People v. Bosca
| Decision Date | 26 March 2015 |
| Docket Number | No. 14–CR–208(ADS)(SIL).,14–CR–208(ADS)(SIL). |
| Citation | 310 Mich.App. 1,871 N.W.2d 307 |
| Parties | PEOPLE v. BOSCA. |
| Court | Court of Appeal of Michigan — District of US |
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Eric J. Smith, Prosecuting Attorney, and Mary Jo Diegel, Assistant Prosecuting Attorney, for the people.
Lawrence S. Katz, Sterling Heights, for defendant.
Before: RIORDAN, P.J., and BECKERING and BOONSTRA, JJ.
Defendant appeals by right his jury trial convictions of extortion, MCL 750.213 ; four counts of unlawful imprisonment, MCL 750.349b ; four counts of assault with a dangerous weapon (felonious assault),1 MCL 750.82 ; possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1) ; delivery and manufacture of marijuana, MCL 333.7401(2)(d)(iii ) ; and maintaining a drug house, MCL 333.7405(d). Defendant was sentenced to 57 months to 20 years' imprisonment for the extortion conviction, 57 months to 15 years' imprisonment for each conviction of unlawful imprisonment, two years to four years' imprisonment for each assault conviction and for the manufacture and delivery of marijuana conviction, two years' imprisonment for the felony-firearm conviction, and one year to two years' imprisonment for the conviction of maintaining a drug house. In addition to various restitution requirements, defendant was also required to register in accordance with the sex offenders registration act (SORA), MCL 28.721 et seq. We affirm defendant's convictions and sentences. We reject defendant's constitutional challenges with regard to SORA registration, but call on the Legislature to address aspects of the SORA statute. We remand to the trial court for entry of an amended judgment of sentence conforming defendant's sentences to the jury verdict.
Defendant's convictions arise out of an incident that occurred on June 13, 2011, in Sterling Heights, Michigan. A few days before the incident at issue, four minors, all teenaged boys, had broken into defendant's home with the help of defendant's son to steal defendant's marijuana. Defendant planned to entice the boys involved in the break-in to return to the house on June 13 while he and two associates, Gerald King and Allen Brontkowski, lay in wait for them. Some of the boys involved in the incident on June 13 were among those minors who had broken into defendant's house a few days before June 13 and had stolen marijuana.
On June 13, the day of the second incident, two boys entered defendant's home through a kitchen window. They opened the front door to admit a third boy, while a fourth remained on the porch. Defendant and his associates captured three of the boys, but one of them managed to escape. Defendant and his associates held the boys against their will in the basement. The boys testified that they were duct-taped to chairs, hit with a pistol, kicked and beaten, and threatened with a sword, a hatchet, pliers, a cigar cutter, flammable liquids, and a circular saw.
Defendant forced one of the three boys to call the boy who had escaped and tell him to return to the house and assist with the removal of marijuana;2 defendant forced another of the boys to call others who had been involved in the prior theft of marijuana and tell them "he needed help getting the marijuana out of the house." Two more boys arrived at the house shortly thereafter. Defendant and his associates were able to catch one of them, and they threw him down the stairs into the basement with the original three imprisoned boys. The new arrival was able to call 911 before defendant smashed his phone. As punishment, defendant broke the sheath of his sword over the boy's head. Defendant then duct-taped the boy's hands and legs together.
The Sterling Heights police responded to the 911 call. By that time, at least some of the boys had been held captive for approximately three hours. Two of the boys were transported to the hospital for treatment, one in an ambulance and one by his mother. In searching defendant's home, police discovered a sword and a broken sheath, duct tape, a cigar cutter, an electric circular saw, pliers, and a loaded handgun possessed by Brontkowski. Officers found blood stains on the basement floor and walls, as well as on the sword sheath and Brontkowski's pants; the blood on the sheath and pants was DNA-matched to one of the boys. Defendant admitted to duct-taping the boys to chairs.
Marijuana plants and marijuana were found in the basement and garage. Detective Jason Modrzejewski of the Sterling Heights Crime Suppression Unit collected evidence from the residence and dismantled defendant's grow operation. Two grow locations were identified: one was in a room attached to the garage at the south end of the residence and the other was in the basement. Modrzejewski asserted that he could detect the odor of marijuana from the driveway before entering the residence. He collected seedlings from a basement cabinet and found jars of marijuana "all over the place," including behind insulation, in floor joists, and in cabinets. He also confiscated marijuana from the saddlebag of a motorcycle in the garage. He opined at trial that the total amount of marijuana confiscated exceeded that permissible for personal medical marijuana use. A controlled substance unit expert determined that the amount of plant material identified as marijuana totaled 578.6 grams, or 1.27 pounds. The police confiscated 87 plants, 78 of which were identified as marijuana.
At trial, defendant asserted that he was a licensed caregiver under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq.,3 and presented the testimony of an expert, Frank Telewski, a Michigan State University professor of water and plant biology. Telewski opined that the plants seized were under a moderate level of stress and showed evidence of mold, spider mites and eggs. He believed that the infestation had degraded and killed some of the plants and that it was unlikely that the infested plants could be used for medical marijuana. He asserted that the amount confiscated, when considering the damaged plants and the status of some of the material as uncured, did not exceed the amount that five patients could use in accordance with defendant's MMMA licensure.
The jury convicted defendant as described above. At his sentencing hearing on September 4, 2012, defendant's counsel sought to disqualify the prosecutor's office, asserting that the prosecutor had only pursued legal action against defendant on behalf of the boys as victims but had concurrently ignored defendant's status as a victim of the boys based on the prior break-in and theft from his home. The prosecution responded, citing the discretion afforded in bringing criminal charges, and the trial court denied the motion. At sentencing, defendant indicated that there were inaccuracies in the presentence investigation report and objected to the scoring of offense variables (OVs) 1, 2, 3, 4, 7, 8, 10, and 13. He also asserted that a downward departure from the guidelines would have been appropriate. The trial court imposed the sentences described above.
Following sentencing, defendant filed a motion for a new trial or judgment of acquittal, and for resentencing. Specifically, defendant challenged the great weight of the evidence and asserted a lack of evidence of criminal intent to support the convictions, and asserted that the prosecution committed misconduct by failing to disclose or obtain cellular telephone records and medical records of the victims. He also requested a Ginther4 hearing on the ineffective assistance of his trial counsel, citing the failure of counsel to pursue or obtain these records through discovery. Defendant also challenged the requirement that defendant register as a sex offender under SORA. Defendant contended that registration under SORA was an unconstitutional violation of his rights to due process and to be free from cruel and unusual punishment.
The trial court issued a written opinion and order on defendant's motion on July 24, 2013. In evaluating defendant's numerous sentencing challenges, the trial court indicated satisfaction with the original handling of defendant's objections to the scoring of the various OVs and determined that reassessment of the scoring was unnecessary. The trial court similarly found it unnecessary to revisit defendant's request for a downward departure because "these issues ... were previously addressed and adequately supported by the record." The trial court determined that defendant's challenge to the requirement that he register under SORA "should be fully litigated." The trial court instructed the prosecutor to respond to defendant's challenges on this issue and to that extent granted defendant's motion for resentencing in part. The trial court denied the remainder of defendant's motion. The trial court did not make a final ruling on the SORA issue before August 9, 2013, when defendant filed a claim of appeal. Thereafter, on March 6, 2014, the trial court issued an opinion and order denying defendant's motion for resentencing regarding the SORA issue. On March 25, 2014, this Court granted defendant's motion (which was unopposed by plaintiff) to file a supplemental brief on appeal with respect to the SORA issue, and accepted defendant's previously submitted supplemental brief for filing. Plaintiff filed a supplemental brief in response on April 15, 2014.5
Defendant first contends that the jury's verdicts are against the great weight of the evidence. Defendant contends that the acknowledged lack of veracity of the witnesses and their own criminal conduct in the events that led to the charges against defendant render their testimony inherently implausible or patently incredible. We disagree.
"An appellate court will review a properly preserved great-weight issue by deciding whether 'the evidence...
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