PEOPLE OF MI V RONALD WAYNE DILLINGHAM
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 6, 1999
Plaintiff-Appellee,
v
No. 206847
Recorder’s Court
LC No. 96-503287
RONALD WAYNE DILLINGHAM,
Defendant-Appellant.
Before: Hood, P.J., and Holbrook, Jr. and Whitbeck, JJ.
WHITBECK, J. (concurring).
I concur completely with my colleagues’ holdings with respect to the sufficiency of the evidence
and the adding of two charges at the end of the preliminary examination. I write separately to express a
different view with respect to the character evidence under MRE 404(a).
I. The Relevant Provisions
A. MRE 404(a)
MRE 404(a) provides:
Character Evidence Generally. Evidence 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:
***
(3) Character of victim of sexual conduct crime. In a prosecution for
criminal sexual conduct, evidence of the victim’s past sexual conduct with the defendant
and evidence of specific instances of sexual activity showing the source or origin of
semen, pregnancy, or disease.
B. The Rape-Shield Statute: MCL 750.520j(1); MSA 28.788(10)(1)
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MCL 750.520j(1); MSA 28.788(10)(1) provides:
Evidence of specific instances of the victim’s sexual conduct, opinion evidence
of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct
shall not be admitted under sections 520b to 520g unless and only to the extent that the
judge finds that the following proposed evidence is material to a fact at issue in the case
and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin
of semen, pregnancy, or disease.
C. “Parallel” Provisions
The Michigan Supreme Court in People v Hackett, 421 Mich 338, 346; 365 NW2d 120
(1984) characterized these two provisions as being “parallel.” Strictly speaking, this is not completely
accurate. As noted by Justice Kavanagh in his separate opinion, the rape-shield statute “absolutely
prohibits the admission of evidence of sexual conduct between the victim and any person other than the
defendant except to show the source or origin of semen, pregnancy, or disease.” Id. at 362. Justice
Kavanagh amplified on this point later:
MRE 404(a)(3) is a more sophisticated approach to the question of the
admissibility of prior sexual conduct evidence. Unlike the statute, MRE 404(a)(3)
focuses on the purpose for which such evidence is offered. The statute simply excludes
all evidence of prior sexual conduct with third persons unless offered to show the source
or origin of semen, pregnancy, or disease. Moreover, MRE 404(a)(3) has the
incidental benefit of correcting the discredited use to which evidence of prior sexual
conduct has been most frequently put, which is what aroused the Legislature originally
to enact MCL 750.520j(1); MSA 28.788(10)(1). [Id. at 364.]
Presumably, when mentioning the “focus” by MRE 404(a)(3) on the purpose for which the evidence
was offered, Justice Kavanagh was referring to the first sentence in MRE 404(a) that provides that
evidence of a person’s character or trait of character is not admissible “for the purpose of proving
action in conformity therewith.” Thus, while the rape-shield statute contains a process that allows
evidence of prior sexual conduct with a defendant but sweeps out all evidence of prior sexual conduct
with third persons unless offered to show the source or origin of semen, pregnancy or disease, MRE
404(a)(3) contains an admissibility threshold in its first sentence that precludes the introduction of a
person’s character or trait of character for the purpose of proving action in conformity therewith and
then, in parallel with the rape-shield statute, makes exceptions for prior sexual conduct with a defendant
and prior sexual conduct with third persons showing the source or origin of semen, pregnancy, or
disease.
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Here, as my colleagues note, the prosecutor introduced evidence that the victim did not have a
reputation for being promiscuous, did not dress promiscuously, and had not evidenced prior sexually
aggressive behavior when dealing with strangers. Clearly, then, neither of the two exceptions contained
within the rape-shield statute or MRE 404(a)(3) (i.e. evidence of the victim’s past sexual conduct with
the defendant or evidence of specific instances of sexual activity showing the source or origin of semen,
pregnancy, or disease) are at issue in this case. Thus, while it is somewhat inaccurate to say that the
rape-shield statute and MRE 404(a)(3) are “parallel” or “corresponding” provisions, the differences in
the two provisions have no direct bearing here. Simply put, we are dealing only with the prohibition in
the first sentence of MRE 404(a) against the introduction of a person’s character or trait of character for
the purpose of proving action in conformity therewith; the provisions of the rape-shield statute are
irrelevant to this matter.
II. Admissibility Of Evidence Versus Use Of Evidence
My colleagues, as noted above, describe the evidence that the prosecutor introduced that
tended to show the victim’s lack of promiscuity and then recite the prosecutor’s argument with respect
to this evidence, in particular the statement by the prosecutor to the effect that the victim “wasn’t the
type of person to do that, and I submit to you, she wasn’t the type of person to do [that] on August
28th [the date of the alleged rape] neither.” My colleagues go on to say:
This argument is clearly impermissible where the prosecutor suggested that because the
victim was not sexually aggressive or promiscuous in the past, she would not have, in
conformity with her character, been sexually aggressive or promiscuous on the date in
question. As in [People v] Bone [230 Mich App 699; 584 NW2d 760 (1998)], the
use of such evidence constitutes error requiring reversal because the strength and weight
of the remaining evidence depended upon the complainant’s credibility versus that of
defendant. Accordingly, we find that defendant is entitled to a new trial on the criminal
sexual conduct charges.
Here, I believe, my colleagues are conflating two questions: the proper application of MRE 404(a)(3)
(i.e. whether the evidence of the victim’s lack of promiscuity was admissible under the rule) and the
possibility of prosecutorial misconduct (i.e. whether the prosecutor misused the evidence once it was
admitted). This is troublesome in light of the fact that, although defendant in his appeal to this Court
alleged instances of prosecutorial misconduct,1 the defendant did not allege, in the portion of his brief
dealing with this alleged prosecutorial misconduct, that the prosecutor committed misconduct with
respect to the evidence of the victim’s lack of promiscuity.
In any event and simply put, I do not believe that the focus of our decision as to this evidence
should be the use to which the prosecutor put it. Rather, I believe the proper focus to be on the
question of whether this evidence was properly admissible under MRE 404(a). This requires, as my
colleagues correctly note, a consideration of Bone, supra.
III. Bone
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Bone contains two statements that bear directly on this case:
We interpret MRE 404(a)(3) to preclude the use of evidence of a victim’s virginity as
circumstantial proof of the victim’s current unwillingness to consent to a particular sexual
act.
***
The prosecutor contended that the victim would not consent to sexual activity because
she had never done so previously, essentially arguing that the victim was acting in
conformity with her prior lack of sexual activity. Evidence of the victim’s virginity is
barred for this purpose under MRE 404(a)(3). [Bone, supra at 702-703.]
It is troubling that the Bone panel gave no hint of its reasons for concluding that evidence of a victim’s
previous lack of sexual activity was barred under MRE 404(a)(3). As do my colleagues in this case,
however, the Bone panel fairly clearly conflated the question of the admissibility of the evidence with
the question of the use to which the prosecutor put the evidence:
Here, the prosecutor sought to admit evidence of the victim’s virginity for the
limited purpose of explaining inconsistencies in the victim’s testimony regarding what she
told police following the incident. However, the context of the prosecutor’s opening
statement, direct examination of the victim, and closing argument shows that the
prosecutor used evidence of the victim’s virginity to demonstrate to the jury that
because the victim had no prior sexual experience, she was less likely to have
consented to sexual relations with defendant on the night of the incident. [Bone,
supra at 702; emphasis supplied.]
Thus, apparently, the central issue to the Bone panel was the prosecutor’s use of the evidence of the
victim’s virginity. Indeed, the panel’s use of the word “however” implies that the evidence was properly
admitted for the limited purpose of explaining inconsistencies in the victim’s testimony.
This implication is, I believe, correct. In this regard, the Michigan Supreme Court has
recognized that while in the vast majority of rape cases evidence of a rape victim’s prior sexual conduct
with others and sexual reputation when offered to prove the conduct was consensual or for general
impeachment is inadmissible, there are limited exceptions to that rule:
We recognize that in certain limited situations, such evidence may not only be relevant,
but its admission may be required to preserve a defendant’s constitutional right to
confrontation. For example, where the defendant proffers evidence of a complainant’s
prior sexual conduct for the narrow purpose of showing the complaining witness’ bias,
this would almost always be material and should be admitted. Moreover in certain
circumstances, evidence of a complainant’s sexual conduct may also be probative of a
complainant’s ulterior motive for making a false charge. Additionally, the defendant
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should be permitted to show that the complainant has made false accusations of rape in
the past. [Hackett, supra at 348; citations omitted.]2
The question here (and, I contend, the actual question in Bone) then becomes whether there are any
limited exclusions to the general prohibition in MRE 404(a) against the introduction of a person’s
character or trait of character for the purpose of proving action in conformity therewith that would
permit the admission of evidence of the victim’s lack of promiscuity. The question is somewhat difficult
analytically in that it was not defendant who sought to introduce evidence of the victim’s prior sexual
conduct but rather the prosecutor who sought to introduce—and was successful in introducing—such
evidence.
My reading of the cases, however, leads me to conclude that it makes no difference whether it
is a defendant who seeks to introduce evidence of an alleged rape victim’s prior sexual encounters or a
prosecutor who seeks to introduce evidence of an alleged rape victim’s lack of such encounters. If,
generally, there is no logical nexus between a complainant’s reputation for unchastity and the character
trait for truthfulness or untruthfulness, see Hackett, supra at 352; see also People v Williams, 416
Mich 25, 45; 330 NW2d 823 (1982) (Williams, J.), and People v Wilhelm (On Reh), 190 Mich App
574, 580; 476 NW2d 753 (1991), then there is no logical nexus between this alleged victim’s lack of
promiscuity and the character trait for truthfulness or untruthfulness.3 In like fashion, if evidence of a
complainant’s prior sexual unchastity, in the form of reputation evidence or a specific instance of
conduct, has little or no relevancy to the issue of consent—see Hackett, supra at 354—the evidence of
this victim’s lack of promiscuity has little or no legal relevancy to the issue of her consent or lack thereof.
In my view, therefore, MRE 404(a) is a two-way street; it applies as equally to evidence of
virginity or lack of promiscuity as it does to evidence of unchastity. Both are precluded, with limited
exceptions, as they go to a person’s character or trait of character for the purpose of proving action in
conformity therewith.
Moreover, in my view there are no exceptions that would allow the introduction of such
evidence here. The prosecutor argues that the evidence was “rendered relevant by the defendants’ (sic)
theory of the case that the victim was the instigator.” I first note that relevance is a concept governed by
MRE 402 and 401.4 In another context, the Michigan Supreme Court has explained that evidence must
be “logically relevant” and “legally relevant.” People v VanderVliet, 444 Mich 52, 61-62; 508
NW2d 114 (1993), modified on other grounds 445 Mich 1205 (1994). Indeed, the Court went on to
say:
On its face, Rule 404 limits only one category of logically relevant evidence. As
we explained in [
People v] Engelman, [434 Mich 204, 212-213; 453 NW2d 656
(1990)]:
“[o]nly one series of evidential hypotheses is forbidden in criminal cases
by Rule 404: a man who commits a crime probably has a defect of
character; a man with such a defect of character is more likely . . . to
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have committed the act in question.” [Citing 2 Weinstein, Evidence,
¶ 404(8), p 404-52.]
If the proponent’s only theory of relevance is that the other act shows
defendant’s inclination to wrongdoing in general to prove that the defendant committed
the conduct in question, the evidence is not admissible. [VanderVliet, supra at 62-63.]
Here, the prosecutor’s only theory of relevance is that the victim’s lack of promiscuity showed her
disinclination to promiscuous sexual conduct in general to prove that she did not consent to the conduct
in question. Under such a theory, the evidence of the victim’s lack of promiscuity was not admissible.
Further, the prosecutor has not argued that any of the courts’ articulated exceptions with respect to
prior sexual conduct testimony, even when reconfigured to deal with the reverse situation of lack of
prior sexual conduct,5 apply in this case.
IV. People v Sandoval
I note that my conclusion that MRE 404(a)(3) generally prohibits the prosecution, as well as the
defense, from offering evidence of the character or of a trait of character of an alleged sexual assault
victim is consistent with the pertinent observations of the Illinois Supreme Court in People v Sandoval,
135 Ill 2d 139; 142 Ill Dec 135; 552 NE2d 726, 731 (1990). As with MRE 404(a)(3), the rape
shield statute considered in Sandoval, Ill Rev Stat 1987, ch. 38, par. 115-7 as then in effect, phrased
its prohibition on the admission of certain types of evidence without regard to the party that offered the
evidence:
“a. In prosecutions for [rape or deviate] sexual assault * * *, the prior sexual
activity or the reputation of the alleged victim is inadmissible except as evidence
concerning the past sexual conduct of the alleged victim with the accused. [Sandoval,
supra at 730.]
The Illinois Supreme Court stated:
We note that the statute does not limit its proscription to a defendant’s attempts to
introduce evidence of the victim’s prior sexual encounters; the statute says quite simply
that “the prior sexual activity * * * is inadmissible.” …. The words of limitation which
follow do not indicate that only the defendant is prohibited from introducing such
evidence; the exception addresses only the “past sexual conduct of the alleged victim
with the accused.”
***
The language of the statute is clear and unambiguous; it leaves no room for introduction
of reputation or specific-act evidence from any party in the action. [Id. at 731;
emphasis in the original.]
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Like the statute at issue in Sandoval, MRE 404(a)(3) by its plain language generally prohibits
the introduction of character evidence regarding a complainant in a criminal sexual conduct case
regardless of the party offering the evidence and regardless of whether the character evidence tends
to portray the complainant in a positive or negative light. Accordingly, a Michigan court should apply
the plain language of MRE 404(a)(3) and thus should preclude the prosecution, as well as the defense,
in a criminal sexual conduct case from offering evidence of the character or a trait of character of an
alleged sexual assault victim unless such evidence falls under the narrow exceptions allowed by MRE
404(a)(3). People v Harris, 224 Mich App 597, 601; 569 NW2d 525 (1997) (“If the language of the
court rule is clear, this Court should apply it as written.”).
V. Conclusion
I conclude that the evidence of the victim’s lack of promiscuity was inadmissible under MRE
404(a)(3). Unlike my colleagues, I do not reach this conclusion based upon the use to which the
prosecutor put this evidence; I believe that such use is properly a question for consideration under the
category of prosecutorial misconduct. Rather, I conclude that, as a matter of law, it makes no
difference whether it is a defendant who seeks to introduce evidence of an alleged rape victim’s prior
sexual encounters or a prosecutor who seeks to introduce evidence of an alleged rape victim’s lack of
such encounters. Generally, any such evidence is irrelevant to the question of the victim’s truthfulness or
untruthfulness or consent or lack of consent. I can see no exception—and the prosecutor has, in fact,
not argued the applicability of any exception—to the general rule that applies in this case. I also agree
with my colleagues that the error in this case may not properly be deemed harmless. I therefore concur
in the remand to the trial court for a new trial.
/s/ William C. Whitbeck
1
I.e. that the prosecutor elicited opinion evidence about whether the victim was truthful and then argued
to the jury that she was a truthful church going woman, that the prosecutor mislead the jury about other
sexual misconduct allegedly committed by defendant, and that the prosecutor introduced evidence that a
prosecutor had approved a warrant for the charges against defendant.
2
I recognize that, above, I maintain that the rape-shield statute, the subject of the Court’s ruling in
Hackett, and MRE 404(a), the rule in question here, do not, strictly speaking, contain exactly parallel
or corresponding provisions. Nevertheless, it appears to me that, within context, the Court’s comments
on the rape-shield statute are reasonably applicable to MRE 404(a).
3
Similarly, in Bone there was no logical nexus between the victim’s virginity and the character trait of
truthfulness or untruthfulness.
4
MRE 402 provides:
All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, the Constitution of the State of Michigan, these rules,
or other rules adopted by the Supreme Court. Evidence which is not relevant is not
admissible.
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MRE 401, in turn, describes relevant evidence:
“Relevant evidence” means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.
5
Constructing such reverse formulations is difficult and logically somewhat attenuated but it can be done
(e.g. lack of prior sexual conduct might be relevant for showing witness bias, for showing the victim’s
ulterior motive for making a true charge, for showing that the victim has made true accusations of rape in
the past, or for explaining inconsistencies in the victim’s testimony).
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