                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 13, 2018
               Plaintiff-Appellee,

v                                                                   No. 338654
                                                                    Wayne Circuit Court
JAMIE THOMAS ADAMS,                                                 LC No. 16-007327-01-FH

               Defendant-Appellant.


Before: SWARTZLE, P.J., and JANSEN and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his bench-trial convictions of larceny of a firearm, MCL
750.357b, being a felon in possession of a firearm (felon in possession), MCL 750.224f, and
carrying a firearm during the commission of a felony (felony firearm), MCL 750.227b.
Defendant was also charged with first-degree home invasion, MCL 750.110a(2), and found not
guilty of that crime. Defendant was sentenced as a fourth habitual offender, MCL 769.12, to
concurrent prison terms of three to ten years for his felon-in-possession and larceny-of-a-firearm
convictions. Defendant was also sentenced to two years of imprisonment for his felony-firearm
conviction, to be served consecutive to the sentences for his other convictions. We affirm
defendant’s convictions and sentences, but remand for further proceedings because the trial court
did not establish a factual basis for the court costs it imposed.

                                       I. BACKGROUND

        This case results from a break-in that occurred at the home of Keith Kinder (Keith) and
Pam Kinder on Memorial Day 2015. The Kinders left home that morning, and returned between
10:00 p.m. and 10:30 p.m. to find the back door of their home kicked in. A safe was taken from
the master bedroom containing a stainless-steel 9 mm handgun, two hard drives, a high-school
class ring, valuable collectible coins, and some paperwork. George Sanders (George) lived next
door to the Kinders; defendant was dating George’s daughter, Tashanda Mann, and the couple
lived with George.

        Defendant had several alibi witnesses testify at trial regarding his whereabouts on the day
of the break-in, but the trial court found these witnesses not credible. A day or two after the
break in, Jonathan Sanders (Jonathan), George’s son, received a telephone call from defendant
offering to sell him a stolen nickel-plated 9 mm handgun. A day or two after that, Jonathan

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learned of the break-in at the Kinders’ home and called defendant about purchasing the gun, but
defendant informed him that he had sold it for $350. Cigarette butts were collected near the
Kinders’ broken door, and the DNA tested was a match to defendant.

        The trial court found defendant guilty of larceny of a firearm, felon in possession, and
felony firearm. The trial court found defendant not guilty of first-degree home invasion, noting
that defendant’s conduct did not meet the elements of that crime because at the time defendant
broke into the Kinders’ home, defendant was not armed and there was no other person lawfully
present therein. The trial court sentenced defendant as noted above and assessed court costs in
the amount of $1,300.00.

       This appeal followed.

                                         II. ANALYSIS

A.     Sufficiency of the Evidence

        On appeal, defendant challenges the sufficiency of the evidence supporting his conviction
for larceny of a firearm. Challenges to the sufficiency of the evidence are reviewed de novo.
People v Solloway, 316 Mich App 174, 180; 891 NW2d 255 (2016). The reviewing court must
determine if, viewing the evidence in the light most favorable to the prosecution, a rational trier
of fact could find that the prosecution proved each essential element of the crime beyond a
reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). A trier of fact
may consider circumstantial evidence and all reasonable inferences that evidence creates.
Solloway, 316 Mich App at 180-181. “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 Flick, 487 Mich 1, 24-25; 790 NW2d 295 (2010)
(cleaned up).

        Sufficient Evidence Supports Defendant’s Larceny-of-a-Firearm Conviction. First,
defendant argues that there was insufficient evidence to convict him of larceny of a firearm.
MCL 750.357b provides: “A person who commits larceny by stealing the firearm of another
person is guilty of a felony.” It is undisputed that someone entered the Kinders’ home without
permission and stole Keith’s handgun, along with other items of value. Defendant argues that
there is no direct evidence establishing that he took Keith’s handgun. Nonetheless,
“circumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime.” People v Lee, 243 Mich App 163, 167-168; 622
NW2d 71 (2000).

         Keith testified that the stolen handgun was a stainless-steel 9 mm handgun. Jonathan
testified that on the same day of the break-in, or the day after, he was contacted by defendant
with an offer to buy a nickel-plated 9 mm handgun. As a gun owner, Keith testified that it would
be possible for someone to confuse stainless steel with nickel plating. Defendant indicated to
Jonathan that this gun was “hot,” i.e., stolen. After Jonathan learned of the break-in at the
Kinders’ home and the taking of a gun, he called defendant to inquire about the gun that
defendant was selling, and defendant said that it was already sold. Defendant was living next
door to the Kinders at George’s house at the time. The stipulated DNA evidence of the cigarette

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butts located near the Kinders’ broken door matched defendant’s DNA. This evidence placed
defendant at the scene of the break-in around the time of the break-in. Finally, the trial court
found the alibi testimony of defendant’s witnesses not credible. Viewed in a light most favorable
to the prosecution, the circumstantial evidence was sufficient to convict defendant of larceny of a
firearm.

        The Verdicts Were Not Legally Inconsistent. Next, defendant argues that the trial court’s
verdicts were inconsistent because the trial court found defendant guilty of larceny of a firearm,
but not guilty of home invasion. A “trial judge sitting as the trier of fact may not enter an
inconsistent verdict.” People v Ellis, 468 Mich 25, 26; 658 NW2d 142 (2003) (cleaned up). A
verdict is inconsistent when the factual findings “cannot be rationally reconciled.” Id. at 27.

         Defendant argues that, because the Kinders testified that Keith’s handgun was stolen
during the break-in, the trial court could not simultaneously find defendant guilty of larceny of a
firearm and not guilty of home invasion. Defendant’s argument, however, ignores the elements
of first-degree home invasion. As relevant to the circumstances of this case, to find defendant
guilty of first-degree home-invasion, the prosecution had to prove that defendant entered the
Kinders’ home without permission with the intent to commit a larceny therein and while “armed
with a dangerous weapon” or while another person was lawfully present in the dwelling. MCL
750.110a(2). In other words, defendant’s guilt of larceny of a firearm is a necessary predicate
but is insufficient on its own to find defendant guilty of first-degree home invasion. Rather, the
prosecution was required to prove defendant’s guilt of larceny of a firearm and the fact that the
larceny was committed either while defendant was armed with a weapon or while another person
was lawfully inside the Kinders’ home.

        The record confirms that no one was lawfully inside the home at the time of the break-in.
Moreover, the trial court found that defendant did not enter the home with a weapon and that
defendant did not know that a gun was in the safe until after he had stolen it. Thus, the trial court
found that defendant was not armed during the commission of the break-in and defendant has not
challenged this finding on appeal. Therefore, despite the record showing that defendant was in
fact the perpetrator of the break-in, the trial court did not render an inconsistent verdict by
finding defendant guilty of larceny of a firearm and not guilty of first-degree home invasion.

B.     Consecutive Sentencing

       Defendant next argues that the trial court erred by ordering his sentence for felony-
firearm to be served consecutive to his sentences for both his larceny-of-a-firearm and felon-in-
possession convictions. According to defendant, the felony-firearm sentence could run
consecutive only to his sentence for felon-in-possession, not his sentence for larceny-of-a-
firearm. Because defendant did not raise this issue “at sentencing, in a proper motion for
resentencing, or in a proper motion to remand filed in the court of appeals,” MCR 6.429(C), we
review it for plain error affecting substantial rights, People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999).

       Defendant correctly notes that a sentence for felony firearm may only run consecutive to
the sentence imposed for a designated underlying felony. People v Clark, 463 Mich 459, 463-
464; 619 NW2d 538 (2000). Defendant then argues that the designated felony underlying his

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felony-firearm conviction was his felon-in-possession conviction, not his larceny-of-a-firearm
conviction. Thus, according to defendant, his sentence for felony firearm could only run
concurrent to his sentence for felon-in-possession.

       The prosecuting attorney, however, retains discretion, in appropriate cases, to designate
multiple underlying offenses in the complaint to support the felony-firearm conviction. Id. at
464 n 11. In such a case, the felony-firearm conviction may run consecutive to multiple
underlying felonies.

        In the complaint in this case, the prosecutor designated both felon in possession and
larceny of a firearm as the felonies underlying defendant’s commission of felony firearm.
Defendant was found guilty of both predicate felonies and guilty of felony-firearm, and the trial
court held that defendant’s felony-firearm sentence would run consecutive to both predicate
felonies. The record supports that defendant committed both underlying felonies while in the
possession of a firearm. Thus, the trial court did not err by ordering defendant’s sentence for
felony firearm be served consecutive to his sentences for felon in possession and larceny of a
firearm.

C.     Court Costs

        Next, defendant argues that the trial court abused its discretion by imposing “excessive”
court costs without establishing whether there was a reasonable relationship between the costs
imposed and the actual costs incurred. We review this unpreserved issue for plain error affecting
defendant’s substantial rights. Carines, 460 Mich at 763-764; People v Konopka (On Remand),
309 Mich App 345, 356; 869 NW2d 651 (2015). The trial court possesses the authority to order
a defendant to pay reasonable court costs. Konopka, 309 Mich App at 358. These costs need not
be separately calculated, but the trial court must “establish a factual basis” for the costs imposed.
Id. at 359.

        The trial court ordered defendant to pay $1,300 in court costs. In doing so, the trial court
stated, “There’s to be a $204.00 state minimum cost, a $130.00 Crime Victim’s assessment,
$1,300.00 in court costs.” The trial court did not explain its reasoning further. The prosecutor
argues on appeal that the trial court’s imposition of $1,300 in court costs is consistent with the
State Court Administrative Office’s (SCAO) calculation that the average court cost for a felony
case in the Third Circuit is $1,302. While the values are indeed similar, there is no indication in
the record that SCAO’s calculations were the basis for the costs imposed. Thus, no factual basis
has been established for the trial court’s imposition of costs. “Without a factual basis for the
costs imposed, we cannot determine whether the costs imposed were reasonably related to the
actual costs incurred by the trial court.” Id. at 359-360 (cleaned up). Thus, defendant is entitled
to an opportunity to “challenge the reasonableness of the costs imposed.” Id. at 360. We
therefore remand for the trial court to establish a factual basis for the $1,300 court costs it
imposed.

D.     Restitution

       Lastly, defendant argues that the trial court abused its discretion when it ordered
defendant to pay $2,700 in restitution. Because defendant did not specifically object to the

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amount of restitution at sentencing, we review the trial court’s order of restitution for plain error
affecting defendant’s substantial rights. People v Gaines, 306 Mich App 289, 322; 856 NW2d
222 (2014); People v Newton, 257 Mich App 61, 68; 665 NW2d 504 (2003).

       Crime victims have a constitutional and statutory right to restitution. Const. 1963, art 1,
§ 24; MCL 780.751 et seq.; People v Gubachy, 272 Mich App 706, 708; 728 NW2d 891 (2006).
“The [Crime Victim’s Rights Act (CVRA)] provides that if a felony . . . results in the loss of a
victim’s property, the trial court may order the defendant to pay the victim, as restitution, the
value of the property that was lost.” Gubachy, 272 Mich App at 708. “Restitution encompasses
only those losses that are easily ascertained and are a direct result of defendant’s criminal
conduct.” Id. The burden is on the prosecution to demonstrate the amount of the victim’s loss
by a preponderance of the evidence. Id. To determine the proper amount of restitution, the
sentencing court “shall consider the amount of loss sustained by the victim, the financial
resources and earning ability of the defendant, the financial needs of the defendant and the
defendant’s dependents, and such other factors as the court deems appropriate.” People v
Avignone, 198 Mich App 419, 422; 499 NW2d 376 (1993).

        At sentencing, the prosecutor requested $2,700 in restitution. Defense counsel did not
challenge that amount, but rather, requested documentation supporting that amount, noting, “not
that I don’t think that it’s a proper number.” The prosecutor agreed to provide defense counsel
with the documentation within 30 days, and the amount of restitution was set at $2,700 pending
any issues. The prosecutor emailed the documentation to defense counsel and advised defense
counsel to inform him if defendant wanted a contested-restitution hearing. The prosecutor did
not receive a response. Consistent with the documentation, the prosecutor filed a motion to
amend the judgment to set restitution at $2,577.93. Defendant did not file an answer to the
prosecutor’s motion. Because there was no dispute regarding the restitution amount, the trial
court entered an amended judgment of sentence setting the restitution at $2,577.93.

        Thus, the record makes clear that defendant did not contest the restitution amount, though
he was provided the opportunity to do so. When there is no dispute regarding the restitution
amount, the trial court may award restitution without making a separate factual finding on the
record. People v Grant, 455 Mich 221, 233-234, 243; 565 NW2d 389 (1997). Under the
circumstances, defendant’s failure to challenge the restitution amount precludes him from
establishing plain error affecting his substantial rights.

                                       III. CONCLUSION

        We remand this case to the trial court to provide defendant an opportunity to challenge
the reasonableness of the court costs the trial court imposed. In all other respects, the trial
court’s judgment is affirmed. We do not retain jurisdiction.



                                                              /s/ Brock A. Swartzle
                                                              /s/ Kathleen Jansen
                                                              /s/ Colleen A. O'Brien


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