People v. Bearss

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED APRIL 17, 2001

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 115665

HEATHER ANNE BEARSS,

Defendant-Appellant.

___________________________________

BEFORE THE ENTIRE BENCH

KELLY, J.

After reversing defendant's conviction for obtaining

money by false pretenses,1 the Court of Appeals remanded this

case to the trial court with instructions to enter judgment on

a cognate offense. We granted leave to consider the

constitutionality of this remedy. After deliberation, we find

that the appellate court's directed verdict violates the Due

Process Clause of the Fourteenth Amendment to the United

1
MCL 750.218; MSA 28.415.

States Constitution. US Const, Am XIV.

I

Defendant Heather Anne Bearss and her friend, Tiffany

Ruppert, visited Glen's Market and Horizon Video in the

Petoskey area. The two women selected a substantial quantity

of merchandise from each store and paid with checks written by

Ms. Ruppert and drawn against her bank account.

The next day, Ms. Ruppert reported that the checks had

been lost or stolen. The police investigated and questioned

both Ms. Ruppert and defendant. Ms. Ruppert confessed her role

in the transactions, agreeing to testify against defendant in

exchange for a plea agreement.

Defendant was charged with two counts of taking over $100

by false pretenses. At the jury trial, Ms. Ruppert testified

that she and defendant mutually had devised the plan to write

checks for merchandise, report them as stolen, and then stop

payment on them. She told the jury that, after they made their

purchases, they went to defendant's home where defendant's

boyfriend burned the carbon copies of the checks. According to

Ms. Ruppert, defendant knew that Ms. Ruppert planned to report

the checks lost or stolen. She testified that the two women

wrote the checks in order to obtain merchandise without paying

for it.

The court instructed the jury on the elements of false

pretenses over $100, as well as those of the cognate offense

2

of writing three nonsufficient funds checks within ten days.

MCL 750.131a(2); MSA 28.326(1)(2). The jury found defendant

guilty of one count of taking by false pretenses over $100.

Defendant appealed. The Court of Appeals reversed her

conviction, finding insufficient evidence to support a

conviction of taking by false pretenses. Unpublished opinion

per curiam, issued July 16, 1999 (Docket No. 209568), pp 2-3.2

The panel remanded the case to the trial court, instructing it

to enter a judgment of conviction for writing three

nonsufficient funds checks in a ten-day period. The prescribed

term of imprisonment for this crime is less than that for

obtaining money by false pretenses.

Judge Murphy wrote separately. He raised concerns over

the constitutionality of remanding with instructions to enter

a judgment of conviction on a cognate offense. The jury, he

noted, never determined that defendant was guilty of the

lesser charge. The offense of writing three nonsufficient

funds checks within a ten-day period has several elements

differing from those of the false pretenses offense. Judge

Murphy opined that the Court of Appeals remedy encroached on

defendant's right not to be convicted except upon proof beyond

a reasonable doubt of committing the crime charged, citing In

2
The prosecutor did not appeal from the Court of Appeals

finding that insufficient evidence of taking by false

pretenses had been presented at trial. Thus, we have no

occasion to review that ruling today.

3

re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970),

and People v Goss, 446 Mich 587, 596; 521 NW2d 312 (1994).

Despite his reservations, Judge Murphy joined his

colleagues in remanding the case for entry of judgment on the

cognate offense. He did so because this Court had employed the

same remedy in several cases.3 If the remedy is

unconstitutional, Judge Murphy felt, it is this Court rather

than the intermediate appellate court that should make that

decision.4

We granted leave to determine whether an appellate court

may instruct a trial court to enter judgment on a cognate

offense on which a jury did not render a verdict. We find that

the appellate court's practice in this case was

unconstitutional.

II

The crimes of writing three nonsufficient funds checks

within ten days is a cognate offense of taking by false

3
Judge Murphy cited the following cases where the

Michigan Supreme Court remanded for entry of conviction on a

lesser charge: People v Brager, 406 Mich 1004; 280 NW2d 826

(1979), People v Kamin, 405 Mich 482; 275 NW2d 777 (1979),

People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), and

People v Thomas, 399 Mich 826; 249 NW2d 867 (1977).

4
A previous panel of the Court of Appeals similarly

questioned the constitutionality of remanding for entry of

judgment on a cognate offense. People v Goliday, 153 Mich App

29, 35-37; 394 NW2d 476 (1986). Like Judge Murphy, the judges

in Goliday declined to find unconstitutional a practice this

Court had previously employed. The parties in Goliday did not

seek leave from this Court to appeal from the ruling.

4

pretenses over $100.5 This Court has characterized cognate

offenses as "allied offenses of the same nature." People v

Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). A cognate

offense has some elements in common with the charged offense.

It also has elements not found in the charged offense. Id.

By contrast, all the elements of a necessarily considered

lesser offense are contained within those of the greater

offense. Thus, "it is impossible to commit the greater without

first having committed the lesser." Id., citing 4 Wharton,

Criminal Law & Procedure, § 1799.

The elements of taking by false pretenses are:

(1) a false representation as to an existing

fact; (2) knowledge by the [accused] of the falsity

of the representation; (3) use of the false

representation with an intent to deceive; and (4)

detrimental reliance on the false representation by

the victim. [In re People v Jory (Genesee

Prosecutor v Genesee Circuit Judge), 443 Mich 403,

412; 505 NW2d 228 (1993).]

The elements of writing three nonsufficient funds checks

within ten days, as found in the standard jury instructions,

are: The accused (1) wrote three separate checks, drafts, or

money orders within ten days; (2) did not have sufficient

funds available in the bank to cover them; (3) knew that he

did not have sufficient funds available; and (4) when he

5
A cognate offense may or may not carry smaller penalties

than those of the crime charged. Today's opinion applies to

all offenses that may be characterized as cognate offenses of

the offense charged, not merely "lesser cognate offenses."

5

wrote or delivered each of the checks, drafts, or money

orders, intended to defraud or cheat someone. See CJI2d 29.8.

It is possible to commit the crime of taking by false

pretenses without writing three nonsufficient funds checks

within a ten-day period. Hence, the offense of writing

nonsufficient funds checks is not necessarily included within

the offense of taking by false pretenses. Both offenses

involve an intent to defraud someone; therefore they are

cognate offenses.

This Court discussed necessarily included lesser offenses

and cognate lesser offenses in People v Chamblis, 395 Mich

408; 236 NW2d 473 (1975).6 Chamblis considered whether a trial

judge may instruct a jury about lesser offenses on its own

motion. We held that the late addition of a charge of a

necessarily included lesser offense does not infringe a

defendant's right to due process. Id. at 417. The ability to

defend against the prosecutor's charges is not impaired, since

the accused is required to defend against the same evidence as

when charged with only the greater offense.

6
In People v Robert Stephens, 416 Mich 252, 260-261; 330

NW2d 675 (1982), this Court overruled Chamblis in part on

grounds unrelated to the present case. Specifically, we

overruled Chamblis' adoption of the "misdemeanor cutoff rule,"

which provided that a jury should be instructed on lesser

included offenses if the evidence supported them. If the

charged offense is punishable by incarceration for over two

years, the rule continued, a court may not instruct on lesser

included offenses carrying sentences under one year. See

Chamblis, supra at 429.

6

 However, the addition of a cognate offense may require an

accused to present additional or different defenses to rebut

the evidence the prosecutor offers on the additional elements.

Id. at 418. Due process concerns may arise if the judge,

alone, decides to instruct the jury on a cognate offense.

Chamblis illustrates the constitutional difficulties that

arise when cognate offenses are equated with necessarily

included lesser offenses. The remedy under consideration in

this case activates those difficulties. It fails to recognize

that the prosecutor was obliged to prove different elements in

order to obtain a conviction of the cognate offense.

III

The state may not "deprive any person of life, liberty or

property, without due process of law . . . ." US Const, Am

XIV. In serious criminal cases, a trial by jury is guaranteed.

US Const, Am VI. The Sixth Amendment right to a jury trial is

protected by the Fourteenth Amendment, and thus, applies to

the states. Duncan v Louisiana, 391 US 145, 156; 88 S Ct 1444;

20 L Ed 2d 491 (1968).

Together, the Sixth and Fourteenth Amendments

"indisputably entitle a criminal defendant to 'a jury

determination that [he] is guilty of every element of the

crime with which he is charged, beyond a reasonable doubt.'"

Apprendi v New Jersey, 530 US 466, ___; 120 S Ct 2348, 2356;

147 L Ed 2d 435 (2000). In cases where the defendant invokes

7

the right to a trial by jury, "the jury, not the judge,

renders the verdict." People v Duncan, 462 Mich 47, 54; 610

NW2d 551 (2000).7

The remedy employed by the Court of Appeals in this case

runs afoul of these constitutional principles. As discussed

above, cognate offenses contain elements not found in the

charged offense. When a jury has rendered a verdict on the

charged offense, it has not necessarily rendered one on a

cognate offense. It may have left the additional elements of

the cognate offense unaddressed.

In the case under consideration, the Court of Appeals

effectively directed a guilty verdict on the additional

elements of the cognate offense. A court may not direct a

verdict of guilty, either in whole or in part. Goss, supra at

596-597, ns 12 & 13. Although the jury convicted defendant of

taking by false pretenses, an appellate court may not assume

that the jury would have found her guilty of an offense

comprised of different elements.

For example, the offense of writing nonsufficient funds

checks within ten days requires a finding that the defendant

knew sufficient funds were not available in the account. The

7
Duncan found structural error requiring reversal when a

jury was not instructed regarding any of the elements of the

crime charged. Id. at 54. When a jury is not informed of any

of the elements, it cannot fulfill its function of rendering

a reliable verdict. Id. at 54-55.

8

offense of taking by false pretenses does not require this

element. Did defendant know that the account did not contain

sufficient funds? Since the jury never ruled on the cognate

offense, we do not know if it discounted her claim that she

did not know and favored Ms. Ruppert's testimony that she did.

The jury easily could have based its verdict on evidence of

defendant's plan to falsely report the checks as stolen and

stop payment. The Due Process Clause requires that the trier

of fact, rather than an appellate court, decide whether

defendant knew that the account lacked sufficient funds.

IV

The constitutional analysis differs when the lesser

offense is one necessarily included within the greater. See

Chamblis, supra. Unlike a verdict on a cognate offense, a

jury's verdict regarding a necessarily included lesser offense

always is encompassed in the verdict on the greater offense.

Thus, our opinion today does not impede an appellate court

from remanding for entry of judgment of a necessarily included

lesser offense. The United States Supreme Court has approved

the use of this remedy in cases "when a conviction for a

greater offense is reversed on grounds that affect only the

greater offense." Rutledge v United States, 517 US 292, 306;

116 S Ct 1241; 134 L Ed 2d 419 (1996).

9

 V

In the past, we have remanded for entry of conviction on

a lesser cognate offense. Five cases in which that occurred

are People v Billy Stephens, 407 Mich 402; 285 NW2d 664

(1979), People v Brager, 406 Mich 1004; 280 NW2d 826 (1979),

People v Kamin, 405 Mich 482; 275 NW2d 777 (1979), People v

Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), and People v

Thomas, 399 Mich 826; 249 NW2d 867 (1977). However, all five

cases are distinguishable.8

In each of them, the trial court failed to give a

requested instruction on a cognate lesser offense. The jury

returned a guilty verdict on a greater offense for which there

was sufficient evidence. The appellate court determined that

the failure to instruct was error, and remanded for entry of

a conviction on the cognate lesser offense, a remedy that had

been requested. Given the juries' findings of guilt on the

greater offenses, the defendants in those cases could not

argue plausibly that the juries' consideration of the cognate

lesser offenses would have led to acquittals.

Conversely, in the instant case, the appellate court's

remedy cannot fairly be said to have benefited defendant.

Where, as here, a conviction on the greater offense was

secured on insufficient evidence, a defendant might argue

8
Because they are distinguishable, we make no comment on

their continued viability.

10

persuasively that the jury might have acquitted on the cognate

offense, as well. To permit appellate courts to direct a

conviction on cognate offenses is to invite violations of the

right to a jury determination of every element of the crime

charged. Hence, we find these five cases inapposite.

Conclusion

Before today, we have not taken the occasion to address

the constitutionality of directing convictions on cognate

offenses when insufficient evidence of the charged offense had

been admitted at trial. In light of our analysis, we now

disavow the practice with rare exceptions. We hold that, if

an appellate court determines that insufficient evidence was

presented to support a conviction, it may not direct a

conviction on a cognate offense on remand unless (1) there was

sufficient evidence to support a conviction of the lesser

offense and (2) the appellate court can unequivocally state

that the jury's verdict must have included a specific finding

of every element necessary to support a conviction of the

cognate offense.9

We reverse the judgment of the Court of Appeals in part.

The prosecutor did not appeal from the Court of Appeals

determination that there is insufficient evidence to support

9
To the extent that People v Chappelle, 114 Mich App 364;

319 NW2d 584 (1982), conflicts with our holding today, it is

overruled.

11

the jury's verdict on the charge of taking by false pretenses.

Therefore, we leave that aspect of the opinion intact. We

vacate the instruction to the trial court to enter a judgment

of conviction on the lesser cognate offense of writing three

nonsufficient funds checks within a ten-day period. The matter

is remanded to the trial court for further proceedings

consistent with this opinion.

CORRIGAN , C.J., and CAVANAGH , WEAVER , TAYLOR , YOUNG , and

MARKMAN , JJ., concurred with KELLY , J.

12