Michigan Court of Appeals Holds No Restitution For Indirect Police Costs

On August 5th, 2014, the Michigan Court of Appeals held in a criminal case that defendants do not have to pay restitution for the indirect costs incurred by police when investigating a defendant's criminal acts.

In People v Gaines, Docket No. 310367, the Michigan Court of Appeals addressed the issue of whether a trial court may order restitution to be paid by defendant for indirect costs incurred by police investigating criminal activity.

The Court first recited the facts of the case.

The cases against defendant arose out of his interactions with AW, CP, and MM in his senior year of high school (2008-2009) and the year following his graduation, when he was 18 or 19 years old. In defendant’s senior year, he met AW. AW testified that she really got to know defendant during the 2009 track season, when she was 15 years old. They both attended a bonfire, which defendant testified was in May 2009. According to AW, they left the bonfire, went to defendant’s parents’ house, and had [']consensual['] sexual intercourse in defendant’s basement bedroom. Defendant claimed they only [']made out.[']

MM met defendant after defendant had graduated in October 2009. MM was 13 or 14 years old. MM testified that she and defendant exchanged text messages, and that, at first, their text messages were not personal. MM testified that in November or December 2009, defendant asked for photographs of MM, and that, later, defendant asked for photographs with her clothes off. MM explained she first sent photographs of her buttocks and stomach, but when defendant asked for photographs of her breasts and vagina, she sent them.

The record demonstrated that MM also visited defendant’s parents’ house on several occasions. MM testified that, in May 2010, defendant [']fingered['] MM in his basement by putting his finger in her vagina for three to five minutes. About a week later, MM asked defendant to hang out. He picked up MM and her friend, Sarah Cramer. MM testified that defendant digitally penetrated her when Cramer went to the bedroom to talk on the phone. Although Cramer came out of the bedroom while defendant was digitally penetrating her, MM testified that she did not think Cramer knew what was happening because defendant’s back was to Cramer and the lights and television were off. MM testified that she told Cramer what defendant did to her after they got home. Although Cramer told the police that MM said [']nothing happened,['] Cramer testified at trial that she was afraid of getting in trouble and MM actually said that defendant [']fingered['] her. MM testified that, around June 10, 2010, she visited defendant’s parents’ house again and he digitally penetrated her on his bed. Defendant offered contrary testimony from his friend, who testified that he was present during this visit and never left MM and defendant alone.

Although he never tried to have sexual intercourse with MM, defendant texted MM, [']I wanna f*** you if you weren’t so young.['] According to MM, defendant also told her not to tell others about their relationship because he knew their age difference was [']illegal.[']

Defendant met and started texting CP in the spring of 2010 when she was 14 years old and on the track team. Defendant had graduated, but was practicing at the high school track to prepare for college track tryouts. At the same time, he helped some students, including CP, on the track team. CP testified that defendant asked for naked photographs,4 which she sent from about May 2010, to July 2010. CP testified that, if she refused to send photographs, defendant would threaten not to talk to her or help her with track. CP also testified that defendant told her not to tell anyone what was happening.

In the summer of 2010, MM’s father discovered her communications with defendant and contacted the police. In August 2010, Detective Jason Wise interviewed defendant. Detective Wise testified that defendant initially denied that MM sent him graphic photographs, but after the detective showed him the photographs on a computer, defendant admitted she sent him photographs of her buttocks, lower half, and breasts. Detective Wise testified that defendant also admitted that he used his finger to penetrate MM’s vagina on at least two occasions.

Throughout trial, defendant testified that he did not have sexual intercourse with any of the victims. Contrary to Detective Wise’s testimony, defendant specifically denied penetrating MM with his finger. Defendant testified that he only told MM to send him photographs that she had already sent to at least two other boys. Similarly, defendant testified that CP suggested sending him pictures first and he merely persisted in asking for them afterward.

The Court's analysis of the restitution issue followed.

Last, defendant argues that the trial court erred by ordering him to pay restitution for the general cost of investigating and prosecuting criminal activity. We agree. Although defendant failed to preserve this issue, this Court may review the trial court’s restitution award for plain error affecting substantial rights. People v Buie, 285 Mich App 401, 407; 775 NW2d 817 (2009).

Restitution is afforded both by statute and by the Michigan Constitution. Const 1963, art 1, § 24; People v Grant, 455 Mich 221, 229; 565 NW2d 389 (1997). The purpose of restitution is to [']allow crime victims to recoup losses suffered as a result of criminal conduct.['] Id. at 230. The Crime Victim’s Rights Act, MCL 780.751 et seq., determines whether a sentencing court’s restitution order is appropriate. People v Crigler, 244 Mich App 420, 423; 625 NW2d 424 (2001). [People v Newton, 257 Mich App 61, 68-69; 668 NW2d 504 (2003).]

Under MCL 780.766(1), victims entitled to restitution include a [']governmental entity . . . that suffers direct physical or financial harm as a result of a crime.['] (Emphasis added.) In Crigler, 244 Mich App at 423, this Court determined that the loss of buy money paid by a narcotics enforcement team for controlled substances constituted direct financial harm resulting from the defendant’s crime. Id. at 426-427. This Court noted:

The loss of buy money is qualitatively unlike the expenditure of other money related to a criminal investigation, because it results directly from the crime itself; that is, the money is lost when it is exchanged for the controlled substance. The payment of salaries and overtime pay to the investigators, the purchase of surveillance equipment, the purchase and maintenance of vehicles, and other similar expenditures are [']costs of investigation['] unrelated to a particular defendant's criminal transaction. These expenditures would occur whether or not a particular defendant was found to be engaged in the sale of controlled substances. [Id. at 427.]

In Newton, this Court relied on the dicta in Crigler that the payment of costs of the investigation a crime, such as salaries and equipment, would occur regardless whether a particular defendant committed the crime and therefore could not be recouped through restitution. 257 Mich App at 69-70. Therefore, the Newton panel determined that the $2,500 the defendant was ordered to pay the sheriff’s department as reimbursement for its cost in the investigation of the defendant was plain error affecting the defendant’s substantial rights. Id. at 70.

Here, the trial court ordered defendant to pay restitution for officer investigation (24 hours for $864), a forensic analyst (102 hours for $3,672), and disks ($6.64). These costs are comparable to costs of the investigation in Newton and distinguishable from the direct cost of the buy money paid in Crigler. Therefore, the trial court erred by ordering restitution and we vacate that portion of the judgment of sentence ordering $4,542.64 in restitution.