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People v. Bosca

Court of Appeals of Michigan

March 26, 2015

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
VINCENT RALPH BOSCA, Defendant-Appellant

Editorial Note:

This opinion is subject to revision before final publication in the Michigan Court of Appeals reports.

Macomb Circuit Court. LC No. 2011-003548-FH.

For PEOPLE OF MI, Plaintiff-Appellee: Ryan Joshua Van Laan, Mt. Clemens, MI.

For VINCENT BOSCA RALPH, Defendant-Appellant: Lawrence S Katz, West Bloomfield, MI.

Before: RIORDAN, P.J., and BECKERING and BOONSTRA, JJ.

OPINION

[310 Mich.App. 6] Boonstra, J.

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 [310 Mich.App. 7] 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.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

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 [310 Mich.App. 8] 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 [310 Mich.App. 9] 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 [310 Mich.App. 10] (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.

[310 Mich.App. 11] 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 Ginther [4] 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 [310 Mich.App. 12] 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]

II. GREAT WEIGHT OF THE EVIDENCE

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 preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.'" People v Cameron, 291 Mich.App. 599, 616-617; 806 N.W.2d 371 (2011) (citation omitted). A trial court's denial of a motion for a new trial is reviewed for an [310 Mich.App. 13] abuse of discretion. People v Unger, 278 Mich.App. 210, 232; 749 N.W.2d 272 (2008).

It is well recognized that the threshold necessary for a judge to overrule a jury and grant a new trial " is unquestionably among the highest in our law." People v Plummer, 229 Mich.App. 293, 306; 581 N.W.2d 753 (1998) (quotation marks and citation omitted). " When analyzing a great-weight challenge, no court may sit as the '13th juror' and reassess the evidence." People v Galloway, 307 Mich.App. 151, 167; 858 N.W.2d 520 (2014) (citation omitted). " [I]n general, conflicting testimony or a question as to the credibility of a witness are not sufficient grounds for granting a new trial . . . ." People v Lemmon, 456 Mich. 625, 643; 576 N.W.2d 129 (1998) (quotation marks and citations omitted). " [A]bsent exceptional circumstances," issues of witness credibility are within the exclusive province of the trier of fact. Id. at 642-643. " To support a new trial, the witness testimony must 'contradict[] indisputable physical facts or laws,' be 'patently incredible or def[y] physical realities,' be 'so inherently implausible that it could not be believed by a reasonable juror,' or have been 'seriously impeached' in a case that was 'marked by uncertainties and discrepancies.'" Galloway, 307 Mich.App. at 167 (citation omitted; alterations in original).

Copious testimony was elicited during trial from the boys involved in this matter acknowledging the earlier entry into defendant's residence, the theft of marijuana on a previous occasion, and their entry on the later occasion with the intent to procure additional marijuana for their personal use and sale. The boys also admitted to being untruthful when interviewed by the police. While testimony varied regarding who wielded the various weapons used, who engaged in [310 Mich.App. 14] verbal threats, and who initiated the physical contact and the number of times the boys were struck, testimony was consistent that these incidents occurred while the boys were in defendant's home. In addition, testimony was consistent regarding the use of duct tape to restrain the boys. King confirmed being contacted by defendant and being asked to be present at defendant's home in the event of another home invasion on the date of the second incident. When defendant and his associates heard a knock on the front door on the second occasion, they did not act to prevent another home invasion by answering the door, but instead waited, anticipating that the boys would enter the home. Testimony was also elicited indicating that defendant coerced two of the boys to contact others who may have been involved in the prior break-in to attempt to induce them to return to the residence. King testified that he had a hatchet and that Brontkowski had a handgun. King further acknowledged that he, defendant, and Brontkowski hit the boys with their fists, pushed them down the basement stairs, blocked their escape, struck them with the blunt end of a hatchet, a sword sheath, and their fists, threatened them with a cigar cutter, a circular saw and a handgun, and subjected them to a plethora of verbal threats. Physical evidence corroborated a great deal of this testimony.

In terms of the marijuana charges, testimony was elicited that defendant was a licensed grower. Evidence was also introduced regarding the extensiveness of defendant's grow operation and the amounts of marijuana and the number of plants confiscated. Contradictory testimony was introduced regarding the viability of certain plants, whether some of the marijuana was fully cured, and the damage to part of the crop due to infestation. Conflicting opinions were also [310 Mich.App. 15] elicited regarding whether the amount of marijuana in defendant's possession exceeded the amount permitted by his licensure under the MMMA.

In sum, the jury had before it a substantial amount of testimony and evidence, which was both consistent and contradictory on certain points. We conclude that the evidence available to the jury was not so incredible or contradictory that it necessitated or permitted judicial intervention. Galloway, 307 Mich.App. at 167. The jury was repeatedly informed that the boys had been untruthful and had engaged in illegal activity by entering defendant's residence and by seeking to procure marijuana. They admitted to the illegal use of marijuana, including its use on the day of these events. Defendant repeatedly asserted a theory of his case based on his right to defend his home and property from intruders and theft, and based on the absence of any criminal intent in seeking to scare the intruders in his home. It was acknowledged that defendant was a licensed grower, but controversy existed regarding the amount of marijuana in his possession. The jury clearly rejected defendant's position and found, instead, that the boys' testimony was credible. We will not interfere with the jury's role in ascertaining both credibility and the weight of the evidence. People v Bennett, 290 Mich.App. 465, 472; 802 N.W.2d 627 (2010).

III. SUFFICIENCY OF THE EVIDENCE

Next, defendant generally asserts the absence of sufficient evidence to sustain any of his 12 convictions. Initially, we note that, other than citing the law pertaining to issue preservation and standard of review, defendant merely relies on his great weight of the evidence argument. He provides no further explanation or citation to the law or the record, and he fails to [310 Mich.App. 16] address how the evidence was insufficient to support any particular element of any particular offense, resulting in an abbreviated argument in support of this claim of error. " An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority." People v Payne, 285 Mich.App. 181, 195; 774 N.W.2d 714 (2009) (quotation marks and citation omitted). Although we could thus deem the issue abandoned, we find that it is also without merit. See People v Kevorkian, 248 Mich.App. 373, 389; 639 N.W.2d 291 (2001).

" In determining whether the prosecutor has presented sufficient evidence to sustain a conviction, an appellate court is required to take the evidence in the light most favorable to the prosecutor." People v Tennyson, 487 Mich. 730, 735; 790 N.W.2d 354 (2010). " [T]he question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." Id. (quotation marks and citation omitted). " All conflicts in the evidence must be resolved in favor of the prosecution and we will not interfere with the jury's determinations regarding the weight of the evidence and the credibility of the witnesses." Unger, 278 Mich.App. at 222. " Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." People v Allen, 201 Mich.App. 98, 100; 505 N.W.2d 869 (1993). " [B]ecause it can be difficult to prove a defendant's state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant's state of mind, which can be inferred from all the evidence presented." People v Kanaan, 278 Mich.App. 594, 622; 751 N.W.2d 57 (2008). [310 Mich.App. 17] To evaluate the sufficiency of the evidence, we must review the evidence in the context of the elements of the charged crimes.

A. EXTORTION

Our Supreme Court recently revisited the elements of extortion in People v Harris, 495 Mich. 120, 122-123; 845 N.W.2d 477 (2014). There, the Court stated:

[T]he plain language of the extortion statute, MCL 750.213, defines extortion in terms of whether the defendant maliciously threatened a person with harm in order to " compel the person so threatened to do . . . any act against his will." [MCL 750.213.] Thus, the Legislature clearly intended the crime of extortion to occur when a defendant maliciously threatens to injure another person with the intent to compel that person to do any act against his will, without regard to the significance or seriousness of the compelled act. [ Harris, 495 Mich. at 122-123.]

In this instance, there was repeated testimony that defendant and his associates verbally threatened the boys with physical harm, in addition to using various weapons or items to inflict injury. Several of the threats were directed at the boys to compel or encourage them to provide defendant with the identity and contact information of other individuals who had previously entered his home and removed marijuana, and to solicit their assistance in luring those individuals back to defendant's home. In addition, defendant and his associates engaged in these activities to compel the boys to provide information regarding their own identities and to obtain their parents' contact information. This satisfies the " threat" and " act against his will" elements of the crime. Id. at 123.

In addition, " only those threats made with the intent to commit a wrongful act without justification or excuse, [310 Mich.App. 18] or made in reckless disregard of the law or of a person's legal rights, rise to the level necessary to support an extortion conviction." Id. at 136. " The existence of malice . . . depends on the facts and circumstances of each case and can be inferred from a defendant's conduct." Id. at 139. Defendant and his associates threatened the boys with physical harm if they did not cooperate. These threats were enhanced by the use of weapons in an effort to obtain the desired information. More than one boy testified that defendant became more incensed and violent when told of his own son's involvement in the prior theft. The evidence was thus sufficient to satisfy the element of malice. Consequently, sufficient evidence existed to establish the elements of extortion.

B. UNLAWFUL IMPRISONMENT

The elements of unlawful imprisonment are delineated in MCL 750.349b as follows:

(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.
(b) The restrained person was secretly confined.
(c) The person was restrained to facilitate the commission of another felony or to facilitate flight after commission of another felony.

The term " restrain" is defined within the statute as " 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." MCL 750.349b(3)(a). Restraint need not occur " for any particular length of time." [310 Mich.App. 19] MCL 750.349b(3)(a); People v Railer, 288 Mich.App. 213, 218-219; 792 N.W.2d 776');">792 N.W.2d 776 (2010). The term " secretly confined" is defined as (a) " [t]o keep the confinement of the restrained person a secret" or (b) " [t]o keep the location of the restrained person a secret." MCL 750.349b(3)(b). This definition was further explained in People v Jaffray, 445 Mich. 287, 309; 519 N.W.2d 108 (1994), as follows:

[T]he essence of " secret confinement" as contemplated by the statute is deprivation of the assistance of others by virtue of the victim's inability to communicate his predicament. " Secret confinement" is not predicated solely on the existence or nonexistence of a single factor. Rather, consideration of the totality of the circumstances is required when determining whether the confinement itself or the location of confinement was secret, thereby depriving the victim of the assistance of others.

Sufficient evidence was adduced at trial to sustain defendant's four convictions of unlawful imprisonment. There was no dispute that the boys were forced down the basement steps and their escape prevented. They were restrained with duct tape. Their cellular telephones were confiscated. Defendant restricted the boys' ability to access their telephones and monitored the information communicated, threatening them with injury or harm should they not comply with his instructions. The boys were fearful, as evidenced by the fact that two of them lost control of their bodily functions. They were precluded from securing outside assistance, and one boy's telephone was destroyed when he attempted to contact the police by calling 911.

Defendant contends that his imprisonment of the boys was not " without lawful authority." MCL 750.349b(3)(a). Defendant asserts that he was entitled to defend himself and his home, to stand his ground, to stop a fleeing [310 Mich.App. 20] felon, to eject trespassers, to arrest and detain felons, and to pursue and retake a person who has escaped or been rescued from a lawful arrest. Assuming all of that to be true, however, the evidence in this case does not implicate any such rights. Rather, the evidence established that defendant constructed a scenario to lure the boys to his home and, after apprehending them, defendant engaged in a level of conduct and force that the jury deemed excessive in relation to the threat presented by the boys. We will not interfere with a jury's assessment of the weight of the evidence or the credibility of the witnesses. People v Dunigan, 299 Mich.App. 579, 582; 831 N.W.2d 243 (2013).

Moreover, even assuming that defendant possessed a right to " arrest" the boys who had entered his home on the day of the second incident, he was obligated by law to " without unnecessary delay deliver the person arrested to a peace officer . . . ." MCL 764.14. Defendant did not do so. To the contrary, defendant imprisoned the boys for several hours, during which time he and his associates assaulted and threatened them. Further, defendant sought to prevent the boys from contacting the police, and thereby he acted precisely contrary to his lawful obligation to deliver the boys to the police " without unnecessary delay." Id. Consequently, sufficient evidence was presented to support defendant's four convictions under MCL 750.349b.

C. ASSAULT WITH A DANGEROUS WEAPON

" The elements of [assault with a dangerous weapon] are (1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery." People v Avant, 235 Mich.App. 499, 505; 597 N.W.2d 864 (1999). " A person who aids or abets the commission of a crime [310 Mich.App. 21] may be convicted and punished as if he directly committed the offense." People v Izarraras-Placante, 246 Mich.App. 490, 495; 633 N.W.2d 18 (2001); see also MCL 767.39.

To support a finding that a defendant aided and abetted a crime, the prosecution must show that (1) the crime charged was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid and encouragement. [ Izarraras-Placante, 246 Mich.App. at 495-496 (quotation marks and citation omitted).]

" The aiding and abetting statute encompasses all forms of assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might support, encourage, or incite the commission of a crime." Id. at 496 (citation omitted). Intent may be inferred from a defendant's " words, acts, means, or the manner used to commit the offense." People v Harrison, 283 Mich.App. 374, 382; 768 N.W.2d 98 (2009). A dangerous weapon is defined by MCL 750.226 as " a pistol or other firearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon or instrument" carried with the intent to unlawfully use the weapon against another person. In addition, " [a] dangerous weapon can also be an instrumentality which, although ...


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