People v. Ortiz

• Decision Date: 30 November 2001
• Docket Number: Docket No. 224331.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Domingo ORTIZ, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

642 N.W.2d 417

249 Mich. App. 297

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Domingo ORTIZ, Defendant-Appellant.

Docket No. 224331.

Court of Appeals of Michigan.

Submitted November 6, 2001, at Lansing.

Decided November 30, 2001.

Approved for publication January 18, 2002, at 9:20 a.m.

Released for Publication April 4, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John G. McBain, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

Martin J. Beres, St. Clair Shores, for the defendant on appeal.

Before: FITZGERALD, P.J., and HOEKSTRA and MARKEY, JJ.

PER CURIAM.

Defendant was convicted of first-degree, premeditated murder, M.C.L. § 750.316(1)(a), for the murder of his exwife, Jennifer Ortiz. The trial court sentenced him to mandatory life in prison without the possibility of parole. Defendant appeals as of right. We affirm.

I

Defendant first argues that there was insufficient evidence to sustain his conviction. We disagree. We "view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt." People v. Hoffman, 225 Mich.App. 103, 111, 570 N.W.2d 146 (1997), citing People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201, 489 N.W.2d 748 (1992). All conflicts with regard to the evidence are resolved in favor of the prosecution. People v. Terry, 224 Mich.App. 447, 452, 569 N.W.2d 641 (1997). Further, we will not interfere with the jury's role of determining the weight of the evidence or the credibility of witnesses. Wolfe, supra; Terry, supra.

In order to convict defendant of first-degree, premeditated murder, the prosecution was required to prove that defendant intentionally killed the victim and that the act of killing was premeditated and deliberate. People v. Kelly, 231 Mich.App. 627, 642, 588 N.W.2d 480 (1998). "The elements of premeditation and deliberation may be inferred from circumstances surrounding the killing." Id. Minimal circumstantial evidence is sufficient to prove an actor's state of mind. People v. Bowers, 136 Mich.App. 284, 297, 356 N.W.2d 618 (1984). See also People v. Plummer, 229 Mich.App. 293, 300-302, 581 N.W.2d 753 (1998).

The evidence in this case, viewed in a light most favorable to the prosecution, was sufficient to support the determination that the essential elements of the crime were proved beyond a reasonable doubt. There was evidence supporting an inference that the victim was intentionally killed. There was testimony that the victim died of asphyxiation by smothering or chest compression, and that her death was a homicide. The fact that the victim did not have her contact lenses or glasses with her at the time of her death negated the suggestion that she intentionally drove away from her home on the evening of her death. Further, there was evidence that she had ingested Gamma Hydroxybutrate (GHB) and had several wounds on her body, which she did not have when her guests left her cookout before 11:00 p.m.

There was also evidence tying defendant directly to the victim on the night of the victim's death. The jury could have found from the evidence that defendant purchased the gallon of milk that was found in the back of the victim's automobile. The store clerk at Speedway identified defendant as buying the milk after 11:00 p.m. on July 11, 1998. A detective conducted an extensive search for another source of the Melody Farms gallon of whole milk and could not find any other source. The Speedway was more than twenty miles away from the victim's home. An automobile similar to defendant's was observed after midnight, speeding down a street by the victim's house. More importantly, fresh seminal fluid containing defendant's DNA was found on the victim's clothing. Further, defendant's sandals, which he wore on July 11, 1998, were found in the victim's bedroom. They were not in the bedroom before the victim's guests left her cookout on that night. This evidence was sufficient evidence from which to conclude that defendant was responsible for the murder and staged an "accident."

Finally, there was sufficient evidence that the victim's death was premeditated by defendant. The victim told at least two witnesses that defendant had threatened to kill her in such a manner that he would not get caught. More importantly, defendant's former cellmate testified that defendant talked about killing the victim and made statements about how he could do so. It is a well-settled principle that "[i]n reviewing a sufficiency argument, this Court must not interfere with the jury's role of determining the weight of the evidence or the credibility of witnesses." People v. Stiller, 242 Mich.App. 38, 42, 617 N.W.2d 697 (2000). The jury could have found the testimony credible, and we will not interfere with that determination. Further, the circumstances of the crime itself support premeditation. The "accident" was carefully staged to make it appear that the victim ran out of milk, went to buy some, and drove off the road. Further, defendant and the victim had a tumultuous relationship that ended in divorce. He was irritated that she received the home in the divorce settlement. Premeditation and deliberation were properly inferred from the facts.

II

Defendant next argues that the admission of evidence of his sexual misconduct with two women was improperly admitted pursuant to MRE 404(b). We disagree.

We first note that defendant makes an incorrect legal argument that the test set out in People v. Golochowicz, 413 Mich. 298, 309, 319 N.W.2d 518 (1982), should have been followed in this case. The Golochowicz test is utilized where other acts evidence is offered to show identification through modus operandi. People v. VanderVliet, 444 Mich. 52, 66-67, 508 N.W.2d 114 (1993), amended 445 Mich. 1205, 520 N.W.2d 338 (1994). The case at hand is not a case where the prosecutor sought to identify defendant through the use of similar acts evidence that shows a specific modus operandi. The analysis does not apply.

MRE 404(b) provides:

(1) 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.

In VanderVliet, supra at 55, 508 N.W.2d 114, the Court clarified the test to be utilized to determine the admissibility of other bad acts evidence:

First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury.

In People v. Crawford, 458 Mich. 376, 385, 582 N.W.2d 785 (1998), the Court addressed the test set forth in VanderVliet and stated:

Under this formulation, the prosecution bears the initial burden of establishing relevance of the evidence to prove a fact within one of the exceptions to the general exclusionary rule of MRE 404(b). Where the only relevance is to character or the defendant's propensity to commit the crime, the evidence must be excluded. Where, however, the evidence also tends to prove some fact other than character, admissibility depends on whether its probative value outweighs its prejudicial effect, taking into account the efficacy of a limiting instruction in cushioning the prejudicial effect of the evidence.

The prosecution must also demonstrate that the evidence is relevant. Crawford, supra at 387-388, 582 N.W.2d 785.

Relevance is a relationship between the evidence and a material fact at issue that must be demonstrated by reasonable inferences that make a material fact at issue more probable or less probable than it would be without the evidence.... The logical relationship between the proffered evidence and the ultimate fact sought to be proven must be closely scrutinized. [Id. (citation omitted).]

In addition, the offered evidence "truly must be probative of something other than the defendant's propensity to commit the crime." Id. at 390, 582 N.W.2d 785 (emphasis in original). "If the prosecutor fails to weave a logical thread linking the prior act to the ultimate inference, the evidence must be excluded." Id.

Here, the prosecutor offered the evidence for a proper purpose and the evidence was logically relevant to the case. A proper purpose is a noncharacter purpose, one that does not risk impermissible inferences of character to conduct. People v. Starr, 457 Mich. 490, 496, 577 N.W.2d 673 (1998). The list of proper purposes articulated in MRE 404(b) is not exclusive. Id. In this case, the prosecutor argued that the other bad acts evidence was relevant to secutor's argument that defendant had a modus operandi or pattern of sexually forcing himself on women, that the victim knew of defendant's propensities and, therefore, was afraid of him, and, thus, she would not have agreed to have consensual sexual relations with him, a point that was very important in the case. In People v. Knapp, 244 Mich.App. 361, 380, 624 N.W.2d 227 (2001), this Court indicated that other bad acts evidence may be relevant to rebut a defendant's theory with regard to the case against him. Although inarticulate, the trial court recognized that the evidence was relevant to rebut the defendant's theory of consensual sexual relations. The evidence was offered for a purpose other than to simply establish defendant's bad character or to argue his...