DocketNumber： Docket 86418
Citation Numbers： 405 N.W.2d 182, 158 Mich. App. 508
Judges： D.E. Holbrook, Jr., P.J., and Allen and P.J. Clulo
Filed Date： 3/16/1987
Status： Precedential
Modified Date： 8/24/2023
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, First Assistant Prosecuting Attorney, for the people.
Manuel James J. Lentine, for defendant.
Before: D.E. HOLBROOK, JR., P.J., and ALLEN and P.J. CLULO,[*] JJ.
PER CURIAM.
Defendant was convicted by a jury *510 on February 5, 1985, of the charge of delivery, circulation or sale of a wrongly held or obtained credit card. MCL 750.157q; MSA 28.354(16). Thereafter, she was tried and convicted by the court of being a third-felony offender. MCL 769.11; MSA 28.1083. Defendant was sentenced on April 18, 1985, to from two to four years imprisonment on the underlying conviction. The sentencing was then vacated and defendant was sentenced as a third-felony offender to a term of from three to eight years in prison. Defendant appeals as of right.
On August 3, 1984, defendant and a companion, Diane Vinston, purchased clothing, jewelry and food at the Hudson's store in the Ann Arbor Briarwood Mall. They used credit cards issued in the names of Theresa Holland and Linda Rogers. Further, they had the drivers licenses of these individuals which they provided to salespersons as identification.
Theresa Holland testified that she lost her driver's license in May of 1985, shortly before she moved. She was not receiving her mail for an extended period. When she did receive it on July 30, 1985, she had a number of charge card bills from various stores. She testified that she had never applied for a charge card and that she had never authorized anyone to apply for a charge card in her name. Further, she testified that she knew Vinston from high school and that she had met defendant through Vinston.
Defendant's main ground for appeal is that her alleged wrongful conduct concerning the credit card issued in the name of Theresa Holland does not fall within the parameters of the statute. Defendant claims Theresa Holland was not a "cardholder" as defined by MCL 750.157m(b); MSA *511 28.354(13)(b) and therefore defendant cannot be convicted under the statute. We disagree.
MCL 750.157q; MSA 28.354(16) proscribes and renders felonious the use of a credit card obtained or held under circumstances constituting an offense under MCL 750.157n; MSA 28.354(14) or MCL 750.157p; MSA 28.354(15). Sections 157n and 157p proscribe stealing, knowingly taking, retaining or secreting a credit card without the consent of the cardholder, and the possession, control or receipt of a credit card with the intent to circulate, sell, procure or permit the use, delivery, circulation or sale while knowing that the possession, control or receipt is without the consent of the cardholder.
The term cardholder is defined by MCL 750.157m(b); MSA 28.354(13)(b):
"Cardholder" means (1) the person or organization who requests a credit card and to whom or for whose benefit a credit card is subsequently issued; or (2) the person or organization to whom a credit card was issued and who uses a credit card, whether the issuance of the credit card was requested or not.
Because Holland's own testimony established that (1) Holland never personally requested the credit card, and (2) Holland never used the credit card, defendant claims she did not wrongfully use a credit card of the cardholder. In our opinion, defendant construes the statute far too narrowly. The statute is designed to protect both the issuer and the person in whose name a card is issued. Subsection (1) of MCL 750.157m(b); MSA 28.354(13)(b) provides that protection if a card is deemed "requested" anytime it is issued pursuant to solicitation. In the instant case, the credit card was issued pursuant to solicitation from one whom *512 the issuer believed to be Theresa Holland. Construed in this manner, Holland was a cardholder. Construed narrowly, as defendant urges, the statute affords no protection to the real cardholder or to the issuer where persons representing themselves to be someone else request and receive a credit card. We do not believe the Legislature intended to exclude from the act's operation fraudulent users who obtained unrequested cards before the real owner has used the card.
Defendant also contends the trial court erred when it did not sua sponte instruct the jury as to the definition of cardholder. Defendant made no request for the instruction and did not object when instructions were given. In the absence of an objection, alleged errors in jury instructions are deemed waived unless a miscarriage of justice results. People v Trammell, 70 Mich. App. 351, 354; 247 NW2d 311 (1976); People v Vicuna, 141 Mich. App. 486, 492; 367 NW2d 887 (1985). Given the construction of the statute set forth in our discussion of issue I, manifest injustice does not occur from omission of the cardholder instructions. CJI 30:1:01. The instructions given by the court parallel the statute and Holland was clearly a cardholder. Thus, defendant would gain no benefit by an instruction on who is a cardholder.
Affirmed.
[*] Circuit judge, sitting on the Court of Appeals by assignment.