People v. Kenny

• Court: Court of Appeal of Michigan
• Writing for the Court: Markey, P.J.
• Citation: People v. Kenny, 332 Mich.App. 394, 956 N.W.2d 562 (Mich. App. 2020)
• Decision Date: 21 May 2020
• Docket Number: No. 347090,347090
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clint Daniel KENNY, Defendant-Appellant.

332 Mich.App. 394

956 N.W.2d 562

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Clint Daniel KENNY, Defendant-Appellant.

No. 347090

Court of Appeals of Michigan.

Submitted April 15, 2020, at Grand Rapids.

Decided May 21, 2020, 9:05 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, D. J. Hilson, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.

John G. Zevalking for defendant.

Before: Markey, P.J., and Jansen and Boonstra, JJ.

Markey, P.J. Defendant appeals by right his jury trial conviction of first-degree retail fraud, MCL 750.356c. He was sentenced as a third-offense habitual offender, MCL 769.11, to 14 months to 10 years’ imprisonment. On appeal, defendant challenges the jury instructions relative to the elements of retail fraud, the sufficiency of the evidence, and the accuracy of the judgment of sentence. We affirm.

The prosecution presented evidence, including surveillance video, that defendant removed the "spider wrap"¹ from a $378 TV that was on display in a Walmart and then, after placing the TV in a shopping cart, removed a price label from the TV that contained the bar code that a cashier scans upon purchase. Additionally, there was evidence that defendant pushed the cart with the TV past the cash registers and up to a customer service area where he left the cart and TV unattended while he entered the men's restroom. The evidence revealed that after defendant exited the restroom, he retrieved the cart with the TV and headed in the direction of the store's exit. But before exiting and after making eye contact with a Walmart loss-prevention employee and a police officer who had been contacted about defendant's suspicious behavior, defendant turned around and went to a checkout lane. It was then that he was detained.² Additional details will be discussed below. Defendant was convicted of first-degree retail fraud by the jury; however, the jury acquitted defendant of deactivating or removing a theft-detection device, MCL 750.360a.

Before addressing defendant's arguments on appeal, and to give proper context to the appellate arguments, we must examine the statutory scheme regarding retail fraud. The retail-fraud statutes punish a person who "steals property of [a] store that is offered for sale." MCL 750.356c(1)(b) ; MCL 750.356d(1)(b) and (4)(b). In general, first-degree retail fraud is committed if the property at issue "is offered for sale at a price of $1,000.00 or more," MCL 750.356c(1)(b) ; second-degree retail fraud is committed if the property "is offered for sale at a price of $200.00 or more but less than $1,000.00," MCL 750.356d(1)(b) ; and third-degree retail fraud is committed if the property "is offered for sale at a price of less than $200.00," MCL 750.356d(4)(b). Here, because the sale price of the TV was $378, the offense falls within the category of second-degree retail fraud. Defendant, however, was charged with first-degree retail fraud because MCL 750.356c(2) provides that when a person commits second-degree retail fraud, he or she can be adjudged guilty of first-degree retail fraud if the person had a prior conviction of first-degree or second-degree retail fraud, and defendant had a prior conviction of first-degree retail fraud. When the defendant has a prior conviction of first- or second-degree retail fraud, the prosecution only has to prove the elements of second-degree retail fraud. The offense then increases to first-degree retail fraud if the trial court, not a jury, finds that the defendant has a prior conviction of retail fraud. MCL 750.356c(4).

The jury was instructed pursuant to M. Crim. JI 23.13, requiring the prosecution to prove that defendant took property from the store that was offered for sale, that defendant moved the property,³ that defendant intended to steal the property,⁴ that the occurrence happened inside or around the store, and that the price of the property was $200 or more, but less than $1,000.

Defendant first argues that under the plain meaning of the statutory language, the offense of retail fraud cannot be established with proof that he merely intended to steal the TV; rather, there had to be evidence that he actually stole the TV, which was not shown. As indicated above, MCL 750.356d(1)(b) punishes a person who "steals property," while M. Crim. JI 23.13 requires proof that a defendant "took some property," "moved the property," and "intended to steal the property." Although defendant frames the matter as a sufficiency argument, he is indirectly challenging the jury instructions on the elements of the crime. Defendant, however, waived any claim of error regarding the instructions by affirmatively voicing satisfaction with the instructions, which necessarily included the instructions on the elements of second-degree retail fraud. An affirmative statement that there are no objections to the jury instructions constitutes express approval of those instructions, thereby waiving appellate review of any claimed error. People v. Kowalski , 489 Mich. 488, 505 n. 28, 803 N.W.2d 200 (2011) ; People v. Hershey , 303 Mich. App. 330, 351, 844 N.W.2d 127 (2013).

Moreover, reversal is unwarranted even if defendant did not waive an instructional-error claim. The crux of defendant's argument is that he did not "steal" the TV, considering that he "did not take a TV from Walmart – he never left the store with it." This position is in direct contradiction to M. Crim. JI 23.13 (3), which instructs jurors that it is irrelevant whether the defendant removed the property from the store.⁵ We conclude that a person "steals" property, as the term "steals" is used in MCL 750.356c(1)(b), MCL 750.356d(1)(b), and MCL 750.356d(4)(b), when he or she takes and moves store property with the intent to steal the property, which elements are encompassed by M. Crim. JI 23.13. For example, if a person takes a book from the shelf in a bookstore and moves or places the book inside the person's coat with the intent to steal the book, the person is guilty of stealing, even if the person has not yet left the bookstore. Of course, if a person has not walked past the cash registers or out the door with the property, it may be more difficult to show an intent to steal. Our conclusion is consistent with the definition of the word "steal" found in Black's Law Dictionary (9th ed.), which provides, "To take (personal property) illegally with the intent to keep it unlawfully." (Emphasis added.)⁶

Our ruling is also consistent with People v. Reddick , 187 Mich. App. 547, 551, 468 N.W.2d 278 (1991), in which this Court, addressing a sufficiency-of-the-evidence argument regarding a conviction of first-degree retail fraud, MCL 750.356c, held:

In this case, defendant did not merely pick up goods in the sales area of the store. The evidence established that defendant took the merchandise out of the general sales area, past the store's cash registers, and moved to within ten feet of the front exit. When confronted and asked for a receipt, defendant pushed the cart away and ran out the front door and into the parking lot. The groceries in defendant's bags were valued at approximately $150, and defendant had only a few dollars in his possession. We find that such conduct by defendant made his possession adverse to the store.

Accordingly, because it was unnecessary for the prosecution to prove that defendant exited the store with the TV to establish the crime, we reject defendant's argument that the evidence was insufficient to establish that he stole the property where he did not actually leave the store with the TV. Defendant clearly had intended to do so before he realized he had been discovered.

Defendant next contends that there was insufficient evidence to support the conviction because the TV was not for sale in the amount of $1,000 or more as necessary to prove first-degree retail fraud. We reject this argument because, as discussed earlier, defendant was not convicted of first-degree retail fraud on the basis that the sale price of the property was $1,000 or more. Defendant's conviction of first-degree retail fraud was premised on the fact, to which defendant conceded, that he had a prior conviction of first-degree retail fraud.

Defendant next maintains that the trial court did not comply with MCL 750.356c(4), which provides:

If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information a statement listing the prior conviction or convictions. The existence of the defendant's prior conviction or convictions shall be determined by the court, without a jury, at sentencing or at a separate hearing for that purpose before sentencing. The existence of a prior conviction may be established by any evidence relevant for that purpose, including, but not limited to, 1 or more of the following:

(a) A copy of the judgment of conviction.

(b) A transcript of a prior trial, plea-taking, or sentencing.

(c) Information contained in a presentence report.

(d) The defendant's statement.

Defendant argues that the court did not hold a separate hearing, nor did the court make a determination at the sentencing hearing that defendant had a prior conviction of first-degree retail fraud.

The prosecutor included a statement in the criminal complaint and information listing defendant's prior conviction of first-degree retail fraud, but there was no separate hearing on this issue before the sentencing hearing. At the sentencing, the court gave defendant the opportunity to read the presentence investigation report (PSIR), which referenced the prior conviction of first-degree retail fraud. When defendant was done reviewing the PSIR, the court asked him if he had any additions or corrections. Defendant, in turn, asked the trial court if the court was talking about his criminal record, and the court indicated that it was speaking about...