Opinion
Docket No. 69031.
Decided April 17, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Nathan T. Fairchild, Prosecuting Attorney, and Jann Ryan Baugh, Assistant Attorney General, for the people.
Stephen W. Oram, for defendant on appeal.
Defendant was found guilty by a jury of obtaining property by false pretenses, MCL 750.218; MSA 28.415. He was sentenced to ten months in jail and appeals as of right.
At trial, Stephanie K. DePew, a Meijer Thrifty Acres store detective, testified that she observed defendant and two others remove the price tag from a Clean Welder, which retailed for $32.99, and place it over the price tag of a Poulan Chain saw, which normally retailed for $298.95. DePew waited until the three subjects left the area and, after summoning store detective Terry Baldwin, checked to ensure that the price tag had been removed from the welder and placed on the chain saw. She then marked the corner of the chain saw box with a small "x". DePew and Baldwin waited approximately 10 to 15 minutes, at which time defendant returned unaccompanied to the area. Both store detectives testified that they observed defendant take the chain saw off the shelf, check the price tag, place it in a shopping cart, and proceed to the front of the store. Defendant then entered a check-out lane and paid for the chain saw at the reduced price. He was subsequently apprehended by the two store detectives.
Jackie Hayati, a Meijer cashier, testified that while defendant was in line at her check-out lane she received a phone call from the store manager telling her that defendant was suspected of switching price tags and instructing her to ring up the chain saw as an ordinary sale. Hayati also testified that she had no idea of the value of a chain saw and would not have questioned the $32.99 price tag had she not received the phone call.
Defendant testified that he was unaware that the price tags had been switched and had purchased the chain saw because it was such a good deal.
At the conclusion of the proofs defendant's counsel moved for a directed verdict, contending that one of the elements of the crime, reliance by the victim on the misrepresentation made by the defendant, had not been proven. The motion was denied.
The sole issue on appeal is whether a directed verdict of acquittal should have been granted to the defendant.
The elements of the crime of false pretenses are: (1) a false representation as to an existing fact, (2) knowledge by defendant 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. People v Phebus, 116 Mich. App. 416, 419; 323 N.W.2d 423 (1982). When ruling on a directed verdict motion, the trial court must consider the evidence presented prior to the motion in a light most favorable to the prosecution and must determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich. 354, 368; 285 N.W.2d 284 (1979).
The purpose of the false pretenses statute is to protect the unwary and negligent from the deceit of those who would take advantage of another's negligence or incompetence. People v Summers, 115 Mich. 537, 545; 73 N.W. 818 (1898). For this reason the element of reliance by the victim is essential. People v Chappelle, 114 Mich. App. 364; 319 N.W.2d 584 (1982). We agree with defendant that in this case reliance was not shown.
People v Wilde, 42 Mich. App. 514; 202 N.W.2d 542 (1972), involved a conspiracy between the defendants, operators of a repair shop, and an insurance adjustor. The adjustor, in exchange for a kickback, agreed to inflate the estimate for the repair of a vehicle damaged in an accident. The owner of the vehicle was informed of the plan and, being a field representative for the same insurance company, told his supervisor. The regional manager of the company then inspected the vehicle at its owner's home and prepared his own estimate, which was about one-third of the adjustor's estimate.
The insurance company paid on the inflated estimate, and then fired the crooked adjustor (the adjustor also pled guilty to the crime of false pretenses). The defendant repair shop owners were then tried and convicted of false pretenses. Finding the crucial element of reliance lacking, this Court reversed, stating:
"Pursuant to these authorities we have reviewed the record for evidence of reliance by AAA. AAA possessed both the repair estimate prepared by its regional manager approximating $200, and the inflated estimate of $622.33 prepared by their agent with defendants' assistance prior to defendants' beginning actual repairs. Since the $200 estimate was prepared pursuant to information supplied by a fellow employee that the repair estimates were fraudulent, AAA's knowledge that the pretense was false can neither be doubted nor denied. The subsequent payment of the fraudulent estimate cannot now be said to constitute reliance. Whether this payment was made to entrap their agent and defendants or by mistake, we are bound by the elements of the offense. Admittedly, the purpose of the false pretense statute is to punish cheats, but such cannot be accomplished when the victim has knowledge that the cheat is about to take place." (Footnotes omitted.) Wilde, supra, pp 520-521.
The reasoning of the Wilde Court applies with equal force in this matter. The check-out clerk was informed, before the sale was made, that defendant was suspected of having switched the price tags.
Plaintiff refers to Phebus, supra, wherein we held that false pretenses, rather than larceny, was the appropriate charge to bring against a defendant accused of switching price tags. However, it is not clear whether the check-out person in the Phebus case had been alerted to the switch, and the element of reliance was not a contested issue there.
We note that in our case, as well as in Phebus, security personnel had observed the price tag manipulation prior to the sale. We express no opinion on whether the detective's knowledge may be imputed to the cashier for the purpose of negating reliance on the false representation, as the issue is not presented in this appeal. But, see People v Schieda, 99 Mich. App. 420; 297 N.W.2d 688 (1980). In our case evidence of reliance was insufficient, as cashier Hayati was aware that a cheat was about to take place.
The proofs do show, and the trier of fact necessarily found, that defendant was guilty of attempted false pretenses; we therefore direct that his conviction be reduced to that offense. See, e.g., People v Saxton, 118 Mich. App. 681, 691; 325 N.W.2d 795 (1982). Any question of resentencing is moot, defendant having already served his ten-month sentence.
Reversed.