PEOPLE OF MI V KIMBERLY TARSHAY GREEN-WHITE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 20, 2010
Plaintiff-Appellee,
v
No. 288174
Wayne Circuit Court
LC No. 08-009209-FH
KIMBERLY TARSHAY GREEN-WHITE,
Defendant-Appellant.
Before: M. J. KELLY, P.J., and TALBOT and WILDER, JJ.
PER CURIAM.
Following a bench trial, the trial court convicted defendant of malicious destruction of
personal property (MDOP) valued between $200 and $1,000, MCL 750.377a(1)(c)(i), and
acquitted defendant of felonious assault, MCL 750.82. The trial court sentenced defendant to
three months’ probation for the MDOP conviction. On appeal, defendant argues that there was
insufficient evidence to support the trial court’s finding as to the value of the damage that she
caused. We agree that there was insufficient evidence to support the trial court’s finding that the
amount of damage equaled or exceeded $200. However, because the trial court clearly found
that defendant maliciously damaged the property at issue and there was clear evidence that the
damaged property had some value, we vacate defendant’s conviction and remand for entry of a
judgment of conviction on the necessarily included lesser offense of malicious destruction of
personal property valued at less than $200. We have decided this appeal without oral argument
under MCR 7.214(E).
Defendant argues that the evidence was insufficient to support her conviction because the
prosecutor failed to present legally admissible evidence to prove that the value of the damaged
property equaled or exceeded $200. Because defendant’s claim is unpreserved, we will review it
for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763764; 597 NW2d 130 (1999).
Due process requires that the prosecutor prove each element of the crime charged beyond
a reasonable doubt. People v Harrison, 283 Mich App 374, 378; 768 NW2d 98 (2009). As
charged, the elements of MDOP are: (1) that the property belonged to another person, (2) that the
defendant destroyed or damaged the property, (3) that the defendant knew what she did was
wrong and acted with the intent to damage or destroy the property, and (4) the amount of the
damage was at least $200, but less than $1,000. MCL 750.377a(1)(c)(i). The amount of damage
caused may be proved by presenting evidence concerning the difference in the fair market value
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of the property before and after the damage or by presenting evidence of the reasonable cost to
repair or restore the property. People v Hamblin, 224 Mich App 87, 96; 568 NW2d 339 (1997).
In this case, there was testimony that defendant cracked the windshield of a Jaguar. The
owner testified that he obtained a repair estimate of $900. However, there was no evidence that
the owner was familiar with windshield repair or that he actually paid for the repair. Rather, his
testimony regarding the cost of repair was based on hearsay. MRE 801(c). In a bench trial, the
trial court is presumed to possess an understanding of the law that enables it to ignore errors and
decide the case on properly admitted evidence. People v Jones, 168 Mich App 191, 194; 423
NW2d 614 (1988). Hearsay is not admissible absent an exclusion or exception provided by the
rules of evidence, MRE 802, and there is no apparent exclusion or exception that would apply in
this case. Nevertheless, it is clear from the court’s decision that it relied on the hearsay to find
that the damage exceeded $200 and there was no other evidence from which such a finding could
be made. The trial court plainly erred in relying on this hearsay and the error affected
defendant’s substantial rights.
Where an appellate court reverses a conviction for a greater offense on grounds that do
not affect a necessarily included lesser offense, the court may remand for entry of judgment of
the necessarily included lesser offense. See People v Bearss, 463 Mich 623, 631; 625 NW2d 10
(2001), citing Rutledge v United States, 517 US 292, 306; 116 S Ct 1241; 134 L Ed 2d 419
(1996). The evidence was sufficient to prove that defendant maliciously damaged the
windshield. Although the evidence was insufficient to prove that the value of the windshield was
at least $200, it clearly had some value because the owner testified that it was in good condition
before defendant damaged it. The admissible evidence was thus sufficient to prove that
defendant committed the necessarily included lesser offense of MDOP under $200. Further, the
sentence imposed on the charged offense could have been lawfully imposed on the lesser
offense. MCL 771.2(1). Therefore, we vacate defendant’s conviction of MDOP causing damage
equal to or exceeding $200 but less than $1,000, MCL 750.377a(1)(c)(i), and remand for entry of
a judgment of conviction for the lesser offense of MDOP under $200, MCL 750.377a(1)(d).
Under the unique facts of this case, we do not believe it is necessary to order the trial court to
resentence defendant.
Vacated and remanded for entry of judgment consistent with this opinion. We do not
retain jurisdiction.
/s/ Michael J. Kelly
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
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