PEOPLE OF MI V DUSTIN JOHN KOSIK (Authored Opinion)

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION November 12, 2013 9:05 a.m. Plaintiff-Appellee, v No. 312518 Bay Circuit Court LC No. 12-010076-FH DUSTIN JOHN KOSIK, Defendant-Appellant. Before: MURRAY, P.J., and DONOFRIO and BOONSTRA, JJ. BOONSTRA, J. Defendant appeals by right from his convictions for unlawful imprisonment, MCL 750.349b, and assault and battery, MCL 750.81(1). Defendant was sentenced as a third habitual offender, MCL 769.11, to a term of 106 months to 30 years imprisonment for unlawful imprisonment, and 93 days for assault and battery. We affirm. I. PERTINENT FACTS AND PROCEDURAL HISTORY On February 2, 2012, defendant entered the shoe store where the victim worked. The victim was present with another coworker. Defendant was ostensibly looking for dress shoes, but the store did not have defendant s size in the style of shoe he wanted. The victim print[ed] off a little slip that said all the different stores that had that select shoe on it, and then [she] handed that to defendant. The victim s coworker was preparing to take her break at the time and had her jacket and purse with her. Defendant left the store. Shortly thereafter, the coworker left to take her break. Defendant returned to the store after maybe five minutes. The victim testified that defendant asked [her] if [she] could call over to the store that the shoes were located at. And he asked [her] to go over to the actual shoes to double-check to make sure that they were the right shoes that he was looking for. The victim went over to the shoes, knelt down, pulled out the box of the particular shoe defendant wanted, and called another store on a cordless phone to verify that it had the shoe in stock. The victim testified that once she stood up, defendant lunged towards [her] and grabbed [her], and turned [her] around. [H]e was standing a little bit behind me, she testified, and he had to come at me and grab me, and put his arm all the way around me, so it d be all the way around my far right side, and my left arm would be up against him. -1- The victim testified that defendant took the phone from her and told [her] to keep walking. The victim testified that defendant led her into the conference room. The victim testified that as defendant led her into the conference room, he asked whether there were any security cameras in the store. She told him that she did not know. The victim testified that defendant closed the door after he led her into the room. She further testified that a person in the main area of the store would not be able to see into the conference room if the door was shut, and that the conference room had no windows. When asked whether there were any doors leading out of the conference room, the victim responded, Not into the conference room. Once you go into the very back room, there s an emergency exit there. The victim testified that defendant was [p]robably about an arm s distance away while they were in the conference room. The victim testified that once they were in the conference room, defendant attempted to convince her that he was joking. He asked the victim not to tell anyone about this and said he was just kidding. Defendant then left the store and the victim called 911. Defendant was apprehended by police shortly thereafter. During jury deliberations, the jury sent out a note asking Does a secret location remain secret if there is an exit for a victim to leave (behind her.). The trial court reinstructed the jury on the elements of unlawful imprisonment, stating, That is all I can tell you. It is for you to decide as to both of those questions. Following sentencing, defendant filed a motion for judgment of acquittal or for a new trial or for resentencing, raising most of the points he presents in the present appeal. The trial court found that none of the arguments merited relief. This appeal followed. II. SUFFICIENCY OF THE EVIDENCE/GREAT WEIGHT OF THE EVIDENCE Defendant first argues that the evidence presented at trial was insufficient to support his conviction for unlawful imprisonment. We disagree. We review a defendant s challenge to the sufficiency of the evidence de novo. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). However, we do not interfere with the factfinder s role of determining the weight of evidence or the credibility of witnesses. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748, amended 441 Mich 1201 (1992). It is for the trier of fact rather than this Court to determine what inferences can be fairly drawn from the evidence and to determine the weight to be accorded to the inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). A prosecutor need not negate every reasonable theory of innocence, but must only prove his own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defendant provides. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). Circumstantial evidence and the reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of the crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). We resolve all conflicts in the evidence in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). -2- MCL 750.349b provides in pertinent part: (1) A person commits the crime of unlawful imprisonment if he or she knowingly restrains another person under any of the following circumstances: * * * (b) The restrained person was secretly confined. * * * (3) As used in this section: (a) Restrain means to forcibly restrict a person s movements or to forcibly confine the person so as to interfere with that person s liberty without that person s consent or without lawful authority. The restraint does not have to exist for any particular length of time and may be related or incidental to the commission of other criminal acts. (b) Secretly confined means either of the following: (i) To keep the confinement of the restrained person a secret. (ii) To keep the location of the restrained person a secret. Defendant first argues that the evidence did not show that the victim was confined. Defendant further argues that any confinement was not secret. The statute does not provide a definition for confine. Our Supreme Court has stated that secret confinement means the deprivation of the assistance of others by virtue of the victim s inability to communicate his predicament. People v Jaffray, 445 Mich 287, 309; 519 NW2d 108 (1994). In People v Railer, 288 Mich App 213, 215-216, 218; 792 NW2d 776 (2010), this Court found that the victim was confined where her boyfriend forced her into her car, drove her to various locations, beat her severely, and took her car keys and phone away from her and told her not to disclose her location when she answered a call from her sister. This Court found that the victim had been confined even though the car had been parked twice, because the victim dared not leave while in defendant s presence . . . . Id. at 218. In this case, there was sufficient evidence presented for a rational jury to find both that defendant confined the victim, and that the confinement was secret. The victim was taken against her will into a conference room. She was held there in an enclosed area that was not visible to anyone who may have been passing by or in the store. Defendant was standing in front of the door to the conference room. If the victim had tried to escape, defendant was within arm s reach of her and could have prevented her from doing so. The victim testified that she was frightened by defendant. Viewing the evidence in this light, there was sufficient evidence that defendant had restricted the victim s movement within the bounds of the conference room. Defendant also argues that the victim was not secretly confined because the incident was too brief in duration. This argument miscomprehends the meaning of confinement, as well as -3- what is required for a confinement to be secret. Whether a state of being constitutes secret confinement is generally independent from its duration. See People v Jaffray, 445 Mich 287, 308; 519 NW2d 108 (1994). Further, the record shows that the victim was moved to a location outside the view of others, and was confined and restricted within the bounds of the conference room for a significant period. Whether and when defendant chose to release the victim is immaterial to whether there was secret confinement. Defendant s argument that he did not keep the victim s confinement or the location of her confinement secret because of the brief duration of the confinement fails for the same reason. Defendant next argues that the circumstances of the confinement were not sufficiently egregious to satisfy the elements of unlawful imprisonment. Defendant contends that the victim could have been discovered if an employee or customer had come in and walked into the conference room and that the victim could have escaped from the conference room. Defendant argues further that he did not bind the victim, gag her, lock doors, or threaten her. Nothing in the statute requires a certain level of difficulty of discovery or escape. Secret confinement means the deprivation of the assistance of others by virtue of the victim s inability to communicate his predicament. Jaffray, 445 Mich at 309. Viewing the evidence in the light most favorable to plaintiff, the victim was unable to communicate her predicament. Defendant waited until the victim s co-worker left on her break to return to the store. The store was empty when defendant came back. Defendant forcefully grabbed the victim, led her into a conference room, and closed the door behind him. The room had no windows. The victim was in an enclosed area not visible to anyone who may have walked by or came into the store. Defendant was standing in front of the door to the conference room. Defendant took the phone away from the victim so she could not call for help. Given these circumstances, a rational jury could find that the victim was deprived of the assistance of others by virtue or her inability to communicate her predicament. We find that the evidence was sufficient to support defendant s conviction. Similarly, we find that the verdict was not against the great weight of the evidence, and that the trial court did not err in failing to grant defendant a new trial. A trial court s determination that a verdict was not against the great weight of the evidence is reviewed for abuse of discretion. People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008). A trial court may grant a motion for a new trial based on the great weight of the evidence only if the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand. Id. An abuse of discretion occurs . . . when the trial court chooses an outcome falling outside [the] principled range of outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). Defendant raises essentially the same arguments as his challenge to the sufficiency of the evidence, which we reject for the same reasons. Additionally, defendant alleges that the jury s note indicates that the jury questioned whether there was sufficient evidence of secret confinement. However, the jury rendered a guilty verdict. The fact that it may have sought clarification on the meaning of secret location does not undermine the validity of that verdict. -4- III. JURY INSTRUCTIONS Next, defendant argues that the trial court erred in instructing the jury that the victim did not have to resist for defendant to be guilty of unlawful imprisonment. A trial court s determination that a certain instruction is applicable to the facts of a case is reviewed for abuse of discretion. People v Guajardo, 300 Mich App 26, 34; 832 NW2d 409 (2013). We find that the trial court did not abuse its discretion in giving the challenged instruction under the facts of this case. Jury instructions must include all the elements of the charged offense, and must not exclude material issues, defenses, and theories if the evidence supports them. Even if somewhat imperfect, instructions do not create error if they fairly presented the issues for trial and sufficiently protected the defendant s rights. People v Canales, 243 Mich App 571, 574; 624 NW2d 439, 441 (2000). The defendant bears the burden of establishing that the asserted instructional error resulted in a miscarriage of justice. People v Guajardo, 300 Mich App 26, 34; 832 NW2d 409 (2013) (citation omitted). The trial court read CJI2d 20.26 to the jury. That instruction is under the Sex Crimes chapter of the standard criminal jury instructions. It provides, To prove this charge, the prosecutor does not have to show that [name complainant] resisted the defendant. Defendant objected, arguing that the instruction minimized or eliminated the requirement that the prosecution prove the victim was restrained or confined. The trial court found that the instruction was a clarifying instruction that did not alter the prosecution s burden, but simply stated that the victim had no duty to resist defendant. Defendant s argument that this instruction lessened the burden of proof for the prosecution is without merit. The instruction merely informed the jury that the victim did not need to resist in order for defendant to be convicted of unlawful imprisonment. The instruction did not state or imply that the prosecution was not required to prove each element beyond a reasonable doubt. Indeed, the trial court instructed the jury that it must find each element of unlawful imprisonment beyond a reasonable doubt. It is well established that jurors are presumed to follow their instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Further, defendant s use of the words led, escorted, and took in reference to defendant s conduct toward the victim arguably implied that the victim consented to going into the conference room with defendant. It was not outside the range of reasonable and principled outcomes for the trial court to interpret this phrasing as suggesting a lack of resistance and therefore instruct the jury that resistance by the victim was unnecessary to convict defendant of unlawful imprisonment. The instruction clarified an issue that the trial court felt the jurors might have questioned. Finally, the fact that the instruction was adapted from a standard instruction found within the chapter entitled Sex Crimes is irrelevant. The instruction does not refer to sex crimes and the trial court did not in any way suggest that this was a sex crime. -5- V. OFFENSE VARIABLES Defendant argues that the trial court erred in the scoring of offense variables (OVs) 8 and 10. We disagree. Under the sentencing guidelines, the circuit court s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo. [People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013) (citations omitted).] A. OV 8 Defendant first argues that OV 8 (victim asportation or captivity) was incorrectly scored at 15 points, because the statute provides that unlawful imprisonment is exempt from being scored under that variable. MCL 777.38(2)(b) states that zero points should be scored for OV 8 if the sentencing offense is kidnapping. The statute does not provide a statutory reference for kidnapping. When the sentencing guidelines were enacted, the kidnapping statute, MCL 750.349, read, in part, as follows: Any person who willfully, maliciously and without lawful authority shall forcibly or secretly confine or imprison any other person within this state against his will, or shall forcibly carry or send such person out of this state, or shall forcibly seize or confine, or shall inveigle or kidnap any other person with intent to extort money or other valuable thing thereby or with intent either to cause such person to be secretly confined or imprisoned in this state against his will, or in any way held to service against his will, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. [MCL 750.349, 1931 PA 328, prior to amendment by 2006 PA 159.] In People v Wesley, 421 Mich 375, 383; 365 NW2d 692 (1984), our Supreme Court held that the statute proscribed six forms of conduct, including where the defendant forcibly or secretly confined or imprisoned any other person within this state against his will. In 2006, the Legislature revised MCL 750.349 and added MCL 750.349b, differentiating unlawful imprisonment from kidnapping. 2006 PA 159. However, the Legislature did not amend MCL 777.38. Thus, the question is whether kidnapping as used in MCL 777.38(2)(b) refers to kidnapping as defined in the current MCL 750.349 or in a broader sense as in the former statute, which would include unlawful imprisonment. The primary objective in interpreting a statute is to give effect to the Legislature s intent. People v Peltola, 489 Mich 174, 181; 803 NW2d 140 (2011). This Court may not speculate regarding the probable intent of the Legislature beyond the language expressed in the statute. People v Hock Shop, Inc, 261 Mich App 521, 528; 681 NW2d 669 (2004). Moreover, [t]he Legislature is presumed to be familiar with the rules of statutory construction, and when it is promulgating new laws it is presumed to be aware of the consequences of its use or omission of statutory language. Id. Further, [i]t is a well-known principle that the Legislature is -6- presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws. People v Feezel, 486 Mich 184, 211; 783 NW2d 67 (2010). Simply put, the plain language of MCL 777.38 exempts scoring OV 8 only for kidnapping. The Legislature made unlawful imprisonment a distinct crime and chose not to amend MCL 777.38(2)(b) to include unlawful imprisonment, although it amended MCL 777.16q to reflect the addition of unlawful imprisonment in the list of crimes to which the sentencing guidelines apply. The Legislature was presumed to be aware of the exemption in MCL 777.38 when it revised MCL 750.349 and added MCL 750.349b, and it was presumed to have considered the effect this would have on MCL 777.38. In light of these presumptions, we conclude that the Legislature intended that MCL 777.38(2)(b) only exempt the particular crime of kidnapping. Given these considerations, the trial court in this case did not err in scoring 15 points under OV 8. B. OV 10 Lastly, defendant argues that the trial court erroneously scored 15 points under OV 10 (exploitation of vulnerable victim) because it incorrectly found that defendant s preoffense conduct was predatory. MCL 777.40(1)(a) provides that 15 points may be scored for OV 10 where [p]redatory conduct was involved. Predatory conduct is defined in the statute as preoffense conduct directed at a victim for the primary purpose of victimization. MCL 777.40(3)(a). Victimize is defined as to make a victim of. People v Cannon, 481 Mich 152, 161; 749 NW2d 257 (2008) (citation omitted). [V]ictim is defined as a person who suffers from a destructive or injurious action. . . . People v Huston, 489 Mich 451, 463; 802 NW2d 261 (2011) (internal quotation marks and citations omitted). Therefore, predatory conduct under the statute is behavior that is predatory in nature, precedes the offense, and is directed at a person for the primary purpose of causing that person to suffer from an injurious action. . . . Id. (internal quotation marks, brackets, and citation omitted). However, predatory conduct does not encompass any preoffense conduct, but rather only those forms of preoffense conduct that are commonly understood as being predatory in nature . . . as opposed to purely opportunistic criminal conduct or preoffense conduct involving nothing more than run-of-themill planning to effect a crime or subsequent escape without detection. Id. at 462 (internal quotation marks and citation omitted; emphasis in original). Here, the trial court found that defendant engaged in predatory conduct by investigating the store and waiting until the victim was alone to strike. We agree. The timing of an offense and waiting until a victim is alone can denote predatory conduct. People v Witherspoon, 257 Mich App 329, 336; 670 NW2d 434 (2003). Defendant further argues that the victim was not vulnerable, because she was a healthy adult, sober, alert and working in a fully lit store, that was open to the public, during the afternoon. This contention was rejected by our Supreme Court in Huston. Vulnerability is defined in MCL 777.40(3)(c) as the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation. In Huston, the Court held that [t]he statute does not mandate that this susceptibility be inherent in the victim. Rather, the statutory language allows for susceptibility arising from external circumstances as well. Huston, 489 Mich at 466 (emphasis in original). Here, the trial court found that the circumstances of the offense rendered -7- the victim vulnerable. This is sufficient, the trial court did not need to find that the victim possessed some inherent vulnerability. We find no error in the trial court s scoring of the challenged offense variables. Affirmed. /s/ Mark T. Boonstra /s/ Christopher M. Murray /s/ Pat M. Donofrio -8-

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