Lead Opinion
Defendant appeals as of right his jury trial convictions of eight counts of uttering and publishing, MCL 750.249, four counts of forgery, MCL 750.248, and four counts of fraudulent insurance acts, MCL 500.4511. He was sentenced to serve nine months in jail for the forgery convictions, 11 months in jail for the uttering and publishing convictions, and 16 months in prison for the insurance fraud convictions.
Defendant and Michael Lehman jointly owned two funeral homes in Portland and Ionia, where they sold prepaid funeral plans. In 2005, Lehman bought out defendant’s shares in the business, and defendant began to operate a country club. Lehman testified that he and his wife discovered some financial irregularities after defendant left, but they did not give them much consideration. In December 2007, defendant talked to Lehman about returning to work for the funeral homes as an employee, which Lehman agreed to, but Lehman testified that defendant was not allowed to have any direct financial responsibilities. According to Lehman, if a customer arranged for a prepaid funeral plan with defendant, Lehman was to handle the transaction, which included bank deposits. Lehman managed the Portland chapel while defendant worked at the Ionia chapel.
Lehman testified that after defendant had been working at the Ionia chapel for at least two years, he learned defendant had been making deposits himself, which caused Lehman to investigate further. Lehman discovered that customers who had intended to purchase prepaid funeral plans had actually written
Defendant first argues on appeal that the trial court abused its discretion by denying defendant’s motion for a new trial based on Lehman’s perjured testimony. We review the trial court’s decision to deny defendant’s motion for a new trial for an abuse of discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003).
The trial court held an evidentiary hearing to address the perjury allegations against Lehman, during which many inconsistencies in Lehman’s testimony were exposed. Defendant argues that these inconsistencies show Lehman perjured himself and warrant a new trial. “It is well settled that a conviction obtained through the knowing use of peijured testimony offends a defendant’s due process protections guaranteed under the Fourteenth Amendment.” People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009). “If a conviction is obtained through the knowing use of perjured testimony, it ‘must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” Id., quoting United States v Agurs, 427 US 97, 103; 96 S Ct 2392; 49 L Ed 2d 342 (1976).
Defendant does not explain how the prosecution knowingly presented perjured testimony, and, as the trial court found, there is no evidence that the pros
Additionally, although this Court has not specifically ruled on whether a defendant may be entitled to a new trial irrespective of the prosecution’s culpability, it has stated that “it is the ‘misconduct’s effect on the trial,
Defendant argues that the inconsistencies in Lehman’s testimony are material to defendant’s guilt because they show that Lehman was the actual perpetrator. As discussed, however, there was concrete evidence presented that implicated defendant, despite the level of Lehman’s potential involvement. Although Lehman was a key witness at trial, the deposits into the Schrauben Management bank account maintained by defendant and the records on defendant’s home computer strongly implicated defendant, even without Lehman’s testimony. Therefore, we conclude that the trial court did not abuse its discretion by denying defendant’s motion for a new trial based on perjury.
Defendant next argues that trial counsel was ineffective for failing to introduce exculpatory evidence and develop testimony that would have shown Lehman testified falsely. “The denial of effective assistance of counsel is a mixed question of fact and constitutional law, which are reviewed, respectively, for clear error and de novo.” People v Brown, 279 Mich App 116, 140; 755 NW2d 664 (2008).
Criminal defendants have a right to the effective assistance of counsel under the United States and
Defendant argues that trial counsel was ineffective for failing to introduce exculpatory evidence and develop testimony regarding (1) the timing of Lloyd Dickinson’s death, which led Lehman to discover defendant’s wrongdoing, and errors on Dickinson’s death certificate, (2) the fact that Lehman testified that he confirmed defendant’s wrongdoing after visiting Independent Bank, when the banking was actually conducted at Firstbank, and (3) the fact that Lehman never filed claims for many clients who had passed away before Lehman allegedly discovered the fraud despite testimony that he had a tracking mechanism to ensure that he was paid by the escrow companies or the families. These alleged errors, however, do not show that trial counsel’s performance fell below an objective standard of reasonableness. Trial counsel testified at the evidentiary hearing that he chose to focus on what he felt were much larger issues than Dickinson’s claim and was unaware of the Firstbank account that the Lehmans had. Trial counsel made it clear that, in hindsight, he could have highlighted other issues that cast doubt on Lehman’s credibility, particularly the fact that Lehman never filed claims for other clients
Defendant next argues that, during the prosecutor’s closing argument and rebuttal, the prosecutor suggested to the jury that defense counsel was attempting to purposefully mislead the jury. Defendant forfeited this issue by failing to object at trial. People v Fyda, 288 Mich App 446, 460; 793 NW2d 712 (2010). Therefore, our review is for plain error affecting defendant’s substantial rights. Id. at 460-461. “Reversal is warranted only when plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id. at 461.
Defendant specifically challenges the following statements made during the prosecutor’s closing argument:
{Defendant’s attorney] is a very skilled, excellent trial attorney. He’s an excellent cross-examiner. He pulls things out of people and muddies up the water. And that’s what we talk about when we are prosecutors. We say the defense attorney is going to come and throw mud up on the wall, except we don’t use that word when we talk amongst ourselves. Let’s see how muddy we can make this water so the jury can’t really see what’s going on here. Let’s see what can we come up with? How about this? How about that? How about the other thing? Does that make sense? That’s what defense attorneys do. I know. I’m married to one. You should be at our house sometimes. They would like you to—the Defense would like you to believe that he was—*192 that Mr. Lehman was conspiring with Mr. Schrauben about this; that that was going to pay off the buyout amount. And it happens to be around the same amount so they could make that argument. [Emphasis added.]
Defendant also challenges the following statements made during the prosecutor’s rebuttal:
Ladies and gentlemen, I asked you before to render a guilty verdict for each and every one of the counts that I have charged the defendant with. And I will call [defendant’s attorney\ a mud slinger and he’s really good at it. He’s very convincing. He’s picking out every little thing that he could possibly think of that would try and create reasonable doubt, but it just doesn’t make it. I want you to look at the elements and the Judge is going to tell you, you can believe some things from a witness, one witness and not others from that witness. But you have to believe with [sic] to make my burden of proof, to find the defendant guilty is the elements of the offenses. Were the elements proved beyond a reasonable doubt? Not all this other stuff that he calls reasonable doubt. That’s for you to make the call. I say it’s not. I say it’s mud. Thank you very much. I appreciate your very good attention. [Emphasis added.]
“Prosecutors are typically afforded great latitude regarding their arguments and conduct at trial,” People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008), but a prosecutor “may not suggest that defense counsel is intentionally attempting to mislead the jury,” People v Watson, 245 Mich App 572, 592; 629 NW2d 411 (2001). Such an argument implies that defense counsel does not believe his own client, which undermines the defendant’s presumption of innocence. Fyda, 288 Mich App at 461.
In this case, the prosecutor’s argument that defense counsel is a “mud slinger” who “pulls things out of people and muddies up the water” suggests that defense counsel was distracting the jury from the truth
However, the trial court instructed the jury that the attorneys’ statements and arguments were not evidence, and we presume that jurors follow their instructions. Unger, 278 Mich App at 237. Further, reversal is not warranted because any prejudicial effect created by the improper statements could have been alleviated by a timely objection and curative instruction. Id. at 238.
Defendant also argues that the cumulative effect of the earlier alleged errors denied him a fair trial. To warrant reversal based on cumulative error, “the effect of the errors must have been seriously prejudicial in order to warrant a finding that defendant was denied a fair trial.” People v Knapp, 244 Mich App 361, 388; 624 NW2d 227 (2001). However, defendant only identified one error involving the prosecutor’s improper argument, which could have been cured by a timely objection. Therefore, reversal is not warranted.
Defendant next argues that the trial court erred by not imposing an intermediate sanction for his insurance fraud convictions. Atrial court’s decision to depart from the sentencing guidelines is reviewed for reasonableness. People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015).
Defendant’s recommended minimum sentence range for his insurance fraud convictions entitled him to an intermediate sanction pursuant to MCL 769.34(4), which provides:
*194 Intermediate sanctions shall be imposed under this chapter as follows:
(a) If the upper limit of the recommended minimum sentence range for a defendant determined under the sentencing guidelines set forth in chapter XVII is 18 months or less, the court shall impose an intermediate sanction unless the court states on the record a substantial and compelling reason to sentence the individual to the jurisdiction of the department of corrections. An intermediate sanction may include a jail term that does not exceed the upper limit of the recommended minimum sentence range or 12 months, whichever is less. [Emphasis added.]
Subsection (4)(a) required the trial court to sentence defendant to an intermediate sanction that does not include prison time, absent a substantial and compelling reason for departure. See Lockridge, 498 Mich at 387 (stating that “shall” indicates a mandatory directive). However, our Supreme Court in Lockridge specifically stated that any part of MCL 769.34 that refers to the guidelines as mandatory or refers to departures from the guidelines is severed or struck down. Id. at 365 n 1 (“To the extent that any part of MCL 769.34 or another statute refers to use of the sentencing guidelines as mandatory or refers to departures from the guidelines, that part or statute is also severed or struck down as necessary.”). Accordingly, under Lock-ridge, a trial court is no longer required to impose an intermediate sanction.
Consistently with the remedy explained in Lock-ridge, we replace the word “shall” in MCL 769.34(4)(a) with the word “may.” See Lockridge, 498 Mich at 391 (stating that to remove the mandatory directive of MCL 769.34(2), the Court only needed to substitute the word “may” for “shall”). Additionally, we strike down the requirement that a trial court must articulate substantial and compelling reasons to depart from an
In this case, defendant first argues that the trial court’s reasons for departing from an intermediate sanction were not substantial and compelling. However, as discussed, this is no longer a requirement following Lockridge.
Second, defendant argues that the trial court violated Alleyne v United States, 570 US_; 133 S Ct 2151; 186 L Ed 2d 314 (2013), because the reasons used to justify an upward departure from the statutorily mandated intermediate sanction were not based on facts found beyond a reasonable doubt by the jury. However, because, under Lockridge, an intermediate sanction is no longer mandated, defendant’s argument is without merit because Alleyne stands for the proposition that any fact that increases a mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt. Id. at_; 133 S Ct at 2163. This “does not mean that any fact that influences judicial discretion must be found by a jury.” Id. at_; 133 S Ct at 2163. Now, pursuant to Lockridge, a trial court has discretion to impose an intermediate sanction if the upper limit of the recommended minimum sentence range is 18 months or less, but it is not required to do so.
In this case, defendant’s recommended minimum sentence was zero to 17 months’ imprisonment. The trial court sentenced defendant to a minimum of 16
Finally, defendant argues that the trial court erred by assessing 10 points for Offense Variable (OV) 4 for his uttering and publishing convictions. We review for clear error the trial court’s factual determinations, which must be supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). We review de novo whether the factual determinations were sufficient to assess points under OV 4. Id. See also People v Steanhouse, 313 Mich App 1, 38; 880 NW2d 297 (2015) (holding that because scoring the offense variables remains relevant under
OV 4 requires the trial court to determine whether a serious psychological injury requiring professional treatment occurred to a victim. MCL 777.34(l)(a). The trial court may assess 10 points “if the serious psychological injury may require professional treatment.” MCL 777.34(2). Defendant does not base his argument on the fact that Lehman, the victim, did not seek professional treatment, but rather argues that Lehman’s psychological injury was not serious.
In this case, defendant acknowledges that Lehman indicated in a letter discussed in the trial court that “ ‘the past three years have been a struggle for him psychologically.’ ” We have upheld a trial court’s assessment of 10 points for OV 4 when the victim suffered “personality changes, anger, fright, or feelings of being hurt, unsafe, or violated.” People v Armstrong, 305 Mich App 230, 247; 851 NW2d 856 (2014).
Further, the trial court noted that based on its memory and the impression it got from trial, it “would be ignoring the obvious if [it] were to say that there were no signs or no evidence of serious psychological injury requiring professional treatment.” The trial court had the opportunity to observe Lehman’s demeanor during trial, and it noted how the funeral home was his life and that when defendant committed the crimes, everything changed for Lehman. See Steanhouse, 313 Mich App at 38-39 (discussing serious psychological injury as it relates to OV 5 and noting that the trial court’s opportunity to observe the demeanor of the victim’s family members supported its factual findings that they sustained psychological injury). Accordingly, we conclude that the trial court’s
In its cross-appeal, the prosecution argues that the trial court erred by granting defendant’s motion for a directed verdict of acquittal and dismissing defendant’s convictions for embezzlement, CCE, and CCE proceeds. In reviewing a trial court’s decision regarding a motion for directed verdict, we review the evidence in a light most favorable to the prosecution to “determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt.” People v Riley (After Remand), 468 Mich 135, 139-140, 659 NW2d 611 (2003).
On appeal, the parties only argue whether the money converted by defendant belonged to the funeral home to support the convictions for embezzlement under MCL 750.174, which in turn supports the convictions for CCE and CCE proceeds. Embezzlement by an agent or employee, MCL 750.174, requires proof of six elements:
(1) the money in question must belong to the principal, (2) the defendant must have a relationship of trust with the principal as an agent or employee, (3) the money must come into the defendant’s possession because of the relationship of trust, (4) the defendant dishonestly disposed of or converted the money to his own use or secreted the money, (5) the act must be without the consent of the principal, and (6) at the time of conversion, the defendant intended to defraud or cheat the principal. [People v Lueth, 253 Mich App 670, 683; 660 NW2d 322 (2002).]
In this case, the money never belonged to the funeral home. The money belonged to the contract beneficiaries until their death and upon performance of the funeral home’s obligations. The prosecution argues that defendant’s wrongful acts caused title to pass to the funeral home, and therefore the money belonged to it. However, although the funeral home received checks from the insurance company, the money still did not belong to it. The money belonged to the contract beneficiaries until their death and upon performance of the funeral home’s obligations, neither of which had occurred at the time of trial.
Additionally, the money did not come into defendant’s possession “because of the relationship of trust.. ..” Lueth, 253 Mich App at 683. The money came into defendant’s possession because he tricked the insurance companies into writing checks to the funeral home by filing false death claims. In discussing the difference between larceny and embezzlement, our Supreme Court has stated that with embezzlement “there must be an unlawful appropriation of that which comes into possession rightfully.” People v Bergman, 246 Mich 68, 71; 224 NW 375 (1929). In this case, defendant did not come into possession of the money rightfully. Therefore, the trial court did not err by granting defendant’s motion for a
Affirmed.
MARKEY, P.J., concurred with OWENS, J.
Notably, Lockridge did not alter or diminish MCL 769.34(10), which provides, in pertinent part, “If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant’s sentence.”
Although defendant challenges the scoring of Offense Variable 4, as will be discussed later, that challenge relates to the scoring of the offense variables for his convictions of uttering and publishing, not his convictions of fraudulent insurance acts. The trial court scored the offense variables separately for each group of offenses.
MCL 328.211 et seq.
Concurrence in Part
(concurring in part and dissenting in part).
I respectfully disagree that defendant is not entitled to a new trial. I believe that the trial court and the majority misconstrue, subtly, but with important implications, the gravamen of defendant’s theory of the case. I agree with the majority that nothing in the record suggests that the prosecution was aware of the perjury, and I believe, as the majority implies but does not outright state, that peijured testimony that affects the fairness of the trial entitles a defendant to a new trial irrespective of whether the prosecution bears any blame. Where I differ from the majority is my conclusion that Lehman’s perjury does have practical ramifications for at least some of defendant’s convictions and does affect the fairness of defendant’s trial. I would hold, as a consequence, that the trial court abused its discretion by denying defendant a new trial. In all other respects, I agree with the majority.
The alleged factual bases for each of the charges at issue are important. Four of defendant’s convictions for uttering and publishing, MCL 750.249, were based on four “false, forged, altered, or counterfeit” death certificates filed for people who were still alive at the time; all four of his convictions for forgery, MCL 750.248, were based on the same death certificates. The other four uttering and publishing convictions were based on
The majority and the trial court neglect to observe the obvious and necessary implication of defendant’s theory of the case: it is critical to the prosecution’s theory of the case that Lehman’s purported signatures were not made by Lehman or with Lehman’s knowledge and approval. Consequently, defendant’s theory of
The only possible way Lehman’s perjury could be irrelevant and harmless is if this Court were to conclude that defendant’s theory of the case was fundamentally hopeless from the outset. In other words, that there was no possible way defendant could have convinced the jury to acquit him. I am not prepared to draw that conclusion, any more than I am prepared to conclude that defendant will necessarily be successful on retrial. I would therefore hold that the trial court abused its discretion by denying defendant a new trial. I would grant defendant that new trial.
Of note, “forgery” is a distinct crime that entails making a document purport to be something it is not. People v Hodgins, 85 Mich App 62, 64-65; 270 NW2d 527 (1978). However, throughout this matter, the word “forged” or “forgery” has also, confusingly, been used in a more colloquial sense to refer to the allegation that defendant placed Lehman’s signature on various documents without Lehman’s knowledge or approval. Strictly speaking, a fictitious signature on a document is not per se the crime of “forgery” unless doing so makes the instrument itself a. lie. Id. at 66-67; see also Bank of Detroit v Standard Accident Ins Co, 245 Mich 14, 17-23; 222 NW 134 (1928). That being said, a false signature made without authority certainly can make a writing a lie and thus constitute forgery. People v Susalla, 392 Mich 387, 392-393; 220 NW2d 405 (1974). “The key appears to be that the writing itself is a lie.” Id. (emphasis added). Unfortunately, the phraseology of a false signature made by one person purporting to be that of another as “forged” is deeply embedded in common parlance and makes this discussion more difficult to follow than it might otherwise be.
The majority states that “this does not explain why defendant would direct two clients to write their checks to Schrauben Management.” I disagree. If Lehman and defendant were both involved in such a dubious payback scheme, the obvious implication is that defendant would have directed checks to be made out to Schrauben Management because defendant and Lehman had agreed to such occurrences as part of that scheme. While I do not, of course, know if that is actually what happened, the logical significance appears to me quite obvious.