People v. Winters, No. 288925 (Mich. App. 5/18/2010), No. 288925.
| Decision Date | 18 May 2010 |
| Docket Number | No. 288925. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MARK ANTHONY WINTERS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from the Saginaw Circuit Court, LC No. 07-029951-FC.
Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ.
UNPUBLISHED
Following a jury trial, defendant was convicted of first-degree home invasion, MCL 750.111, attempted murder, MCL 750.91, four counts of kidnapping, MCL 750.349, two counts of felonious assault, MCL 750.82, and carrying a weapon with unlawful intent, MCL 750.226. Prior to the start of trial, defendant pled guilty to felony firearm, MCL 750.227, and felon in possession of a firearm, MCL 750.224. Defendant was sentenced as a habitual third offender, MCL 769.11, to 240 to 480 months for his first-degree home invasion, attempted murder, and kidnapping convictions, 48 to 96 months for his felonious assault convictions, 60 to 120 months for his carrying a weapon with an unlawful intent conviction, 24 months for his felony firearm conviction, and 60 to 120 months for his felon in possession of a firearm conviction. Defendant appeals as of right. We affirm.
Defendant first argues that the trial court made several erroneous evidentiary rulings that deprived him of a fair trial. We disagree.
Admissibility of evidence is reviewed for an abuse of discretion. People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002). "When reviewing a trial court's decision to admit evidence, we do not assess the weight and value of the evidence, but only determine whether the evidence was the kind properly before the jury." Cole v Eckstein, 202 Mich App 111, 113-114; 507 NW2d 792 (1993).
Defendant argues that the trial court abused its discretion in admitting MRE 404(b) evidence without requiring the prosecutor to provide proper notice or demonstrate good cause why he could not do so prior to trial. Specifically, defendant argues that because testimony regarding previous incidences of alleged domestic violence between him and the complainant was "other acts" evidence, the prosecutor was required to comply with MRE 404(b)'s notice requirements before the trial court could properly admit the evidence.1 Although we conclude that the failure to give notice was plain error, see People v Hawkins, 245 Mich App 439, 453; 628 MW2d 105 (2001), we find the error harmless.
It does not appear that defendant would have posed a different defense had he had notice. See id. at 455-456. More generally, given the defense posed, we cannot find that the admission of the "other acts" evidence was outcome determinative. People v Williams, 483 Mich 226, 243; 769 NW2d 605 (2009). Defendant testified at trial that on the date of the incident, he was angry with the complainant, went to her house with a loaded gun that he "borrowed" from a friend without his knowledge, forced his way into her home, and once inside said many of the things the complainant and the other victims testified that he said. Defendant also testified that he fired a shot from the gun, albeit unintentionally. In addition, defendant's testimony regarding the events that transpired next was remarkably similar to that of the complainant and other victims. Indeed, defendant testified that he knew that the complainant and the other victims did what he wanted them to because they knew that he had a gun. Further, in his closing argument, defendant conceded that he was guilty of felony firearm, assault with a dangerous weapon, and unlawful imprisonment. Moreover, the trial court instructed the jury that it could only consider the "other acts" testimony presented to determine whether defendant had intended to commit murder and not for any other purpose. Jurors are presumed to follow their instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). For these reasons, defendant is not entitled to relief based on this issue.
Defendant also argues that the trial court abused its discretion when it allowed the prosecutor to introduce several character rebuttal witnesses. Specifically, defendant argues that he did not open the door to his character on direct examination, so that the prosecutor could not properly introduce character rebuttal witnesses. We disagree.
Although typically relevant, the rules of evidence severely limit the circumstances in which character evidence may be admitted at trial. People v VanderVliet, 444 Mich 52, 62; 508 NW2d 114 (1993); MRE 405. MRE 404(a) prohibits the admission of character evidence to prove that the defendant, on a particular occasion, acted in conformity with that character. Nevertheless, MRE 404(a)(1) allows a defendant to introduce character evidence to show that it is less likely he committed an offense. Once a defendant introduces evidence of his or her character, MRE 404(a)(1) allows the prosecution to the do the same to rebut the defendant's character evidence. People v Roper, 286 Mich App 77, 93; 777 NW2d 483 (2009). Generally, when a defendant opens the door to his or her character, the prosecutor may only rebut the defendant's character for peacefulness through reputation and opinion evidence. MRE 405. However, where a defendant places his or her character for peacefulness in issue, a prosecutor may inquire into specific instances of conduct, despite the limitations imposed by MRE 405, if the following circumstances exist:
(1) the defendant places his or her character at issue through testimony on direct examination; (2) the prosecution cross-examines the defendant about specific instances of conduct tending to show that the defendant did not have the character trait he or she asserted on direct examination; (3) the defendant denies the specific instances raised by the prosecution in whole or in part during the cross-examination; and (4) the prosecution's rebuttal testimony is limited to contradicting the defendant's testimony on cross-examination. [Roper, 286 Mich App at 105, citing People v Vasher, 449 Mich 494, 504-506; 537 NW2d 168 (1995).]
Having carefully reviewed defendant's testimony, we find that he opened the door to his character on direct examination. Defendant testified that although he went to the complainant's home with a loaded gun and forced his way into her home, he had not done so with the intent to harm her or the other victims. Defendant also testified that he had never been physically abusive toward the complainant during any of the numerous fights that they had had throughout their relationship. Indeed, he testified that he was a laid back person and that he was the person who walks away. Based on this testimony, we find that defendant put his character for peacefulness at issue because he invited the jury to conclude that while he took a loaded gun to the complainant's home, he was not the kind of person who would use the gun to hurt people, especially the complainant and the other victims. On cross-examination, when questioned about specific instances of alleged aggressive conduct toward the complainant, defendant denied having committed those acts. Indeed, defendant testified that if the complainant had been injured during any of their arguments, it was the complainant who had harmed herself and then blamed defendant. Because of defendant's testimony on direct examination and his explicit denial of having committed any wrongdoing when questioned about specific instances of alleged aggression toward the complainant, we find that the trial court did not err when it allowed the prosecutor to call rebuttal witnesses to testify about specific instances denied by defendant on cross-examination. Roper, 286 Mich App at 105.
We similarly find that the trial court did not err when it allowed plaintiff to call the complainant's landlord and Saginaw County Sheriff Ricky Shaft as rebuttal witnesses. These witnesses were called to rebut defendant's testimony that he lived with the complainant at the time the instant offenses were committed. Whether defendant lived with the complainant was material to the first-degree home invasion charge. Accordingly, we find that the testimony was admissible. People v Pesquera, 244 Mich App 305, 314; 625 NW2d 407 (2001).
Defendant argues that, because the testimony reflected that he lived with the complainant, there was insufficient evidence to properly convict him of first-degree home invasion. We disagree.
We review de novo sufficiency of the evidence claims in the light most favorable to the prosecution to determine whether a rational trier of fact could find beyond a reasonable doubt that all essential elements of the prosecution's case were proven. People v Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001). This is a deferential standard requiring the reviewing court to draw all reasonable inferences and resolve credibility issues in favor of the jury verdict. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
The first-degree home invasion statute, MCL 750.110a(2), provides, in relevant part as follows:
A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the first degree if at any time while the person is entering, present in, or exiting the dwelling either of the following circumstances exists:
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(b) Another person is lawfully present in the dwelling.
"`Without permission' means without having obtained permission to enter from the owner or lessee of the dwelling or from any other person lawfully in possession or control of the dwelling." MCL 750.110a(1)(c).
At trial, defendant testified that when he forced his...
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