People v. Osby, 291 Mich. App. 412

Defendant was convicted by a jury of possession of burglar’s tools, receiving and concealing stolen property ($200–$1,000), possession of marijuana, and breaking and entering a motor vehicle to steal property ($200–$1,000).
The trial court sentenced him to 58–240 months in prison as a fourth-offense habitual offender for possession of burglar’s tools, plus 161 days for the other offenses with 161 days jail credit.
On March 12, 2009, a series of motor-vehicle thefts occurred in St. Joseph, Michigan, with smashed windows and stolen property; a surveillance video showed a man with a white van approaching a victim’s car.
Police located a white van and then searched defendant’s motel room under a warrant, finding property belonging to the theft victims and a small bag of marijuana; a window punch was found on his person.
Defendant challenged the admissibility of a victim’s wife’s testimony about car damage and stolen items as hearsay, asserting preservation issues.
The court addressed sufficiency of the burglary-tools evidence, interpreting “depository” to include motor vehicles, and considered Blakely-based arguments and mitigation factors on sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether hearsay evidence was improperly admitted	Jones argues error occurred in admitting testimonial evidence by the victim’s wife.	Defendant contends the wife’s testimony was hearsay and unpreserved.	No error; testimony based on witness’s own observations, not hearsay.
Sufficiency of evidence for possession of burglar’s tools	Prosecution showed tools used to burglarize vehicles.	Statute’s scope may not include motor vehicles.	Sufficient evidence; 'depository' includes motor vehicles; tools used for car burglaries.
Whether Blakely requires jury consideration for enhanced sentence	Blakely requires jury findings for sentence enhancements beyond statutory maximum.	Blakely applies and requires jury findings; sentence excessive.	Blakely does not apply in Michigan or to this sentence, which was based on prior convictions.
Whether the trial court failed to consider mitigating factors	Mitigating factors should have been considered under Blakely framework.	Court failed to consider mitigating factors.	No plain error; Blakely does not apply; court properly exercised discretion.

People v Jones, 468 Mich 345 (2003) (plain-error review for unpreserved claims)
People v Carines, 460 Mich 750 (1999) (plain-error standard and preservation of error)
Napier v Jacobs, 429 Mich 222 (1987) (plain-error review dicta on sufficiency)
People v Endres, 269 Mich App 414 (2006) (Blakely applicability to Michigan sentencing)
People v Claypool, 470 Mich 715 (2004) (Blakely and Michigan sentencing practices)
People v Drohan, 475 Mich 140 (2006) (sentencing and statutory interpretation)
People v Wilson, 265 Mich App 386 (2005) (Michigan appellate approach to sentencing discretion)
People v Lee, 447 Mich 552 (1994) (statutory interpretation guidance)
Brackett v Focus Hope, Inc, 482 Mich 269 (2008) (interpretation of depository concepts)
Patterson v, 428 Mich 502 (1987) (sufficiency of evidence standard)
Blakely v. Washington, 542 U.S. 296 (2004) (jury findings required for certain sentence enhancements)