People v. Kosik
303 Mich. App. 146
Mich. Ct. App.2013Background
- Defendant entered a shoe store looking for shoes; after leaving briefly he returned, asked the victim to check a shoe box and call another store, then lunged, grabbed her, took her phone, and led her into a windowless conference room where he closed the door. The victim feared him and called 911 after he left.
- Defendant was charged and convicted by a jury of unlawful imprisonment (MCL 750.349b) and assault and battery (MCL 750.81(1)); sentenced as a third-offense habitual offender to 106 months–30 years for unlawful imprisonment and concurrent 93 days for assault and battery.
- During deliberations the jury asked whether a “secret location” remains secret if there is an exit; the court reinstructed on the elements of unlawful imprisonment.
- Defendant moved post-sentencing for judgment of acquittal or new trial; the trial court denied relief.
- On appeal defendant challenged sufficiency and great-weight of the evidence, a jury instruction that the victim need not resist, and sentencing guideline scoring of OV 8 and OV 10. The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for unlawful imprisonment | Evidence showed forcible restraint, secret confinement in a windowless room, phone taken, victim unable to summon help; jury could convict. | No confinement or secrecy: brief incident, possible exit, no bindings, no threats, victim could have been seen or escaped. | Affirmed: Viewing evidence in prosecution’s favor, confinement and secret confinement proven beyond a reasonable doubt. |
| Great weight / new trial | Verdict supported by the evidence; jury’s question did not undermine verdict. | Verdict against great weight; jury note shows doubt about secret confinement. | Affirmed: trial court did not abuse discretion; evidence did not preponderate against verdict. |
| Jury instruction that victim need not resist | Instruction correctly clarified that lack of resistance is not required for conviction and did not relieve prosecutor of proving elements. | Instruction diminished burden and risked minimizing requirement to prove restraint/confine. | Affirmed: instruction permissible; jurors presumed to follow instructions and it clarified an issue raised by defense phrasing. |
| Sentencing — OV 8 (asportation/captivity) and OV 10 (predatory conduct) | OV 8 properly scored 15 because statute awarding zero points applies only when sentencing offense is kidnapping; OV10 properly scored 15 because defendant surveilled and waited until victim was alone (predatory) and external circumstances made victim vulnerable. | OV 8 should be zero because unlawful imprisonment is akin to kidnapping; OV10 should not apply because victim was not inherently vulnerable and conduct was not predatory. | Affirmed: OV 8 score upheld — legislature intended zero points only for kidnapping; OV 10 upheld — waiting and targeting the victim was predatory and circumstances rendered victim vulnerable. |
Key Cases Cited
- People v Jaffray, 445 Mich 287 (defining "secret confinement" as deprivation of assistance due to inability to communicate)
- People v Railer, 288 Mich App 213 (unlawful imprisonment finding where victim was isolated, deprived of phone/keys, and dared not leave)
- People v Huston, 489 Mich 451 (vulnerability can arise from external circumstances)
- People v Cannon, 481 Mich 152 (defining "victimize"/context for predatory conduct)
- People v Wesley, 421 Mich 375 (statutory scope of kidnapping historically included secret confinement)
- People v Witherspoon, 257 Mich App 329 (timing/waiting until victim is alone can indicate predatory conduct)
- People v Hardy, 494 Mich 430 (standard of review for guideline factual findings)