People v. Drohan, No. 249995.

• Decision Date: 08 December 2004
• Docket Number: No. 249995.
• Citation: 689 N.W.2d 750,264 Mich. App. 77
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Eric DROHAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

689 N.W.2d 750

264 Mich. App. 77

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Eric DROHAN, Defendant-Appellant.

No. 249995.

Court of Appeals of Michigan.

Submitted October 5, 2004, at Detroit.

Decided October 12, 2004, at 9:00 a.m.

Released for Publication December 8, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Thomas R. Grden, Assistant Prosecuting Attorney, for the people.

Michael J. McCarthy, P.C. (by Michael J. McCarthy), Redford, for the defendant.

Before: MARK J. CAVANAGH, P.J., and FITZGERALD and METER, JJ.

PER CURIAM.

Defendant appeals as of right from his convictions by a jury of third-degree criminal sexual conduct (CSC III), MCL 750.520d(1)(b), and fourth-degree criminal sexual conduct (CSC IV), MCL 750.520e(1)(b). The trial court sentenced defendant to 127 months to thirty years of imprisonment for the CSC III conviction and to one to four years of imprisonment for the CSC IV conviction. We affirm.

I. Facts

The victim testified at trial as follows: She met defendant in October 2001, when he joined her place of employment, Medicaid Assistance Services (Med-Assist) in Birmingham. They were friendly with one another at work. Around July 17, 2002, defendant called her to his office cubicle so that she could assist him with a computer problem. While at his cubicle, defendant grabbed her left wrist and "made [her] touch his crotch." With his other hand he rubbed one of her breasts. He told her that she had "made him hard" and that he wanted her to "make him come." She did not tell anyone about the incident. Two days later, defendant came into her cubicle and again grabbed her wrist and made her "touch his crotch...." He told the victim that she should have sexual intercourse with him. About 4:00 p.m., at the end of the workday, she was in a parking structure walking to her car when defendant approached her, grabbed her arm, and pulled her towards his car. He forced her into the passenger seat. She remained in the seat because she was afraid defendant would hurt her if she tried to leave. Defendant then "grabbed the back of the victim's head and forced" her to perform oral sex on him. Defendant told her that she should not "bother telling anybody." She did not tell her husband about the incident because she felt ashamed.

The victim stated that, after the incident in the parking structure, defendant "grabbed [her] wrist or ... touch[ed her] breasts" about eleven or twelve other times. During one of the incidents, he again stated that the victim should have sexual intercourse with him. The victim stated that she finally told someone about the sexual assaults after defendant ceased working at Med-Assist in November 2002. She spoke to a coworker, RW and to the president of the company, and then she spoke to the police.

On cross-examination, defense counsel insinuated that the victim waited to tell someone about the sexual contact between her and defendant because the contact had been consensual and she was married. He implied that, before the incidents of sexual contact, the victim had massaged defendant's shoulders and essentially invited the sexual incidents. He further implied that RW, with whom the victim spoke before going to the police was a close friend of the victim's and had a grudge against defendant.

John Heppner, a detective with the Birmingham Police Department, testified as follows: He spoke with defendant on November 5, 2002, after the victim reported the incidents of sexual assault to the police. He and his colleague told defendant that a coworker had filed a complaint against him. They asked defendant if he knew who might have made such a complaint, and defendant suggested that it might have been RW, his neighbor, because "he had got into some trouble with RW's sister." When they asked about the possibility of him having improperly touched the victim, defendant "kind [of] chuckled and stated that if there was any [inappropriate] touching it was [a] mutual [thing.]" Defendant stated that the victim had voluntarily rubbed herself against him and that "mutual groping" occurred several times throughout his employment at the victim's workplace. He stated that she voluntarily performed oral sex on him during the incident in the parking structure. Defendant stated that he believed the victim filed the complaint because she was "gang[ing] up" with RW to retaliate against him for the (as yet unspecified) incident involving defendant and RW's sister.

HW, RW's sister, testified as follows: She came to know defendant because he lived next to, worked with, and was friendly with her brother. On October 12, 2002, she met with her brother and defendant to see a horse race. They went to a bar after the race, and she agreed to give defendant a ride home in her vehicle. As she began driving, defendant reached across from the passenger seat and grabbed her inner thigh. He then attempted to grab her breast, and when she looked over at him, she saw that he had his penis exposed and was masturbating. He asked her to perform oral sex on him, and when she refused, he asked if he could perform oral sex on her. She refused. He also "grabbed [her] arm off the steering wheel" twice and tried to get her to touch his penis. He zipped his pants up after HW told him she was not interested in having sex.

HW stated that she agreed to keep quiet about the incident but that she reported the incident to the police after speaking with her brother about it. When asked why she waited a day or two to report the incident, she stated that she had initially hoped it was an isolated incident and that she "was going to give him a chance to apologize to me, when he ran like a coward I told his wife."

RB testified that, in the spring of 2000, she came to defendant's house for a party. RB had some drinks, became tired, and decided to lie down in the children's room. When she awoke, defendant's "hands were on [her] buttocks and he was playing with himself." She immediately got up and left the premises. She told defendant's wife about the incident and also reported it to the police.

Forrest White, an employee at Med-Assist, testified that the victim's and defendant's cubicles were not adjacent and that to get from one to the other, "one would have to go out into the hallway and walk down another hallway ... through doors."¹ He further testified that defendant did not share anyone else's cubicle and that defendant and the victim worked for different "teams" at Med-Assist.

Bruce Knight, the owner of Med-Assist, testified that all employees at Med-Assist receive a handbook detailing the company's policy concerning sexual harassment and that the handbook encourages employees to report problems at work. He testified that the victim had come to him in the past regarding various problems in the workplace.²

Carol Cottec, an employee at the parking structure used by Med-Assist employees, testified that, according to the electronic records, defendant left the parking structure at 1:05 p.m. on July 19, 2002.³

Defendant testified as follows: The victim approached him not long after he was hired at Med-Assist and began rubbing his shoulders and chest. About two weeks later, he and the victim came across one another in the parking structure and began "making out" in his car. She voluntarily performed oral sex on him. Afterwards, he and the victim would occasionally fondle one another while in the office. He never forced the victim to do anything against her will.

Defendant admitted that he "ma[d]e a pass at" HW and intimated that this occurred because he had had drunk too much alcohol. With regard to RB's allegations, defendant stated that he never fondled her or masturbated in front of her but that he simply shook her to try to wake her up. Defendant further testified that, during the month of July 2002, he always left the office in the early afternoon.

On cross-examination, the prosecutor elicited that defendant had previously pleaded guilty of CSC IV in connection with the allegations made by RB.

The jury convicted defendant of CSC III and CSC IV with regard to the incidents occurring around July 17, 2002. The jury acquitted defendant of CSC IV with regard to an alleged incident of sexual contact occurring in October 2002.

II. Other-Acts Evidence

Defendant first argues that the trial court erred in allowing the jury to hear evidence of the sexual incidents that occurred between HW and defendant and between RB and defendant. In admitting this evidence under MRE 404(b), the trial court stated, in part, that the evidence was "relevant to show the existence of a scheme, plan, or method by which the defendant accomplished the sexual assault in that consent is an issue, therefore, showing a scheme, plan, or method by which he non-consentually [sic] engages in sexual assault with women is relevant to this trial."

We review a trial court's decision to admit evidence for an abuse of discretion. People v. Watson, 245 Mich.App. 572, 575, 629 N.W.2d 411 (2001). "An abuse of discretion exists if an unprejudiced person would find no justification for the ruling made." Id. Under MRE 404(b)(1), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." However, such evidence may be used to prove something other than the defendant's propensity to commit a particular crime. Id.; Watson, supra at 576, 629 N.W.2d 411. Some permissible uses are "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...." MRE 404(b)(1). In Watson, this Court summarized the factors a court must consider when analyzing evidence under MRE 404(b):

First, the prosecutor must offer the other acts evidence for a permissible

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