PEOPLE OF THE STATE OF MICHIGAN v. DAVID JOSEPH MILLER
No. 338453
STATE OF MICHIGAN COURT OF APPEALS
January 15, 2019
FOR PUBLICATION 9:05 а.m. Macomb Circuit Court LC No. 16-000668-FH
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
Before: BOONSTRA, P.J., and SAWYER and TUKEL, JJ.
Defendant appeals by right his conviction, following a jury trial, of one count of identity theft,
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case arises from defendant‘s use of his ex-wife‘s name and social security number to obtain electrical service from DTE Energy (DTE) at an address located on Elm Lane in Harrison Township between 2013 and 2015. At trial, a DTE employee testified that DTE account numbers are assigned to individuals rather than to properties, and that to obtain an account number, an individual must provide confidential information including his or her date of birth and social security number. That information is then verified through Trans Union (a company that provides credit checks) before establishing service. The DTE employee testified that a new account was opened in the name of defendant‘s ex-wife, Robin Mayer, for an address located on Elm Lane in Harrison Township in September 2013 (the Elm Lane account). Further, the account was associated with Mayer‘s social security number and could only have been opened by someone who was able to verify the confidential information over the phone.
Defendant admitted that the Elm Lane address was his address. He testified that he attempted to transfer his DTE service from his previous address to his new address in 2013, and that he provided his own
Mayer denied providing DTE with the information to open the Elm Lane account. She testified, and a DTE employee confirmed, that she informed DTE in 2015 that she had never lived at the Elm Lane address or requested service at that address, and she requested that the service at that address be shut off. After the service was shut off, defendant called DTE and had his service reinstated under his own account that same day. DTE had no record of defendant having ever contacted it about the name and information on the Elm Lane account. Mayer testified that she had received two past-due bills for the Elm Lane account. Defendant eventually told her via text message that he had paid one of the bills, stating, “I have purchased a mоney order for $107. Will go in Tuesday‘s mail. I have never received a bill for any open payment, only bills ever received [sic] . . . .” Defendant testified that he never received a “final bill” for the account after the shutoff, because Mayer had asked for all correspondence related to the Elm Lane account to be forwarded to her.
After the close of proofs, the trial court discussed the proposed jury instructions with the prosecution and defendant‘s counsel. Defendant‘s counsel answered affirmatively when the trial court аsked whether he was “satisfied” with the instructions. The trial court instructed the jury regarding the elements of identity theft, and stated that “[t]he prosecutor must also prove beyond a reasonable doubt that the crime occurred on or about September 3, 2013, through August 2015 in Macomb County.” During deliberations, a note from the jury asked the trial court to define the word “obtain” in the context of the jury instructions on the elements of the offense. After meeting with counsel, the trial court instructed the jury: “There is no definition for obtain in the jury instructions. Please use your general knowledge and every day experience in the affairs of life to help you defined [sic] obtain.” Defense counsel agreed on the record to the language of the trial court‘s response.
The jury convicted defendant as described. Defendant subsequently moved for a new trial, Ginther1 hearing, or judgment of acquittal notwithstanding the verdict, arguing that his defense counsel was ineffective for failing to make several objections, that his conviction was based on insufficient evidence, and that
This appeal followed.
Defendant argues that the trial court erred by instructing the jury in two respects: (1) by failing to properly instruct the jury regarding the date and time of the offense for which defendant was charged, and (2) by failing to properly instruct the jury on the correct definition of the word “obtain,” as used in the jury instruction regarding the elements of identity theft. Defendant also argues that his counsel was ineffective for failing to object to these instructions. We disagree.
We review for plain error an unpreserved challenge to the trial court‘s jury instructions. See People v Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999). An error is plain if it is clear or obvious, and it affects substantial rights if it affected the outcome of the lower court proceedings. Id. This Court reviews de novo issues of statutory interpretation. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). A defendant‘s ineffective assistance of counsel claim “is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). When reviewing an ineffective assistance of counsel claim, this Court reviews for clear error a trial court‘s findings of fact, and reviews de novo questions of law. Id. When no Ginther hearing was held, this Court‘s review is limited to mistakes apparent from the record. Payne, 285 Mich App at 188.
A defendant may waive his or her challenge to jury instructiоns. See People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000). Waiver extinguishes any error, leaving nothing for this Court to review. Id. at 215. A defendant waives an issue by expressly approving of the trial court‘s action. Id. at 216. When the trial court asks the party whether it has any objections to the jury instructions and the party responds negatively, it is an affirmative approval of the trial court‘s instructions. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002).
In this case, defense counsel expressly affirmed that he had no objections to the trial court‘s jury instructions. Defendant has therefore waived this issue. Notwithstanding this waiver, we also find no plain error in the instructions.
A. DATE AND TIME OF OFFENSE
Defendant argues that the triаl court should have instructed the jury that it must find that defendant committed all of the elements of the offense of identity theft on the day that he opened the account, rather than within a range of dates encompassing the date on which the account was opened. We disagree.
“A criminal defendant has a constitutional right to have a jury determine his or her guilt from its consideration of every essential element of the charged offense.” People v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011). A defendant is entitled to have the elements of the crime submitted to the jury in a way that is “neither erroneous nor misleading.” Id. (quotation marks and citation omitted). However, “an imperfect instruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant‘s rights.” Id. at 501-502.
This Court has stated that, where time is not an element of the offense, the prosecution need not prove the date and time of offenses beyond a reasonable doubt even though the felony information must identify the date and time of the offenses. People v Dobek, 274 Mich App 58, 82-83; 732 NW2d 546 (2007). Here,
(1) A person shall not do any of the following:
(a) With intent to defraud or violate the law, use or attempt to use the pеrsonal identifying information of another person to do either of the following:
(i) Obtain credit, goods, services, money, property, a vital record, a confidential telephone record, medical records or information, or employment.
The trial court instructed the jury as follows:
The defendant is charged with a crime of using the personal information of another person to obtain services. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt. First, that the defendant used the personal identifying information of Robin formerly known as Miller Mayer [sic]. Second, that the defendant did this with the intent to obtain services. Third, that the defendant did this with the intent to defraud, I mean act to cheat or deceive, usually to get money, property or something else valuable or to make someone suffer such a loss. The prosecutor must also prove beyond a reasonable doubt that the crime occurred on or about September 3, 2013, through August 2015 in Macomb County.
Although the trial court instructed the jury that it was required to make a finding that the offense occurred within a speсific time period, the prosecution was not actually required to prove the timing of the offense as an element of the crime of identity theft. Dobek, 274 Mich App at 82-83. The trial court‘s instruction properly reflected that, to find defendant guilty of identity theft, it must find that he (1) used Mayer‘s personal identifying information, (2) to obtain services, (3) with the intent to defraud. On the whole, the trial court‘s instructions submitted the essential elements of the crime to the jury in a way that was neither confusing nor misleading. Kowalski, 489 Mich at 501.
B. DEFINITION OF “OBTAIN”
Defendant argues that the instruction regarding the range of dates, combined with the trial court‘s refusal to instruct thе jury on a specific definition of “obtain,” led the jury to mistakenly conclude that it could find that defendant committed the offense of identity theft when defendant continued to received services from the Elm Lane account, even if it believed that he had not initially provided Mayer‘s personal information to DTE. We disagree, because the jury was permitted to conclude that defendant committed identity theft even if it did not conclude that he provided Mayer‘s personal information to DTE in September 2013.
This Court interprets statutes on the basis of their plain and ordinary language. Williams, 475 Mich at 250. We may consult a dictionary to determine the meaning of undefined statutory terms. People v Lewis, 302 Mich App 338, 342; 839 NW2d 37 (2013). When doing so, this Court should determine the most pertinent definition in light of the word‘s context in the statute. People v Hershey, 303 Mich App 330, 342; 844 NW2d 127 (2013).
Moreover, the trial court did not err by failing to specifically instruct the jury on the meaning of “obtain.” “Where confusion is expressed by a juror, it is incumbent upon the court to guide the jury by providing a ‘lucid statement of the relevant legal criteria.‘” People v Martin, 392 Mich 553, 558; 221 NW2d 336 (1974), overruled in part on other grounds People v Woods, 416 Mich 581 (1982), quoting Bollenbach v United States, 326 US 607, 612; 66 S Ct 402; 90 L Ed 350 (1946). The trial court‘s instructions must adequately provide the jury with a sufficient understanding of the elements of the crime. Martin, 392 Mich at 558. However, whеther to provide additional instructions at the jury‘s request is within the court‘s discretion. Id.
When a word is not defined by statute, this Court presumes that the word is subject to ordinary comprehension, and there will be no error warranting reversal as a result of a trial court‘s failure to define a term that is generally familiar to lay persons and is susceptible to “ordinary comprehension.” People v Martin, 271 Mich App 280, 352; 721 NW2d 815 (2006). For example, this Court has stated that the trial court‘s failure to define terms such as “keep,”
“maintain,” and “operate” was not reversible error because the terms were susceрtible to ordinary comprehension. Id. at 352-353. As previously stated, the verb “obtain” has only one modern definition. Merriam-Webster‘s Collegiate Dictionary
For the same reasons, we also conclude that had defense counsel objected to the instructions on the grounds asserted by defendant, those objections would have been futile. Counsel is not ineffective for failing to make futile objections. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
III. AMENDMENT OF THE INFORMATION
Defendant also argues that the trial court erred by allowing the prosecution to amend the information to reflect the time period from September 2013 to August 2015, or alternatively that his counsel was ineffective for failing to object to the amendment. We disagree. We review unpreserved issues for plain error. See Carines, 460 Mich at 764-765.
Defendant‘s counsel specifically stated that he had no objection to the amendment of the information. Defendant thus has waived this issue. Carter, 462 Mich at 216; Kowalski, 489 Mich at 504-505. Notwithstanding this waiver, the trial court did not err, plainly or otherwise, by allowing the prosecution to amend the information.
An information shall inform the defendаnt of the nature of the offense charged and “[t]he time of the offense as near as may be.”
Defendant argues that the trial court erred by allowing the prosecution to amend the information because the date on which the offense was committed was of “utmost importance” since “[t]he facts at preliminary examination and at trial only supported a finding for one alleged date of the identity theft, September 3, 2013.” We disagree. As discussed, time is not an
element of the offense of identity theft. See
Moreover, the amendment did not unacceptably prejudice defendant. The prosecution moved to amend the information on the first
IV. PROSECUTORIAL ERROR4
Defendant argues that the trial court erred by allowing the prosеcution to make misstatements of the law that prejudiced defendant, or in the alternative that his counsel was ineffective for failing to object to those statements. We disagree. We review unpreserved claims of prosecutorial error for plain error affecting a defendant‘s substantial rights. Unger, 278 Mich App at 235.
Prosecutorial error occurs if the prosecution‘s actions deny the defendant a fair and impartial trial. Dobek, 274 Mich App at 63. The prosecution may deny a defendant‘s right to a fair trial by making improper remarks that infringe on a defendant‘s constitutional rights or by mаking remarks that “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v DeChristoforo, 416 US 637, 643; 94 S Ct 1868; 40 L Ed 2d 431 (1974). The prosecution‘s clear, uncorrected misstatement of the law may deprive the defendant of a fair trial. People v Grayer, 252 Mich App 349, 357; 651 NW2d 818 (2002). However, if the trial court correctly instructs the jury on the law, the prosecution‘s erroneous legal argument may be cured. Id.
Here, the prosecution stated during opening statements that the jury could find defendant guilty of identity theft even if it found that he did not provide DTE with Mayer‘s information
because “[h]e continued to operatе, continued to get the bills, continued to pay, admittedly using her name and social security number.” During closing arguments, the prosecution similarly argued that “the defendant used the personal identifying information of Robin Miller [sic]. . . . It was a dispute about whether he opened it purposefully or not, but even if he didn‘t open it purposefully, he still recognized at least six months according to his own words that the account was in her name and he kept it there and kept using it.” As we have discussed, the jury could in fact have found defendant guilty without finding that he was the one who provided Mayеr‘s personal information when the account was opened. Further, as we have also discussed, any error was cured by the trial court‘s correct instruction on the applicable law. For the same reasons, defendant‘s
V. SUFFICIENCY OF THE EVIDENCE
Defendant also argues that the evidence was insufficient to support his conviction for identity theft. We disagree. This Court reviews de novo a defendant‘s challenge to the sufficiency of the evidence supporting his or her conviction. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). We review the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could find that the prosecution proved the crime‘s elements beyond a reasonable doubt. Id. Conflicting evidence and disputed facts are to be resolved by the trier of fact. See People v Yost, 468 Mich 122, 133 n 14; 659 NW2d 604 (2003). Minimal circumstantial evidence and reasonable inferences can sufficiently prove the defendant‘s state of mind, knowledge, or intent. People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008). An intent to defraud requires that the prosecution show that defendant actеd with an intent to cheat or deceive. Brown, 239 Mich App at 747.
Again,
(1) A person shall not do any of the following:
(a) With intent to defraud or violate the law, use or attempt to use the personal identifying information of another person to do either of the following:
(i) Obtain . . . services . . . .
Defendant argues that there was no evidence presented that he gave Mayer‘s information to DTE. As discussed above, providing another‘s personal information to a utility or other service provider is not an element of the offense. Moreover, a DTE employee testified that the account on Elm Lane could only have been created by someone providing Mayer‘s social security number over the phone. Defendant, Mayer‘s ex-husband, would have had access to Mayer‘s social security number at some point. Defendant admitted to calling DTE to set up an account for Elm Lane in September 2013. Although defendant denied having Mayer‘s social security number and testified that he believed that DTE had erroneously caused Mayer‘s information to be entered on his account, the jury was free to disbelieve defendant.
Moreover, even accepting defendant‘s claim that he did not provide DTE with Mayer‘s information, there was sufficient evidence to establish that defendant used Mayer‘s information to obtain services because the prosecution established that defendant was aware that DTE services were provided to defendant‘s address under Mayer‘s information for several months, yet continued to avail himself of that service. Defendant testified that he had received bills with Mayer‘s name on them. A DTE employee testified that the bills for the account were paid by money order, and that defendant had never sought to correct the information on the account. Defendant paid the bills for the account, and when Mayer received a past-due bill, defendant paid it without commenting on the fact that the account was in Mayer‘s name. Viewed in the light most favorable to the prosecution, there was enough evidence for a rational trier of fact to determine beyond a reasonable doubt that defendant was guilty of using Mayer‘s information to obtain services. Meissner, 294 Mich App at 452.
Defendant also argues that there was insufficient evidence of his intent
VI. CONSTITUTIONALITY OF MCL 445.65(1)
Defendant also argues that
The void-for-vagueness doctrine is derived from the Due Process Clauses of the Fourteenth Amendment and
Defendant argues that
We have already concluded that the verb “obtain” is a commonly-used term capable of being interpreted through the use of a dictionary or through common usage. The verb “to use” is also defined in the dictionary, with the most common definition being “to put into action or service : avail oneself of,” but also “to carry out a purpose or action by means of,” among
Defendant also asserts that the statute permits arbitrary enforcement because “almost everyone has problems with bills from one company or another.” But defendant provides no significant argument or citation to legal authority. “An appellant‘s failure to properly address the merits of his assertion of error constitutes abandonment of the issue.” People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004). Nonetheless, we note that the statute requires proof of the intent to defraud. The intent to defraud is the specific intent to cheat or deceive. People v Brown, 239 Mich App 735, 747; 610 NW2d 234 (2000). Specific-intent requirements generally alleviate vagueness concerns. Id. Contrary to defendant‘s argument, the statute does not permit the convictiоn of persons who accidentally or innocently receive or pay for services meant for another. We conclude that the statute does not provide for arbitrary enforcement.
Affirmed.
/s/ Mark T. Boonstra
/s/ David H. Sawyer
/s/ Jonathan Tukel