PEOPLE OF MI V KEVIN HARRIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 28, 1997
Plaintiff-Appellee,
v
No. 182340
Muskegon County
LC No. 94-036742-FH
KEVIN HARRIS,
Defendant-Appellant.
Before: Doctoroff, C.J., and Corrigan and R.J. Danhof,* JJ.
PER CURIAM.
Defendant was convicted by a jury of attempted breaking and entering an occupied dwelling
with intent to commit a felony. MCL 750.92; MSA 28.287 and MCL 750.110; MSA 28.305. He
thereafter pleaded guilty to habitual offender second, MCL 769.10; MSA 28.1082, and was sentenced
to a term of sixty to ninety months’ imprisonment. He appeals as of right. We affirm.
Defendant was charged with attempting to break and enter an occupied dwelling with the intent
to commit either larceny or criminal sexual conduct. The trial court granted the prosecutor’s pretrial
motion to admit prior bad-acts evidence pursuant to MRE 404(b) for the purpose of proving
defendant’s intent.
At trial, Clarence Burch testified that, on February 18, 1994, at approximately 11:20 p.m., he
looked out his window and observed defendant peering into the window of a neighbor’s apartment. An
11-year old girl, who was baby-sitting, was inside the apartment and was visible from the outside.
Burch called 9-1-1 and reported his observations. Burch then observed defendant remove the screen
from the apartment window. As defendant was putting the screen down, two police officers arrived,
whereupon defendant took off running. Officers Matt Kolkema and Peter Boterenbrood gave chase on
foot, but lost sight of defendant as he ran between some houses while heading towards Sanford Street.
Officer Kolkema reported defendant’s location over his police radio.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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Officer Timothy Lewkowski overheard the radio transmission and proceeded to Sanford Street
where he observed defendant running across the street. Officer Lewkowski pursued defendant, who
ignored commands to stop. Officer Lewkowski eventually apprehended defendant, who was out of
breath and perspiring quite heavily. Defendant kept repeating that the police had the wrong person and
he had done nothing wrong. Officer Lewkowski brought defendant back to the crime scene where he
was identified by Clarence Burch as the person who Burch observed remove the screen from the
apartment window. Officer Kolkema also observed that defendant was wearing hiking boots with a
distinctive tread that matched the imprints in the snow beneath the apartment window. Additional
testimony revealed that defendant was not known to anyone inside the subject apartment, nor had
anyone granted defendant permission to enter the apartment.
As evidence of defendant’s intent, the prosecutor presented the testimony of two women
concerning an incident that occurred on October 6, 1985. On that date, the two women were
awakened from their sleep sometime after midnight to find defendant, a stranger, inside their house.
Defendant had gained entry through a window. He cornered the women in a bathroom and then
exposed himself and stated that he “wanted some pussy.” The women were able to escape and run to
a neighbor’s house. When they returned, they discovered that a purse and some money had been
taken.
Defendant first argues that his right to a unanimous verdict was violated when the charge of
attempted breaking and entering with intent to commit a felony was submitted to the jury under
alternative theories of intent (i.e., intent to commit larceny or intent to commit criminal sexual conduct),
but the jury was not specifically instructed that it was required to unanimously agree on the specific
felony intended. Assuming, without deciding, that unanimity was required,1 we find that reversal is not
warranted.
In People v Burden, 395 Mich 462, 468-469; 236 NW2d 505 (1975), our Supreme Court
held that a jury verdict was not required to be set aside for failure to specifically instruct on unanimity
where trial counsel did not object to the instructions given and declined an offer to have the jury polled.
See also People v King, 58 Mich App 390, 403; 228 NW2d 391 (1975); People v Timothy
Washington, 43 Mich App 150, 152-153; 203 NW2d 744 (1972) (failure to give unanimity instruction
did not warrant reversal where defense counsel neither requested such an instruction, nor objected to its
absence, and the balance of the instructions adequately conveyed the concept of unanimity); MCL
768.29; MSA 28.1052 (failure to instruct on any point of law shall not be ground for setting aside a
verdict unless such instruction was requested by the accused).
Here, counsel did not request a specific unanimity instruction, nor did he object to the
instructions as given. Additionally, after the verdict was announced, counsel specifically declined an
offer by the trial court to have the jury polled. We also note that, contrary to what defendant argues on
appeal, the jury received a general instruction on unanimity.2 Accordingly, we find that reversal is not
warranted.
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Next, defendant challenges the propriety of his on-the-scene identification by Clarence Burch.
He contends that his on-the-scene identification by Burch was improper because it was conducted
without the benefit of counsel. Additionally, he contends that the identification procedure was unduly
suggestive, thereby tainting Burch’s subsequent in-court identification. Defendant did not raise either of
these issues below. Where issues concerning identification procedures are not raised at trial, this Court
will not review the matter unless a refusal to do so would result in manifest injustice. People v
Whitfield, 214 Mich App 348, 351; 543 NW2d 347 (1995). A review of the record convinces us that
no manifest injustice is apparent because, apart from the identification by Burch, both Officer Kolkema
and Officer Boterenbrood identified defendant as the person they observed running from the window of
the victim’s apartment, and there was also evidence that defendant was wearing hiking boots that had a
distinctive tread which matched the imprints in the snow beneath the apartment window.3
Next, defendant argues that he was denied a fair trial by the admission of the prior bad-acts
evidence. The trial court’s decision to admit evidence is reviewed for an abuse of discretion. People v
McMillan, 213 Mich App 134, 137; 539 NW2d 553 (1995). MRE 404(b) states:
(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.
The Michigan Supreme Court addressed the admissibility of other bad acts evidence in People
v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993). Under the standard announced in
VanderVliet, prior bad-acts evidence is admissible if (1) it is offered for a purpose other than to prove
the defendant’s character or propensity, (2) the evidence is logically relevant under MRE 402, and (3)
its probative value is not substantially outweighed by the danger of unfair prejudice. Id. at 74-75.
Here, the prior bad-acts evidence was offered, not to show that defendant was a person of bad
character or had a propensity for committing certain crimes, but, rather, for the purpose of proving
defendant’s intent, a proper purpose under MRE 404(b).
Regarding the second prong of admissibility under MRE 404(b), defendant argues that the
proffered bad act and the charged crime are not sufficiently similar to meet the test of logical relevance
set forth in People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982). However, the Supreme
Court in VanderVliet stated that “the Golochowicz ‘test’ does not set the standard for the admissibility
of other acts evidence.” VanderVliet, supra at 65-66. Although the Court noted that “Golochowicz
identifies the requirements of logical relevance when the proponent is utilizing a modus operandi theory
to prove identity,” id. at 66 (emphasis in VanderVliet), here the prosecutor did not offer the prior bad
acts evidence to prove identity, but, rather, to prove intent. As the Supreme Court explained in
VanderVliet:
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The second requirement in Golochowicz, that a special circumstance or quality
exist, ‘refers to the relationship between the charged and uncharged offenses which
supplies the link between them and assures thereby that evidence of the separate
offense is probative of some fact other than the defendant’s bad character,”
[Golochowicz, supra] at 310. This language does not require a showing of
distinctive similarity in every instance where Rule 404(b) evidence is proffered.
Where the proponents’ theory is not that the acts are so similar that they circumstantially
indicate that they are the work of the accused, similarity between charged and
uncharged conduct is not required. [VanderVliet, supra at 69; emphasis added.]
According to VanderVliet, “[w]hen other acts are offered to show intent, logical relevance dictates only
that the charged crime and the proffered other acts ‘are of the same general category.’” VanderVliet,
supra at 79-80, quoting Imwinkelried, Uncharged Misconduct Evidence, § 3:11, p 23.
In the case at hand, the proffered prior bad act was similar to the charged crime in that it
involved an unauthorized, forcible entry, of a female’s residence, at nighttime. Intent, which is a
necessary element of the charged crime, was a material issue in this case, especially since defendant fled
after being detected, before gaining entry into the subject apartment. In the prior case, upon gaining
entry, defendant made a demand for sex and then stole some property from the residence. The
testimony concerning the prior case is sufficiently similar to the charged crime to be relevant to the issue
of intent. Accordingly, we find that the relevance requirement of MRE 404(b) was satisfied.
Defendant also argues that the prejudicial effect of admitting the prior bad-acts evidence
outweighed its probative value. To be inadmissible, however, the danger of unfair prejudice must
substantially outweigh the probative value of the evidence. “Unfair prejudice" does not simply mean
"damaging." People v Harvey, 167 Mich App 734, 745-746; 423 NW2d 335 (1988). Any relevant
evidence will be damaging to some extent. Rather, unfair prejudice exists when there is a tendency that
the evidence will be given undue or preemptive weight by the jury, or when it would be inequitable to
allow use of the evidence. Id. Assessing probative value against prejudicial effect requires a balancing
of factors, including the time necessary to present the evidence and the potential for delay, whether the
evidence is cumulative, how directly the evidence tends to prove the fact in support of which it is
offered, how important the fact sought to be proved is, the potential for confusion, and whether the fact
can be proved another way with fewer harmful collateral effects. People v Oliphant, 399 Mich 472,
490; 250 NW2d 443 (1976). Undue prejudice may not exist, for example, where the proponent of the
evidence has no less prejudicial means by which the substance of the evidence can be admitted. People
v Cadle, 204 Mich App 646, 656; 516 NW2d 520 (1994).
As noted above, intent was a key issue in the case. In addition to determining whether
defendant attempted to break and enter into the subject apartment, the jury was also required to
determine defendant’s intent upon entry. Because defendant fled the scene before he had an
opportunity to gain entry, the jury was left with little evidence from which to infer defendant’s intent.
These circumstances contributed to the value of the prior bad-acts evidence. Indeed, the importance of
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such evidence with respect to the issue of intent was recognized in VanderVliet, wherein the Supreme
Court observed:
[O]ther acts evidence is especially pertinent where the trial court determines that
the issue ‘involves the actor’s state of mind and the only means of ascertaining that
mental state is by drawing inferences from conduct.’ [
VanderVliet at 85, quoting
Huddleston v United States, 485 US 681, 685; 108 S Ct 1496; 99 L Ed 2d 771
(1988).]
We also observe that the prosecutor emphasized, in both opening statement and closing
argument, that defendant was not on trial for the prior offense, and the prior bad-acts evidence was to
be considered only insofar as it was probative of defendant’s intent in this case.4 Additionally, the trial
court issued a cautionary instruction to the jury that the prior bad-acts evidence was not to be
considered for the purpose of “show[ing] that the defendant is a bad person or that he is likely to
commit crimes,” and that it “must not convict this defendant here because you think he is guilty of other
wrongful conduct.” We are satisfied, therefore, that the prior bad-acts evidence was not given undue
weight by the jury. Accordingly, we conclude that the danger of undue prejudice did not substantially
outweigh the probative value of the evidence.
For the reasons stated above, we find that the trial court did not abuse its discretion in admitting
the prior bad-acts evidence.
Defendant next argues that the prosecutor improperly elicited testimony concerning his silence,
thereby infringing upon his constitutional right to remain silent. Defendant did not object to the alleged
improper questioning. Generally, failure to object to a prosecutor’s questions precludes appellate
review. People v Wilson, 196 Mich App 604, 609; 493 NW2d 471 (1992). We will briefly address
the issue, however, because it involves an alleged constitutional error, People v Schollaert, 194 Mich
App 158, 162; 486 NW2d 312 (1992), and because defendant also argues that defense counsel was
ineffective for failing to object.
Defendant’s claim relates to the prosecutor’s examination of Officer Lewkowski, in relevant
part, as follows:
Q: Please sum up for us why you thought you had the right guy?
A: The circumstances added up. My experience – when you have a guy being
chased, and the guy comes running across in front of you, or somebody comes running
across in front of you—
Q: As expected, based upon the radio transmission just before the crossing of
the street?
A: Yes, sir. You know, once I had stopped him, a person that’s not – that has
nothing to hide will talk to you. You know, you ask them stuff; they will talk to you.
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Q: He would not stop at your command; is that accurate?
A: No, sir.
Viewed in context, the prosecutor’s questions and Officer Lewkowski’s answers referred to
defendant’s flight, not his silence upon arrest. It is well established that evidence of flight is admissible as
being probative of consciousness of guilt. People v Coleman, 210 Mich App 1, 4; 532 NW2d 885
(1995). Furthermore, the line of questioning refers to defendant’s actions before he was apprehended.
Neither the federal nor Michigan Constitutions preclude the use of a defendant’s prearrest, preMiranda5 silence. People v Sutton (After Remand), 436 Mich 575, 579-580; 464 NW2d 276
(1990). Accordingly, the questioning was not improper, nor was defense counsel ineffective for failing
to object. People v Hernandez, 443 Mich 1, 17, n 26; 503 NW2d 629 (1993) (a claim of ineffective
assistance of counsel will be rejected where an objection would have been futile).
Defendant also challenges the following portion of the prosecutor’s opening statement:
But the more difficult task is to then think about what the defendant intended
once he got in. What was his purpose in crawling through the window? Now, by
looking at the context – looking at the surrounding facts and circumstances – there is
no valid explanation for the defendant, Kevin Harris, to crawl into the window and
enter a house of some people that he has no relation to, has no permission to be there,
no valid purpose at all, and the only explanation can be, then: What is available to him
when he is going into that house? Things that don’t belong to him; a young babysitter,
who is visible from the street, sleeping on the couch as he tries to enter. I believe there
is more than enough evidence, without any further – any further evidence given – to
show that the defendant intended to commit a theft once entering that house. [Emphasis
added.]
Defendant contends that the prosecutor improperly shifted the burden of proof by stating that “there is
no valid explanation” for defendant’s actions. Defendant did not preserve this issue with an appropriate
objection at trial. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). He argues,
however, that defense counsel was ineffective for failing to object. We disagree.
Prosecutorial misconduct issues are decided on a case-by-case basis. People v Parquette,
214 Mich App 336, 342; 543 NW2d 342 (1995). The reviewing court must examine the pertinent
portion of the record and evaluate a prosecutor's remarks in context. Id. Here, viewed in context, the
prosecutor was not referring to defendant’s failure to come forward with a valid explanation for his
actions, see e.g., People v Holbrook, 154 Mich App 508, 512-513; 397 NW2d 832 (1986); rather,
while referring to the evidence, the prosecutor was suggesting that the “surrounding facts and
circumstances” supported the inference that there was no valid explanation for defendant’s actions. In
this context, the prosecutor’s statements were not improper, nor was defense counsel ineffective for
failing to object. Hernandez, supra.
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Defendant next complains that he was denied his right of allocution at sentencing. We disagree.
A trial court, complying on the record, must “give the defendant . . . an opportunity to advise the court
of any circumstances [he] believe[s] the court should consider in imposing sentence.” MCR
6.425(D)(2)(c). The rule requires strict compliance. People v Berry, 409 Mich 774, 779; 298 NW2d
434 (1980). Here, the record indicates that defendant was provided with several opportunities to
speak. Although defendant contends that interruptions by the trial court interfered with his right of
allocution, the record reveals that the trial court only became irritated when defendant interrupted the
court’s imposition of sentence after defendant had already been given an opportunity to speak and had
been warned that he would not be allowed to speak any further once the trial court began to impose
sentence. Even then, the trial court agreed to give defendant another opportunity to speak, but
defendant declined to do so. Defendant was not denied his right of allocution.
Defendant also challenges the validity of his sentence under People v Milbourn, 435 Mich 630;
461 NW2d 1 (1990), which holds that it is an abuse of discretion to impose a sentence that is
disproportionate to the seriousness of the circumstances surrounding the offense and the background of
the offender. The record reveals that defendant is an habitual offender who committed the instant
offense while on parole for a similar offense. We find that his sentence does not violate the principle of
proportionality. Additionally, we reject defendant’s claim that the trial court’s remarks at sentencing
demonstrate that the court was impermissibly biased against defendant. As this Court observed in
People v Antoine, 194 Mich App 189, 191; 486 NW2d 92 (1992), “[s]entencing is the time for
comments against felonious, antisocial behavior recounted and unraveled before the eyes of the
sentencer[,] . . . the language of punishment need not be tepid.”
Affirmed.
/s/ Martin M. Doctoroff
/s/ Maura D. Corrigan
/s/ Robert J. Danhof
1
It is unclear whether unanimity was actually required in this case with respect to the alternative theories
of intent. See and compare Schad v Arizona, 501 US 624; 111 S Ct 2491; 115 L Ed 2d 555 (1991)
(holding that it is constitutionally acceptable to permit jurors to reach one verdict based upon a
combination of alternative theories of first-degree murder), People v Cooks, 444 Mich 503; 521
NW2d 275 (1994) (noting that specific unanimity is not required in all cases in which more than one act
is presented as evidence of the actus reus of a single criminal offense), and People v Johnson, 187
Mich App 621, 629-630; 468 NW2d 307 (1991) (holding that juror unanimity was not required
regarding the three alternative definitions of malice necessary for a murder conviction).
2
In its preliminary instructions, the trial court instructed the jury that “[a] verdict in a criminal case must
be unanimous. That means that every juror must agree upon it, and it must reflect the individual decision
of each one of you.” Later, in its final instructions, the trial court instructed the jury that, “[i]n order to
return a verdict, it is necessary that each of you agrees upon that verdict.”
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3
Defendant relies on People v Miller, 208 Mich App 495, 499; 528 NW2d 819 (1995), for the
proposition that his on-the-scene identification by Burch was improper in the absence of counsel. Our
Supreme Court, in denying leave to appeal in that case, stated that this Court’s decision in Miller is to
have “no precedential force or effect” for the reason that “[i]t was unnecessary for the Court of
Appeals to reach the merits of the defense challenge to the absence of counsel at the on-the-scene
corporeal identification of the defendant by the armed robbery complainant because the issue was not
preserved for appellate review.”
4
In his opening statement, the prosecutor stated:
I ask you to consider that other evidence, the evidence of the 1985 breaking
and entering, simply for the purpose of thinking about what his intent was in the instant
case; and I remind you again, he is not on trial for the prior one. This is just to show
what his intent was on February 18, 1994, on the present.
During closing argument, the prosecutor again reminded the jury of the limited purpose of the other acts
evidence:
Consider that prior bad act for the purpose of looking at his intent in the crime
that we are looking at today. He is not on trial for that prior act[.]
5
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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