payable beyond the first three years after the date of the accident. The trial court denied partial summary judgment on both of these issues.

From the trial court’s determinations as to the amount of defendant’s liability under the no-fault act, the defendant appeals as of right.

I

The defendant first argues that the trial judge erred in ruling that § 3109(1) of the no-fault act is unconstitutional. This section dictates that the benefits provided under state or Federal law shall be subtracted from personal protection insurance benefits otherwise payable for the injury. In O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979), the Supreme Court held that the provision did not violate either the Due Process or Equal Protection clauses of the state or Federal constitutions. Thus, the trial court’s holding that § 3109(1) is unconstitutional must be reversed; the defendant is entitied to a credit against benefits owed the plaintiff in the amount plaintiff received in Social Security benefits.

II

Defendant next contends that the trial court erred in determining that § 3108 limits benefits for expenses in obtaining services in lieu of those the deceased would have performed to $20 per day per dependent rather than $20 per day for all dependents. Section 3108 provides:

"(1) Except as provided in subsection (2), personal protection insurance benefits are payable for a survivor’s loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of the deceased’s death would have received for support during their dependency from the deceased if the deceased had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if the deceased had not suffered the injury causing death. Except as provided in section (2) the benefits payable for a survivor’s loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 for accidents occurring before October 1, 1978, and shall not exceed $1,475.00 for accidents occurring on or after October 1, 1978, and is not payable beyond the first three years after the date of the accident.” (Emphasis supplied.)

We conclude that the $20 per day maximum applies to all of the dependents, who, therefore, must share in the distribution. The provision em-

ploys the plural term "dependents”, thus indicating a legislative intent to limit the total recovery to $20 per day regardless of the number of dependents. Further, according to the Michigan Supreme Court in Shavers v Attorney General, 402 Mich 554, 620; 267 NW2d 72 (1978):

"Under the act, an injured person may be reimbursed for such services up to a limit of $20 a day for a maximum period of three years. (This limit may be adjusted annually to keep pace with changes in the cost of living.) (§ 3107[b].) The family of the injured person may receive the same reimbursement should the injured person die. (§ 3108.)” (Emphasis supplied.)

This language implies that the right of the dependents to recover expenses for replacement services, is derivative of the injured person’s right. Thus, the dependents, in aggregate, are limited to the maximum of $20 per day just as the injured person would have been. The trial court’s decision that the $20 per day limitation applies to each dependent must, consequently, be reversed.

Ill

Defendant finally contends that the trial court erred in holding that the term "survivor’s loss”, as set forth in § 3108, does not encompass expenses for replacement services. The trial court’s ruling results in the exemption of benefits received for replacement services expenses from the $1,000 per 30-day period and three-year limitations. It was the trial court’s opinion that had the Legislature intended the term "survivor’s loss” to include both contributions of things having economic value and expenses for replacement services, it could have inserted the word "both” before the words "a loss”. Further, because the statute is in derogation of the common law, the court held that the provision must be strictly construed.

This issue was encountered in Olivera v State Farm Mutual Automobile Ins Co, 451 F Supp 889 (ED Mich, 1978), where the United States District Court held that the term "survivor’s loss” encompasses expenses for replacement services as well as loss of contributions of tangible things of economic value. The court noted that the term "survivor’s loss” is clearly demarcated from the phrase "a loss of contribution” by the phrase "which consists of’, thus suggesting that the term "survivor’s loss” consists of more than a loss of contributions. Second, if survivor’s loss and expenses were distinct, the word "for” should appear before the phrase "expenses for replacement services”, as well as "survivor’s loss”. Finally, the $1,000 limit was separately stated in the final sentence of § 3108, indicating that it applies to both types of benefits set forth in the previous sentence.

A similar issue was recently faced by this Court in Pries v Travelers Ins Co, 86 Mich App 221; 272 NW2d 247 (1978), concerning the construction of § 3107 of the no-fault act. Whereas § 3108 provides for reimbursement to the family of the injured person should the injured person die, § 3107 allows for reimbursement to the injured person who has survived. Section 3107(b) states that "benefits are payable” for:

"Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent. * * * The benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss. The maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner but any change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum.”

The Court held that the maximum monthly benefit allowance under the no-fault act for "work loss”, $1,000, did not include the daily allowance for expenses incurred in obtaining replacement services.

Because of the derivative relationship of §§ 3107 and 3108, strong argument exists that they should be interpreted in pari materia. We find, however, the construction of § 3108 by the United States District Court in Olivera persuasive. Further, we note that §§ 3107 and 3108 are not identically worded. In § 3108, the three-year limitation appears only in the last sentence, along with the $1,000 per 30-day period limitation. Under the interpretation espoused by the plaintiff, no time limit whatsoever would apply to the payment of benefits for replacement services expenses, a result we doubt the Legislature intended. In § 3107, however, a three-year limit is expressly set forth for replacement services expenses.

We thus hold that the term "survivor’s loss” includes expenses for replacement services, and that these benefits are, therefore, subject to the $1,000 per 30-day period and three-year limitations.

Reversed and remanded. No costs, interpretation of a statute being involved.

       The Olivera holding conforms with dicta appearing in Belcher v Aetna Casualty & Surety Co, 83 Mich App 207, 212-213; 268 NW2d 349 (1978). The Court stated:
      "Further support for this conclusion can be found by comparing the method of computing survivor’s benefits, MCL 500.3108; MSA 24.13108, with the method for computing the work loss portion of the personal protection benefits available to an injured person, MCL 500.3107; MSA 24.13107. Both are payable for up to three years and are subject to a $1000 maximum for any 30-day period. Both include the cost of expenses, up to $20 per day, incurred in obtaining services which would have been provided by the injured person.”
      The Court’s discussion of "survivor’s benefits” provided for in § 3108 was incident to its determination that a dependent’s right to recover is derivative of the injured person’s rights to personal protection benefits.

       The Pries Court had several bases for its conclusion. First, the word "and” appearing before the word "expenses” related back to the phrase "benefits are payable” rather than "work loss”. Second, the sentence setting forth the $1,000 limit makes no mention of replacement services, whereas a $20 limit is set forth in the sentence concerned with replacement services. Third, the Court interpreted the Michigan Supreme Court’s opinion in Shavers v Attorney General, supra, as referring to separate benefits payable, each with its own limit. The Court further noted that the defendant insurance company’s interpretation would result in reduced first party benefits being paid, resulting in more injured parties seeking redress under the residual liability sections, MCL 500.3135(2)(c); MSA 24.13135(2)(c). The Court felt such a result would be counterproductive to the goals of the act. Finally, the Court found it significant that the act’s residual liability section, MCL 500.3135(2)(c); MSA 24.13135(2)(c), mentions both "daily” and "monthly” limits.


author: Cynar, J.

text:
    PEOPLE v NIEVES
    Docket No. 77-4262.
    Submitted May 1, 1979, at Grand Rapids.
    Decided October 1, 1979.
    Jose Nieves was convicted of possession of heroin with intent to deliver, Muskegon Circuit Court, Charles A. Larnard, J. Defendant appeals, alleging that the trial court erred by admitting into evidence testimony that the defendant had made prior heroin sales to an investigator. Held:

    The testimony regarding the prior sales was sufficient to satisfy the requirements for admission under the statute which allows such evidence for the purpose of showing a defendant’s plan, scheme or intent. The only disputed issue in this case was the defendant’s intent to deliver the heroin, thus the evidence was probative of a material element of the crime charged and was properly admitted.
    Affirmed.
    1. Criminal Law — Evidence — Prior Bad Acts — Statutes.
    Evidence of a defendant’s prior bad acts may be admissible only where 1) there is substantial evidence that the defendant actually perpetrated the bad act, evidence of which is sought to be introduced, 2) there are some special circumstances of the prior bad act which tend to prove one of the statutory elements of the crime charged and 3) the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant’s guilt of the charged offense (MCL 768.27; MSA 28.1050).
    2. Criminal Law — Evidence — Prior Bad Acts — Statutes.
    The question of whether there is sufficient proof that a defendant committed a prior bad act to make admissible evidence of that act under the prior act statute is decided on a case-by-case basis; such evidence may be entirely circumstantial, and even an acquittal on charges arising from the prior act does not establish that the defendant did not commit it (MCL 768.27; MSA 28.1050).

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 333.

       29 Am Jur 2d, Evidence § 321.

       29 Am Jur 2d, Evidence § 324.

      3. Criminal Law — Evidence — Prior Bad Acts — Intent to Deliver Heroin — Statutes.
    Evidence of a defendant’s prior acts of delivery of heroin may properly be admitted to show the defendant’s intent to deliver in a trial for possession of heroin with intent to deliver (MCL 768.27; MSA 28.1050).
    4. Criminal Law — Evidence — Prior Bad Acts — Probative Value — Prejudice.
    Evidence of a defendant’s prior bad acts, which may otherwise be admissible pursuant to statute to show the defendant’s plan, scheme, or intent, may only be admitted if the probative value of the evidence outweighs its prejudicial effect.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Gerald D. Warner, Prosecuting Attorney, and Stephen C. Corwin, Assistant Prosecuting Attorney, for the people.

      Paul M. Ladas, for defendant on appeal.
    Before: Mackenzie, P.J., and D. E. Holbrook, Jr., and Cynar, JJ.
   Cynar, J.

On July 27, 1977, defendant was convicted by a jury of possession of heroin with intent to deliver. MCL 335.341(l)(a); MSA 18.1070(4l)(l)(a). He was sentenced to a term of 13 years 4 months to 20 years imprisonment and now appeals as of right.

The principal witness for the prosecution was Amanda Everett, defendant’s girlfriend, who was granted immunity in return for her testimony. She testified that a few days prior to April 1, 1977, she and defendant went to Detroit where he bought some heroin. This heroin was kept in her closet until April 1, 1977, when the police raided her home. At this time she hid the heroin in a sock. This heroin was subsequently seized by a jail matron and later determined to contain 210 to 840 doses. She also testified that defendant had told her he made his living selling heroin and that he desired to set up operations in Muskegon County. She also indicated that defendant had previously given her and her friends heroin. This latter assertion was corroborated by another witness.

Detective John Jurkas testified that on April 4, 1977, defendant told him the heroin in question belonged to him and not Amanda Everett. No evidence was introduced by defendant disputing that the heroin was his. Defendant’s theory of the case was that the heroin was for his own personal use and consumption and that he did not intend to deliver it.

Defendant raises a single issue on appeal. He contends that the trial court erred in admitting testimony, under MCL 768.27; MSA 28.1050, of prior heroin sales by defendant to Kenneth Rhodes, an investigator for the Drug Enforcement Administration. Over objection, Rhodes testified that on two occasions in February of 1975, he had purchased heroin from defendant. On one occasion he purchased an ounce of heroin for $1,050; on another occasion he purchased two ounces for $2,100. He further testified that he made arrangements to purchase a pound of heroin for $22,000, but that the deal was aborted when Rhodes was picked up by the police.

MCL 768.27; MSA 28.1050 states:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

For prior acts to be admissible under the statute, a three-prong test must be met: (1) There must be substantial evidence that defendant actually perpetrated the bad act, evidence of which is sought to be introduced; (2) there must be some special circumstances of the prior bad act which tend to prove one of the statutory items; and (3) the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant’s guilt of the charged offense. People v Wilkins, 82 Mich App 260, 267-268; 266 NW2d 781 (1978). We conclude that each of these requirements was met in the present case.

The question of whether there is sufficient proof to establish that defendant committed the prior act is necessarily decided on a case-by-case basis. Such proof may be strictly circumstantial, see People v Allen, 351 Mich 535; 88 NW2d 433 (1958), and even an acquittal on charges arising out of the act does not establish that defendant did not commit it. People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976). In the present case Rhodes testified from first-hand knowledge as to defendant’s participation in the prior sales and as to the results of his own tests confirming that the substances purchased were heroin. This is sufficient to satisfy the first prong of the test.

We further conclude that the prior acts of defendant tend to establish his intent to deliver heroin in the present case. The prior sales tend to prove that defendant was a heroin dealer and not merely a narcotics user. Numerous cases from this Court support the admission of prior heroin sales in prosecutions for delivery of a controlled substance. See People v Anderson, 13 Mich App 247; 163 NW2d 793 (1968), People v Peck, 39 Mich App 150; 197 NW2d 346 (1972), People v Rhinehart, 70 Mich App 390; 245 NW2d 763 (1976), People v Koehler, 54 Mich App 624; 221 NW2d 398 (1974), People v Harper, 39 Mich App 134; 197 NW2d 338 (1972), People v Jones, 38 Mich App 512; 196 NW2d 817 (1972), and People v McNeal, 72 Mich App 507; 250 NW2d 110 (1976). The evidence was admitted in these cases to show plan or scheme or, as in this case, defendant’s intent to deliver. As such it satisfies the second prong of the Wilkins test.

The final prong of the test is the easiest to satisfy. Intent to deliver is one of the elements of the offense charged. Further, defendant’s theory of the case, admitting possession but denying the intent to deliver, focused upon the question of intent. Thus, defendant’s intent was clearly material to the determination of guilt.

However, this does not end our analysis. Even when the three-prong test is satisfied the trial judge still has a duty to determine if the probative value of the evidence outweighs its prejudicial effect. People v Wilkins, supra, 270.

In the present case, the trial judge expressly recognized the necessity of balancing these factors. His ruling, admitting the evidence, implicitly indicated that he considered the probative value of the evidence as outweighing its prejudicial effect.

We find no error in the trial judge’s determination. A person’s intent in a particular instance is seldom provable by direct evidence. Rather, this element is usually at best inferred from the circumstances surrounding the act in question. Thus, intent or any mental state is often the most difficult element of an offense to prove.

The above analysis is important to consider when determining the probative value of the similar acts evidence in the present case. Defendant’s intent was the only disputed issue. In order to prove intent to deliver the prosecution had to rely upon inferences drawn from general statements made by defendant and the amount of drugs involved. Although this evidence would have been sufficient to support a conviction on the charged offense, such a result was not a certainty. Thus, the similar acts testimony had a significant probative value in establishing the key element at trial. Although we recognize that the admission of similar act testimony will always have a certain amount of prejudicial impact, we conclude that the probative value of the evidence outweighed its prejudicial effect and that the evidence was properly admitted.

Affirmed.

D. E. Holbrook, Jr., J., concurs in the result only.


author: G. W. Crockett, Jr., J.

text:
    PEOPLE v ADAMS
    Docket No. 78-874.
    Submitted May 8, 1979, at Lansing.
    Decided October 1, 1979.
    Leave to appeal applied for.
    Joe L. Adams was convicted of armed robbery and assault with intent to commit murder. Philip Benn, owner of Benn’s Sweeper Shop, was stabbed four times during a robbery at his shop. On the day after the robbery and assault, Philip Benn, while in the intensive care unit of a local hospital, was shown a series of photographs by the police and picked out Joe L. Adams as a subject who looked like the man who robbed and attacked him. On the day of trial, but not prior thereto, defense counsel requested and was granted a hearing to examine the nature of the photographic showup. After testimony by a police detective and Benn, defendant moved to suppress any testimony of Benn which would go toward identifying him on the ground that the failure to preserve the photo display which the police had shown Benn tainted any subsequent identification at trial. At the court’s suggestion Benn and his wife testified for purposes of the motion. Thereafter, Jackson Circuit Court, Russell E. Noble, J., ruled the photo identification procedures which took place while Benn was in the intensive care unit of the hospital were not improper. On appeal, in addition to the photo identification issue, defendant contends that the officer’s testimony concerning the complaining witness’s identification was hearsay and should have been excluded by the trial judge, that the court erred in failing to repeat, sua sponte, a limiting instruction on the use of impeachment evidence when claimed impeachment testimony was read back to the jury during their deliberations and that the court’s jury instructions were misleading. Held:

    1. Pretrial eyewitness photographic identification will not be set aside at trial unless the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The procedure involved in the photographic identification session between the police and Benn was not impermissibly suggestive, unfair, biased or in violation of the defendant’s constitutional rights.

      References for Points in Headnotes

       29 Am Jur'2d, Evidence § 371.

       5 Am Jur 2d, Appeal and Error § 797 et seq.

       5 Am Jur 2d, Appeal and Error § 623.

       5 Am Jur 2d, Appeal and Error §§ 776, 815.

       5 Am Jur 2d, Appeal and Error § 776 et seq.

      2. It would have been better procedure to preserve the photographs shown to Benn; however, this is not in and of itself a violation of due process, especially without a request for disclosure before trial and where other witnesses identified the defendant as the perpetrator of the offense.
    3. While it could be argued that the police officer’s testimony concerning the identification of defendant by Benn dealt with the nature or quality of the identification rather than what took place and under what circumstances, its admission was not reversible error where two other witnesses identified the defendant and any prejudice flowing from the testimony was minimal.
    4. A trial judge is not under a duty to give an additional limiting instruction, absent a request, where a clear and correct limiting instruction is previously given to the jury. Following the arguments of counsel, the trial judge correctly instructed the jury on the limited use of impeachment evidence. This was sufficient in the absence of a request for further limiting instructions.
    5. Defendant’s conviction cannot be set aside on his claim of misleading jury instructions. As a general rule failure to make a timely objection to jury instructions' precludes appellate review in the absence of manifest injustice or a miscarriage of justice. There was no trial objection and there is no manifest injustice.
    Affirmed.
    1. Witnesses — Criminal Law — Identification — Photographs.
    Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
    2. Witnesses — Criminal Law — Identification — Photographs — Due Process.
    Failure to preserve a group of photographs shown to a complainant for pretrial identification purposes is not in and of itself a violation of due process, especially where no pre-trial request was made for the photographs or any other evidence of a photographic identification and where the defendant was identified at trial by several other witnesses.
    3. Criminal Law — Witnesses — Evidence — Identification Testimony — Eyewitness Identification — Prejudice.
    It was not error to admit arguably improper identification testimony where a defendant was unqualifiedly identified at trial by two different res gestae witnesses and any prejudice flowing to the defendant was minimal in light of a police officer’s testimony that the defendant’s identification by a complaining witness was uncertain and equivocal.
    4. Appeal and Error — Instructions to Jury — Limiting Instructions — Failure to Request.
    Claims of error in instructions to the jury are considered in the context of all the instructions given; where a clear and correct limiting instruction is previously given to the jury, the trial court is not under a duty to give an additional limiting instruction absent a request.
    5. Criminal Law — Instructions to Jury — Manifest Injustice — Failure to Object — Appeal and Error.
    Generally, in the absence of manifest injustice or a miscarriage of justice, a conviction should not be set aside on the basis of alleged error in the jury instructions, where no objection was raised at trial.
    6. Criminal Law — Appeal and Error — Error.
    A conviction will not be set aside where the Court of Appeals, after an examination of the record, is not convinced that reversible error was committed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward Grant, Prosecuting Attorney, and Bruce A. Barton, Special Prosecuting Attorney, for the people.

      John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. C. Riley, P.J., and V. J. Brennan and G. W. Crockett, Jr., JJ.

       Former Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   G. W. Crockett, Jr., J.

Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28,797, and assault with intent to commit murder, MCL 750.83; MSA 28.278, on September 7, 1977. The charges against the defendant arose out of an incident that occurred in the City of Jackson on November 17, 1976. A man entered Benn’s Sweeper Shop, which is owned and operated by Philip Benn and Donna Mae Benn, and robbed Philip Benn at knife point. During the course of the robbery, Philip Benn was stabbed four times.

The first question we address is whether the trial court committed reversible error in ruling that the photographic identification procedures used in the investigation of this case were neither suggestive nor otherwise improper.

On the day after the robbery and assault, Jackson Police Detective Maurice Crawford displayed a series of photographs to the elderly victim, Philip Benn, who was then in the intensive care unit of a local hospital as a result of the injuries he sustained during the robbery of his store. Mr. Benn was in serious condition at the time of this photographic showup. He picked out a photo of the defendant, Joe Lee Adams, as a subject who looked like the man who robbed and attacked him.

Prior to trial, there was no motion to suppress and no request for an evidentiary hearing on this issue of identification. However, on the first morning of trial, after the selection of the jury, defense counsel requested a hearing at which he would be permitted to examine the nature of the photographic identification session that Mr. Benn had participated in while in the intensive care unit at the hospital. The trial court granted defense counsel’s request for such a hearing, and the hearing was conducted outside the presence of the jury.

Detective Crawford displayed six or seven pictures of different individuals to Mr. Benn at the photographic identification session. In putting the photo showup pack together, Detective Crawford testified that he attempted to use only pictures of individuals whose appearances were roughly the same. Detective Crawford stated that no suggestions were made about any photograph and that he remained completely impartial during the identification procedure. However, Detective Crawford did explain that he had expected Mr. Benn to select, from the pictures displayed, a photograph of one Larry Graham, who was at that time the principal suspect in the case. Crawford stated that he was surprised when Mr. Benn tentatively picked the photo of the defendant as his assailant, rather than the photo of Larry Graham.

Defense counsel moved to suppress any testimony of Mr. Benn which would go toward identifying the defendant. This objection was based on the ground that the failure to preserve the photo display which the police had shown Mr. Benn tainted any subsequent identification at trial. In response to Detective Crawford’s testimony that there was nothing suggestive about the photographic identification procedure, defense counsel claimed that there was no way of telling without an opportunity to examine the photographs. On this point, the trial Court suggested that Mr. Benn be called to testify for purposes of the hearing.

At the time of trial, Philip Benn was still suffering from the injuries he sustained in the assault. His wife indicated that he easily became confused. His testimony at the hearing on the identification issue and during the trial itself was confused and often not responsive. The trial judge recognized this problem and noted that Mr. Benn was not clear in response to the questions being asked because of his physical condition.

Mr. Benn stated that Detective Crawford had not told him which picture to pick out at the photo identification session. On cross-examination, he stated that his wife had shown him a sketch of some kind that appeared in a local newspaper. (Apparently, this sketch which appeared in the local newspaper was a composite sketch of an individual who was at that time a suspect in various robberies in the Jackson area. However, there was no evidence that the sketch in question even resembled the defendant.) Mr. Benn was not sure as to when he was shown this sketch. At one point he stated that it was the second day after the robbery, and later that it was more than two days after the robbery.

Donna Mae Benn then testified that she had shown her husband the newspaper article and accompanying sketch after he had left the hospital, not while he was in the hospital. This would have been after the photo identification session in question. On cross-examination, Mrs. Benn stated that there were no newspapers in her husband’s hospital room at any time. Defense counsel then argued that perhaps someone else, other than Mrs. Benn, had shown Mr. Benn a sketch from the newspaper. The trial court ruled that there was no evidence to support such a suggestion, and that the photo identification procedures which took place while Mr. Benn was in the intensive care unit of the hospital were not improper. In fact, the trial court noted that there was absolutely no evidence that the sketch in question even resembled the defendant.

The Michigan Supreme Court has recognized the standard for evaluating photographic identification procedures set forth in Simmons v United States, 390 US 377, 384; 88 S Ct 967; 19 L Ed 2d 1247 (1968):

"[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentiñcation.” (Emphasis added.)

See People v Kachar, 400 Mich 78, 90; 252 NW2d 807 (1977), People v Lee, 391 Mich 618, 626; 218 NW2d 655 (1974), People v Anderson, 389 Mich 155, 168; 205 NW2d 461 (1973).

We are not convinced that the procedure involved here was impermissibly suggestive; nor was it "unfair, biased, or a violation of the accused’s constitutional rights”.

While it would have been better procedure for the police to have preserved the group of photographs shown to the complainant, failure to do so is not in and of itself a violation of due process. United States v Clemons, 144 US App DC 235, 238; 445 F2d 711, 714; 440 F2d 205 (1970). See also, People v Hill, 88 Mich App 50, 60-61; 276 NW2d 512 (1979). This is especially so where, as here, no pre-trial request was made for the photographs or any other evidence of the photographic identification and the defendant was identified at the trial by several other witnesses.

Defendant further argues that the officer’s testimony concerning the complaining witness’s identification of the defendant in a photo lineup was hearsay and should have been excluded by the trial judge. The relevant portion of the transcript reveals the following colloquy:

"Q. (* * * [Prosecuting Attorney] continuing): Officer Crawford, if I may rephrase the question. You have testified that he did not—did he pick out Mr. Graham?
"A. No, he did not.
"Q. Did he pick out anyone positively?
"A. No.
"Q. And who did he call to your attention tentatively?
"A. Joe Lee Adams.
"Q. The Defendant, is that correct?
"A. Yes.”

In People v Poe, 388 Mich 611, 617-619; 202 NW2d 320 (1972), the Court held that it was error to admit the police testimony and notes showing that witnesses had made a "positive identification” of defendant at a lineup. The Court distinguished a previous Michigan case, People v Londe, 230 Mich 484; 203 NW 93 (1925), in the following manner:

“Londe restricts the police officer’s testimony to 'what took place’ and under 'what circumstances the identification was made’ and not, as here, the nature or quality of the identification.” Poe, supra at 618.

The officer's testimony in the case at bar was thus arguably improper. However, under these facts, we decline to find its admission reversible. Any prejudice flowing to the defendant was minimal in light of the officer’s remarks as to the uncertain and equivocal nature of the identification. Moreover, defendant was unqualifiedly identified at trial by two different res gestae witnesses to the crime. We also note that, under People v Sanford, 402 Mich 460; 265 NW2d 1 (1978), the instant testimony would now be admissible. Hence, a retrial on this issue would be an empty gesture.

Defendant also argues that the trial court erred in failing to repeat, sua sponte, the limiting instruction on the use of impeachment evidence when claimed impeachment testimony was subsequently read back to the jury during their deliberations.

Barney Jones testified that he was near Benn’s Sweeper Shop at the time of the robbery and saw a man running away with a purse and a knife in his hand. He stated at trial that he did not know who it was that he saw running from Benn’s Sweeper Shop. However, Jones had testified at the preliminary examination that it was the defendant that he saw running from the scene carrying a knife and a purse. (Jones was clearly uncooperative as a witness at trial. In fact, his very presence at trial had to be secured by apprehending him on a bench warrant after he had failed to appear pursuant to a subpoena ordering him to appear. Jones was held in jail the night before he testified.) The prosecutor used the preliminary examination transcript of Jones’s prior testimony in an effort to impeach Jones’s testimony at trial. Defense counsel then asked the trial judge to instruct the jury on the limited use of impeachment evidence. In response to this request, the trial judge stated that:

"THE COURT: The jurors will be instructed about those matters at the proper time. The testimony that they are going to consider has to come from the witnesses during the trial and they may take that into consideration; everything that comes out during the trial, as well as what is being used by * * * [prosecuting attorney] here.
"THE COURT: When I say what is being used by * * * [prosecuting attorney], they may consider the questions and answers that he is preponderating [sic] and the references to the preliminary examination that he is using to question the witness from.”

Following the arguments of counsel, the trial judge correctly instructed the jury on the limited use of impeachment evidence as set forth in CJX 4:5:01.

After the jury had begun their deliberations, they requested that the testimony of Detective Crawford, Barney Jones, and two other witnesses be read to them. After Jones’s testimony was read to the jury, no additional limiting instruction on the use of impeachment evidence was given. However, no such additional instruction was requested.

Claims of instructional error are considered in the context of all the instructions given. People v Taylor, 44 Mich App 640; 205 NW2d 884 (1973). Where a clear and correct limiting instruction is previously given to the jury, the trial court is not under a duty to give an additional limiting instruction absent a request. Defendant’s reference to People v Cox, 61 Mich App 37; 232 NW2d 188 (1975), is clearly inappropriate. In Cox, no limiting instruction had been given at all. Moreover, the Cox Court found that the record showed that the jury was confused as to how the preliminary examination testimony was to be used and that the jury focused on that testimony in their deliberations. That is not the situation here.

Defendant further argues that the trial court’s instructions were misleading. None of these instructions were objected to by defense counsel. In the absence of manifest injustice or a miscarriage of justice, a conviction should not be set aside on the basis of jury instructions when no objection is raised at trial. GCR 1963, 516.2, People v Carroll, 396 Mich 408, 415, 416; 240 NW2d 722 (1976).

An examination of the record does not convince us that reversible error was committed in this case.

Affirmed.


author: D. C. Riley, P.J. G. W. Crockett, Jr., J.

text:
    PEOPLE v ERSKIN
    Docket No. 78-2223.
    Submitted May 9, 1979, at Lansing.
    Decided October 1, 1979.
    Larry L. Erskin was charged with two counts of receiving and concealing stolen property and was bound over for trial on those charges following a preliminary examination. Prior to trial, the prosecution moved to amend the information to include two counts of larceny. Defense counsel, arguing that such amendment was improper because defendant had not received a preliminary examination on the larceny charges, moved to remand for a preliminary examination on the new charges. The Ingham Circuit Court, James T. Kallman, J., denied the motion to remand and permitted the prosecution to amend the information by adding the larceny counts.
    The facts surrounding the charges were essentially undisputed. A Lansing police officer observed two vehicles, a Camaro and a Pontiac, each of which bore the same license plate number. The officer had the Camaro halt and gave chase to the Pontiac. After stopping the Pontiac, the officer asked the driver, defendant, to produce a driver’s license, registration and proof of insurance. Defendant was only able to produce the license of another person. The officer observed that the Pontiac’s VIN plate bore evidence that it had been pried loose at one time. Upon returning to the Camaro, which was now abandoned, the officer observed evidence that the Camaro’s VIN plate had been tampered with and determined that the car possessed an incorrect license plate number. The officer searched the Camaro in the hope of determining its ownership. A trunk was found in the rear seat of the Camaro. After the Camaro was towed and impounded, the officer continued his search and inventoried the contents. In the trunk found in the rear seat of the Camaro the officer found a title to the Camaro, in a name other than defendant’s, and letters addressed to defendant.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law 4451, 455.

       41 Am Jur 2d, Indictments and Information § 177 et seq.

       21 Am Jur 2d, Criminal Law § 443.

       41 Am Jur 2d, Indictments and Information § 207.

       21 Am Jur 2d, Criminal Law § 440 et seq.

    41 Am Jur 2d, Indictments and Information § 200.

       5 Am Jur 2d, Appeal and Error § 881.

       68 Am Jur 2d, Searches and Seizures § 57.
    Lawfulness of "inventory search” of motor vehicle impounded by police. 48 ALR3d 537.

       68 Am Jur 2d, Searches and Seizures §§ 9, 41 et seq.

       41 Am Jur 2d, Indictments and Information § 183.

      Defendant moved to suppress the admission of the items discovered during the officer’s inventory search of the Camaro. The trial court denied the motion to suppress. At the close of the prosecution’s proofs, defendant moved for dismissal on all counts. The trial court denied the motion to dismiss with respect to the receiving and concealing stolen property counts, granted the motion with respect to the larceny of the Camaro and took under advisement the motion with respect to the Pontiac. Defendant took the stand and admitted that he had stolen both the Pontiac and Camaro. Following all proofs, defendant waived a jury trial and was thereafter found guilty of one count of larceny over $100 by the trial court. He was also convicted as a habitual offender. Defendant appeals, arguing error in the granting of the motion to amend and the denial of the motion to suppress. Held:

    1. A new preliminary examination is not necessary where the amended information does not introduce a new and different offense but rather simply amends as to form. The statute permitting amendment of the information does not, however, authorize the amendment of the information without a new preliminary examination where a new offense is charged and where such new charge is of such a nature that the original information could not be said to have fairly apprised the defendant and the court of its nature.
    2. The language of the Michigan Supreme Court in People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978), to the effect that the prosecution may charge both larceny and receiving and concealing stolen property does not sanction the addition of a larceny count to an information charging receiving and concealing stolen property by means of a pre-trial amendment to the information without a remand for a preliminary examination on the larceny count. Such language does not relieve the prosecution of showing, prior to filing the amended information, that the larceny was committed and there is probable cause to believe that defendant committed it.
    3. While it was error for the trial court to permit, prior to trial, amendment of the information by the addition of larceny counts without first remanding for a preliminary examination on those additional counts, such error was harmless error, since defendant took the stand and admitted the theft of the subject property. Since an amendment to the information would have been proper after such testimony had been given, no reversible error resulted from the pre-trial amendment.
    4. A trial court’s determination relative to the suppression of evidence obtained through an allegedly illegal search and seizure will not be overturned unless that determination is found to be clearly erroneous.
    5. The inventory search of the lawfully impounded automobile was reasonable because it served not only the legitimate concerns for the protection of the owner’s property and the protection of the police from claims and disputes over lost or stolen property, but also because it assisted the police in determining the true ownership of the automobile. The search being reasonable, the evidence seized in that search was properly admitted into evidence.
    Affirmed.
    G. W. Crockett, Jr., J., dissented. He would hold that the error resulting in permitting amendment of the information prior to trial without remanding for a preliminary examination on the added count cannot be said to be harmless error. The pre-trial amendment of the information caused defendant to take the stand and thereby occasioned defendant’s admission, which is the sole basis for his conviction. He would reverse and remand for a preliminary examination with instructions that defendant’s trial testimony be excluded in toto.

    Opinion of the Court
    1. Indictment and Information — Amendment — Re-examination — Statutes.
    A new preliminary examination is unnecessary where an amended information does not introduce a new and different offense, but rather simply amends as to form (MCL 767.76; MSA 28.1016).
    2. Indictment and Information — Amendment — New Offense — Statutes.
    The statute permitting amendment of an information does not authorize the addition of a new charge by way of amendment, but rather only permits the curing of defects in the statement of an offense which has already been sufficiently charged to fairly apprise the defendant and court of its nature (MCL 767.76; MSA 28.1016).
    3. Criminal Law — Preliminary Examinations — Probable Cause.
    The primary purpose of a preliminary examination is to determine if a crime has been committed and, if so, whether there is probable cause to believe that the defendant committed it.
    4. Indictment and Information — Amendment — Preliminary Examination — Probable Cause.
    The addition of a charge of larceny by means of an amendment to an information charging receiving and concealing stolen property, where such amendment takes place prior to trial and without a preliminary examination on the new charge, is not sanctioned by court precedent; the prosecution is not relieved of showing, prior to filing the amended information, that the crime has been committed and that there is probable cause to believe that defendant committed it.
    5. Indictment and Information — Amendment — Preliminary Examination — Probable Cause — Harmless Error.
    It is error to permit the addition, prior to trial, of a count charging larceny to an information charging receiving and concealing stolen property without first remanding for a preliminary examination on the added count; however, the error was harmless where a defendant took the stand and admitted the theft of the subject property, since the prosecution could have sought such amendment upon the revelation.
    6. Appeal and Error — Criminal Law — Evidence — Motion to Suppress — Clearly Erroneous.
    A trial court’s determination relative to the suppression of evidence obtained through an allegedly illegal search and seizure will not be overturned unless that determination is found to be clearly erroneous.
    7. Searches and Seizures — Inventory Searches — Reasonableness — Factors.
    An examination and inventory of an automobile’s contents following a lawful impoundment is reasonable because such procedure is a legitimate response to the need: (1) to protect the owner’s property while it remains in police custody, (2) to protect the police against claims or disputes over lost or stolen property, and (3) to protect the police from potential danger.

      8. Searches and Seizures — Inventory Searches — Reasonableness.
    It was reasonable and proper to impound and make an inventory search of an automobile which was abandoned by the driver, had evidence that the VIN plate had been tampered with, and bore an incorrect license plate number, since such a search was not only to protect the owner’s property and protect the police against claims and disputes, but also because such a search assisted the police in determining the ownership of the automobile; the evidence secured during the inventory was properly admitted into evidence.
    Dissent by G. W. Crockett, Jr., J.
    9. Indictment and Information — Amendment — New Offense — Preliminary Examination.

      The failure to remand for a preliminary examination on a larceny count added by way of amendment by the prosecution prior to trial to an information charging receiving and concealing stolen property was not harmless error in that such error may have caused the defendant to take the stand and thereby admit the larceny.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecutor, Michael G. Woodworth, Chief Appellate Attorney, and Charles M. Sibert, Assistant Prosecuting Attorney, for the people.

      Paul L. Decocq, for defendant on appeal.
    Before: D. C. Riley, P.J., and V. J. Brennan and G. W. Crockett, Jr., JJ.

       Former Detroit Recorder’s Court Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   D. C. Riley, P.J.

Defendant was convicted of larceny over $100, MCL 750.356; MSA 28.588, and was also determined to be an habitual offender, MCL 769.12; MSA 28.1084. He was sentenced to 10 to 30 years imprisonment and appeals as of right.

The pertinent facts are essentially undisputed. On November 28, 1977, officer Stephen Early of the Lansing Police Department observed two vehicles, a blue Camaro and a black over gold Pontiac, which bore the same license number. He pulled the Camaro to a* halt and then gave chase to the Pontiac. Following a successful pursuit, he asked the driver, whom he identified as the defendant, to. produce a driver’s license, registration and proof of insurance. Defendant could only produce the license of another person. Early then observed that the VIN (vehicle identification number) plate bore scratch marks and appeared to be bowed out, indicating that the plate had been pried loose at one time.

Both Early and defendant returned to the Camaro, whose driver by now had fled the scene. Again, the officer noticed that the VIN had been tampered with, and further determined that the car possessed an incorrect license plate number. At this time, the Camaro was searched in the hope of producing some indication of ownership. A few tools and a black trunk were found in the back seat. Officer Early then had the vehicle towed and impounded, at which time he continued the search of the automobile and inventoried its contents. Upon opening the trunk, he found a title tb the Camaro in a name other than defendant’s, and also discovered letters with defendant’s address on them.

Both cars were later confirmed as stolen when a LEIN check of the hidden VIN plátéS revéáled their trüe owners.

Defendant Was charged in two counts of receiving and concealing stolen property over $100, contrary to MCL 750.535(1); MSA 28.803(1), and Was bound over for trial on same following prelimináry examination. Prior to the commencement of trial, the prosecution moved to amend the information to include two additional counts of larceny over $100, MCL 750.356; MSA 28.588. The prosecutor indicated that his motion was premised upon the Supreme Court’s opinion in People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978), which had been released shortly before defendant’s trial. Defense counsel argued that defendant had not received a preliminary examination on the added larceny charges. The prosecutor countered that Kyllonen authorized the additional charges prior to, or even during, trial. Pursuant to a review of the Kyllonen decision, the trial court denied defendant’s motion to remand and granted the prosecutor’s request to amend for the additional counts.

Following the presentation of evidence during the prosecution’s case-in-chief, defendant moved for a directed verdict on all charges. Defense counsel’s argument was directed primarily at the lack of evidence supporting the larceny charges. The trial court found there to be sufficient evidence regarding the receiving and concealing of stolen property charges, but found no proof of a larceny of the Camaro by the defendant. That count was therefore dismissed. The court, however, took the count involving larceny of the Pontiac under advisement.

Defendant then took the stand and admitted that he had stolen both the Pontiac and Camaro. Upon the completion of defendant’s testimony, and before the jury was to be instructed, defendant waived jury trial, after which the lower court found defendant guilty of one count of larceny over $100.

Defendant now claims that the trial judge erred by failing to remand for a preliminary examination on the two added counts of larceny. We agree.

MCL 767.69; MSA 28.1009 permits the offenses cited to be charged in the same information. MCL 767.76; MSA 28.1016 allows for amendment under authority of the trial court as follows:

"The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury.”

Where an amended information does not introduce a new and different offense, but simply constitutes an amendment as to form, remand for rearraignment or a new preliminary examination is unnecessary. People v Iaconis, 29 Mich App 443, 463; 185 NW2d 609 (1971), aff'd sub nom People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972), People v Batten, 9 Mich App 195, 202; 156 NW2d 640 (1967). However, the quoted statute does not authorize the court to allow the changing of the offense or the addition of a new charge by way of amendment; rather, it only permits the procedural cure of defects in the statement of the offense which is already sufficiently charged to fairly apprise the defendant and court of its nature. People v Sims, 257 Mich 478, 481; 241 NW 247 (1932), People v Bruce, 35 Mich App 358, 359-360; 192 NW2d 634 (1971), lv den 387 Mich 788 (1972), People v Cherry, 27 Mich App 672, 675; 183 NW2d 857 (1970), People v White, 22 Mich App 65, 67; 176 NW2d 723 (1970), People v Burd No 1, 13 Mich App 307, 316-317; 164 NW2d 392 (1968). To hold otherwise would run afoul of MCL 767.42(1); MSA 28.982(1), which provides in pertinent part:

"An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination.’*
The primary purpose of the preliminary examination is to determine if a crime has been committed and, if so, whether there is probable cause to believe that the defendant committed it. People v Duncan, 388 Mich 489, 499; 201 NW2d 629 (1972), and cases cited therein.
"The right of defendant to a preliminary examination is not a constitutional right, Woon v Oregon, 229 US 586; 33 S Ct 783; 57 L Ed 1340 (1913), but it is one which the Michigan Supreme Court has called a 'fundamental right in most criminal cases,’ People v Duncan, 388 Mich 489, 502; 201 NW2d 629, 635 (1972), and the United States Supreme Court has found to be a 'critical stage’ in criminal proceedings. Coleman v Alabama, 399 US 1, 9; 90 S Ct 1999, 2003; 26 L Ed 387, 397 (1970).” People v Skowronek, 57 Mich App 110, 114; 226 NW2d 74 (1974).

In the present case, the prosecutor admitted, when arguing for the proposed larceny aniendments, that he had no information that defendant was the thief other than that he was in possession of recently stolen property and lived in a city adjacent to the city from which one of the cars was stolen. The prosecutor conceded that he did not believe defendant would have been bound over on the larceny charges had they been filed prior to the preliminary examination, but he, nevertheless; felt compelled by People v Kyllonen supra, to add them.

A careful reading of the Supreme Court’s opinion in Kyllonen, argued at length by the parties and relied upon by the trial judge, indicates that it does not obviate the need for a preliminary examination under the circumstances presented in the case at bar. In that case, defendant was originally charged with receiving and concealing stolen property, but revealed in mid-trial that he was the actual thief. The Court held that the receiving and concealing statute was to be construed to exclude thieves who conceal property they had stolen, and that thieves were to be punished separately Under the larceny statutes. 402 Mich at 148.

The Court then addressed certain problems which the prosecution believed would flow from such an interpretation:

"The prosecution first contends that under today’s decision a defendant charged only with buying, receiving or aiding in the concealment of stolen property may escape all criminal liability by simply revealing in midtrial or on appeal after a conviction that he was the thief and therefore not amenable to prosecution for buying, receiving or aiding in the concealment of stolen property. Apparently, this alarm is based on the assumption that reprosecution would be barred by the 'same transaction’ test adopted in People v White, 390 Mich 245; 212 NW2d 222 (1973).
"Even if the crimes of larceny and buying, receiving or aiding in the concealment of stolen property could be said to arise from the same transaction, the prosecution would not be prohibited from reprosecution on the theft charge if the defendant’s revelation that he was the thief was truly a surprise. In White, supra, 258, fn 6, this Court said:
" 'We are aware that in certain situations, strict application of the same transaction test could lead to the anomalous result of foreclosing prosecution for an offense where the state had made a diligent and good faith effort to protect the defendant’s constitutional rights.’
"Further, the prosecution contends that today’s decision requires proof beyond a reasonable doubt that the defendant was not the thief in order to secure a conviction for buying, receiving or aiding in the concealment of stolen property, and that this will be difficult to prove.
"This problem will vanish if the prosecution charges the defendant with both larceny and buying, receiving or aiding in the concealment of stolen property. The prosecution then may simply present its proofs and the factfinder may convict the defendant of either crime or acquit him altogether, depending upon its perception of the evidence.

Contrary to the prosecutor’s assertion, the foregoing language does not sanction the action taken by the court below, nor does it relieve the prosecution of showing, prior to filing the information, that a crime has been committed and that there is probable cause to believe that defendant committed it. The quoted language suggesting that a defendant may be charged with both larceny and receiving and concealing necessarily presupposes a factual showing at the preliminary examination of evidence sufficient to show directly, or to otherwise imply defendant’s commission of both offenses.

An information is not predicated upon the complaint or the examination which precedes the issuance of a warrant, but is rather framed with reference to the facts disclosed at the preliminary examination. People v Jones, 75 Mich App 261, 267-268; 254 NW2d 863 (1977), lv den 402 Mich 822 (1977), People v Norman, 9 Mich App 647, 652; 158 NW2d 38 (1968). Here, as previously stated, the prosecutor admitted the absence of evidence at the preliminary examination which would allow defendant’s bindover on the larceny charges. Thus, we hold it was error for the trial court to fail to remand for a preliminary examination on those counts. The error, however, was harmless. The count charging larceny of the Camaro was dismissed at the close of the prosecution’s proofs. Thereafter, defendant admitted stealing both the Camaro and the Pontiac. Given defendant’s admission of guilt, we do not find grounds to reverse.

Defendant also challenges the warrantless inventory search of the vehicle and trunk following impoundment. The court below, in denying defendant’s motion to suppress, held that defendant lacked standing to challenge the search.

A trial court’s ruling at a suppression hearing will not be overturned unless that ruling is found to be clearly erroneous. People v Young, 89 Mich App 753, 763; 282 NW2d 211 (1979), People v White, 84 Mich App 351, 354; 269 NW2d 598 (1978), People v Ulrich, 83 Mich App 19, 21; 268 NW2d 269 (1978).

In his motion, defendant alleges a possessory interest in the black trunk. We need not decide whether this was sufficient under traditional principles of standing, Brown v United States, 411 US 223, 229; 93 S Ct 1565; 36 L Ed 2d 208 (1973), People v Greenwood, 87 Mich App 509, 512-513; 274 NW2d 832 (1978), or whether defendant must have shown a possessory/proprietory interest in the apparently abandoned car, for we hold that, in either event, the inspection did not transgress the Fourth Amendment’s proscription against warrantless searches. That amendment prohibits only "unreasonable” searches and seizures. South Dakota v Opperman, 428 US 364, 372-373; 96 S Ct 3092; 49 L Ed 2d 1000 (1976).

Whether a search and seizure is unreasonable for Fourth Amendment purposes depends upon the facts and circumstances of each case. Cooper v California, 386 US 58, 59; 87 S Ct 788; 17 L Ed 2d 730 (1967). In Opperman, supra, the Supreme Court, without deciding whether the practice constituted a "search”, upheld as reasonable (and therefore constitutionally permissible) the examination and inventory of an automobile’s contents following lawful impoundment. In so characterizing the inventory, the Court noted that such a procedure constituted a legitimate response to three distinct needs: (1) the protection of the owner’s property while it remains in police custody; (2) the protection of the police against claims or disputes over lost or stolen property; and (3) the protection of the police from potential danger. 428 US at 369.

In the case at bar, given the circumstances under which the vehicle was stopped, its apparent abandonment by the driver, and the indications that it had been stolen, there can be no quarrel that the car was legitimately taken into custody. Significantly, the investigation falls directly within the type of conduct sanctioned by Opperman. Officer Early testified at the preliminary examination that the inventory and tagging of the vehicle’s contents was carried out pursuant to standard administrative police procedure. In addition, the intrusion was further rendered reasonable by his attempt to determine ownership upon suspicion that the vehicle was stolen. See Opperman, supra at 369.

Defendant’s reliance on United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977), is misplaced. Chadwick was not an inventory search. There, following disembarkment at an airport, defendants were placing a marijuana filled, double-locked footlocker into the trunk of a car when they were arrested by Federal agents. In striking down the warrantless seizure and subsequent search of the footlocker, the Court noted that the exploration of the footlocker could not be justified under the "automobile exception” to the warrant requirement, since a person’s expectation of privacy in personal luggage was substantially greater than in an automobile. We deal here with a factually inapposite setting.

Defendant’s convictions are hereby affirmed.

V. J. Brennan, J., concurred.

G. W. Crockett, Jr., J.

(dissenting). I concur in that portion of the opinion which concludes that it was error to deny a preliminary examination of the added counts. However, I do not agree that the error was harmless. This error caused defendant to take the stand, thereby occasioning the admission which is the sole basis for his conviction.

I would reverse and remand for a preliminary examination and further order that defendant’s prior trial testimony be excluded in toto.

       “An indictment for larceny may contain also a count for embezzlement, larceny by conversion, obtaining property by false pretenses or for receiving or having in possession, or aiding in concealing the same property, knowing it to have been stolen, and the jury may convict of any such offense; and the jury may find all or any of the persons indicted, guilty of any of the offenses charged in the indictment. The prosecuting attorney shall not be required to elect between the offenses so charges.” MCL 767.69; MSA 28.1009.

       MCL 750.535(1); MSA 28.803(1).

       MCL 750.356 et seq.; MSA 28.588(1) et seq.

       If the revelation of theft by the defendant is not a surprise, we anticipate that a diligent prosecutor would include both counts in the information.
      "If the defendant’s revelation comes in mid-trial, the prosecutor may ask the court’s permission to amend the information to include a count of larceny. See MCLA 767.76; MSA 28.1016.

      "16 MCLA 767.69; MSA 28.1009 specifically authorizes the prosecution to add an alternate count of larceny to any information charging a defendant with buying, receiving or aiding in the concealment of stolen property, and MCLA 767.63; MSA 28.1003 permits the prosecution to charge both of these crimes in any county into which the stolen property was transported, even if the larceny actually took place in another county.”_

       Even though the larceny charges were improperly added prior to this point in trial, it is clear that the prosecution could have moved for amendment of the information after defendant’s revelation of actual theft. See People v Kyllonen, 402 Mich 135, 149, fn 15.

       But see Rakas v Illinois, 439 US 128; 99 S Ct 421; 58 L Ed 2d 387 (1978), decided ten months after the suppression hearing in the instant case, where the United States Supreme Court appeared to suggest that it would abandon the separate concept of standing in favor of an approach which focuses on the extent of a particular defendant’s rights under the Fourth Amendment; i.e., does the defendant have a legitimate expectation of privacy in the place or thing searched?