PEOPLE OF MI V THOMAS FRANK HAWKINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 15, 2008
Plaintiff-Appellee,
v
No. 273409
Mescota Circuit Court
LC No. 05-005631-FC
THOMAS FRANK HAWKINS,
Defendant-Appellant.
Before: Davis, P.J., and Murphy and White, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree criminal sexual conduct, second
offense, for sexually assaulting his then-girlfriend’s eleven-year-old daughter, with whom
defendant lived at the time. MCL 750.520b(1)(a); MCL 750.520f. The victim testified at trial,
as did two other prior victims of defendant, who testified to sexual assaults defendant committed
on them while they were aged thirteen or younger. The trial court departed upward from the
sentencing guidelines and sentenced defendant as a third habitual offender, MCL 769.11, to 25 to
50 years’ imprisonment, with credit for 324 days served. Defendant appeals his conviction and
sentence as of right. We affirm.
The testimony of defendant’s prior victims was admitted pursuant to MCL 768.27a,
which provides in relevant part that if “the defendant is accused of committing a listed offense
against a minor, evidence that the defendant committed another listed offense against a minor is
admissible and may be considered for its bearing on any matter to which it is relevant.” It is
undisputed that all of the sexual assaults at issue are “listed offenses” within the meaning of
MCL 768.27a. Defendant primarily contends that the prior assaults were inadmissible under
MRE 403 because the danger of unfair prejudice substantially outweighs its probative value, and
the evidence is also inadmissible under MRE 404(b) because it is primarily being admitted to
show character and propensity.
We review a trial court’s decision whether to admit evidence for an abuse of discretion
except to the extent that decision involves a question of law, such as interpreting a statute or
evidentiary rule; we review questions of law de novo. People v Pattison, 276 Mich App 613,
615; 741 NW2d 558 (2007). This Court has unambiguously explained that MCL 768.27a is a
substantive evidentiary rule that the Legislature was constitutionally permitted to enact without
violating the doctrine of separation of powers. Pattison, supra at 619-620. As a substantive rule,
it prevails over a court rule where the statute and court rule conflict. People v Watkins, ___ Mich
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App ___; ___ NW2d ___ (Docket No. 277905, published December 13, 2007), slip op at 3.
Moreover, MCL 768.27a is not an unconstitutional ex post facto law because it neither
criminalizes an act that was not criminal at the time, nor does it reduce the evidentiary
requirements necessary to convict a defendant of any crime. See Pattison, supra at 618-619; see
also People v Dolph-Hostetter, 256 Mich App 587; 664 NW2d 254 (2003). The trial court
properly relied on MCL 768.27a in admitting the evidence of defendant’s prior sexually
assaultive acts. See Watkins, supra, slip op at 4.
Nevertheless, even under MCL 768.27a, the courts are still obligated to “take seriously
their responsibility to weigh the probative value of the evidence against its undue prejudicial
effect in each case,” MRE 403; and MCL 768.27a itself reiterates the prohibition against
evidence that is irrelevant. MRE 402. See Pattison, supra at 621. We find no abuse of
discretion in the trial court’s weighing of the evidence in this case. The evidence was highly
probative to show defendant’s tendency1 to forcibly sexually assault adolescent girls who were
living with him or who were in some way opportunistically under his control, as well as his
tendency to use threats or violence to induce his victims not to disclose the assaults. The fact
that some of the assaults were long in the past is actually more probative of this tendency, and
we do not find that the dissimilarities in some of the assaults take them outside the range of
principled evidentiary rulings. The trial court properly admitted the testimony from defendant’s
other victims.
Defendant also contends that the trial court impermissibly departed upward from the
sentencing guidelines. We disagree. A departure from the sentencing guidelines requires the
trial court to place on the record substantial and compelling reasons for doing so, and those
reasons must be objective and verifiable. People v Babcock, 469 Mich 247, 265; 666 NW2d 231
(2003); People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003). We review the
existence of a particular finding for clear error, and we review de novo whether it is objective
and verifiable. Id.
The trial court departed here on the basis of defendant’s threat to kill his victim after
assaulting her and on the basis of defendant’s prior violent sexual assaults. Both factors were
facts clearly in evidence; they are therefore both objective and verifiable. We agree with the trial
court that they “keenly and irresistibly grab our attention” and are “of considerable worth in
deciding the length of a sentence.” Babcock, supra at 257 (citations and internal quotation marks
omitted). Furthermore, it is proper for a trial court to determine that a sentence within the
guidelines range is inadequate based on related offenses in evidence. See People v Hicks, 259
Mich App 518, 535-537; 675 NW2d 599 (2003).
Defendant argues, however, that his threat was already taken into account by the
sentencing guidelines under Offense Variable (OV) 19, MCL 777.49(b) (force or threat to
interfere with administration of justice). “[A] court may not base a departure on an offense
characteristic or offender characteristic already taken into account in determining the appropriate
1
As discussed, because MCL 768.27a controls, defendant’s argument that this constitutes
character evidence inadmissible under MRE 404(b) is inapposite in this case.
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sentence range, unless the court finds from the facts in the court record that the characteristic has
been given inadequate or disproportionate weight.” Abramski, supra at 74. OV 19 encompasses
defendant’s threat to kill the victim. See People v Endres, 269 Mich App 414, 421-422; 711
NW2d 398 (2006). Nevertheless, the trial court was permitted to find that OV 19 does not
adequately account for the egregiousness of the threat here, where defendant threatened an
eleven-year-old girl over whom he was in a position of power with death after violently sexually
assaulting her. The trial court’s upward departure, on the basis of defendant’s prior sexual
assaults and on the basis of the threat of death immediately after a forcible sexual assault, was
proper in this case.
Affirmed.
/s/ Alton T. Davis
/s/ William B. Murphy
/s/ Helene N. White
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