People v. Houston

• Decision Date: 24 June 2004
• Docket Number: Docket No. 245889.
• Citation: 261 Mich.App. 463,683 N.W.2d 192
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Duane Joshua HOUSTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

683 N.W.2d 192

261 Mich.App. 463

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Duane Joshua HOUSTON, Defendant-Appellant.

Docket No. 245889.

Court of Appeals of Michigan.

Submitted March 9, 2004, at Lansing.

Decided April 1, 2004, at 9:10 a.m.

Released for Publication June 24, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief, Research, Training, and Appeals, and Vikki Bayeh Haley, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Gail Rodwan), for the defendant on appeal.

Before: JANSEN, P.J., and MARKEY and GAGE, JJ.

MARKEY, J.

Defendant appeals by right his convictions and sentences, after a jury trial, of second-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony, MCL 750.227b. Defendant argues that the trial court abused its discretion by admitting evidence that three days before the murder defendant possessed a weapon similar to one used in the homicide. He also contends that he must be resentenced because the trial court relied on inaccurately scored sentencing guidelines to sentence him to life imprisonment. We find that the trial court did not abuse its discretion in admitting the evidence in question. Further, although defendant's arguments regarding the trial court's scoring of offense variable OV 3 and OV 14 have merit, we hold, in an issue of first impression, that the life sentence imposed by the trial court was appropriate even under defendant's version of the correct scoring. Any guidelines scoring error was therefore harmless. Accordingly, we affirm defendant's convictions and sentences.

I

Defendant first argues that the trial court abused its discretion by admitting evidence that defendant possessed a .380-caliber handgun three days before the crime. Defendant contends the evidence was not relevant, that it should have been excluded under MRE 403, and that it was evidence of another crime, but the prosecutor failed to provide the notice required by MRE 404(b)(2). We disagree. Defendant preserved his challenge of this evidence on grounds of relevancy, unfair prejudice, and that the evidence did not meet the requirements of MRE 404(b)(1), by objecting on those grounds in the trial court. MRE 103(a)(1); People v. Aldrich, 246 Mich.App. 101, 113, 631 N.W.2d 67 (2001). But defendant failed to preserve a specific objection regarding pretrial notice required by MRE 404(b)(2). MRE 103(a)(1); Aldrich, supra.

We review for a clear abuse of discretion the trial court's decision to admit or exclude evidence. Aldrich, supra at 113, 631 N.W.2d 67. An abuse of discretion exists only if an unprejudiced person considering the facts on which the trial court acted would say that there is no justification or excuse for the trial court's decision. People v. Snider, 239 Mich.App. 393, 419, 608 N.W.2d 502 (2000). A trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion. People v. Layher, 464 Mich. 756, 761, 631 N.W.2d 281 (2001). A preserved nonconstitutional evidentiary error will not merit reversal unless it involves a substantial right, and, on review of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome-determinative. People v. Lukity, 460 Mich. 484, 495-496, 596 N.W.2d 607 (1999).

We review for plain error unpreserved claims of evidentiary error. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999). To warrant reversal, defendant must establish that the plain error affected his substantial rights, meaning that the error was outcome-determinative. Id.

Evidence that defendant possessed a .380-caliber pistol three days before the crime was relevant; consequently, we conclude the trial court did not abuse its discretion by admitting it. MRE 401; MRE 402. Further, the trial court properly concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. MRE 403. Because the evidence was properly admitted, defendant cannot establish that the prosecutor's alleged failure to comply with MRE 404(b)(2) affected his substantial rights. People v. Hawkins, 245 Mich.App. 439, 455, 628 N.W.2d 105 (2001).

Generally, all relevant evidence is admissible at trial. Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the action more probable or less probable than it would be without the evidence. Under this broad definition, evidence is admissible if it is helpful in throwing light on any material point. However, even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. [Aldrich, supra at 114, 631 N.W.2d 67 (citations omitted).]

Here, evidence that defendant possessed a .380-caliber pistol three days before the crime was directly relevant to identifying defendant as the killer. In People v. Hall, 433 Mich. 573, 447 N.W.2d 580 (1989), our Supreme Court, in a decision that presaged the Court's subsequent approach to MRE 404(b),¹ held that the defendant's possession of a sawed-off shotgun over six months after the charged armed robbery, though showing an unrelated offense, was relevant and admissible to show that the defendant committed an armed robbery using a similar weapon. "Evidence of a defendant's possession of a weapon of the kind used in the offense with which he is charged is routinely determined by courts to be direct, relevant evidence of his commission of that offense." Hall, supra at 580-581, 447 N.W.2d 580. The Court noted that "the shotgun itself was equally as direct an item of evidence of defendant's commission of the charged robbery in this case as marked bills or identifiable jewelry would be in another...." Id. at 583, 447 N.W.2d 580. Thus the evidence at issue, together with the fact that the victim was killed with a . 380-caliber gun, was directly probative of defendant's guilt.

Defendant also fails to overcome his heavy burden of showing that the trial court abused its discretion by declining to exclude the testimony on the grounds that it would cause unfair prejudice, confusion of the issues, or mislead the jury. MRE 403; People v. Albers, 258 Mich.App. 578, 588, 672 N.W.2d 336 (2003). The parties' theories of the case were relatively simple. The testimony did not necessarily portray that defendant committed another crime, because unlike the sawed-off shotgun in Hall, mere possession of a pistol is not a crime. Also, the record does not indicate that the prosecutor attempted to suggest that the evidence established an improper inference linking character to conduct. Nevertheless, the trial court specifically instructed the jury that such an inference was not permitted. Evidence is not unfairly prejudicial simply because it is damaging to a party's position at trial. See People v. Mills, 450 Mich. 61, 75, 537 N.W.2d 909 (1995), mod and remanded 450 Mich. 1212, 539 N.W.2d 504 (1995). All relevant evidence will be damaging to the extent it tends to prove the charged offense. Id. Given the high probative value of the evidence, the trial court did not abuse its discretion by finding that the danger of unfair prejudice did not substantially outweigh the general rule of admissibility. Hall, supra at 584-585, 447 N.W.2d 580; see, also, People v. Rice (on reManD), 235 mich.App. 429, 441, 597 n.w.2D 843 (1999).

Defendant's argument regarding MRE 404(b) also fails. Analysis under MRE 404(b) is inapposite because the evidence that defendant possessed a .380-caliber pistol three days before the crime did not operate through an intermediate inference. Hall, supra at 583, 447 N.W.2d 580. Nor did the prosecutor present the evidence for the prohibited purpose of proving that defendant committed the crimes charged in accordance with a pattern of historical misconduct. See People v. Starr, 457 Mich. 490, 495, 577 N.W.2d 673 (1998), and People v. Golochowicz, 413 Mich. 298, 308, 319 N.W.2d 518 (1982). Thus, the evidence was not offered "to prove a person's character to show that the person acted in conformity with character on a particular occasion." People v. Sabin (After Remand), 463 Mich. 43, 56, 614 N.W.2d 888 (2000). Because the evidence was directly relevant to identifying defendant as the killer and did not involve an intermediate inference of character, MRE 404(b) was not implicated. People v. VanderVliet, 444 Mich. 52, 64, 508 N.W.2d 114 (1993), mod 445 Mich. 1205, 520 N.W.2d 338 (1994).

But even if MRE 404 applied to the evidence at issue, the evidence was still properly admitted. In Hawkins, supra, this Court summarized the criteria for admissibility of evidence under MRE 404(b) as clarified by our Supreme Court in VanderVliet.

Prior bad acts evidence is admissible if: (1) a party offers it to prove something other than a character to conduct theory as prohibited by MRE 404(b); (2) the evidence fits the relevancy test articulated in MRE 402, as enforced by MRE 104(b); and (3) the balancing test provided by MRE 403 demonstrates that the evidence is more probative of an issue at trial than substantially unfair to the party against whom it is offered, defendant in this case. A fourth factor articulated in VanderVliet, which does not fully conform to the idea of a test expressed in the preceding three factors, suggests that a party may request a limiting instruction under MRE 105 if the trial court decides to admit the challenged evidence. [Hawkins, supra at 447-448, 628 N.W.2d 105 (citations and internal punctuation omitted).]

The evidence in this case met these criteria because it was relevant for a reason other than to...