PEOPLE OF WARREN V JOSEPH ANTHONY NYILOS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE CITY OF WARREN,
UNPUBLISHED
January 22, 2008
Plaintiff-Appellant/Cross-Appellee,
v
No. 271008
Macomb Circuit Court
LC No. 05-003758-AR
JOSEPH ANTHONY NYILOS,
Defendant-Appellee/CrossAppellant.
Before: Talbot, P.J., and Zahra and Meter, JJ.
PER CURIAM.
Following a district court jury trial, defendant was convicted of misdemeanor stalking, in
violation of City of Warren Ordinances, § 22-44. Defendant appealed his conviction to the
Macomb Circuit Court, which reversed the conviction. Thereafter, this Court granted plaintiff’s
application for leave to appeal. Defendant cross-appeals. We reverse the ruling of the circuit
court and reinstate defendant’s conviction for the reasons set forth in this opinion.
Defendant was convicted of stalking his former girlfriend Jennifer Vogt. Defendant’s
conviction arose out of three incidents in April 2004 when he encountered Vogt leaving her
workplace. According to Vogt, the three incidents at issue were part of a pattern of harassment
perpetrated against her by defendant. After Vogt ended her relationship with defendant in May
2000, she asked defendant to stay away from her. Defendant continued to contact Vogt,
however, forcing her to obtain multiple personal protection orders (PPOs) against him. Vogt
testified that she does not know what to expect from defendant, that he has tried to ruin her
relationships with other men, and that she is afraid he will hurt her. Following his jury trial,
defendant was convicted of misdemeanor stalking. Thereafter, the circuit court reversed the
conviction, finding that the district court abused its discretion in admitting evidence of
defendant’s prior unconsented contact with Vogt. This appeal followed.
Plaintiff argues that the district court properly admitted evidence of defendant’s prior
unconsented contact with Vogt. We agree. We review a trial court’s decision to admit evidence
for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). If the
trial court’s decision results in an outcome within the range of principled outcomes, it has not
abused its discretion. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006);
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
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Pursuant to MRE 404(b), evidence of an individual’s crimes, wrongs, or bad acts is
inadmissible to show a propensity to commit such acts. People v Crawford, 458 Mich 376, 383;
582 NW2d 785 (1998). However, the evidence may 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 . . . .” MRE
404(b)(1). In People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445
Mich 1205 (1994), our Supreme Court clarified the test to determine the admissibility of otheracts evidence:
First, that the evidence be offered for a proper purpose under Rule 404(b);
second, that it be relevant under Rule 402 as enforced through Rule 104(b); third,
that the probative value of the evidence is not substantially outweighed by unfair
prejudice; fourth, that the trial court may, upon request, provide a limiting
instruction to the jury.
MRE 403 provides that even relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice to the defendant. People v Layher,
464 Mich 756, 769; 631 NW2d 281 (2001).
We agree with plaintiff that the challenged evidence was offered for a proper purpose
under MRE 404(b). Plaintiff offered the evidence to show a common scheme, plan, or system.
[E]vidence of similar misconduct is logically relevant to show that the charged act
occurred where the uncharged misconduct and the charged offense are sufficiently
similar to support an inference that they are manifestations of a common plan,
scheme, or system. [People v Sabin (After Remand), 463 Mich 43, 63; 614 NW2d
888 (2000).]
Defendant’s prior unconsented-to contact with Vogt and the contact at issue shared sufficient
common features to infer a plan, scheme, or system with regard to the acts. Defendant
previously contacted Vogt by telephoning her, leaving her letters and gifts, following her in his
vehicle, and appearing at her home and workplace. Defendant contacted Vogt more frequently
after each PPO against him expired. In April 2004, defendant contacted Vogt by appearing near
her workplace in his vehicle. These incidents occurred almost immediately after the third PPO
against defendant expired. It is apparent that the contact at issue fits into defendant’s pattern of
appearing at the places Vogt frequented, especially after the PPOs against him expired. Further,
while defendant’s prior contact with Vogt occurred approximately two years before the incidents
at issue, the “remoteness of an act only affects the weight of the evidence rather than its
admissibility.” People v McGhee, 268 Mich App 600, 611-612; 709 NW2d 595 (2005).
Plaintiff also offered the challenged evidence to show intent.1 Under City of Warren
Ordinances, § 22-44(1)(d), stalking refers to “a willful course of conduct involving repeated or
1
Plaintiff also mentions defendant’s “handiwork” and, in doing so, implies on appeal that the
challenged evidence was admissible to prove identity. We need not reach this issue because
other bases for admitting the evidence were valid and because the district court did not give a
(continued…)
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continuing harassment of another individual” (emphasis added). Defendant raised the issue of
intent or willfulness by testifying that, although Vogt may have seen him driving near her
workplace, he did not intend to make contact with her. The fact that defendant had prior
unconsented contact with Vogt makes it more likely that he intended to make contact with her in
April 2004.
The more often a defendant acts in a particular manner, the less likely it is that the
defendant acted accidentally or innocently, and conversely, the more likely it is
that the defendant’s act is intentional. Where other-acts evidence is offered to
show intent, the acts must only be of the same general category to be relevant.
[McGhee, supra at 611 (internal citation omitted).]
Plaintiff additionally argues that the challenged evidence was relevant. We agree. The
prosecutor initially bears the burden of establishing relevance. People v Knox, 469 Mich 502,
509; 674 NW2d 366 (2004). To be relevant, evidence must be material to a fact of consequence
in the proceedings. People v Ackerman, 257 Mich App 434, 439; 669 NW2d 818 (2003).
Plaintiff offered the challenged evidence to show a common scheme or plan and to show intent,
and, for the reasons indicated above, these were issues of consequence at trial. The evidence was
also relevant to explain why Vogt felt frightened upon seeing defendant in April 2004. Under
City of Warren Ordinances, § 22-44(1)(d), a stalking victim must feel “terrorized, frightened,
intimidated, threatened, harassed, or molested” as a result of the perpetrator’s conduct. Evidence
that defendant’s previous contact with Vogt caused her to fear him and to obtain multiple PPOs
against him explains Vogt’s fear upon seeing defendant near her workplace on the three
occasions at issue.
Further, we agree with plaintiff that the evidence was not unfairly prejudicial to
defendant. “Evidence is unfairly prejudicial when there exists a danger that marginally probative
evidence will be given undue or preemptive weight by the jury.” People v Ortiz, 249 Mich App
297, 306; 642 NW2d 417 (2001). Although the challenged evidence was damaging to
defendant’s position, it was highly probative with regard to issues of consequence at trial.
Moreover, the district court offered cautionary instructions to the jury. The district court
instructed the jury that it must only consider the challenged evidence to determine whether
defendant had a reason to commit the crime, whether he specifically meant to stalk Vogt,
whether he acted purposefully, and whether he used a plan, system or scheme in committing the
crime. The court further cautioned the jury not to convict defendant “because you think he is
guilty of other bad conduct.” The district court’s instructions eliminated any unfair prejudice to
defendant.
The district court did not abuse its discretion in admitting the challenged evidence
because it was offered for a proper purpose, it was relevant, and it was not unduly prejudicial.
Accordingly, we reverse the circuit court’s order and reinstate defendant’s conviction.
(…continued)
jury instruction specifically directing the jurors that they could use the evidence for “identity”
purposes.
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On cross-appeal, defendant argues that the evidence presented at trial was insufficient to
convict him of stalking. We disagree. We review sufficiency of the evidence claims de novo,
determining whether the evidence, viewed in the light most favorable to the prosecution, would
allow a rational trier of fact to find that all the elements of the charged crime have been proven
beyond a reasonable doubt. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999).
City of Warren Ordinances, § 22-44(1)(d), defines stalking as
a willful course of conduct involving repeated or continuing harassment of
another individual that would cause a reasonable person to feel terrorized,
frightened, intimidated, threatened, harassed, or molested, and that actually causes
the victim to feel terrorized, frightened, intimidated, threatened, harassed, or
molested.
The term “course of conduct” refers to “a series of two (2) or more separate noncontinuous acts,
evidencing a continuity of purpose,” and “harassment” means conduct directed toward the
victim, including “repeated or continuing unconsented contact.” § 22-44(1)(a) and (c). The
ordinance defines “unconsented contact” as “any contact with another individual that is initiated
or continued without the individual’s consent, or in disregard of that individual’s expressed
desire that the contact be avoided or discontinued.” § 22-44(1)(e).
Defendant argues that his alleged contact with Vogt did not constitute a “willful course of
conduct.” Specifically, defendant argues that, even if Vogt saw him near her workplace in April
2004, he did not initiate the contact or intend to make contact with her. Because of the difficulty
of “proving an actor’s state of mind, minimal circumstantial evidence is sufficient to sustain a
conclusion that a defendant entertained” the intent to commit the crime. People v Strong, 143
Mich App 442, 452; 372 NW2d 335 (1985). According to Vogt, in April 2004, defendant
stopped his vehicle next to her twice in traffic and then parked across the street from her
workplace. Defendant stared, waved, and shook his head and finger at Vogt.2 This evidence was
sufficient to find that defendant intended to make contact with Vogt. Moreover, as discussed
infra, the fact that defendant had prior unconsented contact with Vogt makes it even more likely
that he intended to make contact with her in April 2004. See McGhee, supra at 611. While
defendant disputes Vogt’s testimony and claims that he did not intend to contact her, questions of
credibility and intent are properly resolved by the trier of fact, to whom we must give deference
on such issues. People v Lemmon, 456 Mich 625, 646-647; 576 NW2d 129 (1998).
Defendant further argues that his alleged contact with Vogt would not cause a reasonable
person to feel terrorized, frightened, intimidated, threatened, harassed, or molested. We agree
with defendant that, viewed in isolation, defendant’s contact with Vogt in April 2004 may not
2
We reject defendant’s argument that the evidence of his staring during the first incident is
untenable because Vogt answered “[n]o” when asked whether she was “looking at [defendant]”
during the time it took for a traffic light to turn green. Just because Vogt was not “looking at”
defendant during this period does necessarily mean that she could not perceive, perhaps with her
peripheral vision, that defendant was staring at her. Moreover, Vogt testified that defendant
could have moved his vehicle forward but instead stopped it alongside her vehicle.
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have caused a reasonable person to suffer any emotional distress. We find, however, that the
incidents at issue should not be viewed in isolation. As discussed infra, defendant’s previous
contact with Vogt caused her to fear him and to obtain multiple PPOs against him. In light of the
history of the parties in this case, a reasonable person could feel harassed simply by seeing the
perpetrator near his or her workplace, staring or waving in his or her direction. Accordingly, we
find that, viewed in the light most favorable to the prosecution, the evidence presented at trial
was sufficient to convict defendant of stalking.
Defendant next argues on cross-appeal that the district court improperly instructed the
jury. We review unpreserved claims of instructional error for plain error affecting a defendant’s
substantial rights. People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499, disapproved of
in part on other grounds 469 Mich 966 (2003). Reversal is warranted only if a plain error
resulted in the conviction of an innocent defendant or “seriously affect[ed] the fairness, integrity,
or public reputation of judicial proceedings, independent of defendant's innocence.” Carines,
supra at 763-764 (internal citation and quotation marks omitted).
First, defendant argues that the district court gave an inadequate intent instruction.
Specifically, defendant argues that the term “willful” in City of Warren Ordinances, § 22-44,
demonstrates that stalking is a specific intent crime and that the district court’s instruction was
inadequate because it did not require a showing of specific intent. We disagree.
The district court instructed the jury that “stalking means a willful course of conduct
involving repeated or continuing harassment of another individual” (emphasis added), in
accordance with City of Warren Ordinances, § 22-44(1)(d). We disagree with defendant that the
term “willful” in City of Warren Ordinances, § 22-44, makes stalking a specific intent crime.
Specific intent crimes require a showing of “a particular criminal intent beyond the act done,”
while general intent crimes merely require a showing of “intent to do the physical act.” People v
Beaudin, 417 Mich 570, 573-574; 339 NW2d 461 (1983). A plain reading of City of Warren
Ordinances, § 22-44(1)(d), demonstrates that the term “willful” modifies the term “course of
conduct.” The inclusion of the term “willful” in the ordinance does not require that the
perpetrator intentionally cause the victim to feel terrorized, frightened, intimidated, threatened,
harassed, or molested, as asserted by defendant; rather, it requires that the perpetrator engage in a
willful or intentional course of conduct that ultimately causes such feelings in the victim.3 Based
on the plain meaning of the ordinance,4 the district court gave an adequate intent instruction.
3
Contrary to defendant’s assertions on appeal, this reading of the statute comports with this
Court’s analyses in People v Maynor, 470 Mich 289, 295-296; 683 NW2d 565 (2004), and
Beaudin, supra at 573-574.
4
As noted in Maynor, supra at 295:
When construing a statute, this Court's goal is to give effect to the intent of
the Legislature. We begin by construing the language of the statute itself. Where
the language is unambiguous, we give the words their plain meaning and apply
the statute as written.
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Second, defendant argues that the district court improperly instructed the jury regarding
his prior unconsented contact with Vogt. We agree. The district court recited the standard jury
instruction regarding evidence of other offenses, CJI2d 4.11, with the exception of one
statement. The district court instructed the jury that it “must decide” that defendant is a bad
person based on the evidence of his prior bad acts. It is apparent, however, that the court made
the challenged statement unintentionally and that it intended to instruct the jury that it “must not
decide” that defendant is a bad person, as is stated in CJI2d 4.11.
Nevertheless, we find that the district court did not commit outcome-determinative error
warranting reversal. We examine instructions in their entirety, and if the instructions adequately
protected the defendant’s rights by fairly presenting the issues to the jury, there is no basis for
reversal. People v Martin, 271 Mich App 280, 337-338; 721 NW2d 815 (2006). The defendant
bears the burden of establishing error requiring reversal. People v Bartlett, 231 Mich App 139,
144; 585 NW2d 341 (1998). The standard instruction given by the district court clearly stated
that the jury should only consider evidence of defendant’s prior bad acts for limited purposes and
that it must only convict defendant if it found that he committed the alleged crime beyond a
reasonable doubt. The court additionally stated, “You must not convict the defendant here
because you think he is guilty of other bad conduct.” There is no evidence that that the district
court’s single misstatement misled or confused the jury. The prosecutor stating in his opening
statement, “the Judge is gonna instruct you that you can’t consider this to show that . . .
defendant . . . is a bad person or that he’s likely to commit the crime.” He made a similar
statement during closing arguments. We conclude that all of the issues in the case, and the rules
applicable to each issue, were adequately presented to the jury and that, viewed in their entirety,
the jury instructions adequately protected defendant’s rights and fairly presented the issues to be
tried.
Defendant next argues on cross-appeal that the district court abused its discretion in
refusing to admit a videotape depicting he and Vogt engaged in sexual intercourse. The decision
whether to admit or exclude evidence is within the discretion of the trial court and will not be
disturbed on appeal absent an abuse of discretion. Lukity, supra at 484.
Defendant asserts, and plaintiff concedes, that the district court erred in finding that the
videotape could not be authenticated. We agree. Under MRE 901(a), authentication requires
“evidence sufficient to support a finding that the matter in question is what its proponent claims.”
MRE 901(b)(1) provides, by way of illustration, that authentication may be met through
testimony of a witness with knowledge that “a matter is what it is claimed to be.” This Court has
held that a videotape may be authenticated by a person who was present at the time it was made.
See People v Hack, 219 Mich App 299, 308-310; 556 NW2d 187 (1996). Here, both defendant
and Vogt were present when the videotape was made and could have authenticated it.
Nonetheless, we find that the district court did not abuse its discretion in excluding the
videotape. Generally, all relevant evidence is admissible. MRE 402; Crawford, supra at 388.
Evidence is relevant if it has a tendency to make the existence of a fact of consequence more or
less probable. MRE 401. Even if evidence is otherwise admissible, it may be excluded 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.” MRE 403.
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The district court was correct in finding the contents of the videotape irrelevant. The
parties agreed that the videotape depicted Vogt and defendant engaged in consensual sexual
intercourse and that nothing on the videotape indicated when it was made. Vogt testified that she
and defendant made the videotape while they were dating. On the other hand, defendant testified
that they made the videotape while Vogt had a PPO against him. Clearly, the only dispute about
the videotape was the date that it was made; it was undisputed that Vogt previously dated
defendant and engaged in consensual sexual activities with him. The crucial question at trial was
when Vogt consented to contact with defendant. Admitting the videotape would not help to
resolve this question. Furthermore, defendant cannot establish that the exclusion of the
videotape was outcome-determinative. Lukity, supra at 495-496; People v McLaughlin, 258
Mich App 635, 650; 672 NW2d 860 (2003).
Defendant finally argues on cross-appeal that the district court erred in denying his
request for a pretrial evidentiary hearing. We disagree. We review a trial court’s decision
whether to hold an evidentiary hearing for an abuse of discretion. See People v Mischley, 164
Mich App 478, 482; 417 NW2d 537 (1987). We review questions of law de novo on appeal.
People v Hill, 269 Mich App 505, 514; 715 NW2d 301 (2006).
We agree with plaintiff that defendant’s request for an evidentiary hearing was, for all
intents and purposes, a request for a preliminary examination. “The primary function of a
preliminary examination is to determine whether a crime has been committed and, if so, if there
is probable cause to believe that the defendant committed it.” People v Glass (After Remand),
464 Mich 266, 277; 627 NW2d 261 (2001); see also Hill, supra at 514. Preliminary
examinations serve the public policy of ceasing judicial proceedings when there is a lack of
evidence and they help to satisfy the constitutional requirement that the defendant be informed of
the nature of the accusation against him. People v Hunt, 442 Mich 359, 362; 501 NW2d 151
(1993); People v McGee, 258 Mich App 683, 696; 672 NW2d 191 (2003). Defendant requested
that the district court hold a pretrial hearing to determine whether probable cause existed to issue
the complaint. Defendant argued that there was insufficient evidence to establish that the alleged
crime occurred and that he was the person who committed the crime. It is clear that defendant
requested an “evidentiary hearing” for the same purpose that a preliminary examination is held.
Because it is apparent from the record that defendant’s request for an evidentiary hearing
was equivalent to a request for a preliminary examination, we find that the district court properly
denied defendant’s request for the hearing. Pursuant to MCL 600.8311(d), a district court has
jurisdiction to conduct preliminary examinations for “felony cases and misdemeanor cases not
cognizable by the district court,” but it must not conduct preliminary examinations for “any
misdemeanor to be tried in a district court.” In this case, defendant was charged with
misdemeanor stalking, punishable by up to 90 days in jail, and was tried in the district court.
Therefore, the district court lacked the jurisdiction to conduct a preliminary examination in this
case and properly denied defendant’s request for the pretrial hearing.
We reverse the circuit court’s order and remand for entry of an order reinstating
defendant’s conviction and sentence. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Brian K. Zahra
/s/ Patrick M. Meter
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