People v. Masroor, Docket Nos. 322280

• Decision Date: 24 November 2015
• Docket Number: Docket Nos. 322280,322282.,322281
• Citation: 880 N.W.2d 812,313 Mich.App. 358
• Parties: PEOPLE v. MASROOR.
• Court: Court of Appeal of Michigan — District of US

313 Mich.App. 358

880 N.W.2d 812

PEOPLE

v.MASROOR.

Docket Nos. 322280

322281

322282.

Court of Appeals of Michigan.

Submitted Oct. 1, 2015, at Detroit.

Decided Nov. 24, 2015, at 9:25 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Timothy A. Baughman, Special Assistant Prosecuting Attorney, for the people.

Michael J. McCarthy, PC (by Michael J. McCarthy ), for defendant.

Before: GLEICHER, P.J., and SAWYER and MURPHY, JJ.

PER CURIAM.

A jury convicted defendant of multiple counts of criminal sexual conduct in these three consolidated cases. The complainants were defendant's young nieces. Defendant lived in their Detroit home for several years when the girls were under age 13. They revealed the abuse many years later.

Defendant challenges the admission of other-acts evidence, asserts that his counsel performed ineffectively, and claims that the trial court improperly imposed a substantial departure sentence for each conviction of first-degree criminal sexual conduct. Although the trial court should have evaluated the other-acts evidence under MRE 403

, this error was harmless as the evidence qualified as admissible. Nor do we discern a ground for reversal regarding counsel's performance.

Defendant's departure sentences present a more nuanced issue. Because we are bound by this Court's recent decision in People v. Steanhouse, 313 Mich.App. 1, 880 N.W.2d 297 (2015)

, pursuant to MCR 7.215(J)(1), we must remand this matter to the trial court for reconsideration of defendant's sentences at a hearing modeled on the procedure set forth in United States v. Crosby, 397 F.3d 103 (C.A.2, 2005). Were we not obligated to follow Steanhouse, we would affirm defendant's sentences by applying the federal “reasonableness” standard described in Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), which was specifically rejected by our colleagues in Steanhouse. Pursuant to MCR 7.215(J)(2), we declare a conflict with Steanhouse so that the procedure established by that panel may be more carefully considered by a larger number of the judges of this Court. In the meantime, we affirm defendant's convictions and remand for resentencing pursuant to Steanhouse.

I

Defendant emigrated from Bangladesh to Detroit in 2000 and moved into his brother's family home. The complainants, defendant's nieces, were then aged 12, 11 and 9. The eldest, RSS, testified that defendant began touching her breasts and vagina within days of his arrival, and penetrated her with his penis a week later. The sexual abuse continued even after defendant's wife and five children arrived and he had moved with them to a nearby home in Hamtramck.

Toward the end of 2001, defendant's second-eldest niece, MK, questioned RSS in a manner suggesting that defendant had also abused MK. RSS warned defendant “to stay away from my sister.” Defendant “disagreed he was doing anything” with MK. Later, RSS and defendant forged an agreement that she would have a “relationship” with defendant if he left MK alone. Defendant ensured RSS's silence by threatening that “in our culture if a girl, if she's not a virgin ... then the parents, ... this is how they can ... get her killed.”

MK recalled that defendant persuaded her parents that she and her younger sister should be homeschooled when they reached puberty. Defendant offered to tutor the girls, as he was well-versed in the Koran. He began sexually abusing MK when the homeschooling commenced. The abuse continued even after defendant and his family moved to their new residence. MK explained that she cooperated with defendant because he manipulated her by invoking the Koran and insisting that “[w]e're the ones ... making him do this. And it's not his fault, so it's our fault.” Because defendant had studied theology, MK believed him.

MAB was nine years old when defendant first put her hand on his penis. He penetrated MAB with his finger on numerous occasions thereafter. Defendant guaranteed MAB's silence by forcing her to take an “oath” that she would “let him do whatever he want[s] and I cannot tell him no,” in exchange for defendant's agreement to fix a computer that MAB incorrectly believed she had broken. At the end of 2002, defendant violated her with his penis.

In 2008, defendant and his family moved to Canada, where defendant became the imam at a Toronto mosque. Defendant's crimes came to light in 2011, when one of his daughters revealed to her sister and her mother that defendant had engaged in sexual intercourse with her. Shortly thereafter, defendant's nieces reported defendant's sexual acts to the police. The Wayne County prosecutor charged defendant with multiple counts of criminal sexual conduct involving the three complainants, and the trial court consolidated the cases for trial. During the trial, the prosecutor presented the testimony of defendant's five children who related that defendant had perpetrated sexual assaults against them similar to those described by defendant's nieces.

The jury convicted defendant of 10 counts of first-degree criminal sexual conduct—four counts under MCL 750.520b(1)(a)

(victim under 13 years of age) and six counts based on multiple variables, including MCL 750.520b(1)(b)(ii ) (victim at least 13 but less than 16 years of age and a relative). The jury also convicted defendant of five counts of second-degree criminal sexual conduct, MCL 750.520c(1)(a) (victim under 13 years of age). The trial court sentenced defendant to 35 to 50 years' imprisonment for each of his 10 first-degree criminal sexual conduct convictions and 10 to 15 years' imprisonment for each of his five second-degree criminal sexual conduct convictions. We consolidated defendant's three appeals. People v. Masroor, unpublished order of the Court of Appeals, entered July 2, 2014 (Docket Nos. 322280, 322281, and 322282).

II

Defendant first contends that the trial court erred by admitting the other-acts evidence provided by his children. During a pretrial motion hearing, the trial court indicated that it was inclined to allow the evidence based on “a statute ... that kind of trumps or transcends” MRE 404(b)

. The court expressed that when applying “the statute” to other-acts evidence, it was “not even required to indulge in the balancing of prejudicial versus probative. It's, it's just in.” Defense counsel objected to the admission of this evidence by asserting, “I think there should be some sort of balancing test.” The trial court ruled the evidence admissible without engaging in a balancing analysis. On the fourth day of the trial, the prosecutor directed the trial court's attention to People v. Watkins, 491 Mich. 450, 467, 818 N.W.2d 296 (2012), which, as we will discuss in greater detail, most assuredly requires the application of a “balancing test” for evidence offered under MCL 768.27a, the “statute” referenced by the court.

The trial court repeatedly characterized the testimony at issue as “404(b)” evidence. MRE 404(b)(1)

provides:

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.

The prosecutor actually premised his request to admit the other-acts evidence on MCL 768.27a

rather than MRE 404(b). MCL 768.27a states:

(1) Notwithstanding section 27 [MCL 768.27

, the statutory analog of MRE 404(b) ], in a criminal case in which the defendant is accused of committing a listed offense against

a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.

(2) As used in this section:

(a) “Listed offense” means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722

.

(b) “Minor” means an individual less than 18 years of age.

In Watkins, 491 Mich. at 468, 818 N.W.2d 296

, our Supreme Court concluded that MRE 404(b) and MCL 768.27a irreconcilably conflict. While “MRE 404(b) requires the exclusion of other-acts evidence if its only relevance is to show the defendant's character or propensity to commit the charged offense,” Watkins, 491 Mich. at 468, 818 N.W.2d 296, MCL 768.27a allows “the admission of evidence that defendant committed another listed offense ‘for its bearing on any matter to which it is relevant,’ ” including the defendant's character and propensity to commit the charged offense, Watkins, 491 Mich. at 469–470, 818 N.W.2d 296. Thus, “MCL 768.27a permits the admission of evidence that MRE 404(b) precludes.” Watkins, 491 Mich. at 470, 818 N.W.2d 296.

Parsed out, MCL 768.27a

can be rephrased as follows: In spite of the statute [MCL 768.27, which codified what became the substance of MRE 404(b) ] limiting the admissibility of other-acts evidence to consideration for noncharacter purposes, other-acts evidence in a case charging the defendant with sexual misconduct against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. Thus, the statute establishes

an exception to MRE 404(b)

in cases involving a charge of sexual misconduct against a minor. [Watkins, 491 Mich. at 471, 818 N.W.2d...