PEOPLE OF MI V NATHAN DANIEL GUBACHY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 14, 2006
9:05 a.m.
Plaintiff-Appellee,
v
No. 262550
Washtenaw Circuit Court
LC No. 04-000598-FH
NATHAN DANIEL GUBACHY,
Defendant-Appellant.
Official Reported Version
Before: Murphy, P.J., and Meter and Davis, JJ.
DAVIS, J.
Defendant appeals by delayed leave granted a restitution order requiring him to
reimburse $10,098.93 to the victim in this case. We affirm.
Defendant pleaded guilty of breaking and entering a building with the intent to commit a
larceny, MCL 750.110; unlawfully driving away an automobile, MCL 750.413; escape from
lawful custody, MCL 750.197a; and malicious destruction of police property, MCL 750.377b.
Defendant had been employed by Wilbur Plumbing. On April 12, 2004, shortly after defendant's
employment was terminated, he and another individual entered Wilbur Plumbing without
permission and drove three trucks away from the premises. They returned one truck after
removing tools and other equipment from it. Police recovered the other two trucks and some
tools and equipment. George Wilbur, the owner of Wilbur Plumbing, conducted an inventory
and testified that property worth a total of $7,902.28 was missing. He also testified that Wilbur
Plumbing incurred total labor expenses of $2,746.65 taking inventory and reequipping the trucks
as a result of the theft. The trial court reasoned that the labor was a "legitimate expense for a
victim to recover," but reduced the amount of missing property by $550 because Wilbur failed to
substantiate the value of certain items. Defendant appeals the resulting order of restitution.
We review a trial court's factual findings for clear error. MCR 2.613(C). We generally
review for an abuse of discretion an order of restitution. In re McEvoy, 267 Mich App 55, 59;
704 NW2d 78 (2005). However, "[w]hen the question of restitution involves a matter of
statutory interpretation, review de novo applies." Id. Statutory interpretation is a question of
law that we review de novo. Id.
Defendant first contends that there was insufficient evidence to support the restitution
award for the lost property. We disagree.
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Crime victims have a constitutional right to restitution. Const 1963, art 1, ยง 24. Black's
Law Dictionary (7th ed) defines "restitution" as "[c]ompensation or reparation for the loss
caused to another." Further, crime victims have a statutory right to restitution under the Crime
Victim's Rights Act (CVRA), MCL 780.751 et seq. The CVRA provides that if a felony (or a
misdemeanor punishable by imprisonment for more than one year) results in the loss of a
victim's property, the trial court may order the defendant to pay to the victim, as restitution, the
value of the property that was lost. MCL 780.766(3). Restitution encompasses only those losses
that are easily ascertained and are a direct result of a defendant's criminal conduct. People v
Orweller, 197 Mich App 136, 140; 494 NW2d 753 (1992). The prosecution must prove the
amount of the victim's loss by a preponderance of the evidence. MCL 780.767(4).
Here defendant admitted that he stole three trucks and that he stole and sold copper
pipefittings worth $1,400. He denied stealing tools, but he admitted that his codefendant took
some tools and put them into defendant's storage locker. Wilbur Plumbing did not keep a written
inventory for each truck, but it had a policy of continually maintaining the trucks with certain
known equipment on board, along with a policy for reporting anything missing. Nothing was
reported missing in the days leading up to the crime. The prosecution therefore presented
sufficient evidence to establish that the trucks were fully equipped before April 12, 2004, and
that anything missing after April 12, 2004, was a direct result of defendant's criminal conduct.
Defendant admitted the theft of a number of items and the value of some of them. Wilbur
presented invoices to substantiate the value of most items, and the trial court disallowed the
value of any items for which Wilbur did not provide documentation. The trial court's finding
that the prosecution proved by preponderance of the evidence a property loss of $7,352.28 was
not clearly erroneous, so an order of restitution in that amount was not an abuse of discretion.
MCL 780.766(3).
Defendant next argues that the trial court was not authorized to order reimbursement of
the value of Wilbur Plumbing's labor costs incurred in determining the value of the lost property
and in replacing the lost property. We disagree.
The goal of statutory interpretation is to determine and give effect to the intent of the
Legislature, with the presumption that unambiguous language should be enforced as written.
Gladych v New Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 (2003). "Statutory
language should be construed reasonably, keeping in mind the purpose of the act." In re
McEvoy, supra at 60. In other words, the Court must consider the object of the statute and the
harm it is designed to remedy and apply a reasonable construction that best accomplishes the
statute's purpose. People v Lawrence, 246 Mich App 260, 265; 632 NW2d 156 (2001).
Additionally, the Code of Criminal Procedure, which also contains restitution provisions, is
remedial in character and should be liberally construed to effectuate its intent. MCL 760.2. The
CVRA "was enacted to enable victims to be compensated fairly for their suffering at the hands of
convicted offenders." People v Crigler, 244 Mich App 420, 423; 625 NW2d 424 (2001).
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At the time defendant was sentenced, MCL 780.766 provided1 in relevant part:
(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
victim of the crime or results in the seizure or impoundment of property of a
victim of the crime, the order of restitution may require that the defendant do 1 or
more of the following, as applicable:
(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 value of the property on the date of the damage, loss, or
destruction.
(ii) The value of the property on the date of sentencing.
(c) Pay the costs of the seizure or impoundment, or both.
There are two statutes dealing with restitution. MCL 769.1a(2) and (3), in the Code of Criminal
Procedure, are identical to MCL 780.766(2) and (3), except that MCL 769.1a discusses a
"felony, misdemeanor, or ordinance violation" instead of a "crime" and "cost" instead of "costs."
MCL 769.1a has not been amended since defendant's sentencing. Although Michigan courts
once were required to consider a defendant's ability to pay restitution, under MCL 780.767(1),
"[i]n determining the amount of restitution to order under [MCL 780.766], the court shall
consider the amount of the loss sustained by any victim as a result of the offense." The "amount
of the loss sustained" is now the only factor to be considered. Crigler, supra at 428.
We appreciate defendant's argument concerning expressio unius est exclusio alterius.
See Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 298; 565 NW2d 650 (1997)
1
2005 PA 184 (effective January 1, 2006) made two amendments to the provisions addressed in
this opinion. MCL 780.766(2) was changed to add a provision addressing offenses "resolved by
assignment of the defendant to youthful trainee status . . . ." MCL 780.766(3) was modified to
change "the order of restitution may require . . ." to "the order of restitution shall require . . . ."
(Emphasis added.) These changes do not affect our analysis.
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("This Court recognizes the maxim expressio unius est exclusio alterius; that the express
mention in a statute of one thing implies the exclusion of other similar things."). However, we
do not believe it applies here. Defendant correctly directs our attention to the fact that, because
seizure or impoundment are not at issue, MCL 780.766(3) provides an explicit list of exactly two
remedies. If viewed in isolation, this would logically imply that the Legislature intended those
two remedies to be the only remedies available. We also appreciate that federal court
interpretations of the Victim and Witness Protection Act (VWPA), specifically 18 USC 3663, are
considered persuasive by our Supreme Court. People v Grant, 455 Mich 221, 243 n 30; 565
NW2d 389 (1997). The federal courts limit restitution under the VWPA to return of the property
or the value of lost property itself. United States v Schinnell, 80 F3d 1064 (CA 5, 1996).
However, defendant's and the federal courts' interpretations are inconsistent with other portions
of the CVRA and, indeed, with its underlying purpose, as well as with the Michigan
constitutional provision that gives the victim a right to restitution. Our Supreme Court has also
explained that the federal courts have interpreted the VWPA narrowly, which may not always be
appropriate for the "broad construction" that should be applied to Michigan's CVRA. People v
Gahan, 456 Mich 264, 271 and n 8; 571 NW2d 503 (1997).
Initially, the version of MCL 780.766(3) in effect at defendant's sentencing employed the
word "may," which is permissive and therefore indicative of discretion. People v Brown, 249
Mich App 382, 386; 642 NW2d 382 (2002); see also Old Kent Bank v Kal Kustom Enterprises,
255 Mich App 524, 532; 660 NW2d 384 (2003). Significantly, the statute did not say "may
only." When viewed in the context of the act's underlying purpose of fairly compensating crime
victims, the version of MCL 780.766(3) in effect at defendant's sentencing cannot be considered
an exclusive list of remedies.
Moreover, we do not believe that 2005 PA 184, which changed "may" to "shall," changes
this analysis. This change only stripped trial courts of the discretion to refuse to order one of the
enumerated forms of restitution, presuming that the facts of the case make any of them
applicable. Significantly, MCL 780.766(2), both before and after the most recent amendment,
states that "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 . . . . " (Emphasis added.) Equally significantly,
MCL 780.767(1) requires the court to "consider the amount of the loss sustained . . . . "
(Emphasis added.) Nowhere in the CVRA does the Legislature state "how to determine the
amount of the loss sustained by the victim," so the amount of restitution "should be based upon
the evidence." People v Guajardo, 213 Mich App 198, 200; 539 NW2d 570 (1995).
In our view, the Legislature has clearly manifested an intent to make victims of a crime
as whole as they can fairly be made and to leave the determination of how best to do so to the
trial court's discretion on the basis of the evidence presented and subject to the prosecuting
attorney's burden of proving losses attributable to defendant's crime-related acts. The CVRA
was not intended to be narrowly construed merely as a special-purpose replevin action: the
focus is consistently not on what a defendant took, but what a victim lost because of the
defendant's criminal activity. No other interpretation is consistent with purpose of the act and its
specific provisions.
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In this case, the testimony presented to the trial court was that Wilbur expended 30 hours
at a cost of $67.06 an hour, and another employee spent 14 1/2 hours at a cost of $49.82 an hour,
taking inventory and reequipping the trucks. The total cost to the victim company, other than the
lost property itself, was uncontroverted. The restitution order of $2,746.65 was therefore
reasonable and supported by uncontested evidence. Because the constitution provides the victim
with the right to restitution, and because it was also authorized by the CVRA, we perceive no
abuse of discretion by the trial court.
Affirmed.
/s/ Alton T. Davis
/s/ William B. Murphy
/s/ Patrick M. Meter
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