PEOPLE OF MI V GINGER LEE ANDERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
October 13, 2005
9:10 a.m.
Plaintiff-Appellee,
v
No. 256206
Grand Traverse Circuit Court
LC No. 03-009171-FH
GINGER LEE ANDERSON,
Defendant-Appellant.
Official Reported Version
Before: O'Connell, P.J., and Sawyer and Murphy, JJ.
SAWYER, J.
We are asked in this case to resolve the question whether an employee who is issued a
credit card on the employer's account can be guilty of knowingly using a financial transaction
device without the consent of the deviceholder1 where the employee uses the credit card outside
the scope of the authority granted by the employer. We hold that where an employer has a
business credit card account and requests that a credit card for that account be issued in the
employee's name, that employee is a "deviceholder" and, therefore, cannot be guilty of violating
MCL 750.157n(1). Accordingly, we reverse defendant's convictions of two counts of violating
MCL 750.157n(1).
Defendant was employed by the Land Information Access Association (LIAA) as a
bookkeeper. At the time of her employment, defendant was a student at Northwestern Michigan
College, seeking a degree in bookkeeping. LIAA's executive director, Joseph Vandermuellen,
testified that LIAA had a Visa credit card account and that Visa cards would be obtained for each
employee with the name of LIAA and of the individual employee embossed on the card. Each
employee was authorized to make purchases on behalf of LIAA of up to $50 at their own
discretion and could make transactions over $50 if authorized by Vandermuellen. After
Vandermuellen hired defendant, a card was issued in defendant's name at LIAA's request.
Vandermuellen testified that he explained the policy to defendant. Nevertheless, approximately
two months after she was hired, defendant made three unauthorized purchases with the Visa
card. Two transactions, for $105.95 and $211.95, were for purchases from Northwestern
Michigan College's bookstore and a third transaction, for $578.50, was for a tuition payment at
1
MCL 750.157n(1).
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Northwestern Michigan. After these transactions were discovered, defendant's employment was
terminated and the criminal charges were filed.
On appeal, defendant argues that there was insufficient evidence to support her
convictions because the statute requires that the use of the financial transaction device be without
the consent of the deviceholder and, because she was a deviceholder, the use was with her
consent. We agree and reverse defendant's convictions.
We review challenges to the sufficiency of the evidence by viewing the evidence in the
light most favorable to the prosecutor and determining whether a rational trier of fact could find
guilt beyond a reasonable doubt.2 We review de novo the question of the proper interpretation of
the statute.3
Defendant was convicted of violating MCL 750.157n(1), which provides as follows:
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 secrets, or knowingly uses a
financial transaction device without the consent of the deviceholder, is guilty of a
felony.
Defendant argues that because she is a deviceholder of the credit card at issue, her use was not
without consent because she consented to its use. The prosecutor argues that defendant does not
fit the definition of "deviceholder" and, therefore, she is guilty under this statute:
MCL 750.157m(d) defines "deviceholder" as follows:
"Deviceholder" means either of the following:
(i) The person or organization who requests a financial transaction device
and to whom or for whose benefit a financial transaction device is subsequently
issued.
(ii) The person or organization to whom a financial transaction device
was issued and who used or accepted a financial transaction device, whether the
issuance of the financial transaction device was requested or not.
Because defendant did not request the issuance of the card, she does not fit the first definition of
"deviceholder." But we agree with defendant that she fits the second definition of
"deviceholder." The Visa card was issued to her. It had her name on it and it was specifically
issued for the purpose of being given to defendant for her use. Thereafter, she used it.
Therefore, it meets the requirements of MCL 750.157m(d)(ii) that the financial transaction
2
People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999).
3
People v Maynor, 470 Mich 289, 294; 683 NW2d 565 (2004).
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device be issued to her and be used by her, thus bringing defendant within the definition of
"deviceholder." And because defendant was a deviceholder, she cannot be guilty of using the
card with the consent of the deviceholder because she is the deviceholder, and thus was capable
of giving consent to its use.
The prosecutor argues that this definition is inapplicable because the financial transaction
device was issued to LIAA, not to defendant. If only LIAA's name appeared on the card and the
card was retained by the executive director and given to an employee to use as needed, we might
agree with the prosecutor's argument. In such a case, it would be plausible to argue that the card
was not issued to defendant. But here, in addition to LIAA's name on the card, defendant's name
also appeared on the card and defendant, apparently like any other LIAA employee, had her own
individual card. Either of these facts would indicate that the card was issued to her. With both
of those facts, then, it is very clear that she was a deviceholder of the card.
The prosecutor also urges a broad interpretation of MCL 750.157n(1), relying on People
v Collins.4 First, we note that there is a certain irony in the prosecutor's argument, because
Collins dealt with the definition of "cardholder" under a predecessor statute, with this Court
rejecting a narrow definition of "cardholder," and the prosecutor in this case urges us to adopt a
narrow definition of "deviceholder." Second, we believe that the prosecutor's argument in any
event is without merit. In Collins, the defendant had obtained the issuance of a credit card in the
victim's name without the victim's knowledge and, having previously stolen the victim's driver's
license, was able to fraudulently use the card. The defendant argued that she could not be guilty
of the use of the credit card without the cardholder's consent because the victim (i.e., the person
in whose name the card was issued) had never actually requested or used the card. This Court
rejected the argument, noting among other things that it did not believe that the Legislature
intended to exclude from the coverage of the statute fraudulent users who had obtained
unrequested cards before the real owner had used the card. Id. at 512.
We do not believe that Collins supports the prosecutor's position in the case at bar. First,
where a statute is unambiguous, we apply the statute as written and give the words their plain
meaning.5 Here, MCL 750.157n(1) is unambiguous; the use must be without the consent of the
deviceholder. Because defendant is a deviceholder, under the plain meaning of the statute she
cannot be in violation of the statute. There is no basis for giving the statute a broad or narrow
interpretation. The interpretation is clear, and we need not delve into what the Legislature's
intent may have been. What the Legislature did was write a statute that does not apply to
deviceholders. And the definition of "deviceholder" written by the Legislature clearly includes
defendant.
Second, we do not necessarily agree with the prosecutor's premise that it is unlikely that
the Legislature intended to "exclude from the act's operation users of legally obtained credit
cards who then fraudulently use the cards for prohibited purchases." It seems to us that the
4
158 Mich App 508; 405 NW2d 182 (1987).
5
Maynor, supra at 295.
-3-
Legislature may very well have intended precisely that because another crime, embezzlement,
applies to this situation. Thus, the Legislature may very well have concluded that
nondeviceholders would be charged under MCL 750.157n, while deviceholders who improperly
use the card entrusted to them by their employer would be charged with embezzlement.
Ultimately we need not reach that question because the prosecutor in this case chose not to
charge embezzlement, but instead charged defendant with a financial transaction device offense,
which does not apply to these facts. Accordingly, we must conclude that there was insufficient
evidence to support defendant's convictions in this case.
Because we conclude that defendant's convictions must be set aside for these reasons, we
need not consider defendant's remaining arguments.
Reversed.
/s/ David H. Sawyer
/s/ Peter D. O'Connell
/s/ William B. Murphy
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