PEOPLE OF MI V TYRONE HILL
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 22, 2002
Plaintiff-Appellee,
v
No. 227591
Ingham Circuit Court
LC No. 00-075424-FC
TYRONE HILL,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Bandstra and K. F. Kelly, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction for first-degree criminal sexual
conduct, MCL 750.520b. He was sentenced as a third felony offender, MCL 769.11, of 480 to
720 months’ incarceration. We affirm.
I. Basic Facts and Procedural History
On December 13, 1999, the ten year old victim was abducted as she waited for the school
bus. The victim is of Vietnamese descent and has difficulty communicating in the English
language. As she stood at the bus stop, defendant drove up, identified himself as a teacher and
offered the victim a ride to school. When the victim tried to run away, defendant forced her into
his vehicle, detained her on the floor, covered her mouth with his hand and sexually assaulted
her. The victim sustained blunt force injury to the vaginal area, was in physical pain and very
upset.
After notifying the police, the victim participated in two pre-custodial photographic
lineups. She did not identify her attacker in the first lineup. However, when the victim viewed
the second lineup, she identified defendant as her attacker within one or two minutes.
The victim also participated in a corporeal lineup. In an attempt to ensure that the victim
could identify and communicate the numbers on the form, the prosecutor inquired whether the
victim could identify the number four. The prosecutor then uttered “oh oh” realizing that
defendant was fourth in the lineup. Immediately thereafter, a detective asked the victim if she
could identify another number and the prosecutor followed up with another, similar inquiry.
Counsel present at the corporeal lineup did not object as he did not want to call unnecessary
attention to the error thus prejudicing defendant. The victim reviewed the lineup and promptly
identified defendant once again as the perpetrator.
-1-
On the first day of trial, anticipating an alibi defense, the prosecutor sought to introduce
testimony to establish that on the morning of the attack, defendant, while in the vicinity of the
victim’s neighborhood broke into another family’s home, fondled their little girl’s breasts and
inquired whether she liked “kinky sex.” Trial counsel objected that this evidence was improper
character evidence and that the probative value of the testimony was substantially outweighed by
the potential for unfair prejudice. The trial court allowed the other acts testimony for purposes of
establishing opportunity and ability.
The jury convicted defendant as charged. Defendant appeals as of right. We affirm.
II. The Corporeal and Pre-Custodial Photographic Lineups
Defendant first takes issue with his pretrial photographic and corporeal lineups, arguing
that the trial court should have excluded evidence of these identifications as being unduly
suggestive. We disagree.
This Court reviews a trial court’s decision to admit evidence for an abuse of discretion.
People v Williams, 240 Mich App 316, 320; 614 NW2d 647 (2000). Such an abuse of
discretionary authority obtains where “an unprejudiced person, considering the facts on which
the trial court acted, would say there was no justification or excuse for the ruling made. Id. To
establish that a trial court abused its discretion in admitting identification evidence, “a defendant
must show that the pretrial identification procedure was so suggestive in light of the totality of
the circumstances that it led to a substantial likelihood of misidentification.” People v Kurylczyk,
443 Mich 289, 302; 505 NW2d 528 (1993). A photo spread is generally not suggestive as long
as photos are fairly representative of a defendant’s physical features and therefore reasonably test
the identification. Id. at 304.
Defendant argues that the photographic lineup procedure was unduly suggestive because
the size of his head in the photograph was larger than others but does not contend that the
photograph was not representative of his physical features. Beyond this mere assertion,
defendant does not otherwise demonstrate how that alone renders his photographic lineup unduly
suggestive. Defendant may not simply state his position, and then leave it us to discover and
rationalize a basis for his claim. People v Griffin, 235 Mich App 27, 45; 597 NW2d 176 (1999).
We find that the trial court did not abuse its discretionary authority by admitting this
identification evidence.
Next, defendant argues that his corporeal lineup was also unduly suggestive because the
prosecutor, in instructing the victim as to the identification procedure, inadvertently asked if the
victim could recognize the number four, which was the defendant’s position . We note that the
victim of this crime was ten years old at the time of the offense, and spoke little English. There
was no evidence to indicate that the prosecutor’s comment was even translated to the victim.
Additionally, evidence adduced at trial suggested that neither the victim nor her interpreter had
any unusual reaction to the prosecutor’s question. Moreover, after the prosecutor’s comment, the
victim was immediately asked if she could recognize other numbers, attempting to minimize the
effect of mentioning the number four. Indeed, everyone present, including defendant’s attorney,
agreed that the comment did not appear to affect the victim. Defendant fails to demonstrate how
the prosecutor’s comment, standing alone, renders his corporeal lineup unduly suggestive and
thus invalid.
-2-
Accordingly, we find the trial court’s decision to admit evidence of the identification did
not constitute an abuse of its discretionary authority.
IV. MRE 404(b) Other Crimes, Wrongs, or Acts
Next, defendant quarrels with the trial court’s decision to admit other acts evidence under
MRE 404(b). The decision whether to admit evidence lies within the trial court’s sound
discretion and will not be disturbed absent an abuse of that discretionary authority. People v
Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998); People v Watson, 245 Mich App 572,
575; 629 NW2d 411 (2001). However, an issue concerning the proper construction of a rule of
evidence presents a question of law which this Court reviews de novo. People v Stevens, 236
Mich App 294, 299; 599 NW2d 789 (1999) rev’d in part on other grounds in People v Stevens,
461 Mich 655; 610 NW2d 881 (2000).
MRE 404(b) is a rule of inclusion, allowing relevant other acts evidence as long as it is
not being admitted solely to demonstrate criminal propensity. People v VanderVliet, 444 Mich
52, 65; 508 NW2d 114 (1993). In People v Sabin (After Remand), 463 Mich 43, 55-56; 614
NW2d 888 (2000), our Supreme Court reaffirmed a four step approach to the admissibility of
other acts evidence initially set forth in VanderVliet:
First, the prosecutor must offer the other acts evidence under something
other than a character to conduct or propensity theory. MRE 404(b). Second, the
evidence must be relevant under MRE 402, as enforced through MRE 104(b), to
an issue of fact or consequence at trial. Third, under MRE 403, a “`determination
must be made whether the danger of undue prejudice [substantially] outweighs
the probative value of the evidence in view of the availability of other means of
proof and other facts appropriate for making decision of this kind under Rule
403.’” (Citations omitted.) Finally, the trial court, upon request, may provide a
limiting instruction under MRE 105. VanderVliet, supra at 74-75.
In the case at bar, two witnesses testified that on the morning before the instant attack,
defendant broke into their house, approached one of the witnesses and fondled her. This event
occurred less than a half-mile from the crime scene. Defendant offered the alibi that he was not
the perpetrator of the charged offense because according to defendant, he was at his house some
miles away from the crime scene when it occurred. The prosecutor, therefore, offered the
evidence to show that defendant was in the vicinity when the crime occurred. Thus, this
testimony addresses a purpose other than defendant’s propensity for committing crimes; it
establishes that defendant had opportunity to commit the offense thus satisfying the first part of
the VanderVliet test.
Regarding the second part of the test, evidence is relevant if it has any tendency to make
the existence of a fact which is of consequence more probable or less probable than it would be
without the evidence. MRE 401; Crawford, supra at 388. In accord with this broad definition,
evidence is admissible if it helps “throw light on” any material point. People v Aldrich, 246
Mich App 101, 114; 631 NW2d 67 (2001). A general denial of guilt places all elements of a
charged offense at issue, regardless of whether any of them are specifically disputed or are
stipulated. Sabin, supra at 60. In this case, the proffered testimony makes it more probable that
defendant was in the area on the morning of the assault than it would be without the testimony.
-3-
Thus, the proffered testimony is relevant for that purpose thus satisfying the second element of
the VanderVliet test.
The third part of the test requires that the probative value of the proffered evidence
outweigh the potential for unfair prejudice. Indeed, “unfair prejudice” does not mean
“damaging.” People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995) mod People v Mills, 450
Mich 1212 (1995) (citation omitted.) Any relevant evidence will be damaging to some extent.
Rather, as our Supreme Court directed, “[e]vidence is unfairly prejudicial where there exists a
danger that marginally probative evidence will be given undue or preemptive weight by the
jury.” Crawford, supra at 398.
In the instant matter, defendant contends that admission of the testimony was so
prejudicial that it effectively deprived him of a fair trial. We disagree. The probative nature of
this evidence prevents it from being characterized as marginal, or insignificant. To be sure,
testimony placing defendant within less than a mile of where the crime occurred has a tendency
to make it more probable that defendant had the ability and opportunity to commit the offense
than it would be without that testimony. A review of the record reveals that any potential
prejudicial effect brought about by this testimony did not substantially outweigh its probative
value especially considering defendant’s alibi defense. In addition, the trial court appropriately
provided a limiting instruction regarding the use of this testimony thus further reducing the
potential for prejudice. Accordingly, we find that the trial court’s decision to allow this evidence
did not constitute an abuse of its discretionary authority.
V. Ineffective Assistance of Counsel
Defendant next contends that the representation of his pretrial and trial counsel amounted
to ineffective assistance of counsel. We disagree.
Pursuant to People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), claims for
ineffective assistance of counsel should be raised by a motion for a new trial or evidentiary
hearing. Since defendant did not procure a ruling by the trial court on this issue, defendant’s
claim for the ineffective assistance of counsel is forfeited save for a review of the existing
record. People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). To set forth a viable
claim for the ineffective assistance of counsel, defendant must establish deficient performance by
counsel and a reasonable probability that but for that deficiency, the result would have been
different. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999) citing People v Johnson, 451
Mich 115; 545 NW2d 637 (1996); Snider, supra at 423-424. Indeed, to prevail on a claim for
the ineffective assistance of counsel, a defendant must overcome the strong presumption that his
attorney’s actions constituted sound trial strategy under the circumstances. People v Toma, 462
Mich 281, 302; 613 NW2d 694 (2000) citing People v Mitchell, 454 Mich 145, 156; 560 NW2d
600 (1997).
Defendant first argues that his legal representation at the pretrial corporeal lineup was
ineffective for counsel’s failure to reposition him within the lineup after the prosecutor’s
comment. Defendant also cites trial counsel’s failure to cross-examine a witness as ineffective
assistance of counsel.
-4-
A review of the record reveals that the prosecution’s case did not solely rely upon the
victim’s identification. Rather, other evidence introduced at trial established that semen samples
removed from the victim’s jeans matched defendant’s DNA, that sperm discovered on the
driver’s seat of defendant’s vehicle and the DNA profile matched defendant, three hairs
discovered in defendant’s car matched reference sample profiles obtained from the victim, and
the victim’s physical injuries were indicative of vaginal penetration. Even assuming, arguendo,
that the lineups did not pass constitutional muster, and trial counsel’s failure to cross examine the
witness was something other than sound trial strategy, on the record here before us, defendant
nevertheless fails to demonstrate the requisite “reasonable probability” that but for those
deficiencies, the jury would have returned a different verdict. Hoag, supra at 6. Accordingly,
we decline to find ineffective assistance of counsel.
IV. The Trial Court’s Upward Departure from the Sentencing Guidelines
Finally, defendant argues the trial court abused its discretion in sentencing by considering
inappropriate factors in departing from the guidelines1. Whether objective and verifiable factors
constitute substantial and compelling reasons to depart from the sentencing guidelines is an
inquiry considered as a matter of law. People v Fields, 448 Mich 58, 78; 528 NW2d 176
(1995). However, we review whether a trial court’s determination that the objective and
verifiable factors present in a particular case constitute substantial and compelling reasons to
depart from the established guidelines for an abuse of discretion. Id.
The sentencing guidelines promulgated by the Legislature only permit a departure when a
trial court has a “substantial and compelling reason for that departure and states on the record the
reasons for departure.” MCL 769.34(3). Moreover, the statute further restricts the trial court’s
ability to depart from the guidelines:
The court shall not base a departure on an offense characteristic or
offender characteristic already taken into account in determining the appropriate
sentence range unless the court finds from the facts contained in the court record,
including the presentence investigation report, that the characteristic has been
given inadequate or disproportionate weight. [MCL 769.34(3)(b).]
This Court has explained the terms “substantially and compelling” as constituting strong
language intended only to exist in exceptional cases. People v Babcock, 244 Mich App 64, 75;
624 NW2d 479 (2000). To that end, the Babcock court continued, “[t]he reasons justifying
departure should ‘keenly’ or ‘irresistibly’ grab our attention, and we should recognize them as
being ‘of considerable worth’ in deciding the length of a sentence.” Id. (Citation omitted.)
During defendant’s sentencing, the trial court identified several different reasons for
departing from the guidelines. First, the trial court stated that the guidelines do not adequately
consider the nature of the attack. As the trial court stated, the victim has been “severely
damaged, and that needs to be taken into account.” The trial court also noted that defendant’s
1
The Sentencing Information Report establishes that the applicable guidelines would be 126 to
315 months’ imprisonment.
-5-
prior felonies contained some of the same elements as the offense for which he now stands
convicted, to wit; breaking into and entering another individual’s home. As a third reason for
departing, the trial court considered the “extraordinary vulnerability of the victim, in that she was
new to this country and unable to communicate with her countrymen in order to get help.”
Moreover, the trial court stated that the guidelines do not adequately consider the offense
committed against one of the witnesses preceding this offense and the seriousness of those
“charges.” Finally, the trial court noted that this crime has made an impact on an immigrant
family and also profoundly affected the community at large. Indeed, parents were afraid to
permit their children to walk to school or stand at the bus stop lest their children experience the
terror of being forcibly abducted and raped.
The objective and verifiable facts cited by the trial court at sentencing “keenly” and
“irresistibly” grab our attention, and are “of considerable worth” in deciding the length of
defendant’s sentence. The terror inflicted upon this community by having one of their children
abducted while waiting for the school bus is, without a doubt, significant and compelling.
Furthermore, the victim’s status as an immigrant and her concomitant inability to effectively
communicate in the English language, along with the profound impact upon the community at
large and the effect on the other parents in the neighborhood are not adequately represented by
the guidelines. Also not represented in the guidelines is the psychological devastation inflicted
upon a ten-year old girl having to learn about sexual intercourse though a forcible rape. See
People v Armstrong, 247 Mich App 423, 425-426; 636 NW2d 785 (2001) (finding that the
sentencing guidelines do not take into consideration the “effect on the victim . . . from having to
learn about sexual matters at such a young age.”).
For these reasons, we also find that the sentence imposed upon defendant was
proportionate to the seriousness of the circumstances surrounding the offense2 and the offender.
To be sure, the substantial and compelling reasons relied upon by the trial court justified this
particular departure, in this particular case, on these particular facts. See People v Hegwood,
465 Mich 432, 437 n 10; 636 NW2d 127 (2001).
Accordingly, upon the record here before us, we find that defendant’s sentence was
proportionate and that the trial court’s determination that the objective and verifiable factors
constituted substantial and compelling reasons in this case to justify an upward departure from
the sentencing guidelines was not an abuse of its discretionary authority. Fields, supra at 78.
Affirmed.
/s/ E.Thomas Fitzgerald
/s/ Kirsten Frank Kelly
2
MCL 750.520b(2) states that first-degree criminal sexual conduct “is a felony punishable by
imprisonment . . . for life or for any term of years.” (Emphasis added.)
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.