In People v Denson, No. 152916 the Michigan Supreme court held that the Genesee Circuit court erred when it admitted the defendant’s prior conviction for the same crime under 404(b) of the Michigan Rules of Evidence. The prosecution failed to establish that the prior conviction was logically relevant to a proper non-character purpose, the Court said. The Court also concluded that the error was not harmless, and therefore reversed the judgment of the Court of Appeals, remanding the case to the trial court for a new trial.
The defendant was convicted of assault with intent to do great bodily harm less than murder under MCL 750.84. The altercation arose when the defendant fought the victim after discovering the victim and his daughter in a bedroom together. The defendant claimed to hear his daughter yelling in protest, but the victim claimed that his actions were consensual. The victim argued that the defendant brutally assaulted him, resulting in lacerations to his body. The prosecution introduced photographs of the victim’s injuries and also sought to admit evidence under MRE 404(b) of the facts underlying the defendant’s 2002 conviction of assault with intent to do great bodily harm less than murder. The prior conviction involved the defendant smashing in another man’s car window and shooting him on his front porch. The trial court ruled, and the Court of Appeals later affirmed, that the prosecution could discuss the facts underlying the prior conviction, but it barred the prosecution from introducing evidence of the actual conviction unless the defendant denied that the underlying facts occurred.
The Supreme Court explained the policy rationale behind MRE 404(b)—the rule is “deeply rooted” in the presumption of innocence, which is the foundation of our criminal justice system. However, the rule establishes an exception that other-acts evidence may be admissible for other non-propensity purposes. To determine whether this exception applies, courts follow the VanderVliet test, which states that the evidence: “(1) must be offered for a proper purpose under Rule 404(b); (2) must be relevant under Rule 402 as enforced through Rule 104(b); (3) that the probative value of the evidence is not substantially outweighed by unfair prejudice; and (4) that the trial court may, upon request, provide a limiting instruction to the jury.” After articulating this test, the Court applied the four factors to the facts of the present case.
The Court observed that courts commonly over-admit evidence just because it has a “proper purpose,” and should instead scrutinize the logical relevance of the other evidence under the second prong of the test. In order to do so, the evidence must be material and have probative value. The Court explored a number of Michigan Supreme court cases that listed examples of the “striking similarity standard,” which states that when “the prosecution creates a theory of relevance based on the alleged similarity between a defendant’s other act and the charged offense, [the Court] requires a striking similarity between the two acts to find the other act admissible.”
The Court determined that the defendant’s 2002 assault conviction bore “notable differences” to the current assault, including a: (1) different victim, (2) a different situation, (3) a calculated attack versus a spontaneous reaction, and a (4) claim of self-defense versus not having one. The only similarities were that the defendant committed both assaults.
Therefore, the Court held that evidence of the 2002 incident should not have been admitted because it was not relevant to a proper non-character purpose under MRE 404(b).
