People v. Steward

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DWIGHT IRWIN STEWARD, Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DWIGHT IRWIN STEWARD, Defendant-Appellant.

Nos. 351291, 351294

Court of Appeals of Michigan

November 23, 2021

UNPUBLISHED

Wayne Circuit Court LC Nos. 18-004064-01-FC, 18-008561-01-FH.

Before: Rick, P.J., and Ronayne Krause and Letica, JJ.

PER CURIAM.

In these consolidated appeals, ^[1] defendant appeals as of right his bench trial convictions. In Docket No. 351291 (Lower Court Case No. 18-004064-01-FC), defendant was convicted of one count of indecent exposure by a sexually delinquent person MCL 750.335a(2)(c); and kidnapping, MCL 750.349. In Docket No. 351294 (Lower Court Case No. 18-008561-01-FH), defendant was convicted of one count of aggravated indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c). Defendant was sentenced as a third-offense habitual offender, MCL 769.11, to 10 years and 6 months' to 20 years' imprisonment for each conviction. We affirm.

I. BACKGROUND FACTS

Defendant was 64 years old at the time of trial. Before the acts that gave rise to the charges in this matter, defendant was convicted in 1979 of a presumably misdemeanor charge of indecent exposure.^[2] In 1985, defendant was convicted after entry of a plea of second-degree criminal sexual conduct (CSC-II) (victim less than 13 years of age), MCL 750.520c, for which he was sentenced to 3 to 15 years' imprisonment. In 1990, defendant was convicted by a jury of another charge of CSC-II (victim less than 13 years of age), MCL 750.520c, for which he was sentenced to 10 to 15 years' imprisonment. Both CSC-II convictions were in Kalamazoo Circuit Court. Defendant and the prosecution stipulated that in 1994 or 1995, during his incarceration, defendant underwent surgery at Foote Hospital that caused him to be unable to achieve an erection. Nevertheless, throughout his incarceration for the second CSC-II conviction, defendant accumulated a number of misconduct tickets and Michigan Department of Corrections (MDOC) reports based on inappropriate sexual conduct directed toward female prison staff, before and after 1995. Evidence of defendant's former convictions and his MDOC reports were admitted into evidence at trial.

In 2010, the young sister of defendant's then-wife, minor victim FH, was 10 years old and living with defendant along with FH's mother. FH testified that on one occasion, she was playing with her brother, who was hiding under a table, when defendant came into the room wearing only boxer shorts with his penis hanging out of the opening of the boxer shorts. FH's clothes were drying on the table and defendant set his penis on a pair of FH's panties. FH stated defendant told her "how it would be when [FH] started having sex and stuff." According to FH, defendant described his penis as "big, red, and hot." Defendant also described to FH how she "was supposed to hold [her] legs when [she did] finally have sex, and how it would hurt." FH reported the incident to her mother, who left the home with FH that day but, apparently, continued to reside nearby.

In 2013, FH went over to the house where her sister still lived with defendant to get her hair done, because the power was out at her own house. According to FH, she was doing her hair in front of the hallway mirror near the living room when defendant "came out of the room, and he was playing with his stuff . . ." Though defendant was wearing a robe, FH testified that the robe was open and defendant was "stroking" his penis and smiling at FH. FH started "screaming and crying" and she ran home to tell her mother and siblings. FH and her mother returned to the house, but they found the door locked. They reported the incident to the police. A preliminary examination was held in 2013, at which FH testified. It is not clear what happened thereafter, but apparently the matter was dropped at the time when FH and her mother were unable to "make it" to the trial.

In January of 2018, minor victim AD, who was approximately two months short of 15 years old, began using a particular school bus stop. AD became aware of defendant because defendant brought his own children to the same bus stop. AD first noticed defendant's "inappropriate" behavior when defendant would "push his [penis] to one of [sic] his pants." AD stated this behavior made her feel uncomfortable because defendant would look directly at her while he did it. AD's friend TS, who was a little more than a year older than AD, also encountered defendant at the stop. TS reported that defendant would do "inappropriate things" while TS was waiting at the bus stop. For example, TS reported defendant told her "I'll do you dirty in them sheet [sic]" and "[y]ou should come over so we can have a play date." TS stated these statements made her feel "violated." Defendant would follow TS and, when she would try to move away defendant, would "tap" her on the shoulder. TS reported defendant would move his penis "from leg to leg like. And then he would, like, do it in front of me; or he would do it in front of me and his kids."

AD testified that in approximately February 2018,

One day I came to the bus stop, and he was standing there. He had said, "[AD], I want to show you something, but I'm afraid you're going to tell." I turned around and said, "ok." And I turned back to where I was looking. And he said, "look." And he showed me-he opened up his coat and showed me his private area.

Though AD reported the incident to her teacher, her counselor, and her mother, no one immediately reported the incident to police. In approximately March 2018, another incident occurred. On that day, AD stated she was again waiting at the bus stop when some children approached, followed by defendant. The children diverted to a nearby parking lot, but defendant went to where AD was standing. The following events were described in AD's testimony:

Q. So you said that you saw him, the Defendant, running toward where you were at the bus stop?

A. Yes.

Q. And then what happened next?

A. He grabbed me. I had moved. And he said, "he was going to take me home with him."

Q. Where did he grab you?

A. My coat.

Q. Okay.

A. Like my collar.

Q. Okay. And you're grabbing in the front of your body; is that right?

A. Yes.

Q. And then you say you moved. What was the reason you moved?

A. How aggressively he grabbed me.

AD stated defendant only let her go when TS approached the bus stop. TS stated she did not see the incident, but observed AD "running home crying." As AD was leaving, she called 911 to report the incident. The police investigated, and defendant was charged as described based on the incidents with AD and with FH.

There were two lower court cases filed with these events, Docket No. 351294 and Docket No. 351291, respectively. Over defendant's objection, the trial court joined the cases, which were tried together in a bench trial. After the parties rested their cases, the prosecution moved to amend the date of offense listed in the information in Docket No. 351291 (involving AD), which originally listed the only March 13, 2018, as the date of offense. The prosecution sought to amend the information to list the date of offense as "February-March 2018." The trial court granted the motion over defendant's objection. Defendant was convicted on all counts. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

In Docket No. 351291, defendant argues there was insufficient evidence to convict him of kidnapping because defendant did not restrain AD for a sufficient period of time. Defendant also contends the prosecution failed to prove intent, because he claims the March 2018 restraint of AD was not related or incidental to the February 2018 indecent exposure incident also involving AD. We disagree.

A. STANDARD OF REVIEW

"This Court reviews a challenge to the sufficiency of the evidence de novo." People v Bailey, 330 Mich.App. 41, 46; 944 N.W.2d 370 (2019) (citation omitted). "Evidence is sufficient if, when viewed in the light most favorable to the prosecution, a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." People v Blevins, 314 Mich.App. 339, 357; 886 N.W.2d 456 (2016) (quotation marks and citation omitted). "Direct and circumstantial evidence, including reasonable inferences arising from the use of circumstantial evidence, may provide sufficient proof to meet the elements of a crime." Bailey, 330 Mich.App. at 46. Defendant does not seriously challenge what the evidence shows in the abstract, but rather challenges the legal significance of that evidence. We review the interpretation of statutes de novo, applying plain and unambiguous language as written and giving "effect to every word, phrase, and clause to the extent possible." People v Speed, 331 Mich.App. 328, 331; 952 N.W.2d 550 (2020) (quotation marks and citation omitted). There is sufficient evidence to support a guilty verdict where "a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v Tennyson, 487 Mich. 730, 735; 790 N.W.2d 354 (2010) (quotation omitted).

B. LAW AND ANALYSIS

"[A] person commits the crime of kidnapping if he or she 'knowingly restrains another person with the intent' to commit a criminal sexual offense." People v Anderson 331 Mich.App. 552, 562; 953 N.W.2d 451 (2020), quoting MCL 750.349(1)(c), or child sexually abusive activity, MCL 750.349(1)(f). Under MCL 750.349(2), the term "restrain" means:

To restrict a person's movements or to confine the person so as to interfere with that person's liberty without that person's consent or without legal authority. The restraint does not have to exist for any

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