People v. Ramsey

553 N.W.2d 360 (1996) 218 Mich. App. 191

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Michael RAMSEY, Defendant-Appellant.

No. 186989.

Court of Appeals of Michigan.

Submitted July 9, 1996 at Lansing. Decided August 6, 1996, at 9:30 a.m. Released for Publication September 27, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, for the People.

Robert G. Fleming, Williamston, for defendant on appeal.

Before NEFF, P.J., and FITZGERALD and C.A. NELSON,^[*] JJ.

FITZGERALD, Judge.

Defendant was charged with unarmed robbery, M.C.L. § 750.530; M.S.A.§ 28.798. Following a bench trial, he was convicted of larceny in a building, M.C.L. § 750.360; M.S.A. § 28.592, and was sentenced to a prison term of one to four years. Defendant appeals as of right. We affirm.

On December 12, 1994, Gloria Lane was observed by Kmart employees entering the Kmart store in Dearborn. Shortly thereafter, defendant and Lane were observed approaching the exit door of the store with a shopping cart containing unbagged Kmart merchandise. Employee Keith Calloway approached defendant and Lane immediately outside the Kmart automobile service entrance and requested to review the merchandise sales receipt. Neither defendant nor Lane was able to produce a receipt. Defendant and Lane then continued to proceed out the door.

Kmart employees Alfred Andrade and Paul Kohmescher came to assist Calloway. Defendant brandished a knife, and a struggle ensued. Lane threatened to shoot if the employees did not release defendant. Defendant was eventually restrained, and Lane fled the scene with a chain saw she retrieved from the shopping cart.

On appeal, defendant contends that the Legislature's enactment of the first-degree retail fraud statute, M.C.L. § 750.356c; M.S.A. § 28.588(3), precludes his conviction of larceny in a building. Under the facts of this case, we disagree.

The first-degree retail fraud statute provides:

(1) A person who does any of the following in a store or in its immediate vicinity is guilty of retail fraud in the first-degree, a felony punishable by imprisonment for not more than 2 years, or a fine of not more than $1,000.00, or both:

(a) While a store is open to the public, alters, transfers, removes and replaces, conceals, or otherwise misrepresents the price at which property is offered for sale, with the intent not to pay for the property or to pay less than the price at which the property is offered for sale, if the resulting difference in price is more than $100.00.

(b) While a store is open to the public, steals property of the store that is offered for sale at a price of more than $100.00.

(c) With the intent to defraud, obtains or attempts to obtain money or property from the store as a refund or exchange for property that was not paid for and belongs to the store, if the amount of money, or the value of the property, obtained or attempted to be obtained is more than $100.00.

(2) A person who violates section 356d [^[1]] and has 1 or more prior convictions under this section, section 218, 356, 356d, or 360,[^[2]] or a local ordinance substantially corresponding to this section or section 218, 356, 356d, or 360 is guilty of retail fraud in the first degree.

(3) A person who commits the crime of retail fraud in the first degree shall not be prosecuted under the felony provision of section 356,[^[3]] or under section 218 or 360.[^[4]] [M.C.L. § 750.356c; M.S.A. § 28.588(3) (emphasis added).]

Defendant argues that § 356c(3) precludes his conviction under § 360. However, a plain reading of the statute reveals a clear legislative expression of intent to limit prosecutorial charging discretion. See, e.g., People v. Little, 434 Mich. 752, 760, n. 9, 456 N.W.2d 237 (1990). Therefore, a prosecutor is prohibited by § 356c(3) from charging a defendant with the felony of larceny in a building for acts that constitute first-degree retail fraud. See, e.g., People v. Johnson, 207 Mich.App. 263, 265, 523 N.W.2d 655 (1994); People v. Odendahl, 200 Mich.App. 539, 505 N.W.2d 16 (1993).

Here, however, defendant was charged with unarmed robbery on the basis of his use of force to ensure the complainant's loss of possession. See, e.g., People v. LeFlore, 96 Mich.App. 557, 562-563, 293 N.W.2d 628 (1980). Section 356c(3) does not enumerate unarmed robbery as a crime that may not be charged. The reason for this is apparent: the offense of unarmed robbery requires proof that the taking was accomplished by force and violence, or by assault or putting a person in fear. The additional element of force or assault places the crime outside the definition of first-degree retail fraud as that offense is defined in § 356c. Consequently, § 356c(3) does not limit a prosecutor's discretion to charge a defendant with unarmed robbery where the facts support such a charge.^[5]

Defendant also argues that § 356c(3) prohibits a conviction of larceny in a building where the facts established at trial reveal that the defendant committed first-degree retail fraud. Again, we disagree. Section 356c(3) limits only prosecutorial charging discretion and, by its plain terms, does not prohibit a conviction for larceny in a building as a cognate lesser included offense of unarmed robbery where, as here, the evidence is sufficient to support the conviction.^[6]

Affirmed.

NOTES

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

[1] M.C.L. § 750.356d; M.S.A. § 28.588(4).

[2] M.C.L. § 750.218; M.S.A. § 28.415, M.C.L. § 750.356; M.S.A. § 28.588, M.C.L. § 750.356d; M.S.A. § 28.588(4), or M.C.L. § 750.360; M.S.A. § 28.592.

[3] M.C.L. § 750.356; M.S.A. § 28.588.

[4] M.C.L. § 750.218; M.S.A. § 28.415 or M.C.L. § 750.360; M.S.A. § 28.592.

[5] Defendant has not raised an argument regarding the sufficiency of the evidence to support an unarmed robbery charge.

[6] Larceny in a building is a cognate lesser included offense of armed robbery. People v. Stein, 90 Mich.App. 159, 167, 282 N.W.2d 269 (1979). Armed robbery differs from unarmed robbery only by the presence of a weapon. People v. Parker, 417 Mich. 556, 565, 339 N.W.2d 455 (1983). It follows, therefore, that larceny in a building is also a cognate lesser included offense of unarmed robbery.