Opinion
No. 347627
03-19-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. SHANE MATTHEW WALTERS, 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 UNPUBLISHED Oakland Circuit Court
LC No. 2018-266975-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 three counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (sexual penetration with a person under 13 years of age), and two counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (sexual contact with a person under 13 years of age). Defendant was sentenced to 35 to 80 years' imprisonment for each of his CSC-I convictions, and 10 to 15 years' imprisonment for each of his CSC-II convictions. On appeal, defendant argues that the trial court erred by admitting other-acts evidence through the testimony of two minor children. Defendant contends that the testimony was inadmissible under MCL 768.27a, and unduly prejudicial under MRE 403. We affirm.
I. FACTUAL BACKGROUND
This matter arises out of a series of sexual assaults perpetrated against an eight-year-old victim at her home between 2015 and 2016. In April 2015, defendant, who is the victim's cousin, and his daughter, moved in to a guest bedroom in the victim's home, where she lived with her father, mother, and brother. At that time, the victim was eight years old and defendant was 28 years old.
The victim testified that defendant's daughter frequently asked the victim to come to the guest bedroom to watch movies. Often, defendant's daughter would fall asleep, and at that point, defendant would sexually assault the victim. Defendant touched the victim's genitals, made the victim touch his genitals, and sexually penetrated the victim. Defendant also showed the victim pornographic videos, and made her perform the sexual acts depicted in the videos.
In July 2016, defendant moved to Colorado. In November 2017, the victim told her parents about the sexual assaults, and told them that defendant had threatened to kill her if she told anyone. Defendant was arrested in Colorado and extradited to Michigan where charges were filed. The prosecution filed a notice of intent to introduce evidence of defendant's other acts under MCL 768.27a. That evidence included the testimony of TR and TC, who were the children of defendant's former wife.
TR testified that she met defendant when she was five years old, and that she began referring to defendant as her father and called him "dad." Sometime around 2009, TR was playing hide-and-seek with defendant while her mother was not home. When defendant found TR hiding in a closet, defendant touched TR's genitals underneath her clothes with his hand. TC, who lived with her paternal grandparents, testified that she met defendant during a visit to her mother's home when she was approximately 11 or 12 years old. When TC was 12 or 13 years old, she began communicating regularly with defendant through text messages and e-mail. TC testified that defendant treated her like a girlfriend, that the two discussed having sexual contact, and that defendant told TC not to tell her mother about their conversations. TC's grandparents discovered the communications and reported defendant to law enforcement.
Defendant now argues that TR's and TC's testimonies were inadmissible under MCL 768.27a and MRE 403. We disagree.
II. STANDARD OF REVIEW
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) (citation and quotation marks omitted). "A preserved trial error in the admission of evidence does not constitute grounds for reversal unless, after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome[-]determinative." People v Solloway, 316 Mich App 174, 192; 891 NW2d 255 (2016) (quotation marks and citation omitted).
A. MCL 768.27a
Generally, in a criminal trial, MRE 404(b)(1) provides precludes the prosecution from introducing "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." However, the admissibility of evidence regarding a defendant's commission of certain listed offenses against a minor is governed by MCL 768.27a, which "allows the admission of other-acts evidence to demonstrate the likelihood of a defendant's criminal sexual behavior toward other minors." People v Pattison, 276 Mich App 613, 620; 741 NW2d 558 (2007). The statute provides:
(1) Notwithstanding [MCL 768.27], 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. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.Where MCL 768.27a applies, "it supersedes MRE 404(b)." People v Watkins, 491 Mich 450, 476-477; 818 NW2d 296 (2012). That is, evidence admissible under MCL 768.27a is admissible "for its bearing on any matter to which it is relevant," including "to show a defendant's character and propensity to commit the charged crime." Id. at 470 (quotation marks and citation omitted). To be admissible, defendant's prior conduct and the charged offense need only be "of the same general category." People v Duenaz, 306 Mich App 85, 101; 854 NW2d 531 (2014) (quotation marks and citation omitted).
(2) As used in this section:
(a) "Listed offense" means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722.
(b) "Minor" means an individual less than 18 years of age. [MCL 768.27a.]
Both TR and TC testified to experiences that were overwhelmingly similar to the victim's experience in this case. TR and TC were minors when, according to their testimony, they had inappropriate contact with defendant. Both witnesses spoke to a pattern of grooming employed by defendant, and TR even testified that defendant would watch television and play hide-and-seek with her exactly like the victim in this case. Like the victim in this case, TR and TC had familial relationships with defendant. And, both TR and TC felt intimidated not to reveal defendant's conduct. Given the similarities in their experiences, TR's and TC's testimonies demonstrated defendant's propensity toward committing the conduct with which he was charged in this case. See Pattison, 276 Mich App at 620. ("In cases involving the sexual abuse of minors, MCL 768.27a . . . allows the admission of other-acts evidence to demonstrate the likelihood of defendant's criminal sexual behavior towards other minors.") TR's testimony helped to establish defendant's pattern of sexually assaulting underage relatives in his household, while TC's testimony helped to establish defendant's pattern of befriending underage relatives to gain their trust, in order to perpetrate sexual assaults.
Also similar to this case, defendant's sexual assault of TR was born out of those seemingly innocuous activities. --------
Thus, to the extent that defendant intended to argue that the other-acts evidence was inadmissible under MCL 768.27a, we disagree.
B. MRE 403
Defendant further contends that, even if generally admissible under MCL 768.27a, the other-acts evidence in this case should have been excluded under MRE 403 because it was unduly prejudicial. We disagree.
Evidence admissible under MCL 768.27a remains subject to exclusion under MRE 403. See Watkins, 491 Mich at 496 ("[E]vidence admissible under MCL 768.27a remains subject to MRE 403, but . . . courts must weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect."). As noted above, "[a] defendant's propensity to commit criminal sexual behavior can be relevant and admissible under the statutory rule to demonstrate the likelihood of the defendant committing criminal sexual behavior toward another minor." People v Petri, 279 Mich App 407, 411; 760 NW2d 882 (2008). Consequently, "other-acts evidence admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity inference." Watkins, 491 Mich at 487. To determine whether other-acts evidence should "be excluded under MRE 403 as overly prejudicial," a trial court can consider the following nonexhaustive list of factors:
(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. [Id. at 487-488.]"The foregoing considerations may be used by trial courts to determine whether the probative value of evidence admissible under MCL 768.27a—which includes the propensity inference derived from the other-acts evidence—is nonetheless outweighed by the danger of unfair prejudice." Id. at 489.
Defendant denies sexually abusing TR, but argues that even if he did, the act was dissimilar to the charged acts in this case, particularly because it only occurred one time. Defendant also argues that his alleged discussions with TC about engaging in sexual contact was dissimilar to the charged acts in this case because TC was older than this victim, and because no physical sexual contact actually occurred between defendant and TC. Accordingly, defendant asserts that under MRE 403, the probative value of TR's and TC's testimonies was substantially outweighed by their prejudicial effect. However, as noted above, there are significant similarities between the events testified to by TR and TC, and the crimes alleged in this case. Moreover, that TR only testified to one act of sexual abuse does not indicate a level of "infrequency" that would make the child sexual assault more prejudicial than probative, particularly given that, in all other respects, the assault experienced by TR was incredibly similar to the assaults described by the victim in this case. Similarly, while TC was older than the victim during the period of time that she was in contact with defendant, she was still a child. We cannot conclude that the difference between sexual communication with a 13 year old versus an eight year old is so substantial that, in this case, evidence of the former was more prejudicial than probative of defendant's guilt of the latter. And, while defendant never made sexual contact with TC, defendant discussed making sexual contact with TC, which is an act "of the same general category" that was sufficiently similar to the conduct for which defendant was charged. See Duenaz, 306 Mich App at 101.
Defendant briefly suggests that the only evidence needed in this case was the victim's and defendant's testimonies, and thus, TR's and TC's testimonies were unnecessarily cumulative. "[T]rial courts retain their discretion under MRE 403 to determine how many separate pieces of other-acts evidence may be admitted before the probative value of evidence is outweighed by the danger of . . . [the] needless presentation of cumulative evidence." Watkins, 491 Mich at 489 (quotation marks and citation omitted). Before the trial court admitted TR's and TC's testimonies into evidence, the trial court stated that it reviewed the prosecution's notice of intent and found it highly relevant to the charges in this case. We cannot conclude that, under the circumstances, there was no need for evidence beyond the victim's and the defendant's testimonies, nor that the trial court's allowance of additional evidence was an improper exercise of the trial court's discretion.
Defendant lastly asserts that the testimony of TR and TC may have interfered with the jury's ability to accurately assess the credibility of the victim and defendant. Defendant makes no citation to the record or any law in support of this speculative assertion, and to the extent that defendant's assertion constitutes a challenge to the reliability of TR's and TC's testimonies, Watkins, 491 Mich at 487, it is worth noting that defendant confronted TR and TC and tested their credibility through cross-examination. Moreover, it is the jury that determines "the credibility of testimony offered by witnesses." People v Musser, 494 Mich 337, 348-349; 835 NW2d 319 (2013). To the extent that the jury found TR and TC to be credible, and to the extent that their testimony lent to the credibility of the victim, defendant does not provide nor do we see any justification to disturb that determination.
As an aside, we note that "[a] final tool available for trial courts when admitting other-acts evidence under MCL 768.27a is [M Crim JI 20.28], the standard jury instruction on evidence of other acts of child sexual abuse[.]" Watkins, 491 Mich at 490 (footnote added). "In cases in which a trial court determines that MRE 403 does not prevent the admission of other-acts evidence under MCL 768.27a, this instruction is available to ensure that the jury properly employs that evidence." Watkins, 491 Mich at 490. Here, when the trial court instructed the jury, it stated, in relevant part:
The prosecution in this case has introduced evidence of claimed acts of sexual misconduct by the Defendant with minors [TR and TC] for which he is not on trial. Before you may consider such alleged acts as evidence against the Defendant, you must first find that the Defendant actually committed those acts. If you find that the Defendant committed those acts, you may consider them in deciding if the Defendant committed the offenses for which he is now on trial.
You must not convict the defendant here solely because you think he is guilty of other bad conduct. The evidence must convince you beyond a reasonable doubt that the Defendant committed the alleged crimes—crimes, or you must find him not guilty.Thus, the trial court instructed the jury to find that defendant actually committed the acts against TR and TC before it could use those acts as propensity evidence, and reminded the jury that it could only convict defendant based upon his conduct with the victim. "Jurors are presumed to follow their instructions." People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011). Thus, the trial court minimized the potential for unfair prejudice by providing the jury with instructions on how to properly use the other-acts evidence. People v Pesquera, 244 Mich App 305, 320; 625 NW2d 407 (2001) ("The limiting instruction given to the jury also served to limit the danger of unfair prejudice by restricting use of the evidence.") (citation omitted).
Affirmed.
/s/ Michael J. Kelly
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello