People v. Ullah, Docket No. 180408

• Decision Date: 17 May 1996
• Docket Number: Docket No. 180408
• Citation: 550 N.W.2d 568,216 Mich.App. 669
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Abruse ULLAH, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 568

550 N.W.2d 568

216 Mich.App. 669

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Abruse ULLAH, Jr., Defendant-Appellant.

Docket No. 180408.

Court of Appeals of Michigan.

Submitted April 17, 1996, at Detroit.

Decided May 17, 1996, at 9:25 a.m.

Released for Publication July 12, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, for the People.

Carl Ziemba, Detroit, for defendant on appeal.

Before TAYLOR, P.J., and FITZGERALD and HOUK, ^* JJ.

TAYLOR, Presiding Judge.

Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1)(f) (force or coercion used to accomplish sexual penetration causing personal injury to the complainant), arising out of a sexual assault upon his estranged wife. ¹ Defendant received concurrent sentences of sixteen to forty years in prison. Defendant appeals as of right. We reverse and remand.

The complainant testified that on August 4, 1993, she and defendant were in a building where they both worked and that defendant asked her to come upstairs for a talk. Defendant grabbed her arm and pulled her up the stairs. When they reached the top of the stairs, the complainant asked defendant what he wanted, whereupon he punched the complainant in the face, stomped on her stomach with his street shoes, dragged her into another room, and began beating her again. She stated that defendant then demanded that she remove her clothes and started taking her clothes off when she refused. The complainant indicated that she was screaming during the assault, but that no one came to her rescue. After taking the complainant's clothes out of the room, defendant returned and forced her to engage in sexual intercourse. After defendant left the room, the complainant telephoned the police, reporting that she was being held hostage, and subsequently filed a police report. At the time of the assault, defendant and the complainant had been married only a few months. They were, however, separated.

Defendant testified that he called the complainant up to the office to discuss his suspicions that she was dating someone else and had been spying on him. He admitted slapping her with force twice, but denied stomping on her. Defendant testified that he had apologized for the slaps when he saw that her eye had begun to swell and that he then began crying. Following this, he stated that the complainant then asked him to make love to her and that he complied. There were no other witnesses to the sexual assault, making the trial primarily a credibility contest.

Defendant contends that he was denied his right to a fair and impartial trial because of the admission of testimony concerning other wrongful acts. We agree.

The prosecutor asked the complainant if she had moved out of the marital home. She indicated that she had moved out two days after marrying defendant, because he had knocked her down and beat her in such a manner that everything went black. When asked if she had called the police on that occasion, she said that defendant had blocked the door with a piece of furniture and had watched her "all night with a gun and told me he would blow my brains out if I [had dared] try to leave." She also said that her face had become all swollen and black and blue as a result of the beating. She further testified that, after a time, defendant had let her out of the bedroom to talk to someone at the door but only after he had made her put on makeup and sunglasses. She then had run out of the house and had jumped into that person's car and had gone to a hospital emergency room. When asked if she had gone back to live with defendant at a later time, defense counsel objected to "this whole line of questioning." The court sustained the belated objection. The prosecutor then asked the complainant if she had had any other physical encounters with defendant, and she said that there had been and that it had occurred when she had thrown a surprise birthday party for defendant. As she began preparing to give details regarding the incident, the court excused the jury and asked defense counsel if he had an objection. Defense counsel said that he did object. The prosecutor then agreed to focus on the date of the event that led to the charges. The jury, however, heard about the first beating a second time when, during cross-examination, the complainant stated that she had fled the house on February 13 because defendant had "beat the living hell out of me" and further stated that she had fled the home again on April 30, which was the day of defendant's birthday party. The court sua sponte ordered these comments stricken. When defense counsel asked the complainant why she had not gone to the hospital after the incident leading to the charges, she stated that she had been to the hospital previously "on beatings."

Generally, we review a trial court's decision to admit evidence for an abuse of discretion. People v. Bahoda, 448 Mich. 261, 289, 531 N.W.2d 659 (1995). An abuse of discretion exists when the court's decision is so grossly violative of fact and logic that it evidences perversity of will, defiance of judgment, and the exercise of passion or bias. Id. at 289, n. 57, 531 N.W.2d 659. Stated somewhat differently, an abuse of discretion also exists when an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. People v. Taylor, 195 Mich.App. 57, 60, 489 N.W.2d 99 (1992). In the case at bar, however, the court did not make a decision to admit the challenged evidence. Indeed, after a belated objection was raised, the court questioned how the evidence was relevant and said that it found the testimony more prejudicial than probative. When the prosecutor asked the complainant another question that would have provided additional bad-acts testimony, the court sua sponte excused the jury to see if defense counsel had an objection. The prosecutor claimed he was offering the evidence under MRE 404(b) to show defendant's character. The court correctly noted that MRE 404(b) specifically does not allow evidence of other bad acts to show the character of a defendant. The court then found the other bad-acts testimony to be more prejudicial than probative.

The trial court has a duty to limit the introduction of evidence and the arguments of counsel to relevant and material matters, M.C.L. § 768.29; M.S.A. § 28.1052, and to assure that all parties that come before it receive a fair trial. Reetz v. Kinsman Marine Transit Co, 416 Mich. 97, 103, n. 9, 330 N.W.2d 638 (1982). Therefore, we commend the trial court's decision to intervene and prevent the prosecutor from eliciting a second round of bad-acts testimony and for striking the complainant's later testimony regarding the two times she fled the house months before the charged incident. However, we find that the court's action simply came too late because the jury had already heard unfairly prejudicial testimony regarding a brutal incident that occurred two days after defendant and the complainant had married that was unrelated to the charged offenses.

Pursuant to MRE 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence may, however, be admissible to show a motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when material. People v. VanderVliet, 444 Mich. 52, 508 N.W.2d 114 (1993), M.C.L. § 768.27; M.S.A. § 28.1050. However, pursuant to MRE 404(b)(2), the prosecution must provide reasonable notice before trial, or during trial if the court excuses pretrial notice on good cause, before it may seek to admit such evidence. Here, the prosecutor did not provide notice at any time that it intended to elicit such evidence.

It is further the case that other-acts evidence is not admissible simply because it does not violate MRE 404(b). The trial court must also determine whether the evidence is relevant under MRE 402 and whether the danger of unfair prejudice substantially outweighs the probative value of the evidence under MRE 403. VanderVliet, supra at 74-75, 508 N.W.2d 114. In the case at bar, the trial court questioned the relevance of the bad-acts testimony and determined that it was more prejudicial than probative after the jury had already heard it. We agree with this determination. On this record the testimony regarding the prior beating was not logically relevant to an element of the charged offenses. The prior beating was not accompanied by a demand from defendant for sex. We also find that the prior beating was not relevant to the issue of consent to sexual intercourse because the complainant never testified that she, aware of how violent he could get from the earlier incident, stopped resisting him. If the complainant had testified that she fearfully submitted, the earlier beating would be relevant to vitiate the apparent consent. That situation is not found here because the complainant's resistance never wavered, and, from reviewing her testimony, we can conclude that defendant was, on this occasion, even more physically violent when he demanded sex than he had been when he physically assaulted her months earlier. We also note that the trial court determined, after the fact, that the testimony regarding the first beating was more prejudicial than probative. As stated in Bahoda, supra at 291, 531 N.W.2d 659, such determinations are best left to a contemporaneous assessment of the presentation, credibility, and effect of the testimony by the trial judge.

Error in the admission of evidence is not grounds for reversal where the...