People v. Jones

• Decision Date: 05 August 1983
• Docket Number: Docket No. 59120
• Citation: 336 N.W.2d 889,126 Mich.App. 191
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter Lee JONES, Defendant-Appellant. 126 Mich.App. 191, 336 N.W.2d 889
• Court: Court of Appeal of Michigan — District of US

Page 889

336 N.W.2d 889

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter Lee JONES, Defendant-Appellant.

Docket No. 59120.

126 Mich.App. 191, 336 N.W.2d 889

Court of Appeals of Michigan.

Submitted Feb. 1, 1983.

Decided June 6, 1983.

Released for Publication Aug. 5, 1983.

[126 MICHAPP 194] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and David A. King, Asst. Pros. Atty., for the people.

Don Ferris, Ann Arbor, for defendant-appellant.

Before T.M. BURNS, P.J., and CYNAR and ALLEN, JJ.

CYNAR, Judge.

Defendant was charged with larceny by false pretenses over $100, M.C.L. Sec. 750.218; M.S.A. Sec. 28.415, and was further charged by supplemental information as an habitual offender, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. On April 15, 1981, defendant was convicted by a jury of larceny by false pretenses over $100. On April 21, 1981, defendant pled guilty to the supplemental information and was sentenced to 5 to 20 years in prison with credit for 53 days of jail time. Defendant appeals as of right.

On September 25, 1980, defendant approached Katheryn Kiser, a cashier at Wolverine Truck Plaza in Washtenaw County, and asked if the truck plaza accepted traveler's checks. Kiser responded that it did. Defendant walked over to the attached plaza travel store and presented a check to a cashier. Shortly thereafter, Kiser received a request for assistance with the check from the travel store cashier. Kiser instructed the cashier to send defendant back to her and that she would cash the check for him. Defendant presented a United America Express "check" for $100 to Kiser. Defendant also presented a picture I.D., identifying himself as "P.K. Monyea". Kiser cashed the "check". Defendant went back to the travel store but returned about 10 to 15 minutes later, carrying a small paper bag, and asked Kiser to cash a second $100 "check". When Kiser stated that she [126 MICHAPP 195] did not have enough money to cash another "check", defendant responded that he was making an $89 purchase in the travel store and that he had already spent $30 from the first "check". Kiser did not examine defendant's identification because she had previously done so when cashing the first "check". Kiser became suspicious after she remembered that a similar instrument was returned a few months before. She called Tele-a-Credit, a check-guarantee service, to find out whether they could tell her anything about the "check". She then called the Washtenaw County Sheriff's Department to find out if the "check" was valid.

A deputy was dispatched, and defendant and codefendant Robert Edward Lipscomb were arrested about 40 minutes later while driving on I-94. The vehicle was later searched pursuant to a warrant. The police seized a briefcase containing numerous "traveler's checks", identification cards, credit cards and other miscellaneous items. A search of Lipscomb's home in Ecorse produced additional identification cards, a printing die block, applications for social security cards, 713 United America Express sight drafts with a total face amount of $143,000, a checkbook from the Coahoma State Bank in Texas, and driver's licenses. All of these items belonging to Lipscomb were introduced into evidence at trial.

The two instruments cashed by Kiser were identified at trial as 30-day sight drafts issued by "United America Express Money Order and Travel Cheque Company", a company wholly owned by Lipscomb. The routing numbers on the checks were those of Coahoma State Bank in Coahoma, Texas, a bank where Lipscomb had previously held an account. Within 30 days after the "checks" [126 MICHAPP 196] were cashed at the Wolverine Truck Plaza, an offer was made on behalf of defendant to pay on the instruments. Payment was refused.

Defendant raises a number of issues. He first contends that the evidence presented at the preliminary examination was not sufficient to bind him over on the charge of larceny by false pretenses over $100. We disagree.

In reviewing the decision of a magistrate to bind over an accused, the trial court may not substitute its judgment for that of the magistrate. The trial court may "reverse a magistrate's decision only if it appears on the record that there has been an abuse of discretion". People v. Talley, 410 Mich. 378, 385, 301 N.W.2d 809 (1981).

In order to bind over a defendant, the magistrate must find that a felony has been committed and that probable cause exists to believe defendant committed it. People v. King, 412 Mich. 145, 152-153, 312 N.W.2d 629 (1981); M.C.L. Sec. 766.13; M.S.A. Sec. 28.931. The magistrate has the duty to pass judgment not only on the weight and competence of the evidence but also on the credibility of the witnesses, and the magistrate may consider the evidence of the defense. The magistrate should not discharge the case when the evidence conflicts or raises a reasonable doubt of the defendant's guilt because that is a matter for the jury to decide. King, supra, pp. 153-154, 312 N.W.2d 629.

The essential elements of the offense of larceny by false pretenses over $100 are (1) an intent to defraud, (2) the use of false pretenses or false representations of an existing fact, (3) the accomplishment of the intended fraud by means of such pretenses, and (4) the value of the property must be over $100. See People v. Taurianen, 102 Mich.App. 17, 27, 300 N.W.2d 720 (1980).

[126 MICHAPP 197] The prosecution based its claim of larceny by false pretenses upon a showing that defendant and Lipscomb had deliberately represented the instruments as traveler's checks, which they were not, in order to deceive the cashier into cashing them.

A false pretense does not have to be expressed in words but may be accomplished by an act. People v. Vida, 2 Mich.App. 409, 414, 140 N.W.2d 559 (1966), aff'd 381 Mich. 595, 166 N.W.2d 465 (1969). The instruments were similar to traveler's checks in format, having a place for a signature and a countersignature. Additionally, the language on the instruments was similar to that of "American Express", a widely-accepted traveler's check. The appearance of the "check", together with defendant's asking whether the truck plaza accepted traveler's checks, permits the inference that defendant intended the cashier to believe that he was presenting a traveler's check.

The pretense consisted of defendant's false representations that the two instruments were traveler's checks. The instruments were not traveler's checks because there was no money on deposit with a financial institution to cover the checks. Fraud was accomplished when the instruments were cashed under the impression that they were traveler's checks.

The value involved in the fraud is contested. Value is an essential element of a charged crime where it differentiates a felony from a misdemeanor. People v. Westman, 53 Mich.App. 662, 664, 220 N.W.2d 169 (1974). Defendant claims that the two transactions for $100 each were improperly merged in order to reach the dollar amount necessary for the felony charge. In support of his position, defendant relies on People v. Robinson, 97 Mich.App. 542, 296 N.W.2d 99 (1980), in which case the [126 MICHAPP 198] defendant received nine separate checks for amounts of less than $100 at two-week intervals. This case is distinguishable. The representations and actions of defendant in cashing the first $100 "check", and reliance thereon by the cashier, were closely intertwined with the cashing of the second $100 "check" which took place about 10 to 15 minutes later. The cashing of the two "checks" exhibited a continuous time sequence and intent. The magistrate did not err in inferring that defendant intended to cash as many "checks" as possible without raising suspicion. ¹

The trial court did not abuse its discretion in denying defendant's motion for a directed verdict at the close of the prosecutor's case. All of the evidence presented by the prosecution up to the time the motion was made, viewed in a light most favorable to the prosecution, was sufficient so that 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).

We are persuaded that the trial court did not err by admitting certain evidence.

Before evidence of other similar bad acts can be introduced at trial certain requirements must be met. See People v. Wilkins, 82 Mich.App. 260, 267-268, 266 N.W.2d 781 (1978), rev'd on other grounds, 408 Mich. 69, 288 N.W.2d 583 (1980). First, there must be substantial evidence that defendant actually committed the other acts. Second, there must be some special circumstances pertaining to the similar acts which tend to show defendant's motive, intent, absence of mistake or accident, [126 MICHAPP 199] scheme, plan or system in committing the charged offense. See MRE 404(b) and M.C.L. Sec. 768.27;...