Opinion
No. 342159
12-04-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. VAN NOAH PERRY, Defendant-Appellant.
UNPUBLISHED Wayne Circuit Court
LC No. 17-000715-01-FH Before: O'BRIEN, P.J., and TUKEL and LETICA, JJ. PER CURIAM.
Defendant appeals as of right his jury trial conviction of first-degree retail fraud, MCL 750.356c(2). Defendant was sentenced as a fourth habitual felony offender, MCL 769.12, to 46 months' to 15 years' imprisonment. We affirm.
This case arises out of retail fraud in a Sears store in the Fairlane Town Center in Dearborn, Michigan. Kevin Williams, an asset protection associate with Sears, was monitoring the security cameras when he noticed defendant behaving in a manner which indicated he would try to steal something. Williams notified Katrina Hudson, the area manager for asset protection, and left the office to surveil defendant from the store floor.
While watching the security cameras, Hudson observed defendant take five pairs of sweatpants, two sweat jackets, and six sweatshirts off the clothing racks and put them in his shopping cart. Defendant then walked out of Sears without paying for the clothing. Williams confronted defendant outside Sears and brought him back to the loss prevention office. Williams and Hudson prepared a list of all the clothing that defendant stole, which totaled $773. The clothing prices were marked-down at the time of the thefts. The Sears office later asked Hudson to prepare another list using the sale prices of the clothing, which totaled $302.69.
In the absence of criminal history which could enhance his status to a habitual offender, defendant would have been charged with second-degree retail fraud, MCL 750.356d(1)(b), because the value of the clothing he stole was between $200 and $1,000. However, because defendant previously had been convicted of second-degree retail-fraud, he was charged under the enhancement provision of the first-degree retail fraud statute, MCL 750.356c(2). Defendant also was provided notice of a sentence enhancement as a fourth habitual offender, MCL 769.12, because he had a total of 14 prior felony convictions.
Prior to trial, defendant filed a motion to dismiss the habitual offender enhancement. Defendant made a two-step argument: as far as retail fraud is concerned, only first-degree retail fraud is a felony, and it requires that a defendant steal property worth $1,000 or more, MCL 750.356c(1)(a); here, the property undisputedly was worth less than $1,000. However, second-degree retail fraud becomes first-degree retail fraud, even if the property stolen is worth less than $1,000, if a defendant had one or more prior convictions for retail fraud. MCL 756.356(c)(2). Defendant had such a criminal history. On that basis, his shoplifting offense became a felony, and the felony in turn resulted in a fourth-habitual offender enhancement given defendant's criminal history. Nevertheless, defendant argued that the Legislature did not intend for such enhancements to form the basis for a felony conviction for shoplifting, but rather that only the actual stealing of $1,000 or more of merchandise would suffice. The trial court denied defendant's motion, stating that, while the charge "normally" would have been a misdemeanor, his charge was enhanced to a qualifying felony because of his prior conviction.
At the conclusion of his trial, a jury found defendant guilty as charged. This appeal followed.
I. HABITUAL OFFENDER
Defendant argues that the trial court abused its discretion in denying his motion to dismiss the habitual offender enhancement. We disagree.
This Court reviews "a trial court's decision on a motion to dismiss charges against a defendant for an abuse of discretion." People v Nicholson, 297 Mich App 191, 196; 822 NW2d 284 (2012) (citation omitted). "A trial court may be said to have abused its discretion only when its decision falls outside the principled range of outcomes." People v Blackston, 481 Mich 451, 460; 751 NW2d 408 (2008) (citation omitted). And we review matters of statutory interpretation de novo. People v Gardner, 482 Mich 41, 46; 753 NW2d 78 (2008).
First-degree retail fraud is codified in MCL 750.356c, and provides in pertinent part:
A person who violates [MCL 750.356d(1)] and who has 1 or more prior convictions for committing or attempting to commit an offense under this section or [other sections, including MCL 750.356d(1)] is guilty of retail fraud in the first degree. [MCL 750.356c(2).]And MCL 750.356d(1) provides that a person is guilty of second-degree retail fraud when, "[w]hile a store is open to the public, [that person] steals property of the store that is offered for sale at a price of $200.00 or more but less than $1,000.00." MCL 750.356d(1)(b).
Defendant states that he ordinarily would have been charged with second-degree retail fraud because the value of the items purportedly stolen was greater than $200 but less than $1,000. However, because of a prior conviction for second-degree retail fraud, defendant's offense was enhanced to first-degree retail fraud. Additionally, defendant was charged as a fourth habitual offender because of his 14 prior felony convictions. Defendant argues that the additional sentence enhancement as a fourth habitual offender was improper.
However, this precise issue has already been addressed by this Court in People v Eilola, 179 Mich App 315; 445 NW2d 490 (1989). The circumstances in Eilola are strikingly similar from those in the present case. The defendant in Eilola stole a sleeping bag from a store. While this type of conduct normally would constitute second-degree retail fraud, a misdemeanor, the offense was elevated to felony first-degree retail fraud due to the defendant's prior larceny in a building conviction. Id. at 317. The defendant also was subject to an enhanced sentence as a habitual offender. Id. The Eilola Court held that this type of dual charge-elevation and sentence-enhancement was permissible. Id. at 325.
While defendant references Eilola, he does not explain why that case is not dispositive. Instead, defendant asserts that this Court should follow the rationale of People v Fetterley, 229 Mich App 511; 583 NW2d 199 (1998). In Fetterley, the defendant was convicted of possession with intent to deliver methamphetamine, possession with intent to deliver marijuana, and possession of methamphetamine. Id. at 514. The defendant also was found to have been a third habitual offender. Id. The defendant's sentences were enhanced under the habitual offender statute and several controlled substance provisions, which also provided for enhanced sentences. Id. at 525. This Court concluded it was inconsistent with the Legislature's intent to allow dual enhancement under both the sentence-enhancement provisions of the habitual offender statute and the controlled substance statutes. Id. at 525, 540-541. Defendant's reliance on Fetterley is misplaced. Fetterley only prohibits double enhancement of sentences. The Court drew a sharp distinction between legislative schemes which elevated offenses, and then allowed an elevated offense to serve as a predicate to an enhanced sentence from doubly enhanced sentences:
Where the legislative scheme pertaining to the underlying offenses elevates the offense, rather than enhances the punishment, on the basis of prior convictions, both the elevation of the offense and the enhancement of the penalty under the habitual offender provisions is permitted. [Id. at 540-541.]
In reaching that conclusion, the Fetterley Court specifically cited and discussed Eilola. Again, only schemes which doubly enhance sentences rather than substantive offenses are prohibited, and the Court noted that the retail fraud statute falls in the latter category. Id. at 535-536.
[W]hile both the controlled substances act and the general habitual-offender statutes use prior convictions to establish the severity of punishment for the repeat commission of criminal acts, the first-degree retail fraud statute uses prior convictions to establish the severity of the offense. Thus, because different statutory schemes are involved, a conflict does not arise from the mutual application of the two statutes to the same prior conviction. [Id. at 536.]
This type of offense enhancement is precisely the circumstances presented in the instant case. Defendant's offense was elevated to first-degree retail fraud due to his prior instances of retail fraud, and then his sentence was enhanced under the habitual offender statute; that course of events is expressly permitted by Fetterley and Eilola. Because defendant's sentence was not enhanced twice, the trial court did not abuse its discretion in declining to dismiss the habitual offender sentence enhancement.
II. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the prosecution failed to present sufficient evidence to allow the jury to convict him of first-degree retail fraud. We disagree.
"A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, viewing the evidence in the light most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v Gaines, 306 Mich App 289, 296; 856 NW2d 222 (2014). In doing so, any conflicts in the evidence are resolved in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
As already noted, a person who has previously committed second-degree retail fraud is guilty of first-degree retail fraud if, "[w]hile a store is open to the public, [that person] steals property of the store that is offered for sale at a price of $200.00 or more but less than $1,000.00." MCL 750.356d(1)(b).
Defendant only challenges the sufficiency of the evidence pertaining to the value of the clothing he stole, as there purportedly were discrepancies between what the security footage showed defendant took, the loss prevention report prepared by Hudson and Wilson, and a report prepared by Corporal Anthony Ventura of the Dearborn Police Department. Defendant's argument is without merit.
Hudson testified that she observed defendant take five pairs of sweatpants, two sweat jackets, and six sweatshirts, for a total of 13 items. The prosecution showed the jury portions of the surveillance video that showed defendant taking the clothing items and putting them in his cart. Williams testified that he only personally observed defendant take two pairs of sweatpants, but there were 13 or 14 items that he listed in the loss prevention report. In Corporal Ventura's report, he listed nine pairs of sweatpants. Detective Lindsey Campeau was the Dearborn Police Officer who read over Corporal Ventura's report, the loss prevention report, and watched the video before writing a warrant request. In Detective Campeau's report, she wrote that defendant put items in his bag, which the video did not show. By highlighting the different accounts regarding the number of items that defendant stole, defendant argues that because the precise number of clothing items could not be agreed upon, the value of the items was not sufficiently established.
While there is conflicting testimony regarding the exact number of sweatpants that defendant stole, this fact is inconsequential to the charge of retail fraud. The prosecution was required to introduce evidence of the total value of the clothing that defendant stole, not the precise number of clothing items. Hudson and Corporal Ventura both testified that the full retail value of the clothing was $773. But more importantly, Hudson also testified that the sale value of the clothing was $302.69. Thus, based on Hudson's observations and the calculation of the total sales price of the items found in defendant's cart, which was greater than $200 but less than $1,000, there was sufficient evidence for the jury to conclude beyond a reasonable doubt that defendant committed first-degree retail fraud, as a repeat retail fraud offender.
The retail fraud statute provides that a person is guilty of second-degree retail fraud if the person "steals property of the store that is offered for sale at a price of $200.00 or more but less than $1,000.00." MCL 750.356d(1)(b) (emphasis added). Thus, offered selling price, rather than the number of items taken, is what is relevant. --------
Affirmed.
/s/ Colleen A. O'Brien
/s/ Jonathan Tukel
/s/ Anica Letica