PEOPLE OF MI V BENJAMIN HORTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 8, 2001
Plaintiff-Appellee,
v
No. 220091
Livingston Circuit Court
LC No. 99-010824-FH
BENJAMIN HORTON,
Defendant-Appellant.
Before: Murphy, P.J., and Griffin and Wilder, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of breaking and entering a building with
intent to commit a larceny, MCL 750.110; MSA 28.305. The trial court sentenced defendant as a
fourth habitual offender, MCL 769.12; MSA 28.1084, to twenty five to forty years in prison.
Defendant appeals as of right. We affirm.
Defendant argues that admission of defendant’s 1981 larceny from a person conviction
for impeachment purposes was improper because the trial court (1) failed to articulate its analysis
in weighing the probative value of the impeachment evidence against its prejudicial effect under
MRE 609(b), (2) applied the wrong legal standard to determine whether the prior conviction was
admissible, (3) improperly concluded that larceny from a person is not a similar offense to
breaking and entering, and (4) erroneously concluded that the larceny conviction was not
precluded by the ten-year period. We disagree. We review the trial court’s decision to allow
impeachment with prior convictions for an abuse of discretion. People v Coleman, 210 Mich
App 1, 6; 532 NW2d 885 (1995).
MRE 609 states as follows:
(a) For the purpose of attacking the credibility of a witness, evidence that the
witness has been convicted of a crime shall not be admitted unless evidence has
been elicited from the witness or established by a public record during crossexamination, and
(1) the crime contained an element of dishonesty or false statement, or
(2) the crime contained an element of theft, and
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(A) the crime was punishable by imprisonment in excess of one year or
death under the law under which the witness was convicted, and
(B) the court determines that the evidence has significant probative value
on the issue of credibility and, if the witness is the defendant in a criminal trial,
the court further determines that the probative value of the evidence outweighs its
prejudicial effect.
(b) For purposes of the probative value determination required by subrule
(a)(2)(B), the court shall consider only the age of the conviction and the degree to
which a conviction of the crime is indicative of veracity. If a determination of
prejudicial effect is required, the court shall consider only the conviction’s
similarity to the charged offense and the possible effects on the decisional process
if admitting the evidence causes the defendant to elect not to testify. The court
must articulate, on the record, the analysis of each factor.
(c) Evidence of a conviction under this subrule is not admissible if a period of
more than ten years has elapsed since the date of the conviction or of the release
of the witness from the confinement imposed for that conviction, whichever is the
later date.
In People v Allen, 429 Mich 558, 605-606; 420 NW2d 499 (1988), our Supreme Court set
forth the standard for determining whether evidence regarding prior convictions is admissible for
impeachment purposes:
In sum, the trial judge’s first task, under the amended MRE 609, will be to
determine whether the crime contains elements of dishonesty or false statement.
If so, it would be admitted without further consideration. If not, then the judge
must determine whether the crime contains an element of theft. If it is not a theft
crime then it is to be excluded from evidence without further consideration. It if
is a theft crime and it is punishable by more than on year’s imprisonment, the trial
judge would exercise its discretion in determining the admissibility of the
evidence by examining the degree of probativeness and prejudice inherent in the
admission of the prior conviction. For purposes of the probativeness side of the
equation, only an objective analysis of the degree to which the crime is indicative
of veracity and the vintage of the conviction would be considered, not either
party’s need for the evidence. For purposes of the prejudice factor, only the
similarity to the charged offense and the importance of the defendant’s testimony
to the decisional process would be considered. The prejudice factor would, of
course, escalate with the increased similarity and increased importance of the
testimony to the decisional process. Finally, unless the probativeness outweighs
the prejudice, the prior conviction would be inadmissible.
First, although the record shows that the trial court did not analyze each factor in the
probative versus prejudicial analysis individually, the trial court properly considered the
arguments of counsel and articulated its rationale for its findings and conclusions on the record.
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Accordingly, we reject defendant’s argument that the trial court did not articulate its MRE 609
analysis. Allen, supra.
Second, contrary to defendant’s contention, the trial court did not apply the wrong legal
standard in admitting evidence of defendant’s prior larceny conviction. Defendant was convicted
of larceny from a person which is a crime that contains an element of theft and is punishable by
more than one year imprisonment. Thus, under MRE 609(a)(2)(B), the trial court was required to
determine whether the evidence had significant probative value on the issue of credibility and
whether the probative value of the evidence outweighed its prejudicial effect. To this end, the
trial court was required to consider the degree to which the crime was indicative of veracity, the
age of the conviction, and the similarity between the prior conviction and the offense with which
defendant was charged in the instant case. A review of the record reveals that the trial court
correctly applied this standard in admitting the evidence.
Third, although we agree with defendant’s contention that the trial court erred in finding
that the offense of larceny is dissimilar to the instant offense of breaking and entering with intent
to commit a larceny therein,1 in view of the other factors weighing in favor of admissibility, we
do not find that this erroneous conclusion warrants reversal.
Finally, we are not persuaded by defendant’s argument that the larceny conviction was
inadmissible under MRE 609(c) because it was more than ten years old at the time of trial.
Defendant was convicted of larceny from a person in 1981 and released from prison on parole in
1986 or 1987. Defendant subsequently violated parole and was incarcerated for the parole
violation, which stemmed from the original larceny conviction, until his release in 1998.
Defendant’s trial in this case commenced on April 26, 1999.
In People v Washington, 130 Mich App 579, 581; 344 NW2d 8 (1983), the defendant was
convicted in 1969 of larceny in a building. The defendant was released from prison on parole,
but returned for violation of parole and was finally released from prison on February 19, 1974.
The defendant’s trial for second-degree murder concluded on July 1, 1982. The defendant filed a
motion to preclude admission of his prior larceny conviction, arguing that the ten-year period
should either commence with his release on parole, or the period while he was on parole should
be added to the period following his final release, totaling more than ten years. Id. This Court
disagreed and admitted the evidence, stating as follows:
We are not constrained to hold that a trial judge must compute the ten-year
period under MRE 609(b) by adding any unsuccessful periods of parole to the
time after final release from prison . . . . [Id.]
Likewise, in the instant case, defendant was released from prison on parole, but returned
to prison for violation of parole and was finally released from prison on his larceny conviction in
1998. Indeed, defendant testified at trial that he was released from prison for his larceny
1
In fact, the prosecution concedes that these two offenses are similar in nature.
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conviction in 1998. Therefore, the trial court did not abuse its discretion in admitting
defendant’s conviction for purposes of impeachment under MRE 609.
Next, defendant argues that the trial court improperly admitted prior bad acts evidence
under MRE 404(b). Specifically defendant asserts that the trial court erred in allowing the
prosecutor to elicit testimony from witnesses about a prior uncharged breaking and entering at
Proform, to allow the inference that defendant was involved in the prior burglary and must
therefore have committed the instant offense.2 We disagree. A trial court’s evidentiary rulings
are reviewed for an abuse of discretion. People v Starr, 457 Mich 490, 495; 577 NW2d 673
(1998). Use of a defendant’s prior bad acts as evidence of the defendant’s character is
inadmissible at trial, except as permitted by MRE 404(b). People v Crawford, 458 Mich 376,
383; 582 NW2d 785 (1998).
Defendant’s argument lacks merit because he failed to identify the crime, wrong, or bad
act inherent in the evidence introduced by the prosecution which would trigger a MRE 404(b)
analysis. Defendant himself points out that “over repeated defense objection, the prosecutor
presented evidence showing that in November concrete forms were stolen from Pro-Form Poured
Walls and then not long afterward police officers stopped Mr. Horton approximately two miles
from Pro-Form” and that “many of these [concrete] forms were later recovered at a scrap yard
called Consumers Recycling in Detroit, and Consumers Recycling receipts were found in Mr.
Horton’s wallet when the police took him into custody for the second breaking and entering.”
However, none of these acts by defendant—driving within two miles of the business and carrying
receipts from Consumer’s Recycling—constitute bad acts. Although a fact finder may infer from
the evidence that defendant was involved with the prior theft, evidence that a prior theft occurred
at the same location, defendant was stopped in the area of the theft, and items missing from the
first theft were discovered in defendant’s vehicle at the time he was arrested for the instant
offense, do not constitute prior bad acts. Thus, MRE 404(b) is simply inapplicable to this
evidence and the dispositive inquiry is whether the challenged evidence is relevant in this case.
Generally, all relevant evidence is admissible, and irrelevant evidence is not. MRE 402;
Starr, supra at 497. Evidence is relevant if it has any tendency to make the existence of a fact
which is of consequence to the action more probable or less probable than it would be without
the evidence. MRE 401; Crawford, supra at 388. To be material, evidence need not relate to an
element of the charged crime or an applicable defense. The relationship of the elements of the
charge, the theories of admissibility, and the defenses asserted govern relevance and materiality.
People v Brooks, 453 Mich 511, 518; 557 NW2d 106 (1996). Even if relevant, however,
evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or
needless presentation of cumulative evidence. MRE 403; People v Mills, 450 Mich 61, 74-75;
537 NW2d 909, modified on other grounds 450 Mich 1212; 539 NW2d 504 (1995).
2
Defendant was suspected of being involved in the prior theft, but was never charged in
connection with that offense. Any information in the police report of the first theft that related to
defendant was stricken from the preliminary sentencing information.
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In this case, defendant entered a general denial of guilt, thereby placing all of the
elements of the crime at issue. Mills, supra at 69-70. The challenged testimony concerning
defendant’s implicit involvement in a prior theft at the same location was relevant to refute the
defenses asserted by defendant. For instance, testimony from prosecution witness John Cogo, the
owner of the business where the theft occurred, that his business had previously been burglarized,
was relevant to understand why Cogo immediately called Officer Medbury upon finding a light
on and a door partially opened at his business. Further, evidence that property stolen during the
first theft had been discovered at Consumer’s Recycling and that defendant had receipts from
Consumer’s Recycling in his pockets at the time of his arrest was relevant to explain why the
officers proceeded directly to Consumer’s Recycling to search for the stolen property in the
instant case. Additionally, the challenged testimony concerning defendant’s prior traffic stop
only a few miles from Proform, was properly introduced to rebut defendant’s claim that he was
unfamiliar with the roads and the area where Proform was located because the business was
situated in an obscure place far off the road. Therefore, the challenged testimony was relevant
under MRE 401.
Finally, we are not persuaded by defendant’s argument that even if relevant, the
challenged testimony was “highly damaging” or unfairly prejudicial under MRE 403. Initially,
we note that "unfair prejudice" does not mean “damaging.” Mills, supra at 75. 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. at 75-76. On the existing record, we do
not find that the evidence demonstrating that defendant was familiar with the area in which the
theft occurred and establishing that Proform had been burglarized in the past was given undue or
preemptive weight by the jury or that it was inequitable to use such evidence. As defendant
himself points out, these facts alone do not prove that defendant committed the instant offense.
Accordingly, we find no error.
Defendant also claims that the admission of Detective Thomas Cremonte’s testimony that
defendant was “not a kid” and was “streetwise” was improper because it constituted evidence of
bad character under MRE 404(a). We disagree.
MRE 404(a)(1) provides:
(a) 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:
(1) evidence of a pertinent trait of character offered by an accused, or by
the prosecution to rebut the same.
Although defendant frames this issue in terms of defendant’s character, a close reading of
the record reveals that the rebuttal testimony of Detective Cremonte was actually introduced by
the prosecution for the purpose of rehabilitating Cremonte’s truthfulness and credibility after it
was attacked by defense counsel on cross-examination, not for the purpose of impugning
defendant’s character. Thus, this testimony did not fall within the scope of Rule 404(a) which
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limits character evidence when introduced “for the purpose of proving action in conformity
therewith on a particular occasion.”
However, even if such testimony could be construed as bad character evidence, defendant
clearly opened the door to such evidence in his cross-examination of Cremonte. The record
shows that defense counsel aggressively questioned Cremonte during cross-examination
regarding the deceptive and coercive tactics used on defendant to try to elicit information from
him, thereby portraying Cremonte as a liar and as an individual with some sort of personal
vendetta against defendant. Under these circumstances, it was entirely appropriate for the
prosecutor to ask Cremonte on redirect examination, as rebuttal evidence, why it was necessary
to use such strong tactics with defendant. Moreover, the trial court properly restricted the
prosecutor’s rebuttal evidence by excluding testimony from Cremonte explaining why
defendant’s background made such tactics necessary. Thus, defendant’s assertion that “[d]uring
the direct examination of Detective Thomas Cremonte, the prosecutor deliberately presented
evidence of Benjamin Horton’s allegedly bad character” is simply incorrect. As the trial court
correctly noted, the issue of defendant’s character was first raised during defense counsel’s crossexamination of defendant and the prosecution’s subsequent inquiry of the issue was made only
after defendant opened the door. Rebuttal evidence is admissible to “contradict, repel, explain or
disprove evidence produced by the other party and tending directly to weaken or impeach the
same.” People v Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996). Otherwise inadmissible
evidence may be admissible for rebuttal purposes after an opposing party has opened the door to
such evidence. See People v Verburg, 170 Mich App 490; 430 NW2d 775 (1988). Accordingly,
we find no abuse of discretion.
Lastly, defendant raises several challenges to his twenty-five to forty year sentence,
neither of which we find warrant relief. First, defendant argues that because he was convicted of
a crime that occurred on December 18, 1998, and was one of the last individuals sentenced
before the 1999 sentencing guidelines enacted by the Legislature went into effect, he should have
been sentenced under the new guidelines. This Court recently rejected an identical argument
regarding retroactive application of the new guidelines in People v Reynolds, 240 Mich App 250;
611 NW2d 316 (2000). Further, the statute clearly provides that “[t]he sentencing guidelines
promulgated by order of the Michigan Supreme Court shall not apply to felonies . . . committed
on or after January 1, 1999” and “the minimum sentence imposed by a court of this state for a
felony . . . committed on or after January 1, 1999 shall be within the appropriate sentence range
under the version of those sentencing guidelines in effect on the date the crime was committed . .
.” MCL 769.34(1) and (2); MSA 28.1097(3.4)(1) and (2); emphasis added. Accordingly,
defendant’s argument is without merit.3
3
We note that defendant’s reliance on People v Schultz, 435 Mich 517; 460 NW2d 505 (1990) to
support his position is misplaced. In Schultz, supra at 530-531, the Court expressly stated:
. . . in the absence of a contrary statement of Legislative intent, criminal
defendants are to be sentenced under an ameliorative amendatory act that is
(continued…)
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Defendant also argues that his twenty-five to forty year sentence as a fourth habitual
offender is disproportionate to the offense and the offender. Specifically, defendant argues that
the trial court erred in failing to consider the following factors: (1) his crime was not an
exceptional one justifying such a long term of imprisonment, (2) his sentence will cost taxpayers
$25,000 per year, (3) the offense was a property offense, and (4) the burglary of the warehouse
occurred late at night with no innocent person present who could have been harmed.
After reviewing the record, we conclude that the trial court properly considered the
seriousness of the circumstances of both the offender and the offense during sentencing. People
v Hansford (After Remand), 454 Mich 320, 325-326; 562 NW2d 460 (1997). The record reveals
that defendant has an extensive criminal record which includes armed robbery, larceny, and
burglary, and which spans over two decades. In addition, defendant’s multiple felony
convictions and prison sentences demonstrate that he is unable to conform his conduct to that
required by the law. Further, defendant’s contention that the instant offense was committed
while “no innocent person [was] present who could have been harmed” is unpersuasive in view
of defendant’s prior record which includes three armed robbery convictions and indicates that he
is willing to use weapons and to endanger victims if necessary in order to accomplish his
purpose.
Further, defendant’s sentence as a fourth habitual offender falls within the statutory
limits. MCL 769.12; MSA 28.1084. A sentencing court does not abuse its discretion in
sentencing an habitual offender within the statutory limits established by the Legislature when
the offender’s underlying felony, in the context of previous felonies, evinces the defendant’s
inability to conform his conduct to the laws of society. Reynolds, supra at 252; Hansford, supra
at 326. The trial court was not only allowed to consider defendant’s status as an habitual
offender during sentencing, but was required to do so under MCL 769.12; MSA 28.1084. By
contrast, there is no such requirement that the cost of defendant’s sentence to the taxpayers be
considered prior to sentencing.
(…continued)
enacted subsequent to the date of offense and becomes effective during the
pendency of the prosecution.
The Schultz Court further provided:
The Legislature also has the constitutional authority to provide that an
ameliorative amendatory act applies prospectively to offenses committed after the
amendatory act takes effect. [Id. at 525-526.]
In this case, the Legislature did provide a clear statement of legislative intent that the new
guidelines were to be applied prospectively only to offenses committed after the act took effect,
while the old guidelines continued to apply to offenses committed before January 1, 1999. By
contrast, our Supreme Court found no such statement of intent in the sentencing legislation at
issue in Schultz. Thus, Schultz and its progeny, relied upon by defendant. are not controlling.
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Lastly, defendant argues that the trial court failed to adequately consider the four
necessary factors of deterrence, protection of society, punishment, and rehabilitation, during
sentencing. People v Snow, 386 Mich 586; 194 NW2d 314 (1972). However, our review of the
record reveals that the trial court properly considered the Snow factors. After lengthy argument
from both sides, the trial court found that defendant was a career criminal. The trial court then
carefully considered the weight to be afforded defendant’s prior convictions, as evidenced by its
willingness to strike the reference in the presentence investigation report to defendant’s
suspected involvement in the previous, uncharged theft at Proform, and its decision not to order
defendant to pay restitution for the previous uncharged crime. The trial court considered other
factors such as defendant’s bad luck and the good police work involved, defendant’s extensive
criminal history, his potential for rehabilitation, protection of society, deterrence, and punishment
in sentencing defendant. Accordingly, we find no merit to defendant’s argument. The trial court
did not abuse its discretion in sentencing defendant.
Affirmed.
/s/ William B. Murphy
/s/ Kurtis T. Wilder
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