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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MARCUS ALEXANDER LEONARD, Defendant-Appellant.

UNPUBLISHED January 28, 2010

No. 289914 Oakland Circuit Court LC No. 2008-221274-FH

Before: Donofrio, P.J., and Meter and Murray, JJ. PER CURIAM. Defendant appeals as of right his jury trial conviction of attempted first-degree home invasion, MCL 750.92 and MCL 750.110a(2). Defendant also pleaded guilty to larceny over $200 but less than $1,000, MCL 750.356(4)(a). The trial court sentenced defendant as an habitual offender, fourth offense, MCL 769.12, to 52 months to 20 years' imprisonment for the attempted home invasion conviction and 198 days in jail for the larceny conviction and awarded restitution. Because the prosecutor's statements during closing argument were based on reasonable inferences from the evidence and, therefore, did not constitute plain error, we affirm defendant's convictions and sentences. However, because the prosecution did not adequately establish the amount of restitution, we vacate only the portion of the judgment of sentence requiring defendant to pay restitution of $1,241.92 and remand for further proceedings limited to the restitution amount. This appeal has been decided without oral argument pursuant to MCR 7.214(E). Defendant's convictions arise from an incident on May 10, 2008, when he went to the victim's home and attempted to gain entry. During the incident, defendant repeatedly knocked on the victim's door, asked for money, removed security cameras that were mounted outside the home, and eventually attempted to enter the home through a window. The police arrived before defendant was able to enter the home. According to the victim, four of her window screens were bent out at the corners. During a pat down search, the police found a "small folding box cutter or pocket knife" or "utility knife" in defendant's pocket. Four security cameras were missing from their mounts. The police recovered three of the cameras from defendant's car and the fourth camera was found in the victim's backyard. The police also recovered a kitchen knife under a bush in the front yard, five feet from where a police officer first observed defendant. According to the victim, the six-inch "chopping knife" did not come from her house. Although the grass had been freshly cut, there -1-

were no grass clippings or dew on the knife. After defendant was arrested, he told a police officer that he "was just trying to get his hundred dollars back and then . . . things got a little crazy and before he knew it he was trying to get in the windows." On appeal, defendant argues that he was denied a fair trial when the prosecutor stated during closing argument that, "if he didn't get that money, the situation could've been a lot worse," and that if defendant "ran into trouble he might have to get that money by force." Defendant contends that these statements were improper because they "reached beyond the evidence" and were intended to appeal to the emotions of the jury. Because defendant did not object to the prosecutor's arguments at trial, this issue is not preserved. Accordingly, we review this issue for plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Defendant specifically asserts that the prosecutor's remarks improperly implied that he might have used force against the victim if he had been successful in entering her house. A prosecutor may argue the evidence and draw reasonable inferences from the testimony. People v Kelly, 231 Mich App 627, 641; 588 NW2d 480 (1998). The challenged remarks were reasonable inferences from the evidence that defendant had forcefully attempted to gain entry for more than an hour and had a box cutter in his pocket, and the evidence that a six-inch knife, which did not belong to the victim, was found in the area where defendant was observed by a police officer. Although defendant argues that the remarks were "designed to get an emotional reaction from the jury," a prosecutor is "not required to state inferences or conclusions in the blandest terms possible." People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). Defendant has not shown plain error. Defendant also challenges the amount of restitution ordered in the judgment of sentence. This Court reviews a trial court's factual findings for clear error, and generally reviews the amount of restitution ordered for an abuse of discretion. People v Gubachy, 272 Mich App 706, 708; 728 NW2d 891 (2006). The presentence investigation report did not include any information from the victim regarding restitution, and indicated that she had not responded to efforts to contact her. At sentencing, however, the prosecutor informed the trial court that the victim had faxed a statement and was requesting restitution "for the cameras and for lost wages in the amount of $1,241.92. The breakdown is $540.96 for lost work time and $700.96 for the damage to the cameras and security system." Defense counsel challenged the amount the victim claimed for the cameras because the evidence indicated that they had been recovered and there was no indication that they were damaged. Defense counsel suggested, and the prosecutor agreed, that "we leave the amount to be determined later." In accordance with this suggestion, the trial court announced that restitution would be determined later, stating: You will pay whatever restitution is determined through the reimbursement division and the probation department. . . . Restitution is to be determined . . . . When the trial court issued the judgment of sentence, however, the judgment ordered defendant to pay restitution of $1,241.92, the original amount requested by the victim.

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Crime victims have a constitutional right to restitution. Const 1963, art 1,

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