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People v. Kelly

Court of Appeals of Michigan

September 22, 2016

CALVIN RAY KELLY, Defendant-Appellee.

          APPROVED FOR PUBLICATION November 8, 2016

         Kalamazoo Circuit Court LC No. 2014-001300-FC

          Before: Murray, P.J., and Hoekstra and Beckering, JJ.

          PER CURIAM.

         In this interlocutory appeal, the prosecution appeals by leave granted[1] the trial court's order denying its motion to admit other acts evidence. For the reasons explained in this opinion, we vacate the trial court's MRE 404(b) analysis and remand for further proceedings not inconsistent with this opinion.

         In the present case, defendant has been charged with kidnapping, MCL 750.349, three counts of first-degree criminal sexual conduct (CSC), MCL 750.520b, and assault with intent to commit CSC involving sexual penetration, MCL 750.520g. These charges arise from the alleged sexual assault of SH in April of 2008. DNA collected during SH's sexual assault exam matches defendant's DNA profile. Indeed, defendant does not dispute that a sexual encounter with SH occurred on the date in question. Rather, the defense theory of the case, as set forth in lower court documents, is that SH "did in fact consent to the sexual contact or penetration with" defendant. According to the defense theory, SH consented to sex that evening as a prostitute in exchange for compensation.

         In contrast, according to the prosecution's theory of the case, this 2008 attack on SH is just one of eight sexual assaults committed by defendant. These eight sexual assault cases date from 1985 through 2010 and span four different states-Missouri, Tennessee, Michigan, and Virginia. In each case, defendant isolated the victims by selecting women who were alone and/or driving them to a more secluded location. Once the victims were isolated, defendant then forced them to engage in vaginal-penile penetration. To compel the victims' compliance, defendant employed weapons, most commonly a knife, and physical violence, including punching and choking his victims. He did not use a condom and he ejaculated, frequently leaving behind DNA evidence. DNA evidence links defendant to five of these cases, including SH's case; and, in two of the cases without DNA evidence, defendant acknowledged to police that he had sex with the victims at the times in question. While defendant was interviewed by police in several of the other cases, he was never brought to trial and there are no convictions relating to these other cases. If confronted by police, as in the present case, defendant claimed that the sex was consensual and he disparaged the victims, typically claiming that they were disgruntled prostitutes who fabricated claims of sexual assault after he refused to pay for their services.

         In this case, the prosecution filed a notice of intent under MRE 404(b)(2), indicating that it intended to introduce evidence of defendant's other acts relating to these reported sexual assaults. Given the similarities between the other acts and the alleged assault on SH, the prosecutor argued that the other acts evidence was relevant and admissible under MRE 404(b) for proper purposes, namely: to establish defendant's intent and to demonstrate a common scheme, plan or system in doing an act.[2] In contrast, defendant took the position that "[r]elevancy means believability" and, because the other conduct involved mere "allegations" of sexual assault and the previous victims were not credible, the evidence lacked probative value and amounted to mere propensity evidence. According to defendant, allowing the prosecutor to present proof of these other acts would turn the trial into a "sordidly long affair, " and any probative value was substantially outweighed by the danger of unfair prejudice.

         Ultimately, the trial court ruled in defendant's favor, concluding that the evidence was inadmissible under MRE 404(b). However, in making this ruling, the trial court did not consider whether the prosecutor identified a proper purpose for the evidence and the court failed to address whether the evidence was legally relevant to the proper purposes identified. Instead, the trial court observed that if defendant's conduct in relation to the other acts was not criminal, then the other acts evidence would not be "of any use" in the present case. In this respect, the trial court emphasized that there were no actual convictions relating to this conduct and that there was a credibility contest between defendant and the victims in terms of consent. In these circumstances, the trial court concluded that it could not "take a leap" to find that defendant had engaged in a pattern of criminal conduct. Without discussing the evidence's probative value in relation to the prosecution's proper purposes, the trial court nonetheless conducted a balancing test under MRE 403, determining that it would be unfairly prejudicial to defendant to require the jury to determine defendant's guilt of the other crimes in addition to the crimes charged in this case, particularly given the age of some of the other acts.

         Following the trial court's ruling, the prosecution moved for a stay of proceedings pending an application to appeal. The trial court granted the stay, and the prosecutor filed an interlocutory application for leave to appeal, which this Court granted.

         On appeal, the sole issue before this Court is whether the trial court abused its discretion by excluding evidence of the seven other instances of alleged criminal sexual conduct by defendant. We conclude that the trial court failed to operate within the MRE 404(b) legal framework and thus abused its discretion. For this reason, we vacate the trial court's MRE 404(b) analysis and remand for reconsideration of this issue.

         "The admissibility of other acts evidence is within the trial court's discretion and will be reversed on appeal only when there has been a clear abuse of discretion." People v Waclawski, 286 Mich.App. 634, 669-670; 780 N.W.2d 321 (2009). A trial court's decision is an abuse of discretion "when it chooses an outcome that is outside the range of reasonable and principled outcomes." Id. at 670. "When the decision involves a preliminary question of law however, such as whether a rule of evidence precludes admission, " this Court reviews the question de novo. People v Mardlin, 487 Mich. 609, 614; 790 N.W.2d 607 (2010). An abuse of discretion may occur when "the trial court operates within an incorrect legal framework." People v Hine, 467 Mich. 242, 250-251; 650 N.W.2d 659 (2002).

         As a general rule, "evidence of other crimes, wrongs, or acts of an individual is inadmissible to prove a propensity to commit such acts." People v Crawford, 458 Mich. 376, 383; 582 N.W.2d 785 (1998). Although such evidence is inadmissible for propensity purposes, it may be admitted for other purposes under MRE 404(b)(1), which states:

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, ...

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