            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 7, 2019
               Plaintiff-Appellee,

v                                                                  No. 344402
                                                                   Wayne Circuit Court
BRIAN JOSEPH BELL,                                                 LC No. 17-007020-01-FH

               Defendant-Appellant.


Before: M.J. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of receiving and concealing stolen
property valued between $1,000 and $20,000, MCL 750.535(3)(a). We vacate defendant’s
felony conviction because the prosecution failed to present any evidence of the value of the
stolen property, and thus failed to establish an essential element of the crime.

                                 I. FACTUAL BACKGROUND

        On the morning of July 22, 2017, Alex Koveleski discovered that the garage attached to
his residence and his Ford F-150 truck had been broken into at some point during the previous
night. A carpenter by trade, Koveleski stored various tools and equipment in his garage and
truck. After a quick inspection, Koveleski discovered that his cell phone—an iPhone 6—as well
as an assortment of his tools had been taken from both the truck and garage. Koveleski reported
the incident to the local police department. Koveleski was also able to activate the “Find my
iPhone” application on his phone, and that evening, Koveleski received two e-mails from the
application informing him that the phone had been activated at an address in Garden City and
then at a Metro PCS store in Westland. Koveleski passed this information on to police.

        The next day, Officer Jennifer Giannola spoke with Metro PCS employee Mahmoud
Ibraham. In response to Officer Giannola’s inquiries, Ibraham informed Officer Giannola that
defendant had visited the store the previous evening and attempted to sell an iPhone 6. When the
phone displayed a message from the “Find my iPhone” application, Ibraham refused to purchase
the phone and returned it to defendant. Ibraham provided a description of defendant to the police
and later identified defendant out of a photographic lineup.


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        Defendant was arrested on the basis of Ibraham’s identification and other information
received during the police investigation, and in a search of defendant’s vehicle, police discovered
Koveleski’s stolen phone. After being confronted with the evidence, defendant claimed to police
he had received the phone from another individual as payment for drugs. Defendant admitted he
knew the phone was stolen, but denied any involvement with the theft. The police investigation
did not discover any evidence placing defendant at Koveleski’s residence at the time of the theft;
nor was any of Koveleski’s stolen property—apart from the phone—discovered on defendant’s
person, in his car, or at his residence.

                                  II. STANDARD OF REVIEW

        We review challenges to the sufficiency of the evidence de novo. People v Lockett, 295
Mich App 165, 180; 814 NW2d 295 (2012). “Evidence is sufficient to convict a defendant when
a rational factfinder could determine that the prosecutor proved every element of the crime
charged beyond a reasonable doubt.” People v Pratt, 254 Mich App 425, 427; 656 NW2d 866
(2002). Under this standard, a reviewing court “examine[s] the evidence in a light most
favorable to the prosecution [and] resolv[es] all evidentiary conflicts in [the prosecution’s]
favor.” People v Ericksen, 288 Mich App 192, 196; 793 NW2d 120 (2010). A reviewing court
is also required “to draw all reasonable inferences and make credibility choices in support of the
jury verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). This deferential
standard is applied to both direct and circumstantial evidence, as “[c]ircumstantial evidence and
reasonable inferences arising from that evidence can constitute satisfactory proof of the elements
of a crime.” Id. (citation and quotation marks omitted). Further, “[i]t 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 of those inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d
158 (2002). Finally, questions of constitutional law are reviewed de novo. People v
Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).

                            III. SUFFICIENCY OF THE EVIDENCE

       Defendant argues that there was insufficient evidence presented at trial from which a jury
could have found defendant guilty of receiving and concealing stolen property valued at over
$1,000 but less than $20,000. We agree.

      For a defendant to be convicted of receiving and concealing stolen property, MCL
750.535(3)(a), the prosecution must prove:

       (1) the property was stolen; (2) the value of the property met the statutory
       requirement; (3) defendant received, possessed, or concealed the property with
       knowledge that the property was stolen; (4) the identity of the property as being
       that previously stolen; and (5) the guilty actual or constructive knowledge of the
       defendant that the property received or concealed was stolen. [Pratt, 254 Mich
       App at 427.]

Defendant does not assert that he did not receive the stolen iPhone 6, or that he was unaware it
was stolen. Rather, defendant asserts that the prosecution did not provide any evidence of the


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stolen property’s value at trial. This omission, argues defendant, leaves the second element of
the crime—regarding the value of the stolen property—unproven.

        It is axiomatic that “the prosecution is bound to prove the elements of the crime beyond
any reasonable doubt.” Nowack, 462 Mich at 400. Moreover, our Supreme Court has held that
“[p]roof of value” of stolen goods is a necessary element of the crime of receiving stolen
property. People v Kamin, 405 Mich 482, 496; 275 NW2d 777 (1979), overruled in part on other
grounds by People v Hendricks, 446 Mich 435; 521 NW2d 546 (1994). Thus, in order to sustain
a conviction under MCL 750.535(3)(a), the prosecution must demonstrate that the value of the
alleged stolen property is between $1,000 and $20,000. In determining value, courts employ the
fair market value test. Pratt, 254 Mich App at 428-429. Under the test, fair market value is “the
price that the item will bring on an open market between a willing buyer and seller” at the time
and place of the offense. Id. at 429 (quotation marks and citation omitted). The owner of the
stolen property can provide testimony about the property’s value, but the valuation cannot rely
on “personal or sentimental value.” Id. Rather, the valuation must be objective. Id.

        In this case, there was no evidence—subjective or objective—to allow the jury to make a
determination with respect to the value of any stolen property. At trial, Koveleski described the
majority of his property in general terms, providing categories that the stolen property fit into—
surveying tools, hand tools, personal tools, and tool pouches. The prosecution argues that the
value of the property can be inferred from Koveleski’s testimony about its type and use,
however, we believe this goes beyond what a reasonable juror could infer.1 Neither Koveleski
nor any other witness presented evidence identifying specific tools or equipment that had been
stolen, the stolen property’s age or condition, the amount Koveleski paid to purchase the stolen
property, the cost of replacing the stolen property, or even an estimation of the stolen property’s
value. The evidence simply did not identify any of the stolen tools or equipment with the
specificity sufficient for a jury to infer a fair market value.2




1
  The prosecution argues defendant was connected to the entirety of Koveleski’s stolen property
through an aiding and abetting theory presented to the jury at trial. However, even under such a
theory, the prosecution would have had to prove that “the crime charged was committed by . . .
defendant or some other person,” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627
(2010) (citation omitted), which would require proof that the stolen property’s value met the
statutory requirements. Thus, regardless of the theory of the case, that there was no evidence of
the value of any of the stolen property remains dispositive in this appeal.
2
  Koveleski authenticated a photograph showing tools similar to those stolen, but there was no
evidence provided indicating in what way the tools were similar, or the fair market value of the
similar tools. Similarly, in a police interview of defendant played for the jury, a police officer
states a “Hilti machine” was among the stolen property. However, there is no evidence offered
as to what model or type of “Hilti machine” was stolen, or its objective fair market value.




                                                -3-
        The only item of stolen property identified with any specificity—and the only piece of
stolen property found in defendant’s possession—was the iPhone 6, which Koveleski identified
through authenticated photographs that, at the very least, showed the phone’s age and condition.
We note that, particularly given the prevalence of smartphones, one could reasonably infer that
the phone at least had some value. Still, we conclude that there was not sufficient evidence to
establish that the phone was valued at greater than $1,000. And, given that no specific findings
with respect to the iPhone’s value were made and no evidence was presented, we are not inclined
to commandeer the role of the factfinder by holding that a conviction of a lesser included
offense—stolen property valued at less than $1,000—may stand. To do so would require this
Court to assign an arbitrary value to the phone where none was established at trial.

        The standard for sufficiency is low, but the prosecution’s failure to provide any evidence
of fair market value with respect to any of the stolen items fails to meet it. To sustain a
conviction, due process requires sufficient evidence to justify a finding of guilt beyond a
reasonable doubt. People v Breck, 230 Mich App 450, 456; 584 NW2d 602 (1998). The
prosecution failed to meet its burden of proving every element of the charged offense beyond a
reasonable doubt, and in so doing, violated defendant’s due-process rights. See Nowack, 462
Mich at 399-400 (discussing the prosecution’s burden).

      Defendant’s conviction and sentence for receiving and concealing stolen property valued
between $1,000 and $20,000 is vacated.

                                                            /s/ Michael J. Kelly
                                                            /s/ Karen M. Fort Hood
                                                            /s/ Brock A. Swartzle




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