DEFENDANT’S MOTION TO DISMISS

NOW COMES Defendant [Redacted], by and through his attorney Patrick A. Maizy, hereby moves to dismiss Count I - Malicious Destruction of Personal Property, MCL 750.377a(1)(c)(i) and Count II - Disturbing the Peace, MCL 750.170.

COUNT I – MALICIOUS DESTRUCTION OF PERSONAL PROPERTY, MCL 750.377A(1)(C)(I)

  1. That Defendant [Redacted] is currently being charged with Malicious Destruction of Personal Property, MCL 750.377a(1)(c)(i).

  2. That prosecution has failed to introduce evidence substantiating a claim that a Malicious Destruction of Personal Property, MCL 750.377a(1)(c)(i), in fact occurred, specifically that Defendant had the requisite malicious intent to commit said crime.

  3. That prosecution has failed to introduce evidence substantiating a claim that a Malicious Destruction of Personal Property, MCL 750.377a(1)(c)(i) in fact occurred, specifically that the value of the property damaged was greater than $200.

  4. That prosecution has failed to introduce sufficient evidence properly identifying Defendant [Redacted] as the perpetrator of said violation.

    WHEREFORE Defendant [Redacted] respectfully requests that this Honorable Court dismiss Count I – Malicious Destruction of Personal Property, MCL 750.377a(1)(c)(i).

    IN THE ALTERNATIVE Defendant [Redacted] respectfully requests that this Honorable Court issue a determination regarding the value of the property that is subject to Count I, specifically that said property is worth less than $200.

    COUNT II – DISTURBING THE PEACE, MCL 750.170

  5. That Defendant [Redacted] is currently being charged with Disturbing the Peace, MCL 750.170.

  6. That prosecution has failed to introduce evidence substantiating a claim that Disturbing the Peace, MCL 750.170 in fact occurred.

  7. That prosecution has failed to introduce sufficient evidence properly identifying

    Defendant [Redacted] as the perpetrator of said violation.

WHEREFORE Defendant [Redacted] respectfully requests that this Honorable Court dismiss Count II – Disturbing the Peace, MCL 750.170.

Dated: November 12, 2015

Respectfully submitted,

/s/ Patrick Maizy

Patrick Maizy (P79503)

Attorney for Defendant

(248) 388-8363

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS

Count I – Malicious Destruction of Personal Property,

MCL 750.377a(1)(c)(i)

FAILURE TO PROPERLY IDENTIFY DEFENDANT

The first issue is whether sufficient evidence exists identifying Defendant as the perpetrator of the alleged offense. Per information and belief, Prosecution solely intends to use evidence at trial contained within Case Report No.: [Redacted]. A substantial portion of evidence contained within said Case Report constitutes testimonial evidence. The use of testimonial evidence in a trial against Defendant [Redacted] constitutes an unconstitutional infringement upon said Defendant's Sixth Amendment Right to be Confronted by his Accuser. Upon a ruling that evidence in said report be suppressed based on Defendant's Sixth Amendment Right, prosecution has failed to introduce sufficient evidence to uphold a conviction against Defendant [Redacted].

INTENT

The second issue of contention is whether the Defendant acted with the requisite intent to uphold a claim of Malicious Destruction of Personal Property, MCL 750.377a(1)(c)(i). In this context, a showing of malice requires that Defendant 1) committed the act, 2) while knowing it to be wrong, 3) without just cause or excuse, and 4) intentionally, or 5) with conscious disregard of the known risks. In the case at bar, the case report indicates that the Defendant's actions did, in fact, have a cause, in that Defendant was attempting to collect an unpaid debt. Thus, Defendant did not possess the requisite malicious intent to uphold this claim.

Furthermore, in People v. Culp, 108 Mich. App. 452 (Mich. Ct. App. 1981), the Michigan Court of Appeals held that "a Defendant who voluntarily becomes so intoxicated as to be unable to form the specific intent to damage certain property … cannot be convicted of Malicious Destruction of Personal Property." According to the Case Report, Defendant [Redacted] had a Blood Alcohol Content level of .136. Thus, Defendant could not have formed the requisite specific intent to uphold a conviction for Malicious Destruction of Personal Property.

VALUE OF PROPERTY

The third issue of contention with regard to Count I relates to the value of the property destroyed. In People v. Hamblin, the Michigan Court of Appeals ruled that the victims out of pocket expense is not determinative of the value of the property. Hamblin, 224 Mich. App. 87 (Mich. Ct. App. 1997). Instead, the court in Hamblin held that the reasonable cost of repairs is what matters. Id. In the case at bar, the property at issue is the windshield for a 2001 Ford Taurus, and its license plate. The reasonable value of these items is less than $200, as evidenced by the attached exhibits. Therefore, Defendant cannot be charged with Malicious Destruction of Personal Property, MCL 750.377a(1)(c)(i), which requires the property be valued between $200 and $1000.

WHEREFORE Defendant Anthony Deshawn Hooks respectfully requests that this Honorable Court dismiss Count I – Malicious Destruction of Personal Property, MCL 750.377a(1)(c)(i).

IN THE ALTERNATIVE Defendant respectfully requests that this Honorable Court issue a determination regarding the value of the property that is subject to Count I, specifically that said property is worth less than $200.

Count II –Disturbing the Peace,

MCL 750.170

FAILURE TO PROPERLY IDENTIFY DEFENDANT

The first issue is whether sufficient evidence exists identifying Defendant as the perpetrator of the alleged offense. Per information and belief, Prosecution solely intends to use evidence at trial contained within Case Report No.: [Case Number Redacted]. A substantial portion of evidence contained within said Case Report constitutes testimonial evidence. The use of testimonial evidence in a trial against Defendant [Redacted] constitutes an unconstitutional infringement upon said Defendant's Sixth Amendment Right to be Confronted by his Accuser. Upon a ruling that evidence in said report be suppressed based on Defendant's Sixth Amendment Right, prosecution has failed to introduce sufficient evidence to uphold a conviction against Defendant [Redacted].

WHEREFORE Defendant [Redacted] respectfully requests that this Honorable Court dismiss Count II – Disturbing the Peace, [Statute Redacted].