                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 26, 2017
              Plaintiff-Appellee,

v                                                                  No. 329071
                                                                   Wayne Circuit Court
TROY NELL BRANDOM,                                                 LC No. 15-003073-01-FC

              Defendant-Appellant.


Before: BECKERING, P.J., and SAWYER and SAAD, JJ.

BECKERING, P.J., (concurring).

       I agree with the majority opinion’s outcome, but write separately to offer an alternative
analysis and address head on defendant’s arguments on appeal.

        Defendant was convicted by a jury of receiving or concealing stolen property in violation
of MCL 750.535(3)(a), which deals with property that has a value of $1,000 or more but less
than $20,000. This case arises out of defendant’s involvement in the theft of Shaneka Cannon’s
motor vehicle on February 19, 2015, after she walked into a gas station to pre-pay for gas while
leaving the keys in the ignition with the motor running. The prosecutor had charged defendant in
the alternative of violating either MCL 750.535(3)(a) or MCL 750.535(7), which deals with
receiving or concealing a stolen motor vehicle. In light of the language of set forth in MCL
750.535(7), a person charged with MCL 750.535(7) may not be convicted of or punished for a
violation of another provision of MCL 750.535, including MCL 750.535(3)(a), when those
offenses relate to the same motor vehicle. Because the prosecutor had charged defendant with
MCL 750.535(a)(7), defendant had a right to prohibit the trial court from submitting for the
jury’s consideration a conviction for MCL 750.535(3)(a). But defendant waived that right when
his counsel expressly approved the proposed jury instructions and verdict form that allowed the
jury to convict defendant of either MCL 750.535(3)(a) or MCL 750.535(7), but not both. The
jury picked MCL 750.535(3)(a), and the trial court sentenced defendant for that conviction, again
without any objection from defendant’s counsel. Only later did defendant file a motion to vacate
his conviction, which was denied, and this appeal ensued.




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                     I. STATUTORY INTERPRETATION OF MCL 750.535

       As the majority opinion points out, defendant challenges whether he was properly
convicted under MCL 750.535(3)(a) in violation of MCL 750.535(7). The pertinent sections of
MCL 750.535 are as follows:

       (1) A person shall not buy, receive, possess, conceal, or aid in the concealment of
       stolen, embezzled, or converted money, goods, or property knowing, or having
       reason to know or reason to believe, that the money, goods, or property is stolen,
       embezzled, or converted.

                                                 ***

       (3) If any of the following apply, a person who violates subsection (1) is guilty of
       a felony punishable by imprisonment for not more than 5 years or a fine of not
       more than $10,000.00 or 3 times the value of the property purchased, received,
       possessed, or concealed, whichever is greater, or both imprisonment and a fine:

              (a) The property purchased, received, possessed, or concealed has a value
       of $1,000.00 or more but less than $20,000.00.

                                              ***
       (7) A person shall not buy, receive, possess, conceal, or aid in the concealment of
       a stolen motor vehicle knowing, or having reason to know or reason to believe,
       that the motor vehicle is stolen, embezzled, or converted. Except as provided in
       subsection (8), a person who violates this subsection is guilty of a felony
       punishable by imprisonment for not more than 5 years or a fine of not more than
       $10,000.00 or 3 times the value of the motor vehicle purchased, received,
       possessed, or concealed, whichever is greater, or both imprisonment and a fine. A
       person who is charged with, convicted of, or punished for a violation of this
       subsection shall not be convicted of or punished for a violation of another
       provision of this section arising from the purchase, receipt, possession,
       concealment, or aiding in the concealment of the same motor vehicle. This
       subsection does not prohibit the person from being charged, convicted, or
       punished under any other applicable law. [Emphasis added.]

        Defendant argues that, as soon as he was “charged with” violating MCL 750.535(7), the
statutory prohibition against being convicted under MCL 750.535(3)(a) was triggered. The
prosecution contends that, because defendant was charged in the alternative, he was never
subject to being “charged with” MCL 750.535(7) and convicted of MCL 750.535(3)(a) because
the jury had to choose one or the other, but not both. Therefore, the exclusionary provision in
MCL 750.535(7) was neither triggered nor violated.

         Resolution of defendant’s challenge on appeal involves construing the meaning of the
italicized portion of the statute in order “to determine and give effect to the Legislature’s intent.”
People v Lowe, 484 Mich 718, 721; 773 NW2d 1 (2009). A “statute’s words are the most
reliable indicator of the Legislature’s intent,” id. at 721-722, and our task is to give “plain

                                                 -2-
meaning to the words actually used in a statute rather than presuming that the Legislature meant
to say something entirely different,” People v Williams, 491 Mich 164, 175; 814 NW2d 270
(2012). Only where the statutory language is ambiguous may the Court look outside the statute
to ascertain the Legislature’s intent. People v Rutledge, 250 Mich App 1, 5; 645 NW2d 333
(2002). “A provision is considered ambiguous when it is susceptible to more than one
reasonable interpretation.” Id. A statute’s definition of a term controls. People v Wiggins, 289
Mich App 126, 128; 795 NW2d 232 (2010). However, where a statute fails to define a term, “we
presume that the Legislature intended the word to have its ordinary meaning,” People v March,
499 Mich 389, 398; 886 NW2d 396 (2016) (quotation marks and citation omitted), and we
consult a dictionary for that ordinary meaning, People v Tennyson, 487 Mich 730, 738; 790
NW2d 354 (2010). Penal statutes must “be construed according to the fair import of their terms,
to promote justice and to effect the objects of the law.” MCL 750.2.

        MCL 750.535(7) does not define the phrase “charged with.” When used in the context of
criminal law, that phrase means “[t]o accuse (a person) of an offense.” Black’s Law Dictionary
(10th ed), p 282. “ ‘Or’ . . . is a disjunctive [term], used to indicate a disunion, a separation, an
alternative.” People v Kowalski, 489 Mich 488, 499 n 11; 803 NW2d 200 (2011) (quotation
marks and citation omitted). “The use of the word ‘shall’ indicates a mandatory and imperative
directive.” People v Lown, 488 Mich 242, 279; 794 NW2d 9 (2011) (citation omitted).
Accordingly, a defendant who is “charged with [or] convicted of [or] punished for” violating
MCL 750.535(7) shall not be convicted of or punished for a violation of MCL 750.535(3)(a).
Contrary to the prosecution’s contention, the plain and ordinary language of the statute does not
require that a defendant be subject to conviction of two separate offenses, i.e., it does not require
that a defendant be charged with and convicted of MCL 750.353(7) before the bar to conviction
under another provision of MCL 750.535 is triggered. Therefore, once defendant was “charged
with” violating MCL 750.535(7), under the clear and unambiguous language of the statute, he
could not be “convicted of or punished for” violating any other section subsection MCL 750.353,
including subsection (3)(a).

        “It is not [this Court’s] role to rewrite the law or substitute our own policy judgment in
the face of the text of the statute, or ‘to create an ambiguity where none exists in order to reach a
desired result . . . .’ ” People v Harris, 499 Mich 332, 356; 885 NW2d 832 (2016), quoting
People v McIntire, 461 Mich 147, 153; 599 NW2d 102 (1999). Certainly, a prosecutor has great
discretion in charging decisions and may charge a defendant under alternative theories. See
People v Venticinque, 459 Mich 90, 100; 586 NW2d 732 (1998) (reaffirming the prosecution’s
discretion in this area). Moreover, it is not illogical that the Legislature intended the statute to
function as the prosecution claims, i.e., to allow for alternative charging while preventing a
defendant from being convicted under two subsections of the same statute for the same criminal
act. However, the plain and unambiguous text of the statute contains no reference to a
prosecutor’s ability to charge in the alternative without being subject to the exclusionary
language of the statute. Thus, if the Legislature did not intend to limit the prosecutor’s ability to
charge a defendant under MCL 750.535(7) in the alternative, it could have easily indicated its




                                                -3-
intent or it can amend the statute. See People v Babcock, 244 Mich App 64, 78; 624 NW2d 479
(2000).1

         In light of the clear and unambiguous language of MCL 750.535(7), because the
prosecution had charged defendant with violating MCL 750.535(7), defendant was entitled to ask
the trial court to dismiss the charge for violating MCL 750.535(3)(a) before the parties finalized
the jury instructions and the verdict form or submitted the case to the jury. However, by failing
to make such a motion, and in fact by finding no fault in the verdict form and expressly agreeing
to the jury instructions regarding the alternative theories, defendant waived his right to have the
trial court dismiss the charge prior to submitting it to the jury, and this waiver extinguished any
error. See People v Riley, 465 Mich 442, 449; 636 NW2d 514 (2001).

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that his trial counsel rendered ineffective assistance by failing to object
to defendant being convicted or sentenced in violation of MCL 750.535(7), and therefore, he
claims that his conviction under MCL 750.535(3)(a) must be vacated. To prevail on his claim of
ineffective assistance of counsel, defendant must “show that (1) counsel’s performance was
below an objective standard of reasonableness and (2) a reasonable probability that the outcome
of the proceeding would have been different but for trial counsel’s errors.” People v Ackerman,
257 Mich App 434, 455; 669 NW2d 818 (2003).

        By failing to move in a timely manner to prohibit the jury from being able to convict
defendant of MCL 750.535(3) since he had been charged with violating MCL 750.535(7), trial
counsel arguably performed below an objective standard of reasonableness. However, even if
counsel’s failure to take the charge of MCL 750.535(3)(a) away from the jury’s consideration
satisfies the first prong of the ineffective assistance analysis, defendant has not satisfied the
second prong because he has not shown a reasonable probability that the outcome of the
proceeding would have been different. Ackerman, 257 Mich App at 455.

      Defendant assumes that, had defense counsel successfully moved for dismissal of MCL
750.535(3)(a) on defense counsel’s motion, the jury would not have convicted him of MCL
750.535(7).2 The record does not support defendant’s assumption. As the majority opinion


1
  The simple fix would be to eliminate the phrase “charged with” in the exclusionary language of
MCL 750.535(7). That way, a person could be charged with violating MCL 750.535(7) while
also being charged with violating another provision of MCL 750.535, but he or she could not be
convicted of or punished for violating another provision of MCL 750.535 (arising from the
purchase, receipt, possession, concealment, or aiding in the concealment of the same motor
vehicle) if he or she is convicted of or punished for a violation of MCL 750.535(7).
2
  To the extent defendant argues that his counsel should have waited until sentencing to raise his
right not to be convicted of or punished for a violation of MCL 750.535(3)(a)—so as to allow the
jury to be presented with an improper option subject to later invalidation—the majority is correct
that a person may not purposefully harbor error as an appellate parachute, People v Riley, 465
Mich 442, 448; 636 NW2d 514 (2009), nor will we countenance an argument that it is okay for a


                                                -4-
points out, the evidence adduced at trial was sufficient for the jury to find beyond a reasonable
doubt that defendant had received, possessed, or concealed stolen property valued between
$1,000 and $20,000, and it was undisputed that the property involved was a motor vehicle.
Thus, the evidence supported a finding that defendant violated MCL 750.535(7). Therefore,
even if the trial court had dismissed MCL 750.535(3)(a), there is no reasonable probability that
the jury would have acquitted defendant of receiving, possessing, or concealing a stolen or
converted motor vehicle, i.e., of MCL 750.535(7). Consequently, I would find that defendant’s
claim of ineffective assistance of counsel must fail because he has not made the necessary
showing or prejudice resulting from his counsel’s deficient performance.



                                                           /s/ Jane M. Beckering




defendant’s attorney to be ineffective up to the point where error occurs and benefits the
defendant.


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