PEOPLE OF MI V TERRY LANCEFORD SCHATZER II
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 4, 2000
Plaintiff-Appellee,
v
No. 211946
Bay Circuit Court
LC No. 97-001557 FH
TERRY LANCEFORD SCHATZER, II,
Defendant-Appellant.
Before: Talbot, P.J., and Gribbs and Meter, JJ.
PER CURIAM.
A jury convicted defendant of domestic assault, third offense, MCL 750.81(4); MSA
28.276(4), against his live-in girlfriend. The trial court sentenced defendant as a second habitual
offender, MCL 769.10; MSA 28.1082, to five years’ probation, with the first 360 days to be served in
the county jail and credit for fifty-six days served. We affirm.
On appeal, defendant argues that the trial court abused its discretion in allowing defendant’s
former girlfriend to testify that he physically abused her during their relationship. We disagree. This
Court reviews a trial court’s decision regarding the admission of prior acts evidence for an abuse of
discretion. People v Crawford, 458 Mich 376, 383, 582 NW2d 758 (1998). An abuse of discretion
exists only if an unprejudiced person, considering the facts on which the trial court acted, would
conclude that there was no justification or excuse for the ruling. People v Hoffman, 225 Mich App
103, 104; 570 NW2d 146 (1997).
Pursuant to MRE 404(b) evidence of other crimes, wrongs, or acts is admissible if such
evidence is (1) offered for a proper purpose rather than to prove the defendant’s character or
propensity to commit a crime, (2) relevant to an issue or fact of consequence at trial, and (3) the
probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.
People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993). Accord Crawford, supra at 385;
People v Starr, 457 Mich 490, 496; 577 NW2d 673 (1998). In addition, the trial court may provide
a limiting instruction if requested. VanderVliet, supra at 75.
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In this case, the prosecution alleged that defendant physically assaulted the victim, his live-in
girlfriend, in an alley after a night of drinking. At trial, the prosecutor offered evidence that defendant
assaulted his prior girlfriend during their relationship when he was drinking not to show that he had the
propensity to commit domestic assaults, but to prove a “lack of mistake or accident,” which is a proper
purpose under MRE 404(b). As the trial court noted, the other acts evidence was directly relevant to
rebut the defense theory that defendant did not assault the victim, but accidentally pulled the victim to
the ground when his weak knee collapsed, an action which mislead eyewitnesses into believing that he
was assaulting her. See MRE 401; Crawford, supra at 387-390. Accordingly, the evidence was
offered for a proper purpose and was relevant to an issue of consequence at trial.
In addition, we are not persuaded that the high probative value of the other acts evidence was
substantially outweighed by the danger of unfair prejudice. The evidence went to the issue whether
defendant intended to commit the charged offense, and the jury received an appropriate limiting
instruction. People v Gibson, 219 Mich App 530, 534; 557 NW2d 141 (1996).
We further find no merit to defendant’s claim that the trial court erred in failing to make a factual
determination that the other acts occurred, as required under MRE 404(b). In Huddleston v United
States, 485 US 681; 108 S Ct 1496; 99 L Ed 2d 771 (1988), the Supreme Court rejected the
identical argument with respect to its federal corollary, FRE 404(b), holding that a court is not required
to make a factual finding that the prior acts occurred before presenting it to the jury; the court must
simply examine the evidence and determine whether the jury could reasonably find that the prior acts
actually occurred. Id. at 686-687, 690-691. After a thorough review of the trial court’s ruling we find
that it effectively determined that, based on the evidence offered, the jury could reasonably conclude
that defendant abused his prior girlfriend during their relationship. Consequently, the trial court did not
abuse its discretion in admitting the other acts evidence.
Defendant also argues that the trial court abused its discretion in prohibiting him from
impeaching a crucial prosecution witness with a prior conviction for attempted breaking and entering
with intent to unlawfully drive away an automobile. Again, we disagree. This Court reviews a trial
court’s decision whether to allow the impeachment of a witness with evidence of a prior conviction for
an abuse of discretion. People v Bartlett, 197 Mich App 15, 19; 494 NW2d 776 (1992).
Where, as here, a party seeks to impeach a nonaccused witness with a prior theft conviction,
the trial court must determine whether the conviction has significant probative value on the issue of
credibility. MRE 609(a)(2)(B). In making that determination, the court need only consider the “age of
the conviction” and “the degree to which a conviction of a crime is probative of veracity.” MRE
609(b); People v Allen, 429 Mich 558, 608; 420 NW2d 499 (1988). Here, the trial court determined
that the nine-year-old conviction was too remote and that it was not probative of the witness’s ability to
tell the truth about what he saw on the day in question. Further, defendant cites authority for the
proposition that attempted unlawful driving away an automobile is “significantly” probative of veracity.
People v Dixon, 175 Mich App 472, 476-477; 438 NW2d 303 (1989). However, that case is
distinguishable, and as the trial court recognized,
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the probative value of a theft conviction is to be determined on a case by case basis. Allen, supra at
606 n 33.
Affirmed.
/s/ Michael J. Talbot
/s/ Roman S. Gribbs
/s/ Patrick M. Meter
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