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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 Robert P. Young, Jr. 

# Opinion

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 cognat e of fense. 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

1 MCL 750.218; MSA 28.415.States Constitution. US Const, Am XIV. I Defendant Heather Anne Bearss and her friend, Tiffany Rup pert , 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 t hat th e checks had beenlost or stolen. The police investigate d an d questioned bothMs. Ruppert and defendant. Ms. Ruppert confessed her role inthe 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 purc h ases, 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 obtainmerchandise without paying for it. The court in struct ed the jury on the elements of false pretenses over $100, as well as those of the cognate offense 2of writing three nonsufficient funds checks within ten days. MCL 750.131a(2); MSA 28.326(1)(2). The j ury 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 c onvi ction 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 c once rns over the constitutionality of remanding withinstructions 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 t hree nonsufficient funds checks within a ten-day period ha s se veral 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

2 The prosecutor did not appeal from the Court of Appeals finding that insufficient evidence of taking by false pretenses had be en presented at trial. Thus, we have no occasion to review that ruling today. 3re 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 s everal cases. 3 If the remedy is unconstitutional, Judge Murphy felt, it is this Court rather thanthe intermediate appellate court that should make tha t 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 pr actice in this case was unconstitutional. II The crimes of writing three nons ufficient funds checks withinten days is a cognate offense of taking by false

3 Judge Murphy cited the following ca ses wh ere 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 V an Wyck , 402 Mich 266; 262 NW2d 638 (1978), and People v Thomas , 399 Mich 826; 249 NW2d 867 (1977).

4 A 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. 4pretenses over $10 0. 5 This Court has characterized cognate offenses as "a llied 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 represen tati on as to an existing fact; (2) knowledge by the [accused] of the falsity of the representation; (3) use of the false representationw ith 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 t he ba nk to cover them; (3) knew that he did not have sufficient funds available; and (4) w hen he

5 A 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." 5wrote or delivered each of the che cks , 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 withina ten-day period. Hence, the offense of writing nonsufficient funds checks is not necessarily included within the offense of taking by fa lse pretenses. Both offenses involve an intent to defraud someone; therefore they are cognate offenses. This Court discussed necessarily included lesser offenses andcognate lesser offenses in Pe opl e v Chamblis , 395 Mich 408; 236 NW2d 473 (1975). 6 Chamblis consideredwhether a trial judge may instruct a jury about lesser offenses on its own motion. We held that the late ad dit ion of a charge of a necessarily included lesser offense does not i nfringe a defendant's right to due process. Id. at 417. The ability to defendagainst 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.

6 In People v Robert Stephens , 416 Mich 252, 260-261; 330 NW2d675 (1982), this Court overruled Chamblis in part on grounds unrelated to the present case. Specif ically , we overruled Chamblis' adoption of the "misdemeanor cutoff rule," whichprovided that a jury should be instructed on lesser included offenses if the evidence supported them. If the cha rged offense is punishable by incarceration for over two years, the rule continued, a court may not instruct on lesser inc lu dedoffenses carrying sentences under one year. See Chamblis , supra at 429. 6However, 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 equa te d with necessarily includedlesser offenses. The remedy under consideratio n i n 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, andthu s, 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 determinationthat [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 7the right to a trial by jury, "the ju ry, 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 thes e co nstitutional principles. As discussed above, cognate offenses contain elements not found in the chargedoffense. When a jury has rendered a verdict on the chargedoffense, it has not necessarily rendered one on a cognate offense. It may have left the additional elements of the cognate offense unaddressed. Inthe case under consideration, the Court of Appeals effectively di rected 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. 8offense of tak ing 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 defend ant'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, de cide 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 opi nion 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 case s "when a conviction for a greater offens e 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).

9V Inthe past, we have remanded for entry of conviction on

a lesser cognate offense. Five c ases i n 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 , 40 5 Mich 482; 275 NW2d 777 (1979), People v VanWyck , 402 Mich 266; 262 NW2d 638 (1978), a nd P eople v Thomas , 399 Mich 826; 249 NW2d867 (1977). However, all five cases are distinguishable. 8 Ineach of them, the trial court failed to give a requested instruction on a cognate le sser offense. The jury returneda 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 beenrequested. Given the juries' findings of guilt on the greater offenses, the defendants in those cases c ould not argue plausibly that the juries' consideration of the cognate lesser offenses would have led to acquittals. Conversely, in the instant c ase, the appellate court's remedy cannot fairly be said to have benefited de fend ant. Where, as here, a conviction on the greater off ens e was secured on insufficient evidence, a defendant mig ht ar gue

8 Because they are distinguishable, we make no comment on their continued viability. 10persuasively that the jury might have acquitted on the cognate offense, as well. To permit appellate courts to direct a convictionon 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 beenadmitted 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 presentedto support a conviction, it may not direct a convictionon a cognate offense on remand unless (1) there was sufficient evidence to support a convic tion of the lesser offense and (2) the appellate court can unequi voca lly state that the jury's verdict must have includeda 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 fr om the Court of Appeals determination that there is insufficient evidence to support

9 To the extent that People v Chappelle , 114 MichApp 364; 319 NW2d 584 (1982), conflicts with our holding today, it is overruled. 11the 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. C ORRIGAN , C.J., and C AVANAGH , W E AVER , T AYLOR , Y OUNG , and M

ARKMAN , JJ., concurred with K ELLY , J.

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