People of Michigan v. Bianca Jalissa May ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 13, 2023
Plaintiff-Appellee,
v No. 360801
Macomb Circuit Court
BIANCA JALISSA MAY, LC No. 2021-000810-FH
Defendant-Appellant.
Before: CAVANAGH, P.J., and BOONSTRA and RIORDAN, JJ.
PER CURIAM.
Defendant, Bianca Jalissa May, appeals as of right her bench trial conviction for the illegal
use of a financial transaction device in violation of MCL 750.157q. Defendant was sentenced to
two years’ probation. We reverse and remand for entry of a verdict of not guilty.
I. RELEVANT FACTS AND PROCEEDINGS
This case arises out of the use of an electronic benefit transfer card (also known as an EBT
or bridge card), or card number, that was issued to Renard Dickerson. Defendant and Dickerson
agreed that Dickerson allowed defendant to use the card while they were in a relationship, but they
disagreed about when the relationship ended. Defendant testified that they were still in a
relationship when she used the card, while Dickerson testified that their relationship had been over
for months. Dickerson testified that defendant used his card without his knowledge or permission
by manually entering the card number at the store checkout. However, defendant testified that
Dickerson met her in person to give her the card and encouraged her to purchase candy for her
children. Defendant used the card for two purchases: one for $98.65 and one for $136.61. When
Dickerson tried to use the card later the same day, he discovered that his balance on the card was
zero.
In the two days before the police report was filed, Dickerson testified that he called
defendant to question if she used the card and defendant denied use. Dickerson testified that
defendant texted his girlfriend, stating: “thanks for the food stamps, food stamp card. My kids
eating good, eating steaks tonight.” Dickerson also testified that after charges were filed in the
present case, defendant texted Dickerson asking him if he would drop this charge if she dropped
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charges against him in other counties. Defendant denied sending all messages. Defendant testified
that the relationship between her and Dickerson was ongoing and that he encouraged her to use
the card for defendant’s children. Defendant testified that there were issues in the relationship that
may have contributed to Dickerson’s false report.
The trial court convicted defendant based on the court’s assessment of the witnesses’
credibility. The trial court stated that it was clear that purchases were made with the bridge card
and, regardless of whether use of the card was permitted, the amount spent significantly exceeded
the amount necessary to buy candy. The trial court also believed that defendant sent the text
messages that she denied sending. Convinced that defendant lied about the messages, the trial
court reasoned that defendant had the propensity to lie about various other matters, including that
she had permission to use Dickerson’s bridge card. The trial court concluded that defendant
committed the charged crimes, either by using Dickerson’s bridge card without his permission, or
by having Dickerson’s permission to use the card, but spending more than the amount to which he
consented. Specifically, the trial court stated:
[E]ven if I did believe that [defendant] did have the authorization from
Mr. Dickerson to use the card to buy candy, it’s clear, on the basis of this record
that the use was way beyond that which was authorized. And, that’s the thing that
I’m absolutely sure of.
Beyond that, there are a lot of things that I would say I’m not sure of beyond
a reasonable doubt.
II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the evidence was insufficient to find her guilty of the illegal use of
a financial transaction device in violation of MCL 750.157q. We agree.
This Court reviews a challenge to the sufficiency of the evidence de novo. People v
Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). This Court reviews the evidence “in the
light most favorable to the prosecution to determine whether a rational trier of fact could have
found the essential elements of the crime to have been proved beyond a reasonable doubt.” Id.The trial court convicted defendant of illegal use of a financial transaction device in
violation of MCL 750.157q, which provides:
A person who delivers, circulates, or sells a financial transaction device
which was obtained or held by that person under circumstances prescribed under
[MCL 750.157n, MCL 750.157p, or MCL 750.157v], or uses, permits, causes, or
procures the financial transaction device to be used, delivered, circulated, or sold,
knowing the device to have been obtained or held under circumstances proscribed
under section 157n, 157p, or 157v is guilty of a felony.
During opening statement, the prosecutor explained that MCL 750.157n was most
applicable to the instant case. MCL 750.157n, provides:
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A person who steals, knowingly takes, or knowingly removes a financial
transaction device from the person or possession of a deviceholder, or who
knowingly retains, knowingly possesses, knowingly secretes, or knowingly uses a
financial transaction device without the consent of the deviceholder, is guilty of a
felony.
When reviewing challenges to the sufficiency of the evidence, this Court must not interfere
with the fact-finder’s role in deciding the weight and credibility to give to a witness’s testimony;
this Court may not “determine the credibility of witnesses . . . , no matter how inconsistent or
vague that testimony might be.” People v Mehall, 454 Mich 1, 6; 557 NW2d 110 (1997). This
Court may not decide credibility because, as this Court has observed, even liars “tell[] many
truths,” and it is for the fact-finder to “sift the true from the false[.]” People v Miceli, 35 Mich
App 176, 178; 192 NW2d 335 (1971) (quotation marks and citation omitted).
Circumstantial evidence and the reasonable inferences that arise from the evidence can
constitute satisfactory proof of the elements of the crime. People v Carines, 460 Mich 750, 757;
597 NW2d 130 (1999). This Court must consider all the inferences that can be fairly drawn from
the evidence when considering the sufficiency of the evidence because, when evidence is relevant
and admissible, “it does not matter that the evidence gives rise to multiple inferences or that an
inference gives rise to further inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d
158 (2002). In such cases, it is for the fact-finder alone to “determine what inferences may be
fairly drawn from the evidence and to determine the weight to be accorded [to] those inferences.”
Id.In this case, defendant opted for a bench trial rather than a jury trial. Although the same
preceding legal principles apply in both a bench trial and a jury trial, the Michigan Supreme Court
has explained that there is a “sharp contrast” between bench trials and jury trials when it comes to
consideration of the evidence and rendering a verdict:
A jury is required to consider all the evidence and to render a unanimous verdict,
without the need for explanation. In a bench trial, however, the trial court is
obligated to find the facts specially, state separately its conclusions of law, and
direct entry of the appropriate judgment. The court must state its findings and
conclusions on the record or in a written opinion made a part of the record. Because
of this, reviewing courts are provided greater insight into the specific evidence
found by the trial court to support verdicts in bench trials. [People v Wang, 505
Mich 239, 250; 952 NW2d 334 (2020) (quotation marks and citations omitted).]
Defendant argues on appeal that the evidence was insufficient to convict her under
MCL 750.157q because she had permission to use the bridge card. Defendant maintains that she
did not steal or take the bridge card or use the card, or the card number, without Dickerson’s
consent. Defendant contends that the statute addresses authorized or unauthorized use only, and
she was authorized to use the card, and she points out that the trial court did not find as a matter
of fact that she did not have permission to use the bridge card. Defendant argues that the trial
court’s finding that she violated the statute because she spent more than what it believed it cost to
purchase candy is not consistent with the plain language of the statute, which addresses use, not
the extent of use. Additionally, even if spending more than the card owner consented to did fall
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within the language of the statute, the trial court made no factual finding about how much
defendant was allowed to spend. Defendant maintains that her purchase of candy and additional
food items was an authorized use of the card. Defendant’s argument has merit.
The trial court specifically stated that the basis of the court’s decision to convict defendant
was the court’s assessment of defendant’s credibility and propensity to lie. The trial court
unequivocally believed that defendant lied about the text message evidence introduced at trial and
that, given defendant’s untruthfulness about that, the court could reasonably infer that defendant
lied about having permission to use the bridge card.
Nevertheless, the trial court did not find that the evidence established beyond a reasonable
doubt that defendant did not have permission to use the card. In fact, the only finding of fact that
the trial court was “absolutely sure of” was that defendant used the card beyond the amount
authorized. The court acknowledged that, “[b]eyond that, there were a lot of things that [the
court’s] not sure of beyond a reasonable doubt.” However, the plain language of the statute does
not make it illegal for someone to exceed one’s spending authority when using a financial
transaction device with the permission of the device holder. In fact, the scope of spending authority
is not mentioned in the language of the statute at all. Although the trial court did not find defendant
credible and intimated that the court did not believe that she had Dickerson’s permission to use the
bridge card, it is at best unclear whether the trial court found beyond a reasonable doubt that
defendant used the card without Dickerson’s consent.
In a criminal case, due process requires that a prosecutor introduce evidence sufficient to
justify a rational trier of fact in finding guilt beyond a reasonable doubt. People v Wolfe, 440 Mich
508, 513-514; 489 NW2d 748, amended 441 Mich 1201 (1992). In this case, notwithstanding the
trial court’s finding that defendant was not credible in some respects about “things that really didn’t
matter all that much” and that she, therefore, could be generally disbelieved, the evidence was
insufficient for the fact-finder to state beyond a reasonable doubt that defendant used Dickerson’s
card without permission. See Meissner, 294 Mich App at 452. That is, the facts as found by the
trial court did not support the verdict rendered. See Wang, 505 Mich at 250. For this reason, we
reverse and remand this matter for entry of a not guilty verdict. See People v Mitchell, 301 Mich
App 282, 294; 835 NW2d 615 (2013) (noting that acquittal is the proper remedy when the
defendant’s conviction was not supported by sufficient evidence).
Reversed and remanded for entry of a verdict of not guilty. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Mark T. Boonstra
/s/ Michael J. Riordan
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