PEOPLE OF MI V JOSEPH LEO WILLIAM FLEESEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 18, 1998
Barry Circuit Court
LC No. 96-000148 FH
JOSEPH LEO-WILLIAM FLEESE,
Before: Whitbeck, P.J., and Cavanagh and Neff, JJ.
Defendant appeals as of right from his jury trial convictions of second-degree criminal sexual
conduct, MCL 750.520c(1)(b); MSA 28.788(3)(1)(b), fourth-degree criminal sexual conduct, MCL
750.520e; MSA 28.788(5), furnishing alcohol to a minor, MCL 436.33(1); MSA 18.1004, and
distributing obscene material to a minor, MCL, 722.675; MSA 25.254(5). The trial court sentenced
defendant as a fourth habitual offender, MCL 769.12; MSA 28.1084, to forty to sixty years’
imprisonment. We affirm.
Defendant claims that the trial court erred in failing to grant his motion for severance of the
charges related to the two victims. A trial court’s decision on a motion to sever is reviewed for an
abuse of discretion. See People v Duranseau, 221 Mich App 204, 208; 561 NW2d 111 (1997);
People v Cadle (On Remand), 209 Mich App 467, 469; 531 NW2d 761 (1995). The standard for
reviewing a decision for an abuse of discretion is narrow; the result must have been so violative of fact
and logic that it evidences a perversity of will, a defiance of judgment, or an exercise of passion or bias.
People v Torres (On Remand), 222 Mich App 411, 415; 564 NW2d 149 (1997).
MCR 6.120(B) provides:
On the defendant's motion, the court must sever unrelated offenses for separate
trials. For purposes of this rule, two offenses are related if they are based on
(1) the same conduct, or
(2) a series of connected acts or acts constituting part of a single scheme or plan.
After reviewing the transcript of the preliminary examination, we conclude that the trial court did
not abuse its discretion in denying the motion to sever. Although he was acquitted on this count,
defendant was charged with furnishing alcohol to the eight-year-old complainant. The latter testified that
defendant offered him beer the same night that the touching happened, which was also the same night
that he saw defendant “holding [the fifteen-year-old complainant] down.” Thus, the charges involving
one complainant can reasonably be viewed as providing a conceptual background for the charges
involving the other complainant. Moreover, the complainants described the same people as being
present that day, meaning that there would have been common witnesses at separate trials, possibly
including both complainants. Furthermore, the trial court did sever the trial of a third complainant where
the alleged acts clearly occurred on a different day. In sum, the facts were sufficient to permit the
conclusion that the charges involving the two complainants were “connected acts.” While, had we been
in the trial court’s position, we might have decided the question differently, we cannot find that the trial
court’s decision was violative of fact and logic or demonstrated a perversity of will, a defiance of
judgment, or an exercise of passion or bias. See Torres, supra.
Next, defendant raises two issues regarding the prosecution witnesses Michael James and
Defendant argues that the trial court erred in allowing the prosecution to amend its witness list to
include James and Kidder on the day of trial. However, MCL 767.40a(4); MSA 28.980(1)(4) allows
a prosecutor to add or delete from the witness list at any time upon leave of the court and for good
cause shown. Even if this statute is violated, a defendant must show prejudice from the violation.
People v Hana, 447 Mich 325, 358, n 10; 524 NW2d 682 (1994). In the present case, defendant
has failed to articulate any prejudice from the late endorsement of the witnesses. Defendant
acknowledges in his appellate brief that defense counsel received a fax from the prosecutor prior to trial
with the names of the two witnesses. Defendant was able to present a witness to rebut Kidder’s
testimony. Under the circumstances, we find no error requiring reversal.
Defendant claims that the trial court erred in admitting the testimony of James and Kidder. The
decision whether to admit or exclude evidence is within the trial court’s discretion. People v Ullah,
216 Mich App 669, 673; 550 NW2d 568 (1996).
The admissibility of evidence of a defendant's other crimes, wrongs, or acts is governed by
MRE 404(b). To be admitted at trial, such evidence must be offered for a proper purpose, which
means that the evidence must be offered for some reason other than to show the character of a person
in an effort to prove conduct in conformity with such character. The evidence must also be relevant to
an issue or fact of consequence at trial, other than by way of a showing of mere propensity. Finally, the
probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice.
See People v VanderVliet, 444 Mich 52, 64, 74-75; 508 NW2d 114 (1993). In application, the
admissibility of evidence under MRE 404(b) necessarily hinges on the relationship of the elements of the
charge, the theories of admissibility, and the defenses asserted. VanderVliet, supra at 75.
When a defendant denies committing second-degree criminal sexual conduct, evidence of other
acts may be admissible to show intent or sexual purpose. Id. at 84-85. Accordingly, the testimony was
admissible for that end. In addition, James’ testimony was relevant to show defendant’s pattern or
practice of making threats to a young child whom he had molested in order to deter the child from
reporting the abuse. Furthermore, Kidder’s testimony was relevant to show a pattern or practice of
using alcohol and pornography to overcome the resistance of adolescents to sexual molestation. We
agree with the trial court that the prejudicial effect of the testimony did not outweigh its probative value.
See People v Crawford, 458 Mich 376, 385; 582 NW2d 785 (1998). Accordingly, the trial court
did not abuse its discretion in admitting the testimony.
Finally, defendant asserts that his sentences violate the principle of proportionality. We
disagree. Defendant has a history of sexually molesting children. A trial court does not abuse its
discretion in imposing a sentence within the statutory limits established by the Legislature when an
habitual offender’s underlying felony, in the context of his previous felonies, evidences that the defendant
is unable to conform his conduct to the laws of society. People v Hansford (After Remand), 454
Mich 320, 326; 562 NW2d 460 (1997). Defendant’s sentences are proportionate to the seriousness
of the circumstances surrounding the offenses and the offender. See People v Milbourn, 435 Mich
630, 636; 461 NW2d 1 (1990).
/s/ William C. Whitbeck
/s/ Mark J. Cavanagh
/s/ Janet T. Neff