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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED June 14, 2018

v No. 333938 Wayne Circuit Court MARTIN FITZGERALD ARMSTEAD, LC No. 16

- 000225

- 01

- FH

Defendant

- Appellant.

Before: S AWYER

, P .J., and C AVANAGH and F ORT H OOD , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury conviction of m alicious destruction of personal
property valued at $1,000 or more but less than $20,000

, MCL 750.377a(1)(b)( i ), for which t he
trial court sentenced him to four months to five years in prison and ordered him to pay restitution
of $3,910 to the city of Detroit P arks and R ecreation D epartment. We affirm.

Defendant’s conviction arises f rom the removal of numerous metal fence posts at Jayne Field, a large park in Detroit, on the evening of October 5, 2014. The prosecution’s theory of the case was that under cover of darkness, defendant, who owns a fencing company, used a cordless recipro cating saw (a “sawzall”) to cut and remove at least 10 fence posts from around the dugout area of a baseball diamond at Jayne Field, hoping to repurpose them as supplies for his fencing
business. T he defense theory of the case was that defendant was actua lly innocent , and he was simply in the wrong place at the wrong time. Specifically, the defense contended that defendant had previously purchased 10 used fence posts for use at a residential job (as evidenced by a handwritten receipt), that the fence post s were similar to the posts that had been removed from Jayne Field by someone other than defendant, that defendant was only present near the park on the evening in question because his work vehicle had broken down, that police testimony about
defendant car rying fence posts out of Jayne Field should be discredited by the jury as unbelievable, and that the jury should instead credit the trial testimony of defendant and his employee, Joseph Aaron Patterson.

On appeal, defendant argues that he is entitled to a new trial because his trial counsel performed ineffectively in several respects. He also contends that the trial court abused its- 2

- discretion by denying his postjudgment motion for a Ginthe r 1 hearing. We disagree in all
respects.

T he trial court did not hold a Ginther hearing thus “our review is limited to the facts on
the record.” People v Wilson , 242 Mich App 350, 352; 619 NW2d 413 (2000)

. The trial court’s
decision whether to hold a Ginther hearing is reviewed for an abuse of d iscretion, which “ occurs when the court chooses an outcome that falls outside the range of reasonable and principled

outcomes. ” People v Unger , 278 Mich App 210, 216

- 217; 749 NW2d 272 (2008)

.

To establish a claim of ineffective assistance of counsel, a d efendant must show both that his counsel’s performance was objectively unreasonable in light of prevailing professional norms, and that defendant was prejudiced as a result of his counsel’s inadequate performance. People v Walker , 497 Mich 894, 895; 855 N W2d 744 (2014), citing People v Carbin , 463 Mich 590, 599

- 600; 623 NW2d 884 (2001). A defendant is prejudiced if there is a reasonable probability that, but for his counsel’s performance, the proceedings would have rendered a
different result. People v G aines , 306 Mich App 289, 300; 856 NW2d 222 (2014).

The defendant bears a heavy burden to show that the assistance afforded him was
ineffective. People v Eisen , 296 Mich App 326, 329; 820 NW2d 229 (2012). Part of this burden is establishing a factual pre dicate for the claim. People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999). And the defendant must overcome a strong presumption that counsel’s actions were based on reasonable trial strategy. People v Cline , 276 Mich App 634, 637; 741 NW2d 563 (2007). “We will not substitute our judgment for that of counsel on matters of trial strategy, nor will we use the benefit of hindsight when assessing counsel’s competence.” Unger , 278 Mich App at 242

- 243.

Defendant first argues that his trial counsel should have m oved to dismiss the case because the 10 fence posts were lost while in police custody. Because any such motion would have been futile, defendant’s argument is meritless. See People v Henry (After Remand) , 305 Mich App 127, 141; 854 NW2d 114 (2014)

.

I n People v Dickinson , 321 Mich App 1 ; 909 NW2d 24 (2017) , we explained :

To warrant reversal on a claimed due

- process violation involving the failure to preserve evidence, a “ defendant must prove that the missing evidence was exculpatory or that law enforcem ent personnel acted in bad faith. ” People v
Hanks , 276 Mich App 91, 95; 740 NW2d 530 (2007)

. When the evidence is only

“ potentially useful, ” a failure to preserve the evidence does not amount to a due

process violation unless a defendant establishes bad faith. Arizona v Youngblood

, 488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988)

. A “ [d]efendant bears the burden of showing that the evidence was exculpatory or that the police acted in
bad faith. ” People v Johnson , 197 Mich App 362, 365; 494 NW2d 873 (1992)

. A prosecutor is not required to “ seek and find exculpatory evidence ” or a ssist in

1 People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973)

.- 3

- building the defendant’ s case, and [he or she] is not required to “ negate every

t heory consistent with defendant’ s innocence. ” People v Coy , 258 Mich App 1, 21; 66 9 NW2d 831 (2003)

. [ Id . at 16.]

In this case, the trial court correctly determined that the lost evidence was only “potentially useful” to the defense. Defendant argues that the lost fence posts might have been exculpatory, but he fails to acknowledge that there is also the distinct possibility that they might have been inculpatory , providing evidence of a match between the “stubs” of fence post left at Jayne Field

. Consequently, to prevail with a due

- process claim concerning the fence posts, defendant would have borne the burden of showing bad faith on behalf of the government. See Dickinson , 321 Mich App at 16

. Defendant has not satisfied that burden.

Negligence leading to the loss or destruction o f evidence is insufficient to show bad faith. Youngblood , 488 US at 58 . At most, the conduct of the police in this case

— improperly filling out an impound form such that a private towing company mistakenly released defendant’s work
vehicle and its content s

— was negligent. Defendant cites no evidence of bad faith, nor does any such evidence appear in the record. Indeed, defendant does not even argue that the police acted in bad faith. For those reasons, any motion to dismiss the charges against defendant on the basis of lost evidence would have been futile, and trial counsel did not perform ineffectively by failing
to make such a motion. 2

Furthermore, we see no reason that a Ginther hearing would be necessary to develop a factual record concerning this cl aim of ineffective assistance, and defendant offers no real explanation in that regard, instead simply announcing that the trial court should have held a
Ginther hearing. Because defendant has failed to explain what record he would have hope d to make rega rding this claim, and how that record might have benefit ted him, he has failed to show that the trial court abused its discretion by denying his request for a Ginther hearing with regard
to counsel’s failure to move for dismissal based on lost evidence.

D efendant next argues that trial counsel performed ineffectively by failing to research defenses and consult expert witnesses in metallurgy and metal comparison. Because defendant has failed to present any record evidence of what research counsel actually performed, or

2 The civil case cited by defendant, Hamann v Ridge Tool Co , 213 Mich App 252, 253; 539 NW2d 753 (1995) , is inapposite. Hamann dealt with an issue that, at first blush, might seem somewhat similar to this one: whether a trial court should sanction a party by excluding

tes timony about inadvertently lost evidence. Id . at 254

- 259 . But Hamman ’s analysis of that issue occurred in the context of a civil case and was entirely unrelated to due process, particularly as it relates to criminal prosecutions. “The Fourth Amendment w as tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the ‘process that is due’ for seizures of person or property in criminal cases[.]” Gerstein v Pugh , 420 US 10 3, 125 n 27; 95 S Ct 854; 43 L Ed 2d 54 (1975)

. Consequently, procedures that apply in civil matters are often “ inapposite and irrelevant in the wholly different context of the criminal justice system. ” See id

. As the trial court correctly noted, Youngb lood and its Michigan progeny govern this analysis, not Hamann

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- whether counsel did , in fact, consult any expert witnesses, this claim of ineffective assistance necessarily fails. Defendant has failed to carry his burden of establishing the necessary factual predicate. See Hoag , 460 Mich at 6

.

Moreover , the trial court did not abuse its discretion by denying defendant a Ginther hearing with regard to this claim. In the trial court, defendant supported his request for a Ginther hearing with an affidavit from Joseph Licavoli, “ a materials science and eng ineering professor at Michigan Technical University, whose expertise is in the field of metallurgy and metal comparison.” After noting that the decision whether to call an expert witness is a matter of trial
strategy, People v Bass , 317 Mich App 241, 279; 893 NW2d 140 (2016) , the trial court also correctly noted that a trial court’s decision whether to admit expert testimony is reviewed for an abuse of discretion, Unger , 278 Mich App at 216 . The trial court stated that, had defendant attempted t o present Licavoli’s proposed expert testimony at trial, the trial court would have ruled it inadmissible. The trial court reasoned that, given that the fence posts had been lost, Licavoli could not have offered reliable scientific testimony about whether the metal composition of the lost posts matched that of the “stubs” left in Jayne Field. The trial court further reasoned (1) that Licavoli’s opinion regarding the scientific reliability of the police
witnesses’ lay opinion testimony (about the fence pos ts matching the stubs) was irrelevant, given that the police witnesses did not offer any expert opinions, and (2) that Licavoli ’ s expert criticism of lay opinion testimony would have impermissibly invaded the province of the jury to judge witness credibili ty.

We agree with the trial court’s reasoning in all respects. N either Officer Benitez nor Sergeant Schmit was qualified as an expert by the trial court, and neither offered any expert opinions. Rather, those police witnesses only testified that, based on their personal perceptions, it appeared that the 10 fence posts in defendant’s possession and the remaining stubs matched in color, diameter, shape, and in having been “freshly” cut. One does not need any special expertise to opin e about such readily observed visual characteristics. Although an expert metallurgical inquiry might have been a more scientifically reliable method of determining whether there was an exact match, defendant cites no authority for the proposition that the mere possibility of expert testimony on a subject precludes lay witnesses from offering opinions that are rationally based on their visual perceptions. Indeed, any such rule would run counter to MRE 701, which expressly recognizes that a lay witness may offer “testimony in the form of opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Accordingly, the trial cour t properly concluded that the challenged police testimony was admissible as lay opinion testimony under MRE 701 . See, e.g., People v Daniel , 207 Mich App 47, 57; 523 NW2d 830 (1994)

. For that reason, counsel did not perform ineffectively by failing
to ob ject to such testimony.

Moreover, we agree with the trial court’s conclusion that Licavoli’s proposed expert
criticism of the officers’ lay opinion s would have impermissibly invaded the province of the jury. See generally People v Musser , 494 Mich 337, 3 49; 835 NW2d 319 (2013)

. At a minimum, such criticism would have lacked any legal relevance. See id

. Consequently,- 5

- Licavoli ’ s proposed expert testimony would not have been admissible at trial, and defendant’s trial counsel could not have performed ineffectively by failing to offer it . See Henry (After Remand) , 305 Mich App at 141

. 3

Defendant next argues that his trial counsel should have objected to the introduction of
evidence that more than 10 f ence posts had been removed from Jayne Field, arguing that this was improper “other acts” evidence under MRE 404(b) (1)

. Even assuming that such evidence was improper

— which is a highly dubious assumption

— d efendant fails to recognize that “declining
to rais e objections . . . can often be consistent with sound trial strategy. ” Unger , 278 Mich App

at 242

. T he defense theory of the case was premised, in part, on defendant’s testimony that he had been to Jayne Field numerous times to play baseball since 2011 a nd that the baseball
diamonds had been in “ horrible ” condition, with numerous fence posts missing . In other words,
the defense relied on the fact that fence posts had been removed at times before the date of
defendant’s arrest to support the defense theor y that t he missing fence posts at issue might have been removed by someone other than defendant at some earlier date. D efendant has failed to rebut the strong presumption that counsel’s decision not to object to this evidence was both strategic and effect ive.

Nor has defendant offered any rationale why a Ginther hearing was necessary to develop the factual basis for this claim. Thus, defendant has failed to demonstrate that the trial court abused its discretion by denying him a Ginther hearing with regar d to this claim of ineffective
assistance.

Defendant’s next contention is that his trial counsel should have requested instructions on several necessarily included lesser offenses. D efendant is correct that several misdemeanor
variations of malicious des truction of property, based on lesser dollar amounts of destroyed property, are necessarily included offenses of the felony for which defendant was convicted here: malicious destruction of personal property valued at $1,000 or more but less than $20,000 . See
MCL 750.377a ; People v White , 469 Mich 944 ; 670 NW2d 672 (2003) . However, defendant has

3 Furthermore, even assuming, arguendo, that Licavoli ’ s proposed expert testimony would have been admissible at trial, on this record there is no reasonable probability that such testimony

wou ld have altered the outcome of these proceedings. The challenged police testimony was

consistent with defendant ’ s testimony. The police testified that the 10 fence posts in defendant’s possession looked freshly cut; likewise, defendant testified that the y would have been cut at Smith Fence just the day before he was arrested. Moreover, defendant agreed with the police witnesses that the 10 fence posts in his possession had the same diameter as those in Jayne Field and facially appeared the same, explaini ng, however, that in his lay opinion (he too was never certified as an expert) the 10 fence posts were “ SS20 ” posts while those in Jayne Fi eld were either “SS30” OR “SS40.” Given that the challenged police testimony was largely consistent with defendant’s testimony and the defense theory of the case, defendant has not shown a reasonable probability that, but for counsel’s failure to admit ex pert testimony like Licavoli’s,
the outcome here would have been different

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- failed to rebut the strong presumption that trial counsel acted strategically and effectively by not requesting jury instructions concerning those necessarily i ncluded misdemeanors.

As recognized by the pertinent model jury instruction, M Crim JI 32.2 , one element of any malicious destruction of property offense under MCL 750.377a is “the extent of the damage[.]” See also People v Ewing , 127 Mich App 582, 585; 339 NW2d 228 (1983) . U nder

MCL 750.377a

, the only change in this extent

- of

- damage element from offense to offense is the requisite dollar amount. Nevertheless, M Crim JI 32.2 states that, with regard to the extent of damage , the trial court should “[c]ho ose only one ” of the listed dollar ranges “ unless instructing
on lesser offenses [.]” (Emphasis added.) Because defense counsel did not request instructions regarding the necessarily included lesser offenses, the jury was instructed that to convict
defend ant, it had to find (among other things) that the prosecution had proven, beyond a reasonable doubt, “that the extent of the damage was one thousand dollars or more, but less than twenty thousand dollars.” Although the jury was not given an option to conv ict defendant of one of the lesser included misdemeanors, it would have been inconsistent with the defense theory to
present lesser offense option s to the jury. The defense theory in th e case was that defendant was completely innocent of any wrongdoing. Defendant denied any involvement in removing the fence posts at issue from Jayne Field. Under the circumstances, trial counsel’s decision not to request lesser offense instructions was a matter of trial strategy, and defendant has not overcome the presump tion of sound strategy.

Finally, defendant argues that his trial counsel performed ineffectively by failing to object to the amount of restitution ordered. Defendant misstates the record. At sentencing, the prosecution requested an order of more than $1 7,000 in restitution, arguing that defendant should have been ordered to pay the cost of replacing all of the missing fencing around the baseball
diamond. Defense counsel did object, arguing that the proper amount of restitution was $3,910 (i.e., the estimated cost of replacing the 10 fence posts, the concrete maintenance strip in which they were anchored , and the concrete footings). The trial court agreed, ordering restituti on of $3,910.

Because evidence at trial supported a proper restitution amount of at least $3,910, defense counsel could not have performed ineffectively by failing to advocate for an even lower figure.

See Henry (After Remand) , 305 Mich App at 141

.

In pertinent part, MCL 780.766 provides:

(2) 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.

. . .

(3) If a crime results in damage to or loss or destruction of property of a
vic tim of the crime or results in the seizure or impoundment of property of a victim of the crime, the order of restitution shall require that the defendant do 1 or more of the following, as applicable:- 7

- (a) Return the property to the owner of the property or to a person designated by the owner.

(b) If return of the property under subdivision (a) is impossible, impractical, or inadequate, pay an amount equal to the greater of subparagraph ( i ) or ( ii ), less the value, determined as of the date the property is returned, of that property or any part of the property that is returned:

( i ) The fair market value of the property on the date of the damage, loss, or destruction. However, if the fair market value of the property cannot be determined or is impractical t o ascertain, then the replacement value of the property shall be utilized in lieu of the fair market value.

( ii ) The fair market value of the property on the date of sentencing. However, if the fair market value of the property cannot be determined or is impractical to ascertain, then the replacement value of the property shall be
utilized in lieu of the fair market value.

(c) Pay the costs of the seizure or impoundment, or both.

Under MCL 780.767(4) , “ [a] ny dispute as to the proper amount or type of rest itution shall be resolved by the court by a preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting
attorney. ” Restitution should be in an amount that will “make the victim whole.” People v Bryant , 319 Mich App 207, 212; 900 NW2d 360 (2017)

.

In this instance, defendant’s return of the fence posts was not adequate to make Detroit whole, and defendant’s payment of the posts’ fair market value also would have been inadequate. The prosecution presented evidence that it would cost $3,910 to replace the 10 “ fence posts and the footings and the c oncrete maintenance strip, ” and d efendant presented no evidence to the contrary. Therefore, we agree with the tria l court that the prosecution proved

, by at least a preponderance of the evidence

, that the proper amount of restitution was $3,910 or more

. Consequently, any objection to that amount would have been futile.

Finally, there was no need for a Ginther hearing to develop a factual record for this claim of ineffective assistance. Because the proper restitution figure was determined here by reference

to the evidence presented at trial, the existing record was adequate to decide whether counsel
should hav e objected . Thus, the trial court did not abuse its discretion by refusing to grant a
Ginther hearing concerning this issue.

Next, to the extent that defendant separately challenges the amount of restitution ordered by the trial court, defendant waived a ny such claim by exp ressly requesting that the trial court
order the amount of restitution that it did. The prosecution requested restitution of more than $17,000, representing the cost of replacing all of the missing fencing around the baseball
diamond. Defense counsel argued that the proper amount should be limited to $3,910, representing the cost of replacing only the 10 fence posts found in his possession. The trial court agreed with defendant and ordered the lower amount. By specifically requesting the amount of- 8

- restitution that was subsequently ordered, defendant’s trial counsel waived any claim that that amount was improper. See People v Jones , 468 Mich 345, 352 n 6; 662 NW2d 376 (2003)

. A

“ waiver extinguishes any error ” and precludes appellate review. People v Carter , 462 Mich 206, 209; 612 NW2d 144 (2000)

.

Defendant also raises a conclusory challenge to the sufficiency of the evidence in support
of his conviction . Defendant presents no argument concerning the elements of malicious
destructio n of personal property, and he fails to cite any supporting legal authority

— even with regard to the standard of review

— in support of his argument. As such, this issue may be deemed
abandoned. See People v Johnson , 315 Mich App 163, 199; 889 NW2d 513 (201 6)

. Regardless

, defendant’s sufficiency

- of

- the

- evidence challenge is substantively unpersuasive. Notably,
d efendant does not contend that sufficient evidence of his guilt was not introduced at trial. Rather, he contends that this Court should not consider evidence that was “improperly” admitted, and that without such evidence, there was insufficient evidence to sustain his conviction. As explained previously, however, defendant has not established tha t the opinion testimony of the police witnesses, or any other evidence, was improperly admitted. Furthermore, in reviewing a challenge to the sufficiency of the evidence, this Court examines “ all the evidence in a light most favorable to the prosecution t o determine whether a rational trier of fact could conclude that the prosecution proved the essential elements of the crime beyond a reasonable doubt.” People v
Hicks , 259 Mich App 518, 522; 675 NW2d 599 (2003)

. Contrary to defendant’s arguments on

appea l, this Court cannot selectively discount record evidence when evaluating the sufficiency of the evidence. Because defendant has not shown that any evidence was improperly admitted, and he does not otherwise argue that the evidence in introduced at trial was insufficient to establish his guilt, we reject this claim of error.

Affirmed.

/s/ David H. Sawyer /s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood