People v. Keck
| Docket Number | 346077 |
| Decision Date | 13 January 2022 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ALLEN WAYNE KECK, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Macomb Circuit Court LC No. 2017-000576-FC
Before: K. F. Kelly, P.J., and Jansen and Rick, JJ.
Defendant appeals as of right his jury trial conviction of first-degree child abuse, MCL 750.136b(2). The trial court sentenced him as a second-offense habitual offender, MCL 769.10, to a prison term of 168 to 360 months. We affirm.
Defendant's conviction arises from the physical abuse of his three-month-old daughter, CK. On March 8, 2016, Jennifer Karaffa, the mother of CK, left home to go to work at 8:30 p.m., leaving CK and the couple's other 20-month-old child in the care of defendant. According to Jennifer, CK was fine when Jennifer left for work. However, after Jennifer returned home in the early morning of March 9, CK was crying and refused the formula that Jennifer attempted to feed her. Jennifer also noticed swelling on the baby's head redness around the front of the child's head, and red bruising around the child's right eye. A few hours later CK projectile vomited formula that Jennifer fed her. Defendant denied knowing what happened to the child. Jennifer took the child to her pediatrician, who directed her to take the child to the hospital.
CK was diagnosed with fractures on both sides of her skull and a subdural hematoma, which is bleeding below the scalp. She also had a healed rib fracture and other more recent rib fractures, a fracture of her femur, and retinal hemorrhages. The child's treating physicians, who were the prosecution's medical experts at trial, attributed the injuries to shaking and nonaccidental blunt-force trauma. CK also had numerous retinal hemorrhages in her right eye and several in her left eye, which were attributed to nonaccidental head trauma.
During the investigation, defendant and Jennifer suggested that their 20-month-old son could have caused the injuries because he was found a few days earlier sitting on CK's head. After defendant and Jennifer were advised that the 20-month-old child could not have caused the extent of the injuries, they attributed the injuries to Jennifer's 11-year-old daughter, GK, who had accidentally sat on CK's head a couple of weeks before CK's injuries were discovered. GK had also played a game, the "whee game," with CK that involved throwing and then catching the child in the air.
During trial, the prosecution presented evidence that defendant was also the father of three-month-old TK, who died in 1993 from nonaccidental blunt-force trauma, and that defendant had pleaded no contest to second-degree murder for that child's death.
The defense theory at trial was that the medical experts could not say with certainty when CK was injured, and that her injuries could have occurred up to two weeks before they were discovered, during which there were incidents of both defendant's 20-month-old child and GK accidentally sitting on CK. The defense argued that because it was not known when or how CK was injured, there was reasonable doubt whether defendant caused the injuries. The defense also argued that evidence of defendant's prior conviction should not be admitted at trial because defendant was only 16 years old when he was convicted of causing the death of TK, which involved a different type of injury—blunt-force trauma to the stomach—and there was no evidence of skull fractures or shaking in that case.
Defendant first argues that the trial court erred by allowing the prosecution to present evidence related to defendant's conviction of second-degree murder for the 1993 death of defendant's three-month-old child, TK. The prosecution moved to admit the evidence under MRE 404(b)(1) and MCL 768.27b. The trial court ultimately ruled that the evidence was not admissible under MRE 404(b)(1), but was admissible under MCL 768.27b.
A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. People v Gursky, 486 Mich. 596, 606; 786 N.W.2d 579 (2010). "A trial court abuses its discretion when its decision falls outside the range of principled outcomes." People v Feezel 486 Mich. 184, 192; 783 N.W.2d 67 (2010) (cleaned up). Any preliminary questions of law are reviewed de novo. People v Washington, 468 Mich. 667, 670-671; 664 N.W.2d 203 (2003).
This Court has recognized that MCL 768.27b evidence "can be admitted at trial because a full and complete picture of a defendant's history tends to shed light on the likelihood that a given crime was committed." People v Daniels, 311 Mich.App. 257, 272; 874 N.W.2d 732 (2015) (cleaned up). Defendant first argues that the trial court erred by failing to consider whether the evidence, although relevant, should be excluded under MRE 403, as provided in MCL 768.27b(1). MRE 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
To determine if the evidence should be excluded under MRE 403, the trial court performs a balancing test and considers the following factors, among others:
The time required to present the evidence and the possibility of delay, whether the evidence is needlessly cumulative, how directly the evidence tends to prove the fact for which it is offered, how essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects. [Daniels, 311 Mich.App. at273 (cleaned up).]
Unfair prejudice may exist where there is a danger that "marginally probative evidence will be given undue or pre-emptive [sic] weight by the jury" or where it would be inequitable to allow use of the evidence. People v Mills, 450 Mich. 61, 75-76; 537 N.W.2d 909 (1995), mod 450 Mich. 1212 (1995). In People v Watkins, 491 Mich. 450, 487-488; 818 N.W.2d 296 (2012), the Court discussed additional factors that can be considered when weighing whether evidence offered under MCL 768.27a, which applies to prior acts of sexual misconduct with a minor, should be excluded by MRE 403, stating:
Defendant is correct that the trial court did not expressly address MRE 403 in its analysis. Instead, the court mostly focused on MCL 768.27b(4) because the prior act was more than 10 years old. In People v Rosa, 322 Mich.App. 726, 732-734; 913 N.W.2d 392 (2018), this Court held that for prior acts more than 10 years old, the trial court must consider whether the evidence is uniquely probative and whether the jury is likely to be misled without it, explaining:
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