People v. Freeman, Docket No. 78038

• Decision Date: 05 May 1986
• Docket Number: Docket No. 78038
• Citation: 149 Mich.App. 119,385 N.W.2d 617
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clyde Wayne FREEMAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 617

385 N.W.2d 617

149 Mich.App. 119

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clyde Wayne FREEMAN, Defendant-Appellant.

Docket No. 78038.

Court of Appeals of Michigan.

Submitted Aug. 13, 1985.

Decided Sept. 20, 1985.

Released for Publication May 5, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Edwin R. Brown, Asst. Pros. Atty., for the People.

Kim Donald Shaw, Flint, for defendant-appellant on appeal.

Before DANHOF, C.J., and V.J. BRENNAN and GILLIS, ^* JJ.

PER CURIAM.

Defendant was convicted of uttering and publishing a forged instrument, M.C.L. Sec. 750.249; M.S.A. Sec. 28.446, and was sentenced to a prison term of from 4 to 14 years. He appeals from the conviction as of right.

At trial, the 73-year-old victim testified that he met the defendant in a bar on November 16, 1983. After a few drinks, the victim invited the defendant to his home for the purpose of a homosexual encounter. The next morning, after defendant had gone, the victim received a call from his bank inquiring as to whether he had written a check to the defendant in the amount of $200. The victim denied having done so and was advised to call the police. Upon searching his house to determine if anything had been stolen, the victim discovered his citizenship papers, his will, his sister's ring and an amount of cash were missing in addition to the check.

The bank teller testified that the defendant presented her with a $200 check written on the victim's account. Upon inspecting the victim's signature card, the teller became suspicious because the signature on the check did not match. After placing the call to the victim, she returned to find that the defendant had left the bank.

On appeal, defendant first assigns error to the trial court's ruling which permitted the prosecutor to question the victim concerning the defendant's attempt to extort $50 from him for the return of his legal papers and other property. Defendant contends that admission of the evidence violated MRE 404(b) since the evidence was indicative of another crime and would tend to show the defendant's bad character. We reject the argument and conclude that the evidence was relevant and probative. The extortion testimony was introduced not to establish the defendant's bad character, but rather to show that the defendant possessed documents containing the victim's signature, which could be used in forging the signature on the check, and to defeat the defendant's claim that the victim had given him the check voluntarily in exchange for homosexual acts. The evidence was properly admitted.

Defendant additionally argues that the trial court should have instructed the jury that the extortion evidence, revealing defendant to be a "bad" person who commits other crimes, could not be used by the jury to infer the defendant's guilt. However, defendant's failure to request such an instruction, which did not pertain to a basic and controlling issue in the case, precludes defendant from obtaining the relief requested. People v. Seabrooks, 135 Mich.App. 442, 454, 354 N.W.2d 374 (1984).

Defendant next complains of the trial court's refusal to give CJI 3:1:16, the standard jury instruction on specific intent, which, at the time of trial, provided:

"When a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.

"Intent is a decision of the mind to knowingly do an act with a conscious [fully formed] objective of accomplishing a certain [specific] result.

"There can be no crime of __________ under our law where there is no intent to __________ and the burden rests upon the prosecution to show beyond a reasonable doubt that the defendant at the time of doing the alleged act had that wrongful intent.

"The intent with which a person does an act is known by the way in which he expresses it to others or indicates it by his conduct. The intent with which a person does an act can sometimes be determined from the manner in which it is done, the method used and all other facts and circumstances, but only if that intent is established by the evidence.

"[At this point read instructions relative to defenses which have been raised which would negate intent, i.e., intoxication, claim of right, etc.]

"If you find that the defendant, for any reason whatsoever, did not consciously and knowingly act with the intent to __________, the crime cannot have been committed and you must find the defendant not guilty of the crime of __________.

"If from all of the evidence you have a reasonable doubt as to whether or not the defendant knowingly and consciously acted with the intent to __________, then you must find the defendant not guilty of the crime of __________."

The court chose instead to instruct the jury as follows:

"The defendant is charged with the crime of uttering and publishing. He pleads not guilty. To establish the charge against him, the prosecution must prove beyond a reasonable doubt each of the following elements:

"First, that the check, marked Exhibit 1, was in fact forged. Forgery includes any act which fraudulently makes the check purport to be that which it is not. If someone other than Mr. Gallant signed the check, the check would have been forged;

"Second, that the defendant represented, either by words or actions, or both, that the check was genuine or good and presented it to be cashed;

"Third, that the defendant knew at the time that the check was forged and false; and

"Fourth, that the defendant intended to obtain money falsely and, thus, defraud or cheat. To act with the intent to cheat or defraud means to deceive and, ordinarily, to act with the purpose of some financial gain for oneself, knowing that it would cause a financial loss to someone else.

"There can be no crime of uttering and publishing unless the defendant intended to cash the check and obtains its proceeds falsely and, therefore, cheat or defraud someone of the money.

"The knowledge of the person doing an act and the intent with which the act is done may be shown by the circumstances attending the act, what is done, how it is done, what it is done with, anything said or done before, at the time, or later and what human experience would reasonably expect to be the natural or likely result. Sometimes actions speak louder than words.

"It is not necessary that the defendant know or care whether it will be the bank, the cashier, or Mr. Gallant who would be hurt financially, so long as he intended that someone would be out of the money fraudulently that he would obtain by cashing the check.

"Also, it is not necessary that the check be received as genuine and be approved for cashing or in fact be cashed, so long as the defendant attempted to defraud by representing somehow that the check was good when he knew it was forged. So, naturally, it is unnecessary that anyone actually suffer a financial loss. It is enough if the check was offered directly or indirectly by words or actions as genuine or good with the intent to cheat or defraud.

"It is not important whether the defendant forged the check himself or had another person do it."

To begin, we note that whether CJI 3:1:16 need be given at all, even when requested by the defense, was recently called into question by Judge W.J. Giovan in his concurring opinion in People v. Strong, ...