People v. Flaherty

• Decision Date: 05 February 1988
• Docket Number: Docket No. 89822
• Citation: 418 N.W.2d 695,165 Mich.App. 113
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Francis FLAHERTY, Defendant-Appellant. 165 Mich.App. 113, 418 N.W.2d 695
• Court: Court of Appeal of Michigan — District of US

Page 695

418 N.W.2d 695

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Francis FLAHERTY, Defendant-Appellant.

Docket No. 89822.

165 Mich.App. 113, 418 N.W.2d 695

Court of Appeals of Michigan.

Submitted Dec. 10, 1986.

Decided Dec. 9, 1987.

Released for Publication Feb. 5, 1988.

[165 MICHAPP 116] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert H. Cleland, Pros. Atty., and Peter R. George, Chief Appellate Atty., for the people.

State Appellate Defender Office by James Krogsrud, for defendant-appellant.

Before WAHLS, P.J., and MAHER and SHIPMAN, ^* JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of larceny by false pretenses, M.C.L. Sec. 750.218; M.S.A. Sec. 28.415. He was sentenced to five years' probation. Defendant appeals as of right, raising various claims of error. We affirm.

Defendant's conviction arose out of a series of business transactions. The victim of the larceny [165 MICHAPP 117] was Robbins & Marcozzi, Inc. (R & M), a general insurance agency. R & M did business with defendant's insurance agency, Flaherty-Marlin, when it needed coverage in a specialized area for one of its clients. In November, 1982, one of R & M's clients, St. Clair County Community College, sought liability coverage in a specialized area effective January 1, 1983. R & M contacted defendant. On December 27 or 28, 1982, R & M received defendant's quote for the policy. The college accepted the quote. On December 31, 1982, an employee of R & M called defendant and requested that coverage be put into effect. Defendant confirmed that the premium would be $3,740. A policy is normally received fifteen to ninety days later.

In January, 1983, R & M sent binders, application forms pertaining to the policy, and an invoice for the premium to the college. "Binders" represent insurance policies and are used by an agency as a temporary means of binding coverage until the insurance company issues the policy. After ninety days lapsed with no policy forthcoming, R & M made numerous attempts to resolve the matter. Contact was made with defendant, as well as two of his employees, but no policy was received. In the meantime, R & M sent monthly binders to the college.

In August, 1983, R & M received a cover note from defendant's agency, together with a memo containing defendant's signature and an invoice for $3,368.70. A "cover note" is similar to a binder in that it substitutes for the policy on a temporary basis. Relying on the cover note, R & M paid the invoice amount.

In November, 1983, John Robbins, an insurance agent for R & M, conducted an investigation as to why there was still no policy. Robbins was unable to reach anyone at defendant's agency. He did, [165 MICHAPP 118] however, reach Fremont Indemnity, the insurance company which was supposed to issue the policy. Upon doing so, Robbins learned that Professional Managers, Inc., handled the type of insurance sought by the college on behalf of Fremont and that the college had no policy for 1983. R & M was able to obtain a policy for the college commencing January 1, 1984.

The subsequent larceny charge against defendant stemmed from the monies R & M paid to defendant's agency for the 1983 policy which was never issued. Defendant, who testified on his own behalf, claimed that he did not intend to defraud R & M at the time the cover note and invoice were sent. Defendant recalled having a personal drinking problem during 1983 which caused him to neglect his business operations. He maintained that what occurred was the result of a business error, and not a false pretense. In December, 1983, defendant closed his agency and disposed of certain business records, including the file on R & M and the college.

On appeal, defendant first argues that insufficient evidence was presented on venue because he never set foot in the county where he was tried. In reviewing a sufficiency of the evidence question, we consider the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980). Proof of venue is an essential element of every criminal case. People v. Jackzo, 206 Mich. 183, 172 N.W. 557 (1919). The venue statute, M.C.L. Sec. 762.8; M.S.A. Sec. 28.851, states:

"Whenever a felony consists or is the culmination [165 MICHAPP 119] of 2 or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any 1 of said acts was committed."

The crime of larceny by false pretenses requires (1) a false representation as to an existing fact, (2) knowledge by the defendant of the falsity of the representation, (3) use of the false representation with an intent to deceive, and (4) detrimental reliance by the victim on the false representation. People v. Wogaman, 133 Mich.App. 823, 826, 350 N.W.2d 816 (1984). To constitute a felony, the victim must give up over $100 pursuant to the representation. M.C.L. Sec. 750.218; M.S.A. Sec. 28.415.

In the present case, defendant's agency was in Macomb County, while R & M was in St. Clair County. Defendant was tried in St. Clair County. Evidence was presented that the larceny offense was accomplished through a series of mail and telephone communications which moved across county boundaries. Some of these communication "acts" had their effect in St. Clair County. For instance, defendant caused a cover note and invoice to be placed in the mail in Macomb County. This ultimately reached R & M in St. Clair County, causing R & M to authorize payment on the invoice and place the payment in the mail. We find no particular significance in the fact that defendant was physically present in Macomb County when he initiated the various communications. The effective false representation occurred in St. Clair County. We, therefore, conclude that venue was properly in St. Clair County. Sufficient evidence of venue was presented.

Defendant next argues that the trial court erred by not instructing the jury on venue. The trial record reveals that facts relevant to the venue issue were not in dispute. Instead, the parties disagreed as to the applicable law. For this reason [165 MICHAPP 120] and because defendant did not request a venue instruction, we conclude that this issue has not been preserved for appellate review. See M.C.L. Sec. 767.45; M.S.A. Sec. 28.985, and People v. Belanger, 120 Mich.App. 752, 327 N.W.2d 554 (1982).

Defendant next raises several claimed evidentiary errors. The first claim of error concerns the prosecution's cross-examination of defendant on whether defendant and his agency were licensed to sell insurance. Defense counsel's objection on relevancy grounds was overruled. The prosecution was able to elicit from defendant that his agency was licensed, but that he did not personally hold any licenses. On appeal, defendant contends that this evidence was inadmissible because it was not relevant. Defendant also raises for the first time a specific objection to the evidence on the ground that it was presented to establish that he was a "bad man."

Generally, when reviewing a trial court's evidentiary ruling, we will not overturn the ruling unless there is a clear abuse of discretion, People v. Solak, 146 Mich.App. 659, 673, 382 N.W.2d 495 (1985), or the ruling is clearly erroneous. People v. Atkins, 117 Mich.App. 430, 435, 324 N.W.2d 38 (1982). However, a defendant's failure to object stating the precise grounds for objection forecloses review unless there is manifest injustice. MRE 103(a)(1); People v. Watts, 145 Mich.App. 760, 764, 378 N.W.2d 787 (1985), lv. den. 424 Mich. 889 (1986).

Here, defendant's lack of a personal license did not in itself lead to an inference that he was a bad man. Even if it did constitute a bad act, the evidence could be admitted if it was probative of an issue raised at trial. MRE 404(b); see People v. Freeman, 149 Mich.App. 119, 385 N.W.2d 617 (1985). One issue raised at trial was defendant's business practices. The prosecutor's inquiry on [165 MICHAPP 121] whether defendant held any licenses was probative of this issue. The real issue raised by defendant's newly raised "bad man" argument seems to be that the evidence should have been excluded because the probative value was outweighed by the danger of unfair prejudice. MRE 403; People v. McKinney, 410 Mich. 413, 420, 301 N.W.2d 824 (1981). It is clear to us that defendant's mere admission that he was not personally licensed did not create a risk of unfair prejudice. Consequently, we will not overturn the trial court's evidentiary ruling.

Defendant's next claim of evidentiary error concerns Robbins' testimony during direct examination by the prosecution that the state insurance department was "looking for him [defendant]." Robbins' testimony was not elicited by the prosecution. Rather, it immediately followed defense counsel's objection on hearsay grounds as to what insurance people told Robbins and the trial court's reply that Robbins should avoid any hearsay response. Robbins' testimony as to what he was told was stricken at defense counsel's request. On appeal, defendant argues that Robbins' testimony was prejudicial on the issue of defendant's credibility, particularly when viewed with the licensing testimony discussed above. From our review of the record, we are not convinced that Robbins' purged testimony was so persuasively prejudicial that it requires reversal. See People v. Stegall, 102 Mich.App. 147, 301 N.W.2d 473 (1980).

Defendant's next claim of evidentiary error concerns the trial court's ruling to exclude a certified copy of his driving record on relevancy grounds. The driving record was offered by defense counsel during his direct examination of defendant to show defendant's drunken driving convictions and, thereby, to verify de...