People v. Fawaz
299 Mich. App. 55
| Mich. Ct. App. | 2012Background
- Defendant convicted by jury of arson of a dwelling, arson of insured property, and two counts of making false statements about an insurance claim; sentenced to five years’ probation plus fines and restitution of $29,408.74; prosecution appeals the judgment.
- Prosecution argues the trial court erred in OV3 and OV9 scoring by not treating two firefighters and the neighbor as victims; and in restitution amount.
- Facts: fire on Sept. 26, 2009; two firefighters (Radu and Cervantes) were treated for heat exhaustion; neighbor Mary Fras had to be escorted from her home; multiple witnesses testified; trial court scored OV3 and OV9 at zero.
- Trial court limited restitution to Board Up, Contents Advance, and Additional Living Expenses; rejected other claimed costs; PSIR recommended $48,411.72; actual restitution set at $29,408.79.
- Appellate court agrees OV3 and OV9 were mis-scored and remands for resentencing; also finds CVRA costs for certain investigative expenses should be included in restitution, but some fees (legal expenses, deposition) are not supported as investigatory costs and are excluded; remand for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OV3—whether first responders are victims | Prosecution: Radu and Cervantes are victims under OV3. | Defendant: first responders are not victims under OV3. | Remanded; first responders are victims, court must award 10 points. |
| OV9—whether victims include persons in danger | Prosecution: Fras, Radu, Cervantes were victims under OV9. | Defendant: not victims under OV9. | Remanded; all three are victims, court must award 10 points. |
| Restitution—which costs are recoverable under CVRA | Farmers’ investigatory costs are recoverable as direct losses. | Some costs are not investigatory; exclude those. | On remand, includeOrigin and Cause Investigation, Lab Analysis, Investigation Expenses; exclude legal/court reporter fees tied to deposition. |
Key Cases Cited
- People v Laidler, 491 Mich 339, 817 NW2d 517 (2012) (Mich. 2012) (broadly defines 'victim' for OV3 to include any harmed by defendant)
- People v Albers, 258 Mich App 578, 672 NW2d 336 (2003) (Mich. App. 2003) (OV3 victim definition includes any person harmed by defendant’s actions)
- Hock Shop, Inc, 261 Mich App 521, 681 NW2d 669 (2004) (Mich. App. 2004) (statutory text governs; no implied limitation on 'victim')
- People v Buie, 491 Mich 294, 817 NW2d 503 (2012) (Mich. 2012) (restitution error standard; clear error review)
- People v Gubachy, 272 Mich App 706, 728 NW2d 891 (2006) (Mich. App. 2006) (corporate victim recoverable costs for investigation)
- People v Allen, 295 Mich App 277, 813 NW2d 806 (2011) (Mich. App. 2011) (restitution for corporate victim; time-value of investigation cost recoverable)
- People v Morson, 471 Mich 248, 685 NW2d 203 (2004) (Mich. 2004) (civilian victims for OV9 perspective supporting first-responder reasoning)
- People v Gardner, 482 Mich 41, 753 NW2d 78 (2008) (Mich. 2008) (statutory interpretation guiding OV definitions)