PEOPLE OF MI V BOBBY WAYNE HODGES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 2, 2009
Plaintiff-Appellee,
v
No. 280077
Lenawee Circuit Court
LC No. 2006-012777-FH
BOBBY WAYNE HODGES,
Defendant-Appellant.
Before: Servitto, P.J., and Owens and K. F. Kelly, JJ.
Servitto, J. (dissenting).
I respectfully dissent as to the majority’s conclusion that the trial court did not abuse its
discretion in the admission of “other acts” evidence pursuant to MRE 404(b).
Evidence of a criminal defendant's prior bad acts is generally not admissible at trial in
order to ensure that the defendant is afforded a fair trial based on the evidence, rather than on his
prior actions. People v Starr, 457 Mich 490, 577 NW2d 673 (1998). To that end, “evidence of
other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.” MRE 404(b)(1). However, other acts 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. . .” To be admissible under MRE 404(b), other acts evidence must satisfy three
requirements: (1) the evidence must be offered for a proper purpose; (2) the evidence must be
relevant; and (3) the probative value of the evidence must not be substantially outweighed by
unfair prejudice. People v Kahley, 277 Mich App 182, 184-185; 744 NW2d 194, 196-197
(2007). Evidence 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 Hine, 467 Mich 242, 251; 650 NW2d 659 (2002).
As our Supreme Court noted in People v Crawford, 458 Mich 376, 387-388; 582 NW2d
785 (1998), a common problem in MRE 404(b) cases is the trial courts' tendency to admit the
prior misconduct evidence merely because it has been “offered” for one of the rule's enumerated
proper purposes. However:
Mechanical recitation of “knowledge, intent, absence of mistake, etc.,” without
explaining how the evidence relates to the recited purposes, is insufficient to justify
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admission under MRE 404(b). If it were, the prosecutor could routinely admit character
evidence by simply calling it something else. Relevance is not an inherent characteristic,
nor are prior bad acts intrinsically relevant to “motive, opportunity, intent, preparation,
plan,” etc. Relevance is a relationship between the evidence and a material fact at issue
that must be demonstrated by reasonable inferences that make a material fact at issue
more probable or less probable than it would be without the evidence. In order to ensure
the defendant's right to a fair trial, courts must vigilantly weed out character evidence that
is disguised as something else. The logical relationship between the proffered evidence
and the ultimate fact sought to be proven must be closely scrutinized. Id. (internal
citations omitted).
In People v VanderVliet, 444 Mich 52, 90-91; 508 NW2d 114 (1993), our Supreme Court
strongly encouraged trial courts to utilize a flexible approach for determining admissibility to
facilitate the informed exercise of their discretion under MRE 403:
The probative value of other acts evidence and its true potential for prejudice is
often unclear until the proofs are actually presented. Other acts evidence relevant
to elements technically at issue because of a not guilty plea may initially have
only marginal probative value in comparison to the potential prejudice generated
by the evidence. Where, for example, the real issue contested is whether the act
was committed, and the prosecution's claim is that the disputed issue of mens rea
requires admission of other acts evidence in the case in chief, the trial court
should defer the ruling on admissibility where the jury would be likely to
determine criminal state of mind from the doing of the act, allowing admission in
the case in chief only if the evidence of other acts meets the standards for
admission as proof of actus reus. . . The ultimate goal is an enlightened basis for
the trial court's conclusion of relevance and for the attendant inquiry under MRE
403.
Here, the prosecutor sought to introduce evidence of a sexual assault allegedly
perpetrated by defendant that occurred two weeks after the incident at issue for the stated
purpose of establishing lack of mistake, method of operation, and to refute a defense of consent,
if offered. The trial court ruled that the evidence was admissible, prior to trial and without the
benefit of an evidentiary hearing or witness testimony, “to show an absence of mistake or
accident, to show intent . . .”, i.e., finding that the evidence was offered for a proper purpose and
was relevant to that purpose.1 I disagree.
In the instant offense, defendant was a friend of the complaining witness’ long-term
boyfriend and had regularly spent time with the complaining witness and her boyfriend for
approximately one year prior to the alleged assault. On the night of the alleged assault, all three,
1
When the trial court ruled that the evidence would be admitted, there was no DNA evidence or
witness testimony to establish that the Traverse City assailant was the defendant.
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plus a friend of the complaining witness, spent the night at a campground after watching
NASCAR races at a racetrack. According to the complaining witness, they had been drinking
throughout the day, but she had stopped relatively early and was fairly sober by the end of the
evening. At some point that night defendant entered the tent they were all to share, by himself,
and fell asleep in one section of the three-section tent. The complaining witness and her
boyfriend stayed up for awhile longer, then eventually entered the tent and fell asleep together on
an air mattress in another section of the tent. The complaining witness testified she awoke to
pain in her vaginal area and found defendant on top of her, allegedly attempting to penetrate her.
The complaining witness testified she said “ow” and defendant rolled off of her and onto the air
mattress. The complaining witness then woke her boyfriend, who was still sleeping next to her
and advised him of what had transpired.
The “other acts” evidence admitted at trial also involved a sexual assault on one of the
defendant’s friends’ girlfriends. That, however, appears to be the extent of the similarities
between the two events. Prior to this assault, defendant, along with a group of friends were
traveling from bar to bar during a festival in Traverse City. With the group of friends was the
girlfriend of one of defendant’s friends; a woman defendant had never previously met. The
woman became highly intoxicated and passed out during a car ride to one of the friend’s home.
When they arrived at the home, the woman went to a bedroom and ended up sleeping there,
alone. According to the woman, she awoke in the early morning hours lying on her stomach and
being penetrated from behind. A bed sheet was held over the woman’s head and the assailant
physically held her down on the bed while the assault occurred. The woman did not see who the
assailant was, nor did she hear his voice.
While the majority found that the events were similar and could establish method of
operation or intent, I do not believe that the fact that alleged sexual assaults occurred after nights
of drinking renders the events similar. The alleged assault in the instant matter concerned a
woman that defendant knew well and spent a relatively significant amount of time with, whereas
the other incident involved a woman defendant had just met. The complaining witness in the
instant matter indicated that she was nearly sober by the time she went to bed and could recall
how the evening progressed, whereas the victim in the Traverse City assault was completely
inebriated and could remember little about the night. The complaining witness in the instant
matter was in the same tent as her boyfriend, and was next to her boyfriend on the same air
mattress when the alleged assault occurred, whereas the victim in the Traverse City assault was
completely alone in a bedroom. In the instant matter, it is alleged that defendant made no effort
to conceal his appearance and, when the complaining witness awoke and made an indication of
pain, quickly rolled off her. The victim in the Traverse City assault, however, was prevented
from seeing her assailant by a sheet held over her head and was physically restrained while the
assault occurred. The facts of the Traverse City assault do not bear out the prosecutor’s
contention that defendant intended to sexually assault the complaining witness in the instant
matter or that the alleged sexual assault was not the product of mistake or accident. Thus, the
allegations of a later sexual assault by defendant were mere character evidence masquerading as
evidence of “intent.”
The majority indicated that the offered evidence “made defendant’s theory that the
contact in the instant case was accidental less probable.” However, defendant’s defense was not
that the instant matter occurred by accident but that the instant matter never occurred. The
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plausibility of this defense was to be determined by the jury on the basis of its assessment of the
credibility of the witnesses. Defendant’s counsel did indicate that the complaining witness may
have rolled over toward defendant while they were sleeping on the airbed because of the weight
difference and defendant did state that he might have accidentally bumped into the complaining
witness while they were sleeping. However, these statements do not rise to the level of an
assertion by the defendant that the removal of the complaining witness’ pants while she slept or
that the attempted penetration of her vagina occurred by accident or mistake. Defendant, in fact,
consistently denied that any sexual contact occurred. Whether defendant sexually touched the
complaining witness by mistake, then, was not a contested issue at trial. The “other acts”
evidence was not offered for the otherwise proper purpose of establishing absence of mistake or
accident as set forth in MRE 404(b)(1). This evidence was clearly offered for the purpose of
proving propensity or “action in conformity therewith”, and should have been excluded.
Moreover, because the prosecutor failed to demonstrate that the evidence concerning the
Traverse City assault created an intermediate inference that was probative of a contested issue in
the instant matter, the evidence was not relevant.
Even if I was convinced the evidence was offered for a proper purpose and was relevant,
the unfair prejudice of this evidence substantially outweighed its probative value. 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 Crawford, supra, at 398.
In the context of prior bad acts, that danger is prevalent. When a juror learns that a
defendant has previously committed the same crime as that for which he is on
trial, the risk is severe that the juror will use the evidence precisely for the
purpose that it may not be considered, that is, as suggesting that the defendant is a
bad person, a convicted criminal, and that if he “did it before he probably did it
again.” Because prior acts evidence carries with it a high risk of confusion and
misuse, there is a heightened need for the careful application of the principles set
forth in MRE 403. Id. (internal citations omitted).
In this matter, the admittance of the “other acts” evidence resulted in a trialwithin-a-trial. Four out of the prosecution’s nine witnesses testified concerning the other
act, as did four out of defendant’s nine witnesses. A rather large portion of defendant’s
trial, then, focused on the “other bad act” and disclosed vivid, disputed details of the
Traverse City act. Where other bad acts evidence nearly overwhelms the trial on the
charged act, the risk of confusion and undue emphasis cannot be anything but
extraordinarily high. This is particularly so in the instant matter, where the prosecution
presented a single DNA expert who, on direct examination discussed the DNA analysis
she performed with respect to both cases. In the instant matter, no DNA evidence linked
defendant to the complaining witness, whereas in the Traverse City matter, there was
such a link.2 The expert was questioned about and skipped back and forth between the
two acts throughout her testimony, creating a high risk of confusion for the jury.
2
As indicated previously, the Traverse City DNA test results were unknown to the trial court at
the time of the ruling on the admissibility of the “other acts” evidence. Furthermore, there is
(continued…)
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As noted in People v Allen, 429 Mich 558, 569; 420 NW2d 499 (1988), the
appetite for more knowledge of a defendant’s background:
. . . presents three types of impropriety. First, that jurors may determine that
although defendant's guilt in the case before them is in doubt, he is a bad man and
should therefore be punished. Second, the character evidence may lead the jury to
lower the burden of proof against the defendant, since, even if the guilty verdict is
incorrect, no “innocent” man will be forced to endure punishment. Third, the jury
may determine that on the basis of his prior actions, the defendant has a
propensity to commit crimes, and therefore he probably is guilty of the crime with
which he is charged . . . The danger then is that a jury will misuse prior conviction
evidence by focusing on the defendant's general bad character, rather than solely
on his character for truthtelling.
Given that the Traverse City assault involved what could be considered a more violent
assault than alleged in the instant matter (the Traverse City assault being a physically
forceful assault having been perpetrated on an incapacitated woman where the assailant
concealed his identity), I cannot help but conclude that the jury gave preemptive weight
to the Traverse City assault in convicting defendant. I am convinced that the very
improprieties warned of in People v Allen, supra, occurred in this matter. The “other
acts” evidence was unfairly prejudicial and the prejudice substantially outweighed any
probative value the evidence may have had.
While the jury was given a limiting instruction concerning this evidence, I do not
believe the instruction could possibly remove or minimize the unfair prejudice of the
evidence. Limiting instructions are generally employed where more than one fact may be
derived from a given piece of evidence, but not all are permissible considerations. People
v Allen, 429 Mich 558, 573-574; 420 NW2d 499 (1988).
This is not always easy for a jury to do, but we must sometimes rely on limiting
instructions if our system is to function. However, . . .in the case of most prior conviction
evidence the permissible consideration can only be understood by first recognizing the
impermissible consideration. Where the two factors are so inextricably linked, we do not
believe that a jury can be reasonably expected to follow the instruction. Id.
As further noted in People v Allen, supra, at 572, quoting Bruton v United States, 391 US 123,
135; 88 SCt 1620; 20 LEd2d 476 (1968), “there are some contexts in which the risk that the jury
will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the
defendant, that the practical and human limitations of the jury system cannot be ignored.”
I believe that we are presented with such an exceptional circumstance. The jury having
heard an overwhelming amount of evidence concerning defendant’s alleged violent assault on an
incapacitated woman in Traverse City, I do not believe that they could simply block the evidence
(…continued)
nothing in the lower court record to indicate that the defendant was ever tried or convicted in the
Traverse City matter.
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from their minds for impermissible purposes, while employing it for another, permissible
purpose. Finally, I believe the error in the admission of evidence was outcome determinative
and thus not harmless. People v Knapp, 244 Mich App 361, 378; 624 NW2d 227 (2001). I
would therefore reverse and remand for a new trial. I agree with the majority’s conclusions as to
the remainder of the issues addressed in this appeal.
/s/ Deborah A. Servitto
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