Defendant Eric Michael Chelmicki was convicted by a jury of domestic assault, MCL 750.81(2), and unlawful imprisonment, MCL 750.349b. He was sentenced
Defendant and the victim were in a dating relationship and lived together in an apartment. On the evening these crimes occurred, they were drinking alcohol and an argument started over an eviction notice the victim had received earlier that day. Defendant became increasingly upset and began to yell. The victim attempted to remove herself from the situation by walking outside onto the balcony of the apartment. Though the victim had trouble at trial recalling the events of the night, she testified that at some point she tried to climb down the fire escape attached to the balcony, however defendant came outside, grabbed her by her coat and dragged her back into the apartment. The victim recalled that she had broken blood vessels in her wrists after the assault. The victim’s neighbors, who lived in the apartment below, witnessed some of the events, and also testified that while on the balcony, the victim told them that defendant had turned the apartment stove’s gas burners on and was attempting to “blow up” the apartment complex. The neighbors called the police. When officers arrived, they kicked in the door to the apartment, however defendant had jumped out the bedroom window. One officer testified that upon entering the apartment, the victim, who was visibly upset and crying, told the officers that defendant had put a gun to her head. Defendant was subsequently located and arrested. Police recovered a BB gun from the apartment.
Defendant first argues the trial court erred by admitting hearsay statements made by the victim, which were contained in the witness statement she had written for the police on the night of the incident. At trial, the prosecution allowed the victim to read her police statement in an effort to refresh her recollection of the events. She recalled certain events after reading it, but otherwise testified that the statement did not refresh her recollection. In response, the prosecution read several statements made by the victim into the record, including (1) that defendant “ ‘turned the gas on in the kitchen to kill us both. He had me by the throat when he had the BB gun. He told me the cops could kill him, he didn’t care’ (2) that defendant “ ‘broke my blood vessels in my wrists, put a . . . BB gun to my head and told me to call the cops’ (3) that defendant “ ‘grabbed me by my coat, drug me across the kitchen floor, he broke a blood vessel in my wrist. He put his BB gun to my head and told me to call the cops’ (4) that defendant “ ‘pinned me down to the bed and would not let me open the door for the police’ and (5) that defendant “ ‘had me by the throat when he had the BB gun, he told me the cops could kill him, he didn’t care[.]’ ” Defendant did not object to the first two statements, and his objections on hearsay grounds to the latter three were overruled by the trial court upon its finding that the statements were both a present sense impression and a past recollection recorded.
When the issue is preserved, we review a trial court’s decision to admit evidence for an abuse of discretion, but review de novo preliminary questions of law, such as whether a rule of evidence precludes admissibility. People v Lukity,
We conclude that the statements contained in the victim’s police statement were hearsay. However, we agree with the trial court that the statements were admissible either as a present sense impression or as a past recollection recorded. MRE 803(1), the exception for present sense impressions, allows for the admission of a hearsay statement if three requirements are met: (1) the statement must provide an explanation or description of the perceived event, (2) the declarant must have personally perceived the event, and (3) the explanation or description must have been made at a time “substantially contemporaneous” with the event. People v Hendrickson,
Alternatively, the statements were admissible under MRE 803(5), the exception for a past recollection recorded. That exception allows for the admission of a hearsay statement contained in a writing if (1) the document pertains to matters about which the declarant once had knowledge, (2) the declarant has an insufficient recollection of those matters at trial, and (3) the document was made or adopted by the declarant while the matter was fresh in his or her memory. People v Dinardo,
Defendant next argues that the trial court erred by denying his motion for a directed verdict on the charge of unlawful imprisonment. We review de novo a trial court’s decision whether to deny a motion for a directed verdict. People v Parker,
The unlawful-imprisonment statute, MCL 750.349b, provides, in relevant part:
(1) A person commits the crime of unlawful imprisonment if he or she knowingly restrains another person under any of the following circumstances:
(a) The person is restrained by means of a weapon or dangerous instrument.
(c) The person was restrained to facilitate the commission of another felony or to facilitate flight after commission of another felony.
Defendant does not argue that there was insufficient evidence that he knowingly restrained the victim. Rather, he argues there was insufficient evidence either that he did so by means of a “weapon or dangerous instrument” or that he did so in order to “facilitate the commission of another felony.” We disagree.
Defendant argues that the BB gun used to restrain the victim was inoperable and unloaded at the time of its use, and therefore could not constitute a “weapon or dangerous instrument” under subsection (l)(a) of the statute. We decline to address this issue as it is unnecessary given that subsection (l)(c) clearly applies.
With respect to subsection (l)(c) of the statute, defendant argues there was insufficient evidence that he knowingly restrained the victim in order to facilitate the commission of another felony. The predicate felony in this case was arson (preparation to burn property), former MCL 750.77(l)(d)(i), which provided, in relevant part:
(1) A person who uses, arranges, places, devises, or distributes an inflammable, combustible, or explosive material, liquid, or substance, or any device in or near a building or property described in section 72, 73, 74 or 75 with intent to willfully and maliciously set Are to or burn the building or property or who aids, counsels, induces, persuades, or procures another to do so is guilty of a crime as follows:
(d) If any of the following apply, the person is guilty of a felony punishable by imprisonment for not more than 10 years or a fíne of not more than $15,000.00 or 3 times the combined value of the property intended to be burned, whichever is greater, or both imprisonment and a fine:
(¿) The property is personal or real property, or both, with a combined value of $20,000.00 or more.[2 ]
Defendant challenges only whether there was sufficient evidence that he possessed the intent “to willfully and maliciously set fire to or burn the building.” MCL 750.77(l)(d)(i), as amended by
In this case, the defendant stated to the victim that he turned the gas on in the apartment to “ ‘kill us both.’ ” Moreover, neighbors testified that the victim told them on the night of the altercation that defendant turned on the gas burners and was “attempting to blow up the apartment complex . ...” A rational trier of fact could infer from this evidence that defendant possessed the intent to set fire to the apartment building. Thus, the trial court properly denied defendant’s request for a directed verdict as to subsection (l)(c) of the unlawful-imprisonment statute. In so ruling, we note that the fact that the jury ultimately found defendant not guilty of the arson charge is immaterial, because a jury’s verdict regarding one offense does not preclude it from reaching a different conclusion when that offense forms an element of another crime. People v Goss (After Remand),
Defendant next argues that the trial court erred in instructing the jury with respect to unlawful imprisonment because the instruction, which gave jurors the option to convict on the basis of either defendant’s restraint of the victim by means of a weapon or dangerous instrument, or on defendant’s restraint of the victim in order to facilitate the commission of another felony, violated his “absolute constitutional right to be convicted only upon a unanimous jury verdict. .. .” Defendant also argues that he was denied the effective assistance of counsel because his trial counsel failed to request a unanimity instruction.
Michigan law provides criminal defendants the right to a unanimous jury verdict. MCR 6.410(B). “In order to protect a defendant’s right to a unanimous verdict, it is the duty of the trial court to properly instruct the jury regarding the unanimity requirement.” People v Cooks,
This Court held that “[w]hen a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theory.” People v Johnson,
In
Defendant next argues that the trial court erred by scoring 15 points for Offense Variable (OV) 8 of the sentencing guidelines. Because defendant’s challenge to the scoring of OV 8 on appeal is based on grounds different than those asserted at sentencing, the issue is unpreserved. People v Asevedo,
Under OV 8 of the sentencing guidelines, 15 points may be assessed if the defendant transported the victim “to another place of greater danger or to a situation of greater danger” or if the defendant held the victim “captive beyond the time necessary to commit the offense.” MCL 777.38(l)(a). See also People v Apgar,
The unlawful-imprisonment statute’s definition of “restrain” provides that “[t]he restraint does not have to exist for any particular length of time . . . .”
In this case, the evidence demonstrated that the victim was standing on the balcony of her apartment, visible to her neighbors who lived in the apartment directly below her, when defendant came outside and dragged her back inside the apartment. The victim was thus asported to a place of greater danger because she was moved away from the balcony, where she was in the presence or observation of others, to the interior of the apartment, where others were less likely to see defendant committing a crime. Accordingly, there was no plain error in the scoring of OV 8.
Finally, defendant argues that the trial court erred in scoring OV 1. Defendant’s argument as to this offense variable is also unpreserved and reviewed for plain error. Loper,
OV 1 is an “offense-specific” variable; therefore, in scoring OV 1, the trial court was limited to “considering the sentencing offense alone.” Id. at 127. However, in doing so, a trial court may properly consider all of “defendant’s conduct during” that offense. See id. at 134. In this case, defendant’s act of holding a BB gun to the victim’s head was conduct that occurred “during” the ongoing offense of unlawful imprisonment. Therefore, the trial court did not err by assessing 10 points under OV l.
Affirmed.
Notes
If there was any deficiency regarding the sufficiency of the evidence of restraint by means of a weapon or dangerous instrument under subsection (l)(a), it was evidentiary in nature and went to the issue of whether restraint was actually accomplished through use of the BB gun, when the victim testified that she knew the BB gun was broken, unloaded, and could not hurt her, and physical force was used to restrain the victim. Accordingly, we find that our ruling does not offend Griffin v United States,
MCL 750.77(l)(d)(¿), as amended by
Defendant also argues on appeal that OV 4 was improperly scored. However, this Court previously remanded this case to the trial court for reconsideration of OV 4. The trial court, on remand, rescored OV 4 and subsequently resentenced defendant. Therefore, defendant’s argument with respect to OV 4 is now moot and need not be addressed.