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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION October 27, 2016 9:00 a.m.

v No. 328409 Muskegon Circuit Court RODNEY DARRELL PERRY, LC No. 15-065924-FH

Defendant-Appellant.

Before: K. F. K ELLY , P.J., and O’C ONNELL and B OONSTRA , JJ.

P ER C URIAM

. A jury convicted defendant of two counts of uttering counterfe it notes, MCL 750.253; one count of false pretenses of $1,000 or more but less than $2 0,000, MCL 750.218(4)(a); and, one count of identity theft, MCL 445.65. Defendant was sentenc ed as a second-offense habitual offender, MCL 769.10, to three concurrent prison terms of two t o seven and a half years and one term of 12 months in jail. Defendant now appeals as of right. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS

This appeal arises out of the exchange of counterfeit money du ring a Craigslist transaction, and the background facts involve the fraudulent ca shing of a check in Grand Rapids, Michigan.

On July 27, 2014, Montay Lee participated in a basketball tour nament in South Haven, Michigan, at which time his bag containing a variety of items, including his wallet, identification, and a $1,100 paycheck from the city of Grand Rapids, was stolen. That same day, defendant cashed Lee’s stolen check at Hall Street Party Store in Grand Rapids, Michigan. Wasif Hermiz, the owner of the party store, testified that defe ndant showed him Lee’s identification when cashing the check. Additionally, because d efendant was a new customer and because the check was for a higher amount, Hermiz took defendan t’s thumbprint and had him put it on the back of the check.

Michael Bourdon, the victim in the instant case, posted for sa le a 1998 Pontiac Firebird on Craigslist for $2,500. On or around August 8, 2014, defendant and defendant’s “mechanic,” Marcus Lavar Smith test drove the Firebird. Defendant agreed t o the $2,500 purch ase price and handed Bourdon an envelope consis ting of a $100 bill, several $ 50 bills, and approximately $150-2- to $200 worth of $10 bills. In exchange for the money, Bourdonfilled out the title work, indicating that the purc haser was “Montay Lee.”

Bourdon’s co-worker, Jordan Soha sky testified that he witnesse d the transaction. After defendant and the mechanic left, both Bourdon and Sohasky noted that the money looked funny. Bourdon determined that there were no holograms on some of the bills and Sohasky noticed that the bills were too thick. Bourdon immediately called the polic e. A police officer accompanied Bourdon to Comerica Bank where it was determined that all of th e money was counterfeit except for a $100 bill. The Firebird was entered into Law Enforcement Information Network as stolen.

A few hours later, defendant and another individual went to th e Secretary of State’s Office in Grand Rapids, Michigan. A worker testified that the individuals wanted to transfer a vehicle title and change an address. The worker first changed the address and put a change of address sticker on the back of a Michigan license, which displa yed the name “Montay Lee.” The worker saw that the vehicle was identified as stolen. He went back into his office to contact the police and the individuals left b efore he returned. The Firebi rd was found approximately half of a mile away from the Secr etary of State’s office.

In an interview with police, defendant admitted to passing a c heck at the Hall Street Party Store, but that “somebody” offered him money to cash the check and that he did not know that the check was stolen. Defendant had no knowledge of passing an y counterfeit money in Muskegon County and denied being part of that transaction. The re was no physical evidence connecting defendant to the counterfeit money.

The jury found defendant guilty of identity theft, two counts of uttering counterfeit notes, and one count of false pretenses. Defendant was sentenced as o utlined above. He now appeals as of right.

II. AMENDMENT OF INFORMATION

Defendant argues that the trial court erred by permitting the prosecution to amend the information to add a count of identity theft during trial becau se (1) the amendment was an unfair surprise and (2) the product of prosecutorial vindictiveness. We disagree.

This Court reviews for an abuse of discretion the trial court’ s decision to grant or deny a motion to amend an information. People v McGee , 258 Mich App 683, 686-687; 672 NW2d 191 (2003). The trial court abuses its discretion when its decisio n falls outside ra nge of principled
outcomes. People v Reese , 491 Mich 127, 139; 815 NW2d 85 (2012).

First, defendant contends that the amendment to the informatio n during the ongoing trial was an unfair surprise and unduly prejudicial because it deniedhim the opportunity to crossexamine witnesses on the charges. A trial court may amend an i nformation at any point before, during, or after a trial, as long as the amendment does not unf airly surprise or prejudice the defendant. McGee , 258 Mich App at 686; MCR 6.112. A defendant may establish un fair surprise by articulating how additional time to prepare would h ave benefitted the defense. See id . at 693.-3- In this case, the prosecution stated on the morning before tri al that she intended to move to amend the information to add a charge of identity theft for defendant’s use of Lee’s information when he attempted to purchase the car from Bourdon if the facts at trial supported it. On the second day of trial, over defense counsel’s objection, the trial court granted the prosecution’s motion to amend the information to include the ad ditional charge. The trial court found that the charge was not a s urprise because it involved fa cts that were already presented and that defense counsel “has known about the threat for a while.” Because defendant knew of the prosecution’s intent to amend the charges in this case before trial started, he has not demonstrated that the amendment during the trial itself denied him the opportunity to crossexamine the witnesses on the new charge. Defendant was aware o f the possibility of identity theft charges before the witnesses were examined.

Second, defendant contends that the amendment was a result of prosecutorial vindictiveness and a punishment for his decision to exercise hi s right to a trial. The prosecution violates a defendant’s right to due process by punishing a pers on for asserting protected statutory or constitutional rights. People v Ryan , 451 Mich 30, 35; 545 NW2d 612 (1996). However, the imposition of additional charges that are within the prosecutio n’s charging discretion is not sufficient evidence from which to presume vindictiveness. People v Jones , 252 Mich App 1, 8; 650 NW2d 717 (2002). If the prosecution brings greater charges after a defendant’s failure to plead guilty, “the defendant mu st affirmatively prove actual vi ndictiveness in order to establish a denial of due process.” Id . Actual vindictiveness require s objective evidence of hostili ty or a threat that suggests that the def endant was deliberately penali zed for exercising his or her rights. Ryan , 451 Mich at 36.

In this case, defendant relies on the timing of the prosecutio n’s decision to seek an additional charge as evidence that the prosecution’s decision w as vindictive. This is not evidence of presumptive vindictiveness. See Jones , 252 Mich App at 8. The record contains no indications of active vindictiveness on the part of the prosecu tion. It is absent of any expressed hostility or threats that would suggest the prosecution deliber ately penalized defendant for exercising his right to a trial. We conclude that the trial co urt did not err by granting the prosecution’s motion to amend the information in this case.

III. PHOTOGRAPHIC LINEUP

Defendant argues that the trial court should have suppressed t he evidence of his identification in the photographic lineup because he was in cus tody at that time and should have received a corporeal lineup w ith counsel. We disagree.

“This Court reviews de novo questions of law relevant to a mot ion to suppress [an identification].” People v Hickman , 470 Mich 602, 605; 684 NW2d 267 (2004).

At trial, defendant argued that he was denied the right to counsel because he was in custody and adversarial criminal proceedings were initiated aga inst him when the photographic lineup occurred. Defendant further argued that the Kent County case for which he was in custody was related and intertwi ned; thus, the right to counsel attached upon his arrest on September 22, 2014. Defendant noted that the Kent County case was not initiated until the Grand Rapids Police Department was informed that a bad check wa s cashed in their jurisdiction.-4- Defendant argued that police could have easily determined that defendant had been arrested and was in custody. The trial cour t disagreed and denied defendant ’s motion to suppress.

On appeal, defe ndant relies on People v Anderson
, 389 Mich 155; 205 NW2d 461 (1973), overruled by People v Hickman , 470 Mich 602; 684 NW2d 267 (2004), arguing that the trial court erred and that he was enti tled to a corporeal identificat ion with counsel instead of a photographic identification procedure. In Anderson , the Michigan Supreme Court ruled that when a suspect is in custody, investigators should not use a ph otographic identification procedure, and that a defendant has as much right to counsel during a photographic identification as he or she would during a corporeal identification. Anderson , 389 Mich at 186-187. But the Michigan Supreme Court subsequently overruled Anderson , stating that a defendant’s right to counsel “attaches only to corpor eal identification conducted at or after the initiation of adversarial judicial proceedings.” Hickman , 470 Mich at 607. See Moore v Illinois , 434 US 220, 226-227; 98 S Ct 458; 54 L Ed 2d 424 (1977). Although the Hickman decision was made in the context of a corporeal identification, the decision broadlyoverruled Anderson to the extent that the Anderson decision went “ beyond the constitutional text and extend[ed] the right to counsel to a time before the initiation of adversarial criminal proceedings,” and it also explained the consistency between the fede ral and state provisions provid ing the right to counsel. Hickman , 470 Mich at 603-604, 607-609. Thus, applying Hickman ’s reasoning to photographic identifications that occurred be fore the initiation of adversar ial judicial proceedings is consistent with the Hickman decision.

Defendant was taken into cu stody on Septem ber 22, 2014, in the Kent County case, and it appears that the photographic lineup occurred on September 25, 2014. Defendant does not dispute that adversarial judicial criminal proceedings for the instant case had not yet been initiated when the photographic lineup occurred. Because adver sarial judicial criminal proceedings for the instant case were not initiated when the ph otographic lineup occurred, defendant did not have a right to counsel—even under Michigan l aw. Hickman , 470 Mich at 603-604, 607-609 (holding that the right to counsel attaches ator after the initiation of adversarial judicial proceedings and that the protections under the Michigan Constitution were consistent with the Sixth Amendment right to counsel); People v Smielewski , 214 Mich App 55, 60; 542 NW2d 293 (1995) (explaining that “[t]he Sixth Amendment right [to counsel], which is offense-specific and cannot be invoked once for all future prosecutions, attach es only at or after adversarial judicial proceedings have been initiated”) (emphasi s added).

Nevertheless, defendant argues that he has a right to counsel under People v Kurylczyk
, 443 Mich 289; 505 NW2d 528 (1993) because he was in custody. H owever, Kurylczyk was decided before Hickman
, Kurylczyk ’s reasoning was based on Anderson , see Kurylczyk , 443 Mich at 297-298, and Hickman held that Anderson was overruled to the extent that it went

“ beyond the constitutional text and extend[ed] the right to counsel to a time before the initi ation of adversarial criminal proceedings,” Hickman , 470 Mich at 603-604. Thus, although the Hickman decision did not expressly overrule—or even mention Kurylczyk in the majority opinion—the Hickman decision applies equally to Kurylczyk . Accordingly, defendant’s reliance

on Kurylczyk for the proposition that he was entitled to counsel because he was in custody is misplaced.

IV. SUFFICIENCY OF THE EVIDENCE-5- Defendant argues that the evidence was insufficient to support his conviction of identity theft. We disagree.

This Court reviews de novo a defendant’s challenge to the suff iciency of the evidence supporting his or her conviction. People v Henderson
, 306 Mich App 1, 8; 854 NW2d 234 (2014). We review the evidence in a light most favorable to th e prosecution to determine whether a rational trier of fact could find that the prosecutio n proved crime’s elements beyond a reasonable doubt. Id . at 9.

In pertinent part, MCL 445.65(1) prohibits a person from using the identifying information of another person to obtain property with the inten t to defraud or violate the law. MCL 445.65(1)(a)( i ). Identifying information includes “a person’s name, address, telephone number, driver license or state personal identification card nu mber . . .” MCL 445.63(q). Circumstantial evidence and reasonable inferences arising from that evidence can sufficiently prove the elements of a crime, including the defendant’s state of mind, knowledge, or intent. People v Kanaan , 278 Mich App 594, 622; 751 NW2d 57 (2008).

In this case, Bourdon testified that defendant identified hims elf as “Montay Lee” and presented Lee’s driver’s license when Bourdon was filling out the car’s title information. Defendant presented the identification simultaneously with coun terfeit money. Accordingly, a rational jury could find beyond a reasonable doubt that defenda nt used Lee’s name and license with the intent to defraud B ourdon or, at the very least, an in tent to violate the law.

Defendant contends that he did not actually defraud Bourdon wi th Lee’s stolen identification because Bourdon was not overly concerned with de fendant’s name and the identification did not influence his decision to sell the car. Defendant seeks to add an element to the crime that does not exist. Nothing in the language of MCL 445.65(1) requires the victim to be actually defrauded by the defe ndant’s use of the identifying information.

We conclude that sufficient ev idence supported d efendant’s con viction of identity theft.

V. DOUBLE JEOPARDY

Finally, defendant argues that his conviction of two counts of passing counterfeit bills violated his right against double jeopardy. We disagree.

Generally, “[a] challenge under the double jeopardy clauses of the federal and state constitutions presents a questio n of law that this Court review s de novo.” People v Calloway
, 469 Mich 448, 450; 671 NW2d 733 (2003). However, because defen dant’s issue is unpreserved, this Court reviews the issue for plain error affecting his subs tantial rights. Carines , 460 Mich at 763.

Defendant was convicted of two counts of uttering counterfeit notes under MCL 750.253, which provides:

Any person who shall utter or pass, or tender in payment as tru e, any such false, altered, forged or counterfeit note, certificate or bill of cre dit for any debt of this state, or any of its political s ubdivisions or municipalities, any bank bill or-6- promissory note, payable to the bearer thereof, or to the order of any person, issued as aforesaid, knowing the same to be false, altered, for ged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment of not more than 5 years or by fine of not more than 2,500 dollars.

At trial, the prosecutor argued to the jury: “[W]e have 40 bill s here. Any one of them could satisfy a count; all right? Two is just the magic number that was picked. We could be as high as 40, but that’s not what we’re lookin’ at . . ..”

On appeal, defendant argues that there is nothing in the langu age of the statute clearly expressing a legislative intent to permit a separate charge for every counterfeit bil l that is used to defraud where multiple bills are used within a single transacti on. Accordingly, defendant argues that the “unit of prosecution” for a violation of the statute i s the number of transactions using counterfeit currency, and not the number of counterfeit bills used in a single transaction. The prosecution, citing the rule of lenity, concedes error. Howeve r, we are not beholden to the prosecutor’s concession and conclu de that the plain language of the statute permits multiple convictions for uttering multiple notes during only one transac tion. Given the plain reading of the statute, the rule of lenity is inapplicable.

At the outset, we note that, contrary to the prosecution’s arg ument on appeal that the “unit of prosecution” theory “h as nothing to do with the Double Jeopardy Clause,” this Court has reviewed “unit of prosecution” i ssues in the context of double jeopardy. See, e.g., People v Barber , 255 Mich App 288, 293; 659 NW2d 674 (2003) (analyzing the def endant’s three convictions of arsons in a double jeopardy context and noting that “[t]he ‘unit of prosecution’ has been applied in other contexts to determine whether multipl e punishments violate double jeopardy principles”); see also People v Wakeford , 418 Mich 95, 103-104; 341 NW2d 68 (1983) (explaining that “[u]nder Michigan law, the defendant’s two sen tences for his armed robbery convictions constitute separate punishments even though the sen tences are to be served concurrently. Therefore, the cr itical inquiry is whether the p unishments were imposed for the ‘same offense’ ”).

“Both the United States and the Michigan constitutions protect a defendant from being placed twice in jeopardy, or subject to multiple punishments, f or the same offense.” McGee , 280 Mich App at 682, citing US Cons t, Am V; Const 1963, art 1, § 15 ; People v Smith , 478 Mich 292, 299; 733 NW2d 351 (2007). “The state and federal constitu tional guarantees are substantially identical and shoul d be similarly construed.” People v Ackah-Essien , 311 Mich App 13, 31; 874 NW2d 172 (2015). “The prohibition against doub le jeopardy provides three related protections: (1) it pro tects against a second prosecuti on for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offen se.” People v Nutt , 469 Mich 565, 574; 677 NW2d 1 (2004). “To determine whether a defendant has been subjected to multiple punishments for the ‘same offense,’ [this Court] must first loo k to determine whether the Legislature expressed a clear intention that multiple punishmen ts be imposed.” People v Garland , 286 Mich App 1, 4; 777 NW2d 732 (2009). If “the Legislature clearly intends to impose such multiple punishments, there is no double jeopardy v iolation.” Id .; see also People v Miller , 498 Mich 13, 17-18; 869 NW2d 204 (2015) (explaining that doub le jeopardy analysis-7- under the multiple punishment strand is controlled by the param eters set forth by the Legislature and that there is no double jeopardy violation where the Legisl ature specifically authorizes multiple punishments). When the dispositive question is whethe r the Legislature intended two convictions to result from a single statute, it presents a “uni t of prosecution” issue. People v Wakeford , 418 Mich 95, 111; 341 NW2d 68 (1983). The question is whethe r the Legislature intended a single criminal transaction to give rise to multiple convictions. Id. at 112.

When analyzing a statute to determine what unit of prosecution the Legislature intended, this Court and our Supreme Court have focused on various aspect s of the statutory text. In Barber , 255 Mich App at 295, this Court focused on the harm that the statutory text intended to prevent when it held that there was no double jeopardy violatio n because the arson statutes aimed “to prevent the burning of a dwelling, building, or other real property” and each separate house was the proper unit of prosecution. See also People v Mathews , 197 Mich App 143, 145; 494 NW2d 764 (1992) (finding that the statutory language of the felonious driving statute “suggest[ed] that its primary purpose is the protection of indi viduals from crippling injuries” and holding that “there is one unit of prosecution that arises when ever a defendant’s reckless driving results in a crippling injury to another”). In Wakeford , 418 Mich at 111-112, the Court focused on the statutory text’s reference to the victim in the singular and on the purpose of the statute. In that case, the Court noted that the statutory text for the arme d robbery statute consistently referred to the victim in the singular and that protecting peop le was the primary purpose of the statute and held that “the appropriate ‘unit of prosecution’ fo r armed robbery is the person assaulted and robbed.” But see id . at 112 (explaining that “[t]he majority rule appears to be th at the theft of several items at the same time and place constitut es a single larceny”).

Here, while defendant argues that one transaction or exchange of counterfeit bills occurred and, therefore, only one count of uttering and publish ing occurred, this approach was specifically disavowed in Wakeford when the Court wrote: “To the extent certain language in [various cases] suggests that the critical test is whether the defendant committed ‘one single wrongful act’, we specifically dis avow that test. It is up to the Legislature, not this Court, to determine what constitutes a single offense.” Wakeford , 418 Mich at 111. Thus, the determination of this issue requ ires analyzing the statutory te xt to determine the intent of the Legislature.

The main goal of statutory interpretation is to ascertain and g ive effect to the Legislature’s intent. People v Peltola , 489 Mich 174, 181; 803 NW2d 140 (2011). And, “[t]he most reliable indicator of the Legislature’s intent is the word s in the statute.” Id . The words are interpreted “in light of their ordinary meaning and their conte xt within the statute and [are] read [] harmoniously to give effect t o the statute as a whole.” Id . “If the language is clear and unambiguous, the plain meaning of the statute reflects the legi slative intent and judicial construction is not permitted.” People v Giovannini , 271 Mich App 409, 412-413; 722 NW2d 237 (2006). However, “ ‘[i]f no conclusive evidence of legisla tive intent can be discerned, the rule of lenity requires the conclusion that separate punishment s were not intended.’ ” People v Ford , 262 Mich App 443, 450; 687 NW2d 119 (2004), quoting People v Robideau , 419 Mich 458, 487-488; 355 NW2d 592 (1984), overruled by People v Smith , 478 Mich 292; 733 NW2d 351 (2007); see also People v Gardner , 482 Mich 41, 50 n 12; 753 NW2d 78 (2008) (“A provision is not ambiguous just because reasonable minds can di ffer regarding the meaning of the provision. Rather, a provi sion of the law is ambiguous onl y if it irreconcilably conflict[s]-8- with another provision, or when it is equally susceptible to mo re than a single meaning.”) (quotation marks and citation omitted).

Turning again to the statute at issue, MCL 750.253 prohibits any person from uttering or passing, or tendering in payment as true “ any such false, altered, forged or counterfeit note ” with the intent to defraud. (Emphasis added.) As the prosecution n otes, the statute refers to bank bill or note in the singular , but MCL 8.3b provides:

Every word importing the singular number only may extend to and embrace the plural number, and every word importing the plural number may b e applied and limited to the singular number. Every word importing the mascu line gender only may extend and be applied to females as well as males.

Still, MCL 8.3b does not render MCL 750.253 ambiguous. In this particular case, the clear purpose of MCL 750.253 is to punish the use of counterfeit mone y to obtain property, but using counterfeit money to deceive a seller is just one evil the stat ute addresses. We hold that the clear intent of the statute, as expressed by the legislature’s use of the singular “note,” is to address placing counterfeit and false bills into the stream of commerce . Not only was Bourdon deceived into turning over property in exchange for counterfeit money, b ut 40 counterfeit bills were now part of the stream of commerce and had the potential to impact and harm others. For example, had Bourdon not called the police and investigated whether the money was counterfeit, he may have used those bills at various t imes to make various purchase s. The harm as contemplated in the statute is the placing of false money into the public comme rce. The statutory text of MCL 750.253 evidences the Legislature’s intent to pun ish a defendan t for each counterfeit bill that was introduced uttered, passed, or tendered because the text reflec ts an intent to prevent counterfeit bills from being used. Given the clear indication of legislati ve intent and the absence of ambiguity, the rule of lenity does not apply. Wakeford , 418 Mich 113-114.

Affirmed.

/s/ Kirsten Frank Kelly /s/ Peter D. O'Connell /s/ Mark T. Boonstra