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holding that a constitutional violation did not occur in the context of a 27-month pretrial delay
Summary of this case from People v. PiotrowskiOpinion
No. 204590.
Submitted May 20, 1999, at Marquette.
Decided October 12, 1999 at 9:05 a.m. Updated January 25, 2000.
An appeal from Marquette Circuit Court, Michigan, LC No. 95030730 FH.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Gary L. Walker, Prosecuting Attorney, and Terrence Dean, Civil/Appellate Counsel, for the people.
Karen L. Alholm, for the defendant on appeal, Marquette.
Before: Whitbeck, P.J., and Markman and O'Connell, JJ.
A jury convicted defendant Janice Cain of larceny over $100, MCL 750.356; MSA 28.588, for an extended series of events in which Cain took approximately $250,000 from the late Marguerite "Peg" Bergdahl, an elderly woman for whom Cain acted as a limited guardian. The trial court sentenced Cain to two to five years' imprisonment, but she is free on bond pending appeal. We affirm the conviction and sentence in this case.
At the time of the offense in this case, before the Legislature passed 1998 PA 301, this statute read:
Any person who shall commit the offense of larceny, by stealing, of the property of another, any money, goods or chattels, or any bank note, bank bill, bond, promissory note, due bill, bill of exchange or other bill, draft, order or certificate, or any book of accounts for or concerning money or goods due or to become due, or to be delivered, or any deed or writing containing a conveyance of land, or any other valuable contract in force, or any receipt, release or defeasance, or any writ, process or public record, if the property stolen exceed the value of $100.00, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than $2,500.00. If the property stolen shall be of the value of $100.00 or less, such person shall be guilty of a misdemeanor.
Bergdahl died in October 1996, before the trial in this case.
I. Factual Background and Procedural History
A. Bergdahl
Bergdahl's friends and acquaintances, some of whom knew her for more than fifty years, described her as a "meticulous" dresser, a "true lady," a "sweetheart," "very capable," an independent decisionmaker, and "careful" with her money. Nevertheless, after Roger, Bergdahl's husband of thirty-seven years, and her mother died within a month of each other in late fall 1988, her friends noticed changes in her demeanor, mental acuity, and outward appearance. According to Goldie Paul, a friend from grade school, Bergdahl began "deteriorating," seemed "very depressed," and uncharacteristically failed to notice when her clothing was in disarray. Paul discovered that Bergdahl had been swindled in several scams through the mail. Mary Trebilcock, a long-time acquaintance, also noted Bergdahl's tendency to fall for scams and her increasing forgetfulness. Mary Tasson, another acquaintance, observed that Bergdahl would repeat herself, sometimes mentioning the same thing six or seven times in an hour. Tasson noticed that Bergdahl had difficulty remembering people and seemed "confused."
Roger Bergdahl evidently did not tell Bergdahl that he saved a substantial amount of money during his lifetime.
Dr. James Tobin, M.D., Bergdahl's family physician, was also aware of her mental deterioration. He was generally concerned about her ability to "function at home and make decisions." Bergdahl, who had previously arranged for Mary Trebilcock's husband to hold a power of attorney to make certain financial and medical decisions for her, contacted Tobin on June 19, 1991, and requested that he prepare a letter regarding her mental status because she felt that she needed a guardian. Tobin wrote the letter and also noted in her medical record that Bergdahl wanted someone to manage her money for her.
William Trebilcock eventually rejected the power of attorney due to concerns about his own age and health, and how those factors might affect his ability to carry out the responsibilities under the power of attorney agreement.
Based on his review of Bergdahl's hospital records and personal observations, Tobin concluded that by June 1991 Bergdahl had "impaired mental capacity" and suffered from "senile dementia" or "chronic brain syndrome." He believed that her mental health problems may have been attributable to several short episodes in the 1980's when she had poor blood circulation to her brain. Some of Bergdahl's acquaintances, such as Shelba Johnson, did not observe anything "abnormal" about Bergdahl's appearance, demeanor, or social skills well into 1992. However, four other physicians, two doctors in general practice who treated Bergdahl and two psychiatrists testifying as experts, agreed with Tobin that Bergdahl had either Alzheimer's disease or a form of senile dementia by the summer of 1991. Although these doctors could not pinpoint a date at which Bergdahl became incompetent, they noted that her competence was likely intermittent that summer and certainly grew worse with time. As becomes apparent later in this opinion, Bergdahl's competency is critical to whether she could have granted Cain consent to take the money at issue.
B. The Relationship Between Bergdahl and Cain
The record does not indicate precisely when Bergdahl met Cain. We do, however, know that Cain was acquainted with Roger Bergdahl, although several witnesses testified that Bergdahl may not have liked Cain while Roger Bergdahl was alive. In any event, Cain and Bergdahl became better acquainted after Roger Bergdahl's death in 1988 when Cain gave Bergdahl a dog named Jet, whom Bergdahl adored.
Cain began to take care of Bergdahl, who did not have children, taking her to church and including her in holiday celebrations. Cain assisted Bergdahl by driving her around town, taking her to doctor's appointments and occasionally doing tasks like grocery shopping or arranging for household repairs; other hired caregivers attended to more personal aspects of Bergdahl's care. Cain's assistance gave her increasing control over Bergdahl's money.
According to Tobin and notes taken by nurses at Bell Memorial Hospital, by early June 1991 Cain was aware that Bergdahl was experiencing episodes of dementia. Cain expressed concern about Bergdahl's mental status to medical staff and even called the probate court in June 1991 to inquire about guardianship for Bergdahl. In early July 1991, Cain took Bergdahl to see Bergdahl's attorney, David Savu, to draft a power of attorney and a new will. Savu finished drafting the power of attorney giving Cain authority to make medical and financial decisions for Bergdahl's benefit in September 1991. After going through several drafts, including making changes Bergdahl allegedly proposed but which Cain typed, Savu finalized the new will in December 1991, making Cain the personal administrator and leaving Cain the residue of the estate; at that time Savu did not know that the residue of Bergdahl's estate likely totaled hundreds of thousands of dollars.
Meanwhile, in late July 1991, Bergdahl purportedly agreed to allow Cain to "borrow" as much of Bergdahl's money as Cain desired. The writing for this agreement said:
An Agreement Between Marguerite G. Bergdahl and Janice C. Cain
I Marguerite G. Bergdahl do here by [sic] give permission to Janice C. Cain to have access to and use any of my personal money for her professional and/or personal use.
The payback schedule will commence upon the first anniversary of the opening of her business, in an amount affordable to her business.[]
Cain started a bridal consulting and balloon business.
This is due to her not taking payment for any of her work done for me.
Both Cain and Bergdahl signed the document and dated it July 30, 1991. Two witnesses, Trisha Signs and Jackie Caskey signed at the bottom of the agreement, also dating their signatures as July 30, 1991.
We say that Bergdahl "purportedly" agreed to allow Cain to borrow this money because, in addition to the question of capacity to consent, there is some dispute in the record regarding the circumstances under which she and Cain executed the writing. One of the witnesses, Trisha Signs, testified that she did not witness Bergdahl sign the agreement; in fact, Signs did not recall any signatures on the page at the time she signed her name to the document. Rather, Bergdahl waited in the car outside Signs' home one evening while Signs and Cain went in the home to "witness" the document's execution. Signs did not remember the document looking as it did in court. She recalled, but could not describe, several other pages, perhaps a cover sheet or letter to Bergdahl's attorney, attached to the agreement. Furthermore, she did not believe that she actually signed the document on July 30, 1991, but that Cain asked her to write that date. In contrast, Jackie Caskey testified that she was present when Bergdahl signed the document and that she appeared to sign the document willingly, having said, "[I]t's my money, I will do as I please." Caskey, who admitted that she did not read the written agreement, said that she did not have any reason to believe that she witnessed Bergdahl and Cain sign the writing on any date other than July 30, 1991. Regardless of the legal validity of this document, it had an immediate effect on Bergdahl's finances.
Lisa Blondeau, a teller at the Ishpeming Credit Union in July 1991, said that she was working July 30, 1991, the same day Cain and Bergdahl signed the writing, when Cain walked in shortly before closing time. Cain had three checks totaling more than $147,000 issued by other financial institutions and made out to Bergdahl. Cain asked Blondeau to open joint checking and savings accounts in Cain's name and Bergdahl's name. Blondeau originally objected because the bank was only open for business for another five minutes and Bergdahl was not present. However, Cain persuaded Blondeau to open the accounts by arguing that she did not want to carry the checks with her because she might lose them and promising to bring Bergdahl into the bank the next day to sign the paperwork for the accounts. Bergdahl apparently did sign the account papers at some later date.
The following year, in July 1992, Bergdahl's cousin, Judy Spencer, filed a petition for guardianship in the probate court. The probate court appointed attorney Paul Peterson as Bergdahl's guardian ad litem late that summer and appointed Cain as Bergdahl's limited guardian in December 1992. Peterson, who did not know about the July 1991 agreement between Cain and Bergdahl when Cain was appointed guardian, said that the guardianship order only permitted Cain to use Bergdahl's money for Bergdahl's benefit. Peterson also clarified that the order made no provisions for Cain to be paid for her work as guardian.
Peterson recommended to the probate court that it appoint a conservator to audit Bergdahl's financial records because Cain had already been acting in what he considered to be a fiduciary role with Bergdahl for some time. The effort to find a conservator continued until August 1993, when the court appointed Richard Wilson as conservator over Cain's request to be appointed for that position. Cain placed Bergdahl in a nursing home that same month.
Wilson immediately began investigating Bergdahl's finances in August 1993. He asked Cain to produce all financial statements for Bergdahl, and she produced a complete set of statements for the joint account at the Ishpeming Credit Union, denying any knowledge of additional accounts. Wilson search Bergdahl's house for additional financial records and found statements from several banks evidencing a significant number of transactions for large sums of money. His discovery prompted him to ask Cain what she had purchased for Bergdahl with her money. According to Wilson, Cain was "vague" regarding how she had spent Bergdahl's money. He eventually learned that Cain had been paying herself $500 a month as a guardian, and she had failed to make any attempt to have Bergdahl's health insurance company reimburse her for bills. To Wilson, Cain appeared to have a cavalier approach to spending Bergdahl's money. In total, Wilson found approximately $203,000 in unexplained withdrawals from Bergdahl's accounts and could not locate approximately $20,500 in income that Bergdahl had earned from social security and other sources.
Wilson went to the police with his concerns about Cain's management of Bergdahl's finances in October 1993, when he learned that Bergdahl only had approximately $25,000 in liquid assets remaining. The probate court appointed Wilson as Bergdahl's guardian at that time. Although the police investigation commenced in October 1993, the prosecutor waited to file larceny charges against Cain until February 1995.
C. Proceedings Below
At trial, which began in May 1997, Lieutenant James Bjorne, a detective with the Marquette County Sheriff's Office, explained his investigation into Bergdahl's financial affairs. He tracked all transactions involving cash or other liquid assets over $500, determining what happened to Bergdahl's certificates of deposit, money market accounts, and other bank accounts. His testimony revealed that Cain essentially took the bulk of Bergdahl's assets and first deposited them into joint accounts listing both her name and Bergdahl's name. Then Cain either transferred money from those joint accounts to separate accounts, to which Bergdahl had no access, or Cain simply converted those "joint" assets into cash, which she spent. Using canceled checks, travelers' check stubs, credit card records, and account statements, Bjorne was able to demonstrate a direct flow of assets from Bergdahl to Cain.
Testimony by other individuals revealed how Cain used this money largely for her own benefit. For example, Cain's acquaintances noted that she refurbished her home with new carpeting, furniture, and appliances, bought a car, took trips, and gave uncharacteristically expensive gifts at Christmas. These spending habits stood in contrast to testimony by some of Bergdahl's live-in caregivers. They described Cain as controlling not only who could visit or speak with Bergdahl and the mail she read, but how much money Bergdahl spent on gasoline for trips around town, home repairs, and personal items. At least one caregiver commented that, during a particularly hot spell one summer, Cain refused to pay (with Bergdahl's money) for screens for the windows of Bergdahl's house to let in cooler air. There was no evidence that Cain deprived Bergdahl of basic necessities. However, Wilson testified that he took an appraiser through Bergdahl's house who determined that the furnishings inside were only worth about $7,000 in all, an insufficient value to demonstrate that Cain spent the missing money on Bergdahl.
Cain apparently adopted this somewhat miserly approach to spending Bergdahl's money for Bergdahl's benefit only after gaining direct access to the bank accounts and other liquid assets, as if it were her money. For instance, after Bergdahl went home from the hospital in June 1991, Cain asked Connie Brewer to take care of Bergdahl for three days. At the end of the three days Cain offered to pay Brewer for her efforts. Brewer declined, she explained, because Bergdahl's modest home gave her the impression that she was poor. Cain insisted on paying her, reportedly saying, "the f*****g bitch was loaded."
The jury found Cain guilty of a single charge of larceny over $100, MCL 750.356; MSA 28.588. Defense counsel declined the trial court's offer to poll the jury but the court, on its own initiative, asked the jurors if they unanimously agreed on a single transaction that constituted the offense. The jury foreperson stated that they all agreed that Cain's act of cashing a certificate of deposit, which occurred after the probate court appointed her guardian and informed her not to use Bergdahl's money for her own benefit, constituted larceny. The trial court subsequently sentenced Cain to two to five years in prison, an upward departure from the sentencing guidelines' recommendation of zero to nine months' imprisonment.
Although the foreperson did not mention the value of the certificate of deposit they agreed constituted the offense, it was likely a $6,799.44 certificate of deposit Cain cashed in December 1992. We note that Bergdahl's least valuable certificate of deposit was worth $1,634. Consequently, even if we thought there was a possibility that the jury agreed on a transaction involving a different certificate of deposit, it would still pass the $100 threshold for this larceny offense. MCL 750.356; MSA 28.588.
II. Prearrest Delay
A. Cain's Argument
Cain argues that the sixteen month delay between when Wilson went to the police with his suspicions and when the police arrested her for larceny requires this Court to overturn her conviction. Specifically, Cain contends that the time that elapsed prejudiced her because witnesses, especially Bergdahl, forgot pertinent information and Wilson threw away evidence while cleaning out Bergdahl's house. We disagree.
B. Preservation of the Issue and Standard of Review
Cain raised this issue at the hearing on her motion to dismiss, thereby preserving it for appeal. See generally People v Gilliam, 108 Mich. App. 695, 698; 310 N.W.2d 843 (1981) (a defendant should raise alleged violations of due process in the lower court, but if the violation is serious a failure to preserve the issue does not preclude review). A challenge to a prearrest delay implicates constitutional due process rights, which this Court reviews de novo. People v McIntire, 232 Mich. App. 71, 93; 591 N.W.2d 231 (1998), rev'd on other grounds ___ Mich. ___ (1999).
C. The Balancing Test
Michigan applies a balancing test to determine if a prearrest delay requires reversing a defendant's conviction because the state may have an interest in delaying a prosecution that conflicts with a defendant's interest in a prompt adjudication of the case. People v Bisard, 114 Mich. App. 784, 790; 319 N.W.2d 670 (1982). A defendant has the burden of coming forward with evidence of prejudice resulting from the delay while the prosecutor has the burden of persuading the reviewing court that the delay was not deliberate and did not prejudice the defendant. Id. at 791. The Court in McIntire, supra at 93, expressed the Bisard analysis in three parts:
[I]n order to establish a due process violation in the context of prearrest delay a defendant must first demonstrate prejudice. The prosecutor then bears the burden of persuading the court that the reason for the delay was sufficient to justify whatever prejudice results. In evaluating the reason for the delay, the court may consider the explanation for the delay, whether the delay was deliberate, and whether undue prejudice attached to the defendant. [Citations omitted.]
Michigan adopted this rule, in part, because the United States Supreme Court established "that the Due Process Clause plays a limited role in preventing unjustified preindictment or prearrest delay." People v White, 208 Mich. App. 126, 134; 527 N.W.2d 34 (1995), citing United States v Marion, 404 U.S. 307, 324-326; 92 S Ct 455; 30 L.Ed.2d 468 (1971).
D. Lack of Prejudice
We conclude that Cain's argument with respect to prejudice is simply too speculative to justify reversing her conviction. Although testimony at trial indicated that some witnesses could not give a specific date to different occurrences they remembered, Cain has not suggested how this slight memory failure worked to her disadvantage or why those dates were critical to her defense. In essence, without allegations that these witnesses forgot specific evidence helpful to Cain's defense, we cannot conclude that the absence of the evidence was prejudicial. Similarly, Cain has not delineated what evidence Wilson might have thrown away while cleaning Bergdahl's house, contrary to his testimony that he was careful to save anything that looked important. Although Wilson admitted to throwing away some canceled checks and financial records, he explained that they were from unrelated accounts or a time period when Cain apparently did not know Bergdahl. Therefore, we see no prejudice flowing from the prosecution's failure to retain these unidentified pieces of evidence due to a prearrest delay. In sum, Cain has failed to prove that this potential prejudice was "actual and substantial" to the extent that it "meaningfully impaired" her "ability to defend against the state's charges" and, as a result, "the disposition of the criminal proceeding was likely affected." People v Adams, 232 Mich. App. 128, 135; 591 N.W.2d 44 (1998), quoting Jones v Angelone, 94 F.3d 900, 907 (CA 4, 1996).
The argument regarding the failure to preserve Bergdahl's testimony on videotape is equally meritless. By the time Wilson went to the police with his information regarding Bergdahl's finances, the probate court had already declared Bergdahl incompetent and she was in a nursing home with, evidently, some form of advanced dementia. We see no reasonable likelihood that at that point in time Bergdahl would have been able to answer any questions. As a result, any prearrest delay that inhibited Cain from seeking out a recorded statement by Bergdahl to the effect that she fully consented to Cain taking the money would have been of no value because she was unlikely to have been able to obtain such a statement.
Furthermore, the prosecution argues that the delay was not done deliberately to prejudice Cain. Rather, the prosecution contends, and we agree, that investigating the numerous financial transactions at issue took a long time. Waiting to collect sufficient evidence of the charged offense was a proper consideration in the timing of the charge in this case. See Adams, supra at 133 n 5, quoting United States v Lovasco, 431 U.S. 783, 790-791; 97 S.Ct. 2044; 52 L.Ed.2d 752 (1977).
III. Speedy Trial
A. Cain's Argument
Cain argues that the twenty-seven month delay between her arrest and trial violated her right to a speedy trial under the federal and state constitutions. US Const, Am VI; Const 1963, art 1, § 20. Although we agree that the delay in this case was somewhat lengthy, we do not agree that it amounted to a constitutional violation.
B. Preservation of the Issue and Standard of Review
A defendant must make a "formal demand on the record" to preserve a speedy trial issue for appeal. People v Rogers, 35 Mich. App. 547, 551; 192 N.W.2d 640 (1971). Cain did make a demand for a speedy trial in her August 1996 motion to dismiss. Therefore, this issue is preserved. We review this constitutional issue de novo. People v Levandowski, ___ Mich. App. ___; ___ N.W.2d ___ (1999), slip op at 3.
C. The Balancing Test
A defendant has the right to a speedy trial under the federal and Michigan constitutions, which the Michigan Legislature statutorily enforces. US Const, Am VI; Const 1963, art 1, § 20; MCL 768.1; MSA 28.1024. This right ensures that a guilty verdict results only from a valid foundation in fact. See People v Eaton, 184 Mich. App. 649, 655-656; 459 N.W.2d 86 (1990). But see United States v MacDonald, 456 U.S. 1, 8-9 ; 102 S.Ct. 1497; 71 L.Ed.2d 696 (1982). Michigan courts apply the four-part balancing test articulated in Barker v Wingo, 407 U.S. 514; 92 S.Ct. 2182; 33 L Ed 2d 101 (1972), to determine if a pretrial delay violated a defendant's right to a speedy trial. See People v Collins, 388 Mich. 680; 202 N.W.2d 769 (1972). The tests requires a court to consider "(1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant." People v Williams, 163 Mich. App. 744, 755; 415 N.W.2d 301 (1987). This fourth element, prejudice, is critical to the analysis. A delay that is under eighteen months requires a defendant to prove that she or he suffered prejudice. People v Taylor, 110 Mich. App. 823, 828-829; 314 N.W.2d 498 (1981). However, a delay that exceeds eighteen months, as in this case, is presumed prejudicial and places a burden on the prosecutor to rebut that presumption. People v Simpson, 207 Mich. App. 560, 563; 526 N.W.2d 33 (1994).
D. The Length of the Delay
As noted above, the length of the delay in this case was longer than a routine period of time between arrest and trial. Nevertheless, we note that People v Missouri, 100 Mich. App. 310; 299 N.W.2d 346 (1980) instructs that "[t]he length of delay is not determinative of a speedy trial claim" and the delay in this case does not approach the outer limits of other delays we have addressed. See, e.g., Simpson, supra at 564 (4 1/2 years); Missouri, supra at 319-320 (thirty-one months); People v Cutler, 86 Mich. App. 118; 272 N.W.2d 206 (1978) (thirty-seven months); People v Smith, 57 Mich. App. 556; 226 N.W.2d 673 (1975) (nineteen years).
With regard to the reasons for the delay, the prosecution argues that the complex financial transactions and related evidence at issue simply took a long time to gather and analyze. This is a legitimate reason for delay. See People v Lowenstein, 118 Mich. App. 475, 490; 325 N.W.2d 462 (1982). The prosecution also notes that some of the delays in this case can be attributed to Cain. Once again, we agree. For example, Cain asked for, and the trial court granted her, adjournments for an interlocutory appeal and substitution of counsel. People v Sickles, 162 Mich. App. 344, 358; 412 N.W.2d 734 (1987). The court spent time adjudicating numerous motions in limine by Cain, which also weighs against her. People v Gilmore, 222 Mich. App. 442, 461; 564 N.W.2d 158 (1997). At least one of the delays was due to witness unavailability, which does not weigh against either party. Sickles, supra at 356, citing Barker, supra at 530-531. Some of the delays were attributable to docket congestion, which minimally weighs against the prosecution. People v Ewing, 101 Mich. App. 51, 55; 301 N.W.2d 8 (1980). When considered together, we see no evidence that the prosecution is substantially to blame for the delay in this case or that they were unwarranted.
F. The Assertion of the Right
Furthermore, under the third prong of the Barker, supra, analysis, we cannot ignore the fact that Cain waited eighteen months to assert her right to a speedy trial, and that her trial commenced within nine months of when she asserted that right.
G. Lack of Prejudice
Turning to the question of prejudice, we consider whether the delay prejudiced Cain's person or defense. Barker, supra at 532. We note that Cain was on bond pending trial, and conclude that the delay did not affect her person by subjecting her to lengthy pretrial incarceration. Moreover, as the prosecution asserts, the facts of this case demanded extensive pretrial preparations. Those preparations are evident in the prosecution's trial exhibits, the length of the prosecution's case in-chief, as well as the pleadings and motions on the record, some of which went to Cain's benefit by securing a fair trial for her. MCL 768.1; MSA 28.1024. Consequently, the prosecution has rebutted the presumption of prejudice and we find no constitutional violation.
For example, the prosecution drafted a bill of particulars to list every transaction at issue.
IV. Charging Multiple Acts With a Single Count
A. Cain's Argument
Cain argues that the trial court erred by permitting the prosecutor to bring a single charge of larceny while using evidence of many transactions to prove that count. Apparently, she claims this method of "lumping" the transactions together deprived her of a fair trial by relieving the prosecutor of the burden of proving that Bergdahl was incompetent when Cain cashed the final certificate of deposit in December 1992, and that the evidence of the other suspicious transactions was character evidence that was impermissible under MRE 404(b).
B. Preservation of the Issue and Standard of Review
Although Cain addressed the single charge/multiple acts in this case while requesting a unanimous verdict instruction for the jury, we cannot find any place in the record where Cain objected to this evidence on these particular grounds. MRE 103(a)(1). Therefore, she failed to preserve this issue for review and we may only examine this issue if manifest injustice would otherwise result. People v Metzler, 193 Mich. App. 541, 548; 484 N.W.2d 695 (1992).
C. Manifest Injustice
We see no manifest injustice in the trial court's decision to allow this evidence to go to the jury, for three reasons. First, mental competency is not an element of larceny over $100, MCL 750.356; MSA 28.588. Accordingly, even if this large body of evidence made it easier for the prosecution to prove that Bergdahl was incompetent, it had no obligation to do so and any error in allowing the jury to hear the evidence was harmless. Second, this evidence was clearly admissible as evidence of the actus reus of the alleged crime. See MRE 401; MRE 402. As a result, this evidence cannot be characterized as evidence of " other crimes, wrongs, or acts." MRE 404(b) (emphasis added). Third, charging a defendant with a single offense when there is evidence of multiple acts of wrongdoing under a theory of a continuing course of conduct is not per se impermissible. Rather, the propriety of doing so depends on any prohibition in the underlying statute, the potential for a double jeopardy violation, a less than unanimous jury verdict, or other particular evidentiary problems unique to a case. See People v Payne, 177 Mich. App. 464, 468; 442 N.W.2d 675 (1989); see also generally People v Cooks, 446 Mich. 503, 524; 521 N.W.2d 275 (1994). We do not see any of those troublesome circumstances in this case, especially in light of the jury's specific indication that it unanimously found Cain guilty based on the same act.
V. "Legal Impossibility"
A. Cain's Argument
Cain's argues that the July 30, 1991 agreement legally entitled her to take Bergdahl's money. Even if the contract were not valid, Cain argues, she had a good faith belief that she had a right to possess the money, which is sufficient to establish her claim of right defense. Thus, she contends, it was "legally impossible" for her to commit larceny when she took Bergdahl's money. We disagree.
B. Preservation of the Issue and Standard of Review
We cannot locate any place in the trial court record where Cain argued that her conviction for larceny was legally impossible. Consequently, this issues does not appear to be preserved for our review. However, although it is neither preserved nor technically presented for our review in the statement of the issues, MCR 7.212(C)(5), we will address Cain's argument to the limited extent that it suggests that there was insufficient evidence to convict her of the charged offense. Criminal defendants do not need to take any special steps to preserve a challenge to the sufficiency of the evidence. See People v Lyles, 148 Mich. App. 583, 594; 385 N.W.2d 676 (1986). The evidence is sufficient to convict a defendant when a rational factfinder could determine that the prosecutor proved every element of the crimes charged beyond a reasonable doubt. People v Daniels, 192 Mich. App. 658, 665; 482 N.W.2d 176 (1991).
C. Defense To Larceny
Cain essentially confuses the doctrine of legal impossibility with a "claim of right" defense. To be clear, the doctrine of legal impossibility operates as a defense when a defendant's conduct does not actually violate a statute, no matter how culpable it appears. See generally LaFave Scott, Criminal Law, § 6.3(a), p 511; People v Jacaboni, 34 Mich. App. 84; 190 N.W.2d 720 (1971). In other words, the doctrine of legal impossibility applies when, even if a defendant admitted to all the conduct the prosecutor alleged occurred, the allegedly criminal act would not amount to an offense because the statute does not prohibit it. See People v Bettistea, 173 Mich. App. 106, 118; 434 N.W.2d 138 (1988).
Legal impossibility most frequently arises as a defense to an attempted crime where only the completed act is a criminal offense. See People v Tinskey, 394 Mich. 108, 108; 228 N.W.2d 782 (1975). As an illustration of this doctrine, see People v Genoa, 188 Mich. App. 461, 470 N.W.2d 447 (1991). In Genoa, the prosecutor charged the defendant with attempted possession with intent to deliver 650 grams or more of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), based on evidence that he agreed to pay an undercover agent of the Michigan State Police $10,000 to purchase and resell a kilogram of cocaine for a profit. Id. at 462-463. The defendant handed over the money to the agent, who immediately turned it over to the police without ever possessing cocaine. Id. at 463. Indeed, there was no evidence that the police or the agent ever intended to possess cocaine. Id. The only logical theory under which the prosecutor could proceed was that the defendant attempted to aid and abet the charged crime. Id. Nevertheless, the defendant could not be convicted of aiding and abetting the offense of possession with intent to deliver cocaine when there was no evidence that he or any other person possessed cocaine with the intent to deliver it, an essential element of the crime. Id. at 463-464. Furthermore, the statute did not make funding an imaginary drug deal a crime, no matter how earnestly the defendant wanted to assist the agent with an actual narcotics transaction. Id. at 464. As a result, it was legally impossible to convict the defendant of the charged offense.
Cain apparently intends to argue that the contract irrefutably establishes Bergdahl's consent to Cain's taking of Bergdahl's money and, therefore, the prosecution cannot satisfy its burden of proving lack of consent. Thus, she contends, it was legally impossible for her to commit this crime. However, she misconstrues the relative importance of the signed writing. Its mere existence did not remove her conduct from that described by the larceny statute. Rather, in light of the prosecution's evidence of Bergdahl's inability to grant consent, it created a factual dispute on that issue and on Cain's intent at the time of the taking.
Although the signed writing entitled Cain to argue to the jury that it gave her a good faith belief that she had a right to the money, which is a claim of right defense, neither the factual dispute on this issue nor the writing itself obligated the jury to find in her favor. Indisputably, "a jury may disbelieve the most positive evidence, even when it stands uncontradicted." People v Jackson, 390 Mich. 621, 625 n 2; 212 N.W.2d 918 (1973), quoting Woodin v Durfee, 46 Mich. 424, 427; 9 N.W. 457 (1881). More to the point and in real contrast to the doctrine of legal impossibility, a claim of right defense arises when there is a dispute regarding a defendant's felonious intent at the time of the taking. See People v Pohl, 202 Mich. App. 203, 205-206; 507 N.W.2d 819 (1993), rev'd in part and remanded on other grounds 445 Mich. 915 (1994); People v Karasek, 63 Mich. App. 706, 710-711; 234 N.W.2d 761 (1975), quoting 3 Gillespie, Michigan Criminal Law Procedure (2d ed), § 1799, pp 2144-2145 and People v Hillhouse, 80 Mich. 580; 45 N.W. 484 (1890). According to this defense, if a defendant had a good faith belief that she or he had a legal right to take the property at issue then the defendant cannot be convicted because she or he did not intend to deprive another person of property. See People v Goodchild, 68 Mich. App. 226, 232; 242 N.W.2d 465 (1976) ("The felonious intent required for larceny, animus furandi, is an intent to permanently deprive the owner of his property."). The defense applies even if the belief is mistaken or unreasonable. Hillhouse, supra at 586.
These questions of intent and the honesty of belief inherently involve weighing the evidence and assessing the credibility of witnesses, which is a task for the jury. See Pohl, supra at 206; People v Wolfe, 440 Mich. 508, 514-515; 489 N.W.2d 748 (1992), quoting People v Palmer, 392 Mich. 370, 375-376; 220 N.W.2d 393 (1974). We cannot weigh the evidence for ourselves and determine if we would have reached the same result as the jury did in this case. Id. at 515, quoting People v Howard, 50 Mich. 239, 242; 15 N.W. 101 (1883). Rather, because asserting a claim of right defense will not secure an acquittal unless the jury believes the defense, we need only satisfy ourselves that there was sufficient evidence to prove every element of the offense beyond a reasonable doubt. Daniels, supra at 665. We therefore pay close attention to the evidence of Cain's felonious intent in light of her defense.
It is important to note that this claim of right defense merely creates a question of fact for the jury and does not establish an affirmative defense, which would then require the prosecution to prove that Cain was not acting under a good faith belief in a claim of right. See People v Sorscher, 151 Mich. App. 122, 131-132; 391 N.W.2d 365 (1986).
The basic elements of larceny are:
(1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the goods or personal property of another, (5) the taking must be without the consent and against the will of the owner. [ People v Anderson, 7 Mich. App. 513, 516; 152 N.W.2d 40 (1967).]
As noted above, the specific intent necessary to commit larceny is the intent to steal another person's property. Goodchild, supra at 232. Additionally, the statute for the form of larceny charged in this case requires that the goods or property must be worth more than $100. MCL 750.356; MSA 28.588.
Viewed in the light most favorable to the prosecution, Bjorne's testimony and the exhibits introduced during his testimony provide sufficient evidence of the first, second, and fourth elements of this offense as well as the value threshold for the property. People v Head, 211 Mich. App. 205, 210; 535 N.W.2d 563 (1995); Anderson, supra at 516. Bjorne described, in detail, how Cain took sums of money, all worth more than $500, owned by Bergdahl, and transferred them from Bergdahl's accounts through a joint account into Cain's own accounts or converted them into cash.
The large amount of money at issue and the speed with which Cain took it is circumstantial evidence of an intent to permanently deprive Bergdahl of her property, as the third element of the offense requires. Anderson, supra at 516. Similarly, Cain failed to put into place any accounting systems so that she could calculate what she would owe Bergdahl in order to repay her according to the terms of the purportedly valid agreement. This was strong evidence that Cain was not acting under the auspices of the writing (i.e., pursuant to a claim of right and with an innocent state of mind) when Cain took the money, regardless of her belief in the ultimate legal enforceability of the writing. If Cain had no way of determining how much money she took from Bergdahl, then it would be reasonable for the jury to infer that she never intended to repay it. Nor can we ignore Signs' testimony that the writing may have originally consisted of additional pages of paper not available at trial, that she did not witness Bergdahl or Cain sign the writing, and that Cain asked her to write the wrong date next to her signature. These factors all suggest that Cain had a felonious intent at the time she started to take Bergdahl's money. That Cain relied on this agreement to excuse every subsequent transaction at issue suggests that she retained this felonious intent with each additional act.
Finally, in regard to the fifth element, there were literally days of trial testimony by Bergdahl's friends, acquaintances, and physicians describing her mental deterioration. Anderson, supra at 516. Testimony that Cain discussed Bergdahl's mental status with medical staff and inquired about guardianship before July 1991 suggests that Cain also questioned Bergdahl's ability to make decisions for herself. Not only does that contradict Cain's argument that she relied in good faith on Bergdahl's consent, as evidence by the writing, it also is relevant to the underlying question of whether Bergdahl had the capacity to consent. When viewed in the light most favorable to the prosecution, this evidence certainly tended to prove that Bergdahl did not have the capacity to consent to the taking. Therefore, the record demonstrates that there was sufficient evidence to prove every element of the offense beyond a reasonable doubt.
VI. Evidentiary Issues
A. Cain's Argument
Cain argues that the trial court erred by preliminarily ruling that evidence of (1) her expunged conviction for welfare fraud, (2) her spending habits, and (3) Bergdahl's competency at times other than July 30, 1991 would be admissible at trial. We address these claimed errors in turn.
B. Preservation of the Issue and Standard of Review
Cain raised each of these evidentiary issues in motions before trial and the trial court ruled against her on each issue. Therefore, these issues are preserved for our review. MRE 103(a)(2). We review a trial court's decision to admit evidence for an abuse of discretion. People v Starr, 457 Mich. 490, 494; 577 N.W.2d 673 (1998).
C. Expunged Welfare Fraud Conviction
Cain argues that the trial court misapplied the four-pronged test for other acts evidence that the Michigan Supreme Court outlined in People v VanderVliet, 444 Mich. 52; 508 N.W.2d 114 (1993), when it decided that her welfare fraud conviction would be admissible at trial as relevant to her good faith belief that she had a right to take Bergdahl's money. As a result of this ruling, Cain claims, she chose not to testify. The prosecution ultimately did not introduce this evidence to the jury.
We need not decide the merits of Cain's argument because, even assuming that the trial court erred, the error was harmless under the standard for reversal announced in People v Lukity, 460 Mich. 484; 596 N.W.2d 607 (1999). In Lukity, the Court stated that "a preserved, nonconstitutional error is not a ground for reversal unless `after an examination of the entire cause, it shall affirmatively appear' that it is more probable than not that the error was outcome determinative." Id. at 495-496. Because this evidence never went to the jury, it could not be outcome determinative. A fair reading of Lukity, which only discussed the effect of evidence on a jury and not any effects of evidentiary errors on trial strategy, supports this conclusion.
D. Spending Patterns
According to Cain, the trial court erred by admitting evidence at trial of how she spent Bergdahl's money. Cain claims that the testimony that she, for instance, refurbished her home, took trips, and gave gifts with Bergdahl's money was irrelevant to her intent to permanently deprive Bergdahl of the money because those activities occurred after she took the money. We agree that the prosecution had to show that Cain intended to permanently deprive Bergdahl of the money at the time she took it and evidence of subsequent intent would be insufficient to prove larceny. See People v Gimotty, 216 Mich. App. 254, 257; 549 N.W.2d 39 (1996) ("Larceny is the taking and carrying away of the property of another, done with felonious intent and without the owner's consent.") (emphasis added).
Nevertheless, given Cain's de facto control over Bergdahl's finances and court-ordered fiduciary relationship with Bergdahl as her guardian, the evidence was admissible to show the necessary felonious intent to permanently deprive Bergdahl of the money. Gimotty, supra at 257. In other words, this evidence distinguished the allegedly larcenous financial transactions at issue from the other legitimate financial transactions where Cain took money from Bergdahl's accounts to spend for Bergdahl's benefit. Additionally, in light of Cain's decision to commingle her personal funds with Bergdahl's money, the evidence that her spending habits became more liberal after she had access to Bergdahl's money was relevant to prove asportation. Id. Although this evidence was circumstantial, it was relevant to demonstrate that Cain took and carried away Bergdahl's money, which was necessary to prove larceny. Therefore, this evidence was admissible.
Bjorne was able to trace specific transactions involving Bergdahl's accounts to purchases by Cain.
E. Limiting Evidence of Competency
Cain contends that the trial court had an obligation to limit the evidence of Bergdahl's competency to July 30, 1991, when Cain purportedly signed the loan agreement and established her claim of right defense. We disagree. As noted above, the jury, sitting as the factfinder in this case, was at liberty to reject Cain's argument that she had a good faith belief that the agreement evidenced Bergdahl's consent to give her money. As a result, the prosecution was entitled to support its theory that Bergdahl was incapable of giving consent to Cain to take money each time Cain did so because Bergdahl was incompetent.
We emphasize that this case does not come down to contract construction. If it did, Cain's argument would have even less merit because, even from our casual inspection, the agreement would likely not be binding on the parties because it lacks consideration, reciting only Cain's past performance as the benefit Bergdahl received in exchange for the money. See Shirey v Camden, 314 Mich. 128, 138; 22 N.W.2d 98 (1946).
VII. Jury Instructions on Competency
A. Cain's Argument
The record reveals that, despite a significant amount of pretrial discussion as well as numerous motions and memoranda suggesting that the trial court intended to define competency for the jury, the trial court ultimately failed to give a specific instruction on competency at the end of the trial. Instead, the trial court addressed Bergdahl's competency in the context of summarizing each party's theory of the case, saying:
[I]t is the theory and claim of the prosecution . . . that at the time this property was taken from Marguerite Bergdahl at these various times during this two year period . . . that Marguerite Bergdahl did not give consent to have her property taken, in that she was not competent to consent to that kind of property [sic], that she wasn't aware of what her assets were, her future needs, her various options and choices, that her memory as to recent events was poor. And the prosecution further claims that this is a continuing transaction, and, therefore, the competence or consent of the defendant must be examined at the time of these various transactions.
The trial court explained that Cain's theory of the case was that Bergdahl exhibited "behavior [that] was at least outwardly normal, and that she was competent to give consent at the time the joint accounts were first established, and that is when the defendant gained control over those particular funds." Further, "the defendant submits that even if Marguerite Bergdahl in fact wasn't competent, that the defendant believed honestly that she was [competent]. . . ."
Cain argues that merely relaying the parties' theories of the case was insufficient and that the only proper instruction on competency for this case comes from In re Estate of Erickson, 220 Mich. App. 329[ 202 MICH. APP. 329], 332; 508 N.W.2d 181 (1993), where we said:
The test of mental capacity to contract is whether the person in question possesses sufficient mind to understand in a reasonable manner the nature and effect of the act in which the person is engaged. To avoid a contract it must appear not only that the person was of unsound mind or insane when it was made, but that the unsoundness or insanity was of such a character that the person had no reasonable perception of the nature or terms of the contract.
This definition of competency to contract is consonant with Cain's theory that merely establishing the existence of a signed writing, which she contends is a contract, entitles her to acquittal. Nevertheless, we conclude that the omission of a special instruction on competency, whether from In re Erickson or other authority, does not require reversing Cain's conviction.
B. Preservation of the Issue and Standard of Review
Cain did not object to the omission of a competency instruction before the jury commenced its deliberations, even though an objection is ordinarily necessary to preserve an instruction issue for appellate review. See People v Smith, 80 Mich. App. 106, 113; 263 N.W.2d 306 (1977). However, at oral arguments in this appeal we raised this issue and subsequently granted the parties leave to file supplement briefs addressing whether the trial court's failure in this regard constituted an error requiring reversal. As we said in Paschke v Retool Industries (On Rehearing), 198 Mich. App. 702, 705; 499 N.W.2d 453 (1993), rev'd on other grounds 445 Mich. 502 (1994), "The court is obligated only to review issues that are properly raised and preserved; the court is empowered, however, to go beyond the issues raised and address any issue that, in the court's opinion, justice requires be considered and resolved." As a result, we reach the merits of this question.
This Court reviews jury instructions as a whole to determine if the trial court made an error requiring reversal. People v Caulley, 197 Mich. App. 177, 184; 494 N.W.2d 853 (1992). "Even if the instructions are imperfect, there is no error if they fairly presented the issues to be tried and sufficiently protected the defendant's rights." People v Daniel, 207 Mich. App. 47, 53; 523 N.W.2d 830 (1994).
C. Competency
The critical flaw in Cain's argument is that she implicitly elevates the concept of competency to an element of the crime charged, for which the courts must be especially careful to instruct the jury on a legal definition in order to protect a defendant's right to a fair trial. See People v Rone, 109 Mich. App. 702, 712-713; 311 N.W.2d 835 (1981). As we have said more than once in this opinion, competency is not an element of larceny over $100, MCL 750.356; MSA 28.588. It was merely the prosecution's theory that it could demonstrate at least one of element of the crime, failure to consent to the taking and carrying away, with evidence of Bergdahl's incompetency. As a result, it was sufficient for the trial court to submit this competency issue to the jury as the prosecution's theory.
Furthermore, the summary of this theory that the trial court actually gave to the jury and the definition of competence in In re Erickson, supra at 332, would both logically lead the jury down the same path of analysis. That is, the factors relevant to competency that the trial court enumerated essentially asked the jury to determine if Bergdahl was of "sufficient mind to understand in a reasonable manner the nature and effect of the act" of signing the agreement. Id. In the absence of any errors in the instructions relevant to the elements of the crime, the trial court adequately discharged its obligation to instruct the jury on the remaining "material issues, defenses, and theories" supported by the evidence. Daniel, supra at 53. Critically, if the trial court erred by failing to issue an instruction on competence, we know that the error did not affect the jury's decision, because the jurors agreed that a transaction that occurred specifically after the probate court adjudged Bergdahl incompetent was the basis for the conviction.
VIII. Sentencing
A. Cain's Argument
Cain argues her sentence, which she has yet to serve, is invalid. She challenges her sentence in two respects. First, she contends that the trial court misscored offense variable ("OV") 8 under the nonstatutory sentencing guidelines in effect when the trial court sentenced Cain. Second, she argues that the sentence, which is a substantial upward departure from the minimum sentence range recommended by the sentencing guidelines, is disproportionately severe. We disagree with both contentions.
B. Preservation of the Issue and Standard of Review
Cain preserved the alleged scoring error for our review by objecting at the sentencing hearing. MCR 6.429(C). She did not need to take any special steps to preserve the question of the proportionality of her sentence and properly presented it for appeal by providing this Court with a copy of the presentence investigator's report. MCR 7.212(C)(7); People v Oswald, 208 Mich. App. 444, 446; 528 N.W.2d 782 (1995).
"Appellate review of guidelines calculations is limited, and a sentencing court has discretion in determining the number of points to be scored provided there is evidence on the record that adequately supports a particular score." People v Dilling, 222 Mich. App. 44, 54; 564 N.W.2d 56 (1997). Similarly, we review the sentence imposed for an abuse of discretion. People v Albert, 207 Mich. App. 73, 74; 523 N.W.2d 825 (1994). "[A] given sentence can be said to constitute an abuse of discretion if that sentence violates the principle of proportionality, which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Milbourn, 435 Mich. 630, 635; 461 N.W.2d 1 (1990).
C. Scoring of OV 8
OV 8 for larceny offenses is entitled "continuing pattern of criminal behavior." Michigan Sentencing Guidelines (2nd ed), p 84. Under this offense variable, the trial court can score ten points if "[t]he offense is a part of a pattern of criminal activities over a period of time from which the offender derives a substantial portion of his or her income and/or the offense is directly related to membership in an organized criminal group." Id. The trial court can assess a defendant zero points if there was "[n]o continuing criminal behavior and/or membership in an organized criminal group." Id. The trial court in this case assessed Cain ten points, which she apparently argues is erroneous because the prosecutor did not prove a continuing course of criminal conduct by a preponderance of the evidence. Although Cain does not clearly make this argument on appeal, at sentencing she said this score was improper because the jury only found her guilty of a single act of larceny occurring in December 1992 and did not find her guilty of larceny for any of the other transactions.
In People v Raby, 456 Mich. 387[ 456 MICH. 487], 496-497; 572 N.W.2d 644 (1998), the Michigan Supreme Court affirmed the principles outlined in People v Mitchell, 454 Mich. 145, 177; 560 N.W.2d 600 (1997), which said that a sentence must be overturned and new sentencing ordered only when, "(1) a factual predicate is wholly unsupported, (2) a factual predicate is materially false, and (3) the sentence is disproportionate." Cain's argument is, in effect, that the record does not support a continuing course of conduct under this second factor. We wholly disagree. There was extensive documentary evidence at trial that Cain's pattern of criminal conduct extended over at least two years, supporting this score. Thus, Cain is not entitled to resentencing based on this issue.
D. Sentencing Proportionality
Cain argues that her minimum two-year prison sentence, which is more than 2 1/2 times higher the minimum nine month sentence recommended by the guidelines, is disproportionately severe. At sentencing, the trial court commented that it appreciated that this case presented a complex situation, and that there were both positive and negative factors relevant to its decision. In Cain's favor, the trial court recognized that she did care for Bergdahl and that a number of witnesses and friends who wrote on her behalf before sentencing believed her to be a valuable and contributing member of the community. Nevertheless, the trial court concluded that it had "absolutely" no doubt that she intentionally took the money knowing that she did not have the right to do so. Furthermore, the trial court noted that OV 17 permits ten points, the highest number of points of available, for taking more than $5,000 but this case involved an amount forty times higher than that threshold. See Michigan Sentencing Guidelines (2nd ed), p 84. The trial court cited this last factor as the reason for its upward departure from the guidelines.
The trial court mistakenly referred to OV 17 as OV 8.
Even though sentences that depart from the sentencing guidelines are subject to careful scrutiny on appeal, People v Coulter (After Remand), 205 Mich. App. 453, 456; 517 N.W.2d 827 (1994), "the `key test' of proportionality is not whether the sentence departs from or adheres to the recommended range, but whether it reflects the seriousness of the matter." People v Houston, 448 Mich. 312, 320; 532 N.W.2d 508 (1995). This was a serious offense perpetrated against a helpless victim who was, in the end, deprived of almost all her savings. Bergdahl's conservator, once appointed by the probate court, had to sell Bergdahl's house just to pay for her nursing home expenses. Like the trial court, we cannot say that Cain simply made a mistake or that her otherwise good-hearted nature outweighed her greed. There is a considerable difference between taking $5,000 and the $250,000 Cain took from Bergdahl. As a result, we agree that OV 17 does not adequately address the circumstances of this case. There was no abuse of discretion in the trial court's reasoning at the sentencing hearing or in the actual sentence that it imposed.
We find it interesting that the Legislature doubled the maximum sentence under MCL 750.356; MSA 28.588 to ten years in prison for larceny of $20,000 or more in the 1998 amendments. Although these amendments do not guide our decision on this issue, this change in the statutory scheme suggests that Cain's offense is still among the most severe.
IX. Conclusion
In summary, we hold that: (1) the prearrest delay in this case was not prejudicial; (2) the pretrial delay did not violate the constitutional guarantee of a speedy trial; (3) the trial court did not err by permitting the prosecution to charge Cain with a single offense and introduce evidence of multiple acts of wrongdoing; (4) the written agreement did not make Cain's conviction legally impossible; (5) the trial court did not commit any evidentiary errors warranting reversal; (6) the trial court did not err by failing to issue a specific competency instruction to the jury; and (7) the trial court neither misscored the sentencing guidelines nor abused its discretion by imposing a sentence that is an upward departure from the recommendation under the guidelines.
Affirmed.
Markman, J. did not participate.