People v. Fawaz

• Decision Date: 20 December 2012
• Docket Number: Docket No. 307214.
• Citation: 829 N.W.2d 259,299 Mich.App. 55
• Parties: PEOPLE v. FAWAZ.
• Court: Court of Appeal of Michigan — District of US

299 Mich.App. 55

829 N.W.2d 259

PEOPLE

v.FAWAZ.

Docket No. 307214.

Court of Appeals of Michigan.

Submitted Dec. 11, 2012, at Detroit.

Decided Dec. 20, 2012, at 9:05 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Valerie M. Steer, Assistant Prosecuting Attorney, for the people.

Daniel J. Rust, for defendant.

Before: STEPHENS, P.J., and OWENS and MURRAY, JJ.

PER CURIAM.

Defendant was convicted by a jury of one count of arson of a dwelling house, MCL 750.72, one count of arson of insured property, MCL 750.75, and two counts of making false statements about material matters for an insurance claim, MCL 500.4511(1). Defendant was sentenced to five years' probation plus fines, costs, and $29,408.74 in restitution. The prosecution appeals by right the trial court's judgment of sentence. On appeal the prosecution argues that the trial court erred when it concluded that two firefighters and defendant's neighbor were not “victims” for purposes of assessing points for offense variable 3 (OV 3) and offense variable 9 (OV 9). The prosecution also argues that the trial court erred regarding the amount defendant is required to pay in restitution. With respect to the calculation of the sentencing guidelines, we agree with the prosecution and reverse the judgment of sentence. With respect to restitution, we agree with the prosecution that the trial court abused its discretion by failing to include the victim's investigatory costs as part of the restitution amount; however, we conclude that the prosecution has failed to meet its burden to establish that the victim's legal fees should be included in the restitution amount. We remand for resentencing consistent with this opinion.

I. BASIC FACTS

On September 26, 2009, defendant's house caught fire. By 3:16 p.m., police and firefighters had arrived. Two of the firefighters, Walter Radu and Rudy Cervantes, who spent over a half-hour combating the blaze, suffered heat exhaustion requiring medical care from the advanced life support units at the scene. Radu received intravenous fluid and was placed on a heart monitor, and Cervantes received oxygen and intravenous therapy. Defendant's elderly neighbor, Mary Fras, had to be carried from her home by a police officer after her home filled with smoke. Fras's house stood approximately four feet from defendant's house.

The two fire examiners who conducted an investigation into the cause of the blaze testified at trial that the fire at defendant's house was set intentionally. In addition to the examiners, the jury heard testimony from other police and fire officials; Mary Fras's son; representatives of Farmers Insurance, the company which insured defendant's home; and other witnesses to the fire. The jury convicted defendant.

At sentencing, the prosecution requested that the trial court assign 10 points for OV 3, which addresses physical injury to a victim, because Radu and Cervantes suffered heat exhaustion requiring medical treatment. With respect to OV 9, which addresses the number of victims, the prosecution requested that the trial court assign 10 points for OV 9 because Radu, Cervantes, and Fras were placed in danger of injury. The trial court disagreed that Radu, Cervantes, or Fras were “victims” for purposes of OV 3 and OV 9. The trial court explained that it agreed that Radu, Cervantes, and Fras suffered injuriesor were in danger of suffering injuries. However, the trial court disagreed that they were “victims” for purposes of OV 3 and OV 9 because “they would not be within that circle of what we would define as a victim” under Michigan law. The trial court implied that Radu and Cervantes could not be “victims” under the sentencing guidelines because, as first responders, they put themselves in danger every time they respond to a fire. With respect to Fras, the trial court explained that every time a house catches fire, neighbors are in danger, and accordingly, Fras was not a victim. Ultimately, the trial court assigned zero points for both OV3 and OV 9.

At sentencing, the trial court also addressed the issue of restitution. Prior to sentencing, Farmers had submitted documentation of the expenses it had incurred following the fire at defendant's home. Specifically, Farmers claimed that it had incurred the following expenses:

Board Up: $978.80

Origin and Cause Investigation: $2,698

Lab Analysis: $745

Exam Under Oath: $7,975.78 ¹

Court Reporter: $706.75

Contents Advance: $5,000

Additional Living Expenses: $23,429.99

Investigation Expenses: $928.00

Legal Expenses for Defending Suit Filed by [defendant]: $5,950.20

The presentence investigation report (PSIR) recommended a restitution amount that included all these expenses, for a total recommended restitution amount of $48,411.72. However, at sentencing the trial court concluded that only “Board Up,” “Contents Advance,” and “Additional Living Expenses” should be included in the restitution amount. The trial court explained that, based on its understanding of the restitution statute, restitution is appropriate only for expenses that were “directly the result of the [defendant's] action.” Accordingly, the trial court ordered $29,408.79 in restitution. On appeal, the prosecution only requests $42,462.32. Apparently, Farmers no longer requests the $5,950.20 for “Legal Expenses for Defending Suit Filed by [defendant].”

II. SENTENCING GUIDELINES

The accuracy of scoring under the sentencing guidelines is a question of law that we review de novo. People v. Cannon, 481 Mich. 152, 156, 749 N.W.2d 257 (2008). However, we review for clear error a trial court's findings of fact at sentencing. People v. Osantowski, 481 Mich. 103, 111, 748 N.W.2d 799 (2008). “Clear error is present when the reviewing court is left with a definite and firm conviction that an error occurred.” People v. Buie, 491 Mich. 294, 315–316, 817 N.W.2d 33 (2012) (citation and quotation marks omitted).

A. OV 3

The prosecution first argues that the trial court erred by concluding that Radu and Cervantes were not “victims” for purposes of scoring OV 3, and assigning zero points for OV 3. We agree, and remand for resentencing on OV 3.

OV 3 is governed by MCL 777.33, and addresses physical injury to victims. MCL 777.33(1). A trial court must assign 10 points for OV 3 if “[b]odily injury requiring medical treatment occurred to a victim.” MCL 777.33(1)(d). MCL 777.33 does not expressly define “victim.” However, in People v. Laidler, 491 Mich. 339, 817 N.W.2d 517 (2012), the Supreme Court concluded that “ any person who is harmed by the defendant's criminal actions” is a “victim” for purposes of OV 3. Id. at 348, 817 N.W.2d 517 (emphasis added). The Court reasoned that its construction of the word “victim” was consistent with the dictionary definition of the word, as well as prior caselaw interpreting the word “victim” under OV 3. Id. at 348–349, 817 N.W.2d 517. Accordingly, the Laidler Court concluded that a coperpetrator killed in a robbery was a “victim” for purposes of OV 3 because he was harmed by the defendant's conduct. Id. at 349, 817 N.W.2d 517.

Similarly, in People v. Albers, 258 Mich.App. 578, 593, 672 N.W.2d 336 (2003), this Court concluded that “for purposes of OV 3, the term ‘victim’ includes any person harmed by the criminal actions of the charged party.” In Albers, the defendant had argued that “the Legislature's use of the term ‘victim’ in the singular in MCL 777.33 is indicative of its intent that OV 3 apply only to the victim of the charged offense.” Id. at 592, 672 N.W.2d 336. This Court disagreed, and reasoned that nothing in the plain text of the statute indicated a legislative intent to limit the definition of “victim” to only the victim of the charged offense. Id. at 593, 672 N.W.2d 336. The Court ultimately concluded that “[b]ecause we find no authority indicating otherwise ... for purposes of OV 3, the term ‘victim’ includes any person harmed by the criminal actions of the charged party.” Id.

We find Laidler and Albers instructive, and conclude that first responders can be “victims” for purposes of OV 3. Had the Legislature intended to limit the term “victim” to exclude first responders, it could have done so. See People v. Hock Shop, Inc., 261 Mich.App. 521, 528, 681 N.W.2d 669 (2004) (“The Legislature is presumed to be familiar with the rules of statutory construction, and when it is promulgating new laws it is presumed to be aware of the consequences of its use or omission of statutory language.”). Nothing in the text of MCL 777.33 indicates a legislative intent to limit the term “victim” to exclude first responders. See Albers, 258 Mich.App. at 593, 672 N.W.2d 336. Moreover, neither Laidler nor Albers indicated that the term “victim” should be limited to exclude first responders; indeed, the Courts in each of those cases broadly defined “victim” for purposes of OV3 as “any person” harmed by a defendant's actions. Laidler, 491 Mich. at 348, 817 N.W.2d 517;Albers, 258 Mich.App. at 593, 672 N.W.2d 336.

Radu and Cervantes suffered injuries requiring medical attention while combating the blaze set by defendant. Accordingly, they are “victims” for purposes of OV 3. The trial court should have assigned 10 points for OV 3, but instead assigned zero points. Accordingly, the trial court erred with respect to OV 3.

B. OV 9

The prosecution next argues that the trial court erred in its determination that there were no victims of the arson for purposes of OV 9, and therefore erred by assigning zero points for OV 9. Again, we agree, and remand for resentencing on OV 9.

OV 9 is governed by MCL 777.39, and addresses the number of victims. A trial court must assign 10 points for OV 9 if, inter alia, “[t]here were 2 to 9 victims who were placed in danger of physical injury or death ....” MCL 777.39(1)(c). Unlike OV 3, the statute governing OV 9 does expressly define “victim.” Specifical...