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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 27, 2017

v No. 331244 Wayne Circuit Court VICTOR MANUEL GARCIA, LC No. 15-006074-03-FH

Defendant-Appellant.

Before: J ANSEN , P.J., and M URPHY and B ORRELLO , JJ.

P ER C URIAM

. Defendant, appeals as of right his conviction of unlicensed re sidential builder, MCL 339.601, as amended by 2008 PA 169. 1 The trial court sentenced to 18 months’ probation, and $6,300 in restitution. For the reasons set forth in this opini on, we affirm.

I. BACKGROUND

This appeal arises from two bro thers retaining defendant, his sister Manda GarciaKeezer, and defendant’s brother-in-law John Vardy, to perform r epairs on a home in the City of Detroit. 2 While interviewing contractor s, the victim met defendant and Vardy at the home which required extensive repairs. The victim testified that defendan t showed him a portfolio of photographs of his work, and defe ndant told him t hat he had bee n a licensed builder “since he was 20 years old.” Defendant also showed the victim photograph s of his prior work from his cellphone. According to the vic tim, it “[a]bsolutely” mattered that defendant stated that he was a licensed builder because “payment was supposed to be up front. If he was not a licensed builder that would make him a nobody off the street asking me for $8700 .00 dollars [sic].” Ultimately, the discussion turned to the que stion of price, and an agreemen t was reached: the victim would pay defendant, Vardy, and Garcia-Keezer $35,000 for their labor to “fix all that needed to be fixed in the house and bringin[g] it up to the local standards. ”

1 The current version of MCL 339.601 came into effect on April 4 , 2017. See 2016 PA 412.

2 Vardy pleaded guilty to false pretenses more than $20,000, butless than $50,000, and GarciaKeezer pleaded guilty to unlicensed residential builder.-2- The victims paid defendant and his relatives in advance. Howe ver, shortly after payment had been tendered, work ceased on the home. When the victim tr ied to contact defendant, he was told by defendant that he worked for Vardy and that the vic tim should contact Vardy because defendant had ceased wor king for Vardy. There was also evidence presented at trial that defendant demanded more money for the work he was doing on the home. Eventually an agreement was reached whereby defendant received $6,300 for his work on the house. After the defendant, Vardy and Garcia-Keezer failed to complete the repai rs after being paid, the victims contacted the police who discove red that none of the individual s working on the home were licensed contractors. At trial defendant was convicted as indi cated above, but acquitted of charges of false pretense s over $20,000 but less the $50,000 in violation of MCL 750.218(5)(a).

At sentencing, the trial court inquired of defendant what the total amount of money he received from Vardy and Garcia-Keezer. Defendant stated that h e had received $6,300. That was the amount of restitution t he trial court ordered. This ap peal then ensued.

II. ANALYSIS

On appeal, defendant argues that the trial court abused its dis cretion when it ordered him to pay $6,300 in restitution becau se there is no causal connect ion between his conduct and the harm suffered by his victims. “‘The proper application of . . . statutes authorizing the assessment of restitution at sentencing is a matter of statutory interpret ation, which we review de novo.’ ” People v Corbin , 312 Mich App 352, 361; 880 NW2d 2 (2015), quoting People v McKinley , 496 Mich 410, 414-415; 852 NW2d 770 (2014). “We review a court’s c alculation of a restitution amount for an abuse of discretion, and its factual findings for clear error.” Corbin , 312 Mich App at 361 (citations omitted). “The trial court abuses its di scretion when its outcome falls outside the range of principled outcomes.” People v Armstrong , 305 Mich App 230, 239; 851 NW2d 856 (2014), citing People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003). “A trial court may abuse its discretion by blurring the distinctio n between a civil remedy for damages and the criminal penalty of restitution.” Id ., citing People v Orweller , 197 Mich App 136, 140; 494 NW2d 753 (1992). “A finding is clearly erroneous if, after reviewing the entire record, an appellate court is left with a definite and firm con viction that a mistake has been made.” People v Coomer , 245 Mich App 206, 219; 627 NW2d 612 (2001), citing People v Mendez , 225 Mich App 381, 382; 571 NW2d 528 (1997).

Crime victims have a right to restitution under the 1963 Michi gan Constitution. Const 1963, art 1, § 24. “MCL 780.766(2) governs restitution and sta tes that a defendant must ‘make full restitution to any victim of the defendant’s course of con duct that gives rise to the conviction . . . .’ ” People v Bryant , ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 328512 ); slip op at 2. See also MCL 769.1a(2) (providing that “when sen tencing a defendant” a trial court “shall order” a defendant to “make full restitution to any vict im of defendant’s course of conduct that gives rise to the conviction . . . .”). Under MCL 780.767 (1), when a trial court determines the amount of restitution to order a defendant to pay it “shall consider the amount of the loss sustained by any victim as a result of the offense.” In McKinley , the Michigan Supreme Court held that “ ‘[t]he offense’ in MCL 780.767 can only refer to th e offense of which the defendant was convicted, because it is that ‘offense’ that makes him subj ect to being ordered to pay restitution in the first place.” McKinley , 496 Mich at 421. Additionally, the McKinley Court-3- held that “MCL 780.766(2) require s a direct, causal relationshi p between the conduct underlying the convicted offense and the a mount of restitution to be award ed.” Id

. “As noted by our Supreme Court in McKinley , [MCL 780.767(1)] instructs a sentencing court to ‘consider the amount of the loss sustained by any vict im as a result of the offense.’ ” Corbin , 312 Mich App at 369, citing McKinley , 496 Mich at 421. In Corbin , this Court held that MCL 780.767 “permits an award only for losses factually and pro ximately caused by the defendant’s offense; nothing in the text or structure of the st atute suggests otherwise.” Corbin
, 312 Mich App at 369. “The concept of factual causation is rela tively straightforward. In determining whether a defendant’s conduct is a factual cause of the result, one must ask, ‘but for’ the defendant’s conduct, would th e result have occurred? Proxi mate cause, too, is a standard aspect of causation in criminal law and the law of torts. For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a ‘d irect and natural result’ of the defendant’s actions.” Id . (citations and quotation marks omitted).

The language contained in MCL 339.601(1) which was in effect a t the time of defendant’s offense, provided that a “person shall not engage i n or attempt to engage in the practice of an occupation regulated under this act or use a tit le designated in this act unless the person possesses a license or registration issued by the depart ment for the occupation.” Additionally, former MCL 339.601(8) also provided that “[a]ny v iolation of this act shall include a requirement that restitution be made, based upon proofs submi tted to and findings made by the trier of fact as provided by law.”

The trial court, relying “on the testimony and verdict of the jury,” ordered defendant to pay $6,300 in restitution because that was the amount he receiv ed in payment for a house repair project that he was not licensed to perform. The trial court a lso noted that in addition to receipt of the money, testimony also reve aled that prior to abandoning the project, defendant left the majority of the work for which he had been contracted unfinishe d. On appeal defendant contends that the trial court’s restitution award should be vac ated because there is no causal connection between defendant’s conduct and the “damages the jur y found him not guilty of causing.”

We begin our analysis by noting that defendant’s argument soun ds in contract rather than criminal law. The crux of defendant’s argument is that he is e ntitled to the $6,300 because he did $6,300 worth of work on the home. Defendant’s argument lac ks merit because he fails to include the fact that testimony revealed that none of the peopl e hired to perform work on the home would have been hired had it been known that they were not licensed contractors. Defendant’s argument also seeks to negate testimony by the vict im that defendant held himself out as a licensed contractor. I n fact, the victim testified th at defendant told him he was a licensed contractor. Therefore, it is fairly obvious that “but for” def endant’s assertions and those of the others involved in this case, de fendant would not have been hir ed had he truthfully explained that he was not a licensed contract or. Hence, contrary to defendant ’s assertions, there is a causal connection between defendant’s c onduct as an unlicensed builder and the payment he received to perform a building project tha t he was not licensed to perform.

We further note that the jury c onvicted defendant of former MCL 339.601(1), which was in effect at that time. Therefore it found that defendant “eng age[d] in or attempt[ed] to engage in-4- the practice of an occupation re gulated under this act or use a title designated in this act” without a license. Former MCL 339.601(1). During trial and at sentenc ing, defendant admitted that he had received a total of $6,300 in payment for working on the ho use. The victims testified that they would not have entered into a contract with defendant if t hey had known he did not have a license. Accordingly, defendant w as the cause in fact of the h arm to the victims. If defendant had not stated that he was a licensed builder, and if he had no t worked as an unlicensed builder, then defendant would not have received $6,300. Further, the mo netary harm the victims suffered was a direct and natural result of defendant’s unlicensed work on the house, and his representation that he was a licensed residential builder. The refore, there was a causal connection between defendant’s con duct and the trial court’s re stitution order.

Defendant also argues that former MCL 339.601 is a statute tha t only pertained to licensure and did not pertain to “damages due to obtaining mone y falsely or [] building a structure improperly.” Defendant has failed to take note of fo rmer MCL 339.601(8), which expressly provided that “[a]ny vi olation of this act shall incl ude a requirement that restitution be made, based upon proofs submitted to and findings made by the t rier of fact as provided by law.” And as noted above, the trial cour t’s order of restitution comp lies with MCL 780.767 because the victims’ losses were factuall y and proximately caused by defend ant’s offense.

Finally, defendant contends tha t there is no causal connection between his conduct as an unlicensed residential builder a nd “the damages the jury found him not guilty of causing.” While it is true that defendant was acquitted of one charge, that fa ct does not have any bearing on the trial court’s determination that there was a causal connection between defendant’s conduct as an unlicensed residential builder a nd the harm suffered by the vic tims. Therefore, the trial court did not abuse its discretion when it ordered defendant to pay resti tution.

Affirmed.

/s/ Kathleen Jansen /s/ William B. Murphy /s/ Stephen L. Borrello