PEOPLE
v.
CHAPPELLE
Docket No. 52632.
Michigan Court of Appeals.
Decided March 18, 1982.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas J. Rasdale, Assistant Prosecuting Attorney, for the people.
Lynn Chard, Assistant State Appellate Defender, for defendant on appeal.
Before: MacKENZIE, P.J., and M.F. CAVANAGH and D.F. WALSH, JJ.
PER CURIAM.
Defendant was convicted, after a bench trial, on multiple charges of larceny by false pretenses, MCL 750.218; MSA 28.415. Defendant was sentenced to serve concurrent sentences of from five to ten years in prison on each charge and now appeals by right.
The first issue defendant raises on appeal is whether the prosecutor may properly charge defendant with both larceny by false pretenses and issuance of checks without sufficient funds where the evidence presented at trial showed that the five bad checks totaled more than $2,000 and indicated that defendant had an elaborate plan to defraud the businesses where the merchandise was purchased. Defendant argues that the prosecutor *367 may never charge a defendant with larceny by false pretenses when the "false pretense" is merely incidental to the passing of a check with insufficient funds.
The prosecutor has the right to exercise broad discretion in determining under which of two applicable statutes the prosecution will be instituted. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 683; 194 NW2d 693 (1972). However, we must distinguish between cases where the two possibly applicable statutes prohibit the same conduct and cases where the statutory crimes are distinct. People v LaRose, 87 Mich. App. 298, 302; 274 NW2d 45 (1978). If the statutes are distinct, the prosecutor has discretion to charge the greater offense. If the statutes prohibit the same conduct, the specific statute, enacted subsequent to the more general statute, prevails. Id., 303, People v McFadden, 73 Mich. App. 232, 235; 251 NW2d 297 (1977).
Defendant relies on the case of People v LaRose, supra, for the proposition that she should have been prosecuted under the statute prohibiting delivery of an insufficient funds check rather than the false pretenses statute. In LaRose, the defendant presented an insufficient funds check at a bank and was subsequently convicted of obtaining money by false pretenses. The Court held that the statute regarding insufficient funds check is a specific statute and is therefore an exception to the more general false pretenses statute. Since the Court found that the defendant's only "false pretense" was his false representation that he had funds on deposit from which the check would be paid, the Court held that the prosecutor was bound to charge defendant under the insufficient funds statute, which fit the particular facts, and *368 not under the more general false pretenses statute. However, the Court added an important caveat, which is applicable to this case:
"Although presentation of an insufficient funds check may, if accompanied by additional false representation, justify conviction under the false pretenses statute (see People v Vida [2 Mich. App. 409; 140 NW2d 559 (1966)], supra), we hold that the instant facts preclude prosecution under that statute." Id., 304. (Emphasis added.)
Thus, the Court's decision turned on the fact that the only "false pretense" shown was the presentation of an insufficient funds check rather than proof of false representation in addition to the presentation of the bad check.
The instant case can be distinguished from LaRose. Here, there was ample evidence of a much broader scheme by defendant to defraud merchants who accepted the bad checks. A false address, a false driver's license, and the existence of a bogus company, with identification in the form of business cards, all point to a much broader intent to defraud than is necessary to sustain a conviction under the insufficient funds statute. The proof of false representation, in addition to the presentation of an insufficient funds check, justified defendant's conviction under the false pretenses statute. People v Vida, 2 Mich. App. 409; 140 NW2d 559 (1966), aff'd 381 Mich. 595; 166 NW2d 465 (1969), People v Niver, 7 Mich. App. 652; 152 NW2d 714 (1967).
Furthermore, we note that a conviction under the false pretenses statute requires proof of an additional element not required for a conviction under the statute proscribing insufficient funds checks. For a person to be guilty of false pretenses, there is a requirement that the false pretenses *369 result in the defendant's receipt of property or money. However, for a person to be guilty of delivering an insufficient funds check, there is no requirement that the person actually receive any property or money. People v Jacobson, 248 Mich. 639, 642; 227 N.W. 781 (1929), People v Henson, 18 Mich. App. 259, 261; 171 NW2d 26 (1969). Where a statute requires proof of an additional element that another statute does not require, the prosecutor may properly charge the defendant under the statute which requires proof of the additional element. People v Graves, 31 Mich. App. 635, 637; 188 NW2d 87 (1971).
The second issue defendant raises on appeal is whether her conviction for false pretenses and an insufficient funds check regarding a check delivered to Herman Hiss & Company should be reversed where there was no evidence presented at trial that the company's employee who took the check relied on the check or anything the defendant said, nor was there evidence that the check was dishonored or that the company lost its property. We reverse defendant's false pretenses conviction on this charge and reduce it to a conviction for presenting an insufficient funds check.
It is no defense to a charge of larceny by false pretenses to contend that there was no loss of property because the property was subsequently recovered. The return of the merchandise does not absolve defendant of the criminal consequences of her acts. Any larceny crime is completed once a taking has been accomplished. People v Johnson, 28 Mich. App. 10, 17; 183 NW2d 813 (1970).
The essential elements of the crime of larceny by false pretenses are: (1) an intent to defraud; (2) the use of false pretenses or false representations regarding an existing fact; and (3) the accomplishment *370 of the intended fraud by means of such false pretenses. MCL 750.218; MSA 28.415, People v Lee, 259 Mich. 355, 356; 243 N.W. 227 (1932). Reliance is an essential element of the offense of larceny by false pretenses, and such reliance must be to the detriment of the victim. People v Schieda, 99 Mich. App. 420, 423; 297 NW2d 688 (1980), People v Wilde, 42 Mich. App. 514, 519; 202 NW2d 542 (1972). Here, the evidence presented at trial is absolutely clear that the store clerk who took the defendant's check did not rely on anything that the defendant's said or did in the accomplishment of the defendant's fraud. Rather, the clerk accepted the defendant's check because the store's owner had approved it. Because there is insufficient evidence regarding the element of reliance, defendant may not be convicted on the false pretenses count.
However, there is ample evidence to sustain a conviction on an insufficient funds charge. The statute has three elements: (1) an intent to defraud; (2) the drawing of a check for the payment of money upon a bank; and (3) knowledge by the drawer of the check that the bank account has insufficient funds or credit for the payment of such check. MCL 750.131; MSA 28.326, People v Jacobson, supra. The statute does not appear to require that the check be presented and dishonored by the drawee bank. However, even if dishonor is required, there was more than sufficient evidence here to show that the check was dishonored by the bank. The evidence from the personnel of the bank showed that the account which was opened by defendant was opened with only a $40 deposit. Defendant never placed additional money in that account. The check in question to Herman Hiss & Company was for over $700. The bank statement *371 of defendant's account admitted into evidence indicates that all of the checks written by the defendant, except for the first check, were dishonored and returned by the bank. The logical inference which follows is that the check written to Herman Hiss & Company was in fact dishonored because the account had insufficient funds.
Defendant next argues that her conviction should be reversed because the trial court erroneously admitted evidence of alleged similar bad acts of the defendant along with those of her companion. The trial court heard testimony from the security guard at the Hampton Square Mall that on November 25, 1979, defendant and her companion were passing bad checks at the mall. The prosecutor failed to connect the testimony given by the security guard with any relevant testimony pertaining to the defendant or the crimes charged.
First, since the defendant never moved to strike the security guard's testimony, the issue is not preserved for appeal. People v Myers, 30 Mich. App. 409, 433; 186 NW2d 381 (1971). In Myers, we set down the general rule that failure to object and make a motion to strike testimony which has been admitted subject to being connected up precludes a defendant from claiming error on appeal.
Second, we find the erroneous admission of the security guard's testimony, if error, to be harmless beyond a reasonable doubt. The trial court did not rely on any of the testimony in question in concluding that the defendant was guilty of the crimes charged.
Defendant next argues that the trial judge erroneously admitted prejudicial and irrelevant evidence in the form of business cards, a death certificate, and the fact that the defendant and her daughter had formed a bogus company. We find *372 that the trial court properly admitted testimony concerning every act of the defendant pertaining to her scheme or plan for defrauding her victims. The prosecution is entitled to show the whole of the res gestae to prove intent in a fraud case, as was done in People v Vida, supra. Each item objected to at trial and on appeal was relevant under MRE 401 to show the defendant's intent and the scheme that she participated in, not only to victimize the merchants who took her checks but also to avoid being caught by carefully covering up her tracks with other bogus information. This evidence was admissible because it was relevant to defendant's intent to defraud. MCL 768.27; MSA 28.1050, People v Post, 73 Mich. App. 94, 95-96; 250 NW2d 556 (1976).
Lastly, defendant argues that her conviction for obtaining property by false pretenses with respect to an insufficient funds check issued at Lawrence Jewelers on November 23, 1979, must be reversed because the sales clerk could not identify the person who had given the bad check. The clerk testified that the defendant was one of two possible writers of the check. The parties entered into a stipulation that the signature on the Lawrence Jewelers check was the same as the known handwriting of the defendant. Further, there is the similar acts testimony that defendant wrote four other checks coming from the same checkbook, using the signature of the defendant. Circumstantial evidence alone may from the basis of a conviction. People v Haugabook, 23 Mich. App. 356, 358; 178 NW2d 556 (1970), People v Bratton, 20 Mich. App. 523; 174 NW2d 297 (1969). We find that the evidence was sufficient for the trial court to find that it was defendant who, in fact, offered the check to Lawrence Jewelers in furtherance of her scheme.
*373 Defendant's convictions for larceny by false pretenses are affirmed except for the case relating to the check passed to Herman Hiss & Company. In that case, we agree with the trial court that there was ample proof of guilt of issuance of an insufficient funds check and reduce that conviction accordingly. We remand to the trial court for resentencing on the insufficient funds conviction.