PEOPLE OF MI V AMOS KNOLL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 22, 1996
Plaintiff-Appellee,
v
No. 172776
LC No. 89-90728 FH
AMOS KNOLL,
Defendant-Appellant.
Before: Reilly, P.J., and Sawyer and W.E. Collette,* JJ.
PER CURIAM.
Defendant was convicted by a jury of fraudulent use of a building contract fund, MCL 570.152;
MSA 26.332. He was placed on three years of probation and, in the original order of probation, was
ordered to pay $54,590.57 restitution and “any further restitution, if any to be determined by the
Court.” He appeals as of right. We affirm the conviction, but remand for a restitution hearing.
In February 1987, the complainant gave defendant, a general contractor, a $90,000 check that
the complainant testified was intended as a down payment on the construction of a new home. The
complainant also paid defendant a $5,000 retainer and $10,000 for defendant’s interest in the lot on
which the home was built. Construction on the home began. Subsequently, the complainant was
notified that a lien had been placed on the house by Adobe Walls, one of the subcontractors, because
defendant had not paid it. The complainant contacted the police. After an investigation was conducted,
defendant was charged with fraudulent use of a building contract fund.
Defendant claimed that the money was given to him by the complainant as a loan. Defendant
admitted using some of the money for an investment, but claimed that he did so with the complainant’s
consent. The jury’s verdict indicates that it rejected defendant’s explanation.
Defendant first argues that the trial court erred in refusing to give a jury instruction that defendant
requested. We disagree. The instruction requested by defendant was: “If you find from the evidence
that the monies received by the defendant from [the complainant] was a loan and not a deposit, you
* Circuit judge, sitting on the Court of Appeals by assignment.
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must find no intent to defraud and you must find the defendant not guilty.” Although the trial court
refused to give the specific instruction requested by defendant, the court’s instructions repeatedly
indicated that an intent to defraud was required and that a contractor is considered a trustee of funds
“paid to him for building construction purposes.” Consequently, considered in their totality, the
instructions sufficiently advised the jury of the issues and protected defendant’s rights. People v Head,
211 Mich App 205, 210-211; 535 NW2d 563 (1995). We are not persuaded that the jury’s
questions to the court during deliberations indicate the necessity of defendant’s requested instruction.
Defendant next argues that the trial court erred in failing to sua sponte instruct the jury on the
law regarding the interpretation of ambiguous writings. Again, we disagree. MCL 768.29; MSA
28.1052 dictates that “[t]he failure of the court to instruct on any point of law shall not be ground for
setting aside the verdict of the jury unless such instruction is requested by the accused.” Because
defendant did not request an instruction on the interpretation of ambiguous writings, the lack of such an
instruction cannot be the basis for overturning the jury’s verdict. People v Hendricks, 446 Mich 435,
440-441; 521 NW2d 546 (1994).
Finally, defendant argues that an amended restitution order was excessive because it required
defendant to pay more in restitution than defendant received from the complainant. Because the record
does not contain sufficient facts for us to evaluate this claim, we order the court to conduct a restitution
hearing to determine the amount of the complainant’s loss.
In this case, the parties indicate1 that defendant was sentenced on January 10, 1994 and at that
time, the court ordered that defendant pay $54,590.57 as restitution. The order of probation, filed
January 25, 1994, states in pertinent part:
Respondent shall pay restitution of $54,590.57. Respondent shall pay $10,000
forthwith and shall pay the balance of $44,590.57 by September 9, 1994 or serve six
(6) months in Oakland County Jail. Respondent shall pay any further restitution, if any,
to be determined by the Court.
Although the reason for the court’s determination of the $54,590.57 amount is unclear, the amount is
consistent with the balance shown on a document titled “DISBURSEMENT AGREEMENT.” This
document purports to show disbursements (e.g. permit fees, blueprints, survey and stake out,
excavation) totaling $50,409.43 from the $105,000 deposit from the complainant, leaving a balance of
$54,590.51.
The claim of appeal was filed on February 18, 1994. On April 8, 1994, at a hearing on
defendant’s motion for a new trial, the prosecutor asked the court for a restitution hearing. The
prosecutor explained that at sentencing, the court ordered that further restitution was to be determined,
that there was a determination by the probation department that defendant should pay “certain
additional monies”, but that defendant did not agree to that. The Court agreed to hold a restitution
hearing which occurred on April 29, 1994.
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During the course of the restitution hearing, it became apparent that defense counsel and the
court disagreed about the purpose of the hearing. Representatives of Adobe Walls and Buchman
Brothers, two companies that worked on the construction of complainant’s home, testified at the hearing
about the amounts that they were owed by defendant. Defense counsel conceded that the amount
owed to Adobe Walls and Buchman Brothers was not substantially contradicted and totaled $37,459.
Defense counsel also conceded that defendant’s corporation received a total of $105,000 from the
complainant. Defense counsel asserted that the issues were (1) who, the complainant or defendant,
should be responsible for payment to Adobe Walls and Buchman Brothers, and (2) how much money
defendant is entitled to subtract from the $105,000 received from the complainant for the expenses
defendant paid for the partial construction of the complainant’s home. When defense counsel attempted
to introduce evidence on those issues, a lengthy discussion ensued in which it became apparent that the
court did not share defense counsel’s view of the purpose of the hearing. The following excerpts
illustrate the disagreement:
[Defense counsel]: Isn’t the purpose of today’s hearing to determine the amount?
THE COURT: No, the purpose of today’s hearing as I indicated is to determine if
these gentlemen have been paid, and if not, why not; otherwise, if they had been paid,
we wouldn’t be here; and they both indicated on the stand, they haven’t been paid a
penny.
[Defense counsel]: The first [issue] is one of responsibility and particularly responsibility
of [sic] how much my client owes as a total.
THE COURT: Well, I think we just ended that. The jury determined that he owes the
entire amount and that was placed before them to make a determination and that’s the
amount. Period.
***
[Defense counsel]: I think we can agree with all due respect that if he’s guilty of a
penny, then a penny is to be paid back. If he’s guilty of a dollar, then a dollar is to be
paid back. The question here today is the amount.
THE COURT: No, it’s not. The hearing here is to determine if the gentlemen have
been paid, and if the gentlemen have not been paid and why not that’s the two
questions; and the gentlemen have testified that they have not been paid.
Defense counsel’s direct examination of defendant was focused on showing that defendant
should not be ordered to pay more in restitution than he allegedly wrongfully retained from the
complainant, e.g. that defendant was entitled to credits for the amounts he expended and for a portion
of profit on the partial construction of the complainant’s home. Defendant testified that of the $105,000
received from the complainant, approximately $55,000 “actual cash outlayed” [sic] was attributable to
payments for “the architecture . . . engineering . . . part of the lumber, excavation, sewer, water,
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permits, the commission . . . .” Defendant also testified that he works on a thirty percent mark up on
the work and supplies. Thus, according to defendant, the profit to which he would have been entitled
from the work that was completed was thirty percent of approximately $175,000 worth of work, or
$52,500.
At the conclusion of the hearing, the court concluded that defendant must pay $37,459 total in
restitution to Adobe Walls and Buchman Brothers. When defense counsel asked if that amount was the
total amount of restitution to be paid, the prosecutor asserted the amount to the Adobe Walls and
Buchman Brothers should be in addition to the “some $54,000” owed to the complainant. Despite the
fact that the complainant did not appear at the hearing to testify about his losses, the court agreed with
the prosecutor.
An amended order of restitution referring to the hearing on April 29, 1994, stated that
defendant owed restitution to Buchman Brothers and Adobe Walls in the amounts of $13,169 and
$24,290, respectively and that the order did not “supersede any other Orders issued in the case
regarding restitution.” This order, signed by Judge Kern, rather than Judge Balkwill, who presided at
the hearing, was not filed until July 1, 1994. In the meantime, on June 7, 1994, Judge Tyner entered an
order amending the order of probation. The amendment stated:
The amount of restitution in this case has been re-determined.
Respondent shall pay additional restitution in the amount of $38,409 by June 9, 1995;
making total restitution in this case in the amount of $92,999.57.
The circuit court docket entries do not indicate that a hearing was held before this amendment was
entered.
The last amendment of the order of probation contained in the record before us was entered
July 11, 1995, by Judge Tyner following a probation violation hearing on January 6, 1995. This
amendment states as follows:
At a Probation Violation Hearing on January 6, 1995, Judge Tyner ordered:
1. That the total restitution is $92,999.57.
2. That the defendant shall pay $7,131 towards restitution forthwith.
3. That including the $7,131, the defendant shall be credited with $54,590.57 paid
toward restitution.
4. That the Reimbursement Division shall hold all restitution until the Court orders
disbursement.
5. All other conditions of probation shall remain in effect.
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We agree with defendant that the amendments to the order of probation appear to order
restitution in excess of the total loss suffered by the complainant, Adobe Walls, and Buchman Brothers.2
With respect to restitution for the complainant, the prosecution did not contend that defendant must
repay the complainant the entire $105,000 deposit. Instead, the prosecution appears to have taken the
position that restitution to the complainant should be the amount of the deposit less the expenses
incurred and paid for the partial construction. When defendant was ordered to pay Adobe Walls and
Buchman Brothers directly, the amount he was ordered to pay should have been treated in the same
manner as the other expenses incurred in the construction, e.g. the amount should have been subtracted
from the amount he is required to reimburse the complainant. If the complainant is reimbursed for all the
money that he gave defendant that was not actually spent by defendant on the construction of the home,
and then defendant is also ordered to pay additional expenses toward the house directly, i.e. to Adobe
Walls and Buchman Brothers, then the complainant received the benefit of the subcontractors’ services
without paying for them.
A prerequisite to adequate appellate review of restitution orders is disclosure of the purpose of
the payments and the manner in which the amount of restitution has been determined. People v Pettit,
88 Mich App 203; 276 NW2d 878 (1979). In the present case, the record does not indicate how the
complainant’s loss was calculated. Obviously, the complainant is not entitled to restitution of the full
$105,000 paid to defendant inasmuch as the complainant derived some benefit from the purchase of
defendant’s interest in the land and defendant and the subcontractors’ services in the partial construction
of the house. However, because of the trial court’s view of the limited scope of the restitution hearing
on April 29, 1994 and the complainant’s failure to appear, the record does not establish the extent of
the complainant’s loss. From the record before us, it appears that defendant was ordered to pay Adobe
Walls and Buchman Brothers for the work done on plaintiff’s home, but was not given credit for that
amount against the amount owed to the complainant. Accordingly, we conclude that, before the amount
of restitution can be reviewed on appeal, a full restitution hearing is necessary.
The conviction is affirmed and the case is remanded for a restitution hearing. Defendant shall
cause a transcript of the hearing to be prepared and filed within twenty-one days after completion of the
proceedings. Defendant shall also file with the Clerk of this court copies of all orders entered in this
cause on remand. We retain jurisdiction.
/s/ Maureen Pulte Reilly
/s/ David H. Sawyer
/s/ William E. Collette
1
The circuit court docket entries do not indicate that a hearing was held on January 10, 1994, and a
transcript of the proceeding is not part of the record.
2
Defendant does not dispute that the court had the authority to order restitution to Buchman Brothers
and Adobe Walls. See MCL 780.766(1), (2); MSA 28.1287(765)(1), (2).
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