For a building to be a place in which one is capable of living, the building must provide at a minimum for the necessities which a person needs regularly, such as heat, light, sanitation and water. See People v Foster, 103 Mich App 311, 315-316; 302 NW2d 862 (1981) in which, based on all of the radiators, the hot water heater, and the toilet having been removed; the windows in the building having been broken out; the back door having been kicked in; and the utilities having been discontinued; this Court found that "[i]t is manifestly evident from the uncontradicted testimony that the house had been abandoned prior to the burning, and was not fit habitation when the fire occurred." This Court further noted that "[w]hile substantial restorative work could have made the structure habitable, at the time of the fire it was a mere shell of a house and not a dwelling."
See People v Harris, 495 Mich 120, 136; 845 NW2d 477 (2014), quoting Black's Law Dictionary (9th ed), p 1042. A defendant cannot be convicted of malicious destruction if his or her destruction or injury was authorized by the owner of the property. People v Foster, 103 Mich App 311, 320; 302 NW2d 862 (1981). Here, the trial court determined that because Yousif had not complained about the damage done to the property, the case should be dismissed.
See 1931 PA 328. The Court of Appeals declined to follow Clemons, stating that People v Foster, 103 Mich. App. 311; 302 N.W.2d 862 (1981), is indistinguishable from the present case and is better reasoned than Clemons. We agree.
Far from being abandoned, the house was in the process of renovation for future occupancy as a dwelling with daily visits by the owner. People v. Foster, 103 Mich. App. 311, 302 N.W.2d 862 (1981), and People v. Reed, 13 Mich. App. 75, 163 N.W.2d 704 (1968), suffer from the same deficiencies as support for defendant's argument. In Foster, the owner had abandoned the house which was not fit for habitation, and had no further intention to occupy it. Foster, 103 Mich. App. at 315, 302 N.W.2d at 864.
To sustain a malicious destruction of a building conviction, the prosecution must show that defendant willfully and maliciously destroyed the real property of another without authorization. See People v Foster, 103 Mich App 311, 320; 302 NW2d 862 (1981) (discussing jury instructions for a malicious destruction of real property offense); MCL 750.380. This Court has held "that in order to commit the crime of malicious destruction of property, a defendant must have the intent to injure or destroy the property."
There is a conflict among panels of this Court concerning this issue. In People v Foster, 103 Mich. App. 311; 302 N.W.2d 862 (1981), a panel of this Court held that burning an uninhabitable building was not arson. In People v Clemons, 184 Mich. App. 726; 459 N.W.2d 40 (1990), a different panel came to the opposite conclusion.
On the facts of this case, the insured property set ablaze by defendant was also a dwelling house. See Peoplev Losinger, 331 Mich. 490, 502; 50 N.W.2d 137 (1951); People v Foster, 103 Mich. App. 311; 302 N.W.2d 862 (1981), lv den 411 Mich. 980 (1981); People v Reed, 13 Mich. App. 75, 79; 163 N.W.2d 704 (1968). Defendant admitted that he lived in the house.
The term "dwelling house" has not been precisely defined by either case law or statute. See People v Losinger, 331 Mich. 490; 50 N.W.2d 137 (1951) (arson), People v Winhoven, 65 Mich. App. 522; 237 N.W.2d 540 (1975), lv den 397 Mich. 872 (1976) (breaking and entering an occupied dwelling), People v Foster, 103 Mich. App. 311; 302 N.W.2d 862 (1981), lv den 411 Mich. 980 (1981) (arson). Thus, in similar cases, it has been said that whether a particular structure constitutes a dwelling house is a question of fact. Compare, People v Reynolds, 31 Mich. App. 110; 187 N.W.2d 524 (1971), lv den 384 Mich. 840 (1971).
Id., 79. A similar result was reached in People v Foster, 103 Mich. App. 311, 316; 302 N.W.2d 862 (1981), lv den 411 Mich. 980 (1981). It is undisputed that the house in question was unoccupied at the time of the second fire.
Those cases differ from the subject house and our precedent in meaningful ways, including that the structures in those cases either had obvious indicia of disrepair signaling an intent to abandon, or the owner's intent did not control. See Fillman v. State, 251 A.2d 557 (Del. 1969) (observing that the structure was dilapidated; the windows were broken; and its one door was left open and it had no furniture); People v. Reeves, 528 N.W.2d 160, 162 (Mich. 1995), superceded on other grounds by statute as stated in People v. Nowack, 614 N.W.2d 78 (2000) (noting that the siding had been removed from the house leaving only a wood frame and that the foundation had been weakened by the removal of bricks); People v. Foster, 302 N.W.2d 862, 864 (Mich. Ct. App. 1981) ("The uncontradicted testimony of . . . the owner of the building, indicates that she no longer wanted the house and had unsuccessfully sought to deed the property back to the mortgage company. . . . The windows in the building had been broken out, and the back door was kicked in."); People v. Reynolds, 187 N.W.2d 524, 525 (Mich. Ct. App. 1971) (per curiam) (affirming the petitioner's conviction on a sufficiency of the evidence challenge and observing that the jury had been instructed properly that a building could "lose its status as a dwelling house by reason of non-occupancy and disrepair"; that "the condition of this disrepair must be such as would communicate to an observer an apparent intent of the owner to abandon its function as a place in which people live"; and that the "undisclosed intention of the owner does not control"); People v. Reed, 163 N.W.2d 704, 705-06 (Mich. Ct. App. 1968) (observing that the house was dilapidated, vandalized, and boarded up to prevent ingress an