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Docket Number

Docket No. 86418.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, First Assistant Prosecuting Attorney, for the people. Manuel James J. Lentine, for defendant.

Judges

PER CURIAM.

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Smart Summary

People v. Collins, Mich. Ct. App., Docket No. 86418 (Dec. 16, 1987) — Summary

Factual and Procedural Background

Defendant was convicted by a jury on February 5, 1985, of delivery, circulation or sale of a wrongly held or obtained credit card (MCL 750.157q; MSA 28.354(16)). She was subsequently tried and convicted by the court as a third-felony offender (MCL 769.11; MSA 28.1083). Defendant was sentenced on April 18, 1985, initially to two to four years' imprisonment on the underlying conviction; that sentencing was vacated and defendant was resentenced as a third-felony offender to a term of three to eight years. Defendant appealed as of right.

On August 3, 1984, defendant and a companion, Diane Vinston, purchased clothing, jewelry and food at the Hudson's store in the Ann Arbor Briarwood Mall using credit cards issued in the names of Theresa Holland and Linda Rogers. They presented the drivers' licenses of those individuals to salespersons as identification. Theresa Holland testified that she had not applied for a charge card, had never authorized anyone to apply for a card in her name, and that she had recently found a number of charge card bills in her mail. Holland also testified she knew Vinston from high school and had met defendant through Vinston.

Legal Issues Presented

Whether Theresa Holland qualified as a "cardholder" under the definition in MCL 750.157m(b); MSA 28.354(13)(b), such that defendant's alleged wrongful use of a credit card issued in Holland's name falls within MCL 750.157q; MSA 28.354(16).
Whether the trial court erred by not sua sponte instructing the jury as to the statutory definition of "cardholder," and, relatedly, whether any instructional omission constituted a miscarriage of justice given that defendant made no request for such an instruction and lodged no contemporaneous objection.

Arguments of the Parties

Defendant's Arguments

Defendant argued that Holland was not a "cardholder" because Holland never personally requested the credit card and never used the credit card; therefore defendant could not be convicted under the statute for wrongful use with respect to Holland's card.
Defendant also contended the trial court erred by failing sua sponte to instruct the jury on the definition of "cardholder."

The opinion does not contain a detailed account of the prosecution's separate argumentation beyond the court's discussion of the statutory terms and their application to the facts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Trammell, 70 Mich. App. 351, 354; 247 N.W.2d 311 (1976)	The principle that in the absence of an objection, alleged errors in jury instructions are waived unless a miscarriage of justice results.	The court cited Trammell to support the proposition that defendant's failure to object to the jury instructions waived the claim unless manifest injustice resulted; the court found no manifest injustice.
People v Vicuna, 141 Mich. App. 486, 492; 367 N.W.2d 887 (1985)	Same waiver/miscarriage-of-justice principle regarding jury instruction errors when no objection is made.	The court relied on Vicuna alongside Trammell to conclude that omission of a specific "cardholder" instruction (when not requested or objected to) was waived and did not produce manifest injustice in this case.

Court's Reasoning and Analysis

The court began by stating the statutory scheme: MCL 750.157q; MSA 28.354(16) penalizes use of a credit card obtained or held under circumstances constituting offenses under MCL 750.157n or MCL 750.157p (which proscribe stealing or possessing a credit card without the consent of the cardholder and possession with intent to circulate, sell or permit use while knowing the possession is without consent).

The court then examined the definition of "cardholder" in MCL 750.157m(b); MSA 28.354(13)(b), which provides two alternative definitions: (1) the person who requests a credit card and to whom or for whose benefit a credit card is subsequently issued; or (2) the person to whom a credit card was issued and who uses a credit card, whether issuance was requested or not.

Applying that definition to the facts, the court rejected defendant's narrow construction. The court reasoned that subsection (1) protects a person "deemed 'requested' anytime [a card] is issued pursuant to solicitation." Here, the issuer solicited and issued a credit card pursuant to an application it believed came from Theresa Holland (even though the application was fraudulent). Under that construction, Holland qualified as a cardholder because the card was issued pursuant to solicitation to someone the issuer believed was Holland. The court observed that a narrow construction excluding persons in Holland's situation would leave both the issuer and the real cardholder unprotected when fraudsters obtain cards in another's name before the real owner has an opportunity to use or discover the card—an outcome the court concluded the Legislature did not intend.

On the instructional issue, the court noted defendant neither requested a jury instruction defining "cardholder" nor objected when instructions were given. Citing People v Trammell and People v Vicuna, the court applied the rule that unobjected-to instructional errors are waived unless they result in a miscarriage of justice. Given the court's statutory construction—which made Holland clearly a cardholder—the court found no manifest injustice from omitting an explicit definition instruction and concluded defendant would receive no benefit from such an instruction. The court also observed that the trial court's instructions paralleled the statute.

Holding and Implications

Affirmed.

Holding: The Court of Appeals affirmed the defendant's conviction and the sentence imposed after resentencing as a third-felony offender.

Implications: The direct effect is that the defendant's conviction and third-felony offender sentence were upheld. The court construed the statutory definition of "cardholder" to include an individual in whose name a card was issued pursuant to a solicitation directed at a person the issuer believed to be that individual; the court also applied the waiver rule for jury instruction objections and found no miscarriage of justice. This opinion affirms the judgment as to the parties; the opinion does not state any broader rule beyond its application to the statutory construction and the waiver principle in this case.

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PEOPLE v COLLINS

PER CURIAM.

Defendant was convicted by a jury on February 5, 1985, of the charge of delivery, circulation or sale of a wrongly held or obtained credit card. MCL 750.157q; MSA 28.354(16). Thereafter, she was tried and convicted by the court of being a third-felony offender. MCL 769.11; MSA 28.1083. Defendant was sentenced on April 18, 1985, to from two to four years imprisonment on the underlying conviction. The sentencing was then vacated and defendant was sentenced as a third-felony offender to a term of from three to eight years in prison. Defendant appeals as of right.

On August 3, 1984, defendant and a companion, Diane Vinston, purchased clothing, jewelry and food at the Hudson's store in the Ann Arbor Briarwood Mall. They used credit cards issued in the names of Theresa Holland and Linda Rogers. Further, they had the drivers licenses of these individuals which they provided to salespersons as identification.

Theresa Holland testified that she lost her driver's license in May of 1985, shortly before she moved. She was not receiving her mail for an extended period. When she did receive it on July 30, 1985, she had a number of charge card bills from various stores. She testified that she had never applied for a charge card and that she had never authorized anyone to apply for a charge card in her name. Further, she testified that she knew Vinston from high school and that she had met defendant through Vinston.

Defendant's main ground for appeal is that her alleged wrongful conduct concerning the credit card issued in the name of Theresa Holland does not fall within the parameters of the statute. Defendant claims Theresa Holland was not a "cardholder" as defined by MCL 750.157m(b); MSA 28.354(13)(b) and therefore defendant cannot be convicted under the statute. We disagree.

MCL 750.157q; MSA 28.354(16) proscribes and renders felonious the use of a credit card obtained or held under circumstances constituting an offense under MCL 750.157n; MSA 28.354(14) or MCL 750.157p; MSA 28.354(15). Sections 157n and 157p proscribe stealing, knowingly taking, retaining or secreting a credit card without the consent of the cardholder, and the possession, control or receipt of a credit card with the intent to circulate, sell, procure or permit the use, delivery, circulation or sale while knowing that the possession, control or receipt is without the consent of the cardholder.

The term cardholder is defined by MCL 750.157m(b); MSA 28.354(13)(b):

"Cardholder" means (1) the person or organization who requests a credit card and to whom or for whose benefit a credit card is subsequently issued; or (2) the person or organization to whom a credit card was issued and who uses a credit card, whether the issuance of the credit card was requested or not.

Because Holland's own testimony established that (1) Holland never personally requested the credit card, and (2) Holland never used the credit card, defendant claims she did not wrongfully use a credit card of the cardholder. In our opinion, defendant construes the statute far too narrowly. The statute is designed to protect both the issuer and the person in whose name a card is issued. Subsection (1) of MCL 750.157m(b); MSA 28.354(13)(b) provides that protection if a card is deemed "requested" anytime it is issued pursuant to solicitation. In the instant case, the credit card was issued pursuant to solicitation from one whom the issuer believed to be Theresa Holland. Construed in this manner, Holland was a cardholder. Construed narrowly, as defendant urges, the statute affords no protection to the real cardholder or to the issuer where persons representing themselves to be someone else request and receive a credit card. We do not believe the Legislature intended to exclude from the act's operation fraudulent users who obtained unrequested cards before the real owner has used the card.

Defendant also contends the trial court erred when it did not sua sponte instruct the jury as to the definition of cardholder. Defendant made no request for the instruction and did not object when instructions were given. In the absence of an objection, alleged errors in jury instructions are deemed waived unless a miscarriage of justice results. People v Trammell, 70 Mich. App. 351, 354; 247 N.W.2d 311 (1976); People v Vicuna, 141 Mich. App. 486, 492; 367 N.W.2d 887 (1985). Given the construction of the statute set forth in our discussion of issue I, manifest injustice does not occur from omission of the cardholder instructions. CJI 30:1:01. The instructions given by the court parallel the statute and Holland was clearly a cardholder. Thus, defendant would gain no benefit by an instruction on who is a cardholder.

Affirmed.

PEOPLE v. COLLINS