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People v. Thorne

Court of Appeals of Michigan

December 14, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
KERRI LYNN THORNE, Defendant-Appellant.

         Emmet Circuit Court LC No. 16-004361-FH

          Before: Markey, P.J., and Hoekstra and Ronayne Krause, JJ.

          PER CURIAM.

         Following a jury trial, defendant appeals as of right from her conviction of larceny in a building, MCL 750.360. For the reasons explained in this opinion, we affirm.

         On April 12, 2016, defendant and the victim were playing slot machines next to each other at the Odawa Casino in Petoskey, Michigan. When the victim left her slot machine to use the restroom, defendant took the victim's TITO[1] ticket (hereafter, "TITO") out of the slot machine that the victim had been playing. While the victim was on her way to the restroom, she realized that she had not retrieved her TITO. The victim returned to the slot machine and asked defendant if she had seen the ticket, and defendant responded that she had not.

         The victim reported the missing TITO to a security guard. Video footage from the casino showed defendant taking the TITO ticket, and a police officer was called to investigate the incident. When speaking to the police, defendant initially denied that she had taken the TITO, but she then admitted doing so after the officer informed defendant of the surveillance footage.

         At trial, defendant did not dispute having taken the TITO; rather, she testified that she believed that the TITO had been abandoned. According to defendant, her belief was rooted in her prior experiences, having discussed it with casino staff, and based on one instance in which staff prevented her from retrieving her own TITO after she momentarily left her slot machine. A jury convicted defendant of larceny in a building. Defendant now appeals as of right.

         I. PROPERTY "OF ANOTHER"

         Defendant first argues that she did not commit a larceny because the TITO was not the property "of another." Specifically, defendant maintains that the victim did not have the right to possess the TITO as against defendant because the victim abandoned or, at a minimum, "lost" the TITO. Because the TITO was lost or abandoned, defendant maintains that she-"or anyone else that sat down at that slot machine and played"-had the right to possess the TITO.

         Questions of statutory interpretation and issues relating to the sufficiency of the evidence are reviewed de novo. People v Cline, 276 Mich.App. 634, 642; 741 N.W.2d 563 (2007). Defendant was convicted of larceny in a building under MCL 750.360. Because the statute does not define the term "larceny, " it is afforded its common law meaning. People v March, 499 Mich. 389, 399; 886 N.W.2d 396 (2016). Based on the common law understanding of larceny, the elements of larceny in a building are: (1) a trespassory taking (2) within the confines of a building and (3) the carrying away (4) of the personal property (5) of another (6) with intent to steal that property. Id. at 401-402. Defendant's argument implicates the "of another" element.

         For purposes of the "of another" requirement, "possession, and not title ownership is the determinative requirement in larceny crimes." Id. at 408. Specifically, property "of another" "is any property in which 'another' individual holds the right to possess as against the defendant at the time of the taking." Id. at 414. Conversely, "if the defendant had the right to possess the property as against the complainant at the time of the taking, no larceny could occur." Id. at 403.

To determine whether "another" had . . . rightful possession, courts must examine the respective rights to the property. This examination requires courts to determine both the rights of all relevant individuals to the property and whether any of those individuals held a right to possess the property as against the defendant. To undertake this examination, courts should consult pertinent statutes, ordinances, contracts, caselaw, and the like that give rise to the individuals' rights and define the relationship between those rights . . . . [Id.]

         In this case, the victim using the slot machine had actual possession of the TITO until she walked away from the machine. According to the victim's testimony, as she walked to the bathroom, she realized that she had left her ticket behind and, when the victim saw her daughter-in-law, she told her that she had "lost" the ticket. But, within 4 minutes, the victim returned to the slot machine with her daughter-in-law to look for the ticket. The mere fact that the victim momentarily walked away from the machine does not establish that the victim gave up possession of the TITO. That is, possession can be either actual or constructive, and it can be concluded from the evidence that the victim retained the power and intention to exercise dominion or control over the TITO. Id. at 415. Moreover, insofar as defendant emphasizes the victim's characterization of the TITO as "lost, " as between the owner of lost property and the individual who finds the item, the owner of the property has the right to possession of the item. See MCL 434.22(1); MCL 434.24; Wood v Pierson, 45 Mich. 313, 317; 7 N.W. 888 (1881). Indeed, the finder of lost or misplaced property can be guilty of larceny when he or she takes found property with the intent to steal. See People v Harmon, 217 Mich. 11, 13, 18; 185 N.W. 679 (1921); see also 50 Am Jur 2d Larceny ยง 52. In short, while defendant claims that the TITO was abandoned, the evidence supports the conclusion ...


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