People v. Engelman

• Decision Date: 20 March 1990
• Docket Number: Docket No. 80624
• Citation: 434 Mich. 204,453 N.W.2d 656
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Jerome ENGELMAN, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 656

453 N.W.2d 656

434 Mich. 204

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Jerome ENGELMAN, Defendant-Appellant.

Docket No. 80624.

Supreme Court of Michigan.

Argued Oct. 6, 1988.

Decided March 20, 1990.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Nick O. Holowka, Pros. Atty., Donald W. Teichman and Justus Scott, Lapeer, Asst. Pros. Attys., for the People.

State Appellate Defender by Ronald J. Bretz, Lansing, for defendant-appellant.

OPINION

BOYLE, Justice.

Defendant Engelman was convicted, following a jury trial, of third-degree criminal sexual conduct involving the sexual penetration of a fifteen-year-old boy. M.C.L. Sec. 750.520d(1)(a); M.S.A. Sec. 28.788(4)(1)(a). He claims error in the admission of a photograph showing him standing nude with a minor female who is exposing herself. Specifically, he contends that the photograph should have been excluded under MRE 404(b) as improper evidence of his character or propensity to commit the charged offense. We agree that the photograph was improperly admitted in this case, and that the defendant's conviction therefore should be reversed.

I

At trial, the victim testified that he first met the defendant in 1983 while visiting his cousin, ¹ and that over the next year he and the defendant became friends. The victim frequently visited the defendant at his home, and on several occasions spent the night there. ² The victim also indicated that the defendant had given him "gifts" of beer, cigarettes, candy, meals, and occasionally clothes and money.

In July or August of 1984, the victim spent a weekend at the defendant's home. ³ The victim testified that after an uneventful Friday evening the two returned to his mother's house on Saturday so that he could pick up a change of clothes. On the drive back to the defendant's house that evening, the defendant told him that he had a pair of pants at his house which the victim could have if they fit. ⁴ The defendant also spoke frequently of "some lady friend of his in prison that wanted some pictures of him and stuff and some other guys...." Several times during the drive the defendant asked if he could take some pictures of the victim for his friend. The victim stated that he attempted to change the subject each time it was raised. He also stated that before reaching the defendant's house they stopped at a party store, where the defendant purchased two six-packs of beer for the victim and himself. The victim consumed five cans of beer that evening, at least four of them before reaching the defendant's house.

Upon arriving at the defendant's house, the victim went into the living room to drink the beer. A short time later he was joined by the defendant, who had with him a pair of pants and an instant camera. The defendant handed the pants to the victim and knelt on the floor directly in front of him. The victim testified that when he lowered his pants ⁵ the defendant leaned forward, placed the victim's penis in his mouth, and simultaneously photographed the act with the instant camera. The victim stated that after about ten seconds he pulled away and went to the bathroom to shower. While he was showering the defendant appeared, completely nude, drew back the shower curtain and took a second photograph of the victim.

The defendant was arrested on February 11, 1985, and charged with one count of third-degree criminal sexual conduct. During a subsequent search of the defendant's residence, the police discovered twenty-six photographs depicting the defendant and various unidentified children exposing themselves. The defendant moved to suppress all twenty-six photographs, claiming that none were relevant because the victim was not included. The defendant further claimed that if the photographs were admitted into evidence they would be "devastatingly prejudicial." ⁶

In response, the prosecutor argued that the photographs were relevant to show the defendant's modus operandi, or alternatively a scheme, plan, or system whereby the defendant would befriend minor boys and girls, gain their trust over time through gifts of various items, such as clothing and alcohol, and then sexually exploit and abuse the youths, often photographing his criminal acts. The prosecutor further argued that the probative value of the photographs was not outweighed by any unfair prejudice to the defendant.

Without viewing the photographs, the trial judge stated that any photographs of the defendant individually nude or of individual nude children would not be relevant at trial since the charge against the defendant was sexual penetration of a minor. He added:

"However, I do find relevant photographs that contain the picture of the defendant and a minor child, assuming that they are in a state of undress. Those would be relevant. They would show to the jury that the defendant was with minor children, younger children. He had his clothes off and/or they had their clothes off and as devastating as they may be, it does show and would support scheme, plan, system, the way a person does commit a crime, even though the two victims of the charges pending are not in those photographs." ⁷

Only one photograph fell within the relevancy parameters set by the trial judge. This photograph depicted the defendant standing nude in his living room holding a can of beer in one hand with his other arm around a minor female. The minor female, who also apparently was drinking beer, ⁸ was wearing a nightgown given to her by defendant, and had raised the nightgown to expose her body.

The defendant subsequently moved in limine to exclude this remaining photograph, arguing that it was irrelevant under MRE 401, and that if found to be relevant it was unfairly prejudicial under MRE 403. In response, the prosecutor renewed his claim that the photograph was relevant to show a scheme, plan, or system to sexually abuse minor children. The trial judge agreed and concluded that, while damaging to the defendant, the photograph was probative of a scheme, plan, or system on defendant's part in committing both acts, and that such probativeness was not outweighed by the potential for unfair prejudice to the defendant. ⁹

Following his conviction, the defendant pled guilty to a supplemental information charging him as a third-time habitual offender, ¹⁰ and was sentenced to fifteen to thirty years imprisonment. The Court of Appeals affirmed in an unpublished per curiam opinion. ¹¹ The defendant has appealed in this Court.

II

This case involves the admissibility of other acts evidence under MRE 404(b). Evidence of other crimes, wrongs, or acts of an individual is inadmissible to prove a propensity to commit such acts. MRE 404(a); People v. Hall, 433 Mich. 573, 579, 447 N.W.2d 580 (1989). Such evidence may be admissible, however, for other purposes under MRE 404(b), which provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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 crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged." ¹²

The purposes listed in MRE 404(b) are not all "on the same plane." People v. Golochowicz, 413 Mich. 298, 313, 319 N.W.2d 518 (1982). Other acts evidence used as proof of intent, absence of mistake or accident, or identity, for example, is proof of an "ultimate" fact or issue. These ultimate facts or issues have been described as facta probanda. ¹³ On the other hand, such evidence may also be used to prove some "intermediate" inference such as motive, opportunity, preparation, scheme, plan, or system, which may in turn tend to prove some ultimate fact or issue. These intermediate inferences are described as facta probantia. ¹⁴

Nor are these listed purposes the only purposes for which other acts evidence may be used. Properly understood, MRE 404(b) is a non exclusive list of examples of situations in which the general rule excluding character evidence, MRE 404(a), is not offended because the evidence is probative of some fact other than the defendant's criminal propensity. ¹⁵ As explained in 2 Weinstein, Evidence, 57 404, p. 404-52, "[o]nly one series of evidential hypotheses is forbidden in criminal cases by Rule 404: a man who commits a crime probably has a defect of character; a man with such a defect of character is more likely ... to have committed the act in question." ¹⁶ Put simply, the rule is inclusionary rather than exclusionary.

A

In People v. Golochowicz, supra, p. 309, 319 N.W.2d 518, this Court articulated a set of evidentiary safeguards creating a heightened threshold of preliminary admissibility, designed to protect against the misuse of other acts evidence under MRE 404(b). First, there must be substantial proof that the defendant committed the other act sought to be introduced. Second, there must be some "special quality or circumstance" of the other act which tends to prove some issue or fact other than the defendant's bad character. Third, the other acts evidence must be material to the case, in the sense that the issue or fact proved by the proffered evidence must be in issue, or probative of some matter in issue. Finally, the probative value of the evidence sought to be introduced must not be outweighed by the potential for unfair prejudice to the defendant. See also People v. Hall, supra, 433 Mich. pp. 579-580, 447 N.W.2d 580.

As a practical matter, however, since the other acts evidence sought to be introduced will always be used to establish some ultimate fact or issue, whether directly, through some factum probandum, or indirectly, through some intermediate inference or factum probans, it often is helpful first to identify the ultimate...