People v. Houseman
| Decision Date | 19 October 1983 |
| Docket Number | Docket No. 70944 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Weldon Benjamin HOUSEMAN and Michael Jay Wawee, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., and Carol S. Irons, Chief Appellate Asst. Pros. Atty., for the People.
Charles S. Rominger, Jr., Grand Rapids, for defendant-appellee Houseman.
Before HOLBROOK, P.J., and T.M. BURNS and MacKENZIE, JJ.
On November 30, 1978, both defendants were bound over to the circuit court after a preliminary examination in the district court on one count of false pretenses, M.C.L. Sec. 750.218; M.S.A. Sec. 28.415, and one count of conspiracy to commit false pretenses, M.C.L. Sec. 750.157a(a); M.S.A. Sec. 28.354(1)(a), and M.C.L. Sec. 750.218; M.S.A. Sec. 28.415. On June 26, 1979, the trial court signed an order quashing the information. The prosecutor appealed as of right. On September 9, 1980, this Court affirmed in an unpublished opinion. (Docket No. 46330). However, on April 19, 1983, the Supreme Court remanded this case to this Court "for reconsideration in light of People v. Ford, People v. Gonzales, and People v. Howard, 417 Mich. 66 (1982) ]." 417 Mich. 944, 338 N.W.2d 888 (1983).
Basically, the evidence produced at the preliminary examination showed that some of the employees (including both defendants) at Harvey Cadillac in Grand Rapids habitually turned back the odometers on high mileage used cars before selling them. In particular, a 1977 Cadillac was sold to Harvey Cadillac in late March, 1978, with over 30,000 miles on it. However, when it was sold by Harvey Cadillac about one month later, it had 14,275 miles on it.
The first issue is whether or not the prosecution abused its discretion in charging defendants with false pretenses, M.C.L. Sec. 750.218; M.S.A. Sec. 28.415, a ten-year felony, rather than charging them with tampering with an odometer, M.C.L. Sec. 257.233a(3); M.S.A. Sec. 9.1933(1)(3), a 90-day misdemeanor. The elements for false pretenses are 1) an intent to defraud, 2) the false pretense or representation concerning an existing fact, and 3) the fraud accomplished. People v. Taurianen, 102 Mich.App. 17, 27, 300 N.W.2d 720 (1980); Attorney General v. Recorder's Court Judge, 92 Mich.App. 42, 48, 285 N.W.2d 53, 16 A.L.R. 4h 48 (1979), lv. den. 407 Mich. 955 (1980). The tampering with an odometer statute states:
"A person who * * * in the course of offering, dealing or disposing of any new or used motor vehicle subject to the provisions of subsection (1) alters the mileage reading of an odometer shall be fined not more than $100.00 or imprisoned not more than 90 days." M.C.L. Sec. 257.233a(3); M.S.A. Sec. 9.1933(1)(3).
In the present case, defendants' alleged behavior violates both statutes. Generally, a prosecutor has broad discretion in choosing which of two statutes to prosecute under. Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 194 N.W.2d 693 (1972); People v. Lombardo, 301 Mich. 451, 3 N.W.2d 839 (1942). However, where two statutes appear to be in conflict, the specific statute enacted after the more general statute prevails. People v. McFadden, 73 Mich.App. 232, 235, 251 N.W.2d 297 (1977).
Defendants basically rely on two cases in arguing that the trial court did not err in quashing the information. In State v. Kliewer, 210 Kan. 820, 504 P.2d 580 (1972), the Kansas Supreme Court held that the defendant had to be prosecuted under the more specific odometer statute rather than the deceptive commercial practices statute. In People v. LaRose, 87 Mich.App. 298, 274 N.W.2d 45 (1978), lv. den. 406 Mich. 943 (1979), this Court held that the prosecutor must bring charges under the delivery of an insufficient funds check statute, M.C.L. Sec. 750.131; M.S.A. Sec. 28.326, rather than under the general false pretenses statute, where the only false representation was in presenting an insufficient funds check. However, in both Kliewer and LaRose, the two respective statutes generally encompassed the same activity. In other words, in Kliewer, the odometer statute did not have an extra element not present in the deceptive practices statute. The same analysis applies in LaRose.
In People v. Ford, 417 Mich. 66, 331 N.W.2d 878 (1982), the Supreme Court held that the defendant could properly be charged with uttering and publishing even though the facts of the case also showed that he could have been charged with misuse of a credit card. Uttering and publishing requires a forgery which could be done through misusing a credit card. However, misuse of a credit card does not necessarily require a forgery.
The crime of false pretences requires proof of an intent to defraud; this element of the crime could be accomplished through proof of the turning back an odometer and the selling of the car at an inflated price. However, the odometer statute in Michigan does not require the intent to defraud. 1 M.C.L. Sec. 257.233a(5); M.S.A. Sec. 9.1933(1)(5) states:
"A person who, with intent to defraud, * * * alters the mileage on an odometer of a vehicle subject to subsection (1), is liable in an amount equal to the sum of 3 times the amount of actual damages sustained or $1500.00 whichever is greater, and in the case of a successful recovery of damages, the costs of the action together with reasonable attorney's fees."
If subsection (3) requires proof of an intent to defraud, the words "with intent to defraud" in subsection (5) would be redundant.
The main purpose behind the odometer statute is to protect the buyer from being defrauded by a seller who fraudulently turns back the odometer. People v. Jack Dykstra Ford, Inc., 52 Mich.App. 337, 340, 217 N.W.2d 99 (1974). However, that does not mean that the prosecutor may not charge with false pretenses if the facts show an intent to defraud. Intentionally defrauding someone is a felony. Merely because the fraud was obtained through turning back an odometer does not make the offense less culpable. The prosecution did not abuse its discretion in charging with false pretenses. Both State v. Rentfrow, 15 Wash.App. 837, 552 P.2d 202 (1976), and People v. Ross, 25 Cal.App.3d 190, 100 Cal.Rptr. 703 (1972), arrived at the same conclusion.
Because rolling back an odometer does not require the intent to defraud and because that element was sufficiently shown in the preliminary examination, the district court did not abuse its discretion in binding over on false pretences. Similar reasoning has been used in People v. Vannoy, 417 Mich. 946, 332 N.W.2d 150 (1983); People v. Joseph (On Remand), 127 Mich.App. ---, 338 N.W.2d 727 (1983); People v. Goodchild, 68 Mich.App. 226, 242 N.W.2d 465 (1976), lv. den. 397 Mich. 830 (1976); People v. Sanford, 65 Mich.App. 101, 237 N.W.2d 201 (1975), aff'd. 402 Mich. 460, 265 N.W.2d 1 (1978); People v. Ferguson, 60 Mich.App. 302, 230 N.W.2d 406 (1975), lv. den. 396 Mich. 857 (1976), and People v. Shaw, 27 Mich.App. 325, 183 N.W.2d 390 (1970), lv. den. 385 Mich. 760 (1971).
The trial court also quashed the false pretences count against defendant Houseman. The testimony at the preliminary examination showed that some of the employees at Harvey Cadillac, including defendant Houseman, would regularly turn back the odometers on high mileage cars. However, no one testified that, outside of generally approving and ordering this practice, defendant Houseman had anything to do with turning back the odometer on the 1977 Cadillac mentioned in the false pretences count.
True, the evidence was insufficient to establish probable cause that defendant Houseman had committed the crime as a principal. However, it sufficiently showed conspiratorial liability. The gist of conspiracy is the unlawful agreement. People v. Carter, 415 Mich. 558, 568, 330 N.W.2d 314 (1982). A conspirator need not participate in all the objects of the conspiracy. People v. Garska, 303 Mich. 313, 6 N.W.2d 527 (1942). In fact, he need not even know all the other co-conspirators. People v. DeLano, 318 Mich. 557, 567, 28 N.W.2d 909 (1947), cert. den. 334 U.S. 818, 68 S.Ct. 1082, ...
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