Defendant Donald S. Knowles was convicted by a jury of uttering and publishing, MCL 750.249. 1 He was sentenced as a fourth habitual offender, MCL 769.12, to a prison term of four to twenty-five years. He appeals as of right. We affirm.
Amanda Schroeder testified that she “met” defendant while she was in the county jail for drunken driving. Simply put, she explained that the bulk of *55 their contact occurred through writing notes to each other that were passed by trusties. 2 She was released from jail before defendant, but indicated that she remained in contact with defendant through letters and telephone calls while he was still in jail. Schroeder testified that on December 28, 2000, which was the date defendant was released from jail, she met him at a Knights Inn in Grand Rapids where she paid for a room. Schroeder said that she and defendant went to the room where they “had a couple drinks” and had sex and that, after that, defendant told her he was going to the store, left the room, and did not come back. She testified that she spent New Year’s Eve, December 31, 2000, at defendant’s house and stayed until “probably about four, five o’clock that morning.” She said she made defendant take her home because he was talking to “some girl” on the telephone for three hours. Schroeder said that she had her checkbook with her at the hotel on December 28 and when she was at defendant’s house on December 31. However, she testified that she never gave defendant a check and that she never gave him a loan or offered to give him a loan. She also said that he never asked her for a loan. She further testified that she never gave defendant permission to use her checkbook.
Schroeder testified that at the time she was at the hotel with defendant, she was in a relationship with Francio Medina, whom she had been seeing “off and on” for nine years. She said she shared some of the problems in that relationship with defendant. Schroe *56 der testified that the checking account she had belonged to her and Medina. She also testified that she was informed that check number 540 from the checking account did not “clear,” and that she looked through her checkbook and saw that she “was only on like 536, 537.” She indicated that the check and carbon copy for number 540 were missing from her checkbook. Schroeder identified People’s Exhibit 5 as check number 540, which was written for $225, signed with her name, and had written on it “loan.” However, she said that she did not write any part of the check, and that her name was spelled incorrectly in the signature.
Defendant’s father, Donald Knowles, Sr., testified that he thought People’s Exhibit 5 was the check that he cashed for defendant. He indicated that defendant gave him the check and told him that defendant could not cash it because defendant did not have a bank account. He said that upon cashing the check in the amount of $225, he gave this sum to defendant. Defendant’s father said that defendant told him that Schroeder was going to lend him some money. He testified that he repaid the credit union (where he cashed the check) the $225.
The vice-president of Safe Harbor Credit Union testified that defendant’s father was an account holder at the credit union, and that on January 2, 2001, he cashed a check. The credit union’s records reflected that this check was returned “marked NSF, nonsufficient funds.” 3 The records also indicated that, on January 25 or 26, 2001, defendant’s father repaid the *57 credit union the $225 that he was given when he cashed the check, which meant that the credit union was without that money from January 2, 2001, until that repayment
An accounting supervisor with Grand Rapids Consumer’s Credit Union testified that its records reflected that Medina and Schroeder had a joint account at the credit union and that check number 540, in the amount of $225, was returned on January 3, 2001, because there were insufficient funds in the account.
Detective Susan Randall testified that she interviewed defendant, who said that Schroeder gave him the check at issue as a gift. When she asked him why the check had “loan” written on it, he “just looked kind of dumbfounded.” Schroeder indicated that she went to visit defendant in jail in connection with the check that he took, and he told her “that he would explain everything to me after everything is done and over with.” She further testified about defendant writing letters to her in February 2001 or later generally telling her that he loved her and that he was “sorry” and suggesting that she drop the charges. She also indicated that defendant told her to say that Medina told her that he would beat her up if she did not “blame it on [defendant].”
I. UTTERING AND PUBLISHING
Defendant first argues that the evidence was insufficient to support his conviction of uttering and publishing because there was insufficient evidence that defendant knew the check was false or that he had the intent to defraud. We disagree. In reviewing
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whether there was sufficient evidence to support a conviction, we view the evidence -in a light most favorable to the prosecution to decide whether any rational fact-finder could have found that the essential elements of the crime were proven beyond a reasonable doubt.
People v Hunter,
H. PROSECUTORIAL MISCONDUCT
Defendant next argues that his conviction should be reversed on the basis that the prosecutor engaged in multiple instances of misconduct. First, defendant asserts that the prosecutor improperly remarked on his failure to testify in the course of making a hearsay objection. Defendant also argues that the prosecutor improperly attempted to introduce evidence of his prior bad acts when the prosecutor asked Detective Randall why a handwriting analysis was not performed in this case, and the detective began to answer with a reference to “several other instances.” However, after the remark touching on defendant’s right to testify and the answer by the detective referencing “other instances,” the trial court essentially asked defense counsel if he planned to move for a mistrial. Defense counsel replied that he talked to defendant and that defendant “indicated that he wants to continue this trial.” Accordingly, we conclude that defendant waived any right to a new trial based on prosecutorial misconduct that may have occurred before defense counsel’s indication that the trial should continue. See
People v Carter,
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Defendant also claims that the prosecutor improperly appealed to the jury for sympathy for the complainant throughout the trial. A number of these incidents occurred before the above-referenced statement by defense counsel to the trial court that defendant wished to continue with trial. We conclude that any claim by defendant that he should be granted a new trial with regard to those incidents was waived by his indication that he wished to continue with the trial. This leaves for our consideration only certain remarks made by the prosecutor in closing and rebuttal argument. Defendant did not object below to the argument in question; thus, appellate relief is available only for plain error that resulted in the conviction of an actually innocent defendant or that seriously affected the fairness, integrity, or public reputation of judicial proceedings.
People v Carines,
Defendant refers to remarks by the prosecutor in closing argument reflecting Schroeder’s testimony that defendant left her at the motel and spent three hours on the telephone while she was at defendant’s home. However, in context, these remarks were part of an argument by the prosecutor that it was implausible that Schroeder would have voluntarily given defendant the check after he treated her badly. This was permissible argument from the evidence because “a prosecutor is free to argue the evidence and all reasonable inferences from the evidence as it relates to the prosecution’s theory of the case.”
People v Fisher,
III. sentencing guidelines
Finally, defendant argues that the trial court miss-cored offense variable (ov) 9 of the sentencing guidelines at ten points for two victims. Defendant asserts that the court incorrectly treated the credit union at
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which defendant’s father cashed the check as a victim (in addition to treating Schroeder as a victim).
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We disagree. As set forth above, the records of Safe Harbor Credit Union reflected that, as a result of defendant’s father cashing the check at issue, the credit union paid out $225 and was without that money for a period. “MCL 777.39(2)(a) specifically states that, in scoring the variable, the trial court must ‘[c]ount each person who was placed in danger of injury or loss of life as a victim.’ ”
People v Kimble,
Affirmed.
Notes
The jury acquitted defendant of a charge of forgery.
It seems that Schroeder and defendant had little opportunity for direct contact while they were in jail because of a general separation of male inmates from female inmates.
Defense counsel stipulated that the check was cashed by defendant’s father at Safe Harbor Credit Union.
At some points, defendant refers to the credit union as a “bank” in his brief.