956 N.W.2d 562
Mich. Ct. App.2020Background
- Defendant removed a spider wrap from a $378 TV at Walmart, placed the TV in a shopping cart, and removed a price/barcode sticker needed for purchase.
- He pushed the cart past the registers, left it unattended while using the restroom, then headed toward the exit; after making eye contact with loss prevention and an officer he turned toward a checkout lane and was detained.
- The jury convicted him of first-degree retail fraud (enhanced based on a prior retail-fraud conviction) and acquitted him of deactivating/removing a theft-detection device.
- On appeal defendant challenged the jury instructions/elements (whether “steals” requires exiting the store), sufficiency of evidence of intent, compliance with statutory procedures for enhancing the offense based on prior convictions, and an erroneous wording on the judgment of sentence.
- The Court of Appeals affirmed: (1) the model instruction (M Crim JI 23.13) correctly treats “steals” as taking/moving with intent to permanently deprive (leaving the store not required); (2) circumstantial evidence (removing spider wrap, discarding barcode, path past registers, movement toward exit, change of course when observed) was sufficient to infer intent; (3) the prosecutor listed the prior conviction and defendant conceded the PSIR, so no remand for a separate prior-conviction finding; (4) the SCAO judgment form’s dismissal can reflect a jury acquittal, so no correction was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the term “steals” in the retail-fraud statute requires actually exiting the store, or whether taking/moving with intent suffices | Prosecution: M Crim JI 23.13 correctly states law—taking/moving property with intent to permanently deprive constitutes “steals”; leaving store is irrelevant | Kenny: “steals” means actual theft (leaving with property); he never left store so not guilty | Court: Affirmed model instruction; taking/moving with intent suffices; defendant waived instruction challenge by approving instructions; alternatively, instruction was correct |
| Sufficiency of evidence to prove intent to steal | Prosecution: surveillance and physical evidence (removed spider wrap, discarded barcode, path past registers, heading to exit, change when observed) permit inference of intent | Kenny: Evidence insufficient to show intent to permanently deprive | Court: Evidence sufficient; intent may be inferred from circumstantial evidence and defendant’s conduct |
| Whether enhancement to first-degree retail fraud complied with MCL 750.356c(4) (court determination of prior convictions) | Prosecution: complaint listed prior conviction; PSIR reflected it; court afforded defendant opportunity to review; court need not hold separate hearing if record establishes prior conviction | Kenny: No separate hearing and court did not explicitly find prior conviction at sentencing | Court: No remand; defendant expressly conceded accuracy of PSIR entry of prior conviction, satisfying statutory requirement |
| Whether judgment of sentence must be corrected because it states the theft-device charge was "dismissed" though jury found not guilty | Prosecution/State: SCAO form and MCR allow entry of dismissal to reflect not-guilty verdict; form need not separately state "acquitted" | Kenny: Form inaccurately records dismissal instead of jury acquittal | Court: Entry of dismissal on judgment form adequately reflects acquittal; no remand required |
Key Cases Cited
- People v Kowalski, 489 Mich 488 (Mich. 2011) (affirmative approval of jury instructions waives appellate review)
- People v Reddick, 187 Mich App 547 (Mich. Ct. App. 1991) (possession adverse to store and exiting not required to prove retail fraud)
- People v Carines, 460 Mich 750 (Mich. 1999) (circumstantial evidence and reasonable inferences can sustain conviction)
- People v Lueth, 253 Mich App 670 (Mich. Ct. App. 2002) (standard of review for sufficiency of the evidence)
- People v Reese, 491 Mich 127 (Mich. 2012) (review sufficiency under most favorable-to-prosecution standard)
- People v Jones, 467 Mich 301 (Mich. 2002) (use of dictionaries/legal definitions to construe undefined statutory terms)