People v. Johnson ( 1984 )

133 Mich. App. 150 (1984) 348 N.W.2d 716

PEOPLE
v.
JOHNSON

Docket No. 68611.

Michigan Court of Appeals.

Decided March 21, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Peter D. Houk, Prosecuting Attorney, Robert B. Ebersole, Chief Appellate Attorney, and Charles R. Toy, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Rolf E. Berg), for defendant.

Before: ALLEN, P.J., and HOOD and W.S. WHITE,^[*] JJ.

PER CURIAM.

On September 7, 1982, defendant was convicted by a jury of larceny over $100, MCL 750.356; MSA 28.588. Immediately following, the same jury found defendant guilty as an habitual (fifth) offender, MCL 769.12; MSA 28.1084. On October 6, 1982, defendant was sentenced to concurrent terms of 3 to 5 and 5 to 20 years incarceration. He presently appeals as of right.

Testimony at trial revealed that defendant was observed by store security personnel in Meijer's jewelry department. Defendant picked up a display model radio and then placed it back on the shelf. He glanced from left to right several times and looked at other models of radios before returning to the first radio. He picked up the radio and carried it under his arm covered by a jacket. Followed by the two security officers, defendant moved toward an exit from the store. He passed through the enclosed portion of the store and entered the outside garden center of the store. As defendant was beginning to pass through the exit gate with the radio, he was stopped by a security officer.

A clerk from the jewelry department testified that on the date of the incident the price of the radio was $119. On cross-examination, she stated that Meijer's sometimes discounted the price of display items but, if the item was in good condition or if there was another model in a boxed condition, the display would not be marked down. Defense counsel questioned the witness about the wholesale price of the radio but received no response as the prosecutor's objection on relevancy grounds was sustained. Additionally, the trial court excluded testimony concerning the value of the radio as used merchandise.

Defendant's first claim of error concerns the trial court's rulings which excluded evidence of the wholesale value of the radio and its value as used merchandise. The value of the item stolen, when used to differentiate between a felony and a misdemeanor offense, is an essential element of the charged crime. People v Fuzi, 46 Mich App 204; 208 NW2d 47 (1973); People v Westman, 53 Mich App 662; 220 NW2d 169 (1974). Thus, in defendant's prosecution for larceny over $100, proof that the value of the radio was more than $100 was an essential element of the charged offense.

While the larceny statute itself does not provide a guide for determining the value of property which is the subject of a theft, case law supports the use of fair market value as the relevant standard when such a value exists. People v Hanenberg, 274 Mich 698; 265 NW 506 (1936); People v Gilbert, 163 Mich 511; 128 NW 756 (1910). Generally, proof of value is determined by reference to the time and place of the offense. People v Cole, 54 Mich 238; 19 NW 968 (1884); Gilbert, supra. Value has been interpreted to mean the price that the item will bring on an open market between a willing buyer and seller. People v Otler, 51 Mich App 256; 214 NW2d 727 (1974); People v Tillman, 59 Mich App 768; 229 NW2d 922 (1975).

Citing cases from other jurisdictions, defendant argues that the wholesale price of the radio should have been admitted as relevant evidence of value. See, e.g., State v Boyken, 217 NW2d 218 (Iowa, 1974); State v Sorrell, 95 Ariz 220; 388 P2d 429 (1964); State v Carroll, 186 Neb 148; 181 NW2d 436 (1970). While no Michigan case has expressly approved of the use of wholesale value as a relevant consideration in determining fair market value, the facts of the present case do not require judicial acceptance or rejection of such evidence.

The prosecutor introduced evidence that the retail price of the item was $119. That evidence was probative of the market value of the radio at the time and place of the theft as it was indicative of the price that would prevail in the open market between a willing buyer and seller. Although defendant attempted to elicit testimony from the sales clerk concerning the wholesale value of the item, defendant made no offer of proof as to the relevancy of that evidence to fair market value.

The sales clerk testified that the retail price of the radio was $119. She also indicated that under certain circumstances the price of a display item might be reduced; however, neither of the conditions which were offered as justifications for a price reduction were shown to exist in this case. Thus, defendant's argument that the wholesale price would have been relevant as an aid to the jury in determining the discounted value of the radio is without substance. We also note that there is no indication from the record that the witness was either competent or knowledgeable in the area of wholesale value.

Defendant failed to make an offer of proof concerning the relevancy of the wholesale value and also failed to place on the record the actual wholesale value of the radio itself. Without an adequate record illustrating the relevancy of the excluded testimony, meaningful appellate review is severely limited. Our review of the record discloses that the jury was properly instructed, pursuant to CJI 22:1:01, on the fair market value test. Given defendant's failure to show the relevance of the proffered testimony at trial or on appeal, we find no error in the ruling of the trial court.

We also reject defendant's claim that the trial court erred in excluding testimony concerning the value of the radio as used merchandise. The item was identified at trial as a display model; there is nothing to indicate that the radio would have been sold as other than new merchandise. Thus, evidence of the value of the item as a used item was not relevant to the issues at trial and was properly excluded.

Next, defendant argues that the trial court abused its discretion by denying his motion in limine to exclude evidence of his four prior convictions. There is no serious dispute that the trial judge recognized his discretion to admit or exclude the prior convictions or that he fully complied with MRE 609 by stating on the record the factors considered in his determination of admissibility. See People v Cherry, 393 Mich 261; 224 NW2d 286 (1974); People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978). Instead, defendant asserts that the trial judge could have reduced the prejudice resulting from impeachment by evidence of all four prior convictions by excluding the conviction for attempted unarmed robbery, a crime which is too similar to the crime charged, according to defendant, to be admitted for impeachment purposes.

In the present case, each of defendant's prior convictions involved a theft component (three convictions for breaking and entering an occupied dwelling with intent to commit larceny and one conviction for attempted unarmed robbery) and, thus, would be probative of defendant's credibility. MRE 609(a)(1). We recognize that impeachment by evidence of fewer than four prior convictions would have been a viable alternative in this situation. However, defense counsel did not request that the trial court exercise its discretion in this manner and we decline to reverse such a discretionary ruling because the trial court failed to exercise its discretion in a fashion not requested by trial counsel. People v Rush, 118 Mich App 236; 324 NW2d 586 (1982).

Similarly, we reject defendant's claim that he should have been allowed to "tell his story" without the potential for undue prejudice which would be generated through impeachment by evidence of his prior convictions. The trial court recognized the need to consider the effect on the decisional process should defendant elect not to take the stand for fear of impeachment, but defendant failed to inform the court of the nature of his testimony. This situation illustrates the difficulty which faces a trial court in balancing the competing factors for admissibility of evidence of prior convictions when faced with insufficient or inadequate information concerning the substance of the defendant's testimony or the availability of alternative methods of presenting the defense. Without some indication of the nature of his testimony, we find that the trial court did not abuse its discretion by denying defendant's motion in limine. See People v Casey, 120 Mich App 690; 327 NW2d 337 (1982); People v Wilson, 107 Mich App 470; 309 NW2d 584 (1981).

Defendant claims, and the prosecutor agrees, that he was improperly sentenced to concurrent terms of imprisonment for the underlying felony and the habitual offender conviction. MCL 769.13; MSA 28.1085 provides that when a defendant is sentenced as an habitual offender the sentence for the underlying felony shall be vacated. Thus, we vacate the defendant's three- to five-year sentence and affirm the sentence imposed for the habitual offender conviction.

Affirmed, and sentence modified.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.