PEOPLE OF MI V DANNY LEE KNOX JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
April 8, 2003
9:05 a.m.
Plaintiff-Appellee,
v
No. 226944
Kalamazoo Circuit Court
LC No. 98-000898-FC
DANNY LEE KNOX, JR.,
Defendant-Appellant.
Updated Copy
May 23, 2003
Before: Whitbeck, C.J., and Bandstra and Talbot, JJ.
WHITBECK, C.J.
After a first jury trial resulted in a hung jury, a second jury convicted defendant Danny
Lee Knox, Jr., of first-degree felony murder,1 with first-degree child abuse as the predicate
felony, for committing the abuse from which his four-month-old son, Xavier Knox, died. The
trial court sentenced Knox to life imprisonment without the possibility of parole. Knox appeals
as of right. We affirm.
I. Basic Facts And Procedural History
On the evening of July 22, 1998, LaToya Kelley and Knox, Xavier Knox's parents, were
in Kelley's apartment with the baby and Kelley's two-year-old child. It is undisputed that, during
the evening, the couple argued. Later in the evening, Kelley fed the baby a bottle of formula
before putting him to bed. At that time, the baby seemed fine to Knox.
After the baby went to sleep, Kelley left her apartment to get a cigarette from Latarsha
Ferguson, a friend and neighbor. Kelley was still upset with Knox when she left the apartment
sometime between 9:30 p.m. and 9:35 p.m. When Kelley arrived at Ferguson's apartment
moments later, Ferguson was busy and told Kelley to return in a few minutes. Kelley then went
to neighbor Avery Evans's apartment.
According to Knox, he checked on the baby and Kelley's other child at around 9:45 p.m.,
at which time he sent the older child to the bathroom. A few minutes later, after the child was
1
MCL 750.316(1)(b).
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finished in the bathroom, Knox reentered the bedroom that the children shared. Knox noticed the
baby making gurgling noises and saw that the baby's eyes had rolled back into his head. He tried,
but failed, to get the baby to respond to him, so he ran to the balcony and yelled for Kelley. He
then telephoned Kelley's mother, telling her that something was wrong. Kelley's mother later
testified that she received this telephone call at 10:00 p.m.
After calling Kelley's mother, Knox said that he ran to neighbor Roberta Cruz's
apartment. He was looking for Kelley and was concerned that the baby was not breathing. Cruz
telephoned 911 within seconds of Knox's arrival. Emergency-service personnel arrived at the
apartment at 10:16 p.m. The baby had a heartbeat at that time. At 10:25 p.m., on reassessment,
the baby no longer had a heartbeat. Neither Cruz nor any of the responding emergency personnel
saw any signs that the baby had been abused. Only after the baby arrived in the emergency room
did the signs and extent of the abuse become apparent.
Medical experts determined that the baby died as the result of being shaken severely.
During the shaking incident, his head came into contact with an object between three and seven
times. Experts concluded that the baby likely would have lost consciousness within one or two
minutes of being injured. Other physical symptoms would have manifested themselves within
two minutes. He would not have cried normally in response to his injuries, but may have
moaned. One medical expert believed that it was possible that the baby could have continued to
breathe in an abnormal pattern for one or two hours before his heart rate collapsed. The
pathologist who performed the autopsy thought, however, that the baby could have breathed
spontaneously for only minutes after the injury was inflicted.2 Both experts agreed that it would
have been impossible for the baby to consume a bottle at 9:00 p.m., which is when Kelley
estimated she fed the baby the bottle, if he had been beaten before that time.
The baby's specific injuries included retinal hemorrhaging or bleeding in the eyes, a sign
of shaken-baby syndrome. The baby had three distinct skull fractures, which were fatal and
caused by three separate impacts. The baby had also recently sustained an injury to his liver and
fractures to his right arm and left leg. In addition, the baby had healed rib fractures that were
between three- and six-weeks old. Finally, the baby had seven crescent-shaped marks on the
exterior of his head, which were caused either by fingernails or by the baby's head coming into
contact with a rough surface. The experts concluded that the injuries inflicted on the baby were
not accidental.
At trial, Knox attempted to show that Kelley abused the baby before leaving the
apartment on the evening in question. Knox categorically denied that he was responsible for the
baby's death. Conversely, the prosecutor sought to establish that Knox had problems bonding
with the baby. The prosecution also elicited testimony that Knox had problems with anger
management, including separate incidents when he had pushed Kelley, kicked his foot through a
2
This testimony was contradicted by the facts. The evidence demonstrated that the victim still
had a heartbeat when the emergency-service personnel arrived at 10:16 p.m.
-2-
door, and punched his hand through a wall. Kelley said that Knox was taking anger-management
classes. Knox said that he was taking a parenting class, not an anger-management class, though
he admitted on cross-examination that Kelley told him to get help with his anger and that the
class was designed to "clear the air" with Kelley. The prosecution also elicited testimony that the
baby had suffered abuse before the night he died.
II. Arguments
On appeal, Knox raises two critical issues. First, he argues that the trial court committed
error requiring reversal when it admitted evidence that he had an anger-management problem,
that the baby had suffered abuse before the night the fatal injuries were inflicted, and that Kelley
was a good parent who would not have committed the crime. Though Knox phrases his
argument in terms of prosecutorial misconduct, this is in actuality an evidentiary issue, and we
examine the substance of his arguments in that context. Second, Knox argues that he cannot be
convicted of felony murder when the acts comprising the predicate felony also comprised the
murder.
III. Prior-Bad-Acts Evidence
A. Standard Of Review
Because Knox did not object when the trial court admitted the evidence pertaining to his
anger-management problem, the past abuse of the baby, and Kelley's good character, he failed to
preserve this issue for appeal.3 Accordingly, Knox is entitled to relief only if he demonstrates
plain error affecting his substantial rights, meaning that he was actually innocent or the error
"'"seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings"
independent of '" Knox's innocence.4
B. Interpretations Of MRE 404(b)
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.
3
See People v Carines, 460 Mich 750, 761; 597 NW2d 130 (1999).
4
Id. at 763, quoting United States v Olano, 507 US 725, 736; 113 S Ct 1170; 123 L Ed 2d 508
(1993).
-3-
In People v VanderVliet,5 the Michigan Supreme Court, relying on Huddleston v United
States, set out the three factors that must be present for prior-bad-acts evidence7 to be
admissible. First, the evidence must "be offered for a proper purpose under Rule 404(b)."8
Second, the evidence must "be relevant under Rule 402 as enforced through Rule 104(b)."9 And
third, "the probative value of the evidence [must not be] substantially outweighed by unfair
prejudice."10 Additionally, if the trial court admits the evidence, "the trial court may, upon
request, provide a limiting instruction to the jury."11
6
The Supreme Court utilized this "flexible"12 test in People v Crawford,13 explaining that
[u]nder this formulation, the prosecution bears the initial burden of establishing
relevance of the evidence to prove a fact within one of the exceptions to the
general exclusionary rule of MRE 404(b). Where the only relevance is to
character or the defendant's propensity to commit the crime, the evidence must be
excluded. Where, however, the evidence also tends to prove some fact other than
character, admissibility depends upon whether its probative value outweighs its
prejudicial effect, taking into account the efficacy of a limiting instruction in
cushioning the prejudicial effect of the evidence.[14]
Though a prosecutor may articulate a proper purpose for the evidence even after trial,15 a
prosecutor may not merely list one of the proper purposes articulated in MRE 404(b) to make the
evidence admissible.16 Rather, relevance is critical.17
5
People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).
6
See VanderVliet, supra at 55 n 2, citing Huddleston v United States, 485 US 681; 108 S Ct
1496; 99 L Ed 2d 771 (1988).
7
Appellate opinions use the terms "prior-bad-acts evidence" and "other-acts evidence"
interchangeably.
8
VanderVliet, supra at 55.
9
Id.
10
Id.
11
Id.
12
People v Sabin (After Remand), 463 Mich 43, 58; 614 NW2d 888 (2000).
13
People v Crawford, 458 Mich 376; 582 NW2d 785 (1998).
14
Id. at 385.
15
See Sabin (After Remand), supra at 59 n 6.
16
Crawford, supra at 387.
17
Id.
-4-
Relevance is a relationship between the evidence and a material fact at
issue that must be demonstrated by reasonable inferences that make a material fact
at issue more probable or less probable than it would be without the evidence. . . .
The logical relationship between the proffered evidence and the ultimate fact
sought to be proven must be closely scrutinized.[18]
In other words, the evidence "truly must be probative of something other than the defendant's
propensity to commit the crime."19 Even though MRE 404(b) is "inclusionary,"20 the Supreme
Court has explained, "[i]f the prosecutor fails to weave a logical thread linking the prior act to the
ultimate inference, the evidence must be excluded . . . ."21
C. Hine
After the parties submitted their briefs and engaged in oral arguments, the Michigan
Supreme Court decided People v Hine.22 Because we believe that Hine controls the outcome of
this case, we discuss it in some detail.
The prosecutor in Hine brought charges against defendant Robert Hine after toddler
Caitlin McLaughlin died.23 Hine lived with the little girl and her mother, who was his
girlfriend.24 In the week preceding her death, Hine had taken care of the child while his
girlfriend was at work, thus having a number of occasions to be alone with the little girl.25 The
authorities, when they conducted an autopsy, learned of numerous injuries the little girl had
sustained, including
several internal injuries including a subdural hematoma, a healing tear of the liver,
hemorrhage in the region of the pancreas, another area of bleeding in the colon
(near the appendix), and a large amount of fluid in the abdomen. Caitlin
[McLaughlin] had numerous circular bruises on her abdomen and a bruise across
the bridge of her nose. The injuries were of varying ages, from less than half a
dozen hours up to five to seven days old. The cause of death was multiple blunt
18
Id. at 387-388 (citation omitted).
19
Id. at 390.
20
See People v Engelman, 434 Mich 204, 213; 453 NW2d 656 (1990).
21
Crawford, supra at 390.
22
People v Hine, 467 Mich 242; 650 NW2d 659 (2002).
23
Id. at 245.
24
Id. at 247.
25
Id. at 245.
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force injuries. The pathologist opined that the aggregate of the injuries caused
[Caitlin McLaughlin's] death, and that the death was not accidental.[26]
Before trial in Hine, the prosecutor asked the trial court to permit prior-bad-acts
testimony from three witnesses to be admitted in evidence at trial.27 Two of these witnesses had
dated Hine in the past and the third witness was Caitlin McLaughlin's mother, who had also
dated Hine.28 The prosecutor proposed to have each of these witnesses testify regarding past
incidents in which Hine had allegedly physically abused the women,29 arguing that the testimony
was admissible as evidence of a "common scheme, plan, or system."30 The trial court,
considering that two of the women described certain injuries Hine allegedly inflicted on their
mouths and that the third woman described a head-butting incident,31 agreed with the prosecutor
that the evidence was admissible.32 The trial court, the Supreme Court later explained, reasoned
that the testimony "was not being offered to show [Hine's] propensity to commit the criminal act"
against the child.33 "Rather, the other acts evidence was offered to show defendant's scheme,
intent, system, or plan in committing the acts and to show the lack of accident."34 In particular,
as the Supreme Court later characterized the trial court's decision, the trial court thought that the
evidence was relevant to demonstrating who had injured Caitlin McLaughlin and the
perpetrator's intent.35 Finding the evidence probative, the Supreme Court said, the trial court
recognized "the danger of unfair prejudice, but held that the prejudice was diminished because
the other acts evidence involved women, not children, and the women gave no testimony about
the defendant harming children."36
At trial, the women detailed their alleged abuse at Hine's hands. According to one of
Hine's former girlfriends, Hine had "grabbed her arms, put his hands in her mouth, and stretched
her lips."37 This left her with "bruises on her gums."38 She "attributed the violence to [Hine's]
26
Id. at 244-245.
27
Id. at 245-246.
28
Id. at 245.
29
Id. at 246-248.
30
Id. at 246.
31
Id. at 246-248.
32
Id. at 248.
33
Id.
34
Id.
35
Id.
36
Id.
37
Id. at 246.
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irritation with her," and also detailed other threats and black eyes he allegedly inflicted on her.39
Hine's other former girlfriend claimed that he assaulted her "at least once a week" while they
were dating.40 She described Hine's acts of picking her up and throwing her and using his head
to strike her nose, and said that Hine had also grabbed and shoved her.41 Caitlan McLaughlin's
mother said that Hine had "pin[ned] down her arms with his knees when he was angry, causing
bruises on her arms."42 She said Hine also injured her mouth with what she described as a "'fishhook'" motion, in which he used his fingers to stretch her mouth.43
After the jury convicted Hine of felony murder and first-degree child abuse, he
appealed.44 The case then took a lengthy tour of the Michigan appellate courts. A panel of this
Court first reversed Hine's convictions.45 When the prosecutor succeeded in having this Court's
decision reversed and the matter remanded back to this Court, partly on the basis of the Supreme
Court's new opinion in People v Sabin (After Remand),46 this Court again reversed Hine's
convictions.47 The prosecutor again appealed.48 The Supreme Court then ruled on whether the
trial court had erred in admitting the prior-bad-acts evidence, stating:
The Court of Appeals erred in its determination that evidence of
defendant's assaultive behavior toward three women was inadmissible under
Sabin. We hold that the evidence was admissible to establish the common
scheme, plan, or system of the defendant in perpetrating a particular type of
physical assault. From that evidence the jury could properly have inferred that the
charged acts were committed, and were committed by the defendant.[49]
(…continued)
38
Id.
39
Id.
40
Id.
41
Id.
42
Id. at 247.
43
Id.
44
Id. at 249.
45
Id. at 243; see also People v Hine, unpublished opinion per curiam of the Court of Appeals,
issued February 25, 2000 (Docket No. 207358) (hereinafter Unpublished Hine I).
46
Sabin (After Remand), supra at 58.
47
Hine, supra at 243-244, 250.
48
Id. at 244.
49
Id. at 244.
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In sum, this Court twice concluded that the trial court actually appeared to admit the
evidence on the one basis that it was inadmissible: its value in demonstrating that Hine was
prone to violence, had acted in accordance with that propensity, and thus must have killed the
little girl.50 Rather obviously, the Supreme Court disagreed with this Court's conclusions in
Hine. Equally obviously, the Supreme Court's decision binds us.51 The question, of course, is
what does the Supreme Court's Hine decision obligate us to do? We believe that, as is relevant to
this case,52 the Supreme Court's opinion in Hine presents a formidable obstacle to reversing on
the basis of a trial court's error in admitting prior-bad-acts evidence. That obstacle certainly
looms large in cases such as this one, in which the party claiming error has failed to preserve the
issue for appeal and thus must demonstrate plain error affecting a substantial right before being
afforded relief.53 If the abuse-of-discretion standard of review makes a trial court's decision on a
close evidentiary matter virtually beyond review,54 then it is hardly possible that an evidentiary
matter that presents a close call will ever constitute an error that is sufficiently "clear or obvious"
to satisfy the plain-error standard.55
We draw this conclusion because, in a succession of decisions culminating in Hine, the
Supreme Court has, in our view, reduced the value parties opposing prior-bad-acts evidence once
derived from the first and third prongs56 of the VanderVliet test. For instance, consistent with
VanderVliet's first prong, Crawford mandated that prosecutors "articulat[e] a proper noncharacter
purpose" for the prior-bad-acts evidence.57 By doing this, prosecutors provide the trial court with
50
See Unpublished Hine I, supra; People v Hine (On Remand), unpublished opinion per curiam
of the Court of Appeals, issued November 13, 2001 (Docket No. 207358).
51
See People v Beasley, 239 Mich App 548, 556; 609 NW2d 581 (2000).
52
The Supreme Court in Hine emphasized the abuse-of-discretion standard of review it had
explained to a limited extent in People v Bahoda, 448 Mich 261; 531 NW2d 659 (1995). See
Hine, supra at 250, 253. This standard of review is irrelevant to this issue in this case because
Knox did not ask the trial court to rule on the admissibility of the evidence by objecting.
Therefore, the trial court did not consciously exercise its discretion, leaving us to apply the plainerror doctrine embodied in MRE 103(d) and explained in Carines, supra.
53
See Carines, supra at 763-764.
54
See Bahoda, supra at 289, quoting People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518
(1982).
55
Carines, supra at 763.
56
See VanderVliet, supra at 55 (first prong requires proper purpose, second prong requires
logical relevance, third prong entails prejudice analysis).
57
See Crawford, supra at 386 n 6.
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a proper theory of relevance,58 and therefore give the trial court the most complete basis on
which to determine whether the evidence is admissible for a noncharacter reason or inadmissible
as propensity evidence.59 However, in Sabin, the major case concerning MRE 404(b) preceding
Hine, the Supreme Court reversed this interpretation of MRE 404(b), permitting prosecutors to
articulate a proper purpose for the evidence at any time, whether at trial or on appeal.60 In fact,
read closely, Sabin does not explicitly require prosecutors ever to articulate a purpose for the
evidence at trial that is actually proper, because "[t]he prosecution's recitation of purposes at trial
does not restrict appellate courts in reviewing a trial court's decision to admit the evidence."61
The Supreme Court relied on this standard in Hine when it looked at what could be described as
the prosecutor's "[m]echanical recitation"62 of proper purposes for the prior-bad-acts evidence
and then constructed a theory of admissibility it could endorse.63
While the Supreme Court spent a number of years debating VanderVliet's first prong,64 it
has acted swiftly with respect to VanderVliet's third prong, which compares the probative value
of evidence with any unfair prejudice it might cause if admitted. 65 MRE 403 acts as a safety
valve; it allows courts to exclude evidence that technically fits VanderVliet's first two prongs, but
nevertheless poses a distinctly unfair and real danger of allowing the jury to convict on the basis
of a propensity theory, rather than the proper and logically relevant purpose for which the
evidence is being offered.66 As VanderVliet says:
Other acts evidence is not admissible simply because it does not violate
Rule 404(b). Rather, a "determination must be made whether the danger of undue
prejudice [substantially] outweighs the probative value of the evidence in view of
58
To a limited extent, the articulation requirement also helps the trial court choose the
appropriate logical-relevance analysis when the evidence is intended to prove identity through
modus operandi. See VanderVliet, supra at 67.
59
See Crawford, supra at 386 n 6; see also Sabin (After Remand), supra at 59 n 6; VanderVliet,
supra at 89, as amended 445 Mich 1205.
60
See Sabin (After Remand), supra at 59 n 6; see also Sabin (After Remand), supra at 76
(Cavanagh, J., dissenting).
61
Sabin (After Remand), supra at 59 n 6.
62
See Crawford, supra at 387-388.
63
See Hine, supra at 245-246; Unpublished Hine I, supra.
64
See Sabin (After Remand), supra at 59 n 6, responding to Crawford, supra at 386 n 6.
65
See MRE 403.
66
See VanderVliet, supra at 72-73, 75; see also People v Starr, 457 Mich 490, 496, 500; 577
NW2d 673 (1998); People v Mills, 450 Mich 61, 74-75; 537 NW2d 909 (1995), mod on other
grounds 450 Mich 1212 (1995).
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the availability of other means of proof and other facts appropriate for making
decision[s] of this kind under Rule 403."[67]
The Supreme Court has continued to subscribe to VanderVliet's third prong as recently as its
Sabin decision68 and, in fact, quoted VanderVliet in Hine.69 Nevertheless, MRE 403 played no
role in the Supreme Court's decision in Hine. In Hine, the Supreme Court's analysis stopped after
it determined that the evidence was relevant to a nonpropensity theory.70 The Supreme Court in
Hine therefore concluded that the prior-bad-acts evidence was relevant and admissible without
analyzing whether the evidence was substantially more unfairly prejudicial than probative.71
This is something of a departure from VanderVliet.
The Supreme Court's reasoning concerning the second prong of VanderVliet is equally
critical. In our view, Hine restricts the ability of appellate courts to engage in an examination of
the logic linking the prior-bad-acts evidence to a theory of relevance, as VanderVliet's second
prong seemingly requires.72 Logical relevance is important because it "ensure[s] the defendant's
right to a fair trial . . . ."73 Before Hine, the Supreme Court described logical relevance as a
matter that "must be closely scrutinized"74 because it is a "touchstone" for admissibility.75
However, the Supreme Court in Hine indicated that appellate courts "are required" to look at the
"evidence in a light most favorable to the prosecution" to determine whether it was an abuse of
discretion to admit the prior-bad-acts evidence.76 The Supreme Court made this statement,
apparently, as if the case involved a question concerning the sufficiency of the evidence77 or a
directed verdict,78 the contexts in which courts frequently apply this standard in criminal cases.79
67
VanderVliet, supra at 75, quoting 28 USCA, p 196, advisory committee notes to FRE 404(b).
68
See Sabin (After Remand), supra at 57-58.
69
See Hine, supra at 247-248.
70
See Hine, supra at 253; compare Starr, supra at 500-503 (engaging in full VanderVliet
analysis).
71
See Hine, supra at 244.
72
See Crawford, supra at 390.
73
Id. at 388.
74
Id.
75
Starr, supra at 497.
76
See Hine, supra at 251.
77
See People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201
(1992); People v Petrella, 424 Mich 221, 268; 380 NW2d 11 (1985).
78
See People v Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001).
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We note that the Supreme Court did not explain how viewing the evidence in the light
most favorable to the prosecutor in every case involving prior-bad-acts evidence would comport
with the harmless-error test it delineated in People v Lukity.80 Lukity requires courts to look at
evidence admitted erroneously in light of all the evidence properly on the record.81 Lukity does
not set out, at least in our view, a method for evaluating the evidence.
The Supreme Court in Hine relied heavily on similarity as proof of logical relevance.
However, the Supreme Court also, rather abruptly, stated that "distinctive and unusual features
are not required to establish the existence of a common design or plan."82 We note that in People
v Golochowicz,83 the Supreme Court explained that when
the only conceivable justification for admission of such similar-acts evidence is to
prove the identity of the perpetrator, the link is forged with sufficient strength to
justify admission of evidence of the separate offense only where the circumstances
and manner in which the two crimes were committed are "[s]o nearly identical in
method as to earmark [the charged offense] as the handiwork of the accused.
Here much more is demanded than the mere repeated commission of crimes of the
same class, such as repeated burglaries or thefts. The [commonality of
circumstances] must be so unusual and distinctive as to be like a signature."[84]
Some courts have misinterpreted Golochowicz to mean that there must be this high degree of
similarity between the charged offense at issue and the prior-bad-acts evidence for the prior-badacts evidence to be admissible, irrespective of the prosecutor's theory of admissibility.85
However, VanderVliet commented that "Golochowicz identifies the requirements of logical
relevance when the proponent is utilizing a modus operandi theory to prove identity."86 In Sabin,
the Supreme Court expanded the use of similar-prior-bad-acts evidence, holding that "similar
misconduct is logically relevant to show that the charged act occurred where the uncharged
misconduct and the charged offense are sufficiently similar to support an inference that they are
(…continued)
79
Indeed, our research has not revealed another published opinion—other than Hine—that
examined the "evidence in a light most favorable to the prosecution" when analyzing whether the
decision to admit or exclude evidence of any kind was an abuse of discretion.
80
People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
81
See id. at 495, quoting People v Mateo, 453 Mich 203, 211; 551 NW2d 891 (1996).
82
Hine, supra at 252-253.
83
People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982).
84
Id. at 310-311, quoting McCormick, Evidence (2d ed), § 190, p 449 (alterations in
Golochowicz).
85
See VanderVliet, supra at 67 n 17.
86
Id. at 66.
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manifestations of a common plan, scheme, or system."87 The Sabin Court adopted an
intermediate level of similarity between the charged offense and prior-bad-acts evidence
introduced under this common plan, scheme, or system theory, which must be more than the
similarity required to prove intent but may be less than the similarity necessary to prove
identity.88
When the Supreme Court applied Sabin to Hine, it commented that this Court required a
"high degree of similarity between the other acts and the charged acts . . . ."89 The Supreme
Court said that the evidence that Hine had abused his girlfriends was logically relevant to proving
that the little girl "had died from multiple, nonaccidental, blunt force injuries, and that her death
was a homicide."90 The Supreme Court's analysis suggests that the true value of the prior-badacts evidence was in showing that "the defendant [Hine] employed the common plan in
committing the charged offense."91 In other words, the prior-bad-acts evidence was useful
because it proved the identity of the person who killed the child. In our view, the Supreme Court
here effectively merged the common plan, scheme, or system theories for admissibility into the
traditional identity by modus operandi theory, but did so in a way that lowered the degree of
similarity that the prosecutor had to demonstrate between the charged and uncharged acts Hine
allegedly committed. Further, the Supreme Court focused much of its analysis on the way the
prior-bad-acts evidence revealed Hine's intent to harm the little girl, excluding any possibility
that the child died from accidental injuries rather than as a victim of a homicide.92
We make these observations about Hine in an attempt to ascertain the direction in which
Supreme Court precedent is moving. In view of the language in Hine, we gather that the
Supreme Court wishes courts to continue to use VanderVliet's framework, with the flexibility
inherent in that analysis favoring admission of prior-bad-acts evidence. Further, however, the
Supreme Court said in Hine that this Court must look at the evidence in the light most favorable
to the prosecutor. Accordingly, if a trial court in a criminal trial admits prior-bad-acts evidence,
we must determine that the evidence was prejudicial—not harmless—when viewing the evidence
as a whole in a light most favorable to the prosecution. With this in mind, we turn to the facts
and arguments concerning this case.
D. Anger And Past Abuse Against Kelley
87
Sabin (After Remand), supra at 63 (emphasis added).
88
Id. at 65.
89
Hine, supra at 252.
90
Id.
91
Id. at 253 (emphasis added).
92
Id. at 252.
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Knox contends that the prosecutor improperly introduced evidence that he had an anger
problem, which he manifested by breaking objects, damaging Kelley's apartment, and physically
abusing Kelley, all of which resulted in Kelley's ultimatum that he attend anger-management
classes or move out of her apartment. The record reveals that this evidence was pervasive at
trial. The prosecutor has never articulated a proper purpose for the evidence concerning Knox's
anger, as VanderVliet requires.93 However, Sabin informs us that the prosecutor's failure in this
regard is not a bar to considering whether the evidence was admissible.94
The next question under VanderVliet is whether the anger evidence was logically relevant
to a matter at issue at trial.95 Without an argument regarding the proper purpose of the evidence,
logical relevance is a difficult matter to address. However, the facts of this case are markedly
similar to the facts in Hine. In both cases, the defendant was alone with the victim in the time
preceding the victim's death. Both victims showed physical injuries that could be considered
evidence of abuse. Neither defendant was married to the victim's mother. Most importantly,
both defendants had a history of abusing adult women, but no explicit history of perpetrating
violence against children. There also is a direct parallel between the way Kelley characterized
Knox's abuse here as part of a pattern of anger-management problems and the way one of Hine's
former girlfriends placed his violent conduct in the context of his irritation with her. The
Supreme Court in Hine concluded that this evidence was relevant and "admissible to establish
the common scheme, plan, or system of the defendant in perpetrating a particular type of physical
assault."96 Given the Supreme Court's determination that this evidence was sufficiently relevant
to these proper bases for admission, we cannot say that the highly similar evidence concerning
Knox's anger and abuse against Kelley failed VanderVliet's purpose or relevance prongs.97
In other words, the similarity between these two cases means that, even if the trial court
erred in allowing the jury to hear this evidence, the error was neither "clear" nor "obvious," but
would revolve around subtle distinctions that cannot be characterized as "plain."98 Additionally,
with respect to the unfair-prejudice prong of VanderVliet,99 the prejudice flowing from this
evidence is obvious. Most evidence a party—in this case the prosecutor—introduces causes
some prejudice. That simply is the nature of evidence introduced in a trial.100 However, the
93
See VanderVliet, supra at 55.
94
See Sabin (After Remand), supra at 59 n 6.
95
See VanderVliet, supra at 55.
96
Hine, supra at 244.
97
VanderVliet, supra at 55.
98
Carines, supra at 763.
99
Id.
100
See Mills, supra at 75.
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evidence here was not so unfair that it substantially outweighed the probative value of the priorbad-acts evidence. We therefore conclude, under Hine, that this evidence was properly admitted.
E. Past Abuse of the Child
Knox argues that the prosecutor once again presented improper prior-bad-acts evidence to
the jury in eliciting evidence that the baby suffered injuries even before the fatal incident. The
prosecutor contends that this evidence was introduced for the proper and logically relevant
purpose of showing that the person who abused the infant did so intentionally. First-degree child
abuse, the predicate felony used in this case, is defined as "serious physical or serious mental
harm to a child" that is caused "knowingly or intentionally."101 This statutory language made
establishing intent a proper and logically relevant purpose for introducing the evidence.
In reaching this conclusion, we do not discount the fact that the evidence failed to
establish that Knox committed all this past abuse. However, when "offered to show that certain
injuries are a product of child abuse, rather than accident, evidence of prior injuries is relevant
even though it does not purport to prove the identity of the person who might have inflicted those
injuries."102 Moreover, there was some testimony arguably connecting Knox to the abuse in that
Kelley testified that she found a bruise on the baby's chest after Knox had been caring for him.
According to Kelley, she vigorously questioned Knox about the bruise and discussed it with
several people, including the physician's assistant at her doctor's office. Kelley apparently
accepted the idea that the baby's pacifier, which was clipped to a garment over his chest, must
have caused the bruise. The physician's assistant testified that she saw the bruise and found no
cause for alarm. One of the medical experts, however, suggested that the baby would not have
received a bruise from lying on a pacifier. We see no unfair prejudice that would substantially
outweigh the value of this evidence, which was probative of whether the injuries the baby
suffered were inflicted intentionally.
F. Good Character
In the case-in-chief, the prosecutor elicited extensive details of Kelley's experience with
children, her knowledge of child rearing, her assets as a mother, her love for her children, and her
grief at learning of the baby's death. Eight witnesses, including Kelley, testified about her
background and parenting skills. The prosecutor argued that the testimony was logically relevant
because Knox was accusing Kelley of the murder. However, the evidence of Kelley's mothering
abilities, love for her children, and experience with children was arguably irrelevant to the
prosecutor's case-in-chief.103 Even if, as the prosecutor claims, this evidence was solely intended
101
MCL 750.136b.
102
Estelle v McGuire, 502 US 62, 68; 112 S Ct 475; 116 L Ed 2d 385 (1991).
103
See People v Keskinen, 177 Mich App 312, 320-321; 441 NW2d 79 (1989), citing People v
Duke, 136 Mich App 798, 803; 357 NW2d 775 (1984).
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to rebut Knox's contention that Kelley abused the baby, it should have been presented after the
defense, not in the prosecutor's case-in-chief.104
Even considering Hine and ignoring the error in the timing of this alleged rebuttal
evidence, we conclude that this evidence was improper character evidence. MRE 404(a)
provides that "[e]vidence of a person's character or a trait of character is not admissible for the
purpose of proving action in conformity therewith on a particular occasion," except in certain
circumstances. The exceptions involve the character of the accused, character of victims of
homicide, and character of a victim's sexual conduct.105 MRE 404(a)(4) specifically provides
that character evidence related to witnesses is governed by MRE 607, 608, and 609. MRE 607
provides that any party may attack the credibility of a witness. MRE 608(a) limits opinion and
reputation evidence to character for truthfulness or untruthfulness after the character of the
witness has been attacked by opinion or reputation evidence. MRE 608(b) allows the trial court
to admit evidence of specific instances of a witness's conduct to support the witness's credibility,
but only if the instances concern the witness's character for truthfulness or untruthfulness. The
prosecutor's evidence of Kelley's character had nothing to do with her truthfulness or
untruthfulness. Further, MRE 609 does not apply to this situation because the court rule deals
with impeachment by evidence of conviction of a crime.
In sum, the rules of evidence do not provide that the prosecution may preempt a defense
that someone other than the defendant committed the crime by arguing that the person the
defense blames was "too good" to have committed the crime. Additionally, the evidence of
Kelley's good character was improper under MRE 404(b), because it did not serve one of the
noncharacter purposes articulated in that rule. This evidence was used to demonstrate that Kelley
acted in conformity with her good character on the night of the incident, in contrast to Knox's
alleged bad character, and thus that Knox's defense should not be believed. Therefore, we
conclude, even in light of Hine, that Knox has demonstrated that it was plain error for the trial
court to admit the evidence that Kelley was a good, loving parent who could not have committed
the crime.
Demonstrating plain error with respect to this "prior-good-acts" character evidence is,
however, not the only burden that Knox faces. Determining that the trial court plainly erred does
not, alone, justify reversing a criminal conviction.106 Rather, we must decide whether the plain
error in admitting this evidence prejudiced Knox's substantial rights, affecting the outcome of the
trial-court proceedings.107 Knox argues that this error was, in fact, outcome-determinative
because the evidence amounted to nothing more than a direct credibility contest between him and
Kelley concerning who injured the baby. He concedes that he was the last person alone with the
104
See People v Rice (On Remand), 235 Mich App 429, 442; 597 NW2d 843 (1999).
105
MRE 404(a)(1), (2), and (3).
106
See Carines, supra at 763.
107
Id.
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baby, but notes that the medical evidence allowed the possibility that Kelley injured the baby
before she left the apartment.
This case may very well have been essentially a credibility contest over which parent—
both of whom had access to the baby near in time to his death—inflicted the fatal injuries.
However, the evidence concerning Kelley's mothering abilities was not decisive. The prosecutor
had a reasonable likelihood of convicting Knox by demonstrating that he was alone with the baby
when the baby sustained the fatal injuries. Thus, we conclude that Knox has not satisfied his
burden of showing that this evidence affected his substantial rights.108 Therefore, he is not
entitled to relief.
G. Ineffective Assistance of Counsel
In an argument related to his challenge to all these pieces of evidence, Knox also
contends that his trial attorney was ineffective for failing to object. However, to win a new trial
on the basis of the denial of effective assistance of counsel, "a defendant must show that
counsel's performance fell below an objective standard of reasonableness, and that the
representation so prejudiced the defendant as to deprive him of a fair trial."109 The foregoing
analysis indicates to us that, even assuming it was error to admit this evidence, the error was
insufficiently prejudicial to "justif[y] reversal of an otherwise valid conviction . . . ."110
IV. Dual Crimes
Referring to the language in the felony-murder statute, Knox challenges "whether a
defendant can be said to have committed one crime while 'in the perpetration of ' another when
the same acts themselves constitute both the murder and the predicate felony." Stated another
way, Knox contends that the Legislature, in enacting the felony-murder statute, did not intend to
elevate to first-degree murder every death of a child resulting from abuse. Consequently, he
frames this issue as a question of insufficient evidence of the intent that would otherwise be
necessary to prove that he committed first-degree murder.
However, this Court recently considered this issue in People v Magyar.111 In Magyar, as
in this case, the defendant was convicted of first-degree felony murder with first-degree child
abuse as the underlying felony.112 The defendant argued that the conviction was improper
because the murder and predicate felony both arose out of the same act, a blow to the young
108
See People v Ullah, 216 Mich App 669, 676; 550 NW2d 568 (1996).
109
People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994).
110
Id.
111
People v Magyar, 250 Mich App 408; 648 NW2d 215 (2002).
112
Id. at 410.
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victim's skull.113 In the defendant's view, there must be "two distinct crimes," so that "felony
murder applies only where a second-degree murder is committed in the perpetration of one of the
enumerated felonies in the statute."114 This Court disagreed, reasoning that, because the jury
found that the defendant possessed both the malice to commit murder and the intent necessary to
commit first-degree child abuse, the defendant's argument was without merit.115 Further, this
Court indicated, "Michigan's felony-murder statute serves to raise an established murder to firstdegree murder and 'makes no distinctions for the commission of enumerated felonies with
assaultive intent against the murder victim.'"116
Though Knox also made a related vagueness argument, he failed to present that issue in
the statement of questions presented117 and did not brief it adequately.118 Accordingly, we do not
address this related constitutional issue.
Affirmed.
Talbot, J., concurred.
/s/ William C. Whitbeck
/s/ Michael J. Talbot
113
Id.
114
Id.
115
Id. at 412-413.
116
Id., quoting People v Jones, 209 Mich App 212, 215; 530 NW2d 128 (1995).
117
See People v Miller, 238 Mich App 168, 172; 604 NW2d 781 (1999).
118
People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998).
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