PEOPLE OF MI V ALPHONSO SCOTT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 11, 1998
Plaintiff-Appellee,
v
No. 202904
Recorder’s Court
LC No. 95-004682
ALPHONSO SCOTT,
Defendant-Appellant.
Before: Markman, P.J., and Saad and Hoekstra, JJ.
PER CURIAM.
Defendant appeals his jury trial convictions of two counts of first-degree criminal sexual
conduct.1 The court sentenced defendant to two concurrent terms of thirty to seventy years and we
affirm.
Defendant argues that the trial court committed reversible error when it granted his persistent
request to make a statement before the jury. 2 Defendant mischaracterizes the court’s action as
permitting him to act in propria persona without following the proper procedures for a waiver of
counsel. Defendant’s request to make a statement to the jury did not constitute a request to represent
himself, and he did not, in fact, assume his own representation when he made the statement (which was
not incriminating). Rather, we see this as an evidentiary issue.
The trial court’s decision to admit evidence will not be disturbed on appeal absent an abuse of
discretion. People v Hoffman, 225 Mich App 103, 104; 570 NW2d 146 (1997); People v
Catanzarite, 211 Mich App 573, 579; 536 NW2d 570 (1995). MRE 611(a) grants the court
“reasonable control over the mode and order of interrogating witnesses,” without specifying rules to
govern the mode and order of interrogation, and without mandating a particular format for presenting
evidence. People v Wilson, 119 Mich App 606 616-617; 326 NW2d 576 (1982). The trial court
has discretion to admit narrative testimony in a form other than question and answer. Id. The trial court
did not abuse its broad discretion when it permitted defendant to address the jury without the aid of
counsel’s questions.
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Defendant also contends that he was denied a fair trial because the trial court allowed the
prosecutor to ask defendant questions regarding his familiarity with guns and his possession of a gun
when he was arrested. Defendant argues that these questions elicited testimony which should have been
ruled inadmissible "other acts" evidence. We disagree. Relevant other acts evidence does not violate
MRE 404(b) unless it is offered solely to show the criminal propensity of an individual to establish that
he acted in conformity therewith. People v VanderVliet, 444 Mich 52, 65; 508 NW2d 114 (1993),
amended on other grounds 445 Mich 1205 (1994). “Rule 404(b) permits the trial court to admit other
acts evidence whenever it is relevant on a noncharacter theory.” VanderVliet, supra, 444 Mich 65.
Evidence of another crime may be admitted if (1) it is offered for a proper purpose rather than to prove
the defendant’s character or propensity to commit the crime, (2) it is relevant to an issue or fact of
consequence at trial, and (3) it is sufficiently probative to prevail under the balancing test of MRE 403.
VanderVliet, supra, 444 Mich 65; Hoffman, supra, 225 Mich App 99.
The charge of first-degree sexual conduct was predicated on the allegation that defendant was
armed with a weapon or any article which the victim would reasonably believe was a weapon. MCL
750.520b(1)(e); MSA 28.788(2)(1)(e); People v Proveaux, 157 Mich App 357, 360-361; 403
NW2d 135 (1987). Consequently, evidence that defendant was armed with a weapon or apparent
weapon was an essential element of the crime that the prosecution had to prove beyond a reasonable
doubt. Id. Therefore, the prosecutor’s line of questioning is clearly admissible to establish an element
of the crime with which defendant was charged. Id. Defendant himself put this matter at issue by
testifying that the difference between a starter pistol (which he was carrying at the time of his arrest) and
a real gun should be apparent. Furthermore, the prosecutor’s particular question as to defendant’s
familiarity with guns was prompted by defendant’s own detailed descriptions of guns. The trial court did
not abuse its discretion in allowing the testimony. Hoffman, supra, 225 Mich App 99.
Defendant further claims that the trial court gave erroneous instructions with respect to the
“armed with a weapon” element of first-degree criminal sexual conduct. Specifically, defendant says
that the trial court improperly deviated from the exact language in People v Proveaux, supra, and
People v Davis, 101 Mich App 198, 203; 300 NW2d 497 (1980), by instructing the jury that the
weapon had to be “readily accessible” instead of “reasonably accessible”. We disagree. When read
as a whole, the jury instructions fairly presented all of the essential elements of the crime and sufficiently
protected defendant’s rights. People v Perry, 218 Mich App 520, 526; 554 NW2d 362 (1996).
This Court has held that a perpetrator of first-degree criminal sexual conduct need not have the
weapon in his hands while committing the offense charged, so long as he has knowledge of the
weapon’s location and the weapon is reasonably accessible to the perpetrator. Davis, supra, 101
Mich App 203. Here, the trial court thought that “reasonably accessible” (the language requested by
the prosecutor) was too broad and replaced the phrase with “readily accessible”. “Readily” is defined
as “without delay; quickly, without difficulty.” Webster’s New Twentieth Century Dictionary:
Unabridged Edition (1983). “Reasonably” is defined as “in a reasonable manner.” Webster’s New
Twentieth Century Dictionary: Unabridged Edition (1983). Contrary to defendant’s argument that
this instruction requires reversal because “readily” was never explained to the jury, where, as here, the
language can be understood by a person of ordinary intelligence, it is not necessary for the court to
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define or explain it. People v Skowronski, 61 Mich App 71, 77; 232 NW2d 306 (1975). The trial
court did not abuse its discretion in substituting the word “readily” for “reasonably” in jury instructions
for “armed with a weapon” because the trial court’s instruction was actually more restrictive and,
therefore, more favorable to defendant than the instruction the prosecution proposed. Perry, supra,
218 Mich App 526. Viewing the jury instructions in their entirety, they fairly presented the issue to be
tried and sufficiently protected defendant’s rights.
Finally, defendant alleges prosecutorial misconduct based on the prosecutor’s questions
regarding the absence of witnesses who could support his alibi. We disagree. If defendant fails to
object to the prosecutor’s remarks at trial, as defendant failed to do, review is foreclosed unless the
prejudicial effect of the remark is so great that it could not have been cured by an appropriate
instruction or a failure to review the issue would result in a miscarriage of justice. People v Stanaway,
446 Mich 643, 687; 521 NW2d 557 (1994).
During direct examination, defendant testified that he had been with Boyer and McKay all night
and that they went to Teesha’s house. Defendant also testified that he was carrying a weapon when he
was arrested because Teesha asked him to deliver a gun to Boyer’s neighbor. On cross-examination,
the prosecutor asked defendant if Boyer, McKay or Teesha were going to testify in support of this alibi.
Defendant now argues that the prosecutor’s questions shifted the burden of proof to him. Defendant’s
argument is without merit. The prosecutor’s questions did not suggest that defendant had a duty to
produce these witnesses or that their testimony would have been adverse to defendant. Instead, the
questions served the proper purpose of revealing weaknesses in a defendant’s alibi where he has failed
to call witnesses in support of that alibi. People v Fields, 450 Mich 94, 117; 538 NW2d 356 (1995).
Defendant’s assertion of an alibi defense invited cross-examination about his failure to produce
corroborating witnesses. People v Spivey, 202 Mich App 719, 723; 509 NW2d 908 (1993).
Additionally, the trial court instructed the jury that the prosecutor had to prove each element of the
crimes beyond a reasonable doubt and that defendant was not required to prove anything.
Affirmed.
/s/ Stephen J. Markman
/s/ Henry William Saad
/s/ Joel P. Hoekstra
1
MCL 750.520b(1)(e); MSA 28.788(2)(1)(e).
2
We note that the court admitted this statement over the objection of the prosecutor, and that defendant
made the statement against the firm advice of his counsel.
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