PEOPLE OF MI V GARY LEE EDWARDS JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 9, 2000
Plaintiff-Appellee,
v
No. 213336
Calhoun Circuit Court
LC No. 97-003885-FC
GARY LEE EDWARDS, JR.,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Saad and Whitbeck, JJ.
PER CURIAM.
A jury convicted defendant of first-degree criminal sexual conduct (CSC 1), MCL
750.520b(1)(f); MSA 28.788(2)(1)(f), second-degree criminal sexual conduct (CSC 2), MCL
750.520c(1)(f); MSA 28.788(3)(1)(f), and assault with intent to commit criminal sexual conduct
involving sexual penetration, MCL 750.520g(1); MSA 28.788(7)(1). The trial court sentenced him to
concurrent prison terms of twelve to thirty years for the CSC-1 conviction, four to fifteen years for the
CSC-2 conviction, and two to ten years for the assault with intent to commit criminal sexual conduct
conviction. He appeals as of right. We affirm defendant’s convictions but remand for resolution of
defendant’s challenges to the factual accuracy of the presentence investigation report (PSIR).
I
The complainant worked as a clerk in defendant’s baseball card store. She alleges that shortly
after she began work there, defendant sexually assaulted her in a back room of the store. Defendant
contends that complainant consented to the sexual encounter. On appeal, defendant raises several
issues of trial error.
II
Defendant argues that the trial court improperly excluded from evidence the complainant’s
statement that she had previously been “date-raped.” We agree that the trial court erroneously
excluded the evidence under the rape-shield statute. However, we hold that the evidence was properly
excluded because it is irrelevant.
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At defendant’s preliminary examination and again at a pretrial hearing, the complainant testified
that she told defendant during her job interview that she had previously been “date-raped.” At
plaintiff’s motion, the trial court excluded this evidence from trial under the rape-shield statute, MCL
750.520j; MSA 28.788(10). Defendant now contends, as he did at trial, that the complainant’s
statement regarding a previous date-rape does not fall within the scope of the rape-shield law. He
argues that the evidence that complainant made this statement is highly relevant to demonstrate that his
relationship with the complainant quickly proceeded to a very intimate level consistent with his averment
that all sexual contact between the two was consensual.
The Michigan rape-shield statute provides as follows:
(1) 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.
(2) If the defendant proposes to offer evidence described in subsection (1)(a)
or (b), the defendant within 10 days after the arraignment on the information shall file a
written motion and offer of proof. The court may order an in camera hearing to
determine whether the proposed evidence is admissible under subsection (1). If new
information is discovered during the course of the trial that may make the evidence
described in subsection (1)(a) or (b) admissible, the judge may order an in camera
hearing to determine whether the proposed evidence is admissible under subsection (1).
[MCL 750.520j; MSA 28.788(10).]
The related rule of evidence, MRE 404, provides:
(a) 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 . . . .
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In People v Adair, 452 Mich 473, 480-481; 550 NW2d 505 (1996), the Court stated:
The rape-shield statute was aimed at thwarting the then-existing practice of
impeaching the complainant’s testimony with evidence of the complainant’s prior
consensual sexual activity, which discouraged victims from testifying “because they
kn[e]w their private lives [would] be cross-examined.” House Legislative Analysis, SB
1207, July 18, 1974. A complainant’s sexual history with others is generally irrelevant
with respect to the alleged sexual assault by the defendant. MRE 401. More
importantly, a witness’ sexual history is usually irrelevant as impeachment evidence
because it has no bearing on character for truthfulness. MRE 608. [Accord: People v
Arenda, 416 Mich 1, 10; 330 NW2d 814 (1982); People v Wilhelm (On
Rehearing), 190 Mich App 574, 580-581; 476 NW2d 753 (1991)].
We first consider if the complainant’s testimony about the previous date-rape falls within the
scope of the rape-shield statute and/or related rule of evidence. The statement here might arguably refer
to sexual conduct, which could bring the statement within the coverage of the rape-shield statute.
People v Ivers, 459 Mich 320, 329; 587 NW2d 10 (1998). However, in light of legislative intent as
described in Adair, supra, it is clear that the challenged evidence is not the kind that the Legislature
intended to prohibit. It does not constitute character evidence involving the complainant’s past sexual
conduct, nor is it general impeachment of the complainant’s sexual reputation.1 It was therefore error
for the trial court to exclude the evidence under the rape-shield statute.
However, we will not reverse a trial court if it reached the right result, albeit for the wrong
reason. People v Mayhew, 236 Mich App 112, 118, n 2; 600 NW2d 370 (1999). Here, the trial
court properly excluded the evidence because it was not relevant to any issue. Generally, relevant
evidence is admissible, but evidence that is not relevant is not admissible. MRE 402. “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.” MRE 401. Defendant has failed to demonstrate that the complainant’s statement about
a previous date rape was relevant to his defense. According to defendant, evidence of plaintiff’s
willingness to relate personal information would have helped prove that she consented to the sexual
encounter in the back room. However, we are unable to see the connection. Were we to agree with
defendant that complainant’s willingness to discuss the date-rape reflected a degree of intimacy between
complainant and defendant sufficient to support his defense that the sex between the two was
consensual, and not coerced, defendant’s theory is too tenuous and speculative to support a relevancy
finding. The evidence was thus inadmissible because it was irrelevant.
III
Defendant maintains that the trial court erred by allowing Katrina Wilson, defendant’s former
girlfriend, to testify that defendant had earlier sexually assaulted her under circumstances similar to those
existing in the case at bar. We disagree. The admissibility of “other-acts” evidence under MRE 404(b)
is within the trial court’s discretion and will be reversed on appeal only when there has been a clear
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abuse of discretion. People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). An abuse of
discretion exists only when an unprejudiced person, considering the facts on which the trial court acted,
would say that there was no justification or excuse for the ruling made. People v Rice (On Remand),
235 Mich App 429, 439; 597 NW2d 843 (1999).
MRE 404(b)(1) provides:
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.
Plaintiff introduced Wilson’s testimony on the grounds that it showed intent, a common scheme,
plan or system of doing an act, and showed absence of accident or mistake. Use of other acts as
evidence of character is excluded, except as allowed by MRE 404(b), “to avoid the danger of
conviction based on a defendant’s history of misconduct. . . .” People v Starr, 457 Mich 490, 495;
577 NW2d 673 (1998), quoting People v Golochowicz, 413 Mich 298, 308; 319 NW2d 518
(1982). To be admissible under MRE 404(b), other-acts evidence must: (1) be offered for a proper
purpose under MRE 404(b); (2) be relevant under MRE 402 as enforced through MRE 104(b); and
(3) not have its probative value substantially outweighed by unfair prejudice. Starr, supra at 496,
quoting People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), modified 445 Mich 1205
(1994). Also, the trial court may, on request, provide a limiting instruction to the jury regarding this
evidence. Id. Where the prosecution advances various theories purportedly warranting admission of
other-acts evidence, “only one such theory needs to be a proper, noncharacter reason that compels
admission for the testimony to be admissible.” Starr, supra at 501.
Comparison of Wilson’s testimony with that of the complainant reveals numerous similarities
regarding details of the respective sexual assaults. Both assaults occurred in the same back room at
defendant’s store, both were perpetrated upon female acquaintances of defendant, both were
accompanied by physical violence toward the complainants, and both included defendant’s attempts to
accomplish sexual intercourse and fellatio and to forcibly remove portions of the women’s clothing. The
present case therefore is analogous to People v Miller (On Remand), 186 Mich App 660, 664; 465
NW2d 47 (1991), where a child who was the same age as the complainant and who also attended the
same learning center was allowed to testify that he had been sexually molested by the defendant in the
same manner and in the same or similarly secluded areas of the school. This Court in Miller concluded,
“We find no reason to believe, in light of [
People v Engelman, 434 Mich 204; 453 NW2d 656
(1990)], that the child’s testimony is any less probative of defendant’s scheme, plan, or system in
committing the charged act than we did in our previous opinion.” Id.
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Similarly, in People v Lee, 212 Mich App 228, 245-246; 537 NW2d 233 (1995), the
defendant was accused of the kidnap-murder of a young girl, and the trial court allowed admission of
evidence that, as two young girls were walking to school only six days before the complainant was
kidnapped, the defendant stopped his car and asked the girls for the time and directions. This evidence
was introduced to show the defendant’s pattern or plan for committing child abductions and that
defendant committed this crime, id. at 245, and this Court affirmed, stating, “We do not agree with
defendant that the prosecutor’s use of the evidence exceeded the limited purpose allowed under MRE
404(b).” Id. at 246. Wilson’s trial testimony met the first two requirements of the Starr/VanderVliet
standard because it was offered for a proper purpose under Rule 404(b) (demonstrating defendant’s
plan, scheme or pattern of committing sexual assaults), and was relevant to a fact in issue under Rule
402, because it helped n
egate defendant’s contention that the sexual conduct he committed with the
complainant was consensual. See Starr, supra at 496-497.
The third factor of the Starr/VanderVliet standard requires that the probative value of the
other-acts evidence not be substantially outweighed by unfair prejudice. The trial court concluded that
Wilson’s testimony was not so outweighed. We agree. In Starr, supra at 498, the Court stated:
This Court recently clarified that the third prong of this standard requires nothing more
than the balancing process described in MRE 403. VanderVliet, supra at 72. Rule
403 allows for the exclusion of relevant evidence if ‘its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”
Here, Wilson’s testimony is substantially more probative than prejudicial because it shows defendant’s
plan, scheme or pattern of sexually assaulting females in the back room of his store and thus helps refute
his contention that his sexual contact with the complainant was consensual.
Finally, the fourth factor of the Starr/VanderVliet standard was met by the trial court’s limiting
instruction to the jury. There was no error.
IV
Defendant claims that the trial court improperly allowed plaintiff to redact an audiotape of
defendant’s interview that was played for the jury. We disagree. The decision whether to admit
evidence is within the discretion of the trial court and will not be disturbed on appeal absence a clear
abuse of discretion. Starr, supra at 494. Plaintiff redacted statements by the police regarding the
alleged penalty associated with CSC 1. The trial court permitted redaction in response to plaintiff’s
contention that the challenged references were inappropriate and would conflict with the trial court’s
jury instructions. By removing the suspect references, the trial court prevented the possibility of
conveying to the jury information to which it was not entitled. There was no error.
V
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Defendant contends that error occurred when a doctor who examined the complainant after the
assault testified that the complainant’s difficulty in making eye contact with him was typical of recent
sexual assault complainants, and that a cervical strain he diagnosed was consistent with the application
of force against her. Because defendant failed to object, appellate review has traditionally been limited
to whether the evidence resulted in manifest injustice. People v Ramsdell, 230 Mich App 386, 404;
585 NW2d 1 (1998). More recently, the Court in People v Carines, 460 Mich 750, 774; 597
NW2d 130 (1999) held that a defendant seeking relief for unpreserved nonconstitutional error must
show a plain error affecting substantial rights, and that the reviewing court should reverse only when the
defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of
judicial proceedings. Here, defendant has not demonstrated entitlement to appellate relief under either
of these standards.
VI
Defendant also argues that the cumulative effect of alleged trial errors denied him the due
process of law. Although it is possible for the cumulative effect of a number of errors to necessitate
reversal, “only actual errors are aggregated to determine their cumulative effect,” Rice, supra at 448,
quoting People v Bahoda, 448 Mich 261, 292, n 64; 531 NW2d 659 (1995) and citing People v
Dilling, 222 Mich App 44, 56; 564 NW2d 56 (1997). Because we find no “actual errors”, this issue
is without merit. People v Snider, 239 Mich App 393, 429, n 6; 608 NW2d 502 (2000).
VII
Defendant challenges the accuracy of the PSIR. The PSIR states that defendant “harbors a
dark and predatory side to his personality” and that defendant’s mother agreed with her ex-husband’s
negative comments regarding defendant’s personality. Defendant challenged these statements, but the
trial court did not adjudicate his criticisms. Because w are unable to state with assurance that the
e
court’s omission constitutes harmless error, we remand for clarification. People v Daniels, 192 Mich
App 658, 675; 482 NW2d 176 (1991), citing People v Thompson, 189 Mich App 85, 87-88; 472
NW2d 11 (1991). If, on remand, the court determines that the disputed information affected
defendant’s sentences, it must resolve the challenge and resentence defendant. However, if the disputed
material did not affect the sentences, they shall stand, although the court must strike all challenged
inaccuracies from the presentence report. Id.
Defendant’s convictions are affirmed and the case is remanded to the trial court for further
proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Henry William Saad
/s/ William C. Whitbeck
1
See People v Morse, 231 Mich App 424; 586 NW2d 555 (1998), where this Court held that
evidence of prior sexual abuse of a child complainant was not barred under the rape-shield act because
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its purpose was not to impeach the child’s character, but to show the source of the child’s age
inappropriate sexual knowledge. Id. at 432, 436.
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