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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KEVIN SCHUH, Defendant-Appellant.

UNPUBLISHED December 21, 2010

No. 291259 Wayne Circuit Court LC No. 08-013141-FH

Before: GLEICHER, P.J., and ZAHRA and K.F. KELLY, JJ. PER CURIAM. A jury convicted defendant of misconduct in office, a common-law crime, MCL 750.505, forgery, MCL 750.248, uttering and publishing, MCL 750.249, and conspiracy to commit insurance fraud, MCL 500.4511(2). The trial court sentenced defendant to concurrent terms of nine months in jail on all counts. Defendant appeals as of right. We affirm. Defendant formerly worked as a Detroit police officer, and the charges in this case stemmed from his preparation of an accident report (a UD-10) containing false information. Defendant authored a report documenting a three-car collision that occurred in Detroit on December 27, 2004. Investigators for the companies that had insured the vehicles purportedly involved in the December 27, 2004 accident described at trial the series of events leading to their scrutiny of the claims lodged by vehicle owners Norman Dehko, Mahir Kada, and Latifa Ibrahim.1 In Dehko's recorded phone conversation with his insurer, Dehko averred that as his Cadillac Escalade sat stationary in a left-turn lane, a car struck the Escalade from behind while traveling at least 40 miles an hour, causing him to rear end a Mercedes sport utility vehicle in front of him. After a GMAC fraud investigator became curious about the legitimacy of the claim, he spoke with defendant, who initially denied any recollection of the crash. Some brief discussion prompted defendant's recall that he had come upon the scene of the accident

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Some of the primary bases for insurance company skepticism that the reported accident had occurred included that (1) an accident reconstruction firm hired by the insurance companies determined that the damages to the three involved vehicles did not match the insurance claimants' accounts of the crash, and (2) the insurance investigators believed that Dehko had given telephone accounts of not only his own claim information, but that of the other two crash victims, under a different name than Dehko's own.

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coincidentally before drafting the accident report, and that defendant knew Dehko, although he did not have any familiarity with the other two crash victims. Eventually, an investigator for the National Insurance Crime Bureau and an officer working with the Detroit Police Department's internal affairs division referred the investigation to FBI Special Agents Derek Schoon and Michael Hanie. In February 2008, Schoon and Hanie interviewed defendant in front of his home. The trial testimony of Schoon and Hanie consistently recounted the following relevant details of defendant's interview: We started by informing him that we had reviewed these reports and that there were activity logs that showed him at one part of the city and at the same time he would file an accident report showing him in another part of the city and we had a dialogue and we agreed that you couldn't be in two places at one time so we asked him if he could explain that to us, which he did. *** [Defendant] identified Norman Dehko as the owner of Somerset Collision, a person that he had written some reports for. *** He [also] had mentioned [preparing reports for] a Wally--I don't think we had the last name . . . *** Yes, [defendant] did mention Wally. He said Wally was associated with Platinum Collision. *** And also Angie and Samir Cotter who were associated with Broadway Collision. *** . . . We asked him how--what were the circumstances when he made those reports cause the reports clearly could not have been taken at the scene as they were written up because he was at another point in the city doing other enforcement activities or other police calls that were verified. So he said that he had been provided information by these shop owners; that they would ask him to complete an accident report for them and that he would put the information he had been provided by the shop owners into the report and file it. *** He told us he had done it approximately 15 times. ***

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He agreed that he had not been at the scene where the crash was reported at the time of the crash and he also told us that the information that had been input into the actual report was that which had been provided by the collision shop owners.[2] *** We asked [defendant] [if he received anything in exchange for preparing the requested accident reports]. He said he had never received anything per report, but he admitted that he had received between five and seven thousand dollars from loans from these collision shop owners over a period of time and that these loans had no payback arrangement and that I don't believe, to the best of my recollection, any payment had ever been made, any restitution was ever made. *** . . . We asked in talking with him, we said, you do understand the value that a collision shop owner would have to having a police officer sign a report saying that he was at the scene? It would give it a certain credibility in the eyes of an insurance agent or somebody else if a police officer had been to the scene, had recorded this accident and had somewhat observed the vehicles at that place. *** [Defendant's answer] was, yes, he understood that there would be a value to that. I With respect to all four convictions, defendant challenges the sufficiency of the evidence supporting them. We consider de novo defense insufficiency claims. People v Harrison, 283 Mich App 374, 377; 768 NW2d 98 (2009). This Court must view the evidence in the light most favorable to the prosecution to determine "whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v Hardiman, 466 Mich 417, 421; 646 NW2d 158 (2002). An appellate court should not interfere with the factfinder's role to gauge the weight of the evidence and the credibility of witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748, amended 441 Mich 1201 (1992). The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict. The scope of review is the same whether the evidence is direct or

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FBI agent Schoon added defendant's explanation that after writing the "false reports," "later he would view the vehicles to see that the damage lined up with what the accident seemed to indicate."

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circumstantial. Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime. [People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000) (internal quotation omitted).] A. FORGERY In defendant's view, the evidence did not suffice to sustain his forgery conviction because the record contained no proof "that anything in the UD-10 was false," and defendant made no effort to "attempt to make the report appear to be anything but what it was: an accident report." A person commits forgery when he "falsely makes, alters, forges, or counterfeits a public record . . . with intent to injure or defraud another person." MCL 750.248(1). As reflected in the language of MCL 750.248(1), this Court has recognized that "[t]he elements of the crime of forgery are: (1) an act which results in the false making or alteration of an instrument (which makes an instrument appear to be what it is not); and (2) a concurrent intent to defraud or injure. The key is that the writing itself is a lie." People v Kaczorowski, 190 Mich App 165, 171; 475 NW2d 861 (1990). We review de novo the legal question whether conduct "falls within the statutory scope of a criminal statute." People v Rutledge, 250 Mich App 1, 4; 645 NW2d 333 (2002). Defendant heavily relies on this Court's opinion in People v Hodgins, 85 Mich App 62, 63; 270 NW2d 527 (1978), in which the Court framed the "central issue [a]s whether one who opens a checking account using the name, identification and address of another person is guilty of forgery under MCL 750.248 . . . when she writes a check on that account for more than the balance." In Hodgins, the defendant used her landlord's driver's license, social security card, and car registration to open a bank account in the landlord's name. Id. at 63-64. The defendant made a small deposit into the account, and then tried to buy a television set with a check in an amount that exceeded her deposit. Id. at 64. This Court emphasized that the prosecution had premised the forgery charge "not . . . on the opening of the account as described above," but instead "on the fact that [the] defendant used one of the checks she had obtained from the bank when attempting to purchase" the television. Id. The Court held that the act of writing the check and presenting it for payment did not constitute forgery because the check was what it purported to be: . . . There may have been a litany of offenses committed, but not forgery. The check given by [the] defendant did not purport to be anything other than a personal check drawn by the person who presented it on an account that that person had opened. The misrepresentation of identity to the bank in opening the account did not make the creation of a draft on that account a forgery when presented to pay for the television set. Simply stated, the writing itself was not a lie. Under MCL 440.3401. . . , only defendant would be liable on the instrument. . . . The risk of loss to which the store was exposed was the result of the lack of funds in the account, not the manner in which the instrument was prepared. [Id. at 65-66.] The underlying facts of this case do not resemble the scenario deemed insufficient to sustain a forgery charge in Hodgins, 85 Mich App 62. Here, the prosecutor grounded the forgery -4-

count against defendant on his actions in "falsely mak[ing], alter[ing], forg[ing] or counterfeit[ing] a public record, with intent to injure or defraud, to wit: UD-10 Police Traffic Crash Report No. 6547452." And the testimony and other evidence at trial amply supported a reasonable jury's determination beyond a reasonable doubt that defendant committed both forgery elements reiterated by this Court in Kaczorowski, 190 Mich App at 171. First, Schoon and Hanie testified concerning defendant's acknowledgement that, with accident or collision details defendant received from Dehko, defendant authored fabricated accident reports and falsely recorded on the UD-10s that he had inspected the accident scenes.3 From this testimony alone the jury reasonably could have found beyond a reasonable doubt that defendant committed "act[s] which result[ed] in the false making or alteration of an instrument." Id. Second, a rational jury could find beyond a reasonable doubt that defendant possessed an "intent to defraud or injure" when he prepared the UD-10's Dehko requested, id., in light of the trial evidence that (1) defendant admitted to Schoon and Hanie his awareness that an insurance company assessing an accident claim would deem the claim more credible when accompanied by a UD-10 prepared by a police officer, and (2) defendant acknowledged having written approximately 15 false accident reports. B. UTTERING & PUBLISHING Defendant insists that his uttering and publishing conviction is unsustainable given the absence of any evidence that he "present[ed] the UD-10 for payment." As our Legislature set forth in MCL 750.249(1), "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 . . . ." "The elements of uttering and publishing are: (1) knowledge on the part of the defendant that the instrument was false; (2) an intent to defraud; and (3) [a] presentation of the forged instrument for payment," People v Shively, 230 Mich App 626, 631; 584 NW2d 740 (1998), or (b) presentation of a forged "record," "public record," or other document specified in MCL 750.248 in a manner "capable of affecting the rights of others or creating liability in others." People v Cassadime, 258 Mich App 395, 399-400; 671 NW2d 559 (2003); People v Carter, 106 Mich App 765, 767; 309 NW2d 33 (1981). The evidence here reasonably supported findings beyond a reasonable doubt that (1) defendant authored and filed false accident reports at Dehko's request, including the December 27, 2004 accident report, (2) defendant intended to defraud the insurance companies, i.e., he knew that his submission of the false UD-10 made more likely that the insurance companies would pay policy benefits for the false claims, and (3) defendant's filing of the false UD-10's amounted to the presentation of a record in a manner "capable of . . . creating liability in others," namely any insurance company that made a payment on behalf of a claimant identified in defendant's false accident reports. Cassadime, 258 Mich App at 399-400; Carter, 106 Mich App at 767-769. Even accepting, as defendant claims, that the insurance companies did not rely on

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Unlike People v Thomas, 182 Mich App 225, 229-230; 452 NW2d 215 (1989), aff'd 438 Mich 448; 475 NW2d 288 (1991), also cited by defendant, the instant police report does not contain a single false statement within the body of an otherwise accurate recitation of pertinent facts.

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his false UD-10 in making their payments to Dehko and the other claimants, the elements of uttering and publishing nonetheless were satisfied. People v Harrison, 283 Mich App 374, 381; 768 NW2d 98 (2009) ("To utter means to put something into circulation. To utter and publish means to offer something as if it is real, whether or not anyone accepts it as real."). C. CONSPIRACY TO COMMIT INSURANCE FRAUD The prosecutor charged defendant with entering "an agreement or conspiracy to commit a fraudulent insurance act under section 4503." MCL 500.4511(2). Specifically, the prosecutor's charging documents averred that defendant had engaged in conduct prohibited under MCL 500.4503 by "enter[ing] into an agreement or conspir[ing] to prepare a written or oral statement knowing or believing that it would be presented by or to an insurer or an agent of an insurer, knowing that it contained false information concerning a fact material to an insurance claim." The charging language employed by the prosecutor most closely tracked MCL 500.4503(c) and (d). The plain language of subsections 4503(c) and (d) reveals the following elements necessary for establishing guilt of "[a] fraudulent insurance act": (1) any knowing act or omission, (2) done with the specific intent to deceive, defraud, or injure, (3) that (a) "[p]resents or causes to be presented to" an insurer "any oral or written statement" [subsection 4503(c)], or (b) assists "another to prepare or make any oral or written statement . . . intended to be presented to . . . any insurer" [subsection 4503(d)], (4) in connection with a claim for payment under a policy, and (5) with knowledge that the statement contains false information about any fact material to the insurance claim.4 In addition to proving the elements of insurance fraud under MCL 500.4511(2) and MCL 500.4503(c) or (d), to obtain a conspiracy conviction the prosecutor also must present evidence substantiating the conspiracy aspect of the charge. Conspiracy is defined by common law as a partnership in criminal purposes. Under such a partnership, two or more individuals must have voluntarily agreed to effectuate the commission of a criminal offense. Establishing that the individuals specifically intended to combine to pursue the criminal objective of their agreement is critical because the gist of the offense of conspiracy lies in the unlawful agreement[,] meaning the crime is complete upon formation of the agreement.

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In considering whether statutory offense elements exist in a particular case, we bear in mind the statutory interpretation principles summarized in Cassadime, 258 Mich App at 398: To discern the Legislature's intent, this Court must first look to the specific language of the statute. Further, this Court must presume that every word, phrase, and clause in the statute has meaning and must avoid any construction that would render any part of the statute surplusage or nugatory. Every word or phrase in the statute is accorded its plain and ordinary meaning. [Internal quotation omitted.]

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The specific intent to combine, including knowledge of that intent, must be shared by two or more individuals because there can be no conspiracy without a combination of two or more. . . . Accordingly, there must be proof demonstrating that the parties specifically intended to further, promote, advance, or pursue an unlawful objective. [People v Justice (After Remand), 454 Mich 334, 344-346; 562 NW2d 652 (1997) (footnotes and internal quotation omitted).] A review of the record in this case reflects that a rational jury could have found defendant guilty of conspiring to commit insurance fraud beyond a reasonable doubt. Viewed in the light most favorable to the prosecution, the substance of defendant's admissions establish or give rise to reasonable inferences that (1) defendant knowingly authored and filed accident reports, (2) defendant assisted Dehko in preparing accident reports entirely on the basis of information supplied by Dehko, (3) defendant knew or reasonably should have known that Dehko intended to submit the accident reports in support of insurance claims, and (4) defendant knowingly documented false collision details in the accident reports requested by Dehko, which details defendant knew had materiality to Dehko's intended insurance claims. And defendant's actions, especially in light of his concession that he knew the insurance companies relied on police reports in paying collision claims, reasonably supported a jury finding that he prepared the false accident reports with an intent to deceive, defraud, or injure. Although defendant emphasizes that "the UD-10 was not material to the claim" by Dehko because none of the involved insurance companies made a payment of benefits on the basis of the accident report, the pertinent portion of the statute clearly and unambiguously envisions only that defendant have knowledge "that the statement contains any false information concerning any fact or thing material to the claim." MCL 500.4503(c) and (d) (emphasis added). Moreover, the statute does not define "material," which Black's Law Dictionary (9th ed), p 1066, explains, in pertinent part, as, "2. Having some logical connection with the consequential facts," or, "3. Of such a nature that knowledge of the item would affect a person's decision-making; significant; essential." From the evidence, the jury properly found beyond a reasonable doubt that defendant's completion of accident reports with details supplied by Dehko constituted the declaration of false information having a logical connection or materiality to Dehko's claims; alternatively phrased, the jury reasonably found that the false UD-10's had some logical connection to Dehko's claims, or that the false reports naturally would affect an insurance company's decisionmaking with respect to Dehko's claims. Furthermore, the admissions of defendant sufficed to permit the jury to conclude beyond a reasonable doubt that defendant had intentionally entered an agreement with Dehko, and that both defendant and Dehko shared the specific intent "to further, promote, advance, or pursue an unlawful objective," namely to fabricate accident reports for Dehko's submission to his automobile insurer in connection with an accident claim. Justice, 454 Mich at 345 n 18, 347. D. MISCONDUCT IN OFFICE "At common law, misconduct in office was defined as corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office." People v Perkins, 468 Mich 448, 456; 662 NW2d 727 (2003) (internal quotation omitted). An officer could face conviction of misconduct in office "(1) for committing any act which is itself wrongful, malfeasance, (2) for committing a lawful act in a wrongful manner, misfeasance, or (3) -7-

for failing to perform any act that the duties of the office require of the officer, nonfeasance." Id. "In the case of malfeasance and misfeasance, the offender also must act with a corrupt intent, i.e., with a sense of depravity, perversion or taint." Id. (internal quotation omitted). "Moreover, the officer's wrongdoing must result from or directly affect the performance of his official duties." Id. As we have previously observed, the instant trial record amply established that defendant authored and filed accident reports containing false information, acts of misfeasance. Defendant's concessions that he manufactured and filed accident reports, for Dehko and others, in exchange for purported loans that had no repayment timetable reasonably tends to establish that defendant authored the false accident reports with a corrupt intent. People v Milton, 257 Mich App 467, 471; 668 NW2d 387 (2003) (explaining that corruption in the context of misconduct in office "is used in the sense of depravity, perversion or taint," and that "[p]ursuant to the definitions of depravity, perversion and taint, a corrupt intent can be shown where there is intentional or purposeful misbehavior or wrongful conduct pertaining to the requirements and duties of office by an officer") (internal quotation omitted). Also, the record evidence agrees that defendant authored and filed the false accident reports in his capacity as a Detroit police officer. Notably, the Legislature codified an officer's duty to prepare and file accident reports in collisions causing more than $1,000 in property damage. MCL 257.622 (directing that "[t]he officer receiving the report, or his or her commanding officer, shall immediately forward each report to the director of the department of state police on forms prescribed by the director of the department of state police," and that "[t]he forms shall be completed in full by the investigating officer"). II Defendant next disputes the propriety of the trial court's admission of other acts evidence concerning his alleged forgery of approximately 15 other accident reports. This Court reviews for a clear abuse of discretion a trial court's decision whether to admit evidence. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). Defendant insists that the trial court's admission of the other acts evidence violated MRE 404(b)(1), because "corroborating a government agent's testimony is not" a proper purpose for admissibility, "the evidence was insufficient that [defendant] actually falsified (or even admitted to falsifying) 15 additional crash reports," and admission of the evidence "was far more unfairly prejudicial than probative." MRE 404(b)(1) prohibits the admission of evidence of a defendant's other acts or crimes when introduced solely for the purpose of showing the defendant's action in conformity with his criminal character. People v Sabin (After Remand), 463 Mich 43, 56; 614 NW2d 888 (2000). But evidence of a defendant's other acts or crimes qualifies as admissible under the following circumstances: (1) the prosecutor offers the evidence for a proper purpose under MRE 404(b)(1); (2) the other acts evidence satisfies the definition of logical relevance within MRE 401; and (3) any unfair prejudice arising from the admission of the other acts evidence does not substantially outweigh its probative value, MRE 403. Starr, 457 Mich at 496; People v Ackerman, 257 Mich App 434, 439-440; 669 NW2d 818 (2003). Before trial, the prosecutor sought to admit evidence of 10 other false accident reports written by defendant, in the form of a witness who could "produce the documents and testify from Internal Affairs that this is a pattern that was revealed in the investigation of . . . Defendant's . . . activity logs and crash reports." The prosecutor also theorized that the other -8-

acts evidence would rebut an anticipated attack by defendant on the credibility of the special agents set to testify regarding defendant's inculpatory statements. The trial court expressed its view that the other acts evidence carried a significant danger of unfair prejudice and declined to admit it, with the caveat that if at trial defendant maintained "the defense of mistake or falsehood; that is the FBI agent is deliberately not being candid, or in other words, lying to the jury, then the Court will allow you to renew your motion to allow these other acts in to corroborate that statement." After the testimony by special agent Schoon, during which defense counsel questioned the soundness of Schoon's account of defendant's inculpatory statements, the prosecutor renewed his motion to admit other acts evidence. The trial court declined to admit the proffered documentary evidence consisting of multiple other accident reports prepared by defendant and defendant's activity logs, finding the probative value inherent in the documentary evidence substantially outweighed by a danger of unfair prejudice. However, in light of the defense suggestion that the special agent testimony was incredible, the court allowed the prosecutor "to go into, with the second witness, an opportunity to say, . . . there were other reports and they found discrepancies in those reports, but not get into the sum and substance of the other reports" "to corroborate essentially the testimony of the first witness."5 We initially address defendant's dispute that an adequate foundation existed for the trial court to deem admissible "evidence . . . that [he] actually falsified (or even admitted to falsifying) 15 additional crash reports." Where the admissibility of evidence is disputed, the burden of establishing a proper foundation rests with the party seeking admission. Foundational elements of fact must be proven by a preponderance of the evidence. . . . MRE 104(a). The trial court is not restricted to considering admissible evidence in ruling on the admissibility of evidence under MRE 104(a) . . . . [In re Brock, 193 Mich App 652, 669; 485 NW2d 110 (1992), rev'd on other grounds 442 Mich 101; 499 NW2d 752 (1993).] Here, defendant himself acknowledged when interviewed by agents Schoon and Hanie that he had authored approximately 15 false accident reports for Dehko and others, and a Detroit police internal affairs investigator testified that he uncovered around 15 or 20 discrepancies between accident reports filed by defendant and defendant's daily police activity logs. This evidence formed an adequate foundation for the trial court to admit evidence of defendant's other acts. With regard to admissibility under MRE 404(b)(1), first, the prosecutor did offer the other acts evidence for a proper purpose--augmenting the basis for Schoon's trial testimony

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The prosecutor subsequently offered into evidence Schoon's handwritten notes of defendant's admissions and the report that Schoon had authored to document defendant's admissions. The court admitted the documents on the ground that they contained admissions by defendant, MRE 801(d)(2)(A), and agreed with the defense request to redact irrelevant portions of the documents. Defendant offered no other objection at trial to the admissibility of Schoon's notes and report.

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about his and Hanie's interview of defendant. Notwithstanding that MRE 404(b)(1) does not mention witness credibility as a proper basis for introducing other acts evidence, the list of "some . . . permissible uses" of other acts evidence set forth in MRE 404(b)(1) "is not . . . exhaustive." Sabin, 463 Mich at 56.6 Second, the other acts evidence had probative value toward establishing the credibility of Schoon and Hanie, to whom defendant made several incriminating admissions; specifically, the other acts evidence tended to substantiate the probability of the agents' account of defendant's statement, a matter of consequence in this case, especially after defense counsel at trial attempted to impugn Schoon's account of defendant's statement. MRE 401. Critical to the instant case and a fact that is also "of consequence" to a determination is the credibility of the witnesses offering testimony. (M)atters in the range of dispute may extend somewhat beyond the issues defined in the pleadings . . . . (T)he parties may draw in dispute the credibility of the witnesses and, within limits, produce evidence assailing and supporting their credibility." 1 McCormick, Evidence (4th ed),

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