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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, V RICKY J. BALLARD, Defendant-Appellant.

UNPUBLISHED December 20, 2011

No. 298986 Wayne Circuit Court LC No. 09-001994-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, V RICKY J. BALLARD, Defendant-Appellant. No. 299626 Wayne Circuit Court LC No. 09-001994-01

Before: SAAD, P.J., and STEPHENS and RONAYNE KRAUSE, JJ. PER CURIAM. Following a bench trial, defendant was convicted of larceny by conversion in an amount between $1,000 and $20,000, MCL 750.362, and practicing as a residential builder without a license, MCL 339.601(3) and (6)(a). In August 2009, he was sentenced to three years' probation with 52 weekends to be served in jail, and he was ordered to pay restitution of $61,000. Defendant subsequently violated his probation and was resentenced in May 2010 to another three-year term of probation but with 365 days to be served in jail. The court also reimposed the $61,000 restitution obligation. Defendant now appeals as of right in Docket No. 298986 from the judgment of sentence for his probation violation, and he appeals by delayed leave granted in Docket No. 299625 from the August 2009 judgment of sentence on his original convictions. We affirm. Defendant's convictions stem from a transaction regarding a residential construction project in Detroit. Gwendolyn Burton, the victim, testified that she met with defendant in November 2007 to discuss repairs to her house, which had sustained fire damage. The victim -1-

and defendant entered into a contract in November 2007, the victim gave defendant a check for $15,000 on November 12, 2007, and defendant commenced the repair work that month. After defendant had completed the first phase of the repairs, the victim gave defendant a second check for $12,500 on November 29, 2007. On December 14, 2007, the victim wrote defendant a third check in the amount of $5,700. The focus of the larceny charge involved a December 24, 2007, transaction between the victim and defendant. The victim testified that defendant called her on December 23, 2007, to advise that he needed a deposit for some windows that he had already measured. The victim met with defendant on December 24, 2007, they signed a contract for the windows, and the victim gave defendant a check for $5,000 "for the windows," which defendant was to purchase. The victim estimated that she subsequently called defendant "about fifty times" without success before she suffered a mild heart attack and was hospitalized in January 2008. During her hospitalization, she was able to contact defendant, who told her that he "just had to put the casing around the windows and they should be finished within a day or two." When the victim visited her home the first week in February 2008, she discovered that defendant had not installed the windows. The victim was unsuccessful in her attempts to contact defendant afterward, and he never installed the windows. Defendant testified that the $5,000 payment on December 24, 2007, was not for the windows alone, but rather represented a deposit for three contracts encompassing the purchase of kitchen cabinets, painting, and the balance for the windows,. Defendant conceded that, while he was responsible for buying and installing the windows, he did not order them. Defendant stated that he had spent the $5,000 to buy cabinets, pay his painters paint bill, and install glass block basement windows. According to defendant, after the victim was released from the hospital, she informed him that she wanted to get someone else to do the windows and he agreed to work out the credit and apply it toward other work that defendant performed for the victim.1 When asked why he had not refunded any money to the victim, he responded that "we never sat down and agreed to anything." Defendant denied that he ever told the victim that the windows were ordered or had arrived. Defendant initially challenges the sufficiency of the evidence supporting his larceny by conversion conviction. Defendant asserts that because the victim "conveyed both title and possession" of the December 24, 2007, check to him, he cannot be guilty of larceny by conversion. We review de novo a challenge to the sufficiency of the evidence. People v Solmonson, 261 Mich App 657, 661; 683 NW2d 761 (2004). When determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found
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Defendant specified that he had paid a company $2,880 to repair the victim's furnace and install new duct work, and also arranged for plumbing repairs, cleaning out fire-damaged materials inside the victim's garage, and replacing attic insulation, among other additional items of work the victim had requested.

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that the essential elements of the crime were proven beyond a reasonable doubt. The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict. The scope of review is the same whether the evidence is direct or circumstantial. Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime. [People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000) (internal quotations omitted).] "It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences." People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).2 This Court has summarized the requisite elements for establishing a larceny by conversion pursuant to MCL 750.362: (1) [T]he property at issue must have some value, (2) the property belonged to someone other than the defendant, (3) someone delivered the property to the defendant, irrespective of whether that delivery was by legal or illegal means, (4) the defendant embezzled, converted to his own use, or hid the property with the intent to embezzle or fraudulently use it, and (5) at the time the property was embezzled, converted, or hidden, the defendant intended to defraud or cheat the owner permanently of that property. [People v Mason, 247 Mich App 64, 72; 634 NW2d 382 (2001) (internal quotation and citations omitted). "[L]arceny by conversion occurs `where a person obtains possession of another's property with lawful intent, but subsequently converts the other's property to his own use.'" Id., quoting People v Christenson, 412 Mich 81, 86; 312 NW2d 618 (1981). In Mason, 247 Mich App at 73-79, this Court examined the issue of when legal title to money is given. In the five consolidated cases at issue in Mason, the defendant had entered into five contractual agreements with prospective purchasers of mobile homes, each of whom made substantial down payments. The defendant deposited those funds into a personal bank account or negotiated the instruments without ever obtaining or ordering the mobile homes. Id. at 66-69. With respect to the defendant's suggestion that the mobile home purchasers had surrendered the legal title of their down payments to him, the Court analyzed, in relevant part, as follows: [W]e think it plain under the circumstances of the five cases being appealed, including the contracts for sale, that each complainant intended to retain legal title to the down payment money, though not possession of it, until each complainant received the home each sought to purchase. It would make little sense for each of these complainants to intend to give their hard-earned money to Mason to keep irrespective of whether they ever received the home for

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See also People v Kanaan, 278 Mich App 594, 618-619; 751 NW2d 57 (2008) (describing the same standards applicable to review of a bench trial).

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which they bargained, especially with no contractual provision to that effect. . . . Read as a cohesive whole, each contract contemplated an exchange of goods (the home being purchased) and services (Mason's assistance as a dealer in completing that transaction) for each complainant's money. Without a completed transaction, or any negotiation for a purchase-sale in certain instances, Mason can hardly claim that he was entitled to keep even a portion of the money each complainant gave him, especially in the absence of any contractual language to that effect. [Id. at 74-75 (emphasis added).] The Court in Mason distinguished the circumstances of Christenson, 412 Mich 81, in which homeowners had "made progress payments to the defendant," Mason, 274 Mich App at 76, on the ground that the homeowners and the defendant [in Christenson] did not have an agreement concerning specific funds. In other words, had the defendant agreed to take the money the homeowners gave him only to pay the debts at issue, then he would have been guilty of larceny by conversion because he would have had possession of the money only for the purpose of giving it to these creditors, but used it for other purposes. The defendant, though in actual possession of the money, never would have obtained legal title to the money under those facts because he could not do with it as he wished, a limitation that generally does not exist for title owners of property. [Id. at 76-77 (emphasis added, footnotes and internal citation and quotations omitted).] The larceny charge against defendant stemmed from the December 24, 2007, check in the amount of $5,000, which the victim testified was intended for defendant's purchase of new windows for her house. According to the victim, she spoke to defendant the previous day, and he advised her that he had measured the dimensions of the windows and needed a deposit to order them. The testimony of the victim and defendant agreed that although the victim gave defendant the check, he never ordered the windows, contrary to his representations to the victim in January 2008. Viewed in a light most favorable to the prosecution, the evidence was sufficient to enable the trial court to find beyond a reasonable doubt that (1) the victim gave defendant only possession of the December 24, 2007, check, with the specific expectation that defendant would acquire and install windows with the money, and (2) when defendant neglected to apply any portion of the December 24, 2007, check to a window purchase, he wrongfully converted to his own use an amount of money in excess of $1,000. Mason, 247 Mich App at 72. The victim's testimony describing her many unsuccessful efforts to contact defendant, and defendant's lies to the victim when they finally spoke about his completion of the window installation, reasonably support the trial court's determination beyond a reasonable doubt that defendant "intended to

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defraud or cheat . . . [the victim] permanently of that property." Id.3 We thus reject defendant's argument that insufficient evidence supported his larceny by conversion conviction. Defendant additionally attacks the trial court's order of restitution, on the grounds that "the . . . court did not make detailed findings supported by a preponderance of the evidence and denied Mr. Ballard his right to a restitution hearing." "This Court reviews a restitution order for an abuse of discretion." People v Cross, 281 Mich App 737, 739; 760 NW2d 314 (2008). But "[w]hen the question of restitution involves a matter of statutory interpretation, this Court reviews the matter de novo." Id. "Crime victims retain both statutory and constitutional rights to restitution. Const 1963, art 1,

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