                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      August 2, 2016
               Plaintiff-Appellee,

v                                                                     No. 326389
                                                                      Wayne Circuit Court
LEONARD WAYNE WESSON,                                                 LC No. 14-003866-FH

               Defendant-Appellant.


Before: JANSEN, P.J., and O’CONNELL and RIORDAN, JJ.
RIORDAN, J. (dissenting).

       I respectfully dissent. I would affirm defendant’s conviction for larceny from a person.

        Michigan’s larceny from a person statute, MCL 750.357, provides, in part, that stealing
“from the person of another” will constitute larceny from the person, and an offender is eligible
for up to ten years of imprisonment. Our Supreme Court, in People v Smith-Anthony, 494 Mich
669, 680; 817 NW2d 415 (2013), held that for larceny from a person to occur, the action must
take place within the immediate presence of a person. Immediate presence is “satisfied when the
defendant takes property that is in the physical possession of a victim or property that is in
immediate proximity to a victim when the taking occurs.” Id. at 692-693. Defendant argues, and
the majority agrees, that there is insufficient evidence to support a conviction of larceny from a
person because “the [money] clip was not in the [victim’s] immediate presence when there was a
second man intervening in the space between [defendant] and [the victim].”

        While a third party may have stood near defendant and the victim at the time of the
taking, that circumstance does not negate the fact that the victim’s money clip was within inches
of the victim when defendant stole it. Rather than focusing on the location of the stolen property
relative to the victim, the majority focuses solely on the fact that a third person was present at the
time the crime occurred and deems this person’s presence equivalent to an intervening object.
See Smith-Anthony, 494 Mich at 688 (“[T]he immediate presence test can only be satisfied if the
property was in immediate proximity to the victim at the time of the taking. . . . [T]he common-
law meaning of ‘immediate presence’ in the larceny-from-the-person context is consistent with
the plain meaning of the word ‘immediate,’ which means ‘having no object or space intervening,
nearest or next.’ ”). The mere fact that a third person was present does not abrogate the money
clip’s immediate proximity to the victim. See also State v Washington, 308 NW2d 422, 423
(Iowa 1981) (holding that the crime first-degree theft, based on “theft from the person,”
constitutes a threat to both the property taken and the person from which the property is taken).
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        In Smith-Anthony, 494 Mich at 673-674, the defendant stole an item from a display case
inside a Macy’s department store. Although the defendant was close enough to the store’s loss-
prevention officer, who was deemed the victim of the larceny from a person, that the officer
could observe the defendant, and the defendant was, at times, within “earshot,” the Court found
that “ample ‘intervening space,’ ” consisting of a distance of at least several feet, separated the
stolen goods in a display case from the officer at the time of the taking. Id. at 689. The Supreme
Court also noted the common-law doctrine under which “courts treated the taking of
merchandise off a shelf or rack as a larceny from a building, not larceny from a person.” Id. at
690. Instead, under that doctrine, “[s]uch takings were considered larcenies from a person only
if an employee had been exercising direct control over the specific property at the time of the
taking.” Id. Further, the Court specifically noted that the loss-prevention officer, despite her
duty to prevent theft at the store, never took possession of the merchandise before the defendant
took it, meaning that she never exercised dominion over the item and it “remained under the
‘protection’ of the store.” Id. at 691.

        Thus, contrary to the majority’s characterization of the Court’s holding in Smith-Anthony,
the Supreme Court did not establish a bright-line rule that the presence of a third person negates
a conviction of larceny from a person when the theft occurs at the foot of the victim. In the case
before us, as the video evidence shows, defendant took the victim’s property within mere inches
of the victim’s feet, thus creating a high likelihood of a physical confrontation if the victim had
known of defendant’s actions. It appears as though the victim, with little effort, could have
stepped on defendant’s hand as he grabbed the money clip before sauntering away. Although I
recognize that the majority in Smith-Anthony expressly rejected the test advocated by the dissent,
which focused on whether the taking “ ‘triggers a substantial risk that a violent altercation will
occur,’ ” id. at 691-691 (citation omitted), I believe that the significant potential for a physical
confrontation in this case reveals the exceedingly close proximity of the money clip to the victim
and further supports my conclusion that the property actually was in the victim’s “immediate
presence.”

        In sum, the circumstances of this case are distinct from those in Smith-Anthony, where
considerable space separated the defendant and the victim. Here, the fact that the money clip
was only inches away from the victim dramatically increased the potential for a physical
confrontation, which could have threatened the victim’s person. Given these facts, it is clear that
the money clip was in the victim’s “immediate presence.” Accordingly, unlike the majority’s
bright-line portrayal of the Supreme Court’s test in Smith-Anthony, defendant’s larceny from a
person conviction should not be negated by the fact that a third person also was immediately
present at the scene of the criminal act.

       I would affirm.



                                                             /s/ Michael J. Riordan




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