People v. Johnson

• Decision Date: 04 May 1984
• Docket Number: Docket No. 68611
• Citation: 133 Mich.App. 150,348 N.W.2d 716
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Edward JOHNSON, Defendant-Appellant. 133 Mich.App. 150, 348 N.W.2d 716
• Court: Court of Appeal of Michigan — District of US

Page 716

348 N.W.2d 716

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Edward JOHNSON, Defendant-Appellant.

Docket No. 68611.

133 Mich.App. 150, 348 N.W.2d 716

Court of Appeals of Michigan.

Submitted Jan. 9, 1984.

Decided March 21, 1984.

Released for Publication May 4, 1984.

[133 MICHAPP 151] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty., Robert B. Ebersole, Chief Appellate[133 MICHAPP 152] Asst. Pros. Atty., and Charles R. Toy, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Rolf E. Berg, Deputy State Appellate Defender, for defendant-appellant.

Before ALLEN, P.J., and HOOD and WHITE, ^* JJ.

PER CURIAM.

On September 7, 1982, defendant was convicted by a jury of larceny over $100, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588. Immediately following, the same jury found defendant guilty as an habitual (fifth) offender, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. On October 6, 1982, defendant was sentenced to concurrent terms of three to five and five to 20 years incarceration. He presently appeals as of right.

Testimony at trial revealed that defendant was observed by store security personnel in Meijer's jewelry department. Defendant picked up a display model radio and then placed it back on the shelf. He glanced from left to right several times and looked at other models of radios before returning to the first radio. He picked up the radio and carried it under his arm covered by a jacket. Followed by the two security officers, defendant moved toward an exit from the store. He passed through the enclosed portion of the store and entered the outside garden center of the store. As defendant was beginning to pass through the exit gate with the radio, he was stopped by a security officer.

A clerk from the jewelry department testified that on the date of the incident the price of the radio was $119. On cross-examination, she stated that Meijer's sometimes discounted the price of [133 MICHAPP 153] display items but, if the item was in good condition or if there was another model in a boxed condition, the display would not be marked down. Defense counsel questioned the witness about the wholesale price of the radio but received no response as the prosecutor's objection on relevancy grounds was sustained. Additionally, the trial court excluded testimony concerning the value of the radio as used merchandise.

Defendant's first claim of error concerns the trial court's rulings which excluded evidence of the wholesale value of the radio and its value as used merchandise. The value of the item stolen, when used to differentiate between a felony and a misdemeanor offense, is an essential element of the charged crime. People v. Fuzi, 46 Mich.App. 204, 208 N.W.2d 47 (1973); People v. Westman, 53 Mich.App. 662, 220 N.W.2d 169 (1974). Thus, in defendant's prosecution for larceny over $100, proof that the value of the radio was more than $100 was an essential element of the charged offense.

While the larceny statute itself does not provide a guide for determining the value of property which is the subject of a theft, case law supports the use of fair market value as the relevant standard when such a value exists. People v. Hanenberg, 274 Mich. 698, 265 N.W. 506 (1936); People v. Gilbert, 163 Mich. 511, 128 N.W. 756 (1910). Generally, proof of value is determined by reference to the time and place of the offense. People v. Cole, 54 Mich. 238, 19 N.W. 968 (1884); Gilbert, supra. Value has been interpreted to mean the price that the item will bring on an open market between a willing buyer and seller. People v. Otler, 51 Mich.App. 256, 214 N.W.2d 727 (1974); People v. Tillman, 59 Mich.App. 768, 229 N.W.2d 922 (1975).

Citing cases from other jurisdictions, defendant [133 MICHAPP 154] argues that the wholesale price of the radio should have been admitted as relevant evidence of value. See, e.g., State v. Boyken, 217 N.W.2d 218 (Iowa, 1974); State v. Sorrell, 95 Ariz. 220, 388 P.2d 429 (1964); State v. Carroll, 186 Neb. 148, 181 N.W.2d 436 (1970). While no Michigan case has expressly approved of the use of wholesale value as a relevant consideration in determining fair market value, the facts of the present case do not require judicial acceptance or rejection of such evidence.

The prosecutor introduced evidence that the retail price of the item was $119. That evidence was probative of the market value of the radio at the time and place of the theft as it was indicative of the price that would prevail in the open market between a willing buyer and seller. Although defendant attempted to elicit testimony from the sales clerk concerning the wholesale value of the item, defendant made no offer of proof as to the relevancy of that evidence to fair market value.

The sales clerk testified that the retail price of the radio was $119. She also indicated that under certain circumstances the price of a display item might be reduced; however, neither of the conditions which were offered as justifications for a price reduction were shown to exist in this case. Thus, defendant's argument that the wholesale price would have been relevant as an aid to the jury in determining the discounted value of the radio is without substance. We also note that there is no indication from the record that the witness was either competent or knowledgeable in the area of wholesale value.

Defendant failed to make an offer of proof concerning the relevancy of the wholesale value and also failed to place on the record the actual wholesale value of the radio itself. Without an adequate [133 MICHAPP 155] record illustrating the relevancy of the excluded testimony, meaningful appellate review is severely limited. Our review of the record discloses that the jury was properly instructed, pursuant to CJI 22:1:01, on the fair market value test. Given defendant's failure to show the relevance of the proffered testimony at trial or on appeal, we find no error in the ruling of the trial court.

We also reject defendant's claim that the trial court erred in excluding testimony concerning the value of the radio as used merchandise. The item was identified at trial...