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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 1, 2016

v No. 328551 Chippewa Circuit Court JUSTIN MICHAEL BURTON, LC No. 14-001559-FH

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and O’C ONNELL and G LEICHER , JJ.

P ER C URIAM

.

Defendant appeals as of right from his conviction following a jury trial of malicious destruction of a building, MC L 750.380, and two counts of assau lting/resisting a police officer, MCL 750.81d(1). The trial court sentenced defendant, as a four th habitual offender, MCL 769.12, to concurrent prison terms of three to 15 years on each conviction and ordered he pay $2,025 in restitution. We affirm.

I. STATEMENT OF FACTS

The owner of a Sault St. Marie bar testified that defendant en tered the bar with two friends, and the group requested a free drink for one of defend ant’s friends who, was celebrating a birthday. The bar owner declined, but a couple at the bar bo ught the man a drink. The bar owner testified that as defendant and his friends left, he “hea rd a crash” and turned to see defendant standing by the door to leave the bar. Defendant, in the words of the bar owner, “had kicked out the panel of the door.” When the bar owner asked de fendant why he had done so, defendant replied, “I was drunk and stupid.” Defendant was lat er arrested after being found in

another downtown bar.

II. ANALYSIS

Defendant raises two issues on appeal; one, whether there was sufficient evidence to convict Defendant of malicious destruction of a building greate r than $1,000.00; and two,

whether the trial court erred in figuring restitution. Defenda nt does not assert that he did not damage the door.

A. SUFFICIENCY OF THE EVIDENCE

Defendant first raises a challenge to the sufficiency of the e vidence. To determine

whether the evidence was sufficient to convict a criminal defen dant, we consider whether “a-2- rational trier of fact could find that the prosecution had prov ed the crime’s elements beyond a

reasonable doubt.” People v Lane , 308 Mich App 38, 57; 862 NW2d 446 (2014) . In making this determination, we view “the evidence in a light most favorable to the prosecution.” Id

. “Circumstantial evidence and re asonable inferences arising ther efrom may be sufficient to prove

the elements of a crime.” People v Avant , 235 Mich App 499, 505; 597 NW2d 864 (1999).

To prove that defendant was guilty of malicious destruction of a building, as charged, the prosecution was required to show that defendant “willfully and maliciously” destroyed a building, and that the damage exceeded $1,000, but was less tha n $20,000. MCL 750.380(1), (3)(a). Defendant argues that the prosecution did not introduc e enough evidence to prove beyond a reasonable doubt that he caused at least $1,000 in dam age.

Defendant argues that the only proper method of calculating da mages is to determine the

difference in the fair market value of the door before and afte r the incident because the door could not be repaired. According to defendant, People v Hamblin , 224 Mich App 87; 568 NW2d 339 (1997) (a case involving the malicious destruction of prope rty over $100, MCL 750.377a)

controls the outcome of this case. In Hamblin , the complainant asserted that the defendant broke a car window by shaking it. 224 Mich App at 89. The issue bef ore the Court was the correct measure of damages for the broken car window. Id . at 92-93. The Court concluded that the prosecution “may establish the amount of ‘damage resulting from [an] injury’ by showing either (a) the difference in the market value of the property immediat ely before and after the injury, or (b) the reasonable cost of rep airing or restoring the property. ” Id. at 96.

Both MCL 750.377a and MCL 750.380 have been amended since Hamlin and LaBelle

were decided. 1998 PA 311. Both statutes now refer to “the am ount of the destruction” instead of “the damage resulting.” These are simply two different ways to say the same thing, i.e., that the applicable penalty is a function of the financial measure o f the damages caused. Thus, the prior cases instruct that the measure of damages can be shown b y either (a) the difference in the market value of the property immediately before and after the i njury, or (b) the reasonable cost of repairing or restoring the pr operty, in this case the buildi ng rather than the door.

If an item is a fixture, it is “not personal property, but rat her is part of real property.” People v Fox , 232 Mich App 541, 553; 591 NW2d 384, 391 (1998). A window, a ccording to the

Fox Court, “clearly constitutes a fixture and thus is an item of r eal property, not personal property.” Id. at 554. Similarly, a door being used as the po int of ingress and egress to a building is a fixture. Here, the damage was done to a door bei ng used as the point of ingress and egress to the Alpha Bar. Therefore, the damage was to real pro perty instead of personal property, however, the Hamblin analysis is “equally applicable” to malicious destruction of [ real property] cases. People v LaBelle , 231 Mich App 37, 38; 585 NW2d 756 (1998).

The bar owner called a glazier the night defendant damaged the door. According to the tradesman, the door was “pretty old,” and he could only make it “functional for the customer” with a temporary fix, which involved using “screw applied stops to hold the bottom panel of the door” in place. The tradesman charged the bar owner $225 for t he after-hours service call. In the door’s current state, the tradesman testified, the premises are not secure because anyone

could undo the screws he install ed and just “walk right in.” H e further testified that he told the-3- bar owner it would be impossible to find parts for the door, so the only way to effectuate a permanent fix was to replace the door at a cost of $1,800. Thi s testimony establishes that the $1,000 threshold has been met.

As for defendant’s argument that damages consist solely of the $225 service charge, the measure of damages is “ not the actual monetary cost to the victim for repairing the resul ting damage.” Hamblin , 224 Mich App at 97 (emphasis in original). “[T]he focus of t he statute is on the nature of the damage that defendant’s actions caused.” Id . Further, while the door still opened, closed, and locked, that fact has no bearing on “the na ture of the damage that

defendant’s actions caused.” Id.

In sum, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defenda nt caused more than $1,000 in damage.

B. RESTITUTION

Second, defendant argues that the prosecution failed to establ ish the fair market value of the door or show that it was impossible to calculate fair marke t value. Defendant did not properly preserve this issue, so we review for plain error affe cting substantial rights. People v

Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). Under the plain error rule, defendants must show that error occurred, the error was plain, i.e., clear or obvious, and the plain error

affected a substantial r ight of the defendant. See Id.

A sentencing court must order defendants to pay restitution to criminal victims. MCL 780.766(2). “[B]ecause the restitution statute is silent regar ding how to determine the amount of loss that the victim sustained, the amount should be based upon the evidence.” People v Cross

, 281 Mich App 737, 738; 760 NW2d 314 (2008) (internal quotation marks and citation omitted). MCL 780.766(3)(b)( i ) explains that if return of the property . . . is impossible, impractical, or inadequate, the defendant will pay the fair market value of the property on the date of the damage. “However, if the fair market value of the property can not be determined or is impractical to ascertain, then the replacement value of the pro perty shall be utilized in lieu of the fair market value.” MCL 780.766(3)(b)(ii).

The prosecution introduced evidence that the bar had been owne d by the same family for 95 years and that the same door had been in place for as long a s the current owner could remember. Additionally, the glazier called to repair the door testified that replacement parts for

the door did not exist. These tw o pieces of evidence establish the impracticability of determining

fair market value.-4- Again, the glazier estimated that it would cost $1,800 to repl ace the door. He also charged the bar owner $225 for re pairing it the night it was da maged by defendant. The award of $2,025 in restitution is supporte d by a preponderance of the evidence. MCL 780.767(4).

Affirmed.

/s/ Amy Ronayne Krause

/s/ Peter D. O'Connell

/s/ Elizabeth L. Gleicher