People v. Starr

• Decision Date: 10 September 1998
• Docket Number: No. 5,Docket No. 107013,5
• Citation: 577 N.W.2d 673,457 Mich. 490
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Malcolm Richard STARR, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 673

577 N.W.2d 673

457 Mich. 490

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Malcolm Richard STARR, Defendant-Appellee.

Docket No. 107013.

Calendar No. 5.

Supreme Court of Michigan.

Argued Nov. 4, 1997.

Decided June 2, 1998.

Rehearing Denied Sept. 10, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Lenore M. Ferber, Assistant Prosecuting Attorney, Ann Arbor, for People.

Daniel J. Rust, Redford, for defendant.

William A. Forsyth, President, and Timothy K. McMorrow, Chief Appellate Attorney, Grand Rapids amicus curiae, for Prosecuting Attorneys Association of Michigan.

Opinion

WEAVER, Justice.

We granted leave to determine whether the trial court abused its discretion in admitting testimony by defendant's younger half-sister that he had abused her before abusing the victim in this case, his minor adopted daughter. The Court of Appeals found that the trial court abused its discretion in admitting such testimony. ¹ We disagree and find that there was no abuse of discretion. People v. VanderVliet, 444 Mich. 52, 508 N.W.2d 114 (1993). Accordingly, we reverse the decision of the Court of Appeals.

I

In March, 1994, the victim in this case, the nine-year-old adopted daughter of defendant, told her mother, in response to questions, that defendant had engaged in numerous sexual acts with her in 1992, when she was six. During that time, she lived with defendant at her grandparents' home. When she told her mother that this abuse had occurred, her parents had been divorced approximately two years, since November, 1992, and were engaged in a dispute regarding visitation.

On the basis of the victim's admissions to her mother, defendant was charged with two counts of first-degree criminal sexual conduct ² and one count of second-degree criminal sexual conduct. ³

Before trial, the prosecution moved to admit testimony by defendant's half-sister that he had subjected her to similar sexual conduct and rape. These alleged acts were uncharged and occurred over a fourteen-year period that began in 1977 when the she was four years old, and ended in 1991 when the she was approximately eighteen, three years before the instant case. ⁴ His half-sister testified that the abuse ended only when she became pregnant and told the defendant she would no longer have intercourse with him.

The trial judge ruled that the evidence was admissible because, in light of this Court's decision in People v. VanderVliet, supra, under MRE 404(b) the probative value of the testimony was not substantially outweighed by its prejudicial effect.

The prosecution offered the victim's testimony that defendant engaged in sexual conduct with her when she was in the first grade and living with him at her grandparents' home. Specifically, she testified that "a lot of times" defendant rubbed his privates on her privates, licked her privates, and made her lick his privates. She indicated that defendant's privates were located "[b]elow his waist" and that "kiss[ing]" his private meant that she put his private "on" or "in [her] mouth" and "[m]ov[ed her] head up and down." She further testified that before and after these acts would occur, defendant would show her "dirty magazines and tapes."

Defendant's half-sister was twenty-one at the time of trial and testified that defendant is her half-brother and is approximately eight and one-half years older than she. According to her, defendant began abusing her when she was four years old. The abuse began with defendant touching her vagina, and, over the course of the next thirteen years, escalated to cunnilingus and culminated in intercourse.

At trial, defendant entered a general denial with respect to the charges and flatly denied any sexual involvement with his half-sister at any time. The defendant was the main witness for the defense. He claimed that the charges were fabricated in order to prevent him from being able to visit his children. To rebut this allegation, the victim's mother testified that she never threatened to prevent defendant from seeing his children and victim.

The jury convicted defendant on all charges on July 12, 1994, and the trial judge sentenced him to consecutive sentences of fifteen to thirty-five years imprisonment for each CSC I conviction, and ten to fifteen years imprisonment for the CSC II conviction.

Defendant appealed, and the Court of Appeals reversed ⁵ on the basis that the prejudicial nature of the evidence substantially outweighed its probative value.

We granted leave to consider whether the trial court abused its discretion in admitting the sister's testimony.

II

Resolution of the issue before us turns on our application of Michigan Rule of Evidence 404(b), regarding the admissibility of "other crimes, wrongs, or acts," to the facts of this case. The decision whether evidence is admissible is within the trial court's discretion and should only be reversed where there is a clear abuse of discretion. People v. Bahoda, 448 Mich. 261, 531 N.W.2d 659 (1995).

A

Generally, Michigan's Rules of Evidence proscribe the use of character evidence to prove action in conformity therewith. MRE 404. ⁶ Character evidence includes evidence of other crimes, acts, or wrongs, such as, in this case, the half-sister's testimony that defendant sexually abused her over a period of years and several years before trial. This Court has previously explained the policy reason for the rule as

the desire to avoid the danger of conviction based upon a defendant's history of other misconduct rather than upon the evidence of his conduct in the case in issue. [People v. Golochowicz, 413 Mich. 298, 308, 319 N.W.2d 518 (1982).]

MRE 404(b)(1) is a means by which "other acts" evidence is properly admissible. This rule provides, in relevant part:

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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake....

While MRE 404(b)(1) is one of a few rules with which "other acts" evidence may properly be admitted, it is a rule of inclusion that contains a nonexclusive list of "noncharacter" grounds on which evidence may be admitted. This rule permits the admission of evidence on any ground that does not risk impermissible inferences of character to conduct. People v. Engelman, 434 Mich. 204, 213, 453 N.W.2d 656 (1990).

To protect against such impermissible inferences, this Court has established a procedural safeguard in the form of a four-pronged standard that a trial court must insure is satisfied before admission of other acts evidence. 413 Mich. at 309, 319 N.W.2d 518. This Court recently redefined the four-part standard for admissibility of other acts evidence under Rule 404(b) in People v. VanderVliet and rejected a mechanical application of a bright-line test for admissibility under MRE 404(b). The VanderVliet standard requires that the trial court determine:

First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [Id. at 55, 508 N.W.2d 114.]

Under the first prong, Rule 404(b) prohibits admission of evidence " '[i]f the proponent's only theory of relevance is that the other act shows defendant's inclination to wrongdoing in general to prove that the defendant committed the conduct in question...." People v. VanderVliet at 63, 508 N.W.2d 114. Rule 404(b), however, permits admissibility of evidence whenever it is relevant to a noncharacter theory such as, but not limited to, those reasons specifically listed in the rule. ⁷

Regarding relevance, the "touchstone" of admissibility and the second prong of the standard, Michigan's evidentiary rules specifically instruct us that

[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible. [MRE 402.]

According to MRE 104(b), "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." Relevant evidence has two characteristics: it is "material" and has "probative force." MRE 401. ⁸ To be "material," the evidence must be logically relevant to an issue or fact of consequence at trial. Any tendency to prove such a fact in issue constitutes sufficient probative value for purposes of relevancy.

This Court recently clarified that the third prong of this standard requires nothing more than the balancing process described in MRE 403. People v. VanderVliet at 72, 508 N.W.2d 114. Rule 403 allows for the exclusion of relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ⁹ Finally, we would note that the fourth and final part of this standard needs no clarification because it merely authorizes "a limiting instruction" upon request. VanderVliet, 444 Mich. at 75, 508 N.W.2d 114.

B

In this case, the Court of Appeals held that the trial court abused its discretion with respect to this third prong of the VanderVliet standard. According to the Court of Appeals,

these allegations of similar acts were so horrendously prejudicial as to require their suppression...