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People v. Rosa

Court of Appeals of Michigan

January 23, 2018

ROBERT LEE ROSA, Defendant-Appellant.

         Barry Circuit Court LC No. 16-000438-FC

          Before: Markey, P.J., and Shapiro and Gadola, JJ.

          PER CURIAM.

         Defendant was convicted of assault with intent to commit murder, MCL 750.83, assault by strangulation, MCL 750.84(1)(b), and domestic violence, MCL 750.81(2). The convictions arose out of an assault against his ex-wife on March 6, 2016.[1] He was sentenced as a second-offense habitual offender, MCL 769.10. The sentencing guidelines provided a recommended minimum term of between 135 months and 281 months, but the trial court departed from the guidelines and imposed a sentence of 300 to 600 months' imprisonment on the assault with intent to commit murder conviction. Defendant was also sentenced to 120 to 180 months' imprisonment on the assault by strangulation conviction, and 93 days' imprisonment on the domestic violence conviction.

         According to the testimony of the victim and other evidence, defendant entered the victim's bedroom while she was asleep with their youngest child asleep beside her. Defendant placed a pillow over the victim's face. He then put a belt around the victim's neck and tightened it; however, the victim was able to get her hand between the belt and her neck so she could still breathe. Defendant removed the belt and put it around the victim's neck a second time and tightened it, cutting off the victim's ability to breathe. There was physical evidence of the strangling including bruising on her neck, and broken blood vessels around her eyes.

         Defendant raises five claims of error in this appeal, three that challenge his convictions and two that challenge his sentence. For the reasons discussed below, we affirm.


         Defendant argues that the trial court erred by admitting evidence of prior acts of domestic violence against his first wife.[2] The trial court ruled that the evidence was admissible under MCL 768.27b and MRE 404(b). [3] We agree with defendant that this evidence was improperly admitted but after a review of the entire record, we are confident that this error was harmless because it is highly unlikely that it affected the outcome of the trial and it does not undermine the reliability of that outcome. People v Young, 472 Mich. 130, 141-142; 693 N.W.2d 801 (2005); People v Feezel, 486 Mich. 184, 192; 783 N.W.2d 67 (2010). We will first review the issue in relation to the statute and then in relation to the rule.

         A. MCL 768.27b

         MCL 768.27b provides that in domestic violence cases, evidence of other acts of domestic violence are admissible, even to show propensity, so long as their admission does not violate MRE 403 and they took place no more than 10 years before the charged offense. The statute reads in pertinent part:

(1) Except as provided in subsection (4), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403.
* * *
(4) Evidence of an act occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that admitting this evidence is in the interest of justice.

         The prior acts testified to by defendant's first wife occurred, at a minimum, 16 years before the events for which he is charged. Per the language of the statute, those acts that occurred ten years before the charged offense are inadmissible unless their admission "is in the interest of justice." The statute does not define "interest of justice."

         The prosecution argues that the evidence of prior acts occurring outside the 10-year period was admissible under the "interest of justice" exception because the evidence was probative of defendant's pattern of behavior and it did not violate MRE 403. The difficulty with this standard is that if we read the "interest of justice" exception to apply merely because the evidence is probative of defendant's propensities and it survives MRE 403 review, the 10 year limitation has no meaning. All evidence admitted under MCL 768.27b, including evidence of acts falling within the ten-year window must be probative and must not violate MRE 403. Thus, to define "interest of justice" by such a standard means that evidence of beyond-ten-year-old prior acts is admissible simply by showing that it would be admissible had it occurred within the ten-year window. This renders the ten-year limit essentially nugatory, and it is well-settled that we must avoidany "construction that would render any part of the statute surplusage or nugatory." People v Peltola, 489 Mich. 174, 181; 803 N.W.2d 140 (2011) (quotation marks omitted).

         For this reason, we conclude that the trial court applied the wrong standard in determining whether the testimony of defendant's first wife fell within the "interest of justice" exception. To avoid rendering the 10-year limit nugatory, the exception should be narrowly construed. Accordingly, we conclude that evidence of prior acts older than 10 years are admissible under MCL 768.27b only if that evidence is uniquely probative or that without its admission, the jury is likely to be misled.

         In this case, the testimony of defendant's first wife concerning events that occurred at least sixteen years before the charged crimes was not uniquely probative. The victim's testimony laid out a detailed and compelling picture of defendant as an abusive and violent husband. She described repeated verbal abuse, multiple beatings, and a rape. The older son described threatening and violent behavior as well. The prior bad acts described by defendant's first wife were neither uniquely probative nor needed to assure that the jury was not misled; instead, they were consistent with and cumulative to the victim's testimony regarding defendant's character and propensity.

         B. MRE 404

         We next consider whether the testimony of defendant's first wife, though not admissible under MCL 768.27b, was nevertheless admissible under MRE 404. MRE 404 differs from MCL 768.27b in several ways that are relevant here. First, there is no temporal limitation. "The remoteness of the other act affects the weight of the evidence rather than its admissibility, " People v Brown, 294 Mich.App. 377, 387; 811 N.W.2d 531 (2011), but unlike the statute, it contains no bright line cut-off based on when the acts took place. Second, while the statute permits evidence to be admitted to show defendant's propensity or character, MRE 404 does not. The text of the rule begins, "[e]vidence of a person's character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." However, MRE 404(b) sets forth a list of several grounds, other than propensity, to which such evidence may serve as proof "when the same is material."

         We conclude that the testimony of defendant's prior wife was not admissible under MRE 404(b) because the purpose of the evidence was to show that in this case, defendant acted in conformity with the character shown in the prior acts, i.e. that defendant was threatening, abusive, and violent. The testimony of defendant's first wife demonstrated that defendant is a dangerous man and an incorrigible spouse abuser, but it did not offer probative evidence on a material issue. Putting aside the fact that identity was not at issue, there was no particular pattern or scheme described by his first wife that would serve to identify defendant except to show that abusing and attacking his wives is in the nature of defendant's character. Nor did the evidence have significant, if any, probative value as to intent. Testimony about defendant's abusive treatment of his first wife many years ago tells us little, if anything, about whether he had an intent to kill when attempting to strangle the victim. By contrast, there is substantial evidence of defendant's intent in the victim's testimony describing the actual assault at issue, i.e. that he attempted to smother her with a pillow, and twice placed a belt around her neck and tightened it so that she could not breathe. Further, the photographs of the victim's bruises and discoloration around her eyes from ocular petechiae[4] were very relevant to intent because they showed that the belt was tightened around the victim's neck for a significant period of time. Finally, defendant's 16-year-old son testified that the day after the assault against his mother, defendant was in a state of anger and repeatedly attacked him. Compared to this sort of evidence, 16-year-old assaults against a different person are barely probative of intent, if at all. And to the degree it is at all probative, under the facts of this case, it would not survive review under MRE 403 due to its "danger of unfair prejudice."

         C. Harmless Error

         As just noted, the testimony of defendant's first wife did carry significant potential for unfair prejudice in that the jury could conclude that even if defendant was not guilty of the instant charge, he was a bad and dangerous man who should be incarcerated. As the Supreme Court stated in People v Denson, 500 Mich. 385; 902 N.W.2d 306 (2017):

[O]ther-acts evidence carries with it a high risk of confusion and misuse. When a defendant's subjective character [is used] as proof of conduct on a particular occasion, there is a substantial danger that the jury will overestimate the probative value of the evidence. The risk is severe that the jury will use the evidence precisely for the purpose that it may not be considered, that is, as suggesting that the defendant is a bad person, a convicted criminal, and that if he did it before he probably did it again. [Id. at 410 (quotation marks and citations omitted). [5]

         Given these dangers, the Supreme Court in Denson has instructed that harmless error analysis should be applied with care and that "the mere presence of some corroborating evidence [of guilt] does not automatically render an error harmless." Id. at 413. Rather, the Court explained that we are "to assess the effect of the error in light of the weight and strength of the untainted evidence." Id. (quotation marks and citation omitted). Having done so in this case, we conclude that the evidence of guilt in this case, based on properly admitted evidence, was so overwhelming that exclusion of the infirm evidence could not have resulted in a different outcome. The testimony of the victim was compelling and wholly unshaken by cross-examination. Her injuries were documented, visible, and unquestionably caused by strangulation. They were inflicted when defendant and the victim were alone except for the presence of a sleeping child, and there is evidence that it occurred at a time that defendant was very angry. Moreover, the victim's testimony about defendant's prior bad acts over the course of 10 years, properly admitted under MCL 768.27b, strongly supported the notion-proper under MCL 768.27b-that defendant had a strong propensity towards violence and specifically towards violence against the victim. Thus exclusion ...

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