PEOPLE OF MI V BRUCE ANTON EGGEBEEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 30, 1997
Plaintiff-Appellee,
v
No. 198677
Kent Circuit Court
LC No. 96-002902-FC
BRUCE ANTON EGGEBEEN,
Defendant-Appellant.
Before: Corrigan, C.J., and Doctoroff and Fitzgerald, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of three counts of first-degree criminal sexual
conduct (CSC), MCL 750.520b(1)(f); MSA 28.788(2)(1)(f), and was sentenced as a third-felony
offender and second-sex offender to three concurrent life terms. Defendant appeals as of right. We
affirm.
Defendant first argues that the trial court erred by admitting evidence of other bad acts allegedly
committed by defendant because the evidence was presented solely for the purpose of establishing his
bad character in violation of MRE 404(b). We disagree.
The use of bad acts as evidence of character is excluded, except as allowed by MRE 404, and
is improperly admitted where offered solely to show the criminal propensity of an individual to establish
that he acted in conformity therewith. People v VanderVliet, 444 Mich 52, 65; 508 NW2d 114
(1993). However, evidence is not necessarily subject to MRE 404(b) analysis merely because it
discloses a bad act; bad acts can be relevant as substantive evidence without regard to MRE 404. Id.,
64. “[I]f the proffered other acts evidence is logically relevant, and does not involve the intermediate
inference of character, Rule 404(b) is not implicated. . . . The question is not whether the evidence falls
within an exception to a supposed rule of exclusion, but rather whether the ‘evidence [is] in any way
relevant to a fact in issue’ other than by showing mere propensity. . . . ‘Put simply, the rule is
inclusionary rather than exclusionary.’” Id., citing People v Engelman, 434 Mich 204, 213, 216; 453
NW2d 656 (1990).
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The evidence established that the female witness, like the victim in the present case, was hired
by defendant to do work for a company that did not exist, was taken by defendant to a secluded area
supposedly for employment purposes, and was then forced to engage in sexual acts with him. In both
instances, defendant employed a young woman for a bogus job, took affirmative steps to be alone with
her on more than one o
ccasion, and then lured her to a place where they first engaged in friendly
interaction, such as a walk around the lake or park
Defendant’s case at trial rested solely on the issue of consent and, although the evidence at issue
created a negative image of defendant, it was highly relevant as to whether the victim in fact consented
to sexual intercourse with defendant. Moreover, in a sexual assault prosecution, evidence of prior acts
is admissible under MRE 404(b) if it “tend[s] to show a plan or scheme to orchestrate the events
surrounding the rape of complainant so that she could not show nonconsent.” People v Gibson, 219
Mich App 530, 533; 557 NW2d 141 (1996). It was for these reasons that the “other bad acts”
evidence was elicited, rather than merely to make the “character to conduct” inference forbidden under
MRE 404 and VanderVliet. Therefore, the trial court did not abuse its discretion in admitting the
evidence. People v Miller, 198 Mich App 494, 495; 499 NW2d 373 (1993).
Defendant next argues that the lower court abused its discretion when sentencing him to life in
prison. We disagree. The evidence elicited at trial supports the trial court’s conclusion that defendant
was a “predator” and posed a threat to society. After a thorough review of the record, we conclude
that the sentence imposed is proportionate to the seriousness of the circumstances surrounding the
offense and the offender. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
Last, defendant argues that he is entitled to have c
hallenged information stricken from the
presentence investigation report. We disagree. The sentencing judge did not state that he would
disregard the challenged information because it was inaccurate, but rather indicated that the information
did not affect his sentencing decision. Therefore, contrary to the majority’s conclusion, the court was
not obligated to strike the information. See People v Britt, 202 Mich App 714, 718; 509 NW2d 914
(1993).
Further, we disagree with defendant’s contention that the use in the presentence report of the
term “rape” to describe the acts he committed against another female witness in the past was factually
inaccurate. Although defendant was convicted of second-degree criminal sexual conduct, MCL
750.520c; MSA 28.788(3), in 1983, the victim of that assault plainly testified at trial in the present case
to facts that would have supported a conviction of first-degree criminal sexual conduct. A sentencing
court may consider the facts underlying uncharged offenses, pending charges, and acquittals. People v
Ewing, 435 Mich 443, 446; 458 NW2d 880 (1990)(Brickley, J); People v Coulter (After Remand),
205 Mich App 453, 456; 517 NW2d 827 (1994). Here, the court could have considered the
information in sentencing because defendant had an opportunity to challenge its accuracy at trial.
Hence, a remand is not warranted.
Affirmed.
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/s/ Maura D. Corrigan
/s/ Martin M. Doctoroff
/s/ E. Thomas Fitzgerald
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