People v. Arnold, 041216 MICA, 325407

Docket Nº:325407
Opinion Judge:Per Curiam.
Party Name:PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LONNIE JAMES ARNOLD, Defendant-Appellant.
Judge Panel:Before: Gleicher, P.J., and Cavanagh and Fort Hood, JJ.
Case Date:April 12, 2016
Court:Court of Appeals of Michigan
 
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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v.

LONNIE JAMES ARNOLD, Defendant-Appellant.

No. 325407

Court of Appeals of Michigan

April 12, 2016

UNPUBLISHED

Monroe Circuit Court LC No. 13-040406-FH

Before: Gleicher, P.J., and Cavanagh and Fort Hood, JJ.

Per Curiam.

A jury convicted defendant of aggravated indecent exposure, MCL 750.335a(2)(b), and indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c). Defendant's convictions were based on his act of exposing himself and masturbating in a public library elevator in front of a library employee. The trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to 2 to 15 years' imprisonment for the aggravated indecent exposure conviction and 25 to 70 years' imprisonment for the indecent exposure by a sexually delinquent person conviction.

Defendant contends that the trial court improperly admitted evidence that he committed a similar offense in 2002. This claim lacks merit. . Defendant aptly contends, however, that his convictions violate double jeopardy principles. Moreover, the trial court sentenced defendant according to the legislative guidelines without acknowledging that the guidelines are advisory only and that it had the discretion to sentence defendant to an indeterminate term of one day to life imprisonment for his indecent exposure by a sexually delinquent person charge. Accordingly, we affirm defendant's conviction on the charge of indecent exposure by a sexually delinquent person, vacate the conviction and sentence for aggravated indecent exposure, and remand to determine the need for resentencing as provided in United States v Crosby, 397 F.3d 103, 117-118 (CA 2, 2005).

I. OTHER ACTS EVIDENCE

In 2002, defendant pleaded guilty to indecent exposure following events unrelated to this case. At trial in the current matter, the prosecution presented testimony from the victim of that crime. The events leading up to defendant's exposure were similar in both situations. Defendant engaged both victims in general conversation at the victims' places of employment. He also inquired of both women whether they were happy in their marriages. In the prior offense, defendant returned to the location the following day and gestured for the victim to follow him to a more confined area within the store, where he exposed his penis and masturbated. Defendant contends that evidence regarding his prior offense was inadmissible under MRE 404(b). Defendant preserved his challenge by raising a contemporaneous objection. We review for an abuse of discretion a trial court's decision to admit evidence over a party's objection. People v Dobek, 274 Mich.App. 58, 84-85; 732 N.W.2d 546 (2007).

MRE 404(b) governs the admission of other acts evidence, and provides:

(1) 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 or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.

When reviewing whether evidence was properly admitted under MRE 404(b), we must consider (1) whether the evidence was "offered for a proper purpose under Rule 404(b)"; (2) whether the evidence was "relevant under Rule 402 as enforced through Rule 104(b)"; (3) whether the evidence's probative value was substantially outweighed by unfair prejudice as provided in MRE 403; and (4) whether the trial court provided "a limiting instruction to the jury." People v VanderVliet, 444 Mich. 52, 55; 508 N.W.2d 114 (1993), amended 445 Mich. 1205 (1994). "At its essence, MRE 404(b) is a rule of...

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