Opinion
No. 347555
04-02-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAJUAN DERAN BOWIE, 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 UNPUBLISHED Wayne Circuit Court
LC No. 17-009348-01-FC Before: M. J. KELLY, P.J., and FORT HOOD and BORRELLO, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of carjacking, MCL 750.529a, armed robbery, MCL 750.529, and unlawfully driving away an automobile (UDAA), MCL 750.413. Defendant was sentenced to 15 to 30 years' imprisonment for carjacking, 15 to 30 years' imprisonment for armed robbery, and 3 to 5 years' imprisonment for UDAA. The trial court also ordered defendant to pay $2,034 in court costs. For the reasons set forth in this opinion, we affirm the convictions and sentences of defendant.
I. BACKGROUND
On August 26, 2017, Levander Lawson (Lawson) was leaving a liquor store located in Detroit, Michigan. After Lawson entered his vehicle, Nicholas Robinson (Robinson) entered through the passenger door, pointed a gun at Lawson, and instructed Lawson to give him the car keys. Defendant entered the backseat of the vehicle and instructed Lawson to lean toward the steering wheel and took Lawson's wallet out of his back pocket. Robinson told Lawson to get out of the vehicle, and Lawson complied. After Robinson and defendant drove away in Lawson's vehicle, Lawson went back in the liquor store and called the police. Lawson later identified Robinson and defendant in a photographic lineup, and they were arrested.
Prior to trial, the prosecution sought to introduce evidence of other-acts evidence in accordance with MRE 404(b). Specifically, the prosecution notified defendant that it intended to use evidence of defendant's previous carjacking conviction. Defendant responded arguing that evidence of defendant's previous conviction "would only be used to show the defendant propensity [sic] to carjack people," and that this "evidence only serves to inflame the jury, confuse the issues, and make the defendant look like a bad man."
The trial court held a hearing after which it held that the "other[-]acts evidence is relevant under the theory of lack of mistake or misunderstanding to rebut the defense that the defendant was under the impression that this was an insurance job and an agreeance between the complainant and the codefendant." The trial court held that the prior conviction was inadmissible to show a common scheme or plan because the prior carjacking and the current one did not "share a sufficient common feature to establish a common scheme or plan."
Relevant to this appeal, at trial, defendant testified that although he participated in the carjacking, he thought it was an agreed on insurance fraud, alleging that he was "duped into a carjacking" by Lawson and Robinson. Thus, he testified, the charges against him were part of a "big misunderstanding."
Following this testimony, the assistant prosecutor examined defendant and inquired whether he pled guilty to carjacking in 2011, to which defendant denied committing the crime but asserted he pled guilty "out of fear."
During closing arguments, the assistant prosecutor argued:
[Y]ou are able to hear about that (the prior carjacking) because the defendant came up here with this story about I was mistaken.
That's why you were able to hear about that. To refute that. Because if . . . that's a coincident [sic] somebody better go play the lottery they're going to hit. Because it is not a coincident [sic].
And did you notice he never takes responsibility it is always somebody else's fault. He's going to stand up here and tell you that he plead guilty to carjacking and robbery but that he didn't do it.
Defendant was convicted and sentenced as indicated above. This appeal ensued.
II. ANALYSIS
A. USE OF MRE 404(b) EVIDENCE
On appeal, defendant first argues that the trial court erred when it held that defendant's previous conviction could be admitted as evidence of an absence of mistake. Defendant contends that his previous carjacking conviction was not relevant to his claim that he did not intend to carjack Lawson. Further defendant argues that he did not mistakenly enter the vehicle, but rather he thought he was helping Lawson pull off an insurance fraud, hence, his prior conviction had no bearing on his defense.
The prosecution rebuts defendant's arguments contenting that defendant's prior carjacking conviction was properly admitted to rebut his claim that he believed he was committing insurance fraud, not a carjacking. Further, the prosecution argues: "The use of other[-]acts evidence to prove the absence of mistake or accident is a proper enumerated purpose under MRE 404(b)." By asserting this defense, the prosecution contends that defendant "made the question of his alleged innocent participation in these crimes material to a contested issue at trial."
Both parties correctly acknowledge that this Court "review[s] for an abuse of discretion a trial court's decision to admit or exclude evidence," and reviews any preliminary legal questions of law de novo. People v Mann, 288 Mich App 114, 117; 792 NW2d 53 (2010). Preliminary questions of law require a court to determine "whether a rule of evidence or statute precludes admissibility of the evidence." People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011). "A trial court also necessarily abuses its discretion when it makes an error of law." People v Al-Shara, 311 Mich App 560, 566; 876 NW2d 826 (2015). "[A] trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion." People v Cameron, 291 Mich App 599, 608; 806 NW2d 371 (2011) (quotation marks and citation omitted).
The admissibility of other-acts evidence is governed by MRE 404. Under MRE 404(b)(1), evidence of other crimes, wrongs, or acts is not admissible to prove a propensity to commit such acts. People v Denson, 500 Mich 385, 397; 902 NW2d 306 (2017). However, such evidence may be admissible for another purpose under MRE 404(b)(1), which prosecutions:
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.
This rule represents an explicit and "unwavering" prohibition of other-acts evidence for propensity purposes, and seeks to prevent a jury from convicting "a defendant on the basis of his or her allegedly bad character rather than because he or she is guilty beyond a reasonable doubt of the crimes charged." Denson, 500 Mich at 397. In order to admit such evidence, the prosecution is required to provide the defendant with "reasonable notice in advance of trial, . . . the general nature of any such evidence it intends to introduce at trial[,] and the rationale . . . for admitting the evidence." MRE 404(b)(2).
In People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), our Supreme Court pronounced the following standard for the admission of other-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.
Under the first prong of this test, the prosecution, rather than the defendant, must establish "a proper noncharacter purpose for the admission of the other-acts evidence." Denson, 500 Mich at 398. Here, the prosecution argued that the other-acts evidence demonstrated, among other things, a lack of mistake, rather than criminal propensity. The prosecution sought introduction of the other-acts evidence to rebut defendant's claim that he believed he was committing insurance fraud rather than a carjacking. Our Supreme Court has held other-acts evidence can be used to demonstrate an absence of mistake if the evidence is logically relevant and the probative value is not substantially outweighed by its potential for unfair prejudice VanderVliet, 444 Mich at 74.
The second prong of the VanderVliet test is logical relevance and it is to be determined by applying MRE 401 and MRE 402. Denson, 500 Mich at 400. Other-acts evidence is logically relevant if it 1) is material and 2) has probative value. Id. at 401. Evidence is material if it is "related to any fact that is of consequence to the action." Id. (quotation marks and citation omitted), though materiality does not require the evidence to be directed at an element of a crime or a defense. People v Sabin, 463 Mich 43, 72; 614 NW2d 888 (2000). A fact is material, and therefore "in issue" if it "is within the range of litigated matters in controversy." Id. at 58 (citations and quotation marks omitted). At trial, defendant asserted that he had been "duped" into believing he was committing insurance fraud, "therefore the prosecution bore the burden of disproving the claim[s] beyond a reasonable doubt." Denson, 500 Mich at 401. Here, the other-acts evidence was material because it was offered to rebut defendant's specific claim of mistake or misunderstanding.
Defendant argues that the other-acts evidence was not probative to rebut the defense that defendant believed he was committing insurance fraud because there are only general similarities between the other-acts evidence and the charged offense. Defendant's argument is flawed because when other-acts evidence is being offered to prove absence of mistake, the degree of similarity between the previous crime and the charged crime need not be striking. As our Supreme Court explained in Denson:
Evidence is probative if it tends 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. Generally, the threshold is minimal: any tendency is sufficient probative force. In the context of prior acts evidence, however, MRE 404(b) stands as a sentinel at the gate: the proffered evidence truly must be probative of something other than the defendant's propensity to commit the crime. Thus, although the prosecution might claim a permissible purpose for the evidence under MRE 404(b), the prosecution must also explain how the evidence is relevant to that purpose without relying on a propensity inference. Ultimately, the court must determine whether the prosecution has established some intermediate inference, other than the improper inference of character, which in turn is probative of the ultimate issues in the case. If not, the evidence is inadmissible. [Id. at 401-402 (quotation marks and citations omitted).]
The prosecution argued that the other-acts evidence was admissible under MRE 404(b) to show lack of mistake or accident. With respect to lack of mistake or accident, the prosecution asserted that the previous conviction "goes to the heart of the defendant's defense." Other-acts evidence "that suggest the absence of accident are offered on the basis of a theory of logical relevance that is a subset of innocent intent theories," and these "past events need only be of the same general category as the charged offense." Mardlin, 487 Mich at 622-623 (quotation marks and citation omitted). Under the theory of relevance advanced by our Supreme Court in Mardlin, the trial court correctly held that the prosecution could use the other-acts evidence to rebut defendant's claim that he believed he was committing insurance fraud.
Under the third prong of the VanderVliet test, "the probative value of the [other-acts] evidence [cannot be] substantially outweighed by the danger of unfair prejudice[.]" Denson, 500 Mich at 398, citing Vander Vliet, 444 Mich at 55. In making this determination, this Court applies the balancing test under MRE 403. Id. MRE 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.
MRE 403 only prohibits evidence that is unfairly prejudicial; it does not prohibit all prejudicial evidence. Mardlin, 487 Mich at 619 (citation omitted, emphasis added). All evidence presented by the prosecution will presumably be prejudicial because it is proffered to prove that defendant committed the crime with which he was charged. People v Pickens, 446 Mich 298, 337; 521 NW2d 797 (1994).
Defendant argues that evidence of his previous conviction was unduly prejudicial because it could only be used to infer his propensity to commit carjackings. Such an argument is contrary to our prior conclusions that the other-acts evidence was offered for a proper, noncharacter purpose. We certainly acknowledge that evidence of a prior conviction was prejudicial to defendant however, as our Supreme Court has instructed: "MRE 403 does not prohibit prejudicial evidence; only evidence that is unfairly so." Mardlin, 487 Mich at 619. Review of the record in this case does not lead to a conclusion that introduction of the other-acts evidence unfairly prejudiced defendant.
Under the fourth prong of the VanderVliet test, "the trial court, upon request, may provide a limiting instruction under [MRE] 105." VanderVliet, 444 Mich at 75. MRE 105 prosecutions:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Here, the record reveals that the trial court instructed the jury that it could only consider defendant's previous conviction to determine whether "the evidence intends to show that the defendant acted purposely that is, not by accident or mistake or because he misjudged the situation." "Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors." People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).
Defendant also maintains that during closing arguments, the prosecutor argued that defendant's previous carjacking conviction was evidence of a common scheme to carjack. As previously quoted, the assistant prosecutor explicitly informed the jury that it was able to hear about defendant's previous conviction "because the defendant came up here with this story about I was mistaken." Such argument was not aimed at proving defendant had a propensity for carjacking, rather, the argument was in accord with the trial court's ruling. Further, the trial court instructed the jury that "[t]he lawyer's statements and arguments are also not evidence. They are only meant to help you to understand the evidence and present each side's legal theories." "Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors." Abraham, 256 Mich App at 279.
Following review of the record in this case, we conclude that the trial court did not err in the admission of the other-acts testimony. Accordingly, defendant is not entitled to relief on this issue.
B. ASSESSMENT OF COURT COSTS
Defendant next argues that the trial court's assessment of court costs under MCL 769.1k(1)(b)(iii) constituted an unconstitutional tax and must be vacated. Specifically, defendant argues that MCL 7691k(1)(b)(iii) does not contain a distinct statement regarding the amount of costs to be imposed against a defendant, thereby rendering the amount or rate a defendant can be charged obscure and therefore unconstitutional. Additionally, defendant argues, the statute violates the separation of powers provision of the Michigan Constitution because the statute "delegates to the trial court the authority to determine the amount of the tax." According to defendant, only the Legislature has the power to impose taxes.
Defendant's arguments are devoid of merit as they are directly contrary to published authority by this Court.
In People v Cameron, 319 Mich App 215, 235, 900 NW2s 658 (2017), this Court addressed defendant's issues. This Court held that under MCL 769.1k, trial courts can impose court costs on defendants as long as those costs are "reasonably related to the actual costs incurred by the trial court." Id. at 226. Contrary to defendant's further assertions on appeal, this Court in Cameron specifically held that MCL 769.1k does not violate the Distinct Statement Clause because "defendant has presented no evidence indicating that the Legislature did not intend MCL 769.1k(1)(b)(iii) to raise revenue for the courts or that the court costs collected are directed to a use unintended by the Legislature." Id. at 231. Lastly, defendant's argument that MCL 769.1k(1)(b)(iii) violates the separation of powers provision of the Michigan Constitution was rejected by this Court in Cameron when we held that MCL 769.1k does not violate separation of powers because "the Michigan Constitution does not require an absolute separation of powers" and MCL 769.1k gives courts adequate guidance such that they do not infringe on the Legislature's taxing power. Id. at 235.
Defendant also mistakenly argues that this Court's holding in Cameron is not binding because the Michigan Supreme Court has granted leave on this issue, but has not yet issued a holding. Such a statement is erroneous for two reasons. First, the statement ignores that fact that our Supreme Court denied leave to appeal on July 10, 2019. People v Cameron, 504 Mich 927; 929 NW2d 785 (2019). Second, this Court is bound to follow Cameron, under the rule of stare decisis, because it is a published decision of this Court that has not been overruled. People v Cross, 281 Mich App 737, 738; 760 NW2d 314 (2008). Because Cameron is controlling precedent, and defendant has failed to demonstrate that our prior holding was in error, defendant is not entitled to relief on this issue.
Affirmed.
/s/ Michael J. Kelly
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello