PEOPLE OF MI V ADRIAN GATSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 28, 2001
Plaintiff-Appellee,
v
No. 223538
Macomb Circuit Court
LC No. 99-001818-FC
ADRIAN GATSON,
Defendant-Appellant.
Before: K. F. Kelly, P.J., and Hood and Zahra, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of armed robbery, MCL 750.29, firstdegree criminal sexual conduct, MCL 750.520b(1)(e), and carjacking, MCL 750.529a.
Defendant was sentenced to concurrent terms of twenty-five to fifty years for each conviction
and appeals as of right. We affirm defendant’s convictions, but remand for resentencing.
Defendant was found guilty of sexually assaulting a SMART bus driver, robbing her of
$12, and commandeering her bus while brandishing a knife. His defense at trial was that he
engaged in consensual sex with the driver, who was a former coworker. Defendant denied
robbing the victim, driving the bus, or displaying a knife. At trial, a taxicab driver testified that
he had contact with defendant approximately eleven hours before the SMART incident.
Specifically, the taxicab driver testified that after the ride, defendant passed him a pink slip of
paper, representing that the paper was $100. When the taxicab driver objected, defendant put a
knife to his neck and robbed him of $45. The pink slip of paper was a prescription written in
defendant’s name. This prior bad act testimony was admitted over objection by defense counsel.
When questioned by the prosecutor, defendant testified that the victim and taxicab driver were
liars.
Defendant first argues that the trial court abused its discretion by admitting evidence of
the prior bad act. We disagree. Our review of the trial court’s decision regarding admission of
evidence is for an abuse of discretion. People v Sabin (After Remand), 463 Mich 43, 60; 614
NW2d 888 (2000). The prosecutor offered this evidence pursuant to MRE 404(b) to show
defendant’s “modus operandi” of utilizing a knife pressed against the neck of a transportation
employee to steal money from the victims. The proper test for evaluating the admission of
“modus operandi” evidence is found in People v Golochowicz, 413 Mich 298, 308-309; 319
NW2d 518 (1992). People v Smith, 243 Mich App 657, 671; 625 NW2d 46 (2000). The test
enunciated in Golochowicz has four parts:
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(1) there must be substantial evidence that the defendant actually
perpetrated the bad act sought to be introduced; (2) there must be some special
quality or circumstance of the bad act tending to prove the defendant’s identity or
the motive, intent, absence of mistake or accident, scheme, plan or system in
doing the act and, in light of the slightly different language of MRE 404(b) we
add, opportunity, preparation and knowledge; (3) one or more of these factors
must be material to the determination of the defendant’s guilt of the charged
offense; and (4) the probative value of the evidence sought to be introduced must
not be substantially outweighed by the danger of unfair prejudice. [Golochowicz,
supra at 309; footnote omitted.]
We conclude that the evidence was admissible under the Golochowicz test. First, there
was substantial evidence that defendant committed the prior armed robbery. The cab driver
identified defendant in court as the man who robbed him and described the knife defendant used.
The cab driver also gave the police the piece of paper that defendant tried to pass as a $100 bill.
This piece of paper was actually a medical prescription with defendant’s name on it. Defendant
acknowledged taking money from the cab driver. Second, there was a special quality about the
earlier conduct that tended to prove defendant’s scheme, plan, or system in committing the
instant offenses. In each instance, the sexual assault victim and the cab driver each gave
identical descriptions of the knife used by defendant and each stated that the knife was held to
the throat. Although defendant committed the additional offenses of criminal sexual conduct and
carjacking, he used the same weapon to effectuate his crimes in both incidents. Third, the use of
the weapon was material to the determination of defendant’s guilt in the charged offenses.
Defendant claimed that the sexual intercourse was consensual and denied taking money from the
sexual assault victim or driving the bus. The cab driver’s testimony, that defendant robbed him
at knifepoint and his description of the knife, tended to show that the victim’s testimony about
the events on the bus was the credible version, establishing defendant’s guilt of the charged
offenses. Finally, the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. Accordingly, we cannot conclude that the trial court abused its
discretion in admitting the evidence. Sabin, supra.
Defendant next argues that he was denied a fair trial because the prosecutor asked him to
comment on the credibility of witnesses. We disagree. While it is improper for the prosecutor to
ask the defendant to comment on the credibility of prosecution witnesses, the inquiry is subject
to a harmless error analysis. People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). In
Buckey, the Supreme Court concluded that any error was harmless even when it was conceded
that the prosecutor’s strategy was to discredit the defendant by inviting him to label the
prosecution witnesses as liars. In the present case, the sexual assault victim and the cab driver
were total strangers, yet described the same robbery scenario involving the same weapon. It
appears that the prosecution strategy did not seek to discredit defendant with his characterization
of the victims as liars. Rather, the prosecutor sought an explanation regarding why two strangers
would fabricate identical versions of a robbery committed by the same person, defendant.
Accordingly, we cannot conclude that defendant was harmed by the inquiry. Buckey, supra.
Defendant next argues that reversal is required because the trial court instructed the jury
on the issue of flight in the absence of evidence to support the instruction. We disagree. Jury
instructions are reviewed in their entirety to determine whether the trial court committed error
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requiring reversal. People v Piper, 223 Mich App 642, 648; 567 NW2d 483 (1997). A trial
court need not give requested instructions that the facts do not warrant. Id. Flight has applied to
actions including fleeing from the scene of the crime, leaving the jurisdiction, running from the
police, resisting arrest, and attempting to escape custody. People v Coleman, 210 Mich App 1,
4; 532 NW2d 885 (1995). Fear of apprehension is a factor for consideration when examining the
issue of flight. People v Cutchall, 200 Mich App 396, 401-405; 504 NW2d 666 (1993). The
issue of flight presents a determination for the jury. See People v Taylor, 195 Mich App 57, 63;
489 NW2d 99 (1992). The trial court should instruct that evidence of flight may be considered
as evidence of guilt, but may also be consistent with the defendant’s theory of the case, such as
evidence of fear. Id. In the present case, defendant had reason to fear apprehension as he was a
former coworker of the sexual assault victim and could be identified as her assailant.
Additionally, defendant, in providing the pink paper to the cab driver, revealed his identity.
Furthermore, after completing the sexual assault of the victim, defendant left the scene and found
hospitalization for four days for depression. However, defendant testified that he engaged in
sexual consensual intercourse with the victim and opted not to return to the bus depot with her to
clean out his locker, then sought treatment for depression. Thus, defendant was able to argue an
innocent purpose for his departure from the scene and unavailability following the incident on
the bus. Based on these facts, we cannot conclude that it was error requiring reversal to allow
the jury to determine whether flight was an issue in the case. Piper, supra.
Defendant next argues that the trial court abused it discretion in sentencing defendant
when the substantial and compelling reasons cited for departure from the guidelines were
incorporated into the guideline calculations. We remand for resentencing. If the principle of
proportionality applied to this sentencing, we would conclude that the sentence was
proportionate to the circumstances surrounding the offense and the offender. People v Milbourn,
435 Mich 630; 461 NW2d 1 (1990). However, in People v Babcock, 244 Mich App 64, 78- 79;
624 NW2d 479 (2000), the majority opinion disavowed Milbourn and concluded that, under the
new legislative sentencing guidelines, “[f]actors that are considered in scoring the guidelines
cannot be used a second time to justify a sentencing departure.” Review of the record reveals
that the trial court’s substantial and compelling reasons for the departure were included within
the guideline factors and thus cannot be utilized a second time for a departure. Id. However,
MCL 769.34(b) provides that the trial court may nonetheless depart based on an offense or
offender characteristic if the court finds from the facts contained in the court record that the
characteristic has been given inadequate or disproportionate weight. Accordingly, we remand to
the trial court for a determination regarding whether the factors cited for departure were given
inadequate or disproportionate weight.
Affirmed, but remanded for resentencing. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Harold Hood
/s/ Brian K. Zahra
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