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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED APRIL 17, 2001
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellee,
 

v	 No. 115665
 

HEATHER ANNE BEARSS,
 

Defendant-Appellant.
 

BEFORE THE ENTIRE BENCH
 

KELLY, J.
 

After reversing defendant's conviction for obtaining
 

money by false pretenses,1 the Court of Appeals remanded this
 

case to the trial court with instructions to enter judgment on
 

a cognate offense. We granted leave to consider the
 

constitutionality of this remedy. After deliberation, we find
 

that the appellate court's directed verdict violates the Due
 

Process Clause of the Fourteenth Amendment to the United
 

1MCL 750.218; MSA 28.415.
 
States Constitution. US Const, Am XIV.
 

I
 

Defendant Heather Anne Bearss and her friend, Tiffany
 

Ruppert, visited Glen's Market and Horizon Video in the
 

Petoskey area. The two women selected a substantial quantity
 

of merchandise from each store and paid with checks written by
 

Ms. Ruppert and drawn against her bank account. 


The next day, Ms. Ruppert reported that the checks had
 

been lost or stolen. The police investigated and questioned
 

both Ms. Ruppert and defendant. Ms. Ruppert confessed her role
 

in the transactions, agreeing to testify against defendant in
 

exchange for a plea agreement. 


Defendant was charged with two counts of taking over $100
 

by false pretenses. At the jury trial, Ms. Ruppert testified
 

that she and defendant mutually had devised the plan to write
 

checks for merchandise, report them as stolen, and then stop
 

payment on them. She told the jury that, after they made their
 

purchases, they went to defendant's home where defendant's
 

boyfriend burned the carbon copies of the checks. According to
 

Ms. Ruppert, defendant knew that Ms. Ruppert planned to report
 

the checks lost or stolen. She testified that the two women
 

wrote the checks in order to obtain merchandise without paying
 

for it.
 

The court instructed the jury on the elements of false
 

pretenses over $100, as well as those of the cognate offense
 

2
 
of writing three nonsufficient funds checks within ten days.
 

MCL 750.131a(2); MSA 28.326(1)(2). The jury found defendant
 

guilty of one count of taking by false pretenses over $100.
 

Defendant appealed. The Court of Appeals reversed her
 

conviction, finding insufficient evidence to support a
 

conviction of taking by false pretenses. Unpublished opinion
 

per curiam, issued July 16, 1999 (Docket No. 209568), pp 2-3.2
 

The panel remanded the case to the trial court, instructing it
 

to enter a judgment of conviction for writing three
 

nonsufficient funds checks in a ten-day period. The prescribed
 

term of imprisonment for this crime is less than that for
 

obtaining money by false pretenses. 


Judge Murphy wrote separately. He raised concerns over
 

the constitutionality of remanding with instructions to enter
 

a judgment of conviction on a cognate offense. The jury, he
 

noted, never determined that defendant was guilty of the
 

lesser charge. The offense of writing three nonsufficient
 

funds checks within a ten-day period has several elements
 

differing from those of the false pretenses offense. Judge
 

Murphy opined that the Court of Appeals remedy encroached on
 

defendant's right not to be convicted except upon proof beyond
 

a reasonable doubt of committing the crime charged, citing In
 

2The prosecutor did not appeal from the Court of Appeals


finding that insufficient evidence of taking by false
 

pretenses had been presented at trial. Thus, we have no


occasion to review that ruling today.
 

3
 
re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970),
 

and People v Goss, 446 Mich 587, 596; 521 NW2d 312 (1994).
 

Despite his reservations, Judge Murphy joined his
 

colleagues in remanding the case for entry of judgment on the
 

cognate offense. He did so because this Court had employed the
 

same remedy in several cases.3 If the remedy is
 

unconstitutional, Judge Murphy felt, it is this Court rather
 

than the intermediate appellate court that should make that
 

decision.4
 

We granted leave to determine whether an appellate court
 

may instruct a trial court to enter judgment on a cognate
 

offense on which a jury did not render a verdict. We find that
 

the appellate court's practice in this case was 

unconstitutional. 

II 

The crimes of writing three nonsufficient funds checks
 

within ten days is a cognate offense of taking by false
 

3Judge Murphy cited the following cases where the


Michigan Supreme Court remanded for entry of conviction on a


lesser charge: People v Brager, 406 Mich 1004; 280 NW2d 826


(1979), People v Kamin, 405 Mich 482; 275 NW2d 777 (1979),


People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), and


People v Thomas, 399 Mich 826; 249 NW2d 867 (1977).
 

4A previous panel of the Court of Appeals similarly


questioned the constitutionality of remanding for entry of


judgment on a cognate offense. People v Goliday, 153 Mich App


29, 35-37; 394 NW2d 476 (1986). Like Judge Murphy, the judges


in Goliday declined to find unconstitutional a practice this


Court had previously employed. The parties in Goliday did not
 

seek leave from this Court to appeal from the ruling.
 

4
 
pretenses over $100.5 This Court has characterized cognate
 

offenses as "allied offenses of the same nature." People v
 

Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). A cognate
 

offense has some elements in common with the charged offense.
 

It also has elements not found in the charged offense. Id.
 

By contrast, all the elements of a necessarily considered
 

lesser offense are contained within those of the greater
 

offense. Thus, "it is impossible to commit the greater without
 

first having committed the lesser." Id., citing 4 Wharton,
 

Criminal Law & Procedure, § 1799.
 

The elements of taking by false pretenses are:
 

(1) a false representation as to an existing


fact; (2) knowledge by the [accused] of the falsity


of the representation; (3) use of the false
 

representation with an intent to deceive; and (4)


detrimental reliance on the false representation by


the victim. [In re People v Jory (Genesee
 

Prosecutor v Genesee Circuit Judge), 443 Mich 403,


412; 505 NW2d 228 (1993).]
 

The elements of writing three nonsufficient funds checks
 

within ten days, as found in the standard jury instructions,
 

are: The accused (1) wrote three separate checks, drafts, or
 

money orders within ten days; (2) did not have sufficient
 

funds available in the bank to cover them; (3) knew that he
 

did not have sufficient funds available; and (4) when he
 

5A cognate offense may or may not carry smaller penalties


than those of the crime charged. Today's opinion applies to


all offenses that may be characterized as cognate offenses of


the offense charged, not merely "lesser cognate offenses." 


5
 
wrote or delivered each of the checks, drafts, or money
 

orders, intended to defraud or cheat someone. See CJI2d 29.8.
 

It is possible to commit the crime of taking by false
 

pretenses without writing three nonsufficient funds checks
 

within a ten-day period. Hence, the offense of writing
 

nonsufficient funds checks is not necessarily included within
 

the offense of taking by false pretenses. Both offenses
 

involve an intent to defraud someone; therefore they are
 

cognate offenses.
 

This Court discussed necessarily included lesser offenses
 

and cognate lesser offenses in People v Chamblis, 395 Mich
 

408; 236 NW2d 473 (1975).6 Chamblis considered whether a trial
 

judge may instruct a jury about lesser offenses on its own
 

motion. We held that the late addition of a charge of a
 

necessarily included lesser offense does not infringe a
 

defendant's right to due process. Id. at 417. The ability to
 

defend against the prosecutor's charges is not impaired, since
 

the accused is required to defend against the same evidence as
 

when charged with only the greater offense.
 

6In People v Robert Stephens, 416 Mich 252, 260-261; 330


NW2d 675 (1982), this Court overruled Chamblis in part on


grounds unrelated to the present case. Specifically, we


overruled Chamblis' adoption of the "misdemeanor cutoff rule,"


which provided that a jury should be instructed on lesser


included offenses if the evidence supported them. If the
 

charged offense is punishable by incarceration for over two


years, the rule continued, a court may not instruct on lesser


included offenses carrying sentences under one year. See


Chamblis, supra at 429.
 

6
 
However, the addition of a cognate offense may require an
 

accused to present additional or different defenses to rebut
 

the evidence the prosecutor offers on the additional elements.
 

Id. at 418. Due process concerns may arise if the judge,
 

alone, decides to instruct the jury on a cognate offense.
 

Chamblis illustrates the constitutional difficulties that
 

arise when cognate offenses are equated with necessarily
 

included lesser offenses. The remedy under consideration in
 

this case activates those difficulties. It fails to recognize
 

that the prosecutor was obliged to prove different elements in
 

order to obtain a conviction of the cognate offense.
 

III
 

The state may not "deprive any person of life, liberty or
 

property, without due process of law . . . ." US Const, Am
 

XIV. In serious criminal cases, a trial by jury is guaranteed.
 

US Const, Am VI. The Sixth Amendment right to a jury trial is
 

protected by the Fourteenth Amendment, and thus, applies to
 

the states. Duncan v Louisiana, 391 US 145, 156; 88 S Ct 1444;
 

20 L Ed 2d 491 (1968).
 

Together, the Sixth and Fourteenth Amendments
 

"indisputably entitle a criminal defendant to 'a jury
 

determination that [he] is guilty of every element of the
 

crime with which he is charged, beyond a reasonable doubt.'"
 

Apprendi v New Jersey, 530 US 466, ___; 120 S Ct 2348, 2356;
 

147 L Ed 2d 435 (2000). In cases where the defendant invokes
 

7
 
the right to a trial by jury, "the jury, not the judge,
 

renders the verdict." People v Duncan, 462 Mich 47, 54; 610
 

NW2d 551 (2000).7
 

The remedy employed by the Court of Appeals in this case
 

runs afoul of these constitutional principles. As discussed
 

above, cognate offenses contain elements not found in the
 

charged offense. When a jury has rendered a verdict on the
 

charged offense, it has not necessarily rendered one on a
 

cognate offense. It may have left the additional elements of
 

the cognate offense unaddressed.
 

In the case under consideration, the Court of Appeals
 

effectively directed a guilty verdict on the additional
 

elements of the cognate offense. A court may not direct a
 

verdict of guilty, either in whole or in part. Goss, supra at
 

596-597, ns 12 & 13. Although the jury convicted defendant of
 

taking by false pretenses, an appellate court may not assume
 

that the jury would have found her guilty of an offense
 

comprised of different elements.
 

For example, the offense of writing nonsufficient funds
 

checks within ten days requires a finding that the defendant
 

knew sufficient funds were not available in the account. The
 

7Duncan found structural error requiring reversal when a


jury was not instructed regarding any of the elements of the


crime charged. Id. at 54. When a jury is not informed of any


of the elements, it cannot fulfill its function of rendering


a reliable verdict. Id. at 54-55.
 

8
 
offense of taking by false pretenses does not require this
 

element. Did defendant know that the account did not contain
 

sufficient funds? Since the jury never ruled on the cognate
 

offense, we do not know if it discounted her claim that she
 

did not know and favored Ms. Ruppert's testimony that she did.
 

The jury easily could have based its verdict on evidence of
 

defendant's plan to falsely report the checks as stolen and
 

stop payment. The Due Process Clause requires that the trier
 

of fact, rather than an appellate court, decide whether
 

defendant knew that the account lacked sufficient funds.
 

IV
 

The constitutional analysis differs when the lesser
 

offense is one necessarily included within the greater. See
 

Chamblis, supra. Unlike a verdict on a cognate offense, a
 

jury's verdict regarding a necessarily included lesser offense
 

always is encompassed in the verdict on the greater offense.
 

Thus, our opinion today does not impede an appellate court
 

from remanding for entry of judgment of a necessarily included
 

lesser offense. The United States Supreme Court has approved
 

the use of this remedy in cases "when a conviction for a
 

greater offense is reversed on grounds that affect only the
 

greater offense." Rutledge v United States, 517 US 292, 306;
 

116 S Ct 1241; 134 L Ed 2d 419 (1996).
 

9
 
V
 

In the past, we have remanded for entry of conviction on
 

a lesser cognate offense. Five cases in which that occurred
 

are People v Billy Stephens, 407 Mich 402; 285 NW2d 664
 

(1979), People v Brager, 406 Mich 1004; 280 NW2d 826 (1979),
 

People v Kamin, 405 Mich 482; 275 NW2d 777 (1979), People v
 

Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), and People v
 

Thomas, 399 Mich 826; 249 NW2d 867 (1977). However, all five
 

cases are distinguishable.8
 

In each of them, the trial court failed to give a
 

requested instruction on a cognate lesser offense. The jury
 

returned a guilty verdict on a greater offense for which there
 

was sufficient evidence. The appellate court determined that
 

the failure to instruct was error, and remanded for entry of
 

a conviction on the cognate lesser offense, a remedy that had
 

been requested. Given the juries' findings of guilt on the
 

greater offenses, the defendants in those cases could not
 

argue plausibly that the juries' consideration of the cognate
 

lesser offenses would have led to acquittals.
 

Conversely, in the instant case, the appellate court's
 

remedy cannot fairly be said to have benefited defendant.
 

Where, as here, a conviction on the greater offense was
 

secured on insufficient evidence, a defendant might argue
 

8Because they are distinguishable, we make no comment on


their continued viability.
 

10
 
persuasively that the jury might have acquitted on the cognate
 

offense, as well. To permit appellate courts to direct a
 

conviction on cognate offenses is to invite violations of the
 

right to a jury determination of every element of the crime
 

charged. Hence, we find these five cases inapposite.
 

Conclusion
 

Before today, we have not taken the occasion to address
 

the constitutionality of directing convictions on cognate
 

offenses when insufficient evidence of the charged offense had
 

been admitted at trial. In light of our analysis, we now
 

disavow the practice with rare exceptions. We hold that, if
 

an appellate court determines that insufficient evidence was
 

presented to support a conviction, it may not direct a
 

conviction on a cognate offense on remand unless (1) there was
 

sufficient evidence to support a conviction of the lesser
 

offense and (2) the appellate court can unequivocally state
 

that the jury's verdict must have included a specific finding
 

of every element necessary to support a conviction of the
 

cognate offense.9
 

We reverse the judgment of the Court of Appeals in part.
 

The prosecutor did not appeal from the Court of Appeals
 

determination that there is insufficient evidence to support
 

9To the extent that People v Chappelle, 114 Mich App 364;


319 NW2d 584 (1982), conflicts with our holding today, it is


overruled.
 

11
 
the jury's verdict on the charge of taking by false pretenses.
 

Therefore, we leave that aspect of the opinion intact. We
 

vacate the instruction to the trial court to enter a judgment
 

of conviction on the lesser cognate offense of writing three
 

nonsufficient funds checks within a ten-day period. The matter
 

is remanded to the trial court for further proceedings
 

consistent with this opinion.
 

CORRIGAN, C.J., and CAVANAGH, WEAVER, TAYLOR, YOUNG, and
 

MARKMAN, JJ., concurred with KELLY, J.
 

12