People of Michigan v. Paul Edward Lojewski ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 20, 2020
Plaintiff-Appellee,
v No. 347111
Monroe Circuit Court
PAUL EDWARD LOJEWSKI, LC No. 18-244593-FH
Defendant-Appellant.
Before: GLEICHER, P.J., and STEPHENS and CAMERON, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of accosting, enticing, or soliciting
a child for immoral purposes, MCL 750.145a, and two counts of fourth-degree criminal sexual
conduct (CSC-IV), MCL 750.520e (multiple variables). Defendant was sentenced, as a fourth-
offense habitual offender, MCL 769.12, to 58 to 180 months’ imprisonment for accosting, enticing,
or soliciting a child for immoral purposes and to 46 to 180 months’ imprisonment for each count
of CSC-IV. We affirm.
I. BACKGROUND
In 2014, JC and defendant met through JC’s brother, AC. By 2016, JC and defendant often
spent time together alone. On November 14, 2016, JC and defendant went fishing at Dog Lady
Island located in Monroe, Michigan. On their way to Dog Lady Island, defendant put his hand on
JC’s left thigh near his knee. JC felt uncomfortable, but did not say anything and moved his leg
away from defendant’s hand. When JC arrived home later that night, he informed his mother that
defendant touched him and asked his mother if he should “be worrying about it” or if it was just a
“friendly gesture.” His mother told JC that she did not think defendant was “that type of person.”
The next day, November 15, 2016, defendant asked JC to go fishing with a group of friends.
JC said yes because he wanted to know if the incident that occurred the day before was merely a
fluke. While the group was fishing, defendant asked JC to go to defendant’s apartment to get
something to drink with defendant. Defendant did not ask anyone else in the group to go with
him. JC initially said no, but defendant became upset and JC agreed to go. While they were
driving, defendant ran his right hand up JC’s inner thigh and grabbed JC’s penis over JC’s red
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shorts. JC surreptitiously took two photographs of defendant’s hand on his penis with his cell
phone while pretending to play a game. When they arrived at defendant’s apartment, JC and
defendant entered defendant’s apartment and JC sat down on defendant’s La-Z-Boy chair.
Defendant sat on the arm of the chair, put his arm around JC, and started to move his hand toward
JC’s penis. JC stood up to get away from defendant and defendant went to the bathroom. When
defendant walked back into the living room from the bathroom, defendant “came up from behind”
JC and grabbed JC’s penis. JC ran out of the apartment, got into the backseat of defendant’s car,
and asked defendant to take him home. Despite the fact that JC showed his mother the cell phone
photos, his mother did not report the incident to law enforcement. Instead, law enforcement
learned of the photos from defendant’s landlord who said she saw the photos on the social media
platform Facebook. Law enforcement interviewed JC who confirmed that he was the boy in the
photos and that the hand belonged to defendant. Defendant was subsequently charged with
accosting, enticing, or soliciting a child for immoral purposes, MCL 750.145a, and two counts of
CSC-IV, MCL 750.520e .
At trial, the testimony regarding the assault came principally from JC and his mother, who
disagreed on several details. For example, despite testimony from his mother that JC sent the
photographs to a family friend before sending them to her, JC also testified that he sent the cellular
photos only to his mother. JC’s mother also testified that she had not gone to law enforcement
with the photos because she thought she had handled the issue by confronting defendant and
warning him to never be around JC again. However, JC testified that he and his mother did not
contact law enforcement because defendant’s family sent him and his mother threatening text
messages.
On October 24, 2018, defendant was found guilty by a jury of all counts. On December 5,
2018, defendant unsuccessfully filed a motion for a directed verdict or new trial. On December
20, 2018, defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 58 to
180 months’ imprisonment for accosting, enticing, or soliciting a child for immoral purposes and
to 46 to 180 months’ imprisonment for each count of CSC-IV. This appeal ensued.
II. GREAT WEIGHT OF THE EVIDENCE
Defendant first argues that he is entitled to a new trial because the jury’s verdict was against
the great weight of the evidence. We disagree.
“In contrast to a challenge to the sufficiency of the evidence, a motion for a new trial based
on a belief that the verdict was against the great weight of the evidence does not implicate issues
of constitutional magnitude and, for that reason, the decision to grant a new trial is committed to
the discretion of the trial court.” People v Roper, 286 Mich. App. 77, 83-84; 777 NW2d 483 (2009).
“Accordingly, this Court reviews a trial court’s decision on a motion regarding the great weight of
the evidence for an abuse of discretion.” Id. at 84. “A trial court abuses its discretion when it
selects an outcome that is not within the range of reasonable and principled outcomes.” Id.
“The test to determine whether a verdict is against the great weight of the evidence is
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 Musser, 259 Mich. App. 215, 218-219; 673 NW2d
800 (2003). A verdict is against the great weight of the evidence “when the evidence does not
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reasonably support it and it was more likely the result of causes outside the record, such as passion,
prejudice, sympathy, or some other extraneous influence.” People v Lacalamita, 286 Mich. App.
467, 469; 780 NW2d 311 (2009). Conflicting testimony alone will not typically warrant a new
trial. Musser, 259 Mich. App. at 219. “ ‘[U]nless it can be said that directly contradictory testimony
was so far impeached that it “was deprived of all probative value or that the jury could not believe
it,” or contradicted indisputable physical facts or defied physical realties, the trial court must defer
to the jury’s determination.’ ” Id., quoting People v Lemmon, 456 Mich. 625, 645-646; 576 NW2d
129 (1998) (citation omitted). Moreover, this Court may not substitute its view of the credibility
of witnesses for that of the jury. Lemmon, 456 Mich. at 642.
A defendant is guilty of accosting a child for immoral purposes if he “ ‘(1) accosted,
enticed, or solicited (2) a child (or an individual whom he believed was a child) (3) with the intent
to induce or force that child to commit (4) a proscribed act.’ ” People v Gaines, 306 Mich. App.
289, 311; 856 NW2d 222 (2014), quoting People v Kowalski, 489 Mich. 488, 499; 803 NW2d 200
(2011); MCL 750.145a. Alternatively, a defendant may also be guilty of accosting a child for
immoral purposes if he “ ‘(1) encouraged (2) a child (or an individual whom he believed was a
child) (3) to commit (4) a proscribed act.’ ” Gaines, 306 Mich. App. at 312, quoting Kowalski, 489
Mich. at 499; MCL 750.145a. A proscribed act includes an act of sexual intercourse, an act of
gross indecency, or any other act of depravity or delinquency. MCL 750.145a.
A defendant is guilty of CSC-IV, as relevant herein, as follows:
(1) A person is guilty of criminal sexual conduct in the fourth degree if he or she
engages in sexual contact with another person and if any of the following
circumstances exist:
(a) That other person is at least 13 years of age but less than 16 years of age, and
the actor is 5 or more years older than that other person.
(b) Force or coercion is used to accomplish the sexual contact. . . . [MCL
750.520e(1)(a) and (b); People v Lockett, 295 Mich. App. 165, 179 n 2; 814 NW2d
295 (2012).]
For purposes of CSC-IV, “sexual contact” is defined as follows:
the intentional touching of the victim’s or actor’s intimate parts or the intentional
touching of the clothing covering the immediate area of the victim’s or actor’s
intimate parts, if that intentional touching can reasonably be construed as being for
the purpose of sexual arousal or gratification, done for a sexual purpose, or in a
sexual manner for:
(i) Revenge.
(ii) To inflict humiliation.
(iii) Out of anger. [MCL 750.520a(q).]
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Defendant argues that the jury’s verdict was against the great weight of the evidence
because JC and his mother were not credible witnesses. He argues that JC’s mother inaccurately
identified defendant’s hand in the photographs and that JC and his mother testified inconsistently
with regard to the dates and locations of the incidents and the reason that law enforcement was not
contacted by JC’s mother. Conflicting testimony is an insufficient ground for granting a new trial.
Musser, 259 Mich. App. at 219. Moreover, “the weight and credibility of evidence, and the
inferences to be drawn from the evidence, are matters for the jury to resolve,” not the court. People
v Anderson, 322 Mich. App. 622, 633; 912 NW2d 607 (2018).
The defendant failed to establish that JC’s and his mother’s contradictory testimony was
so far impeached that it was deprived of all probative value or contradicted physical facts or defied
physical realties. Musser, 259 Mich. App. at 219. The only physical fact that was impeached was
the testimony from JC’s mother that she identified the hand in the cellular pictures as belonging to
the defendant because of a scar on his right hand when it was in fact on his left hand. Defense
counsel effectively cross examined both JC and his mother about the inconsistencies between them
and argued those to the jury. The inconsistencies from JC were about dates and places and not
about the nature of the assault. JC’s mother testified that the defendant, once confronted with her
accusation, apologized. Additionally, Monroe Police Detective Renae Peterson testified that JC
disclosed to her that defendant sexually assaulted him and showed her one of the photographs that
he took of the incident that was saved on his cell phone. The court instructed the jury on witness
credibility and this jury resolved credibility in favor of the prosecution. That is not error.
III. HABITUAL OFFENDER ENHANCEMENT
Defendant argues that he is entitled to be resentenced as a nonhabitual offender because
the prosecution failed to serve a notice of its intent to seek a fourth-offense habitual offender
enhancement within 21 days after filing the information and failed to timely file a proof of service
with the clerk of the court. Defendant also argues that the harmless error standard should not apply
to the prosecution’s requirement to timely file and serve a habitual offender notice because it would
render the 21-day notice requirement null. We disagree.
The question of whether the habitual offender notice requirements were met “is reviewed
de novo as a question of law because it involves the interpretation and application of statutory
provisions and court rules.” People v Head, 323 Mich. App. 526, 542; 917 NW2d 752 (2018).
MCL 769.13 governs the process by which the prosecution may seek to enhance a
defendant’s sentence and provides, in relevant part:
(1) In a criminal action, the prosecuting attorney may seek to enhance the sentence
of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL 769.12],
by filing a written notice of his or her intent to do so within 21 days after the
defendant’s arraignment on the information charging the underlying offense or, if
arraignment is waived, within 21 days after the filing of the information charging
the underlying offense.
(2) A notice of intent to seek an enhanced sentence filed under subsection (1) shall
list the prior conviction or convictions that will or may be relied upon for purposes
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of sentence enhancement. The notice shall be filed with the court and served upon
the defendant or his or her attorney within the time provided in subsection (1). The
notice may be personally served upon the defendant or his or her attorney at the
arraignment on the information charging the underlying offense, or may be served
in the manner provided by law or court rule for service of written pleadings. The
prosecuting attorney shall file a written proof of service with the clerk of the court.
The purpose of MCL 769.13 is to ensure that a defendant receives notice that he could be
sentenced as a habitual offender at an early stage in the proceedings. Head, 323 Mich. App. at 543.
“The failure to file a proof of service of the notice of intent to enhance the defendant’s sentence
may be harmless if the defendant received the notice of the prosecutor’s intent to seek an enhanced
sentence and the defendant was not prejudiced in his ability to respond to the habitual-offender
notification.” Id. at 544-545, citing People v Walker, 234 Mich. App. 299, 314-315; 593 NW2d
673 (1999) (holding that the prosecution’s failure to file a proof of service of the intent to seek an
enhanced habitual-offender sentence with the clerk of the court was harmless and did not require
resentencing because defendant had received actual notice of the enhancement). To determine
whether the defendant received notice of the prosecution’s intent to seek an enhanced sentence,
this Court may consider whether the defendant received actual notice of the enhancement at the
preliminary examination, arraignment, or sentencing, and whether he had access to the charging
documents throughout the proceeding. Head, 323 Mich. App. at 544-545.
A review of the record reveals that the prosecution filed the supplemental information on
July 19, 2018, with the clerk of the court. The supplemental information included a fourth-offense
habitual offender notice and apprised defendant of his forth-offense habitual offender status. At
the arraignment on July 20, 2018, the prosecution served defendant’s trial counsel with a notice of
its intent to seek an enhanced sentence, as permitted by MCL 769.13(2). At the arraignment,
defendant’s trial counsel waived a formal reading of the information, as permitted by MCR
6.113(B), and confirmed that he and defendant received a copy of the supplemental information.
On July 24, 2019, the prosecution filed a proof of service with the clerk of the court.
The prosecution’s failure to timely file notice or proof of service was harmless error where
the defendant had actual notice and was not prejudiced in his ability to respond to the habitual
offender notification. Head, 323 Mich. App. at 544. A fourth-offense habitual offender notice was
included on the supplemental information and on the amended supplemental information which
was filed on October 24, 2018. The presentence investigation report additionally indicated that
defendant was to be sentenced as a fourth-offense habitual offender, and at sentencing, defendant
did not object to being sentenced as a fourth-offense habitual offender. Defendant does not argue
that he was without access to the court file that contained the habitual offender notice, failed to
dispute the trial court’s references to the enhancement, and did not express surprise during
sentencing. Therefore, defendant is not entitled to resentencing on this ground.
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Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
/s/ Thomas C. Cameron
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