People v. Chappelle

• Decision Date: 28 May 1982
• Docket Number: Docket No. 52632
• Citation: People v. Chappelle, 319 N.W.2d 584, 114 Mich.App. 364 (Mich. App. 1982)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patsy Ruth CHAPPELLE, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 584

319 N.W.2d 584

114 Mich.App. 364

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patsy Ruth CHAPPELLE, Defendant-Appellant.

Docket No. 52632.

Court of Appeals of Michigan.

Submitted Dec. 10, 1981.

Decided March 18, 1982.

Released for Publication May 28, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the People.

Lynn Chard, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before MacKENZIE, P. J., and CAVANAGH and WALSH, JJ.

PER CURIAM.

Defendant was convicted, after a bench trial, on multiple charges of larceny by false pretenses, M.C.L. Sec. 750.218; M.S.A. Sec. 28.415. Defendant was sentenced to serve concurrent sentences of from 5 to 10 years in prison on each charge and now appeals by right.

The first issue defendant raises on appeal is whether the prosecutor may properly charge defendant with both larceny by false pretences and issuance of checks without sufficient funds where the evidence presented at trial showed that the five bad checks totaled more than $2,000 and indicated that defendant had an elaborate plan to defraud the businesses where the merchandise was purchased. Defendant argues that the prosecutor may never charge a defendant with larceny by false pretenses when the "false pretense" is merely incidental to the passing of a check with insufficient funds.

The prosecutor has the right to exercise broad discretion in determining under which of two applicable statutes the prosecution will be instituted. Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 683, 194 N.W.2d 693 (1972). However, we must distinguish between cases where the two possibly applicable statutes prohibit the same conduct and cases where the statutory crimes are distinct. People v. LaRose, 87 Mich.App. 298, 302, 274 N.W.2d 45 (1978). If the statutes are distinct, the prosecutor has discretion to charge the greater offense. If the statutes prohibit the same conduct, the specific statute, enacted subsequent to the more general statute, prevails. Id., 303, 274 N.W.2d 45; People v. McFadden, 73 Mich.App. 232, 235, 251 N.W.2d 297 (1977).

Defendant relies on the case of People v. LaRose, supra, for the proposition that she should have been prosecuted under the statute prohibiting delivery of an insufficient funds check rather than the false pretenses statute. In LaRose, the defendant presented an insufficient funds check at a bank and was subsequently convicted of obtaining money by false pretenses. The Court held that the statute regarding insufficient funds checks is a specific statute and is therefore an exception to the more general false pretenses statute. Since the Court found that the defendant's only "false pretense" was his false representation that he had funds on deposit from which the check would be paid, the Court held that the prosecutor was bound to charge defendant under the insufficient funds statute, which fit the particular facts, and not under the more general false pretenses statute. However, the Court added an important caveat, which is applicable to this case:

"Although presentation of an insufficient funds check may, if accompanied by additional false representation, justify conviction under the false pretenses statute (see People v. Vida [2 Mich.App. 409, 140 N.W.2d 559 (1966) ], supra), we hold that the instant facts preclude prosecution under that statute." Id., 87 Mich.App. 304, 274 N.W.2d 48. (Emphasis added).

Thus, the Court's decision turned on the fact that the only "false pretense" shown was the presentation of an insufficient funds check rather than proof of false representation in addition to the presentation of the bad check.

The instant case can be distinguished from LaRose. Here, there was ample evidence of a much broader scheme by defendant to defraud merchants who accepted the bad checks. A false address, a false driver's license, and the existence of a bogus company, with identification in the form of business cards, all point to a much broader intent to defraud than is necessary to sustain a conviction under the insufficient funds statute. The proof of false representation, in addition to the presentation of an insufficient funds check, justified defendant's conviction under the false pretenses statute. People v. Vida, 2 Mich.App. 409, 140 N.W.2d 559 (1966), aff'd 381 Mich. 595, 166 N.W.2d 465 (1969); People v. Niver, 7 Mich.App. 652, 152 N.W.2d 714 (1967).

Furthermore, we note that a conviction under the false pretenses statute requires proof of an additional element not required for a conviction under the statute proscribing insufficient funds checks. For a person to be guilty of false pretenses, there is a requirement that the false pretenses result in the defendant's receipt of property or money. However, for a person to be guilty of delivering an insufficient funds check, there is no requirement that the person actually receive any property or money. People v. Jacobson, 248 Mich. 639, 642, 227 N.W. 781 (1929); People v. Henson, 18 Mich.App. 259, 261, 171 N.W.2d 26 (1969). Where a statute requires proof of an additional element that another statute does not require, the prosecutor may properly charge the defendant under the statute which requires proof of the additional element. People v. Graves, 31 Mich.App. 635, 637, 188 N.W.2d 87 (1971).

The second issue defendant raises on appeal is whether her conviction for false pretenses and an insufficient funds check regarding a check delivered to Herman Hiss & Company should be reversed where there was no evidence presented at trial that the company's employee who took the check relied on the check or anything the defendant said, nor was there evidence that the check was dishonored or that the company lost its property. We reverse defendant's false pretenses conviction on this charge and reduce it to a conviction for presenting an insufficient funds check.

It is no defense to a charge of larceny by false pretenses to contend that there was no loss of property because the property was subsequently recovered. The return of the merchandise does not absolve defendant of the criminal consequences of her acts. Any larceny crime is completed once a taking has been accomplished. People v. Johnson, 28 Mich.App. 10, 17, 183 N.W.2d 813 (1970).

The essential elements of the crime of larceny by false pretenses are: (1) an intent to defraud; (2) the use of false pretenses or false representations regarding an existing fact; and (3) the accomplishment of the intended fraud by means of such false pretenses. M.C.L. Sec. 750.218; M.S.A. Sec. 28.415; People v. Lee, 259 Mich. 355, 356, 243 N.W. 227 (1932). Reliance is an essential element of the offense of larceny by false pretenses, and such reliance must be to the detriment of the victim. People v. Schieda, 99 Mich.App. 420, 423, 297 N.W.2d 688 (1980); People v. Wilde, 42 Mich.App. 514, 519, 202 N.W.2d 542 (1972). Here, the evidence presented at trial is absolutely clear that the store clerk who took the defendant's check did not rely on anything that the defendant said or did in the accomplishment of the defendant's fraud. Rather, the clerk accepted the defendant's check because the store's owner had approved it. Because there is insufficient evidence regarding the element of reliance, defendant may not be convicted on the false pretenses count.

However, there is ample evidence to sustain a conviction on an insufficient funds charge. The statute has three elements: (1) an intent to defraud; (2) the drawing of a check for the payment of money upon a bank; and (3) knowledge by the drawer of the check that the bank account has insufficient funds or credit for the payment of such check. M.C.L. Sec. 750.131; M.S.A. Sec. 28.326, People v. Jacobson, supra....