People v. Malone

• Citation: 287 Mich.App. 648,792 N.W.2d 7
• Decision Date: 30 March 2010
• Docket Number: Docket No. 286958.
• Parties: PEOPLE v. MALONE.
• Court: Court of Appeal of Michigan (US)

287 Mich.App. 648

792 N.W.2d 7

PEOPLE

v.MALONE.

Docket No. 286958.

Court of Appeals of Michigan.

Submitted Jan. 5, 2010, at Detroit.

Decided March 30, 2010, at 9:00 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Olga Angello, Assistant Prosecuting Attorney, for the people.

Law Offices of Robert J. Boyd III, P.C. (by Robert J. Boyd III), Mount Clemens, and Patricia A. Malone, in propria persona, for defendant.

Before: DAVIS, P.J., and FORT HOOD and SERVITTO, JJ.

PER CURIAM.

Defendant was convicted, following a jury trial, of three counts of stealing or retaining afinancial transaction device without consent, MCL 750.157n(1). She was sentenced to one year of probation. Defendant appeals as of right, and we affirm.

Carla Sledge, Wayne County's chief financial officer, contacted the Wayne County Sheriff's Department after learning that several high-ranking employees were the victims of identity theft. Specifically, the credit card information for several employees was now being mailed to the same address. With regard to Sledge, an individual named Terry Lewis had attempted to change the mailing address and approved users for her credit card. Detective Eric Catner investigated the case and found that Terry Lewis had attempted to change the account information of other employees who worked in the financial offices of Wayne County government. When Lewis was located, he identified DeJuan Whitehead as the source of the personal identification information belonging to Wayne County employees. Whitehead reportedly obtained the information from a female employee who worked for Wayne County. Through the use of the "auto track" system, Detective Catner learned that, at one time, Whitehead lived with defendant. The auto track system reveals connections between individuals using references, mailing addresses, credit applications, and other information.

As a result of the investigation, a search warrant was executed at defendant's residence in Oakland County. Under some clothing, a blue notebook was recovered from a dresser in defendant's bedroom. The blue notebook contained "post-it" self-stick notes with personal information relating to four Wayne County employees written on them. A dietician employed by the county identified a post-it note containing her social security number, driver's license number, date of birth, phone number, and bank account number. She had providedbank account information to allow her checks to be deposited directly in her bank account. The dietician did not know defendant and never authorized her to have this information. A former summer law clerk identified a post-it note containing her social security number, date of birth, and driver's license number. She did not know defendant and did not authorize her to have this information. An assistant prosecuting attorney identified a post-it note containing her social security number, driver's license number, date of birth, home address, telephone numbers, and bank account number. The bank account number was provided to the county to allow for direct deposits. The prosecutor did not know defendant and did not authorizedefendant to have that information at her home.¹

Wayne County employees testified that a recently enacted federal law required that the government protect the social security numbers of employees. Thereafter, employees were given identification numbers when hired and were identified by this number. Additionally, payroll department employees had no use for all of the information found on the post-it notes. Specifically, the payroll department did not maintain records containing driver's license numbers. The human resources department would maintain records containing driver's license numbers. An employee's work password limited their access to information dealing with their department.² An employee could not log onto the system and obtain information retained for other departments.

Defendant testified that she was assigned to the management and budget office, but worked in payroll when necessary. She testified that she was not assigned a password to access the payroll division information, rather payroll employee Alyse Cade would log onto the system under her identification and allow defendant to work under her password. Defendant testified that Cade had to leave early one day and needed to lock up all of the forms. Therefore, defendant wrote all of the information that she may need for data entry on post-it notes and placed it in a notebook she used at work.³ Defendant forgot that she had this information and did not realize that she had taken it home. She learned about the post-it notes after the police executed a search warrant at her home when she was not present. Defendant testified that she never utilized the information and did not intend to use the information. She testified that she did not live extravagantly. However, on cross-examination, defendant admitted that she declared bankruptcy in 2005. Despite her testimony, defendant was convicted of three counts of stealing or retaining a financial transaction device without consent.

I. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE

Defendant contends that there was insufficient evidence to support the convictions for stealing or retaining a financial transaction device without consent,MCL 750.157n(1), or, in the alternative, that the verdict was against the great weight of the evidence. We disagree. MCL 750.157n(1) provides:

A person who steals, knowingly takes, or knowingly removes a financial transaction device from the person or possession of a deviceholder, or who knowingly retains, knowingly possesses, knowingly secretes, or knowingly uses a financial transaction device without the consent of the deviceholder, is guilty of a felony.

MCL 750.157m(f) defines "[f]inancial transaction device" as any of the following:

( i ) An electronic funds transfer card.

( ii ) A credit card.

( iii ) A debit card.

( iv ) A point-of-sale card.

( v ) Any instrument, device, card, plate, code, account number, personal identification number, or a record or copy of a code, account number, or personal identification number or other means of access to a credit account or deposit account, or a driver's license or state identification card used to access a proprietary account, other than access originated solely by a paper instrument, that can be used alone or in conjunction with another access device, for any of the following purposes:

(A) Obtaining money, cash refund or credit account credit, goods, services, or any other thing of value.

(B) Certifying or guaranteeing to a person or business the availability to the deviceholder of funds on deposit to honor a draft or check payable to the order of that person or business.

(C) Providing the deviceholder access to a deposit account for the purpose of making deposits, withdrawing funds, transferring funds between deposit accounts, obtaining information pertaining to a deposit account, or making an electronic funds transfer as defined in section3(4) of Act No. 322 of the Public Acts of 1978, being section 488.3 of the Michigan Compiled Laws.

A challenge to the sufficiency of the evidence is reviewed de novo. People v. Martin, 271 Mich.App. 280, 340, 721 N.W.2d 815 (2006). When reviewing a claim of insufficient evidence, this Court reviews the record in a light most favorable to the prosecution to determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. In re Contempt of Henry, 282 Mich.App. 656, 677, 765 N.W.2d 44 (2009). Appellate review of a challenge to the sufficiency of the evidence is deferential. People v. Nowack, 462 Mich. 392, 400, 614 N.W.2d 78 (2000). The reviewing court must draw all reasonable inferences and examine credibility issues in support of the jury verdict. Id. When assessing a challenge to the sufficiency of evidence, the trier of fact, not the appellate court, determines what inferences may be fairly drawn from the evidence and the weight to be accorded those inferences. People v. Hardiman, 466 Mich. 417, 428, 646 N.W.2d 158 (2002). This Court must not interfere with the jury's role as the sole judge of the facts when reviewing the evidence. People v. Meshell, 265 Mich.App. 616, 619, 696 N.W.2d 754 (2005).

Statutory construction issues present questions of law subject to review de novo. People v. Keller, 479 Mich. 467, 473-474, 739 N.W.2d 505 (2007). When the manifest intention of the Legislature is derived from the language of a clear statute, nothing will be read into the clear statute. Bay Co. Prosecutor v. Nugent, 276 Mich.App. 183, 189, 740 N.W.2d 678 (2007). The Legislature is presumed to intend the meaning it plainly expressed. People v. Petty, 469 Mich. 108, 114, 665 N.W.2d 443 (2003), and courts may not speculate as to the intent of the Legislature beyond the language plainly expressed inthe statute. People v. Hock Shop, Inc., 261 Mich.App. 521, 528, 681 N.W.2d 669 (2004). The function of a reviewing court resolving disputed interpretations of statutory language is to effectuate the legislative intent. People v. Valentin, 457 Mich. 1, 5, 577 N.W.2d 73 (1998). When the statutory language is clear, the courts must enforce the statute as written. Id. The application of the law to the facts is reviewed denovo. People v. Barrera, 451 Mich. 261, 269 n. 7, 547 N.W.2d 280 (1996).

Defendant contends that there was insufficient evidence to convict her because she did not have a physical card belonging to any of the complainants. That is, she merely "innocently possessed some personal information/account numbers." Defendant argues that the possession of another's "social security number alone does not qualify as a 'financial transaction device,' " and that defendant did not use the information found on the post-it notes to "access a proprietary...