Opinion
No. 347634
04-30-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. HENRY QUAVION PERRY, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kalamazoo Circuit Court
LC No. 2018-000697-FC Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ. PER CURIAM.
Defendant appeals as of right his convictions of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, second-degree criminal sexual conduct (CSC-II), MCL 750.520c, and two counts of malicious use of a telecommunication service, MCL 750.540e. Defendant was sentenced to 25 to 40 years' imprisonment for the CSC-I conviction, 2 to 15 years' imprisonment for the CSC-II conviction, and 150 days in jail for the two malicious use of telecommunication service convictions. We affirm.
I. BACKGROUND
This case arises out of the sexual assault of the victim, a minor, by defendant. The victim had been staying at the home of her cousin, S.T. Defendant's father had previously dated S.T.'s mother, and defendant spent time at S.T.'s home. While the victim and defendant were both at S.T.'s home, defendant engaged in forceful sexual intercourse with the victim. Specifically, defendant came into the living room where the victim had been lying on the couch. Defendant began to rub the victim's buttocks, and then took off his pants. Defendant climbed on top of the victim, then forced his penis into her vagina. The victim cried and asked defendant to stop. Once defendant was finished, he stood up, pulled up his pants, and went into another room. The next day, the victim was told that defendant had chlamydia. This prompted the victim to tell her parents what had happened, and her parents took her to a local hospital to get checked out. The victim was tested for chlamydia, and that test was negative.
While defendant was in custody, police executed a search warrant on his cell phone and discovered time stamped messages between the victim's father and defendant. In between these text messages, defendant performed an Internet search for "how many days can someone's DNA be found in you," "how long does someone else's DNA last in a woman's body," and "how long does DNA last in bones."
Before trial, a motion hearing was held regarding the admissibility of other acts testimonies from S.T. and J.P., both minors. S.T. testified that she and defendant had consensual sexual intercourse when she was 13 years old. J.P. testified that defendant asked her for "booty pics," or pictures of her in her underwear. J.P. also testified that while talking via telephone with defendant while defendant was jailed, defendant asked J.P. to perform oral sex on him when he was released. Over defendant's objection, the trial court admitted the other acts evidence.
Defendant was ultimately convicted by a jury of CSC-I, CSC-II, and two counts of malicious use of a telecommunication service. This appeal followed.
II. STANDARD OF REVIEW
On appeal, defendant argues that the trial court abused its discretion by admitting other acts evidence. We disagree.
Defendant specifically challenges the introduction of ST's and J.P.'s testimony under MCL 768.27a. Defendant preserved his claim by objecting to the admission of the other-acts evidence at a motion hearing, People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001), and we review it for an abuse of discretion. People v Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). "An abuse of discretion occurs when a trial court's decision falls outside the range of reasonable and principled outcomes." People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017).
Defendant also challenges the admission of testimony about chlamydia. Defendant did not object to this testimony, and therefore this argument is unpreserved. Aldrich, 246 Mich App at 113. "This Court reviews for plain error unpreserved challenges regarding the admission of evidence that affected the defendant's substantial rights." People v Carines, 460 Mich. 750, 763-764, 597 NW2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) . . . and the plain error affected substantial rights." Id. at 763. "A clear or obvious error under the second prong is one that is not subject to reasonable dispute." People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018). The third Carines element "generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Carines, 460 Mich at 763. "[O]nce a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse." Id. When considering an unpreserved error, a reviewing court will reverse "only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." Id. at 774.
III. ANALYSIS
We first address defendant's claim that the trial court abused its discretion by allowing into evidence the testimonies of S.T. and J.P. under MCL 768.27a.
MCL 768.27a(1) provides, in relevant part, that "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." Further, MCL 768.27a(2) describes a listed offense as one "defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722." Under MCL 28.722, a " '[l]isted offense' means a tier I, tier II, or tier III offense."
Although MCL 768.27a prevails over MRE 404(b), MCL 768.27a still remains subject to MRE 403. See People v Watkins, 491 Mich 450, 455-456; 818 NW2d 296 (2012). MRE 403 provides that "a court may exclude relevant evidence if the danger of unfair prejudice, among other considerations, outweighs the evidence's probative value." Watkins, 491 Mich at 456. The unfair prejudice language in MRE 403, "refers to the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit . . . ." Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011) (quotation marks and citation omitted).
As explained in People v Watkins, 491 Mich 450, 472; 818 NW2d 296 (2012):
"When a defendant is charged with a sexual offense against a minor, MCL 768.27a allows prosecutors to introduce evidence of a defendant's uncharged sexual offenses against minors without having to justify their admissibility under MRE 404(b). In many cases, it allows evidence that previously would have been inadmissible, because it allows what may have been categorized as propensity evidence to be admitted in this limited context." [Citation omitted.]
Notably, when applying the MRE 403 balancing test to evidence admissible under MCL 768.27a, "courts must weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect." Watkins, 491 Mich at 456.
This does not mean, however, that other-acts evidence admissible under MCL 768.27a may never be excluded under MRE 403 as overly prejudicial. There are several considerations that may lead a court to exclude such evidence. These considerations include (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant's and the defendant's testimony. This list of considerations is meant to be illustrative rather than exhaustive. [Id. at 487-488.]
Defendant concedes that his alleged conduct with S.T., sexual intercourse with a minor under the age of 13, constituted a listed offense for purposes of MCL 768.27a. See MCL 750.520d. Regardless, defendant argues, this other-acts evidence failed the balancing test under MRE 403 and should have been excluded. With respect to the other-acts evidence involving J.P., defendant argues that J.P.'s testimony does not give rise to a listed offense and should have been excluded on that basis alone. However, the trial court, after consideration of the entire phone conversation between defendant and J.P., disagreed and found that defendant asking J.P. to perform oral sex on him was a Tier II offense, a listed offense under MCL 768.27a, because it constituted a violation of MCL 750.145a. See MCL 28.722(u)(i) (including violation of MCL 750.145a as a Tier II offense). We conclude that the trial court did not abuse its discretion by concluding that both S.T.'s and J.P.'s testimony qualified for admission under MCL 768.27a.
MCL 750.145a states, in pertinent part, as follows:
A person who accosts, entices, or solicits a child less than 16 years of age, regardless of whether the person knows the individual is a child or knows the actual age of the child, or an individual whom he or she believes is a child less than 16 years of age with the intent to induce or force that child or individual to commit an immoral act, to submit to an act of sexual intercourse or an act of gross indecency . . . .
As discussed, although evidence may qualify for admission under MCL 768.27a, a trial court is still required to engage in a balancing test under MRE 403. Watkins, 491 Mich at 456. The trial court did so, and concluded that the other-acts evidence was admissible. The other-acts evidence proffered by the prosecution involved defendant's solicitation of oral sex from a female minor, and defendant engaging in sexual intercourse with a female minor. These acts are similar to defendant forcefully engaging in the sexual penetration of a female minor. There was a relatively close temporal proximity between the proffered other-acts and the charged crime: all three instances occurred in 2017 and early 2018. That defendant engaged in these acts bolstered the victim's credibility where there were no witnesses to the charged crime, and allowed the jury to infer that defendant had a propensity to solicit or engage in sexual contact with female minors. The other acts evidence was highly probative and not substantially outweighed by unfair prejudice. Thus, it fell within the range of reasonable and principled outcomes for the trial court to admit J.P.'s and S.T.'s testimony. Franklin, 500 Mich at 100.
Despite defendant's argument to the contrary, there is no temporal requirement for admission of other-acts evidence under MCL 768.27a. See People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011) (citation omitted), where this Court reiterated that "MCL 768.27a does not contain a temporal limitation. The remoteness of the other act affects the weight of the evidence rather than its admissibility."
We also briefly address defendant's argument regarding admission of the victim's testimony that he may have had chlamydia to discern whether its admission constituted plain error. Defendant specifically argues that its introduction caused unfair prejudice. However, this evidence was relevant. The victim learning that defendant may have had chlamydia prompted the victim to tell her parents about the sexual assault, which sparked the investigation. The probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, MRE 403, and thus no plain error occurred. Defendant's argument is without merit. Carines, 460 Mich 763-764.
Affirmed.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Mark T. Boonstra