PEOPLE OF MI V BRIAN DEAN DIMKOFF
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 31, 1997
Plaintiff-Appellee,
v
No. 196950
Calhoun Circuit Court
LC No. 96-000543
BRIAN DEAN DIMKOFF,
Defendant-Appellant.
Before: Saad, P.J., and O'Connell and M.J. Matuzak*, JJ.
PER CURIAM.
Defendant appeals as of right his conviction by jury of armed robbery, MCL 750.529; MSA
28.797, first-degree home invasion, MCL 750.110a(2); MSA 28.305(a)(2), and second-degree
criminal sexual conduct (CSC), MCL 750.520c(1)(c); MSA 28.788(3)(1)(c). We affirm.
On January 9, 1996 at 12:45 a.m., defendant entered the victim's apartment using a master key.
Defendant acquired the master key through his position as the grounds supervisor for the apartment
complex where both he and the victim lived. The victim first noticed defendant as he startled her from
her sleep. Brandishing a knife, defendant instructed the victim to remove her nightgown and underwear,
which defendant kept. Defendant next ordered the victim to give him money, which she did. With knife
in hand, defendant then fondled the victim's breast, covered her face with some material, ordered her
not to look up and then left the apartment.
I
Defendant contends that the trial court abused its discretion by admitting evidence that
defendant had attempted to enter another woman's apartment in the same apartment complex using his
master key and evidence that boxes of women's undergarments were found in a tool shed to which
defendant had access with keys.
As to bad acts evidence, MRE 404(b) provides:
* Circuit judge, sitting on the Court of Appeals by assignment.
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(1)
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. 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.
A
The trial court found that evidence that defendant tried to enter another apartment using his
master key was admissible under MRE 404(b) to show identity and scheme in carrying out a course of
conduct. With regard to identity evidence from prior similar acts, People v Golochowicz, 413 Mich
298; 319 NW2d 518 (1982), sets forth a test which identifies the requirements of logical relevance
when the proponent of the evidence is utilizing a modus operandi theory to prove identity. People v
McMillan, 213 Mich App 134, 138; 539 NW2d 553 (1995). To be admissible under Golochowicz,
modus operandi evidence to show identity must meet four requirements: 1) there must be substantial
proof that the defendant committed one of the similar acts; 2) the other acts must possess a special
circumstance or quality which assures that the evidence is probative of some fact other than the
defendant's bad character; 3) the proffered evidence must be relevant to some matter in issue; and 4)
the prejudicial value of such evidence must not outweigh the probative value. People v VanderVliet,
444 Mich 52, 68-72; 508 NW2d 114 (1993), modified on other grounds 445 Mich 1205; 520 NW2d
338 (1994).
Defendant challenges the first prong of the Golochowicz test, arguing that the prosecutor was
required to establish that defendant "actually committed" the similar act. However, proof of a
defendant's similar act need only be sufficient to convince the trier of fact of the probability of
defendant's actions as opposed to proof beyond a reasonable doubt. People v Sorscher, 151 Mich
App 122, 135; 391 NW2d 365 (1986). The prosecution need not offer evidence corroborating the
‘similar-act’ witness' testimony when that witness testifies from personal knowledge, because credibility
of a witness is a question for the trier of fact. Id. Here, the second victim’s testimony (i.e. about
another, unrelated act) that a man was standing outside her apartment door at approximately 3:30 a.m.
and again at 4:00 a.m. on October 15, 1995 (three months before the crime at issue), attempting to use
a key to enter her apartment. She identified defendant at trial. This second victim’s boyfriend testified
that he had been with defendant in defendant’s apartment on October 15, 1995 from approximately
12:30 a.m. to 4:00 a.m., and that defendant left the apartment at 3:30 a.m. and again at 4:00 a.m. for
about ten or fifteen minutes. Leaving the credibility of the witnesses to the jury, the second female
victim’s identification of defendant as the perpetrator of the similar act, and the boyfriend’s
corroborating testimony provides substantial evidence that defendant committed the similar act three
months prior to the act at issue here.
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We therefore conclude that the evidence that defendant attempted to enter another apartment
using his master key and without permission was admissible under MRE 404(b) and the trial court did
not abuse its discretion in admitting such evidence.
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B
While defendant also objected to the admission of testimony regarding boxes of women's
undergarments which were found in a shed at the apartments, his objection was as to the prejudicial
effect of such evidence. All evidence offered by the parties is prejudicial to some extent, but the
evidence is only excluded when the danger of unfair prejudice substantially outweighs the probative
value of the evidence. People v Mills, 450 Mich 61, 75; 537 NW2d 909, modified 450 Mich 1212;
539 NW2d 504 (1995). Evidence that boxes of women's undergarments were hidden at the grounds
barn or shed at defendant's apartment complex is probative because it makes it more probable that
someone with access to the grounds barn was in some way acquiring women's undergarments, which
corroborates the victim's testimony. While evidence that women's undergarments were hidden in a
building to which defendant had access is prejudicial because the victim testified that defendant had
taken her undergarments, the probative value of such evidence is not outweighed by its prejudicial
effect.
II
Next, defendant argues that insufficient evidence was presented at trial to establish defendant's
identity as the perpetrator of the charged crimes. We find no merit to this contention.
The victim's description of her assailant at trial is corroborated by the description she made to
the police immediately after the incident. She identified defendant in a lineup and again at trial. Other
than the victim's failure to tell the police that defendant had a mustache and defendant's testimony at trial
that he is 5' 10" tall (rather than 5' 7" tall as the victim estimated), no evidence was presented that
defendant did not possess the physical characteristics described by the victim. Viewed most favorably
to the prosecution and leaving the issue of credibility to the jury, the evidence presented at trial was
clearly sufficient to establish defendant's identity beyond a reasonable doubt.
III
Defendant also alleges that the trial court abused its discretion by allowing the victim to testify in
rebuttal after remaining in the courtroom during defendant's testimony. At the beginning of the trial, the
trial court granted the prosecutor's motion to sequester all witnesses. However, with the trial court's
permission, the victim remained in the courtroom during most of defendant's testimony. The victim then
testified as a rebuttal witness, stating that while defendant was testifying she recognized his voice as the
man who had entered her apartment. The record does not reveal how much of defendant's testimony
the victim heard or the content of that testimony.
A defendant who complains on appeal that a witness violated the lower court's sequestration
order must demonstrate that prejudice has resulted. People v Solak, 146 Mich App 659, 669; 382
NW2d 495 (1985). Here, defendant has failed to show that he was prejudiced by such testimony. The
victim had already provided a detailed description of her assailant and had identified defendant in a
lineup and again in court as her assailant. The similar act witness had also identified defendant as the
man who had attempted to enter her apartment without her permission, using a key. Because
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substantial evidence identifying defendant as the victim's assailant had been presented before the victim's
testimony that she recognized defendant's voice in the courtroom, the trial court did not abuse its
discretion in allowing the victim to testify.
IV
Finally, defendant argues that his sentences for armed robbery and CSC are disproportionate.
We disagree.
Here, defendant was sentenced to a minimum of twenty years' imprisonment for the armed
robbery conviction; this exceeds the sentencing guidelines range of three to ten years. The sentencing
judge justified the upward departure on the basis of the escalating nature of defendant's serious prior
assaultive record and the need to protect both the victim and society from defendant. The relationship
between the defendant and the victim is an important factor not included in the guidelines calculations.
People v Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990). Also, the escalating nature of a
defendant’s aggressiveness and assaultiveness may justify upward departure from a guidelines sentence.
People v Milton, 186 Mich App 574, 580-581; 465 NW2d 371 (1990), remanded in part, 438 Mich
852; 473 NW2d 310 (1991). Here, the sentencing court properly considered facts not addressed in
the guidelines in imposing sentence and did not abuse its discretion in sentencing defendant; his sentence
for armed robbery is proportionate.
Defendant also appeals his sentence for the CSC conviction, which was within the sentencing
guidelines. Defendant received a minimum sentence of ten to fifteen years' imprisonment for the CSC
conviction, which is at the top of the sentencing guidelines range of ten to fifteen years. A sentence
imposed within an applicable sentencing guidelines range is presumptively neither excessively severe nor
unfairly disparate. People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987). Defendant
has failed to present sufficiently unusual circumstances to overcome the presumption of proportionality.
Milbourn, 435 Mich at 656-657. The sentence is proportionate.
Affirmed.
/s/ Henry William Saad
/s/ Peter D. O'Connell
/s/ Michael J. Matuzak
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