People v. Evans, Docket No. 60268

• Decision Date: 16 November 1983
• Docket Number: Docket No. 60268
• Citation: 128 Mich.App. 311,340 N.W.2d 291
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jackie EVANS, Defendant-Appellant. 128 Mich.App. 311, 340 N.W.2d 291
• Court: Court of Appeal of Michigan — District of US

Page 291

340 N.W.2d 291

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jackie EVANS, Defendant-Appellant.

Docket No. 60268.

128 Mich.App. 311, 340 N.W.2d 291

Court of Appeals of Michigan.

Submitted March 15, 1983.

Decided June 23, 1983.

Released for Publication Nov. 16, 1983.

[128 MICHAPP 312] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad Sindt, Pros. Atty., and Richard M.C. Adams, Asst. Pros. Atty., for the People.

State Appellate Defender by John R. Nussbaumer, Detroit, for defendant-appellant on appeal.

Before T.M. BURNS, P.J., and CYNAR and MARUTIAK, ^* JJ.

PER CURIAM.

Defendant was convicted after a jury trial of aiding and abetting his now ex-wife, Julia Evans, in obtaining assistance or relief to which she was not entitled in an amount greater than $500 by willful false statement or fraud. M.C.L. Sec. 400.60(1); M.S.A. Sec. 16.460(1). He was sentenced to one year in jail under a work-release program. Defendant appeals as of right.

Defendant argues that the trial court failed to properly instruct the jury regarding the element of value over $500. The trial court instructed:

"The laws of this state provide that any person who, by means of willful, false statement or representation, obtains or aids and abets any person to obtain either [128 MICHAPP 313] assistance or relief to which he or she is not entitled, or a larger amount of assistance or relief than that to which he or she is justly entitled, is guilty of a crime. The offense may be either the obtaining of an amount of a value of $500 or less, or the obtaining of money in excess of $500.

"For the defendant to be guilty of this offense, the prosecution must prove each of the following elements beyond a reasonable doubt. First, that on or about December 12, 1975, the defendant made a willful, false statement or representation; two, that he did so in order to obtain, or aid or abet another person in obtaining, assistance or relief to which she is not entitled, or a larger amount of assistance or relief than that to which she was justly entitled. If you find the foregoing elements to have been proved beyond a reasonable doubt, you then will determine in the same manner whether the amount involved was $500 or less, or whether it exceeded $500."

M.C.L. Sec. 400.60(1); M.S.A. Sec. 16.460(1) defines the amount of "assistance or relief" as "the difference between the lawful amount of assistance or aid and the amount of assistance or aid actually received". The amount of aid obtained improperly is an essential element of the offense.

The trial court has the duty to instruct the jury regarding all of the elements of the crime and any material defenses or theories. People v. Reed, 393 Mich. 342, 349-350, 224 N.W.2d 867 (1975). Appellate review is not precluded even in the absence of an objection or request for instruction by defense counsel. Defendant has the right to have a properly instructed jury pass upon the evidence. People v. Liggett, 378 Mich. 706, 714, 148 N.W.2d 784 (1967); People v. J.C. Williams, 118 Mich.App. 266, 272, 324 N.W.2d 599 (1982).

The court's instructions in this case were ambiguous. The court failed to clearly inform the jury of the formula to be used in determining the [128 MICHAPP 314] amount of benefits received beyond Julia Evans's eligibility. The instructions informed the jury that defendant had committed a crime if he aided and abetted his wife either in obtaining relief to which she was not entitled or in obtaining relief in an amount greater than that to which she was entitled. The jury could have inferred that they could use either the total amount of benefits received or the amount unlawfully received to determine the amount of defendant's fraud. We cannot guess that the jury found that defendant was living with his wife at the critical time and that, therefore, Julia Evans was not eligible to receive any assistance and thus received greater than $500 for which she was not eligible, i.e., conclude that the jury properly applied the formula. Nor can we guess that the jury found that defendant was not living with his wife at the critical time and that, therefore, Julia Evans received only $180 more in assistance than that to which she was entitled, i.e., conclude that the jury improperly applied the formula.

Finding error on the basis of the above issue, we address defendant's other issues only briefly.

The district judge did not err by denying defendant's motion to dismiss based on pre-arrest delay. The court found that all of the delay except for eight months was...