People v. Houseman

128 Mich. App. 17 (1983) 339 N.W.2d 666

PEOPLE
v.
HOUSEMAN
PEOPLE
v.
WAWEE

Docket No. 70944.

Michigan Court of Appeals.

Decided August 2, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.

Charles S. Rominger, Jr., for defendant Houseman.

Before: D.E. HOLBROOK, JR., P.J., and T.M. BURNS and MacKENZIE, JJ.

PER CURIAM.

On November 30, 1978, both defendants were bound over to the circuit court after a preliminary examination in the district court on one count of false pretenses, MCL 750.218; MSA 28.415, and one count of conspiracy to commit false pretenses, MCL 750.157a(a); MSA 28.354(1)(a), and MCL 750.218; MSA 28.415. On June 26, 1979, the trial court signed an order quashing the information. The prosecutor appealed as of right. On September 9, 1980, this Court affirmed in an unpublished opinion. (Docket No. 46330). However, on April 19, 1983, the Supreme Court remanded this case to this Court "for reconsideration in light of People v Ford, People v Gonzales, and People v Howard, 417 Mich. 66 [331 NW2d 878] (1982)." 417 Mich. 944 (1983).

Basically, the evidence produced at the preliminary examination showed that some of the employees (including both defendants) at Harvey Cadillac in Grand Rapids habitually turned back the odometers on high mileage used cars before selling them. In particular, a 1977 Cadillac was sold to Harvey Cadillac in late March, 1978, with over 30,000 miles on it. However, when it was sold by Harvey Cadillac about one month later, it had 14, 275 miles on it.

The first issue is whether or not the prosecution abused its discretion in charging defendants with false pretenses, MCL 750.218; MSA 28.415, a ten-year felony, rather than charging them with tampering with an odometer, MCL 257.233a(3); MSA 9.1933(1)(3), a 90-day misdemeanor. The elements of false pretenses are 1) an intent to defraud, 2) the false pretense or representation concerning an existing fact, and 3) the fraud accomplished. People v Taurianen, 102 Mich. App. 17, 27; 300 NW2d 720 (1980); Attorney General v Recorder's Court Judge, 92 Mich. App. 42, 48; 285 NW2d 53; 16 ALR4th 48 (1979), lv den 407 Mich. 955 (1980). The tampering with an odometer statute states:

"A person who * * * in the course of offering, dealing or disposing of any new or used motor vehicle subject to the provisions of subsection (1) alters the mileage reading of an odometer shall be fined not more than $100.00 or imprisoned not more than 90 days." MCL 257.233a(3); MSA 9.1933(1)(3).

In the present case, defendants' alleged behavior violates both statutes. Generally, a prosecutor has broad discretion in choosing which of two statutes to prosecute under. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672; 194 NW2d 693 (1972); People v Lombardo, 301 Mich. 451; 3 NW2d 839 (1942). However, where two statutes appear to be in conflict, the specific statute enacted after the more general statute prevails. People v McFadden, 73 Mich. App. 232, 235; 251 NW2d 297 (1977).

Defendants basically rely on two cases in arguing that the trial court did not err in quashing the information. In State v Kliewer, 210 Kan 820; 504 P2d 580 (1972), the Kansas Supreme Court held that the defendant had to be prosecuted under the more specific odometer statute rather than the deceptive commercial practices statute. In People v LaRose, 87 Mich. App. 298; 274 NW2d 45 (1978), lv den 406 Mich. 943 (1979), this Court held that the prosecutor must bring charges under the delivery of an insufficient funds check statute, MCL 750.131; MSA 28.326, rather than under the general false pretenses statute, where the only false representation was in presenting an insufficient funds check. However, in both Kliewer and LaRose, the two respective statutes generally encompassed the same activity. In other words, in Kliewer, the odometer statute did not have an extra element not present in the deceptive practices statute. The same analysis applies in LaRose.

In People v Ford, 417 Mich. 66; 331 NW2d 878 (1982), the Supreme Court held that the defendant could properly be charged with uttering and publishing even though the facts of the case also showed that he could have been charged with misuse of a credit card. Uttering and publishing requires a forgery which could be done through misusing a credit card. However, misuse of a credit card does not necessarily require a forgery.

The crime of false pretenses requires proof of an intent to defraud; this element of the crime could be accomplished through proof of the turning back of an odometer and the selling of the car at an inflated price. However, the odometer statute in Michigan does not require the intent to defraud.^[1] MCL 257.233a(5); MSA 9.1933(1)(5) states:

"A person who, with intent to defraud, * * * alters the mileage on an odometer of a vehicle subject to subsection (1), is liable in an amount equal to the sum of 3 times the amount of actual damages sustained or $1500.00 whichever is greater, and in the case of a successful recovery of damages, the costs of the action together with reasonable attorney's fees."

If subsection (3) requires proof of an intent to defraud, the words "with intent to defraud" in subsection (5) would be redundant.

The main purpose behind the odometer statute is to protect the buyer from being defrauded by a seller who fraudulently turns back the odometer. People v Jack Dykstra Ford, Inc, 52 Mich. App. 337, 340; 217 NW2d 99 (1974). However, that does not mean that the prosecutor may not charge with false pretenses if the facts show an intent to defraud. Intentionally defrauding someone is a felony. Merely because the fraud was obtained through turning back an odometer does not make the offense less culpable. The prosecution did not abuse its discretion in charging with false pretenses. Both State v Rentfrow, 15 Wash App 837; 552 P2d 202 (1976), and People v Ross, 25 Cal App 3d 190; 100 Cal Rptr 703 (1972), arrived at the same conclusion.

Because rolling back an odometer does not require the intent to defraud and because that element was sufficiently shown in the preliminary examination, the district court did not abuse its discretion in binding over on false pretenses. Similar reasoning has been used in People v Vannoy, 417 Mich. 946 (1983), People v Joseph (On Remand), 127 Mich. App. 78; 338 NW2d 727 (1983), People v Goodchild, 68 Mich. App. 226; 242 NW2d 465 (1976), Iv den 397 Mich. 830 (1976), People v Sanford, 65 Mich. App. 101; 237 NW2d 201 (1975), aff'd 402 Mich. 460; 265 NW2d 1 (1978), People v Ferguson, 60 Mich. App. 302; 230 NW2d 406 (1975), Iv den 396 Mich. 857 (1976), and People v Shaw, 27 Mich. App. 325; 183 NW2d 390 (1970), lv den 385 Mich. 760 (1971).

The trial court also quashed the false pretenses count against defendant Houseman. The testimony at the preliminary examination showed that some of the employees at Harvey Cadillac, including defendant Houseman, would regularly turn back the odometers on high mileage cars. However, no one testified that, outside of generally approving and ordering this practice, defendant Houseman had anything to do with turning back the odometer on the 1977 Cadillac mentioned in the false pretenses count.

True, the evidence was insufficient to establish probable cause that defendant Houseman had committed the crime as a principal. However, it sufficiently showed conspiratorial liability. The gist of conspiracy is the unlawful agreement. People v Carter, 415 Mich. 558, 568; 330 NW2d 314 (1982). A conspirator need not participate in all the objects of the conspiracy. People v Garska, 303 Mich. 313; 6 NW2d 527 (1942). In fact, he need not even know all the other co-conspirators. People v DeLano, 318 Mich. 557, 567; 28 NW2d 909 (1947), cert den 334 U.S. 818; 68 S. Ct. 1082; 92 L. Ed. 1748 (1948). In fact:

It is a general rule that each conspirator is criminally responsible for the acts of his associate committed in furtherance of the common design and before the accomplishment thereof, the act of one or more being in contemplation of law the act of all." 15A CJS, Conspiracy, § 74, p 825.

This rule is followed in Michigan. Carter, supra, 415 Mich. 581, fn 23; People v Roxborough, 307 Mich. 575; 12 NW2d 466 (1943), cert den 323 U.S. 749; 65 S. Ct. 80; 89 L. Ed. 600 (1944); People v Knoll, 258 Mich. 89; 242 N.W. 222 (1932); People v Lay, 193 Mich. 476; 160 N.W. 467 (1916). See also Pinkerton v United States, 328 U.S. 640; 66 S. Ct. 1180; 90 L. Ed. 1489 (1946).

In the present case, the evidence showed that the common design was to regularly turn back the odometer to defraud customers. The turning back of the odometer in the 1977 Cadillac was an act in furtherance of this conspiracy. To the extent that the evidence showed that Houseman was a part of this conspiracy, he is also liable for this particular criminal act. The evidence at the preliminary examination sufficiently established probable cause on the false pretenses count. The trial court erred in ruling that the district court had abused its discretion in binding over defendant Houseman on the false pretenses count.

Reversed and remanded with instructions to proceed according to this opinion.

NOTES

[1] See State v Waldenburg, 9 Wash App 529; 513 P2d 577 (1973).