People v. Watson

• Decision Date: 27 June 2001
• Docket Number: Docket No. 218218.
• Citation: 629 N.W.2d 411,245 Mich. App. 572
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lee WATSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

629 N.W.2d 411

245 Mich. App. 572

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lee WATSON, Defendant-Appellant.

Docket No. 218218.

Court of Appeals of Michigan.

Submitted November 15, 2000, at Detroit.

Decided May 4, 2001, at 9:05 a.m.

Released for Publication June 27, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Peter R. George, Prosecuting Attorney, and Timothy K. Morris, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Gary L. Rogers), for the defendant on appeal.

Before MARK J. CAVANAGH, P.J., and TALBOT and METER, JJ.

METER, J.

Defendant appeals as of right from his convictions by a jury of three counts of first-degree criminal sexual conduct (CSC I), M.C.L. § 750.520b(1), one count of assault with intent to commit second-degree criminal sexual conduct (CSC II), M.C.L. § 750.520g(2), one count of possession of a firearm during the commission of a felony (felony-firearm), M.C.L. § 750.227b(1), and one count of assault and battery, M.C.L. § 750.81. The court sentenced defendant as a second-offense habitual offender, M.C.L. § 769.10(1), to concurrent terms of imprisonment as follows: life for one CSC I conviction, twenty to eighty years each for the other two CSC I convictions, three to five years for the assault with intent to commit CSC II conviction, and ninety days for the assault and battery conviction. The court also sentenced defendant to the mandatory, consecutive two-year term of imprisonment for the felony-firearm conviction. We reverse and remand with respect to defendant's conviction and sentence for the felony-firearm charge but affirm the remaining convictions and sentences.

Defendant's convictions arose out of three instances of abuse of his stepdaughter that occurred while she was eleven, twelve, and thirteen years old. The abusive incidents occurred in March 1997, June 1998, and September 1998. The assault with intent to commit CSC II conviction and the felony-firearm conviction related to the March 1997 incident. One of the CSC I convictions related to the June 1998 incident. The remaining two CSC I convictions, as well as the assault and battery conviction,¹ related to the September 1998 incident.

I

Defendant first argues that the trial court erred in admitting into evidence a photograph and an enlargement purportedly showing the victim's naked buttocks. We review a trial court's evidentiary rulings for an abuse of discretion. People v. Brownridge, 459 Mich. 456, 460, 591 N.W.2d 26 (1999), amended 459 Mich. 1276, 595 N.W.2d 856 (1999). An abuse of discretion exists if an unprejudiced person would find no justification for the ruling made. People v. Rice (On Remand), 235 Mich.App. 429, 439, 597 N.W.2d 843 (1999).

Generally, all relevant evidence is admissible. MRE 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. However, evidence of a person's character is not admissible to show that the person acted in conformity with that character on a particular occasion. MRE 404(a). Likewise, "evidence of other crimes, wrongs, or acts of an individual is inadmissible to prove a propensity to commit such acts." People v. Crawford, 458 Mich. 376, 383, 582 N.W.2d 785 (1998); MRE 404(b)(1).

The rationale behind this rule "is the fear that a jury will convict the defendant inferentially on the basis of his bad character rather than because he is guilty beyond a reasonable doubt of the crime charged." Crawford, supra at 384, 582 N.W.2d 785. However, MRE 404(b) does not preclude the use of other acts evidence for other relevant purposes. People v. Sabin (After Remand), 463 Mich. 43, 56, 614 N.W.2d 888 (2000). Rather, MRE 404(b) "permits the admission of evidence on any ground that does not risk impermissible inferences of character to conduct." People v. Starr, 457 Mich. 490, 496, 577 N.W.2d 673 (1998). Thus, "the proffered evidence truly must be probative of something other than the defendant's propensity to commit the crime." Crawford, supra at 390, 582 N.W.2d 785 (emphasis in original). Some permissible uses of other acts evidence 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...." See MRE 404(b)(1). This list, however, is not exhaustive. Sabin, supra at 56, 614 N.W.2d 888; Starr, supra at 496, 577 N.W.2d 673.

In People v. VanderVliet, 444 Mich. 52, 74-75, 508 N.W.2d 114 (1993), amended 445 Mich. 1205, 520 N.W.2d 338 (1994), the Supreme Court adopted an approach to other acts evidence articulated in Huddleston v. United States, 485 U.S. 681, 691-692, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), that employs the evidentiary safeguards already present in the rules of evidence. First, the prosecutor must offer the other acts evidence for a permissible purpose, i.e., to show something other than the defendant's propensity to commit the charged crime. VanderVliet, supra at 74, 508 N.W.2d 114. Second, the evidence must be relevant to an issue or fact ofconsequence at trial. Id. Third, the trial court must determine whether the evidence is inadmissible under MRE 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. VanderVliet, supra at 74-75, 508 N.W.2d 114. Additionally, the trial court, on request, may instruct the jury on the limited use of the evidence. Id. at 75, 508 N.W.2d 114.

In the instant case, defendant argues that the photograph of the victim's naked buttocks was inadmissible under MRE 404(b) because it was offered simply to show that defendant was a sexual pervert, which made it more likely that the victim's allegations of sexual abuse were true. Defendant argues that the evidence was not relevant for any permissible, nonpropensity purpose and that the prejudicial effect of the evidence substantially outweighed any probative value it did have. The prosecutor argues that the evidence was relevant to show defendant's motive and intent toward the victim. The trial court, without articulating the basis for its ruling, admitted both the photograph and an eight- by ten-inch enlargement of it.

The trial court did not abuse its discretion in admitting the photograph and the enlargement. The prosecutor offered the evidence to show motive and intent, and we agree that the photograph was admissible to show defendant's motive. In People v. Hoffman, 225 Mich.App. 103, 106-107, 570 N.W.2d 146 (1997), the defendant was charged with assaulting his girlfriend with the intent to murder her, and two of the defendant's former girlfriends testified that the defendant had assaulted them and made statements about his hatred of women. The prosecutor offered the testimony to show that the defendant's assault on the current victim was motivated by his misogyny. This Court held that the other acts evidence was admissible to show the defendant's motive. Id. at 109-110, 570 N.W.2d 146.

The Court noted that "[t]he distinction between admissible evidence of motive and inadmissible evidence of character or propensity is often subtle." Id. at 107, 570 N.W.2d 146. Evidence of past violent acts of a defendant, alone, would establish only that the defendant was a violent person who was thus more likely to have committed the charged violent crime. The Court reasoned that this would simply be evidence showing a propensity toward violence, which would be inadmissible. Id. at 107-108, 570 N.W.2d 146. However, the Court found that the evidence of past violent acts that tended to show that the defendant hates women and had acted on that hatred in the past demonstrated more than the defendant's propensity toward violence—it was relevant to show the defendant's motive for the violent attack on the current victim. Id. at 109-110, 570 N.W.2d 146.

Likewise, evidence in the instant case that defendant had a sexual interest specifically in his stepdaughter would show more than simply his sexually deviant character—it would show his motive for sexually assaulting his stepdaughter. Thus, evidence that defendant carried in his wallet a photograph of his stepdaughter's naked buttocks had probative value to show that the victim's allegations were true. Defendant denied sexually assaulting his stepdaughter, but the other acts evidence demonstrated that he had a motive to engage in sexual relations with her. " `A motive is the inducement for doing some act; it gives birth to a purpose.'" Sabin, supra at 67-68, 614 N.W.2d 888, quoting People v. Kuhn, 232 Mich. 310, 312, 205 N.W. 188 (1925). The photograph was relevant to show defendant's inducement for having sexual relations with his stepdaughter.

This conclusion is not undermined by the Supreme Court's decisions in Sabin, supra, and People v. Engelman, 434 Mich. 204, 453 N.W.2d 656 (1990). In Sabin, supra at 47-50, 614 N.W.2d 888, the trial court admitted evidence that the defendant, who was charged with having sexual intercourse with his daughter, had previously performed oral sex on his stepdaughter on several occasions. The Supreme Court held that the trial court did not abuse its discretion in admitting the other acts evidence to show that the defendant employed a common scheme or plan in molesting the girls. Id. at 61-67, 614 N.W.2d 888. However, the Court cautioned against admitting evidence simply to show that a defendant has a "lustful disposition." Id. at 60-61, 614 N.W.2d 888. The Court held that the evidence that the defendant performed oral sex on his stepdaughter was not admissible to show his motive for having sexual intercourse with his daughter. Id. at 67-68, 614 N.W.2d 888. The prosecutor had argued that the other acts evidence demonstrated the defendant's motive to have sexual relations with...