PEOPLE OF MI V DALE ANTHONY TAYLOR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 3, 1998
Plaintiff-Appellee,
v
No. 199852
Washtenaw Circuit Court
LC No. 95-004659
DALE ANTHONY TAYLOR,
Defendant-Appellant.
Before: O’Connell, P.J., and Gribbs and Smolenski, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions by a jury of three counts of first-degree
criminal sexual conduct (CSC), MCL 750.520b; MSA 28.788(2), and first-degree home invasion,
MCL 750.110a(2)(b); MSA 28.305(a)(2)(b). Defendant was sentenced as an habitual offender to
three concurrent prison terms of forty to sixty years for the CSC convictions, and a concurrent term of
twelve to twenty years for the home invasion conviction. We affirm.
Defendant first argues that the trial court abused its discretion when it allowed for the admission
of bad acts evidence relating to a 1987 conviction. We disagree. Other acts evidence may be admitted
if it is offered for a proper purpose, even if its use for a different purpose, such as character evidence, is
precluded. People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), modified on other grounds
445 Mich 1205; 520 NW2d 338 (1994).
MRE 404(b) governs the admission of evidence of bad acts. It provides:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that he acted 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 crimes, wrongs, or acts are
contemporaneous with, or prior or subsequent to the conduct at issue in the case.
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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).
At trial, defendant claimed that the victim invited him into her apartment, and then engaged in
consensual sexual intercourse with him. The victim, however, testified that defendant forced his way
into her apartment after lying to her in order to get her to open her door, and then repeatedly assaulted
her. The challenged testimony concerning similar bad acts committed by defendant, although admittedly
prejudicial, was nonetheless extremely probative of the issue of consent in that it showed that defendant
had also used trickery to gain access to the apartment of another female victim, and that once inside, he
sexually assaulted her, as he did the victim in this case.
We find that the evidence in question established a common scheme or plan employed by
defendant, and was admitted for those reasons rather than merely to make the “character to conduct”
inference forbidden by MRE 404 and VanderVliet. Therefore, the rule excluding the evidence is
inapplicable. VanderVliet, supra at 64; People v Flynn, 93 Mich App 713, 718; 287 NW2d 329
(1979). In addition, we note that any prejudice that may have resulted from its admission was
minimized when both the prosecutor and the trial judge specifically warned the jury that the evidence
was to be used only to establish a scheme or plan used by defendant, rather than evidence of
defendant’s guilt. Accordingly, the admission of the bad acts testimony did not amount to an abuse of
discretion. People v Miller, 198 Mich App 494, 495; 499 NW2d 373 (1993).
Defendant next argues that he was denied a fair trial when the trial court allowed the prosecution
to admit the testimony of a police officer that defendant refused to participate in a corporeal lineup at the
police station following his arrest. Defendant claims that he was entitled to the presence of an attorney
of his choice, and that the testimony was admitted merely to show that he was a “bad” person. We
disagree.
Following defendant’s arrest, the police twice attempted to arrange a physical lineup in an effort
to secure an identification from the victim before a significant amount of time had passed since the
alleged assault. Defendant refused to participate on both occasions, indicating that he had his own
attorney and would not stand in the lineup unless his attorney was present. Defendant, however, never
identified his attorney, and the record reflects that an appearance of an attorney on defendant’s behalf
was not made until nearly a week after the lineup was arranged.
In People v Benson, 180 Mich App 433, 437; 447 NW2d 755 (1989), rev’d in part on other
grounds, 434 Mich 903 (1990), we held that no error resulted where a police officer was allowed to
testify that the defendant refused to attend a lineup. We noted that a defendant has the right to be
represented by counsel at a police lineup, but held that evidence of the refusal did not violate a
defendant’s right against self-incrimination and that there is no authority requiring the police to make
endless efforts to attempt to arrange a lineup. Id. at 437-438.
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Here, the record establishes that contrary to defendant’s claims, he did not have his own
attorney at the time the lineup was arranged, that the police made an effort to fulfill defendant’s wishes
by attempting to secure information concerning the supposed attorney, and that at both times, a public
defender was present to make certain that defendant’s rights were not violated. Moreover, even if the
evidence was improperly admitted, we find that it had no impact on the outcome of defendant’s trial
considering the overwhelming evidence presented against him, as well as the other police testimony of
defendant’s uncooperative behavior, including his flight from police, the hiding of his underwear, and the
fact that he purposely avoided being identified by giving the police a false name. Hence, the admission
of the complained-of evidence did not violate defendant’s right to a fair trial.
Last, defendant argues that a manifest injustice resulted when the trial court failed to sua sponte
instruct the jury concerning the weight to be given to the evidence concerning his failure to participate in
the physical lineup, his alleged removal and hiding of his underwear, and his fleeing from the scene.
Defendant contends that such evidence is subject to contradictory interpretations, and that the jury
should have been instructed that his noncooperation with authorities was not necessarily evidence of his
guilt. We find that defendant’s argument is without merit.
Defendant failed to request an instruction at trial and the absence of such an instruction was
harmless considering the court’s instructions as a whole. At trial, both parties presented their version of
the facts. Although the prosecution argued that the evidence established defendant’s guilt, the trial court
instructed the jurors to weigh the evidence, determine which witnesses were credible and decide the
ultimate question in this case. We find no manifest injustice. People v Van Dorsten, 441 Mich 540,
544-545; 494 NW2d 737 (1993).
Affirmed.
/s/ Peter D. O’Connell
/s/ Roman S. Gribbs
/s/ Michael R. Smolenski
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