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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, V DANIEL RAY WITHERELL, Defendant-Appellant.

UNPUBLISHED January 4, 2000

No. 212487 Ingham Circuit Court LC No. 97-072941 FH

Before: Talbot, P.J., Gribbs and Meter, JJ. PER CURIAM. Following a jury trial, defendant was convicted of second-degree home invasion, MCL 750.110a(3); MSA 28.305(a)(3). He was sentenced as a fourth habitual offender, MCL 769.12; MSA 28.1084, to thirty to sixty years' imprisonment. Defendant appeals as of right. We affirm. Defendant first argues that the trial court abused its discretion in admitting testimony that he was a suspect under surveillance and a composite drawing, stating "identity and information wanted" and "the above composite is of a suspect." Defendant contends that this evidence implicated him in prior bad acts, by allowing the jury to infer that he was wanted for other crimes and that he had a propensity to commit breaking and entering offenses. We disagree and hold that to the extent the contested evidence could be characterized as other crimes, wrongs, or acts, it was properly admitted pursuant to the res gestae exception to MRE 404(b). Notwithstanding MRE 404(b), the common law continues to recognize that evidence of other criminal acts is admissible where they constitute part of the res gestae of the charged offense. People v Coleman, 210 Mich App 1, 5; 532 NW2d 885 (1995); People v Cromwell, 186 Mich App 505, 508; 465 NW2d 10 (1990); People v Bowers, 136 Mich App 284, 293-297; 356 NW2d 618 (1984); People v Smith, 119 Mich App 431, 436; 326 NW2d 533 (1982). Thus, evidence of other criminal acts is admissible when those acts are "so blended or connected with the [charged offense] that proof of one incidentally involves the other or explains the circumstances of the crime." People v Sholl, 453 Mich 730, 742; 556 NW2d 851 (1996), quoting People v Delgado, 404 Mich App 76, 83; 273 NW2d 395 (1978). Alternatively, "res gestae" has been defined as "the facts which so illustrate and characterize the principal fact as to constitute the whole one transaction, and render the latter necessary -1

to exhibit the former in its proper effect." People v Robinson, 128 Mich App 3e8, 340; 340 NW2d 303 (1983), quoting People v Castillo, 82 Mich App 476, 479-480; 266 NW2d 460 (1978). The case against defendant was based in large part on the testimony of several Jackson County Police officers who had defendant under surveillance because he was a suspect in other potential breaking and entering offenses in Jackson County. Evidence that defendant was a suspect under surveillance was necessary to explain the events which ultimately led to his arrest, including how two officers happened to spot defendant leaving the victim's residence in Ingham County, the subsequent car chase involving several surveillance officers, and the discovery of his vehicle in a parking lot. Thus, this evidence was part of the res gestae of the crime and was needed to give the jury "an intelligible presentation of the full context in which the disputed events took place." Sholl, supra at 741. The trial court also took steps to make the evidence less prejudicial by deleting references to "breaking and entering" on the "wanted" poster and by prohibiting the officers from explaining why defendant was under surveillance. Two officers merely explained that they were surveying defendant because they were looking for a suspect based on a composite drawing. Consequently, the trial court did not abuse its discretion in admitting the contested evidence. Defendant next contends that the trial court erred in denying his motion for a directed verdict because the circumstantial evidence was insufficient to establish his identity as the perpetrator of the crime. We disagree. In reviewing a trial court's ruling on a directed verdict, we view the evidence presented by the prosecutor up to the time the motion was made in the light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements were proven beyond a reasonable doubt. People v Crawford, 232 Mich App 608, 615-616; 591 NW2d 669 (1998). The offense of second-degree home invasion by means of breaking and entering requires proof that the defendant broke and entered a dwelling with intent to commit a felony or larceny therein. MCL 750.110a(3); MSA 29.305(a)(3); CJI2d 25.2b. Larceny, charged here, is the taking and carrying away of the property of another with felonious intent and without the owner's consent. People v Gimotty, 216 Mich App 254, 257-258; 549 NW2d 39 (1996). It is well established that circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of the crime, including identity. Crawford, supra at 616. In this case, two police officers testified that, shortly after observing defendant's unoccupied vehicle parked outside the victim's rural residence, they saw him run from the area of the victim's yard at about 12:20 p.m. He was carrying what appeared to be a pillowcase

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