PEOPLE OF MI V DAVID RICHARD DAVIDSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 18, 2009
Plaintiff-Appellee,
v
No. 284014
Wayne Circuit Court
LC No. 07-010715-FH
DAVID RICHARD DAVIDSON,
Defendant-Appellant.
Before: Fort Hood, P.J., and Cavanagh and K. F. Kelly, JJ.
PER CURIAM.
Defendant appeals by right his jury conviction of larceny by conversion of property
valued at $1,000 or more but less than $20,000, MCL 750.362. We affirm.
I. Basic Facts
Defendant was convicted of receiving $4,500 to paint the complainant’s 1970 Pontiac
GTO, and converting both the money and the car to his possession. The complainant and his
wife testified that they entered into an agreement with defendant to have their GTO painted and
made into a show car in exchange for $4,500. When the car was delivered to defendant, it was
operational and in good condition. Defendant promised to complete the paint job within six
months. Defendant was a close family friend of the complainant’s wife’s family, and needed the
money up front because he owed back taxes on his home. According to the complainant and his
wife, there was no agreement regarding the purchase of parts, because they hired defendant to
paint the car. Years passed and defendant still had possession of the complainant’s car and the
$4,500. After several inquiries, the complainant and his wife went to defendant’s garage.
Defendant showed them a frame surrounded by parts, and they saw four or five other GTO cars
surrounded by parts.
In contrast, defendant testified that the parties orally agreed that he would restore the
complainant’s severely damaged 1970 GTO car. The complainant was to pay him $9,000 for the
labor, with $4,500 paid up front, and to purchase and provide all the necessary parts for the
restoration. He further claimed that he advised the complainant that he would not be able to
begin to work on the car for at least a year. Defendant indicated that he made several attempts to
work on the vehicle and contacted the complainant about parts he needed to purchase, but he
never purchased any parts.
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II. Prosecutor’s Conduct
Defendant argues that he was denied a fair trial by the prosecutor’s conduct. We
disagree. Generally, this Court reviews claims of prosecutorial misconduct to determine whether
the defendant was denied a fair and impartial trial. People v Rodriguez, 251 Mich App 10, 2930; 650 NW2d 96 (2002). Here, however, defendant objected to only one of the prosecutor’s
remarks. We review unpreserved claims for plain error affecting substantial rights. People v
Carines, 460 Mich 750, 752-753, 763-764; 597 NW2d 130 (1999). This Court will not reverse if
the alleged prejudicial effect of the prosecutor’s remarks could have been cured by a timely
instruction. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).
Defendant argues that the prosecutor mischaracterized the evidence during the following
exchanges on cross-examination and then relied on the misstated evidence to call him a liar:
Q. So it’s the wife said she was going to reimburse you now but you never said
that, did you?
A. Excuse me?
Q. You never said they were going to reimburse you - A. Yes, I did.
Q. Well, we’ll see.
Now, sir, you also stated earlier that the car was kept inside the entire time; is
that correct?
A. Except for a week or two when I had it outside to put the heater up, that’s
right.
Q. Didn’t you say the car was outside because the place didn’t have heat, you
couldn’t work on it for the first year?
A. Yeah. That’s right.
Q. Now you just said it was outside for two weeks; which one is it, a year or two
weeks?
A. Could you ask me the question again?
Q. You just said that the car was only outside for two weeks.
A. For a few weeks, yes.
Q. Didn’t you originally say the car was outside for a whole year because it was
wintertime - -
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A. I never said that.
Q. Sir, don’t interrupt me while I am asking my question. Okay?
A. Sure.
Q. Now earlier you said that you couldn’t work on the car because it was cold
and your place didn’t have any heat. So, which one is it, two weeks or one
year?
A. I don’t know how to answer that because you’re misleading me into a trap.
Q. No, I didn’t. I caught you in a lie.
***
Q. So you stripped off paint, you primed parts and continue to buy new one?
A. Can I answer that with more than a yes or no?
Q. Just answer the question.
You had parts, you painted them. You had all this pre work done to them - Defense counsel:
I object. He’s never said that parts were painted.
A. Never painted.
Q. You had them primed. You had all the stuff done - Defense counsel:
Objection. He never said they were primed. Counsel is not
paying attention to the testimony.
The prosecutor:
The court:
I’m paying attention. Your client is lying.
The objection’s overruled.
A prosecutor may not denigrate a defendant with prejudicial or intemperate comments.
People v Bahoda, 448 Mich 261, 283; 531 NW2d 659 (1995). Here, however, the prosecutor’s
brief, isolated remarks were made during a vigorous adversarial proceeding and do not require
reversal. Defendant’s right to a fair trial was protected when, in its final instructions, the court
instructed the jury that the lawyers’ statements, arguments, and questions are not evidence, that it
was to decide the case based only on the properly admitted evidence, and that it was to follow
the court’s instructions. In addition, in response to defense counsel asking the court if the
prosecutor can “call [defendant] a liar,” the court indicated, “No because that would be passing
judgment on the credibility of the witness.” The court’s instructions were sufficient to dispel any
possible prejudice. People v Long, 246 Mich App 582, 588; 633 NW2d 843 (2001).
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Defendant also argues that the prosecutor impermissibly argued facts not in evidence
during closing and rebuttal arguments when he remarked that defendant had taken parts off the
complainant’s car for his own use, and that they “still don’t know where the car is.” After the
prosecutor’s rebuttal, defendant moved for a mistrial based on the prosecutor’s remarks, and the
court ruled as follows:
The assistant prosecuting attorney has every right to formulate inferences
premised upon the testimony that was elicited during the course of trial to
substantiate or support his theory as to how the defendant is guilty beyond a
reasonable doubt of the charges that have been leveled against him.
In this particular case the defendant is charged with larceny by conversion
and there were many arguments that could have been raised by the prosecuting
attorney in regard to inferences stemming from the facts that were elicited during
the course of trial.
During the course of this trial there was more than sufficient testimony to
indicate that there were more than just two GTOs that were being worked on
during this period of time, but also that the defendant had been involved with four
or five GTOs. Could have very well have been an exchange of parts.
When the car was given to Mr. Davidson the car was in its entirety, in its
whole. According to the defendant’s witnesses they believed that the car was
inoperable.
The car, as indicated when it was first given to Mr. Davidson in
September 2002, had all of the parts connected to it. Now apparently the car is in
shambles. These are parts that are lying about everywhere when the contract
supposedly that existed between [the complainant] and Mr. Davidson was for the
painting.
I understand that defense counsel and the defendant contend that there was
supposed to be a total restoration of this vehicle to mint condition. Well, that
doesn’t necessarily have to be believed by the jury.
Certainly the assistant prosecuting attorney can argue his position.
Nothing said during the course of his argument was prejudicial at all.
A prosecutor may not make a statement of fact to the jury that is unsupported by the
evidence. People v Stanaway, 446 Mich 643, 686; 521 NW2d 557 (1994). Here, as aptly noted
by the trial court, there was evidence that the complainant delivered his intact GTO to defendant
and, years later, the car had been dismantled and four or five other GTOs were in the garage.
The prosecutor was free to argue the evidence and all reasonable inferences arising from it as
they related to his theory of the case. See Bahoda, supra at 282.
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For the same reasons, the trial court did not abuse its discretion in denying defendant’s
motion for a mistrial. People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995) (a
mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant
and impairs his ability to get a fair trial).
III. Prosecution’s Charging Discretion
Defendant further argues that the prosecution abused its discretion by charging him with
“two separate and distinct crimes” in one count. We disagree. Because defendant did not raise
this issue below, we review this unpreserved claim for plain error affecting substantial rights.
See Carines, supra. “[T]he decision whether to bring a charge and what charge to bring lies in
the discretion of the prosecutor.” People v Venticinque, 459 Mich 90, 100; 586 NW2d 732
(1998). A prosecutor abuses his discretion only if “a choice is made for reasons that are
‘unconstitutional, illegal, or ultra vires.’” People v Barksdale, 219 Mich App 484, 488; 556
NW2d 521 (1996).
Defendant argues that some jurors may have found that he committed the offense by
converting only the vehicle, while others may have found that he converted only the $4,500.
This argument is misplaced. Defendant was charged with larceny by conversion of property
valued at $1,000 or more but less than $20,000, MCL 750.362, and the converted property was
listed as “a 1970 GTO and $4,500.” It was never argued that defendant converted only the
money or the car. Consequently, we reject this claim of error.
Within this issue, defendant argues that he was entitled to a special unanimity instruction
and an instruction regarding the time of each alleged offense. However, defense counsel’s
affirmative approval of the trial court’s jury instructions, which included a general unanimity
instruction, waived any claim of error. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144
(2000); People v Ortiz, 249 Mich App 297, 311; 642 NW2d 417 (2001).
IV. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to sustain his conviction. We
disagree. When ascertaining whether sufficient evidence was presented at trial to support a
conviction, this Court must view the evidence in a light most favorable to the prosecution and
determine whether a rational trier of fact could find that the essential elements of the crime were
proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748,
amended 441 Mich 1201 (1992). This Court will not interfere with the trier of fact’s role of
determining the weight of evidence or the credibility of witnesses. Id. at 514. It is for the trier of
fact to decide what inferences can be fairly drawn from the evidence and to judge the weight it
accords to those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
“[A] reviewing court is required to draw all reasonable inferences and make credibility choices
in support of the jury verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
The elements of larceny by conversion are: (1) the property at issue had some value; (2)
the property belonged to someone other than the defendant; (3) someone delivered the property
to the defendant; (4) the defendant embezzled, converted to his own use, or hid the property with
the intent to embezzle or fraudulently use it; and, (5) at the time the property was embezzled,
converted, or hidden, the defendant intended to defraud or cheat the owner permanently of the
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property. People v Mason, 247 Mich App 64, 72; 634 NW2d 382 (2001). Larceny by
conversion is a specific intent crime. Minimal circumstantial evidence on the issue of intent is
sufficient to prove state of mind. People v Fetterley, 229 Mich App 511, 517-518; 583 NW2d
199 (1998).
In this case, evidence was presented that the complainant entered into an agreement with
defendant to paint his 1970 GTO and transform it into a show car in exchange for $4,500.
Defendant admitted that he accepted delivery of the complainant’s GTO and the money. There
was testimony that the car was operational and intact, and only needed painting. There was also
evidence that defendant subsequently dismantled the car and used the parts for other purposes.
Five years after delivery of the vehicle and the money, defendant had not returned either, despite
repeated inquires. Viewed in a light most favorable to the prosecution, the evidence was
sufficient for a rational trier of fact to find beyond a reasonable doubt that defendant committed
larceny by conversion.
Although defendant argues that there were alternative ways of viewing the evidence or
resolving the case, it was up to the trier of fact to evaluate the evidence, and the prosecutor was
not required to disprove every possible theory consistent with innocence. See Nowack, supra at
400; Wolfe, supra at 533. The evidence was sufficient to sustain defendant’s conviction.
V. Great Weight of the Evidence
Defendant argues that the verdict was against the great weight of the evidence. We
disagree. This Court reviews a trial court’s decision denying a motion for a new trial for an
abuse of discretion. People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008).
In evaluating whether a verdict is against the great weight of the evidence, the question is
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625, 627; 576 NW2d 129
(1998); People v Horn, 279 Mich App 31, 41 n 4; 755 NW2d 212 (2008). A verdict may be
vacated only when it “does not find reasonable support in the evidence, but is more likely to be
attributed to causes outside the record such as passion, prejudice, sympathy, or some extraneous
influence.” People v DeLisle, 202 Mich App 658, 661; 509 NW2d 885 (1993) (citation omitted).
For the reasons discussed in section IV, the verdict is not against the great weight of the
evidence. The evidence does not clearly preponderate so heavily against the verdict that a
miscarriage of justice would result if the verdict was allowed to stand. See Lemmon, supra.
VI. Failure to Provide Witness List and Amended Information
We reject defendant’s final argument that he was prejudiced by the prosecutor’s failure to
timely provide the amended information and a signed witness list. The prosecutor moved to
amend the warrant and the complaint before the preliminary examination. The amendment,
which did not significantly change the nature of the charge against defendant, altered the date,
the location of the incident, and added the vehicle to the previously listed $4,500. The same
attorney represented defendant at both the preliminary examination and at trial, and was aware of
the amendment more than four months before trial. In addition, concerning the absence of a
signed witness list, the prosecution witnesses consisted of the complainant and his wife. The
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trial court noted that a witness list was in the court file that listed the complainant and his wife as
the only endorsed witnesses. Even if the witness list was not signed, defendant had actual notice
that the complainant and his wife intended to testify, and these witnesses should not have
surprised the defense. Under these circumstances, defendant has failed to show that he was
prejudiced.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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