People v. Perry

895 N.W.2d 216, 317 Mich. App. 589, 2016 Mich. App. LEXIS 1996

• Court: Michigan Court of Appeals
• Decided: October 27, 2016
• Docket: Docket 328409
• Status: Published

Opinion

PER CURIAM.

A jury convicted defendant of two counts of uttering counterfeit notes, MCL 750.253; one count of false pretenses involving $1,000 or more but less than $20,000, MCL 750.218(4)(a); and one count of identity theft, MCL 445.65. Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to three concurrent prison terms of 2 to years and one term of 12 months in jail. Defendant now appeals as of right. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS

This appeal arises out of the exchange of counterfeit money during a Craigslist transaction, and the background facts involve the fraudulent cashing of a check in Grand Rapids, Michigan.

On July 27, 2014, Montay Lee participated in a basketball tournament in South Haven, Michigan, at which time his bag was stolen. His bag contained a variety of items, including his wallet, identification, and a $1,100 paycheck from the city of Grand Rapids. That same day, defendant cashed Lee’s stolen check at Hall Street Party Store in Grand Rapids, Michigan. Wasif Hermiz, the owner of the party store, testified that defendant showed him Lee’s identification when cashing the check. Additionally, because defendant was a new customer and because the check was for a significant amount of money, Hermiz took defendant’s thumbprint and had him put it on the back of the check.

Michael Bourdon, the victim in the instant case, posted for sale on Craigslist a 1998 Pontiac Firebird for $2,500. On or around August 8, 2014, defendant and defendant’s “mechanic,” Marcus Lavar Smith, test-drove the Firebird. Defendant agreed to the $2,500 purchase price and handed Bourdon an envelope con sisting of a $100 bill, several $50 bills, and 15 to 20 $10 bills. In exchange for the money, Bourdon filled out the title work, indicating that the purchaser was Montay Lee. The transaction occurred in Muskegon County.

Bourdon’s coworker, Jordan Sohasky, testified that he witnessed the transaction. After defendant and Smith left, both Bourdon and Sohasky noted that the money looked funny. Bourdon determined that there were no holograms on some of the bills, and Sohasky noticed that the bills were too thick. Bourdon immediately called the police. A police officer accompanied Bourdon to Comerica Bank where it was determined that all of the money was counterfeit except for the $100 bill. The Firebird was entered into the Law Enforcement Information Network as stolen.

A few hours later, defendant and another individual went to the Secretary of State’s Office in Grand Rapids, Michigan. A worker testified that the individuals wanted to transfer a vehicle title and change an address. The worker first changed the address and put a change of address sticker on the back of a Michigan license that displayed the name “Montay Lee.” The worker saw that the vehicle was identified as stolen. He went back into his office to contact the police, and the individuals left before he returned. The Firebird was found approximately a half mile away from the Secretary of State’s office.

In an interview with the police, defendant admitted to passing a check at the Hall Street Party Store, but he claimed that “somebody” offered him money to cash the check and that he did not know that the check was stolen. Defendant denied knowledge of the passing of counterfeit money in Muskegon County and denied being part of that transaction. There was no physical evidence connecting defendant to the counterfeit money.

The jury found defendant guilty of identity theft, two counts of uttering counterfeit notes, and one count of false pretenses. Defendant was sentenced as previously stated. He now appeals as of right.

II. AMENDMENT OF INFORMATION

Defendant argues that the trial court erred by permitting the prosecution to amend the information during trial to add a count of identity theft because (1) the amendment was an unfair surprise, and (2) it was the product of prosecutorial vindictiveness. We disagree.

This Court reviews for an abuse of discretion a trial court’s decision to grant or deny a motion to amend an information. People v McGee, 258 Mich App 683, 686-687; 672 NW2d 191 (2003). The trial court abuses its discretion when its decision falls outside the range of principled outcomes. People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531 (2014).

First, defendant contends that the amendment of the information during the trial was an unfair surprise and unduly prejudicial because he was denied the opportunity to cross-examine witnesses on the charge. A trial court may amend an information at any time before, during, or after a trial, as long as the amendment does not unfairly surprise or prejudice the defendant. McGee, 258 Mich App at 686; MCR 6.112(H). A defendant may establish unfair surprise by articulating how additional time to prepare would have benefited the defense. See McGee, 258 Mich App at 693.

In this case, the prosecutor stated on the morning before trial that if the facts at trial supported it, she intended to move to amend the information to add a charge of identity theft for defendant’s use of Lee’s information when he attempted to purchase the car from Bourdon. On the second day of trial, over defense counsel’s objection, the trial court granted the prosecution’s motion to amend the information to include the additional charge. The trial court ruled that the charge was not a surprise because it involved facts that had already been presented and that defense counsel “ha[d] known about that threat for a while.” Because defendant knew of the prosecution’s intent to amend the charges in this case before trial started, he has not demonstrated that the amendment during the trial itself denied him the opportunity to cross-examine the witnesses on the new charge. Defendant was aware of the possibility of an identity-theft charge before the witnesses were examined.

Second, defendant contends that the amendment was the result of prosecutorial vindictiveness and a punishment for his decision to exercise his right to trial. The prosecution violates a defendant’s right to due process by punishing him or her for asserting protected statutory or constitutional rights. People v Ryan, 451 Mich 30, 35; 545 NW2d 612 (1996). However, the imposition of additional charges that are within the prosecution’s charging discretion does not constitute sufficient evidence from which to presume vindictiveness. People v Jones, 252 Mich App 1, 8; 650 NW2d 717 (2002). If the prosecution brings greater charges after a defendant’s failure to plead guilty, “the defendant must affirmatively prove actual vindictiveness in order to establish that there was a denial of due process.” Id. Actual vindictiveness requires objective evidence of hostility or a threat that suggests that the defendant was deliberately penalized for exercising his or her rights. Ryan, 451 Mich at 36.

In this case, defendant relies on the timing of the prosecution’s decision to seek an additional charge as evidence that the prosecution’s decision was vindictive. The timing in this case was not evidence of presumptive vindictiveness. See Jones, 252 Mich App at 8. The record contains no indication of actual vindictiveness on the part of the prosecution. The record is absent of any expressed hostility or threats that suggest that the prosecution deliberately penalized defendant for exercising his right to trial. We conclude that the trial court did not abuse its discretion by granting the prosecution’s motion to amend the information in this case.

III. PHOTOGRAPHIC LINEUP

Defendant argues that the trial court should have suppressed evidence of his identification in the photographic lineup because he was in custody at that time and should have received a corporeal lineup attended by counsel. We disagree.

“This Court reviews de novo questions of law relevant to a motion to suppress [an identification].” People v Hickman, 470 Mich 602, 605; 684 NW2d 267 (2004).

At trial, defendant argued that he was denied the right to counsel because he was in custody and adversarial criminal proceedings had been initiated against him when the photographic lineup occurred. Defendant further argued that the Kent County case for which he was in custody was related and intertwined with the instant case and that the right to counsel attached upon his arrest on September 22, 2014. Defendant noted that the Kent County case was not initiated until the Grand Kapids Police Department was informed that a bad check was cashed in its jurisdiction. Defendant argued that the police could have easily determined that defendant had been arrested and was in custody. The trial court disagreed and denied defendant’s motion to suppress.

On appeal, defendant relies on People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), overruled by Hickman, 470 Mich 602, arguing that the trial court erred and that he was entitled to a corporeal identification with counsel present instead of the photographic identification procedure. In Anderson, the Michigan Supreme Court ruled that when a suspect is in custody, investigators should not use a photographic identification procedure, and that a defendant has as much right to counsel during a photographic identification as he or she would have during a corporeal identification. Anderson, 389 Mich at 186-187. But the Michigan Supreme Court subsequently overruled Anderson, stating that a defendant’s right to counsel “attaches only to corporeal identifications conducted at or after the initiation of adversarial judicial criminal proceedings.” Hickman, 470 Mich at 603. See Moore v Illinois, 434 US 220, 226-227; 98 S Ct 458; 54 L Ed 2d 424 (1977). Although the Hickman decision was made in the context of a corporeal identification, the decision broadly overruled Anderson to the extent that the Anderson decision went “beyond the constitutional text and extend [ed] the right to counsel to a time before the initiation of adversarial criminal proceedings,” Hickman, 470 Mich at 603-604 (emphasis added), and it also explained the consistency between the federal and state provisions providing the right to counsel, id. at 607-609. Therefore, applying Hickman’s reasoning to photographic identifications that occurred before the initiation of adversarial judicial proceedings is consistent with the Hickman decision as it pertained to corporeal identifications.

Defendant was taken into custody on September 22, 2014, in the Kent County case, and it appears that the photographic lineup occurred on September 25, 2014. Defendant does not dispute that adversarial judicial criminal proceedings for the instant case had not yet been initiated when the photographic lineup occurred. Because adversarial judicial criminal proceedings for the instant case had not been initiated when the photographic lineup occurred, defendant did not have a right to counsel—even under Michigan law. Hickman, 470 Mich at 603-604, 607-609 (holding that the right to counsel attaches at or after the initiation of adversarial judicial proceedings and that the protections under the Michigan Constitution are consistent with the Sixth Amendment right to counsel); People v Smielewski, 214 Mich App 55, 60; 542 NW2d 293 (1995) (“The Sixth Amendment right [to counsel], which is offense-specific and cannot be invoked once for all future prosecutions, attaches only at or after adversarial judicial proceedings have been initiated.”) (emphasis added).

Nevertheless, defendant argues that he had a right to counsel under People v Kurylczyk, 443 Mich 289; 505 NW2d 528 (1993), because he was in custody. However, Kurylczyk was decided before Hickman, Kurylczyk s reasoning was based on Anderson, see Kurylczyk, 443 Mich at 297-298, and Hickman held that Anderson was overruled to the extent that it went “beyond the constitutional text and extended] the right to counsel to a time before the initiation of adversarial criminal proceedings,” Hickman, 470 Mich at 603-604 (emphasis added). Therefore, although the Hickman decision did not expressly overrule—or even mention—Kurylczyk in the majority opinion, the Hickman decision applies equally to Kurylczyk. Accordingly, defendant’s reliance on Kurylczyk for the proposition that he was entitled to counsel because he was in custody is misplaced.

IV. SUFFICIENCY OF THE EVIDENCE

Defendant argues that the evidence was insufficient to support his conviction of identity theft. We disagree.

This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence supporting his or her conviction. People v Henderson, 306 Mich App 1, 8; 854 NW2d 234 (2014). We review the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could find that the prosecution proved the crime’s elements beyond a reasonable doubt. Id. at 9.

In pertinent part, MCL 445.65(1) prohibits a person from using the identifying information of another person to obtain property with the intent to defraud or violate the law. MCL 445.65(l)(a)(¿). Among other things, identifying information includes “a person’s name, address, telephone number, driver license or state personal identification card number . . . .” MCL 445.63(q). Circumstantial evidence and reasonable inferences arising from that evidence can sufficiently prove the elements of a crime, including the defendant’s state of mind, knowledge, and intent. People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008).

In this case, Bourdon testified that defendant identified himself as Montay Lee and presented Lee’s driver’s license when Bourdon was filling out the car’s title information. Defendant presented the identification simultaneously with the counterfeit money. Accordingly, a rational jury could find beyond a reasonable doubt that defendant used Lee’s name and license with the intent to defraud Bourdon or, at the very least, the intent to violate the law.

Defendant contends that he did not actually defraud Bourdon with Lee’s stolen identification because Bour-don was not overly concerned with defendant’s name, and the identification did not influence Bourdon’s decision to sell the car. Defendant seeks to add an element to the crime that does not exist. Nothing in the language of MCL 445.65(1) requires the victim to be actually defrauded by a defendant’s use of another’s identifying information.

We conclude that sufficient evidence supported defendant’s conviction of identity theft.

V. DOUBLE JEOPARDY

Finally, defendant argues that his conviction of two counts of passing counterfeit bills violated his right against double jeopardy. We disagree.

Generally “[a] challenge under the double jeopardy clauses of the federal and state constitutions presents a question of law that this Court reviews de novo.” People v Calloway, 469 Mich 448, 450; 671 NW2d 733 (2003). However, because defendant’s issue is unpre-served, this Court reviews the issue for plain error affecting his substantial rights. People v Cannes, 460 Mich 750, 763; 597 NW2d 130 (1999).

Defendant was convicted of two counts of uttering counterfeit notes under MCL 750.253, which provides:

Any person who shall utter or pass, or tender in payment as true, any such false, altered, forged or counterfeit note, certificate or bill of credit for any debt of this state, or any of its political subdivisions or municipalities, any bank bill or promissory note, payable to the bearer thereof, or to the order of any person, issued as aforesaid, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment of not more than five years or by fine of not more than two thousand five hundred dollars.

At trial, the prosecutor argued to the jury: “[W]e have 40 bills here. Any one of them could satisfy a count; all right? Two is just the magic number that was picked. We could be as high as 40, but that’s not what we’re lookin’ at. . . .”

On appeal, defendant argues that there is nothing in the language of the statute clearly expressing a legislative intent to permit a separate charge for every counterfeit bill that is used to defraud when multiple bills are used within a single transaction. Accordingly, defendant argues that the “unit of prosecution” for a violation of the statute is the number of transactions using counterfeit currency and not the number of counterfeit bills used in a single transaction. The prosecution, citing the rule of lenity, concedes error. However, we are not beholden to the prosecution’s concession and conclude that the plain language of the statute permits multiple convictions for uttering multiple notes during only one transaction. Given the plain reading of the statute, the rule of lenity is inapplicable.

At the outset, we note that, contrary to the prosecution’s argument on appeal that the “unit of prosecution” theory “has nothing to do with the Double Jeopardy Clause,” this Court has reviewed “unit of prosecution” issues in the context of double jeopardy. See, e.g., People v Barber, 255 Mich App 288, 293; 659 NW2d 674 (2003) (analyzing the defendant’s three arson convictions in a double jeopardy context and noting that “[t]he ‘unit of prosecution’ has been applied in other contexts to determine whether multiple punishments violate double jeopardy principles”); see also People v Wakeford, 418 Mich 95, 103-104; 341 NW2d 68 (1983) (“Under Michigan law, the defendant’s two sentences for his armed robbery convictions constitute separate punishments even though the sentences are to be served concurrently. Therefore, the critical inquiry is whether the punishments were imposed for the ‘same offense . . . .’ ”).

“Both the United States and the Michigan constitutions protect a defendant from being placed twice in jeopardy, or subject to multiple punishments, for the same offense.” McGee, 280 Mich App at 682, citing US Const, Am V; Const 1963, art 1, § 15; and People v Smith, 478 Mich 292, 299; 733 NW2d 351 (2007). “The state and federal constitutional guarantees are substantially identical and should be similarly construed.” People v Ackah-Essien, 311 Mich App 13, 31; 874 NW2d 172 (2015). “The prohibition against double jeopardy provides three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” People v Nutt, 469 Mich 565, 574; 677 NW2d 1 (2004). “To determine whether a defendant has been subjected to multiple punishments for the ‘same offense,’ [this Court] must first look to determine whether the Legislature expressed a clear intention that multiple punishments be imposed.” People v Garland, 286 Mich App 1, 4; 777 NW2d 732 (2009). If “the Legislature clearly intends to impose such multiple punishments, there is no double jeopardy violation.” Id.; see also People v Miller, 498 Mich 13, 17-18; 869 NW2d 204 (2015) (explaining that the double jeopardy analysis under the multiple punishment strand is controlled by the parameters set forth by the Legislature and that there is no double jeopardy violation when the Legislature specifically authorizes multiple punishments). When the dispositive question is whether the Legislature intended two convictions to result from a single statute, it presents a “unit of prosecution” issue. Wakeford, 418 Mich at 111. The question is whether the Legislature intended a single criminal transaction to give rise to multiple convictions under a single statute. Id. at 112.

When analyzing a statute to determine what unit of prosecution the Legislature intended, this Court and our Supreme Court have focused on various aspects of the statutory text. In Barber, 265 Mich App at 295, this Court focused on the harm that the statutory text intended to prevent when it held that there was no double jeopardy violation because the arson statutes aimed “to prevent the burning of a dwelling, building, or other real property,” and each separate house was the proper unit of prosecution. See also People v Mathews, 197 Mich App 143, 145; 494 NW2d 764 (1992) (finding that the statutory language of the felonious driving statute “suggest [ed] that its primary purpose is the protection of individuals from crippling injuries” and holding that “there is one unit of prosecution that arises whenever a defendant’s reckless driving results in a crippling injury to another”). In Wakeford, 418 Mich at 111-112, the Court focused on the statutory text’s reference to the victim in the singular and on the purpose of the statute. In that case, the Court noted that the text in the armed robbery statute consistently referred to the victim in the singular and that protecting people was the primary purpose of the statute, and the Court concluded that “the appropriate ‘unit of prosecution’ for armed robbery is the person assaulted and robbed.” But see id. at 112 (explaining that “[t]he majority rule appears to be that the theft of several items at the same time and place constitutes a single larceny”).

In this case, defendant argues that only one transaction or exchange of counterfeit bills occurred and, accordingly, that only one conviction of uttering and publishing could be sustained. This approach was specifically disavowed in Wakeford when the Court wrote: “To the extent certain language in [various cases] suggests that the critical test is whether the defendant committed ‘one single wrongful act’, we specifically disavow that test. It is up to the Legislature, not this Court, to determine what constitutes a single offense.” Wakeford, 418 Mich at 111. Therefore, the determination of this issue requires us to analyze the statutory text to determine the intent of the Legislature.

The main goal of statutory interpretation is to ascertain and give effect to the Legislature’s intent. People v Peltola, 489 Mich 174, 181; 803 NW2d 140 (2011). And “[t]he most reliable indicator of the Legislature’s intent is the words in the statute.” Id. The words are interpreted “in light of their ordinary meaning and their context within the statute and [are] read . . . harmoniously to give effect to the statute as a whole.” Id. “If the language is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted.” People v Giovannini, 271 Mich App 409, 412-413; 722 NW2d 237 (2006). However, “ ‘[i]f no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the conclusion that separate punishments were not intended.’ ” People v Ford, 262 Mich App 443, 450; 687 NW2d 119 (2004), quoting People v Robideau, 419 Mich 458, 488; 355 NW2d 592 (1984); 1 see also People v Gardner, 482 Mich 41, 50 n 12; 753 NW2d 78 (2008) (“A provision is not ambiguous just because reasonable minds can differ regarding the meaning of the provision. Rather, a provision of the law is ambiguous only if it irreconcilably conflict [s] with another provision, or when it is equally susceptible to more than a single meaning.”) (quotation marks and citations omitted; alteration in original).

Turning again to the statute at issue, MCL 750.253 prohibits any person from uttering or passing, or tendering in payment as true, “any such false, altered, forged or counterfeit note” with the intent to defraud. (Emphasis added.) As the prosecution observes, the statute refers to “bank bill” or “note” in the singular, but MCL 8.3b provides:

Every word importing the singular number only may extend to and embrace the plural number, and every word importing the plural number may be applied and limited to the singular number. Every word importing the masculine gender only may extend and be applied to females as well as males.

Still, MCL 8.3b does not render MCL 750.253 ambiguous. In this particular case, the clear purpose of MCL 750.253 is to punish the use of counterfeit money to obtain property, but using counterfeit money to deceive a seller is just one evil the statute addresses. We hold that the clear intent of the statute, as expressed by the Legislature’s use of the singular “note,” is to address placing counterfeit and false bills into the stream of commerce. Not only was Bourdon deceived into turning over property in exchange for counterfeit money, but 40 counterfeit bills were then potentially part of the stream of commerce with the potential to harm others. For example, had Bourdon not called the police and investigated whether the money was counterfeit, he may have used those bills at various times to make various purchases. The harm as contemplated in the statute is placing false money into the public commerce. The statutory text of MCL 750.253 indicates the Legislature’s intent to punish a defendant for each counterfeit bill that was introduced, uttered, passed, or tendered because the text reflects an intent to prevent counterfeit bills from being used. Given the clear indication of legislative intent and the absence of ambiguity, the rule of lenity does not apply. Wakeford, 418 Mich at 113-114.

Aifirmed.

K. F. Kelly, P.J., and O’Connell and Boonstra, JJ., concurred.

1 Robideau, 419 Mich 458, was overruled by People v Smith, 478 Mich 292 (2007).