929 N.W.2d 821
Mich. Ct. App.2019Background
- Defendant used his ex-wife Robin Mayer’s name and SSN to obtain DTE electric service at his Elm Lane address beginning September 2013; DTE accounts are tied to individuals and require SSN verification through TransUnion.
- Defendant admitted the Elm Lane address was his and that he set up/attempted to transfer service in 2013, but denied knowing Mayer’s SSN; he nonetheless received and paid bills in Mayer’s name.
- Mayer denied ever requesting service at Elm Lane; when she notified DTE in 2015 the account was shut off and defendant reinstated service that same day under his own account.
- Jury convicted defendant of identity theft (MCL 445.65(1)(a)(i)); sentence: one day jail, 18 months’ probation. Defendant moved for new trial and raised multiple claims; trial court denied relief.
- On appeal defendant challenged jury instructions (date range and definition of “obtain”), amendment of the information to cover Sept 2013–Aug 2015, prosecutorial statements, sufficiency of evidence, and statute vagueness. Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction re: time period | Time need not be proved as an element; instructing a date range is acceptable | Jury should have been instructed that all elements occurred on the account-opening date | Affirmed: time is not an element; range instruction not misleading |
| Definition of “obtain” | “Obtain” includes gaining or continuing to attain services by use of another’s information | Court should have defined “obtain”; jury may have convicted for continued receipt only | Affirmed: ordinary meaning covers initial receipt and continued attainment; no error in declining special definition |
| Amendment of the information to Sept 2013–Aug 2015 | Amendment permissible; time “as near as may be” and not of the essence | Amendment prejudiced defense because only one date was supported at prelim | Affirmed: amendment proper; time not of the essence and no unfair surprise |
| Sufficiency of evidence & intent to defraud | Evidence showed defendant used Mayer’s info to obtain/continue service and caused loss to Mayer (past-due bills, credit impact) | Insufficient proof he provided Mayer’s info or had intent to defraud | Affirmed: circumstantial evidence supported use and intent to defraud |
| Vagueness of MCL 445.65(1) | Statute uses common words (“use,” “obtain”) that give fair notice; intent-to-defraud element limits arbitrary enforcement | Statute vague because it does not define “use” or “obtain” and could criminalize innocent billing errors | Affirmed: statute not unconstitutionally vague; ordinary meanings and intent requirement suffice |
Key Cases Cited
- Carines v. Michigan, 460 Mich 750 (plain-error standard for unpreserved trial errors)
- Kowalski v. Michigan, 489 Mich 488 (defendant entitled to correct jury submission of elements)
- Dobek v. Anderson, 274 Mich App 58 (time is not an element when statute does not make it so)
- Williams v. Taylor, 475 Mich 245 (statutory interpretation de novo; consult ordinary meaning)
- Martin v. Michigan, 392 Mich 553 (trial court’s duty to guide jury when confusion expressed)
- Donnelly v. DeChristoforo, 416 US 637 (prosecutorial remarks may deny fair trial if they infect proceedings)
- Meissner v. Michigan, 294 Mich App 438 (sufficiency review: view evidence in light most favorable to prosecution)
- Brown v. Michigan, 239 Mich App 735 (intent to defraud requires specific intent; losses can infer intent)
- Boomer v. Michigan, 250 Mich App 534 (void-for-vagueness doctrine and fair notice analysis)