People v. Robinson, Docket No. 44753

• Decision Date: 19 May 1980
• Docket Number: Docket No. 44753
• Citation: 97 Mich.App. 542,296 N.W.2d 99
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Janet Marie ROBINSON, Defendant-Appellant. 97 Mich.App. 542, 296 N.W.2d 99
• Court: Court of Appeal of Michigan — District of US

Page 99

296 N.W.2d 99

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Janet Marie ROBINSON, Defendant-Appellant.

Docket No. 44753.

97 Mich.App. 542, 296 N.W.2d 99

Court of Appeals of Michigan.

May 19, 1980.

Released for Publication Sept. 24, 1980.

[97 MICHAPP 543] Donald W. Ferris, Jr., Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., Randall C. Roberts, Asst. Pros. Atty., for plaintiff-appellee.

[97 MICHAPP 544] Before CYNAR, P. J. and V. J. BRENNAN and CAVANAGH, JJ.

V. J. BRENNAN, Judge.

On October 19, 1978, defendant was charged with larceny by false pretenses over $100, M.C.L. § 750.218; M.S.A. § 28.415. Over defense counsel's objections that defendant should have been charged under the penalty section of the Employment Security Act, M.C.L. § 421.54(b); M.S.A. § 17.558(b), defendant was bound over as charged to the circuit court. In circuit court, defendant moved Judge Conlin to quash the information on two grounds: (1) the district court judge abused his discretion in binding over the defendant on the false pretenses charge since there is a more specific penalty provided for in the Employment Security Act which covers the same subject matter as the false pretenses statute; and (2) assuming arguendo, that false pretenses is a proper charge, the district court judge abused his discretion when he merged nine distinct and separate transactions in order to reach the $100 figure necessary for the felony charge. The circuit judge did not address whether defendant was bound over on the wrong charge but did find that the district court judge abused his discretion in merging the nine transactions together and dismissed the felony charge against defendant.

The People appeal from the circuit court's dismissal of the felony charge.

The relevant facts are not in dispute. The charges arose out of defendant's continued misrepresentation of herself as unemployed and her receipt of unemployment benefits while in fact she [97 MICHAPP 545] was employed as a salesperson by the Dayton Hudson Corporation. Ms. Claretha Seed, a MESC certifier of claimants for unemployment benefits, testified at the preliminary examination that according to MESC's ledger cards, the defendant was given unemployment benefit checks from June 1, 1977, through September 1, 1977. Ms. Janet Hayes testified that she personally worked with the defendant at a Hudson store from June 1, 1977. And Carolyn Walters, a Hudson's payroll clerk, corroborated Ms. Hayes' testimony that defendant was employed there from the week ending May 21, 1977, through the end of August, 1977, in addition to the third week in September, 1977.

The People make two arguments on appeal. First they claim that it was neither an abuse of prosecutorial discretion nor a violation of the general rules of statutory construction to charge defendant under the general false pretenses statute ¹ rather than the Employment Security Act. ²

The prosecutor has broad discretion in determining under which of two possible applicable statutes a prosecution shall be initiated. People v. Heber, 42 Mich.App. 582, 589, 202 N.W.2d 571 (1972); People v. Lombardo, 301 Mich. 451, 453, 3 N.W.2d 839 (1942); People v. Thrine, 218 Mich. 687, 188 N.W. 405 (1922). Prosecutorial discretion is not, however, unlimited. People v. LaRose, 87 Mich.App. 298, 302, 274 N.W.2d 45 (1978), People v. Birmingham, 13 Mich.App. 402, 406-407, 164 N.W.2d 561 (1968). Where a claim of abuse of prosecutorial discretion in charging is made, it is necessary to distinguish between cases where two possible applicable statutes prohibit the same conduct and those cases where the statutory crimes are distinct. Where two possible applicable [97 MICHAPP 546] statutes prohibit the same conduct, the defendant must be charged with the more specific, most recently enacted statute. People v. LaRose, supra.

The false pretense statute, M.C.L. § 750.218; M.S.A. § 28.415 provides:

"Sec. 218. Any person who, with intent to defraud or cheat, shall designedly, by color of any false token or writing or by any false or bogus check or other written, printed or engraved instrument, by spurious coin or metal in the similitude of coin, or by any other false pretense, cause any person to grant, convey, assign, demise, lease or mortgage any land or interest in land, or obtain the signature of any person to any written instrument, the making whereof would be punishable as forgery, or obtain from any person any money or personal property or the use of any instrument, facility or article or other valuable thing or service, or by means of any false weights or measures obtain a larger amount or quantity of property than was bargained for, or by means of any false weights or measures sell or dispose of a less amount or quantity of property than was bargained for, if such land or interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of, shall be of the value of $100.00 or less, shall be guilty of a misdemeanor; and if such land, interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of shall be of the value of more than $100.00, such person shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by a fine of not more than $5,000.00."

And the penalty section of the Employment Security Act, M.C.L. § 421.54(b); M.S.A. § 17.558(b) states:

"(b) Any employing unit or an officer or agent of an employing unit or any other person who makes a false [97 MICHAPP 547] statement or representation knowing it to be false, or knowingly and wilfully with intent to defraud fails to disclose a material fact, to obtain or increase a benefit or other payment under this act or under the unemployment compensation law of any state or of the federal government, either for himself or any other person, to prevent or reduce the payment of benefits to an individual entitled thereto or to avoid becoming or remaining a subject employer, or to avoid or reduce a contribution or other payment required from an employing unit under this act or under the unemployment compensation law of any state or of the federal government shall be deemed guilty of a misdemeanor notwithstanding any other penalties imposed under this act or any other statute of this state or of the United States, and upon conviction thereof shall be punished by imprisonment in the county jail for not more than 90 days or by a fine of not more than $100.00, or by both such fine and imprisonment."

The People argue that since the two crimes are distinct the prosecutor did not abuse his discretion in electing to charge the felony. Section 54 of the Employment Security Act is directed at the making of a false statement with an intent to defraud to obtain or increase a benefit by a person charged with violating the Act. The general false pretenses statute, however, includes a false pretense and an intent to defraud in addition to the elements of reliance on the false pretense, and resulting injury, i. e., the fraud accomplished. Attorney General v. Recorder's Court Judge, 92 Mich.App. 42, 285 N.W.2d 53 (1979); People v. Wilde, 42 Mich.App. 514, 517, 202 N.W.2d 542 (1972); People v. Wakely, 62 Mich. 297, 28 N.W. 871 (1886). Crimes can be distinguished by the different elements of proof required, People v. LaRose, supra, People v. Graves, 31 Mich.App. 635, 188 N.W.2d 87 (1971). Accordingly, since the general false pretenses statute prohibits conduct distinct from that proscribed by [97 MICHAPP 548] Section 4 of the Employment Security Act, the prosecutor can, where the facts fit both, choose which to charge, so long as he doesn't overcharge. People v. Carmichael, 86 Mich.App. 418, 422, 272 N.W.2d 667 (1978). People v. Feldman, 87 Mich.App. 157, 161, 274 N.W.2d 1 (1978).

The defendant argues, however, that the instant case should be governed by People v. LaRose, supra. In LaRose defendant presented an insufficient funds check to a bank in the amount of $150.00, and pled guilty to obtaining money in an amount over $100 by false pretenses with intent to defraud. M.C.L. § 750.218; M.S.A. § 28.415. The gist of defendant's argument is that the insufficient funds statute, M.C.L. § 750.218; M.S.A. § 28.415, is analogous to Section 54 of the Employment Security Act since it only requires intent to defraud by false pretenses and not the additional elements of reliance and injury. Despite the fact that the false pretenses statute includes elements not found within the insufficient funds statute, the LaRose court found that the defendant should have been charged under the latter.

We disagree. The LaRose Court based its conclusion in large part on the intent of the Legislature.

"It was clearly the Legislature's intent, in enacting the insufficient funds statute, to carve out an exception to the false pretenses statute and to provide for a lesser penalty for the particular type of false pretense involved in presentation of an insufficient funds check." 87 Mich.App. 298, 304, 274 N.W.2d 45, 48.

See also People v. Richard Ford, 95 Mich.App. 412, 291 N.W.2d 60 (1980). We do not find that legislative intent evidenced here.

While the title to the Employment Security Act states that a purpose of the Act is to provide [97 MICHAPP 549] penalties for violations of the Act, unlike LaRose, there is no indication that the penalties set forth within are to be exclusive. In fact, sections 54 and 62(b) ³ both clearly imply that violators of the Act may be charged under other criminal statutes. Thus, given such a clear expression of the legislative intent that the penalties prescribed within the Employment Security Act are not to be exclusive, defendant's reliance upon LaRose is inapposite.

As to the sound...