Opinion
353532
01-06-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSHUA RAYMOND FERRIS, Defendant-Appellant.
UNPUBLISHED
Genesee Circuit Court LC No. 19-045560-FH
Before: Markey, P.J., and Shapiro and Ronayne Krause, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of resisting or obstructing a police officer, MCL 750.81d(1), and two counts of aggravated indecent exposure, MCL 750.335a(2)(b). Defendant was sentenced to serve concurrent terms of 270 days in jail and two years' probation for each conviction. We affirm.
I. BACKGROUND
The complainant in this case, CB, was 10 years old at the time of the offenses. CB's family had recently moved to a new neighborhood when he met defendant, then 29 years old, while playing frisbee. CB later returned to defendant's home to see if defendant could play frisbee with him, and defendant invited CB inside to play video games. The first time CB went to defendant's house, the two played video games and nothing unusual happened. However, CB testified that during subsequent visits, defendant began exposing his penis and rubbing it while CB was playing defendant's Xbox. CB also testified that defendant gave him cigarettes and showed him adult pornography.
CB had previously told his family that defendant was 10 years old. When CB's sister went to defendant's home on one occasion to retrieve CB, she learned that defendant was an adult. JD asked CB about defendant, and CB confided in her that defendant had been exposing himself. JD relayed this information to their parents, who then confirmed this with CB. CB's father called the police, and when the police arrested defendant he threatened the officers on the scene, spit in the patrol vehicle, and pushed his feet into an officer's chest while he was being removed from the vehicle.
II. DISCUSSION
A. MRE 404(B)
Defendant first argues that the testimony that he showed CB pornography and gave him cigarettes was admitted in violation of MRE 404(b). We conclude that any evidentiary error was not so prejudicial as to affect the outcome of the proceedings.
Evidentiary challenges are generally reviewed for abuse of discretion. People v Thorpe, 504 Mich. 230, 251; 934 N.W.2d 693 (2019). Because defendant did not object to the admission of any of the testimony he challenges on appeal, the challenges are unpreserved. See id. at 252. Unpreserved issues are reviewed for plain error, and a plain error occurs if three requirements are met: "1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999) (citation omitted).
"MRE 404 governs the admissibility of other-acts evidence. The general rule under MRE 404(b) is that evidence of other crimes, wrongs, or acts is inadmissible to prove a propensity to commit such acts." People v Denson, 500 Mich. 385, 397; 920 N.W.2d 306 (2017). MRE 404(b) provides in part:
(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 this case, the parties disagree whether the disputed testimony constitutes other-acts evidence. Defendant argues that the testimony about pornography and cigarettes was not relevant to the underlying charges and only served to prejudice him before the jury. The prosecution maintains, however, that the evidence in question does not implicate MRE 404(b) because it was part of the criminal conduct for which defendant was on trial.
In People v Jackson, 498 Mich. 246, 268; 869 N.W.2d 253 (2015), the Supreme Court held that there is no "res gestae exception" to MRE 404(b) and the definition of "res gestae" set forth in its prior opinions did not control the rule's applicability. The Court explained 404(b)'s scope as follows:
The Court had previously defined the res-gestae exception as allowing admission of other acts irrespective of MRE 404(b) when those acts were "so blended or connected with the crime of which defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime." Jackson, 498 Mich. at 265, quoting People v Delgado, 404 Mich. 76, 83; 273 N.W.2d 395 (1978).
[B]y its plain terms, MRE 404(b) only applies to evidence of crimes, wrongs, or acts "other" than the "conduct at issue in the case" that risks an impermissible character-to-conduct inference. Correspondingly, acts comprised by or directly evidencing the "conduct at issue" are not subject to scrutiny under MRE 404(b). Other jurisdictions are in accord with this understanding, aptly explaining that evidence of acts other than the charged conduct is "intrinsic" to that conduct and thus not subject to 404(b) scrutiny if the uncharged acts "directly prove[ ] the charged offense" or if they "were performed contemporaneously with" the charged offense and "facilitated [its] commission." [Id. at 262-263 (citations omitted).]
Aggravated indecent exposure is governed by MCL 750.335a, which provides in relevant part:
(1) A person shall not knowingly make any open or indecent exposure of his or her person or of the person of another.
(2) A person who violates subsection (1) is guilty of a crime, as follows:
* * *
(b) If the person was fondling his or her genitals, pubic area, buttocks, or, if the person is female, breasts, while violating subsection (1), the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.
This Court has defined "open exposure" as "any conduct consisting of a display of any part of the human anatomy under circumstances which create a substantial risk that someone might be offended," and "indecent exposure" as "an intentional exposure of part of one's body (as the genitals) in a place where such exposure is likely to be an offense against the generally accepted standards of decency in a community." People v Williams, 256 Mich.App. 576, 582, 585; 664 N.W.2d 811 (2003) (quotation marks and citation omitted). Consistent with this caselaw and the model jury instruction, M Crim JI 20.33, the jury in this case was instructed that the prosecution was required to prove as the fourth element of aggravated indecent exposure that defendant fondled his genital area
in a place under circumstances in which another person might reasonably have been expected to observe it and which created a substantial risk that someone might be offended or in a place where such exposure is likely to be an offense against your community's generally accepted standard of decency or morality.
The jury was further instructed that, in making this determination, it must consider "the nature of the act and all of the circumstances surrounding the act, including any other relevant factors, for example, the age and experience of the person who observed the act and the purpose of the act." Given these instructions, the prosecution argues that the disputed evidence was part of the criminal conduct at issue because it described the circumstances and purpose of the exposures and therefore was directly relevant to the fourth element.
The testimony that defendant gave CB cigarettes was clearly not part of the conduct at issue and therefore was subject to the requirements MRE 404(b). The giving of cigarettes to CB was not a contemporaneous circumstance to the exposures and was not relevant to whether they were "open" or "indecent." Nor can it be said that the giving of the cigarettes facilitated the commission of the exposures when CB testified that he did know that defendant had given him cigarettes until he found them in his lunch box and he then threw them out. Defendant's showing of pornography to CB, however, is a closer call. CB's testimony indicates that defendant showed him pornography during some of the exposures. Thus, the showing of pornography is seemingly part and parcel of the exposures themselves. On the other hand, it is questionable whether this was a relevant circumstance for purposes of determining whether the exposures were open or indecent. The prosecutor points to the definition of "open exposure" and argues that the pornography goes to whether the circumstances surrounding the exposure created a substantial risk that someone might be offended. The showing of pornography may increase the risk that someone may be offended, but it is difficult to conclude that this is relevant to whether an open exposure occurred in this case. Rather, it is circumstances such as the ages and relationship of the parties and the location of the exposures that is seemingly dispositive of this inquiry. The prosecutor also argues that the disputed evidence shows that defendant was grooming CB, but evidence of grooming does not directly prove that an open or indecent exposure occurred. Nor is there an evidentiary basis to conclude that the pornography facilitated the exposures. Also, the other acts, which were suggestive of grooming, generate an intermediate inference of defendant's character, thus implicating MRE 404(b). See People v VanderVliet, 444 Mich. 52, 63; 508 N.W.2d 114 (1993).
CB answered affirmatively when asked whether defendant was "looking at [pornography] while he was rubbing his penis," but it was not established whether this occurred every time defendant masturbated in CB's presence.
In any event, we will assume for purposes of this appeal that the testimony relating to the cigarettes and pornography was other-acts evidence governed by MRE 404(b). And because the prosecutor does not present an alternative argument that the evidence would have been admissible under MRE 404(b) for a non-character proper purpose, we will further assume that the evidence would not have been admissible under that rule. However, we conclude that defendant fails to demonstrate outcome-determinative prejudice for this unpreserved error. See People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).
A four-pronged test is applied to determine whether other-acts evidence is admissible under MRE 404(b):
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. [People v Kelly, 317 Mich.App. 637, 644; 895 N.W.2d 230 (2016) (quotation marks and citations omitted).]
For the reasons discussed, the disputed evidence did not directly pertain to the conduct for which defendant was charged and convicted. Indeed, the prosecutor only briefly mentioned the purported MRE 404(b) evidence in closing argument and did not rely on it in arguing that the elements of aggravated indecent exposure had been proven. Rather, the most compelling evidence was CB's detailed and consistent testimony about how defendant would routinely invite him into defendant's home and masturbate in his presence and the corroborating testimony from CB's family establishing that CB had in fact been spending time at the home of defendant, who the family believed was 10 years old. Further, defendant does not explain how the defense-that CB fabricated the allegations because he did not want to get into trouble with his parents-was meaningfully prejudiced by this evidence. Accordingly, there is no basis to conclude that the jury would have likely made a different credibility determination of CB had they not heard the testimony of the cigarettes and pornography. And, for the same reasons, defendant has failed to demonstrate a reasonable probability of a different outcome had his trial counsel successfully objected to the purported MRE 404(b) evidence, and therefore his alternative claim of ineffective assistance of counsel also fails.
CB's family members and a police officer were allowed to testify to statements made by CB regarding the exposures. There was no objection on hearsay grounds and defendant does not raise the issue on appeal.
Because the trial court did not hold an evidentiary hearing regarding defendant's claim, our review is limited to mistakes that are apparent from the record. People v Riley, 468 Mich. 135, 139; 659 N.W.2d 611 (2003). "To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that (1) counsel's performance was below an objective standard of reasonableness and (2) a reasonable probability exists that the outcome of the proceeding would have been different but for trial counsel's errors." People v Head, 323 Mich.App. 526, 539; 917 N.W.2d 752 (2018).
B. TESTIMONY CONCERNING DEFENDANT'S SUICIDAL IDEATION
Defendant next argues that the trial court erred by admitting testimony that after he was arrested and taken to jail he stated "that he did not want to be on this earth any longer." Defendant claims the statement was not relevant. The prosecution responds that the statement was relevant because it showed a consciousness of guilt.
"Generally, all relevant evidence is admissible at trial." People v Aldrich, 246 Mich.App. 101, 114; 631 N.W.2d 67 (2001). See also MRE 402. And it is settled that "[e]vidence that reflects a defendant's consciousness of guilt is relevant." People v Parrott, ___ Mich. ___, ___; ___ N.W.2d ___ (2021) (Docket No. 350380); slip op at 17, lv app pending. A defendant's demeanor and statements can be probative of consciousness of guilt. Id. "It is ultimately for the jury to determine whether a defendant's conduct was indicative of consciousness of guilt." Id.
Officer Sydney Salem testified that once defendant was taken to jail he "made statements that he did not want to be on this earth any longer and he would rather not be here." The officer agreed that defendant was indicating that "he'd rather just be dead." Defendant argues that his statement was not relevant of a consciousness of guilt because the police had not yet informed him that he was arrested as a result of his conduct with CB. Therefore, the argument runs, defendant's comments could not have pertained to charges he did not know about. However, given the testimony that the jury heard from CB, JD, and their parents, it could easily infer that defendant was aware of the fact that he had been engaging in serious criminal activity and was being arrested for that reason. Thus, defendant's lack-of-relevance argument is without merit. As discussed, the jury could reasonably infer that the defendant's statement demonstrated a consciousness of guilt and was therefore relevant and probative.
Defendant also argues that his statement should have been excluded under MRE 403 because it was far more prejudicial than probative of guilt. As discussed, if the jury inferred that defendant's statement was referring to his conduct with CB, the statement was probative of his consciousness of guilt. Moreover, defendant has failed to explain how this evidence created any risk of unfair prejudice, and we see no basis for concluding that this evidence would "be given undue or preemptive weight by the jury." People v Schaw, 288 Mich.App. 231, 237; 791 N.W.2d 743 (2010). Therefore, defendant fails to establish a violation of MRE 403.
Affirmed.