PEOPLE OF MI V TAMMY ANN SAURO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 27, 2007
Plaintiff-Appellee,
v
No. 265951
Livingston Circuit Court
LC No. 04-014640-FH
TAMMY ANN SAURO,
Defendant-Appellant.
Before: Smolenski, P.J., and Saad and Wilder, JJ.
PER CURIAM.
Defendant appeals as of right her conviction of embezzlement of between $1,000 and
$20,000 from a vulnerable adult, MCL 750.174a(4)(a). The trial court sentenced defendant, as a
habitual offender, fourth offense, MCL 769.12, to 6 to 20 years’ imprisonment. We affirm
defendant’s conviction, but remand for resentencing.
Defendant was convicted of embezzling money from Dennis Dolan. Testimony
established that defendant and Dolan began dating in July 2003 and that defendant moved into
Dolan’s house in the spring of 2004. Dolan was born in 1957, but cannot read or write except to
sign his name. Dolan has attended classes for the mentally disabled and has never had a driver’s
license. Dolan’s brother visits him every day and manages his finances. Dolan admitted that he
should not handle his own money.
Dolan testified that he never withdrew money from the bank before he met defendant.
But, after defendant moved in with him, he regularly withdrew money from his bank accounts.
On several occasions, bank employees observed defendant with Dolan while he was making
withdrawals. Dolan testified that after making each withdrawal, he gave the cash to defendant so
that she could buy their food, toiletries, and clothes. Additionally, Dolan paid for a trip to a
carnival with defendant, bought defendant a $1500 car and furniture for their home, and gave
over $500 to defendant’s daughter.
The evidence also established that, between July 9 and July 23, 2004, there were 14 cash
withdrawals from Dolan’s savings account. Indeed, on one day alone there were six withdrawals
from his savings account. In addition, between July 27 and August 3, there were also 6 cash
withdrawals and penalty withdrawals from Dolan’s certificate of deposit (CD). In less than one
month, Dolan’s savings account balance of $8,311.07 was reduced to $11.07, and his CD
balance of $21,232.02 was reduced to zero.
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Defendant first argues that there was insufficient evidence presented at trial for a rational
juror to conclude that she embezzled money from a vulnerable adult. Specifically, she contends
that there was insufficient evidence that she was a “person in a relationship of trust with a
vulnerable adult” within the meaning of MCL 750.174a(11)(c) and that there was insufficient
evidence that obtained the victim’s money through fraud, deceit, misrepresentation, or unjust
enrichment under MCL 750.174a(1).1 We disagree with both contentions.
This Court reviews de novo challenges to the sufficiency of the evidence. People v Cox,
268 Mich App 440, 443; 709 NW2d 152 (2005). When reviewing a sufficiency of the evidence
claim, this Court views 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 were proved
beyond a reasonable doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005). “This
standard is deferential and requires that this Court ‘draw all reasonable inferences and make
credibility choices in support of the jury verdict.’” People v Martin, 271 Mich App 280, 340;
721 NW2d 815 (2006), quoting People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
This Court also reviews de novo the proper interpretation of a statute. Id. at 320. This Court
begins the interpretation of a statute by examining the language of the statute itself. Id. If the
statute is not ambiguous, this Court will not construe it, but will enforce it as written. Id.
Defendant argues that the prosecution failed to produce sufficient evidence that she was
in a “relationship of trust” with Dolan. Defendant asserts that in order for a person to be in a
“relationship of trust” with a vulnerable adult within the meaning of MCL 750.174a(11)(c), the
person must have a care-giving relationship with the vulnerable adult. We disagree.
MCL 750.174a(11)(c) defines “person in a relationship of trust” to mean “a person who
is a caregiver, relative by blood, marriage, or adoption, household member, court-appointed
fiduciary, or other person who is entrusted with or has assumed responsibility for the
management of the vulnerable adult’s money or property.” Generally, a modifying clause is
construed to modify only the last antecedent unless something in the subject matter or purpose of
the statute requires a different interpretation. Dessart v Burak, 470 Mich 37, 41; 678 NW2d 615
(2004). Hence, the clause “who is entrusted with or has assumed responsibility for the
management of the vulnerable adult’s money or property” modifies only “other person.”
Further, the reference to “other person” appears to distinguish those persons from the persons
previously defined to include caregivers, relatives by blood, marriage or adoption, household
members and court-appointed fiduciaries. Therefore, we conclude that MCL 750.174a(11)(c)
creates two separate classes of persons that qualify as persons “in a relationship of trust.” The
first class of persons is made up of those who are caregivers, relatives by blood, marriage, or
adoption, household members and court-appointed fiduciaries. The second class of persons is
made up of persons who have assumed responsibility for the management of the vulnerable
adult’s money or property. Because there was evidence that defendant had moved in with Dolan,
1
Defendant was charged under MCL 750.174a as it existed prior to amendment in 2004.
Therefore, unless otherwise noted, all citations are to MCL 750.174a as it existed prior to
amendment by 2004 PA 255.
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there was clearly sufficient evidence to establish that defendant was a household member and,
consequently, met the definition of a “person in a relationship of trust.”
In addition, we reject defendant’s argument that the legislative history of MCL 750.174a
indicates that “a person in a relationship of trust” must be a caregiver “bound to act in good faith
and with due regard for the vulnerable adult’s interests.” Although courts may look at the
legislative history of an act to ascertain its meaning, the value of legislative history in statutory
construction is limited, Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587; 624
NW2d 180 (2001), and cannot defeat the plain statutory language, People v Adkins, 272 Mich
App 37, 48; 724 NW2d 710 (2006). Further, while the original bill contained language defining
a “person in a relationship of trust” as someone who assumed a duty “to act in good faith and
with due regard for the vulnerable adult’s interests,” this language was not included in the final
version of the statute. We will not speculate as to the intent of the Legislature beyond the
language expressed in the statute. Twentieth Century Fox Home Entertainment, Inc v Dep’t of
Treasury, 270 Mich App 539, 547; 716 NW2d 598 (2006). Therefore, defendant’s arguments
based on the legislative history are unavailing.
Next, defendant argues that there was insufficient evidence presented at trial that she
obtained Dolan’s money through fraud, deceit, misrepresentation, or unjust enrichment. MCL
750.174a(1). We disagree. Contrary to defendant’s assertion, the fact that Dolan willingly gave
his money to her does not preclude a finding of unjust enrichment. Unjust enrichment requires
1) the receipt of a benefit by the defendant from the plaintiff, and (2) an inequity resulting to the
plaintiff because of the retention of the benefit by the defendant. Belle Isle Grill Corp v Detroit,
256 Mich App 463, 478; 666 NW2d 271 (2003). Dolan clearly has a limited understanding of
finances and withdrew almost $30,000 in less than one month. He testified that he gave the
majority of his money directly to defendant, believing that she would spend the money on their
groceries, toiletries, clothes and household items. Dolan was left virtually penniless and there is
no proof of how the money was spent. We find, in light of these facts, that a reasonable jury
could conclude beyond a reasonable doubt that defendant was unjustly enriched.
Finally, defendant argues that the trial court erred in basing an upward departure from the
sentencing guidelines on her refusal to admit guilt. We review a trial court’s determination that a
particular factor constituted a substantial and compelling reason to depart from the sentencing
guidelines for an abuse of discretion. People v Babcock, 469 Mich 247, 264-265; 666 NW2d
231 (2003). An abuse of discretion exists when the sentence imposed is not within the range of
principled outcomes. Id. at 269.
A trial court may depart from the sentencing guidelines range if it has a substantial and
compelling reason to do so, and it articulates the reasons for its departure on the record. MCL
769.34(3); People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003). Factors meriting
departure must be objective and verifiable, must keenly attract the trial court’s attention, and
must be of considerable worth in deciding the length of the sentence. Babcock, supra at 257258. If the trial court departs from the guidelines range and we find that it did not have a
substantial and compelling reason for the departure, we must remand for resentencing. MCL
769.34(11); Babcock, supra at 265. If the reasons articulated by the trial court are partially
invalid and it is not apparent whether it would have departed from the guidelines range to the
same extent regardless of the invalid factors, we must remand for rearticulation or resentencing.
Id. at 260.
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Defendant argues, and the prosecution concedes, that the trial court erroneously based its
departure from the guidelines on defendant’s protestations of innocence. See People v Conley,
270 Mich App 301, 314; 715 NW2d 377 (2006). Therefore, defendant is entitled to
resentencing. Babcock, supra at 260.
Affirmed, but remanded for resentencing. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Henry William Saad
/s/ Kurtis T. Wilder
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