People v. Kosik

• Decision Date: 12 November 2013
• Docket Number: Docket No. 312518.
• Citation: 303 Mich.App. 146,841 N.W.2d 906
• Parties: PEOPLE v. KOSIK.
• Court: Court of Appeal of Michigan — District of US

303 Mich.App. 146

841 N.W.2d 906

PEOPLE

v.KOSIK.

Docket No. 312518.

Court of Appeals of Michigan.

Submitted Nov. 6, 2013, at Lansing.

Decided Nov. 12, 2013, at 9:05 a.m. Leave to appeal sought.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kurt C. Asbury, Prosecuting Attorney, and Sylvia L. Linton, Assistant Prosecuting Attorney, for the people.

Peter Ellenson for defendant.

Before: MURRAY, P.J., and DONOFRIO and BOONSTRA, JJ.

BOONSTRA, J.

Defendant appeals by right his convictions for unlawful imprisonment, MCL 750.349b, and assault and battery, MCL 750.81(1). Defendant was sentenced as a third-offense habitual offender, MCL 769.11, to a term of 106 months to 30 years' imprisonment for unlawful imprisonment, and to a concurrent term of 93 days' imprisonment 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 “[m]aybe 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.”

The victim further testified that defendant took the phone from her and “told [her] to keep walking” as he 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 the incident and said he was “just kidding.” Defendant then left the store and the victim called 911. Defendant was apprehended by police shortly thereafter.

During deliberations the jury sent out a note asking, “Does a ‘secret location’ remainsecret if there is an exit for a victim to leave (behind her).” The trial court reinstructed the jury on the elements of unlawful imprisonment. The Court then stated, “That is all I can tell you. It is for you to decide as to both of those questions.”

Following sentencing, defendant moved for a judgment of acquittal, a new trial, or resentencing, raising most of the points later presented in this appeal. The trial court concluded that none of the arguments merited relief and denied the motion. This appeal followed.

II. SUFFICIENCY 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 de novo a defendant's challenge to the sufficiency of the evidence. People v. Meissner, 294 Mich.App. 438, 452, 812 N.W.2d 37 (2011). In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the prosecution 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 N.W.2d 85 (2012). However, we do not interfere with the factfinder's role of determining the weight of the evidence and the credibility of witnesses. People v. Wolfe, 440 Mich. 508, 514–515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201, 489 N.W.2d 748 (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 afforded to the inferences. People v. Hardiman, 466 Mich. 417, 428, 646 N.W.2d 158 (2002). The prosecution need not negate every reasonable theory of innocence, but must only prove its own theory beyond a reasonable doubt “in the face of whatever contradictory evidence the defendant may provide.” People v. Nowack, 462 Mich. 392, 400, 614 N.W.2d 78 (2000) (quotation marks and citation omitted). Circumstantial evidence and the reasonable inferences that arise from that evidence can constitute satisfactory proof of the elements of the crime. People v. Carines, 460 Mich. 750, 757, 597 N.W.2d 130 (1999). We resolve all conflicts in the evidence in favor of the prosecution. People v. Kanaan, 278 Mich.App. 594, 619, 751 N.W.2d 57 (2008).

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 define the word “confine.” Our SupremeCourt 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 N.W.2d 108 (1994). In People v. Railer, 288 Mich.App. 213, 215–216, 218, 792 N.W.2d 776 (2010), this Court held that the prosecution had presented sufficient evidence of unlawful imprisonment when the evidence indicated that the victim was forced into her car, driven to various locations, beaten severely, had her car keys and phone taken away from her, and was told not to disclose her location when forced to answer a call from her sister. This Court determined that sufficient evidence of confinement had been presented even though the car had been parked twice, because the victim “dared not leave while in defendant's presence....” Id. at 218, 792 N.W.2d 776.

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 the light most favorable to the prosecution, there was sufficient evidence that defendant 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 what is required for a confinement to be secret. The determination whether a person has been secretly confined is generally not dependent on the duration of the confinement. See Jaffray, 445 Mich. at 308, 519 N.W.2d 108. 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 the doors, or threaten her.

Nothing in the statute requires a certain...