Opinion
Docket No. 113297.
Decided August 6, 1991, at 9:05 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and J. Thomas Horiszny, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Kim Robert Fawcett), for the defendant on appeal.
Before: REILLY, P.J., and GILLIS and MICHAEL J. KELLY, JJ.
Following a jury trial, defendant was convicted of placing explosives with intent to destroy or damage property and causing damage to property, MCL 750.206; MSA 28.403, and possession of an explosive device with intent to use it unlawfully against the person or property of another, MCL 750.211a; MSA 28.408(1). Defendant subsequently pleaded guilty of being a fourth-felony habitual offender, MCL 769.12; MSA 28.1084. Defendant was sentenced to concurrent terms of imprisonment of ten to twenty-five years and three to fifteen years, respectively. Defendant appeals as of right. We affirm.
Defendant was convicted of throwing a device commonly known as a Molotov cocktail through the bedroom window of an occupied residence, causing extensive property damage. The device was described by witnesses as a forty-ounce Colt 45 beer bottle filled with gasoline, with a burning white cloth on top. According to the witnesses, an explosion occurred and fire spread throughout the room.
I
Defendant first argues that his conviction of placing explosives with intent to destroy or damage property must be reversed and the charge dismissed. MCL 750.206; MSA 28.403 provides in part:
Any person who places in, upon, under, against or near to any building, car, vessel or structure, gunpowder or any other explosive substance, with intent to destroy, throw down or injure the whole or any part thereof, which explosive substance shall cause the destruction or injury of the property of another, shall be guilty of a felony.
Relying on our Supreme Court's summary order in People v Robinson, 388 Mich. 806 (1972), which affirmed this Court's decision in People v Robinson, 37 Mich. App. 15; 194 N.W.2d 436 (1971) (GILLIS, J., dissenting), defendant contends that reversal is warranted because gasoline is not an "explosive substance" under the statute. We disagree.
In Robinson, gasoline was spread on a stairway and then ignited by a match. The defendant was convicted of placing explosives with intent to destroy property, resulting in personal injury, MCL 750.207; MSA 28.404. Reasoning that gasoline, although capable of exploding, was not commonly used or intended as an explosive, and that the use of incendiary or flammable substances to cause property destruction and personal injury is separately punished as a felony, MCL 750.77; MSA 28.272, this Court reversed the defendant's conviction, holding:
This statute is the same as MCL 750.206; MSA 28.403, but applies where injury to a person occurs.
[I]t was not the intent of the [L]egislature to classify gasoline as an "explosive," when spread upon the surface of property to start a fire, under the statute. [ 37 Mich. App. 19. Emphasis added.]
The reasoning in Robinson, as well as its qualified holding, convinces us that the decision is limited to those situations where, unlike the instant case, gasoline has been spread on the surface of property to start a fire. Accordingly, we decline to read our Supreme Court's summary affirmance of that decision as implying anything broader.
As was recognized in Robinson, however, when used in a different manner, gasoline is capable of exploding and may be used and intended as an explosive. This is true for instance when it is used, as in this case, in a Molotov cocktail.
Moreover, we note that effective March 31, 1987, a date before this incident, the Legislature added § 528a to the Penal Code, making it a felony to demonstrate to another person the use, application, or construction of any explosive or incendiary device. MCL 750.528a; MSA 28.796(1). In this statute, "explosive or incendiary device" is defined as follows:
"Explosive or incendiary device" means:
(i) Dynamite, gunpowder, or other similarly explosive substance.
(ii) Any bomb, grenade, missile, or similar device designed to expand suddenly and release internal energy resulting in an explosion.
(iii) Any incendiary bomb or grenade, fire bomb, or similar device designed to ignite, including any device which consists of or includes a breakable container containing a flammable liquid compound and a wick composed of any material which, if ignited, is capable of igniting the flammable liquid or compound; and which may be carried or thrown by a person. [MCL 750.528a(1)(b); MSA 28.796(1)(1) (b).]
Thus, the recognition that gasoline may constitute an explosive substance when used in a Molotov cocktail is consistent with the definition of explosive or incendiary device under § 528a(1)(b)(iii).
Because the Penal Code did not define "explosive" at the time Robinson was decided, the Robinson Court looked to the definition of that term under the Vehicle Code. MCL 257.15; MSA 9.1815.
Accordingly, we conclude that gasoline, when used in a Molotov cocktail, is encompassed within the statutory phrase "explosive substance" as used in MCL 750.206; MSA 28.403. Therefore, we find that the evidence supported the defendant's conviction under § 206.
II
Finally, defendant argues that reversal is required because the prosecutor impeached his own witness, Gloria Poole, with evidence of her prior inconsistent statements. We disagree.
Because Poole was endorsed on the information as a witness the prosecution intended to produce at trial, the prosecutor was obliged to produce her. People v Cummings, 171 Mich. App. 577, 584-585; 430 N.W.2d 790 (1988). Accordingly, impeachment was proper under then MRE 607(2)(A).
This rule was amended on December 17, 1990, to provide that, effective March 1, 1991, the credibility of a witness may be attacked by any party, including the party calling the witness. 437 Mich, Part 1, xxxvi. See also MCL 767.40a(6); MSA 28.980(1)(6).
Nor do we agree with defendant that reversal is warranted because the jury was not instructed that use of the prior statements is limited to the issue of credibility. Contrary to what defendant urges, our review of the record fails to disclose that the prosecutor argued Poole's prior inconsistent statements to the jury as substantive evidence of the defendant's guilt. Accordingly, because defendant did not request a limiting instruction at trial, and because the likelihood of prejudice resulting from the absence of such an instruction has not been shown, we conclude that defendant is not entitled to relief on appeal. People v Hodges, 179 Mich. App. 629, 632; 446 N.W.2d 325 (1989).
Affirmed.