STATE OF MICHIGAN IN THE 26" CIRCUIT COURT FOR THE COUNTY OF ALPENA PEOPLE OF THE STATE OF MICHIGAN, Plaintiff File No.; 21-001328-FH V BRAD ADAM SREBNIK, Defendant - nae, ont is CYNTHIA M, MUSZYNSKI (P71453) MICHAEL D. VOGLER (P38725) Alpena County Prosecutor Attorney for Defendant 719 W. Chisholm St. 1354 West Third St. Rogers City, MI 49779 (989) 734-8500 OPINION AND ORDER DENYING DEFENDANT'S MOTION TO QUASH PRESENT BY ASSIGNMENT: HON. LORA E. GREENE Defendant Brad Adam Srebnik has been charged with unlawful imprisonment, felon in possession of @ firearm, and possession of a firearm during the commission of a felony (felony- firearm), He now moves to quash the bindover of his charge for unlawful imprisonment. Defendant contends there was insufficient evidence at the preliminary examination to support the offense. STANDARD OF REVIEW A magistrate’s decision to bindover a defendant is reviewed for an abuse of discretion. People v Szabo, 303 Mich App 737, 741; 846 NW2d 412 (2014). A court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes and it “necessarily abuses its discretion when it makes an error of law.” People v Waterstone, 296 Mich App 121, 131-132; 818 NW2d 432 (2012). FILE! IAN 28 2ANALYSIS. The primary funetion of a preliminary examination is to determine whether @ crime has ‘committed, and, iso, whether there is probable cause to believe that the defendant committed it. People v Plunkett, 485 Mich 30, $7; 780 NW2d 280 (2010), At the conclusion of the hearing, if it appears to the magistrate that there is probable cause to believe that a felony has been committed and the defendant committed it, the de cndant must be bound over for trial. MCL 766.13, MCR 6.110(E). Probabl cause that the defendant committed the crime is established by evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of defendant's guilt. Plunkett, 485 Mich at $7. To establish that a crime has been committed, a prosecutor need not prove each element beyond a reasonable doubt, but she must present some evidence of each element. People v Henderson, 282 Mich App 307; 765 NW2d 619 (2009). A person commits the crime of unlawful imprisonment if he or she knowingly restrains another person... by means of a weapon or dangerous instrument.”" MCL 750.349b(1)(@). The term “restrain” is defined as “to forcibly restrict a person's movement or to forcibly confine the person so as to interfere with that person’s liberty without that person’s consent or without laveful authority.” MCL 750.349b(3)(a). Restraint need not occur for any particular length of time and. “may be related or incidental to the commission of other eriminal acts.” People v Bosea, 310 Mich App I, 16; 871 NW2d 307 (2015). It appears the prosecution’s theory of the case is that the Defendant is guilty of unlawful imprisonment as an aider or abettor. See People’s Brief in Support of Defendant’s Motion to Quashat pgs. 6-7. A person who aids or abets the commission of the crime may be convicted and punished. ied the offense. MCL 767.39. To support a finding that a defendant aided a he direetly comn and abetted a crime, the prosecution must generally show that (1) the crime charged was commitied by the defendant or some other person, (2) that the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) that the defendant cither intended the commission of the crime or had knowledge that the prineipal intended its commission at the time he gave aid and encouragement. People v Izarraras-Placante, 246 Mich App 490, 496-497; JT8.1, Alternatively, the prosecution may prove an 633 NW2d 18 (2001): see also and M Cri offense on an aiding and abetting theory with evidence that “the charged offense was a natural and probable consequence of the commission of the intended offense.” People v Robinson, 475 Mich 5; 715 NW2d 44 (2006). Greg Schuelke was the main witness at the preliminary examination. He testified that he was working at Prell’s Towing on the night of September 21, 2021.? He received a late call from his coworker, Joshua Wirgau, requesting a ride baek to his vehicle at the shop.” When he arrived for the pickup, Wirgau opened the door and entered the vehicle:* Schuelke noticed two other individuals get in the flatbed of the truck carrying AR-15 type-weapons and a black bag.’ Hi recognized the individuals as the Defendant and Abby Hil.’ Wirgau then proceeded to point a handgun at Schuelke and demanded he take them to an intersection several miles away.’ Schuelke further testified that he felt “forced” to do as he was told because he was afraid of “being shot in the head.Wirgau was observed crying and upset during the drive.” Although the intersection was nearby, Schuelke described it as a “long drive” because he didn’t know what was going to happen.'° Wirgau proceeded to hand Schuelke a “little ba: e” containing a substance he believed to be cocaine.'' When they arrived at the intersection, the Defendant approached Schuelke and said “here's a hundred dollars,” “tell Amber [ love her.” and instructed him to “take off In deciding to bindover the Defendant for trial, the Court detailed the strengths and weaknesses of the prosecutor's evidence as follows [The Defendant's] comments, those actions, show some degree of concert of action T would acknowledge it’s not known exactly what the concert of action was. And I would acknowledge that the degree of intent as to the unlawful imprisonment . is weak. But this is a probable cause standard. The reality is that the witness, Mr Schuelke, believed that all of them were acting in concert to have him go out to that intersection . .. and that they were all. .. armed. The element [that] the Court is most concerned about is the specific intent. But what is clear is that there was a concert of action in going out to that area. . . | believe that the burden of mere presence has been met. It was more than just mere presence. These three individuals had some sort of black bag, a smattering of weapons and were working in concert to go somewhere. wee At some point in time there was the specific intent added, provided by Mr. Wirgau. ‘And that specific intent was aided, in some degree, however minor or what not, by the Defendant, Mr. Srebnik, because he had a weapon at the same time. And, clearly, he knew that the plan was not go back to the original location, but was to go to a different location. So I do believe that there was a restraint, that being confining, without the person’s liberty, that being of Mr. Schuelke.'? There was no abuse of discretion with this analysis. Schuelke testified that he thought he was picking up Wirgau to transport him back to the shop. He did not know two other individuals