People v. Hamblin

• Decision Date: 06 June 1997
• Docket Number: Docket No. 186076
• Citation: 224 Mich.App. 87,568 N.W.2d 339
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lou Ann HAMBLIN, Defendant-Appellee.

Page 339

568 N.W.2d 339

224 Mich.App. 87

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lou Ann HAMBLIN, Defendant-Appellee.

Docket No. 186076.

Court of Appeals of Michigan.

Submitted Dec. 3, 1996, at Detroit.

Decided June 6, 1997, at 9:10 a.m.

Released for Publication Sept. 11, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for People.

Fred B. Walker, Royal Oak, for defendant-appellant.

Before MacKENZIE, P.J., and WAHLS and MARKEY, JJ.

MARKEY, Judge.

The people of the State of Michigan appeal by leave granted from the trial court's order reducing the charge against defendant, a police officer, from the felony offense of malicious destruction of property over $100 M.C.L. § 750.377a; M.S.A. § 28.609(1), to the misdemeanor offense of malicious destruction of property under $100. We reverse and remand.

I

According to the testimony at defendant's preliminary examination, in December 1993, the complainant was driving east on the service drive of I-94 when he encountered a vehicle that was on fire; a fire truck and defendant's police car were also at the scene attending the burning vehicle. Not knowing whether it was safe to drive around the vehicles in the roadway, the complainant blew his horn to get defendant's attention, and defendant responded by making a gesture that the complainant could not see. He honked again and defendant approached complainant's vehicle. When complainant told defendant that he wanted to drive through because his apartment was just on the other side of the road, defendant stepped back from the car and told him that he would have to turn around. When complainant delayed in leaving, defendant approached complainant's vehicle again and told him that he had five seconds to leave and began counting down. She also reached into the car with her right arm through the open window, and complainant pushed it out. As complainant attempted to roll up the window, defendant grabbed the window, which was rolled down seven or eight inches, with both hands and said "Don't make me do this, I'll break this fucking window." Complainant replied, "And you'll pay for it." Defendant yelled for assistance and continued to shake the window until it broke.

Complainant testified that he could not afford to have someone else replace or repair the window on his 1989 Geo Metro, so he went to a junk yard, purchased a used window for $45, and installed it himself. The prosecution called three additional witnesses at the preliminary examination who testified regarding the cost of repairing the driver side window of a 1989 Geo Metro. An employee at Henderson Glass testified that the retail cost of a new window is $163.79 installed, which was $128.64 for the glass and $30 for labor. The customer service representative for Safelite Auto Glass testified that the new window would cost $153.32, or $124.35 for glass plus $24 for labor. A service consultant with Jack Webb Chevrolet testified that the new window would cost $189.20 and installation would be another $52.

On the basis of the testimony from the preliminary examination, the district court magistrate bound defendant over as charged with malicious destruction of property over $100. In doing so, the magistrate commented on the element of value, stating:

The second point is to the value. I'm taking a position that had he not repaired the window [sic]. We're taking the testimony of three people and coming up with an estimate of over $100. The statute does not say if repair by the owner himself or--it's market value. The market value that we had today is in excess of a $100. We have a narrow question, but it is a narrow question of fact and I am gonna bind the defendant over on the charge.

At the trial court hearing on defendant's motion to quash the information on the basis of the value of the property damaged, the trial court granted defendant's motion in part and reduced the charge to malicious destruction of property under $100, stating:

[T]he Court has reviewed the preliminary exam transcript and the Court finds that--I guess the question here was what is the fair market value or what is the standard for determining the fair market value?

The legal definition is that it is the reasonable and fair market value of repairing the damage or replacing the property destroyed.

In this case the property that was destroyed cost $45 to replace. The entire window was replaced....

* * * * * *

Okay. And the Court finds that the best test of what the fair market is is what an item actually sold for.

A seller is always going to be willing to sell at the highest price possible and unless that seller is able to get a purchaser who is willing to buy at that price then nothing takes place.

So, the Court is going to rule that in this case there actually was a fire--I mean a purchase for forty-five dollars. And even though the other witnesses came in and gave testimony that the replacement cost would have been more than a hundred dollars there is nothing to substantiate that.

So, in this case we actually had a seller who was willing to sell at forty-five dollars and actually got a purchaser at forty-five dollars.

And I think the magistrate abused his discretion.

So the Court is going to reduce the charge to malicious destruction of property under a hundred dollars. [Emphasis added.]

The people assert that the magistrate did not abuse his discretion in binding over defendant on the felony of malicious destruction of property over $100 where the reasonable and fair market value of repairing the window was clearly in excess of $100. We agree.

II

We review the district court magistrate's decision to bind over a defendant as well as the trial court's decision on a motion to quash an information to determine whether the district court abused its discretion. People v. Thomas, 438 Mich. 448, 452, 475 N.W.2d 288 (1991); People v. Honeyman, 215 Mich.App. 687, 691, 546 N.W.2d 719 (1996). The decision whether alleged conduct falls within the statutory scope of a criminal law involves a question of law that we review de novo. See Thomas, supra.

"The primary function of the preliminary examination is to determine whether a crime has been committed and, if so, whether there is probable cause to believe that the defendant committed it." People v. Hunt, 442 Mich. 359, 362, 501 N.W.2d 151 (1993). If, at the conclusion of the preliminary examination, the magistrate determines that probable cause exists to believe that a felony has been committed and that the defendant committed it, the magistrate must bind the defendant over for trial in the circuit court. M.C.L. § 766.13; M.S.A. § 28.931; MCR 6.110(E); People v. Coddington, 188 Mich.App. 584, 591, 470 N.W.2d 478 (1991). The prosecutor need not prove each element beyond a reasonable doubt but must present some evidence from which each element of the crime may be inferred. Id. Where the evidence conflicts and raises a reasonable doubt regarding the defendant's guilt, the issue is one for the jury and the defendant should be bound over. People v. Laws, 218 Mich.App. 447, 452, 554 N.W.2d 586 (1996); People v. Moore, 180 Mich.App. 301, 309, 446 N.W.2d 834 (1989).

In the case at bar, defendant was charged with violating M.C.L. § 750.377a; M.S.A. § 28.609(1), which states:

Any person who shall wilfully and maliciously destroy or injure the personal property of another ... if the damage resulting from such injury shall exceed $100.00, shall be guilty of a felony. If the damage done shall be $100.00 or less, such person shall be guilty of a misdemeanor.

The issue of first impression presented in this case is whether the district court magistrate abused his discretion in ruling that there was probable cause to believe that the damage resulting from defendant's actions "shall exceed $100.00" on the basis of the repair estimates presented at the preliminary examination, rather than finding no probable cause on the basis of the actual amount of money that the complainant spent to repair the damaged property. We find no abuse of discretion.

A

Unfortunately, M.C.L. § 750.377a; M.S.A. § 28.609(1) does not delineate how to measure damages and we find no case law assisting either district or trial courts in making this calculation. As a starting point, we look to the Criminal Jury Instructions, Second Edition, for guidance.

According to CJI2d 32.1, courts should measure the amount of damages for malicious destruction of property according to the fair-market-value test, which is described as follows:

(1) The test for the extent of damage is the reasonable and fair market value of repairing the damage or of replacing the property destroyed.

(2) Fair market value is defined as the value at the time and in the place where the damage occurred.

The commentary to CJI2d 32.1 cites People v. Otler, 51 Mich.App. 256, 259-260, 214 N.W.2d 727 (1974), as authority for the fair-market-value test. That case involved a prosecution for receiving or concealing stolen property over $100, however. M.C.L. § 750.535; M.S.A. § 28.803. Whereas receiving or concealing stolen property and other theft crimes that define the severity of the crime by reference to the value of the property stolen ¹ all focus directly on the value of the property in question, the malicious destruction of property statute focuses on the amount of damage caused by the defendant. Indeed, the statute requires a showing that "the damage resulting from an injury" exceeds $100 before the defendant can be bound over for this felony.

Analogizing to civil property loss cases in the absence of other case law on point, we find that this Court has applied the two tests set forth in CJI2d 32.1 where the damaged property can be repaired or must be replaced. In Baranowski v. Strating, 72...