Restitution calculation; MCL 780.766(3)(b) & 769.1a(3)(b); Fair market value (FMV); In re White; Prosecutorial misconduct; False testimony; People v Thurmond

The court held that the trial court abused its discretion by failing to calculate restitution for the FMV of the truck involved in defendant’s conviction of passing false title to a motor vehicle. But it rejected her claim that the prosecution presented false testimony on a material issue. She was also convicted of larceny in a building. The trial court ordered her to pay $55,350 in restitution. The case arose from a dispute between defendant and a man (G) she had lived with. The truck was a semi-truck G purchased. After the relationship broke down and G asked her to move out of his home, she “took several possessions from him including the title and keys to the truck. Defendant then titled the truck in her own name.” The court noted that “to order monetary restitution under the relevant statutes, the trial court was required to first determine that the return of the property is ‘impossible, impractical, or inadequate.’” It did not make any finding as to whether this was so, “but in ordering defendant to return the title, the trial court impliedly found the return of property neither impossible nor impractical. Because it ordered additional restitution, [it] impliedly found the return of property inadequate.” Thus, it next had “to consider whether the ‘[FMV] of the property on the date of the damage, loss, or destruction’ or ‘on the date of sentencing’ was greater.” But it did not make any determination as to the truck’s FMV “on either date, and the prosecution did not present any evidence concerning the [FMV] of the truck. Instead, the trial court” found that G bought it “for $16,000 and the cost to make the vehicle road-ready was $35,000.” Neither amount was “the ‘amount of money that a ready, willing, and able buyer would pay for the asset on the open market’ either on the date of damage or on the date of sentencing.” The trial court also did not make any finding related to the alternative calculation provided by the statutes. As a result, “there was insufficient evidence to support” its restitution order. But defendant was not entitled to a new trial based on testimony related to whether G’s license was suspended. She did not meet her burden of showing that G’s “‘restricted’ status means that the prosecution used false testimony at trial.” The court affirmed her convictions but vacated the restitution order and remanded for the trial court to determine the restitution amount.