People of Michigan v. Sherry Suzanne Dunn ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 6, 2022
Plaintiff-Appellee,
v No. 356026
Berrien Circuit Court
SHERRY SUZANNE DUNN, LC No. 2019-015394-FH
Defendant-Appellant.
Before: RICK, P.J., and BOONSTRA and O’BRIEN, JJ.
PER CURIAM.
Defendant appeals as of right her conviction following a jury trial of one count of
embezzlement of a vulnerable adult in an amount greater than $1,000 and less than $20,000,
MCL 750.174a(4)(a). The trial court sentenced defendant to 180 days’ imprisonment and to pay
restitution of $16,250. Because we conclude that defendant has established her claim of ineffective
assistance of counsel, we vacate her conviction and remand for a new trial.
I. FACTS
The victim in this matter was 87 years old at the time of the trial in 2019 and was suffering
from dementia. Defendant and her husband, George Dunn, lived in the basement apartment of the
victim’s home. George eventually became the victim’s power of attorney and was placed on the
victim’s bank account. The Department of Health and Human Services (DHHS) received a referral
regarding the victim because his bank account was consistently overdrawn despite the fact that the
victim should have had enough money to cover his expenses.
At some point, George and defendant separated, and George moved upstairs and lived with
the victim in the main floor of the home. Defendant continued to live in the basement apartment
and was supposed to be paying rent in the amount of $550 per month. George was supposed to be
collecting the rent payments for the victim’s rental properties and give the payments to the victim.
The victim said that George did this initially, but then that faded away and “they” (presumably
George and defendant) began to steal the money.
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While he had the victim’s power of attorney, George wrote four checks to defendant in the
amounts of $250, $850, $220, and $100 from the victim’s bank account. The victim testified that
he never gave George permission to write himself or defendant checks. However, George testified
that the victim gave him permission to write checks to defendant.
According to George and defendant, the $850 check was for a car loan for a woman named
Debra Smith, another tenant of the victim. George testified that this check was made out to
defendant because the victim did not know Smith at that time and did not trust Smith, so the victim
requested that the check be made out to defendant so that defendant could give the money to Smith.
At that time, Smith had been a tenant in the victim’s other rental property for a couple of months.
Smith testified that she later paid the $850 back to the victim.
For the $250 check, George testified that this check was for his and defendant’s car
insurance. However, defendant told a police officer that the check was to pay for the victim’s car
insurance. According to George, he had permission from the victim to write this check. George
identified the signature on the back of the check as defendant’s signature. George testified that
this check was paid back to the victim in $100-a-month increments in cash.
George testified that the $220 check was a loan to defendant to pay defendant’s electric
bill. Again, George testified that the victim authorized him to write the check. George also said
that this check was repaid in $100 cash installments to the victim. The victim did not recall giving
permission to George to write the check to defendant or that he ever gave defendant any money.
George testified that the $100 check paid to defendant was compensation for defendant
cleaning the victim’s house, and that he had permission from the victim to write the check. The
victim testified that defendant had helped him with making the beds, washing clothes, and other
chores. The victim also testified that he gave defendant money for soap that she used when she
helped him. However, defendant told a detective that the $100 check was for work she did for
George.
George testified that defendant lived in the victim’s basement apartment on-and-off in 2017
and 2018, and that he believed she paid rent every month. George told police officers that he
collected money for rent payments and that he either deposited the money in the victim’s account
or gave the money to the victim. A police officer testified that there were some deposits in the
victim’s account for $550. A DHHS employee reviewed the victim’s bank statements for August,
September, and October 2018, and, although she was informed that rent was being paid in cash,
she did not see any cash deposits into the account during those months. George testified that
defendant initially paid her rent with money orders and later paid cash. When defendant paid with
a money order, George went to the bank with the victim and deposited the money order. However,
when defendant paid her rent in cash, he gave the cash to the victim or deposited it as requested
by the victim.
At the conclusion of the jury trial, defendant moved for a directed verdict and argued that
the prosecution had not established that defendant had obtained money from the victim through
fraud, deceit, misrepresentation, coercion, or unjust enrichment. Defendant also argued that the
amount in question was less than $1,000. The trial court denied the motion. The jury found
defendant guilty. The trial court sentenced defendant as described earlier in this opinion.
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Subsequently, defendant moved for a new trial and to vacate the order imposing court costs on
defendant. In this motion and the supporting brief, defendant argued that defense counsel was
ineffective for failing to request a specific unanimity jury instruction and that the court costs
assessed against defendant must be vacated because the statute under which those costs were
assessed, MCL 769.1k(1)(b)(iii), was unconstitutional.1 The prosecution opposed this motion,
arguing that a specific unanimity jury instruction was not required in this case and that defendant
had failed to establish that the statute under which she was assessed court costs was
unconstitutional. At the conclusion of the hearing, the trial court denied defendant’s motion in its
entirety. This appeal followed.
II. ANALYSIS
Defendant first argues that the trial court erred when it did not provide the jury with a
specific unanimity instruction. Alternatively, defendant argues that defense counsel was
ineffective for failing to request a specific unanimity instruction. We conclude that defendant has
established her claim of ineffective assistance of counsel and is entitled to a new trial.
A. SPECIFIC UNANIMITY INSTRUCTION
“A defendant in a criminal trial is entitled to have a properly instructed jury consider the
evidence against him or her.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007).
Criminal defendants have the right to a unanimous jury verdict. People v Cooks, 446 Mich 503,
510-511; 521 NW2d 275 (1994). “In order to protect a defendant’s right to a unanimous verdict,
it is the duty of the trial court to properly instruct the jury regarding the unanimity requirement.”
Id. at 511. Our Supreme Court has held that “when the state offers evidence of multiple acts by a
defendant, each of which would satisfy the actus reus element of a single charged offense, the trial
court is required to instruct the jury that it must unanimously agree on the same specific act if the
acts are materially distinct or if there is reason to believe the jurors may be confused or disagree
about the factual basis of the defendant’s guilt.” Id. at 530. “The critical inquiry is whether either
party has presented evidence that materially distinguishes any of the alleged multiple acts from
the others.” Id. at 512. Moreover, a general unanimity instruction is not adequate where one party
“has offered materially distinct proofs regarding one of the alternatives . . . .” Id. at 524.
In the instant case, the prosecution alleged that there were two acts that comprised
defendant’s crime: (1) the receipt of four checks from the victim’s bank account, and (2) the failure
to pay rent to the victim. Defendant provided separate explanations for each of the checks that she
received and why her receipt of those checks did not constitute a crime. Defendant also alleged
that she made all the required rent payments and that any of the rent payments that were not given
to the victim were because of a failure by George. The trial court provided the jury with a general
unanimity instruction, which stated that the jury’s verdict must be unanimous.
1
Defendant acknowledged that this Court’s decision in People v Johnson, 336 Mich App 688,
691; 971 NW2d 692 (2021), which held that MCL 769.1k(1)(b)(iii) was not facially
unconstitutional, was binding. However, defendant argued that Johnson was wrongly decided.
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Under the Michigan Supreme Court’s holding in Cooks, 446 Mich at 511-512, a specific
unanimity instruction was required in this case. The prosecutor offered evidence of different acts
that would satisfy the charged offense, and defendant provided different defenses for each of the
four checks she received and denied that she failed to pay rent. Therefore, there is a possibility
that some of the jurors believed that defendant embezzled money by receiving the four checks, but
not by failing to make rent payments, while other jurors believed that defendant failed to make
rent payments, but did not embezzle funds by way of the received checks. See id. at 524. This
case is distinguishable from Cooks, 446 Mich at 528, where the defendant merely put forth a
blanket denial of all inappropriate behavior.
In denying defendant’s motion for a new trial, the trial court emphasized that Cooks applied
to situations where the prosecution offered evidence of multiple acts, “each of which would satisfy
the actus reus element of a single charged offense.” See id. at 530. The trial court opined that
Cooks did not apply to the instant case because “[n]o single act of the defendant, no single check
received, was sufficient to satisfy the actus reus element of the charged offense,” i.e., no single
check was in an amount greater than $1,000. But in this matter, because the jury could convict
defendant by finding that some, but not all, of the alleged acts were proven beyond a reasonable
doubt, it is impossible to determine if the jury unanimously agreed upon acts underlying
defendant’s conviction. This is the very problem that the specific unanimity instruction is designed
to address. See id. at 525, 528; People v Yarger, 193 Mich App 532, 537; 485 NW2d 119 (1992).
When a combination of some, but not all, alleged acts would satisfy the actus reus of the charged
offense, then the danger that the jury’s conviction is not based on unanimous agreement as to
which acts defendant committed is just as present as in a situation in which each of the multiple
acts alleged would, by themselves, satisfy the actus reus.
The prosecution’s argument that this was a “multi-theory” case and not a “multiple acts”
case is unpersuasive. The prosecution’s case was based on the allegation that defendant committed
multiple acts, i.e., receiving unauthorized checks from the victim’s account on four occasions and
failing to pay rent an on unspecified number of occasions. Under the plain meaning of the phrase,
the prosecution proceeded on a multiple-acts basis. Moreover, the case cited by the prosecution,
People v Johnson, 187 Mich App 621; 468 NW2d 307 (1991), provides an example of a “multi-
theory” case and is distinguishable from the instant case. In Johnson, the prosecution alleged that
defendant committed one act and the prosecution proceeded on multiple theories regarding the
defendant’s state of mind when committing that act. Id. at 629-630. This Court held that the jury
did not need to unanimously agree on which one of these states of mind defendant had when he
committed the act. Id. Although the jury in Johnson was presented with multiple possible states
of mind that the defendant could have had that would satisfy the charge, there was no danger that
the jury might not unanimously agree on the actus reus of the charge. This is distinct from the
instant case, in which the jury was presented with a number of alleged acts, and a combination of
some, but not all, of those acts would satisfy the charge.
In sum, we conclude that a specific unanimity instruction was required under the facts of
this case.
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B. INEFFECTIVE ASSISTANCE OF COUNSEL
Whether defendant is entitled to a new trial because he or she received ineffective
assistance of counsel is a mixed question of law and fact. People v Trakhtenberg, 493 Mich 38,
47; 826 NW2d 136 (2012). We review the trial court’s findings of fact for clear error and questions
of law de novo. Id. When there has been no evidentiary hearing held below, our review is limited
to mistakes that are apparent on the record. People v Gioglio (On Remand), 296 Mich App 12, 20;
815 NW2d 589 (2012), vacated not in relevant part 493 Mich 864 (2012).
To prevail on a claim of ineffective assistance of counsel, defendant must demonstrate that
(1) defense counsel’s performance fell below an objective standard of reasonableness, and (2) but
for counsel’s deficient performance, there is a reasonable probability that the result of the trial
would have been different. Strickland v Washington, 466 US 668, 690; 104 S Ct 2052; 80 L Ed
674 (1984); Trakhtenberg, 493 Mich at 51.
When analyzing whether defense counsel’s representation fell below an objective standard
of reasonableness, there is a strong presumption that defense counsel “rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional judgment.”
People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). Defense counsel’s conduct does
not fall below an objective standard of reasonableness if the court can conceive of a legitimate
strategic reason for that conduct. People v Clark, 330 Mich App 392, 427; 948 NW2d 604 (2019).
Regarding the prejudice prong, defendant has the burden to prove that, but for counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different. See Vaughn, 491 Mich at 671; Trakhtenberg, 493 Mich at 51. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 US at 664.
We conclude that the lack of a specific unanimity instruction in this case is sufficient to undermine
confidence in the outcome of the trial. Id.In the instant case, defendant has shown that defense counsel’s performance fell below an
objective standard of reasonableness. See id. at 688; Trakhtenberg, 493 Mich at 51. As discussed,
a specific unanimity instruction was appropriate in this matter because of the multiple acts alleged
by the prosecution and the distinct defenses defendant put forth for each alleged act. Additionally,
we cannot conceive of a strategic reason for defense counsel to not request a specific unanimity
instruction. See Clark, 330 Mich App at 427. Therefore, we conclude that defense counsel’s
performance fell below an objective standard of reasonableness when she did not request a specific
unanimity instruction. See Strickland, 466 US at 688; Trakhtenberg, 493 Mich at 51.
We also conclude that there is a reasonable probability that failure to request a specific
unanimity instruction affected the outcome of the trial. We cannot say with any confidence that
there was unanimity on defendant’s conviction relative to the specific underlying acts supporting
that conviction. See Strickland, 466 US at 664. We cannot conclude so because the trial court did
not give the jury a specific unanimity instruction, nor was one requested by defense counsel.
Although the evidence may have been sufficient for a jury to conclude that defendant committed
all of the alleged acts, it appears reasonably probable that the jurors could have assessed the weight
and credibility of the evidence differently and reached their verdicts on different factual bases.
Therefore, on this record, we conclude that there is a reasonable probability that, but for counsel’s
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error, a different outcome would have resulted. Having established her ineffective assistance of
counsel claim, defendant is entitled to a new trial. Trakhtenberg, 493 Mich at 51.
We vacate defendant’s conviction and remand for a new trial. We do not retain
jurisdiction.2
/s/ Michelle M. Rick
/s/ Mark T. Boonstra
/s/ Colleen A. O’Brien
2
In light of our ruling, we find it unnecessary to address defendant’s remaining claims.
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