                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 5, 2015
               Plaintiff-Appellee,

v                                                                  No. 317856
                                                                   Wayne Circuit Court
JEFFREY THOMAS MAZUR,                                              LC No. 11-010106-FH

               Defendant-Appellant.


Before: TALBOT, C.J., and MURPHY and GLEICHER, JJ.

PER CURIAM.

        It is undisputed that defendant secretly placed a “camera pen” capable of video and audio
recordings in the private bedroom of the 17-year-old daughter of defendant’s girlfriend,
capturing naked and partially-clad images of the teen; the girlfriend owned and defendant resided
in the house where this occurred. A jury found defendant guilty of violating MCL
750.539d(1)(a), which provides that a person shall not “[i]nstall, place, or use in any private
place, without the consent of the person . . . entitled to privacy in that place, any device for
observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events
in that place.” The jury also found defendant guilty of violating MCL 750.539j(1)(b), which
provides that a person shall not “photograph, or otherwise capture or record, the visual image of
the undergarments worn by another individual, the unclad genitalia or buttocks of another
individual, or the unclad breasts of a female individual under circumstances in which the
individual would have a reasonable expectation of privacy.” Both § 539d and § 539j contain an
identical provision indicating that these sections “do[] not prohibit security monitoring in a
residence if conducted by or at the direction of the owner or principal occupant of that residence
unless conducted for a lewd or lascivious purpose.” MCL 750.539d(2); MCL 750.539j(4).
Defendant appeals the convictions as of right, arguing that the convictions were against the great
weight of the evidence, given that the evidence showed that he was a “principal occupant” of the
home and thus authorized to monitor his girlfriend’s daughter’s bedroom through use of the
camera pen, where he did so solely for legitimate security-monitoring reasons, not lewd or
lascivious reasons. Defendant also contends that there was insufficient evidence to support the
convictions, primarily for the same reasons given in support of his great-weight argument.
Defendant finally maintains that he was denied a fair trial on the basis of prosecutorial
misconduct. We affirm the convictions.

       Initially, we note the importance of understanding some procedural aspects that have a
bearing on our analysis. The issues regarding whether defendant qualified as a “principal

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occupant” of the home and, if so, whether he employed the camera pen for a “lewd or lascivious
purpose” instead of for the purpose of monitoring the home’s security were left to the jury to
determine and resolve. The trial court instructed the jury on the elements of each offense on the
basis of language in the statutes (there is no standard M Crim JI), after which, consistent with
MCL 750.539d(2) and MCL 750.539j(4), the court instructed the jury as follows:

               If you find that under all the facts and circumstances of this case that the
       camera was placed in [the victim’s] bedroom for the purpose of security
       monitoring and was done at the direction of the owner or principal occupant of
       that residence, unless conducted for a lewd or lascivious purpose, you must find
       the Defendant not guilty.

        The trial court did not provide definitional instructions regarding any of the language in
the above-quoted instruction, nor did the court speak to the issue of the evidentiary burden of
proof relative to the instruction.1 Defendant expressly voiced approval of the jury instructions
and does not claim any instructional error on appeal. The verdict form was, as standard for a
criminal case, a general verdict form that simply allowed the jury to express whether defendant
was guilty or not guilty of each charge. Under these circumstances, it is impossible for us to
discern whether the jury, in finding defendant guilty of both charges, concluded that defendant
was not a “principal occupant” of the home, making it unnecessary for jurors to reach the lewd or
lascivious versus security-monitoring question, or whether the jury found that defendant was a
principal occupant, in which case the jurors must have decided that defendant used the camera
pen for a lewd or lascivious purpose and not a security-monitoring purpose.2 Stated a bit
differently, to convict defendant of the offenses under the instructions as given to the jury, there
had to be sufficient proof that defendant either was not a principal occupant of the residence or
that he engaged in the conduct at issue for lewd or lascivious as opposed to security-monitoring


1
  The exception found in both MCL 750.539d(2) and MCL 750.539j(4), which exception
actually contain an exception to the exception (“unless conducted for a lewd or lascivious
purpose”), does not indicate which party has the burden of proof as to any component of the
exception; there is no reference to the exception as being an “affirmative defense.” “[S]hifting
the burden of proof goes to the heart of the judicial process[,]” and we “will not infer a change in
the burden of proof without express statutory language to that effect.” People v Rios, 386 Mich
172, 175; 191 NW2d 297 (1971). Ultimately, for purposes of this opinion, we shall proceed on
the assumption that the prosecution had the burden of proof with respect to the exception in
MCL 750.539d(2) and MCL 750.539j(4).
2
  While speculative, we tend to believe that the jury spent little if any time on the “principal
occupant” question framed by the instruction, considering that the closing arguments focused
almost exclusively on the issue of whether defendant used the camera pen to monitor security in
the residence or did so for lewd or lascivious reasons. The instruction and the exception in MCL
750.539d(2) and MCL 750.539j(4) actually leave open a third possibility of guilt – that
defendant was a principal occupant, and while his actions did not serve a lewd or lascivious
purpose, he also did not use the camera pen to monitor security (a nosy defendant). However,
the evidence and arguments focused on lewd or lascivious versus security monitoring, and our
opinion will be couched in those terms.

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reasons. But, ultimately, we have no way of telling which finding the jury made; perhaps the
jurors even concluded that defendant was not a principal occupant and that, regardless, he
employed the camera pen for a lewd or lascivious purpose. If we were to accept defendant’s
argument that reversal is warranted on the basis that there was inadequate evidence showing,
under a great-weight or insufficiency theory, that he was not a principal occupant of the home,
we conceivably would be reversing on a ground upon which the jury actually found in
defendant’s favor.

         Analytically, with respect to the exception found in both MCL 750.539d(2) and MCL
750.539j(4) and within the framework of this case, it allows for a conviction under alternate
theories or bases, i.e., that defendant was not a principal occupant, depriving him of any
authority to deploy the camera pen even for security reasons, or that he used the camera pen for a
lewd or lascivious purpose and not a security purpose. And this Court recently addressed a
comparable issue in People v Chelmicki, 305 Mich App 58; 850 NW2d 612 (2014). In
Chelmicki, the defendant was convicted of unlawful imprisonment, MCL 750.349b, which
allows for a conviction where, as pertinent to the charges in Chelmicki, the defendant knowingly
restrains another person either by means of a weapon or dangerous instrument or in order to
facilitate the commission of another felony. Chelmicki, 305 Mich App at 64-65, quoting MCL
750.349b(1)(a) and (c). The defendant argued that there was insufficient evidence with respect
to both circumstances (restraint by a weapon or dangerous instrument and restraint to facilitate a
felony), and the Chelmicki panel declined to address whether there was sufficient evidence of
restraint by means of a dangerous instrument, as there was sufficient evidence of restraint to
facilitate the commission of another felony, arson. Chelmicki, 305 Mich App at 65. In a
footnote, this Court explained why it was unnecessary to reach both bases or theories of the
unlawful-imprisonment conviction, either of which could have served to support the conviction:

               If there was any deficiency regarding the sufficiency of the evidence of
       restraint by means of a weapon or dangerous instrument under subsection (1)(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, 502 US 46; 112 S Ct 466; 116 L Ed 2d 371
       (1991) (discussing due process concerns in the context of a general verdict with
       alternative bases of criminal liability and the sufficiency thereof). [Chelmicki,
       305 Mich App at 65 n 1.]

       A concise and accurate statement of the principles that emanated from the United States
Supreme Court’s decision in Griffin was set forth in United States v Garcia, 992 F2d 409, 416
(CA 2, 1993), wherein the Second Circuit explained:

               [T]he teaching of Griffin is that when disjunctive theories are submitted to
       the jury and the jury renders a general verdict of guilty, appeals based on
       evidentiary deficiencies must be treated differently than those based on legal
       deficiencies. If the challenge is evidentiary, as long as there was sufficient
       evidence to support one of the theories presented, then the verdict should be
       affirmed. However, if the challenge is legal and any of the theories was legally
       insufficient, then the verdict must be reversed. [See also United States v Tomblin,
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       46 F3d 1369, 1385-1386 (CA 5, 1995), and United States v Self, 2 F3d 1071,
       1092-1093 (CA 10, 1993).]

        The reason for treating an evidentiary deficiency claim different than a legal deficiency
claim “is that jurors can, from their own experience, weed out evidentiary deficiencies, but not
legal insufficiencies.” Tomblin, 46 F3d at 1385; see also Self, 2 F3d at 1093 (“factual
insufficiency . . . does not require reversal as we will presume that the jury rejected the factually
inadequate theory and convicted on an alternative ground for which the evidence was
sufficient”).

        Here, defendant solely presents appellate arguments related to the weight and sufficiency
of the evidence with respect to whether he was the “principal occupant” of the residence and in
regard to whether he engaged in the conduct for a lewd or lascivious purpose or a security-
monitoring purpose. These are not arguments pertaining to legal deficiencies, such as where, for
example, a defendant contends that a court gave a legally-unsound instruction on the elements of
an offense. Keeping in mind the analytical framework set forth above, we hold that there was
sufficient evidence that defendant utilized the camera pen for a lewd or lascivious purpose and
not to monitor security, that the great weight of the evidence did not preponderate heavily in the
opposite direction, and that, in light of these conclusions, it is unnecessary to reach the issue
regarding whether defendant was a principal occupant of the residence (alternate theory or basis
for conviction).

         The victim found the camera pen in a cup on a shelf in her room that was located at
crotch level. The camera pen recorded footage of the teen’s unclad buttocks, genital area, and
breasts. Defendant initially denied putting the camera pen in the victim’s bedroom when
questioned by his girlfriend, and he moved out of the house when she asked him to leave. The
girlfriend sent defendant a text message asking him why he put the camera pen in her daughter’s
bedroom, and, according to the girlfriend’s testimony, defendant replied, “ ‘I have an addiction
just like you have an addiction, I need help.’ ” Defendant also indicated in a different text
message to the girlfriend that he realized that she could never forgive him and that he never
intended to hurt anybody. In yet another text message, defendant accused his girlfriend of not
“taking care” of him, which the girlfriend believed referred to their sexual relationship. There
was also evidence of two occasions on which defendant was naked in the victim’s presence,
although defendant explained that he had been unaware of her presence. The victim also
testified of an incident in which she observed defendant staring at her through a mirror while she
was watching television in her room. Additionally, and most damaging for defendant, there was
evidence, as gleaned from the recordings obtained and analyzed by the police, showing that on
several occasions defendant placed the camera pen in the victim’s room or physically adjusted
the position of the camera pen just before, and in one instance 45 seconds before, it recorded
naked images of the victim after she had entered her bedroom toweled following a shower. This
evidence clearly reflected that defendant was monitoring the victim’s actions with respect to
bathing or showering in an effort to allow him the opportunity to employ the camera pen at
maximum effect for purposes of obtaining footage of the teen naked and in various stages of
undress. Stated otherwise, the evidence strongly indicated that defendant used the camera pen
for a lewd or lascivious purpose and not for the purpose of monitoring security in the residence.

       With respect to the sufficiency argument, viewing the direct and circumstantial evidence
discussed above in a light most favorable to the prosecutor, appreciating that circumstantial
                                                -4-
evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of
a crime’s elements, and resolving all evidentiary conflicts in favor of the prosecution, we hold
that there was sufficient evidence to show a lewd or lascivious purpose in regard to defendant’s
actions. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466
Mich 417, 428; 646 NW2d 158 (2002); People v Carines, 460 Mich 750, 757; 597 NW2d 130
(1999); People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). To the extent that
defendant testified that he did not act with a lewd or lascivious intent but only acted for security
reasons in response to inappropriate behavior by the victim in relation to drug and alcohol use,
missing items in the home, and other alleged misdeeds, we defer to the jury’s assessment of
witness credibility. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992). With
respect to defendant’s claim that he did not actually view the recordings, a police officer testified
that he could not tell whether the recordings had been viewed by defendant. The officer also
testified that it appeared that several recordings had been deleted or were missing. Regardless,
neither § 539d nor § 539j require a defendant to view the recorded material and, assuming that
defendant did not view the recordings, it does not undermine our conclusion that the evidence
adequately showed that he used the camera pen for a lewd or lascivious purpose. Moreover, the
jury was free to reject defendant’s claim that he had not viewed the recordings.

        With respect to defendant’s great-weight argument, the evidence regarding the purpose
behind defendant’s actions in deploying the camera pen did not preponderate heavily against the
verdict, such that a miscarriage of justice would occur absent reversal. People v Lemmon, 456
Mich 625, 647; 576 NW2d 129 (1998). The evidence showing that defendant acted with a lewd
or lascivious purpose did not contradict indisputable physical facts, was not patently incredible,
and was not inherently implausible. Id. There was strong evidence, recited earlier, that
defendant used the camera pen for a lewd or lascivious purpose, as opposed to employing the
camera pen for a security-monitoring purpose. Reversal is unwarranted.

        Finally, defendant argues that the prosecution committed misconduct when it interfered
with defendant’s girlfriend’s employment and otherwise generally harassed her in an overly-
aggressive effort to have her testify against defendant and in favor of the prosecution.
Defendant’s girlfriend had reconciled with him before trial. Assuming the record supported the
factual predicate for defendant’s argument on harassment, which it does not, the girlfriend
ultimately testified in a manner that lent support, as best she could, to defendant’s position that
he did not use the camera pen for a lewd or lascivious purpose but rather to address her
daughter’s behavioral problems. Defendant has not even alleged prejudice, let alone established
that any misconduct affected the outcome of his trial. Assuming misconduct, defendant was not
denied a fair and impartial trial, People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007),
and the misconduct constituted harmless error, People v Mezy, 453 Mich 269, 285-286; 551
NW2d 389 (1996) (applying harmless-error rule to claim of prosecutorial misconduct).

       Affirmed.



                                                              /s/ Michael J. Talbot
                                                              /s/ William B. Murphy
                                                              /s/ Elizabeth L. Gleicher


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