Opinion
No. 347090
05-21-2020
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clint Daniel KENNY, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, D. J. Hilson, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people. John G. Zevalking for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, D. J. Hilson, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.
John G. Zevalking for defendant.
Before: Markey, P.J., and Jansen and Boonstra, JJ.
Markey, P.J. Defendant appeals by right his jury trial conviction of first-degree retail fraud, MCL 750.356c. He was sentenced as a third-offense habitual offender, MCL 769.11, to 14 months to 10 years’ imprisonment. On appeal, defendant challenges the jury instructions relative to the elements of retail fraud, the sufficiency of the evidence, and the accuracy of the judgment of sentence. We affirm.
The prosecution presented evidence, including surveillance video, that defendant removed the "spider wrap" from a $378 TV that was on display in a Walmart and then, after placing the TV in a shopping cart, removed a price label from the TV that contained the bar code that a cashier scans upon purchase. Additionally, there was evidence that defendant pushed the cart with the TV past the cash registers and up to a customer service area where he left the cart and TV unattended while he entered the men's restroom. The evidence revealed that after defendant exited the restroom, he retrieved the cart with the TV and headed in the direction of the store's exit. But before exiting and after making eye contact with a Walmart loss-prevention employee and a police officer who had been contacted about defendant's suspicious behavior, defendant turned around and went to a checkout lane. It was then that he was detained. Additional details will be discussed below. Defendant was convicted of first-degree retail fraud by the jury; however, the jury acquitted defendant of deactivating or removing a theft-detection device, MCL 750.360a.
A spider wrap is a theft-detection device that has an alarm that will create a loud beeping noise if the device is tripped or broken in any way.
Defendant was allowed to leave the store but was later charged after authorities reviewed the video footage from the store's surveillance cameras.
Before addressing defendant's arguments on appeal, and to give proper context to the appellate arguments, we must examine the statutory scheme regarding retail fraud. The retail-fraud statutes punish a person who "steals property of [a] store that is offered for sale." MCL 750.356c(1)(b) ; MCL 750.356d(1)(b) and (4)(b). In general, first-degree retail fraud is committed if the property at issue "is offered for sale at a price of $1,000.00 or more," MCL 750.356c(1)(b) ; second-degree retail fraud is committed if the property "is offered for sale at a price of $200.00 or more but less than $1,000.00," MCL 750.356d(1)(b) ; and third-degree retail fraud is committed if the property "is offered for sale at a price of less than $200.00," MCL 750.356d(4)(b). Here, because the sale price of the TV was $378, the offense falls within the category of second-degree retail fraud. Defendant, however, was charged with first-degree retail fraud because MCL 750.356c(2) provides that when a person commits second-degree retail fraud, he or she can be adjudged guilty of first-degree retail fraud if the person had a prior conviction of first-degree or second-degree retail fraud, and defendant had a prior conviction of first-degree retail fraud. When the defendant has a prior conviction of first- or second-degree retail fraud, the prosecution only has to prove the elements of second-degree retail fraud. The offense then increases to first-degree retail fraud if the trial court, not a jury, finds that the defendant has a prior conviction of retail fraud. MCL 750.356c(4).
The jury was instructed pursuant to M. Crim. JI 23.13, requiring the prosecution to prove that defendant took property from the store that was offered for sale, that defendant moved the property, that defendant intended to steal the property, that the occurrence happened inside or around the store, and that the price of the property was $200 or more, but less than $1,000.
M. Crim. JI 23.13 (3) provides that any movement suffices and that "[i]t does not matter whether the defendant actually got the property past the cashier or out of the store."
M. Crim. JI 23.13 (4) provides that intent to steal means "that the defendant intended to permanently take the property from the store without the store's consent."
Defendant first argues that under the plain meaning of the statutory language, the offense of retail fraud cannot be established with proof that he merely intended to steal the TV; rather, there had to be evidence that he actually stole the TV, which was not shown. As indicated above, MCL 750.356d(1)(b) punishes a person who "steals property," while M. Crim. JI 23.13 requires proof that a defendant "took some property," "moved the property," and "intended to steal the property." Although defendant frames the matter as a sufficiency argument, he is indirectly challenging the jury instructions on the elements of the crime. Defendant, however, waived any claim of error regarding the instructions by affirmatively voicing satisfaction with the instructions, which necessarily included the instructions on the elements of second-degree retail fraud. An affirmative statement that there are no objections to the jury instructions constitutes express approval of those instructions, thereby waiving appellate review of any claimed error. People v. Kowalski , 489 Mich. 488, 505 n. 28, 803 N.W.2d 200 (2011) ; People v. Hershey , 303 Mich. App. 330, 351, 844 N.W.2d 127 (2013).
Moreover, reversal is unwarranted even if defendant did not waive an instructional-error claim. The crux of defendant's argument is that he did not "steal" the TV, considering that he "did not take a TV from Walmart – he never left the store with it." This position is in direct contradiction to M. Crim. JI 23.13 (3), which instructs jurors that it is irrelevant whether the defendant removed the property from the store. We conclude that a person "steals" property, as the term "steals" is used in MCL 750.356c(1)(b), MCL 750.356d(1)(b), and MCL 750.356d(4)(b), when he or she takes and moves store property with the intent to steal the property, which elements are encompassed by M. Crim. JI 23.13. For example, if a person takes a book from the shelf in a bookstore and moves or places the book inside the person's coat with the intent to steal the book, the person is guilty of stealing, even if the person has not yet left the bookstore. Of course, if a person has not walked past the cash registers or out the door with the property, it may be more difficult to show an intent to steal. Our conclusion is consistent with the definition of the word "steal" found in Black's Law Dictionary (9th ed.), which provides, "To take (personal property) illegally with the intent to keep it unlawfully." (Emphasis added.)
We acknowledge that a model instruction need not be given if it does not "accurately state the applicable law." MCR 2.512(D)(2)(b).
In People v. Jones , 467 Mich. 301, 304-305, 651 N.W.2d 906 (2002), our Supreme Court observed as follows:
The statute does not define the word [at issue], so we may consult a dictionary to ascertain the meaning of the term. The Legislature requires that "technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning." MCL 8.3a. Because [the word at issue] is a legal term of art, resort to a legal dictionary to determine its meaning is appropriate. [Citations omitted.]
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Our ruling is also consistent with People v. Reddick , 187 Mich. App. 547, 551, 468 N.W.2d 278 (1991), in which this Court, addressing a sufficiency-of-the-evidence argument regarding a conviction of first-degree retail fraud, MCL 750.356c, held:
In this case, defendant did not merely pick up goods in the sales area of the store. The evidence established that defendant took the merchandise out of the general sales area, past the store's cash registers, and moved to within ten feet of the front exit. When confronted and asked for a receipt, defendant pushed the cart away and ran out the front door and into the parking lot. The groceries in defendant's bags were valued at approximately $150, and defendant had only a few dollars in his possession. We find that such conduct by defendant made his possession adverse to the store.
Accordingly, because it was unnecessary for the prosecution to prove that defendant exited the store with the TV to establish the crime, we reject defendant's argument that the evidence was insufficient to establish that he stole the property where he did not actually leave the store with the TV. Defendant clearly had intended to do so before he realized he had been discovered.
Defendant next contends that there was insufficient evidence to support the conviction because the TV was not for sale in the amount of $1,000 or more as necessary to prove first-degree retail fraud. We reject this argument because, as discussed earlier, defendant was not convicted of first-degree retail fraud on the basis that the sale price of the property was $1,000 or more. Defendant's conviction of first-degree retail fraud was premised on the fact, to which defendant conceded, that he had a prior conviction of first-degree retail fraud.
Defendant next maintains that the trial court did not comply with MCL 750.356c(4), which provides:
If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information a statement listing the prior conviction or convictions. The existence of the defendant's prior conviction or convictions shall be determined by the court, without a jury, at sentencing or at a separate hearing for that purpose before sentencing. The existence of a prior conviction may be established by any evidence relevant for that purpose, including, but not limited to, 1 or more of the following:
(a) A copy of the judgment of conviction.
(b) A transcript of a prior trial, plea-taking, or sentencing.
(c) Information contained in a presentence report.
(d) The defendant's statement.
Defendant argues that the court did not hold a separate hearing, nor did the court make a determination at the sentencing hearing that defendant had a prior conviction of first-degree retail fraud.
The prosecutor included a statement in the criminal complaint and information listing defendant's prior conviction of first-degree retail fraud, but there was no separate hearing on this issue before the sentencing hearing. At the sentencing, the court gave defendant the opportunity to read the presentence investigation report (PSIR), which referenced the prior conviction of first-degree retail fraud. When defendant was done reviewing the PSIR, the court asked him if he had any additions or corrections. Defendant, in turn, asked the trial court if the court was talking about his criminal record, and the court indicated that it was speaking about everything in the PSIR. Defendant responded, "Everything is right." Although the court did not specifically state that it found the existence of a prior conviction of first-degree retail fraud, we decline to remand the case given defendant's express concession to the court that his criminal record, as set forth in the PSIR, was correct. See MCL 769.26 (procedural error in criminal case does not require reversal unless it would result in a miscarriage of justice).
Defendant next argues that, assuming an intent to steal is an element of the offense, the evidence was insufficient to show that defendant intended to steal the TV. This Court reviews de novo whether there was sufficient evidence to support a conviction. People v. Lueth , 253 Mich. App. 670, 680, 660 N.W.2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence—whether direct or circumstantial—in a light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Reese , 491 Mich. 127, 139, 815 N.W.2d 85 (2012) ; People v. Hardiman , 466 Mich. 417, 428, 646 N.W.2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellate court must not interfere with the jury's role in assessing the weight of the evidence and the credibility of the witnesses. People v. Wolfe , 440 Mich. 508, 514-515, 489 N.W.2d 748 (1992). Circumstantial evidence and any reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of a crime. People v. Carines , 460 Mich. 750, 757, 597 N.W.2d 130 (1999). The prosecution need not negate every reasonable theory of innocence; it need only prove the elements of the crime in the face of whatever contradictory evidence is provided by the defendant. People v. Nowack , 462 Mich. 392, 400, 614 N.W.2d 78 (2000). "All conflicts in the evidence must be resolved in favor of the prosecution." People v. Kanaan , 278 Mich. App. 594, 619, 751 N.W.2d 57 (2008).
The element of intent may be inferred from circumstantial evidence. People v. Henderson , 306 Mich. App. 1, 11, 854 N.W.2d 234 (2014). Because it can be difficult to prove a defendant's state of mind on issues such as intent, minimal circumstantial evidence suffices to establish a defendant's state of mind. Id. A defendant's intent can be gleaned or inferred from his or her actions. People v. Cameron , 291 Mich. App. 599, 615, 806 N.W.2d 371 (2011).
In this case, there was sufficient evidence to show that defendant intended to steal the TV. A Walmart employee witnessed defendant "wiggling and pulling" on the spider-wrap wires in an effort to remove the wrap. After defendant took the TV and left the electronics area, the spider wrap was found lying on the ground. Further, after police officers arrived and spoke with defendant and then allowed defendant to leave, a loss-prevention employee and the officers watched the surveillance video to see precisely where in the store defendant went. After observing defendant's "path" through the store, the loss-prevention employee retraced defendant's steps and found both the manufacturer sticker and price sticker—which included the clearance tag and bar code needed to purchase the TV—crumpled up on a shelf in one of the aisles that defendant had entered while he had the TV in his cart.
The evidence established that defendant took the TV outside of the general sales area, walked past the cash registers, entered and exited the restroom, and began heading in the direction of the exit doors with the unpaid-for TV with him in his cart. But when he made eye contact with a police officer and the loss-prevention employee, defendant changed direction and maneuvered to a cashier's lane. Additionally, the officer who arrested defendant testified that based on his history with suspects, defendant "didn't have any reason to suspect that anybody was following him or observing him, watching him, anything like that. Until he saw me, I believe that he was going towards the exit of the store." The arresting officer opined that when defendant saw him, defendant "believed that he needed to go back into the store to hide his intent."
A juror could reasonably infer from the evidence described above regarding defendant's actions, conduct, and movements inside the store that he had every intent to steal the TV. Although defendant presented evidence suggesting a different conclusion, e.g., the testimony of his girlfriend about a blank check that she gave defendant to take into the store to buy a TV, it was for the jury to assess the weight of the evidence and the credibility of defendant's girlfriend. Reversal is unwarranted.
Finally, defendant argues that his judgment of sentence incorrectly provided that the charge of deactivating or removing a theft-detection device was dismissed by the court, when in actuality the jury found defendant not guilty of the charge. The judgment-of-sentence form used by the trial court was approved by the State Court Administrative Office (SCAO) and adopted under MCR 8.103(9). The form does not specifically provide for the entry of an acquittal or a finding of not guilty. Instead, the form only allows for entry of information regarding convictions and dismissals. MCR 6.427, which concerns judgments of sentence, requires a judgment to include "the jury's verdict or the finding of guilt by the court." MCR 6.427(6). This provision appears to concern only guilty verdicts upon which a defendant is sentenced. MCR 6.427 further provides that "[i]f the defendant was found not guilty or for any other reason is entitled to be discharged , the court must enter judgment accordingly." (Emphasis added.) On the basis of this language, we conclude that when a jury finds a defendant not guilty of a charge, that verdict may be reflected by the entry of a dismissal of the charge in the judgment of sentence. The SCAO form, which the trial court entered in this case, was thus consistent with the law. Accordingly, there is no need to remand for correction of the judgment of sentence.
We affirm.
Jansen and Boonstra, JJ., concurred with Markey, P.J.