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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TONY PALLONE, Defendant-Appellant.

UNPUBLISHED September 16, 2010

No. 288708 Wayne Circuit Court LC No. 07-004886-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v CLARENCE WARD VANCAMP, Defendant-Appellant. No. 288709 Wayne Circuit Court LC No. 07-004886-FH

Before: GLEICHER, P.J., and K. F. KELLY and ZAHRA, JJ. PER CURIAM. In Docket No. 288708, defendant, Tony Pallone (Pallone), appeals as of right his jury trial convictions for two counts of uttering and publishing, MCL 750.249. Pallone was sentenced to two years of probation. In Docket No. 288709, defendant, Clarence VanCamp, appeals as of right his jury trial convictions for five counts of uttering and publishing, MCL 750.249. VanCamp was sentenced to five years of probation. We affirm. Pallone first argues that the trial court erred in denying his motion for a directed verdict. Although Pallone moved for directed verdict at trial, he did not argue, as he does now, that the instant case is merely a civil matter and not a criminal case. Accordingly, we review this unpreserved claim for plain error affecting his substantial rights. People v Odom, 276 Mich App 407, 421; 740 NW2d 557 (2007). In any event, Pallone fails to cite a single statute or case to support his argument. Argument must be supported by citation of appropriate authority or policy. MCR 7.212(C)(7); People v Sowders, 164 Mich App 36, 49; 417 NW2d 78 (1987). In addition, it is axiomatic that in the case of many crimes the defendant has also committed a tort. -1-

To accept the premise that criminal prosecutions would be precluded because the complained-of acts could also give rise to a civil action would render a large portion of criminal statutory law dead letter. People v Perkins, 473 Mich 626, 638; 703 NW2d 448 (2005) (courts should avoid any construction that would render any part (in this case all) of a statute nugatory). Pallone also argues that the verdict was not based on sufficient evidence. We disagree. On appeal for sufficiency of the evidence, this Court reviews all evidence in a light most favorable to the prosecution, to determine whether a rational trier of fact could have found that the prosecution proved all elements of the crime beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 513-516; 489 NW2d 748 (1992), modified on other grounds 441 Mich 1201 (1992). The trier of fact, not this Court, determines what inferences may be drawn from the evidence, and concludes the weight to be given to those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). Questions of credibility and of the intention of witnesses are also left for the trier of fact. People v Avant, 235 Mich App 499, 506; 597 NW2d 864 (1999). A challenge to the sufficiency of the evidence is reviewed de novo. Wolfe, 440 Mich at 515-516. MCL 750.249 provides, in relevant part: "A person who utters and publishes as true a false, forged, altered, or counterfeit record, deed, instrument, or other writing listed in section 248 knowing it to be false, altered, forged, or counterfeit with intent to injure or defraud is guilty of a felony . . . ." [Emphasis added.] The elements of uttering and publishing are: (1) knowledge on the part of the defendant that the instrument was false; (2) intent to defraud; and (3) presentation of the forged instrument for payment. People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). To be a false document, for purposes of uttering and publishing, an instrument itself need not be forged. People v Aguwa, 245 Mich App 1, 5; 626 NW2d 176 (2001). A legally valid instrument acquired by deceptive means is still false, and is proscribed by the uttering and publishing statute. Id. at 4-5. A defendant's intent may be inferred from circumstantial evidence. Hawkins, 245 Mich App at 458 (emphasis added). The victim and defendants had known each other for around 20 years. The victim established a design company in 2003 and defendants performed work for the company as independent contractors. After the victim returned from a vacation she realized that she was missing several company checks. After reviewing a bank statement, the she discovered that the checks had been made payable to defendants and some of their acquaintances. The victim made repeated demands that defendants return the money but was never reimbursed. She eventually contacted the police. Upon reviewing the checks, the victim testified that she recognized that Pallone had forged her name and that VanCamp had endorsed several of the checks. She testified that Pallone did not have authority to sign her name. She testified that when she confronted Pallone about the checks, he "admitted it and said he was very sorry and it would never happen again . . . ." He also said he would pay the money back but did not. In addition, there was testimony that Pallone first "indicated to [Lieutenant John Szcepaniak of the Grosse Ile Police Department] via the phone that he had the authority to sign checks and do the things that he was doing." This evidence, viewed in a light favorable to the prosecution, was sufficient that a rational trier of fact could determine, beyond a reasonable doubt, that Pallone forged the checks in question with intent to defraud the victim. Pallone also argues that the prosecutor abused his discretion in bringing criminal charges, again arguing the instant case is a civil matter and not a criminal one. As discussed previously, -2-

Pallone fails to cite authority for his argument that the existence of a civil liability somehow precludes criminal liability. Further, the prosecutor has discretion to bring any charges supported by the evidence. People v Yeoman, 218 Mich App 406, 413-414; 554 NW2d 577 (1996). Here, because there was sufficient evidence to convict Pallone of the crimes charged, we conclude that Pallone fails to show that the prosecution abused its discretion in bringing charges against him. We now turn to VanCamp's arguments. VanCamp argues that the evidence was constitutionally insufficient to sustain the convictions on the two counts of uttering and publishing. We disagree. Unlike Pallone, there is no evidence that Vancamp forged the victim's signature. However, several of the checks were made payable to him, were endorsed by him and cashed. Further, the victim testified that when she informed VanCamp that Pallone had forged her signature on several checks, VanCamp acted surprised. VanCamp cannot now suggest that he had innocently endorsed the checks that Pallone had forged. VanCamp admits that this was a credibility contest. This Court is not in a position to judge the victim's credibility. Avant, 235 Mich App at 506. Although circumstantial, there is evidence that VanCamp knew that he endorsed several checks that Pallone had forged, intending to defraud the victim. Viewed in a light favorable to the prosecution, was sufficient so that a rational trier of fact could determine, beyond a reasonable doubt, that VanCamp knowingly endorsed checks forged by his partner, with intent to defraud the victim. VanCamp next argues that his constitutional right to counsel was infringed because his trial attorney rendered ineffective assistance of counsel. We disagree. Here, there was not a hearing in the trial court, and this Court's review is limited to the existing record. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). The questions presented by a claim of ineffective assistance of counsel are mixed questions of law and fact; findings of fact by the lower court are reviewed for clear error, and questions of constitutional law are reviewed de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The right to counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1,

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