People v. Ackerman

• Decision Date: 08 July 2003
• Docket Number: Docket No. 228526.
• Citation: 257 Mich. App. 434,669 N.W.2d 818
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald Steven ACKERMAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

669 N.W.2d 818

257 Mich. App. 434

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald Steven ACKERMAN, Defendant-Appellant.

Docket No. 228526.

Court of Appeals of Michigan.

Submitted February 11, 2003, at Detroit.

Decided July 8, 2003, at 9:05 a.m.

Released for Publication September 9, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Peter R. George, Prosecuting Attorney, and Timothy K. Morris, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Peter Jon Van Hoek) for the defendant on appeal.

Before: MARKEY, P.J., and SMOLENSKI and METER, JJ.

PER CURIAM.

Defendant Gerald S. Ackerman appeals by right his convictions¹ for sexually abusing three girls under the age of thirteen. He was sentenced to concurrent terms of twenty-five to thirty-eight years imprisonment for four counts of first-degree criminal sexual conduct, M.C.L. § 750.520b(1); eighteen to thirty-six years for another count of first-degree criminal sexual conduct; seven to twenty years each for two counts of child sexually abusive activity, M.C.L. § 750.145c(2); and seven to fifteen years each for three counts of second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(a). We affirm.

Defendant first argues that the trial court abused its discretion by admitting evidence of defendant's consensual sexual relationships with two young women and evidence of acts of indecent exposure of which defendant was convicted. We conclude that the trial court did not abuse its discretion. People v. Starr, 457 Mich. 490, 494, 577 N.W.2d 673 (1998). This Court must form more than a difference of opinion with the trial court before we may find that the trial court abused its discretion. People v. Hine, 467 Mich. 242, 250, 650 N.W.2d 659 (2002). Indeed, this Court must find that the trial court's decision was so palpably and grossly contrary to fact and logic that it evidenced not the exercise of will but perversity of will, not the exercise of judgment but the defiance of it. Id. Under this standard, it is difficult to hold that a court abused its discretion on a close evidentiary question. Id.; People v. Sabin (After Remand), 463 Mich. 43, 67, 614 N.W.2d 888 (2000).

Defendant became the Mayor of the city of Port Huron in July 1997 and was the mayor at the time the charged crimes were committed. Defendant also was a supervisor at a community facility known as Clear Choices where youths could socialize, dance, and play games. The prosecution argued that the evidence of other acts was relevant to show defendant's system of selecting, desensitizing, and seducing victims. The trial court agreed that the evidence of indecent exposure was relevant "to the issues of desensitization of... victims and ... how that relates in the overall scheme of things." With regard to evidence of defendant's consensual sexual activities with two young women who frequented Clear Choices, the trial court affirmed the ruling it made before defendant's first trial. The trial court stated:

This Court finds that the evidence is offered for a proper purpose under Rule 404(b), and is relevant under Rule 402 as enforced through Rule 104(b)[.] [S]pecifically, the People may introduce testimony of the two witnesses whose alleged relationship with the Defendant began when they were each 17 years of age.

This testimony about their alleged relationship with the Defendant would go towards showing a, a pattern of Defendant's behavior in grooming other alleged victims out of Clear Choices in the case for sexual relationships.

However, I'm going to confine any of that testimony as to activities at the site of Clear Choices. I will not entertain any comparable type of sexual activity with these persons away from that facility because it's—that's one of the controlling considerations that the Court is looking at in making this ruling.

The trial court also found that the probative value of the proffered evidence was not substantially outweighed by the danger of unfair prejudice to defendant.

Under Michigan's rules of evidence, all logically relevant evidence is admissible at trial, except as otherwise prohibited by the state or federal constitutions or other court rules. MRE 401; MRE 402; People v. VanderVliet, 444 Mich. 52, 60-61, 508 N.W.2d 114 (1993), mod 445 Mich. 1205, 520 N.W.2d 338 (1994). To be relevant, the evidence must be material or probative of a fact of consequence to the action. People v. Mills, 450 Mich. 61, 67, 537 N.W.2d 909, mod and remanded 450 Mich. 1212, 539 N.W.2d 504 (1995). To be material, the fact must be one "in issue" or within the "range of litigated matters in controversy." Sabin, supra at 57, 614 N.W.2d 888 (internal quotation marks and citations omitted). However, evidence of other crimes, wrongs, or acts may not be used to prove a person's character to show that the person possessed a propensity to commit the charged offenses. Id. at 56, 614 N.W.2d 888; MRE 404(b). In VanderVliet, supra at 74-75, 508 N.W.2d 114, our Supreme Court adopted from Huddleston v. United States, 485 U.S. 681, 691, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the analytical framework trial courts must apply to the difficult task of discerning improper character evidence by utilizing "the safeguards already present in the Rules Of Evidence." Thus, other acts evidence may be admitted where: (1) the evidence is offered for some purpose other than under a character-to-conduct theory, or a propensity theory, (2) the evidence is relevant to a fact of consequence at the trial, and (3) the trial court determines under MRE 403 that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. If requested, the trial court may provide a limiting instruction under MRE 105. Sabin, supra at 55-56, 614 N.W.2d 888.

In Sabin, supra at 62, 614 N.W.2d 888, our Supreme Court, in considering the "scheme, plan, or system" language in MRE 404(b)(1), stated that "evidence of other instances of sexual misconduct that establish a scheme, plan, or system may be material in the sense that the evidence proves that the charged act was committed." The Court clarified that "evidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system." Id. at 63, 614 N.W.2d 888. Further, logical relevance "is based on the system, as shown through the similarities between the charged and uncharged acts, rather than on defendant's character, as shown by the uncharged act." Id. at n. 10. Also, relevant similar acts are not limited to circumstances in which the charged and uncharged acts "are part of a single continuing conception or plot." Id. at 64, 614 N.W.2d 888. Our Supreme Court explained that the evidence of other acts "`must indicate the existence of a plan rather than a series of similar spontaneous acts,'" id. at 65-66, 614 N.W.2d 888, quoting People v. Ewoldt, 7 Cal.4th 380, 403, 27 Cal.Rptr.2d 646, 867 P.2d 757 (1994), but unlike evidence of other acts used to prove identity, "`the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.' " Id. at 65, 27 Cal.Rptr.2d 646, 867 P.2d 757, quoting Ewoldt, supra at 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.

In this case, we conclude that the trial court did not abuse its discretion in admitting the testimony of several girls that defendant allowed his pants to fall down in front of them at Clear Choices, or that defendant otherwise exposed his genitals there, because this evidence was relevant to defendant's plan, scheme, or system as theorized by the prosecutor. All three complainants described incidents where defendant's overalls fell to the floor while they were present. The frequency with which this happened in front of girls at Clear Choices was relevant to show the improbability that defendant's overalls accidentally fell and exposed his genitals and supported an inference that defendant's actions were part of a system of desensitizing girls to sexual misconduct. Evidence of defendant's consensual sexual acts with two young women presents a closer question of admissibility. Although the women had reached the age of consent, they were still teenagers who attended Clear Choices and could still reasonably be considered "youthful." We conclude that the women's status as youthful visitors at Clear Choices and their experiences are sufficiently similar to the victims' to support a conclusion under Sabin, supra, that defendant's sexual activity with them evidenced a common plan, scheme, or system of using his leadership role at Clear Choices to desensitize and seduce young women who frequented Clear Choices into sexual activity with him.

While the admissibility of this testimony may have been a close question, a trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion. Hine, supra at 250, 650 N.W.2d 659; Sabin, supra at 67, 614 N.W.2d 888. Similarly, we find no abuse of discretion in the trial court's determination that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. MRE 403. "`Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury.'" People v. Ortiz, 249 Mich.App. 297, 306, 642 N.W.2d 417 (2001), quoting People v. Crawford, 458 Mich. 376, 398, 582 N.W.2d 785 (1998). The trial court is in the best position to gauge the effect of such testimony. People v. Magyar, 250 Mich.App. 408, 416, 648 N.W.2d 215 (2002). Here the evidence of other acts had significant probative value in establishing a scheme, plan, or system for committing the charged offenses. Accordingly, we conclude that the trial court did not...