PEOPLE OF MI V WILLIAM F KELLY IIIAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
July 7, 1998
Oakland Circuit Court
LC No. 96-147812-FH
WILLIAM F. KELLY, III,
Before: Jansen, P.J., and Kelly and Markey, JJ.
Following a jury trial, defendant was convicted of second-degree criminal sexual conduct, MCL
750.520c(1)(a); MSA 28.788(3)(1)(a), and was sentenced to two and one-half to fifteen years’
imprisonment. Defendant appeals as of right and we affirm.
Defendant first argues that the trial court abused its discretion in admitting evidence that he had
committed prior acts of criminal sexual conduct with the victim. This Court reviews a trial court’s
decision to admit evidence for an abuse of discretion. People v Ullah, 216 Mich App 669, 673; 550
NW2d 568 (1996).
The Michigan Rules of Evidence provide that evidence of other crimes, wrongs, or acts is not
admissible to prove the character of an individual in order to show that the individual acted in conformity
with that character. MRE 404(b). However, such evidence is admissible whenever it is relevant
regarding a non-character theory, that is, the evidence is probative of something other than the person’s
criminal propensity. People v VanderVliet, 444 Mich 52, 65-66; 508 NW2d 114 (1993), modified
445 Mich 1205 (1994). Such situations include, but are not limited to, proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake
when it is material to the conduct at issue. MRE 404(b)(1); VanderVliet, supra at 66. Relevant
evidence of other acts does not violate MRE 404(b) unless it is offered solely for the purpose of
showing the criminal propensity of a person and to establish that he acted in conformity therewith.
VanderVliet, supra at 65.
In VanderVliet, supra at 74, our Supreme Court set out a four-part test for admitting evidence
under MRE 404(b): (1) the evidence must be offered for a proper purpose; that is, the prosecution
must offer the evidence under something other than a conformity with character theory; (2) the evidence
must be relevant; (3) the trial court must perform a balancing test pursuant to MRE 403; (4) the trial
court may, upon request, give a limiting instruction to the jury that the other acts evidence be considered
only for the proper purpose for which it was admitted.
Under the test set forth in VanderVliet, we find that the evidence was properly admissible. It
was relevant and admitted for a proper purpose. The fact that both incidents occurred in the bathroom
and in the exact same manner as the charged crime indicates a common plan or system of touching the
victim. The fact that the exact same kind of touching occurred between defendant and the victim on at
least two separate occasions apart from the charged crime negates defendant’s argument that this was
an accident or a mistaken touching. After hearing argument from counsel outside the presence of the
jury, the trial court determined that the probative value concerning plan, scheme, or method and lack of
mistake or accident outweighed any prejudicial effect. Such questions concerning the admission of
evidence by definition ordinarily cannot be considered an abuse of discretion. People v Bahoda, 448
Mich 261, 289; 531 NW2d 659 (1995).
Accordingly, we find that the trial court did not abuse its discretion in admitting the other acts
Next, defendant argues that the trial court erroneously calculated his guideline score.
Specifically, he asserts that Offense Variable (OV) 25 was improperly scored. He also contends that
his sentence violates the principle of proportionality.
Our Supreme Court has held that appellate relief is not available for claims of error based on
alleged misinterpretation or misapplication of the scoring guidelines. People v Mitchell, 454 Mich 145,
176-177; 560 NW2d 600 (1997); People v Raby, 456 Mich 487, 497; 572 NW2d 641 (1998). The
current sentencing guidelines used by the trial courts do not have the force of law. Mitchell, supra at
175; Raby, supra at 496. Therefore, a claim of a miscalculated variable is not in itself a claim of legal
error. Mitchell, supra at 175; Raby, supra at 496. Application of the guidelines states a cognizable
claim on appeal only where (1) a factual predicate is wholly unsupported, (2) a factual predicate is
materially false, and (3) the sentence is disproportionate. Mitchell, supra at 177; Raby, supra at 497.
Defendant’s claims do not meet these requirements.
Regardless of the score for OV 25 and the guidelines range 1, defendant’s sentence is not
disproportionately harsh as he contends. Here, defendant admittedly assaulted his four-year-old,
emotionally impaired daughter on at least three occasions. Based on the background of the offender
and the nature of the offenses, we cannot conclude that defendant’s sentence is disproportionately
harsh. People v Houston, 448 Mich 312, 320; 532 NW2d 508 (1995); People v Lemons, 454 Mich
234, 260; 562 NW2d 447 (1997). The trial court did not abuse its discretion in sentencing defendant.
/s/ Kathleen Jansen
/s/ Michael J. Kelly
/s/ Jane E. Markey
The guidelines range, as calculated by the trial court, was twelve to forty-eight months. Defendant’s
proffered range would be zero to thirty-six months. Under either calculation, defendant’s sentence
would still be within the guidelines range.