People v. Chelmicki
305 Mich. App. 58
| Mich. Ct. App. | 2014Background
- Defendant and victim were dating and cohabiting; they argued over eviction while drinking; victim tried to leave to balcony, defendant dragged her back inside; neighbors witnessed events and police found a BB gun; victim suffered broken blood vessels in wrists and claimed a gun was placed to her head; officers forcibly entered and defendant fled through a window.
- Police recovered a BB gun; victim stated gas was turned on to blow up the apartment; incident prompted emergency response.
- Defendant was charged with domestic assault and unlawful imprisonment, then resentenced after remand for offense-variable rescorings; he appeals the convictions and sentence.
- Trial included admission of hearsay statements from the victim contained in her police statement; the statements were challenged as hearsay, with some admitted under present sense impression or past recollection recorded.
- Trial court denied a directed verdict on unlawful imprisonment; OV scoring issues were raised on appeal (OV 8 and OV 1), with remand on OV 4 later moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of victim's police statement | Chelmicki | Chelmicki | Hearsay; admissible as present sense impression or past recollection recorded |
| Sufficiency of evidence for unlawful imprisonment | People | There was insufficient evidence of weapon/dangerous instrument or arson-related purpose | Sufficient evidence under OR subsection (l)(c) and alternative theory; conviction upheld |
| Unanimity instruction and ineffective assistance | People | Need for unanimity instruction; counsel ineffective for not requesting it | No required unanimity instruction; counsel not ineffective for not requesting it |
| OV 8 scoring proper | People | OV 8 improperly scored | OV 8 properly scored—asportation or extended restraint beyond time to commit offense |
| OV 1 scoring proper | People | BB gun to head should not be counted under OV 1 if not part of ongoing offense | OV 1 properly scored as conduct during unlawful imprisonment |
Key Cases Cited
- People v Lukity, 460 Mich 484 (1999) (abuse of discretion standard; plain error review)
- People v Carines, 460 Mich 750 (1999) (plain-error standard for non-preserved claims)
- People v Gursky, 486 Mich 596 (2010) (hearsay admissibility and exceptions)
- People v Hendrickson, 459 Mich 229 (1998) (present sense impression exception; contemporaneity)
- People v Dinardo, 290 Mich App 280 (2010) (MRE 803(5) past recollection recorded)
- People v Kosik, 303 Mich App 146 (2013) (OV 8 scoring for unlawful imprisonment)
- People v McGraw, 484 Mich 120 (2009) (offense-specific vs. conduct during offense for OV scoring)
- People v Steele, 283 Mich App 472 (2009) (asportation basis for OV 8)