PEOPLE OF MI V SCOTT PHILIP LARKIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 29, 2010
Plaintiff-Appellee,
v
No. 291721
Lapeer Circuit Court
LC No. 08-009736-FH
SCOTT PHILIP LARKIN,
Defendant-Appellant.
Before: ZAHRA, P.J., and CAVANAGH and FITZGERALD, JJ.
PER CURIAM.
Defendant was found guilty by a jury of breaking or entering a vehicle causing damage,
MCL 750.356a(3), and was sentenced as a fourth habitual offender, MCL 769.12, to 2-½ to 10
years’ imprisonment. He appeals as of right. We affirm.
Defendant was convicted of the April 2008 breaking and entry of a Jeep Grand Cherokee
and the theft of a purse from inside. The Jeep was owned by an employee of the Lapeer
Regional Hospital and was parked in the employee area of the hospital parking lot. Surveillance
tape from a security camera that continually panned the parking lot showed defendant and his
pickup truck next to the Jeep but did not capture the Jeep’s window being smashed or the purse
being taken. During the investigation of the B&E, it was discovered that defendant worked at a
local auto parts business. When questioned about the incident, defendant acknowledged being
the one on the videotape but claimed he was in the parking lot to ask directions while making a
delivery. The stolen purse was discovered the next day in the dumpster of a business that was
along the route of defendant’s deliveries.
At trial, a retired Michigan State Police trooper testified, as permitted by the ruling of the
trial court at a pretrial hearing, regarding other similar acts involving defendant. Specifically, the
trooper testified about numerous incidents in 2002 in which defendant used a steel punch to
smash the windows of vehicles that were parked in “out of the way places” and took purses or
other items from inside. The purses were normally discarded near the sites of the B&Es but with
the money or ATM cards missing. With the trial court’s permission, the prosecutor also read
redacted portions of a transcript in which defendant pleaded guilty to a vehicle B&E. But the
court prohibited the prosecutor from introducing evidence of a 1982 vehicle B&E in which a
stereo and speakers were stolen. The trial court instructed the jury on the charged offense and
provided a limiting instruction concerning the other acts evidence.
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On appeal, defendant first argues that the prosecution did not present sufficient evidence
to satisfy the due process standard of proving his guilt beyond a reasonable doubt of breaking or
entering a vehicle causing damage, MCL 750.356a(3). We disagree.
In a claim concerning sufficiency of the evidence, this Court reviews de novo the
evidence in the light most favorable to the prosecution to determine whether a rational trier of
fact could find the defendant guilty beyond a reasonable doubt. People v Hardiman, 466 Mich
417, 420-421; 646 NW2d 158 (2002); People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748,
amended on other grounds by 441 Mich 1201 (1992).
Satisfactory proof of the elements of the crime can be shown by circumstantial evidence,
and the reasonable inferences arising from that evidence. People v Carines, 460 Mich 750, 757;
597 NW2d 130 (1999). It is for the trier of fact to determine what inferences fairly can be drawn
from the evidence and the weight to be accorded to those inferences. Hardiman, 466 Mich at
428. The jury may make its decision on inferences based on the facts presented. Id. An
inference may be properly based on another inference so long as the inferences remain
reasonable. Id. at 425-428. The “rule is not that an inference, no matter how reasonable, is to be
rejected if it, in turn, depends upon another reasonable inference; rather the question is merely
whether the total evidence, including reasonable inferences, when put together is sufficient to
warrant a jury to conclude that defendant is guilty beyond a reasonable doubt.” Id. at 425-426,
quoting Dirring v United States, 328 F2d 512, 515 (CA 1, 1964).
Defendant argues there was insufficient proof, even when the evidence is viewed in a
light most favorable to the prosecution, to permit the jury to conclude beyond a reasonable doubt
that he was the one who broke into the Jeep and stole the purse from inside. The thrust of
defendant’s argument is that his mere presence in the vicinity of the crime scene does not amount
to sufficient evidence that he committed the crime, especially since there was no evidence as to
when the crime occurred. We hold, however, that the series of still photographs taken from a
video surveillance camera provided ample circumstantial evidence that defendant was the
perpetrator of the crime. Defendant admitted to being the person near the Jeep in the photos. No
other persons were seen in the immediate area of the break-in. Taken in sequence, the
surveillance photos showed (1) defendant’s truck parked north of the Jeep and defendant
standing near the passenger side of the Jeep, (2) defendant past the Jeep and moving toward his
truck, (3) the truck parked directly in front of the Jeep with the driver’s door open and defendant
again at the passenger side of the Jeep, facing the truck, and (4) defendant near the open door of
the truck. A fifth photo showed the location of the hospital in relation to the places defendant
made deliveries on April 16, 2008, as well as the location of the business where the purse was
found in a dumpster. As the prosecution noted, those locations were in a geographic line with
each other and the auto parts dealer that employed defendant. Although there was no direct
evidence of defendant’s involvement in the B&E, such as fingerprints, the photos permitted a
reasonable inference that he had the opportunity to smash the Jeep’s window and remove the
purse. Hardiman, 466 Mich at 422, 430. Because the jury could “reasonably draw the
inferences that it did,” the evidence, considered with those inferences, was “sufficient to
establish defendant’s guilt beyond a reasonable doubt.” Id. at 430-431. And even though the
police did not interview any construction workers who were in a different area of the parking lot,
“the prosecution need not negate every reasonable theory consistent with the defendant’s
innocence, but merely introduce evidence sufficient to convince a reasonable jury in the face of
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whatever contradictory evidence the defendant may provide.” People v Nimeth, 236 Mich App
616, 623; 601 NW2d 393 (1999).
Finally, the “bad acts” evidence permitted under MRE 404(b), which showed that
defendant acted in accordance with past practices or schemes used in similar B&Es, provided
further evidence to support his conviction.1 Evidence of defendant’s other bad acts, when taken
in conjunction with the surveillance photos and testimony by witnesses with respect to his
activities on the day of the incident, was sufficient to permit the jury to conclude beyond a
reasonable doubt that defendant committed the instant B&E. Hardiman, 466 Mich at 429.
Defendant next argues that the trial court reversibly erred in admitting evidence of his
prior bad acts under MRE 404(b). We disagree.
This Court reviews the trial court’s admission of prior acts evidence under MRE 404(b)
for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). The
Court will reverse the defendant’s conviction only when there has been a clear abuse of that
discretion. People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998); People v McGhee,
268 Mich App 600, 609; 709 NW2d 595 (2005). “However, decisions regarding the admission
of evidence frequently involve preliminary questions of law, e.g., whether a rule of evidence or
statute precludes admissibility of the evidence. This Court reviews questions of law de novo.”
Lukity, 460 Mich at 488.
MRE 404(b)(1) sets forth the standards for the admission of other acts evidence and
provides as follows:
Evidence of other crimes, wrong, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, 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, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
In People v VanderVliet, 444 Mich 52, 65; 508 NW2d 114 (1993), amended 445 Mich
1205 (1994), our Supreme Court held that, in general, MRE 404(b) is a rule of inclusion, and
“prior bad acts” are only excluded from evidence if “offered solely to show the criminal
propensity of an individual to establish that he acted in conformity therewith.” To be admissible,
the evidence must (1) be offered for a proper purpose, (2) be relevant, and (3) “its probative
value must not be substantially outweighed by its potential for unfair prejudice. A proper
purpose is one other than establishing the defendant’s character to show his propensity to commit
the offense.” People v Magyar, 250 Mich App 408, 413-414; 648 NW2d 215 (2002), citing
VanderVliet, 444 Mich at 74-75.
1
As discussed infra, admission of this evidence was proper under MRE 404(b).
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In the instant case, the prosecutor sought permission at the pretrial hearing to admit
evidence of (1) a 1982 matter in which defendant had pleaded guilty to breaking or entering into
a vehicle for the purpose of stealing a stereo and speakers, (2) a series of vehicle break-ins in
2002 for which defendant was currently on parole, and (3) a transcript of defendant’s guilty plea
related to one of the 2002 incidents. The prosecutor stated that a police trooper had investigated
possibly hundreds of different B&Es from automobiles involving defendant and, although the
trooper would not be asked to testify to all of the investigations, the prosecutor wanted to admit
evidence of several incidents for the purpose of showing a common scheme or plan. The trial
court ruled to allow evidence of the 2002 vehicle B&Es as well as a redacted version of the
guilty plea transcript, but excluded evidence of the 1982 vehicle B&E.
Defendant argues that the type of crime at issue and the methods allegedly used by him in
the past were too common to establish a scheme or plan and were not “unusual” enough to
establish a “signature” that would identify him as the perpetrator of the charged crime.
Defendant pleaded not guilty to the charged offense, thus putting all of the elements of the crime,
including the question of the identity of the perpetrator, at issue. Crawford, 458 Mich at 389;
VanderVliet, 444 Mich at 78; People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976)
(holding that identity is an “essential element” of a criminal prosecution). The identity of the
perpetrator may be inferred through a common scheme, plan, or intent, or “modus operandi.”
VanderVliet, 444 Mich at 66-67. Under these circumstances, “the jury focuses on the
defendant’s modus, not predisposition, to infer that the same person committed both acts.” Id. at
67 n 18. Because defendant was not seen breaking the window of the Jeep or holding the purse,
nor was the purse or any of its contents found with defendant, the identity of the perpetrator was
at issue in the case, making evidence of defendant’s prior acts highly probative.
VanderVliet supplanted the test set forth in People v Golochowicz, 413 Mich 298, 308309; 319 NW2d 518 (1982), for admissibility of evidence under MRE 404(b), although this
Court has held that the Golochowicz test remains valid when a prosecutor seeks to introduce
evidence of other acts to show identification through modus operandi. People v Smith, 243 Mich
App 657, 670; 625 NW2d 46 (2000); People v Ho, 231 Mich App 178, 186; 585 NW2d 357
(1998). Golochowicz set forth the “general rule” that
if the evidence of the accused’s identity as the perpetrator of the crime in question
is strong or essentially uncontroverted, there is no need for evidence of other
crimes to prove identity, which evidence is only circumstantial at best. On the
other hand, if evidence of the identity of the criminal actor is weak and tenuous,
revelation that he has committed an unrelated similar crime may, by reason of its
tendency to distract the jury from the identification issue, tempt it to compromise
or ignore that critical element of the case while focusing on the clearer proof of
the defendant’s other misconduct. The dangerous result may well be, and indeed
is likely to be, the jury’s conclusion that whatever the strength of the
identification evidence in the case, the defendant is demonstrably a bad person
and should be imprisoned anyway.
It is, at least in part, for those reasons that the trial court, when similar-acts
evidence is offered to prove identity, should insist upon a showing of a high
degree of similarity in the manner in which the crime in issue and the other crimes
were committed. [Id. at 325 (emphasis in original).]
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Later cases acknowledge, however, that VanderVliet modified the “high degree of similarity”
standard for other acts evidence. “[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).
See, also, People v Knox, 469 Mich 502, 511; 674 NW2d 366 (2004) (rejecting an interpretation
of Sabin that “would have required an impermissibly high level of similarity between the
proffered other acts evidence and the charged acts”).
In the case at bar, there was substantial evidence that defendant committed the prior bad
acts that were introduced into evidence. Defendant pleaded guilty to, and was on parole for, a
2002 breaking or entering offense in Saginaw County, and the jury in this case heard portions of
a transcript of that plea. In addition, the jury heard testimony from a retired state trooper who
had been involved in the surveillance and arrest of defendant for similar B&Es in which
women’s purses had been stolen from vehicles.
In terms of similarities of the crimes, the incidents all involved vehicle windows being
smashed quickly, apparently by an unobtrusive object like a window punch, and the thefts of
small objects of value, such as purses or wallets, from within. The crimes tended to occur in
parking lots of institutional business and “out of the way” places like funeral homes, churches
and, as in this case, a hospital. Defendant would enter a parking lot and move about, “casing”
the vehicles until a valuable item was spotted. Cash or ATM cards were removed from the
purses or wallet and were discarded near the sites where the incidents took place. While each
circumstance in itself may be, as defendant argues, too common to establish any type of scheme
or “signature,” when viewed together, the offenses present a similar pattern or special quality of
the bad act tending to prove defendant’s identity. People v Ho, 231 Mich App 178, 187; 585
NW2d 357 (1998); Smith, 243 Mich App at 670.
In terms of the third prong of Golochowicz, or the relevance factor in VanderVliet, these
factors are highly material to the determination of defendant’s guilt in the instant case. Smith,
243 Mich App at 670. As in Ho, there were no eyewitnesses in the instant case to testify that
defendant was seen breaking into the Jeep and either removing or carrying away the purse from
inside. The nature of the video captured in the hospital parking lot shows that defendant was
twice near the vehicle, but does not demonstrate definitively that he committed the act. The
evidence of defendant’s prior acts showed that he had committed similar offenses in areas and
under conditions like those of the instant crime. The prior acts evidence was “logically relevant”
because it had the “tendency to prove who committed the charged offense” in the hospital
parking lot. Smith, 243 Mich App at 674. The evidence permitted an intermediate inference that
defendant entered the hospital parking lot not only to ask for directions but to look for valuable
articles left in vehicles. This, in turn, permits an ultimate inference that, having found an
opportunity, defendant was the person who smashed the Jeep’s window and took the purse from
inside.
Defendant argues this evidence was more prejudicial than probative, and that his “mere
presence” in the parking lot near the Jeep was not enough to support his conviction. Although
the trial court did not provide detail on how it balanced the probative value of this evidence with
its prejudicial effect, it stated that it did so under VanderVliet. Furthermore, the “Supreme Court
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has never required the trial court[] to make this determination on the record.” Smith, 243 Mich
App at 675, quoting People v Vesnaugh, 128 Mich App 440, 448; 340 NW2d 651 (1983).
Finally, the trial court “cushioned” the prejudicial effect of evidence of defendant’s prior
B&Es by instructing the jury that the evidence could only be considered to determine that
defendant used a plan, system, or characteristic scheme, and not for any other purpose, such as
showing that he was a bad person and therefore likely to commit the crime. The trial court also
noted that the question of prior conduct had been raised with the jury during voir dire and that
the defense had the opportunity to question and caution prospective jurors about convicting
defendant on the basis of past actions. Further, the record indicates that the trial court considered
other evidence in the case, such as the hospital parking lot photographs, in determining whether
to permit introduction of the similar acts evidence under MRE 404(b). These measures
demonstrate that the trial court appropriately balanced the probative value of the evidence
against the danger of unfair prejudice and found that the latter did not outweigh the former. See
Ho, 231 Mich App at 187.
Affirmed.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ E. Thomas Fitzgerald
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