People of Michigan v. Anthony Gayl Lake ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 11, 2020
Plaintiff-Appellee,
v No. 346128
Montcalm Circuit Court
ANTHONY GAYL LAKE, LC No. 2017-023481-FC
Defendant-Appellant.
Before: CAMERON, P.J., and BOONSTRA and LETICA, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of safe-breaking, MCL 750.531,
larceny in a building, MCL 750.360, and possession of burglar’s tools, MCL 750.116. The trial
court sentenced defendant as a second-offense habitual offender, MCL 769.10, to concurrent
prison terms of 47 months to 25 years for the safe-breaking conviction, 2 to 6 years for the larceny
in a building conviction, and 47 months to 15 years for the possession of burglar’s tools
conviction.1 We affirm defendant’s convictions and sentence, but vacate the trial court’s order of
restitution and remand for correction of the judgment of sentence.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In December 2017, defendant and his girlfriend, Rachel Carlson, lived with Shannon White
at his mobile home. White and Carlson had been friends for several years. White testified that he
permitted Carlson and defendant to stay with him on a temporary basis, and that he had never had
a romantic relationship with Carlson, although he had previously been interested in one. Carlson
and White each had a key to the front door of White’s residence.
1
The jury acquitted defendant of one count of possession of a firearm as a felon, MCL 750.224f(1),
one count of possession of ammunition as a felon, MCL 750.224f(3), and two counts of possession
of a firearm during the commission of a felony, MCL 750.227b.
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On a day in early December 2017, White returned home from work at approximately 6:00
p.m. He found the back door of his mobile home ajar. White testified he had weatherproofed that
door for the winter by sealing it with plastic and tape, and that the door had been locked with a
padlock from the inside. He noticed that the plastic weatherproofing was ripped. Upon entering
the home, White discovered that several items were missing, including his television and video
game console, a rifle, ammunition, and a locked safe containing silver coins, silver certificate
money, silver spoons, his father’s silver ring, and various personal documents. The padlock was
not on the door. White later discovered that other items were also missing from the residence,
including a new space heater, an electronic tablet, and various knives.
Michigan State Police Trooper James Yates responded to White’s report of missing items
that same day. Trooper Yates testified that White told him that he had asked Carlson and defendant
to leave the night before. White informed Trooper Yates that defendant and Carlson had
previously stayed in a neighboring mobile home. Trooper Yates went there, accompanied by the
manager of the mobile home community, and knocked on the door. Defendant answered. Trooper
Yates asked if defendant he knew why he was there; defendant responded that he had taken items
from White’s residence and that they were inside the home.
Defendant let Trooper Yates into the home and directed him to the bedroom, where Trooper
Yates found at least some of White’s property. White identified the property as his. Trooper Yates
then arrested defendant for the theft of the items from White’s residence and gave defendant
Miranda2 warnings. Trooper Yates asked defendant if he would agree to talk with him, and
defendant agreed. Defendant informed Trooper Yates that he alone had taken the items from
White’s residence that morning. According to Trooper Yates, defendant also stated that he had
broken into White’s safe by using a screwdriver and the bottom of a cast iron frying pan.
Defendant told Trooper Yates that he took the items from White’s residence because he believed
that White and Carlson were involved sexually. Defendant was arrested by Officer Parsons3 of
the Greenville Public Safety Department.
Defendant’s trial was originally scheduled for March 19, 2018, but was adjourned until
April 17, 2018. On that date, after a jury pool had gathered at the courthouse, defendant accepted
a plea offer from the prosecution. Defendant later filed a motion to withdraw the plea, which the
trial court granted. Defendant’s first three appointed attorneys each moved to withdraw after
having substantial disagreements with defendant, which included threats of legal action against the
attorneys. After each new attorney was appointed, the trial date was again adjourned to allow
defendant’s new attorney time to prepare—in fact, the trial court adjourned the trial date twice
after defendant’s last attorney was appointed.4 Ultimately, the trial was scheduled to begin on
2
Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).
3
The lower court record does not reflect Officer Parsons’ first name.
4
On July 10, 2018, the trial court entered an order adjourning the trial until August 7, 2018. Later,
the trial court adjourned the trial until September 18, 2018. This new trial date was reflected in
the scheduling order entered on August 24, 2018. The register of actions does not reflect why the
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September 18, 2018. On the first day of trial, defense counsel moved to again adjourn the trial to
have additional time to prepare based on allegedly newly discovered evidence. The trial court
denied the motion, noting the numerous previous adjournments and concluding that defense
counsel had had adequate time to prepare for trial.
The jury convicted defendant as described. At sentencing, the trial court ordered restitution
in the amount of $1,180, in addition to court costs of $1,500. The trial court stated that the
restitution amount was “reimbursement to the Court in the amount of $1,180 for that canceled jury
fee,” in reference to the jury pool that had assembled on April 17, 2018 before defendant accepted
the plea agreement that he later withdrew.
This appeal followed.
II. DENIAL OF MOTION TO ADJOURN
Defendant argues that the trial court abused its discretion by denying his request for an
adjournment on the first day of his trial. We disagree.
We review for an abuse of discretion a trial court’s decision regarding a motion for an
adjournment. People v Snider, 239 Mich. App. 393, 421; 608 NW2d 502 (2000). “The trial court
abuses its discretion when its decision falls outside the range of principled outcomes or when it
erroneously interprets or applies the law.” People v Lane, 308 Mich. App. 38, 51; 862 NW2d 446
(2014) (citation omitted).
A motion for an adjournment or a continuance must be made on the basis of good cause.
MCR 2.503(B)(1); People v Jackson, 467 Mich. 272, 276; 650 NW2d 665 (2002). A trial court
may use its discretion to grant an adjournment “to promote the cause of justice.”
MCR 2.503(D)(1). The trial court considers several factors when determining whether a defendant
has demonstrated good cause, including “ ‘whether defendant (1) asserted a constitutional right,
(2) had a legitimate reason for asserting the right, (3) had been negligent, and (4) had requested
previous adjournments.’ ” People v Coy, 258 Mich. App. 1, 18; 669 NW2d 831 (2003). To obtain
relief on appeal, even if a defendant can demonstrate good cause for adjournment, he must also
show that he was prejudiced by the trial court’s denial of his motion. Snider, 239 Mich. App. at
421.
A defendant may move a trial court for an adjournment on the basis of the unavailability
of a witness or evidence. See People v Steele, 283 Mich. App. 472, 488; 769 NW2d 256 (2009),
MCR 2.503(C). MCR 2.503(C)(1) provides: “A motion to adjourn a proceeding because of the
unavailability of a witness or evidence must be made as soon as possible after ascertaining the
facts.” Additionally, MCR 2.503(C)(2) provides that a trial court may grant an adjournment on
the basis of the unavailability of a witness or evidence “only if the court finds that the evidence is
material and that diligent efforts have been made to produce the witness or evidence.”
trial did not take place on August 7, nor does it show that either party had requested an additional
adjournment after the July 10 adjournment order was entered.
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Defendant cannot show that the trial court abused its discretion by denying yet another
request for adjournment. Defendant’s fourth (and final) trial attorney was appointed in July 2018
and received two adjournments of the trial date in order to prepare. Additionally, defendant did
not seek a further adjournment of the trial until the day of trial, despite having been aware of the
trial date since at least August 24, 2018, when the scheduling order reflecting the most recent
adjournment was entered. Defendant has not shown that the period of approximately two months
between his most recent attorney’s appointment and trial was an insufficient amount of time to
prepare.
Defendant further argues that the trial court should have granted an adjournment to allow
defense counsel to investigate Officer Parsons as a potential witness, to obtain Officer Parsons’
police report, and to review video clips from Trooper Yates’s body camera that the prosecution
had recently provided. We find no merit to these arguments. At the hearing on defendant’s motion
to adjourn, defendant did not specifically argue that he intended to call Officer Parsons as a witness
or to admit his police report as evidence at trial, but that he was unable to do so without additional
time to prepare; rather, defense counsel argued that he had only discovered Officer Parsons as a
potential witness “about a week ago” and requested more time to determine whether Parsons’
testimony or report would aid his defense. Nor has defendant demonstrated that Officer Parsons
or his police report were unavailable to him during the two months between his attorney’s
appointment and the trial—defendant merely argued that Officer Parsons had been on vacation the
previous week.5 Defendant also has not established that he requested an adjournment as soon as
possible, or that he used diligent efforts to investigate Officer Parsons and his report as potential
evidence. See MCR 2.503(C)(2).
Regarding defendant’s argument that he required additional time to review the video
recordings, the record shows that the prosecution provided defendant’s first court-appointed
attorney with all of the footage recorded by Trooper Yates’s body camera approximately seven
months before trial. The recordings defense counsel received one week before trial consisted of
selected clips excerpted from that footage. Defendant did not establish that a one-week period of
time was insufficient to review excerpts that were taken from the very footage that defendant had
received months earlier. Moreover, although defendant argues that additional time was required
as a result of the poor video and audio quality, the quality of the excerpted clips did not differ from
the quality of the full footage received by defendant months prior. Defendant did not establish
5
Defendant argued before the trial court, and argues on appeal, that Officer Parsons’ police report
raised a question whether defendant was handcuffed, and therefore in custody, and made
incriminating statements to Trooper Yates before Trooper Yates gave defendant his Miranda
warnings. However, the prosecution informed the trial court, and defendant did not dispute, that
Officer Parsons’ police report was four sentences long and did not address defendant’s statements
to Trooper Yates. Moreover, defendant’s two previous appointed attorneys both stated at their
withdrawal hearings that they had reviewed the police reports and videos given to them in
discovery and met with defendant extensively about his case—the issue of whether defendant’s
waiver of his rights was valid and his statements admissible was not a new issue to the case.
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that he was unable to adequately review the video clips without a further adjournment. See Coy,
258 Mich. App. at 18.
Additionally, defendant failed to establish that he was not negligent in the timing of his
request for an adjournment. See id. Defendant waited until the day of trial to request the latest
adjournment. Although defendant had several attorneys withdraw from representation, and the
trial court appointed defendant’s most recent attorney in July 2018, defendant did not establish
that the withdrawals and appointments of attorneys contributed to his delay in requesting an
adjournment. Moreover, the trial court had repeatedly cautioned defendant that it intended to hold
the trial as scheduled without further adjournment. And even if defendant only concluded that he
would require additional time when defense counsel received the excerpted video clips, that still
occurred a week before trial.
Further, defendant had received many prior adjournments; the trial court adjourned or
rescheduled the trial at least once following each appointed attorney’s withdrawal from
representing defendant. Although these adjournments were not always requested by defendant,
and some were granted by the trial court with a view towards protecting defendant’s right to the
effective assistance of counsel, the trial court determined that defendant’s behavior and lack of
cooperation with his attorneys contributed to his attorneys’ withdrawals from the case and
contributed to delaying the trial. The number of previous adjournments either requested by
defendant or occasioned by his disagreements with his appointed attorneys weighs against a
determination that there was good cause to adjourn the trial on the first day of the trial. See id.
Finally, defendant has not established that he was prejudiced by the trial court’s denial of
his request to adjourn the trial. Snider, 239 Mich. App. at 421. Defendant was not deprived of the
opportunity to call Officer Parsons as a witness or to seek to introduce Officer Parsons’ police
report as evidence at trial. Defendant cross-examined Trooper Yates regarding Officer Parsons’
role during the investigation, as well as the circumstances surrounding Trooper Yates’s
administration of defendant’s Miranda warnings, defendant’s waiver of his rights, and the timing
of defendant’s admissions relative to the waiver. Defendant also had the opportunity to examine
the video clips before trial; further, defendant could have objected to the admission of the clips,
but chose not to do so. Defendant has not demonstrated that he was denied the ability to present a
defense or that defense counsel was unable to properly investigate and prepare for trial by virtue
of the trial court’s denial of his motion to adjourn. Therefore, defendant has not established that
he was prejudiced by the trial court’s decision. Id. Because defendant has not demonstrated good
cause for an adjournment or prejudice from the trial court’s decision, we conclude that the trial
court did not abuse its discretion by denying defendant’s motion to adjourn the trial. Jackson, 467
Mich. at 276; Snider, 239 Mich. App. at 421.
III. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence to support his convictions. We
disagree. We review de novo whether there was sufficient evidence to support a defendant’s
conviction. People v Ericksen, 288 Mich. App. 192, 195; 793 NW2d 120 (2010).
“In determining whether sufficient evidence exists to sustain a conviction, this Court
reviews the evidence in the light most favorable to the prosecution, and considers whether there
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was sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt.”
People v Harris, 495 Mich. 120, 126; 845 NW2d 477 (2014). We are required to draw all
reasonable inferences and credibility determinations in favor of the jury verdict, People v Nowack,
462 Mich. 392, 400; 614 NW2d 78 (2000), because “[j]uries, not appellate courts, see and hear
witnesses and are in a much better position to decide the weight and credibility to be given to their
testimony.” People v Wolfe, 440 Mich. 508, 515; 489 NW2d 748 (1992) (quotation marks and
citation omitted), mod 441 Mich. 1201 (1992); see also People v Dunigan, 299 Mich. App. 579, 582;
831 NW2d 243 (2013). “ ‘Circumstantial evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the elements of a crime.’ ” People v Carines, 460
Mich. 750, 757; 597 NW2d 130 (1999) (citation omitted).
Defendant challenges the sufficiency of the evidence that he was the person who committed
the offenses for which he was convicted. Additionally, he argues that the evidence was insufficient
for the jury to conclude that the ordinary items he used to break into White’s safe were burglar’s
tools. We disagree.
In criminal cases, “identity is an element of every offense.” People v Yost, 278 Mich. App.
341, 356; 749 NW2d 753 (2008). The elements of safe-breaking are (1) the defendant broke into
a safe, and (2) at the time of the breaking, the defendant intended to commit a larceny.
MCL 750.531. The elements of a larceny are that a defendant commits an unlawful taking and
carrying away of the personal property of another person with the intent to steal that property.
People v March, 499 Mich. 389, 401; 886 NW2d 396 (2016). MCL 750.360 also requires that the
taking occur within the confines of a building. Id. at 401-402. The elements of possession of
burglar’s tools are that (1) the defendant possessed tools adapted and designed for a burglary, (2)
the defendant had knowledge that the tools were adapted and designed for that purpose, and (3)
the defendant possessed them with the intent to employ them in breaking and entering. See
MCL 750.116; People v Wilson, 180 Mich. App. 12, 16; 446 NW2d 571 (1989); see also People v
Dorrington, 221 Mich. 571, 574; 191 N.W. 831 (1923).
There was sufficient evidence presented at the trial for the jury to conclude that defendant
was the person that took White’s personal property from his residence without permission and
with the intent to steal that property. There was also sufficient evidence that defendant was the
person who broke into White’s safe with the intent to steal the contents of the safe. Defendant’s
admission to Trooper Yates that he took the items from White’s residence and broke White’s safe
was direct evidence of his identity. Additionally, Trooper Yates found defendant in a mobile home
near White’s home, and defendant directed Trooper Yates to a bedroom where White’s property
was located. Defendant was the only individual in the home at the time of Trooper Yates’s
investigation, and defendant told Trooper Yates that he was the only individual involved in the
crimes.
Defendant points out that Trooper Yates learned during his investigation that a neighbor
had observed two individuals leaving White’s residence on the night of the incident, and Trooper
Yates testified that he did not check for fingerprints because defendant admitted that he had taken
the items from White’s residence. Even assuming that this testimony raised doubt regarding
whether defendant was the sole individual involved in the crimes, viewed in the light most
favorable to the prosecution, Harris, 495 Mich. at 126, it does not negate defendant’s admissions
or raise a reasonable doubt that defendant committed the safe-breaking or larceny of White’s
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residence. Therefore, the evidence was sufficient to support a jury’s findings that defendant was
the person who broke into White’s safe with the intent to commit a larceny and that defendant
committed an unlawful taking and carrying away of White’s personal property from White’s
residence with the intent to steal that property. See MCL 750.531; March, 499 Mich. at 401-402.
Regarding the possession of burglar’s tools conviction, defendant argues that Dorrington,
221 Mich. at 574, supports the principle that common household items are not burglar’s tools. In
Dorrington, the Michigan Supreme Court concluded that the defendant’s house keys, alarm clock
with battery, and knitting needles were not burglary tools, because there was no evidence that the
defendant intended to use them in a burglary and that because of the items’ common household
nature they could not be presumed to be used for the purpose of breaking and entering. Id. at 574-
575.
A screwdriver and frying pan are common household items. However, the jury in this case
was not required to presume that they were intended for use in breaking and entering; defendant
admitted to Trooper Yates that he used those items to break into White’s safe with the intent to
take the items within the safe. Defendant’s admissions and the circumstances surrounding his
arrest, such as Trooper Yates’s discovery of the safe with the locking mechanism completely
broken off and missing, permitted the jury to conclude that the items defendant used were
“contrived and adapted for breaking and entering.” In re Forfeiture of One Front End Loader, 192
Mich. App. 617, 623-624; 481 NW2d 791 (1992), quoting People v Murphy, 28 Mich. App. 150,
157; 184 NW2d 256 (170); see also People v Wilson, 180 Mich. App. 12, 14-15; 446 NW2d (1989).
The evidence was sufficient to support the jury’s finding that defendant possessed burglar’s tools.
See MCL 750.116.
In sum, there was sufficient evidence to enable the jury to conclude beyond a reasonable
doubt that defendant broke into White’s safe, committed a larceny in a building, and possessed
burglar’s tools. Harris, 495 Mich. at 126.
IV. ADMISSION OF VIDEO RECORDINGS
Defendant argues that the trial court abused its discretion by admitting excerpts of video
recorded from Trooper Yates’s body camera because the evidence was not properly authenticated.
We disagree.
Authentication of evidence is governed by MRE 901. People v Muhammad, 326 Mich
App 40, 59; 931 NW2d 20 (2018).6 “The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the
6
We note that defendant argues that the seven-part test for the authentication of evidence under
People v Taylor, 18 Mich. App. 381, 383-384; 171 NW2d 219 (1969), aff’d 386 Mich. 204 (1971),
is applicable in this case and supports the conclusion that the video recordings were not properly
authenticated. The Michigan Supreme Court has recognized that MRE 901, rather than the seven-
part test in Taylor, governs the authentication of evidence. People v Berkey, 437 Mich. 40, 49-52;
467 NW2d 6 (1991). Therefore, we address the authentication of the video recordings under
MRE 901.
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matter in question is what its proponent claims.” MRE 901(a). “ ‘Factors to be considered in
making this determination include the nature of the article, the circumstances surrounding the
preservation and custody of it, and the possibility of intermeddlers tampering with it.’ ”
Muhammad, 326 Mich. at 59 (citation omitted). Authentication can be accomplished by testimony
of a witness with knowledge that “a matter is what it is claimed to be.” MRE 901(b)(1).
Trooper Yates testified that he controlled and activated the video recording devices and
that the video clips accurately portrayed his interactions with defendant on December 4, 2017,
including defendant’s admissions that he took the items from White’s residence and broke into
White’s safe with a screwdriver and a frying pan. Trooper Yates also testified that the video
recordings had been stored on a removable memory card and that the memory card had sufficient
data storage. Trooper Yates was responsible for creating the video recordings, had personal
knowledge of how the evidence was created, and testified that the evidence was what the
prosecution claimed it was. Therefore, Trooper Yates’s testimony provided a sufficient foundation
for the admission of the video clips. See MRE 901(b)(1); Muhammad, 326 Mich. App. at 59. The
trial court did not abuse its discretion by admitting the video recordings because the evidence was
properly authenticated by Trooper Yates’s testimony. See Gursky, 486 Mich. at 606.
V. SCORING OF OV 13
Defendant argues that the trial court erred by assessing 10 points for offense variable (OV)
13 at sentencing. We disagree.
With regard to sentencing, a trial court’s “factual determinations are reviewed for clear
error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich. 430,
438; 835 NW2d 340 (2013), superseded by statute in part on other grounds as stated in People v
Rodriguez, 327 Mich. App. 573, 579 n 3; 935 NW2d 51 (2019). We review de novo whether the
facts, as found, adequately support the points assessed for sentencing variables. Id. If a sentence
is within the appropriate minimum guidelines sentence range, a defendant is entitled to
resentencing only if there is a scoring error or if the trial court relied on inaccurate information.
People v Francisco, 474 Mich. 82, 88-89, 92; 711 NW2d 44 (2006); People v Miles, 454 Mich. 90,
96; 559 NW2d 299 (1997).
We review de novo the interpretation and application of statutes. People v Janes, 302 Mich
App 34, 41; 836 NW2d 883 (2013). This Court reviews the language of the statute in order to
determine the Legislature’s intent. Id. at 43. “When the statutory language is clear and
unambiguous, this Court must enforce it as written.” Id.
The trial court is required to assess 10 points for OV 13 (continuing pattern of criminal
behavior) if the offense was a part of a pattern of felonious criminal activity involving three or
more crimes against a person or property or a violation of the public health code.
MCL 777.43(1)(d). Specifically, MCL 777.43(1)(d) provides:
(1) Offense variable 13 is continuing pattern of criminal behavior. Score
offense variable 13 by determining which of the following apply and by assigning
the number of points attributable to the one that has the highest number of points:
* * *
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(d) The offense was part of a pattern of felonious criminal activity involving
a combination of 3 or more crimes against a person or property or a violation of
section 7401(2)(a)(i) to (iii) or section 7403(2)(a)(i) to (iii) of the public health
code, 1978 PA 368, MCL 333.7401 and 333.7403 .................................. 10 points
The trial court must not score conduct scored in OV 11 (criminal sexual penetration) or OV 12
(contemporaneous felonious acts) when scoring OV 13. MCL 777.43(2)(c). The trial court must
consider all crimes that occurred within a five-year period, including the sentencing offense, when
determining whether there was a continuing pattern of criminal behavior. MCL 777.43(2)(a); see
also People v Gibbs, 299 Mich. App. 473, 487; 830 NW2d 821 (2013).
Defendant argues that because the sentencing offense (safe-breaking) is a crime against a
person, the trial court was required to find a pattern of three or more crimes against a person in
order to assess 10 points for OV 13. We disagree. While a pattern of three or more crimes is
required for the trial court to assess 25 points under OV 13, see MCL 777.43(1)(c), the plain
language of MCL 777.43(1)(d) does not require that the crimes that constitute the pattern of
felonious criminal activity all belong to the same crime category, as long as they are “a
combination of 3 or more crimes against a person or property or a violation of . . . the public health
code.” Id. The disjunctive “or” is used to show a choice between alternatives, meaning that the
pattern of felonious criminal activity could involve a combination of crimes against a person,
crimes against property, or crimes against the public health code, but need not be limited to one
crime class. See Paris Meadows, LLC v Kentwood, 287 Mich. App. 136, 148; 783 NW2d 133
(2010). Moreover, the word “combination” would be unnecessary if the pattern of felonious
activity was required to be made up of only one class of crime; we avoid constructions that render
statutory language surplusage or nugatory. See People v Peltola, 489 Mich. 174, 181; 803 NW2d
140 (2011). And other subsections of MCL 777.43(1) provide different penalties for patterns of
felonious criminal activity that consist of only crimes against a person, only crimes against
property, and only violations of the public health code. See MCL 777.43(1)(c), (e), and (f). The
only reasonable reading of subsection (d), read in the context of the rest of the statute, is that (d)
is intended to address a pattern of felonious activity involving different crime classes. See People
v Couzens, 480 Mich. 240, 249; 747 NW2d 849 (2008).
Our Supreme Court order in People v Nelson, 491 Mich. 869, 869-870 (2012) does not aid
defendant’s argument. The Court in Nelson, 491 Mich. at 869-870, reversed the scoring of OV 13
for the reasons stated in the dissenting opinion of this Court in People v Nelson, unpublished per
curiam opinion of the Court of Appeals, issued July 19, 2011 (Docket No. 296932) (SHAPIRO, J.,
concurring part and dissenting in part), pp 1-2. Judge Shapiro reasoned that, under
MCL 777.43(1)(c), a sentencing offense can only be part of a pattern of crimes against a person if
the sentencing offense itself is a crime against a person. See id. The sentencing offense in Nelson
was a crime involving a controlled substance. Id. Because the sentencing offense was not a crime
against a person, the sentencing offense was not within the pattern of crimes against a person. See
id. Therefore, Nelson does not establish that the sentencing offense determines the crime category
for the pattern of felonious criminal activity under MCL 777.43(1)(d). Rather, Nelson established
that a sentencing offense must be of one of the crime classes included within the pattern of
felonious criminal activity.
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Defendant’s sentencing offense was safe-breaking, a crime against a person. See
MCL 777.16y. Defendant was also convicted of larceny in a building and possession of burglar’s
tools, which are crimes against property. See MCL 777.16f; MCL 777.16r. These acts resulted in
three separate convictions. The combination of these convictions therefore constituted a pattern
of felonious criminal activity involving three or more crimes against a person or property, and
satisfied the scoring requirements for OV 13 under MCL 777.43(1)(d). The trial court did not err
by assessing 10 points for OV 13. See Gibbs, 299 Mich. App. at 288.
VI. RESTITUTION
Finally, defendant argues that the trial court erroneously ordered restitution for the costs of
a dismissed jury pool. The prosecution concedes that the trial court erred in this regard. On this
record, we agree.
Defendant failed to preserve this issue for appellate review because he did not raise the
issue when the trial court ordered restitution. See People v Jackson, 483 Mich. 271, 292 n 18; 769
NW2d 630 (2009). Generally, we review de novo the interpretation and application of statutes.
Janes, 302 Mich. App. at 41. However, this Court reviews unpreserved challenges to a trial court’s
imposition of court costs for plain error affecting the defendant’s substantial rights. People v
Konopka (On Remand), 309 Mich. App. 345, 356; 869 NW2d 651 (2015).
“Courts may only impose costs in a criminal case when such costs are authorized by
statute.” People v Juntikka (On Remand), 310 Mich. App. 306, 310; 871 NW2d 555 (2015). This
Court first reviews the language of the statute in order to determine the Legislature’s intent. Janes,
302 Mich. App. at 43. “When the statutory language is clear and unambiguous, this Court must
enforce it as written.” Id.
MCL 769.34(6) provides that a trial court may order a defendant “to pay any combination
of a fine, costs, or applicable assessments” and “shall order payment of restitution as provided by
law.” MCL 780.766 pertains to restitution to be paid to a victim of a crime. People v McKinley,
496 Mich. 410, 419-420; 852 NW2d 770 (2014). MCL 780.766(2) provides:
Except as provided in subsection (8), when sentencing a defendant
convicted of a crime, the court shall order, in addition to or in lieu of any other
penalty authorized by law or in addition to any other penalty required by law, that
the defendant make full restitution to any victim of the defendant’s course of
conduct that gives rise to the conviction or to the victim’s estate. For an offense
that is resolved by assignment of the defendant to youthful trainee status, by a
delayed sentence or deferred judgment of guilt, or in another way that is not an
acquittal or unconditional dismissal, the court shall order the restitution required
under this section.
The Michigan Supreme Court determined that “MCL 780.766(2) requires a direct, causal
relationship between the conduct underlying the convicted offense and the amount of restitution
to be awarded.” McKinley, 496 Mich. at 421. Therefore, restitution involves a loss that a victim
sustained as the result of a defendant’s conduct that formed the basis of his or her conviction.
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Defendant entered his no-contest plea in April 2018 after prospective jurors had assembled
for defendant’s trial on that day. The trial court then dismissed the jurors.7 When the trial court
sentenced defendant, the trial court ordered $1,180 in restitution to the court for the expenses of
assembling the dismissed jury. Plaintiff confirmed that this amount was only for the dismissed
jury and that White did not request restitution for any lost property. The trial court “order[ed]
reimbursement to the [c]ourt in the amount of $1,180 for that canceled jury fee.”
The trial court did not order restitution on the basis of any losses sustained by White, and
there was no evidence regarding the amount of any loss sustained by White as a result of
defendant’s conduct. White, as the victim of defendant’s actions, did not bear the costs of the
dismissed jury. The trial court lacked the statutory authority to order restitution to the court on the
basis of the dismissed jury. See MCL 780.766(2); Juntikka, 310 Mich. App. at 310. This error was
plain and affected defendant’s substantial rights. See Carines, 460 Mich. at 763-764.
We note that a trial court possesses the authority to impose payment of “costs reasonably
related to the actual costs incurred by the trial court without separately calculating those costs
involved in the particular case.” See MCL 769.1k(1)(b)(iii). Nothing in this opinion should be
read as stating that the costs of a dismissed jury may not, under appropriate circumstances, be
assessed as an actual cost or as reasonably related to an actual cost incurred by the court, if an
appropriate factual basis is provided. See Konopka, 309 Mich. App. at 359-360. We merely hold
that payment of such a cost may not be ordered as restitution.
We affirm defendant’s convictions and sentences, but vacate the trial court’s order of
restitution and remand for correction of the judgment of sentence. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Mark T. Boonstra
/s/ Anica Letica
7
As noted, defendant later withdrew his no-contest plea after which there was a jury trial, and the
jury found defendant guilty of safe-breaking, larceny in a building, and possession of burglar’s
tools.
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