PEOPLE OF MI V AL KELLY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 24, 2009
Plaintiff-Appellee,
v
No. 286953
Washtenaw Circuit Court
LC No. 07-001609-FH
AL KELLY,
Defendant-Appellant.
Before: Meter, P.J., and Murphy, C.J., and Zahra, J.
PER CURIAM.
A jury convicted defendant of embezzlement by an agent or trustee of money worth
$20,000 or more, but less than $50,000, MCL 750.174(5)(a), and larceny by conversion of
$20,000 or more, MCL 750.362; MCL 750.356(2)(a). Defendant appeals as of right. We affirm.
Defendant first argues the evidence provided at trial was insufficient to uphold his
convictions. When reviewing an insufficiency of the evidence claim, this Court reviews the
evidence de novo. People v Wolfe, 440 Mich 508, 513-515; 489 NW2d 748 (1992), amended
441 Mich 1201 (1992). “The test for determining the sufficiency of evidence in a criminal case
is whether the evidence, viewed in a light most favorable to the people, would warrant a
reasonable juror in finding guilt beyond a reasonable doubt. . . . The standard of review is
deferential: 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, 399-400; 614 NW2d 78
(2000).
To prove embezzlement by an agent, MCL 750.174, the prosecutor must show:
(1) The money in question must belong to the principal, (2) the defendant must
have a relationship of trust with the principal as an agent or employee, (3) the
money must come into the defendant's possession because of the relationship of
trust, (4) the defendant dishonestly disposed of or converted the money to his own
use or secreted the money, (5) the act must be without the consent of the
principal, and (6) at the time of conversion, the defendant intended to defraud or
cheat the principal. [People v Lueth, 253 Mich App 670, 683; 660 NW2d 322
(2002).]
The elements of larceny by conversion, MCL 750.362, are:
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(1) [T]he property at issue must have “some value,” (2) the property belonged to
someone other than the defendant, (3) someone delivered the property to the
defendant, irrespective of whether that delivery was by legal or illegal means, (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 that property.” Stated more simply, larceny by conversion
occurs “where a person obtains possession of another's property with lawful
intent, but subsequently converts the other's property to his own use.” [People v
Mason, 247 Mich App 64, 72; 634 NW2d 382 (2001), quoting People v Scott, 72
Mich App 16, 19; 248 NW2d 693 (1976).]
Additionally, to support each conviction the prosecution must prove that the total value of the
property converted exceeds $20,000. MCL 750.174(5)(a); MCL 750.356(2)(a).
Defendant was hired to be the catering manager of a recently opened, franchise restaurant
in 2004. Several months after the general manager, Michael Delly, hired defendant, Delly came
to trust defendant and gave him primary responsibility for delivering the daily cash deposits to
the bank. For almost two years, Delly did not check the company’s bank statements to ensure
that each deposit was actually deposited. In August of 2006, Delly compared the company’s
deposit books against its bank records and discovered many missing deposits. He subsequently
confronted and fired defendant. Delly testified that when he did so, defendant admitted that he
took the cash. Defendant spoke with Delly and the restaurant’s owner about paying the money
back, but he never actually returned any cash. In October 2006, Delly gave the company’s
deposit books and bank statements to the Ann Arbor police. From December 2004 through
August 2006, during which defendant had primary responsibility for making the deposits, the
deposit books showed 117 entries, totaling $58,221.04, which were not reflected on the
restaurant’s bank statements.
Defendant argues the evidence was insufficient to support his convictions because the
company had sloppy bookkeeping, and Delly admitted that sometimes, as a result of his own
inexplicable errors, the amounts he wrote on the deposit slips did not always match the net cash
collected, which appeared on the restaurant’s electronically generated daily activity reports. This
is essentially an argument that defendant’s convictions were against the great weight of the
evidence, an issue defendant has neither properly raised nor preserved. People v Winters, 225
Mich App 718, 729; 571 NW2d 764 (1997); People v Miller, 238 Mich App 168, 172; 604
NW2d 781 (1999). Nevertheless, a verdict will be found to be against the great weight of the
evidence if “the evidence preponderates so heavily against the verdict that it would be a
miscarriage of justice to allow the verdict to stand.” People v Musser, 259 Mich App 215, 218219; 673 NW2d 800 (2003). The standard has not been met in this case.
Delly testified that, regardless of discrepancies between some daily activity reports and
deposit slips, the amount he put on the slips always reflected the actual amount of cash that he
counted and gave to defendant to deposit. The testimony by the investigating police detective
corroborated Delly’s testimony. Further, defendant made statements that he blamed himself and
that he pocketed the cash instead of depositing it in the bank. Drawing all reasonable inferences
and making credibility choices in support of the verdict, Nowack, supra at 399-400, we conclude
that the evidence presented at trial was sufficient to allow a reasonable jury to find, beyond a
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reasonable doubt, that defendant was guilty of both embezzlement and larceny by conversion of
more than $20,000. MCL 750.174(5)(a); MCL 174.362. Specifically, defendant was an agent of
the principal, the principal owned the money, the money was provided to defendant based on a
relationship of trust, defendant converted the money to his own use without the principal’s
consent, and defendant intended to defraud the principal. Likewise, the evidence regarding any
discrepancies in the company’s records did not preponderate so heavily against the verdict that
reversal is required. Musser, supra at 218-219.
Next, defendant argues that recorded voice messages he left for the restaurant’s owner
should not have been admitted as evidence because they were offers to settle or compromise a
claim and were therefore barred by MRE 408. “This Court reviews for an abuse of discretion a
trial court's decision to admit evidence. The abuse of discretion standard recognizes that there
will be circumstances in which there will be no single correct outcome; rather, there will be more
than one reasonable and principled outcome.” Zaremba Equipment, Inc v Harco Nat'l Ins Co,
280 Mich App 16, 47-48; 761 NW2d 151 (2008) (quotations omitted). “When the trial court
selects one of these principled outcomes, the trial court has not abused its discretion and, thus, it
is proper for the reviewing court to defer to the trial court's judgment.” Maldonado v Ford
Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). Questions of law involved in
determining the admissibility of the evidence are reviewed de novo. People v Lukity, 460 Mich
484, 488; 596 NW2d 607 (1999).
MRE 408 provides that:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or
offering or promising to accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to either validity or
amount, is not admissible to prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in compromise negotiations is
likewise not admissible. This rule does not require the exclusion of any evidence
otherwise discoverable merely because it is presented in the course of
compromise negotiations. This rule also does not require exclusion when the
evidence is offered for another purpose, such as proving bias or prejudice of a
witness, negating a contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.
Assuming for purposes of this case that MRE 408 applies, defendant cannot prevail.
Defendant essentially argues that his voice messages were actually offers to compromise or
settle, but he provides no analysis supporting this point on appeal. A party “may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
claims, nor may he give only cursory treatment with little or no citation of supporting authority.”
People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Nevertheless, “[o]ne of the
tests of a compromise is that the offeror offers something less than the offeree claims or might
fairly otherwise obtain by rejecting the offer and suing away. The notion of mutual concession is
implicit.” Thirlby v Mandeloff, 352 Mich 501, 505-506; 90 NW2d 476 (1958). Delly indicated
that defendant admitted to taking the money; there is no indication that Delly intended to pursue
a civil claim against defendant or imparted such information to defendant. At most, Delly
indicated he would hold off on pressing criminal charges against defendant to give defendant a
chance to repay him. The owner’s testimony indicated that, in the voice messages, defendant
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asked him what the total amount defendant owed him was, and the method of payment the owner
would prefer. There was no indication that defendant disputed the validity or amount of the
claim, or tried to get the owner to accept less money than he was owed. Id. Thus, even if offers
of compromise or settlement are not admissible in a criminal trial, defendant’s statements were
not offers to compromise or settle, and there was no disputed claim as to validity or amount
when defendant called the owner.
On appeal, defendant also challenges the content of the voice messages as being
irrelevant and unfairly prejudicial. These issues are unpreserved and reviewed for plain error.
People v Carines, 460 Mich 750, 762-764; 597 NW2d 130 (1999). In order to be relevant,
evidence must be material, meaning it must be related to “any fact that is of consequence to the
determination of the action,” and it must make the existence of that fact more probable or less
probable than it would be without the evidence. MRE 401; People v Mills, 450 Mich 61, 66-68;
537 NW2d 909 (1995), mod 450 Mich 1212 (1995). The prosecutor argued that the content of
the voice messages demonstrated that defendant was stalling for time because he spent the cash
deposits he took, making it more likely that he converted the money for his own use and intended
to defraud the business of that money permanently. We agree that the voice mails were relevant
because they dealt with issues “within the range of litigated matters in controversy,” specifically
defendant’s intent and acts of taking the deposit money, which made it more probable that
defendant committed the charged offenses. Mills, supra at 66-68.
Defendant also indicates that even if relevant, any marginally probative value of the voice
messages was outweighed by their unfairly prejudicial effect and risk of misleading or confusing
the jury. MRE 403. “‘Rule 403 determinations are best left to a contemporaneous assessment of
the presentation, credibility, and effect of the testimony’ by the trial judge.” People v Bahoda,
448 Mich 261, 291; 531 NW2d 659 (1995), quoting People v Vandervliet, 444 Mich 52, 81; 508
NW2d 114 (1993), amended 445 Mich 1205 (1994). The evidence was highly probative of
defendant’s intent and whether he took the cash deposits. Defendant has failed to explain how
the messages were presented out of context, and there is no indication that the evidence risked
confusing or misleading the jury. In sum, defendant has not demonstrated the existence of a
plain error requiring reversal with respect to his challenge based on relevance and unfair
prejudice.
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Similarly, defendant’s unpreserved claim that the admission of the challenged evidence
violated his due process rights does not warrant reversal, because admission of the voice
messages was not a clear obvious error that affected his substantial rights. People v Carines, 460
Mich 750, 762-764; 597 NW2d 130 (1999).
Affirmed.
/s/ Patrick M. Meter
/s/ William B. Murphy
/s/ Brian K. Zahra
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