                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 17, 2018
              Plaintiff-Appellee,

v                                                                  No. 336183
                                                                   Grand Traverse Circuit Court
MICHAEL GARY COHEN,                                                LC No. 2016-012495-FH

              Defendant-Appellant.


Before: O’BRIEN, P.J., and CAVANAGH and STEPHENS, JJ.

PER CURIAM.

        Defendant, a manager at a Dairy Queen (DQ) store in the Grand Traverse Mall in
Traverse City, was charged with five counts of CSC-IV for engaging in sexual contact with two
female employees at the store. He was charged in Count 1 with using force or coercion to
engage in sexual contact with employee AP’s buttocks, contrary to MCL 750.520e(1)(b). He
was charged in Counts 2 through 5 with engaging in sexual contact with a person at least 13
years of age but less than 16 years of age by an actor five or more years older than the
complainant, contrary to MCL 750.520e(1)(a), for separate incidents involving employee KF.
Count 2 alleged that defendant touched KF’s breast, Count 3 alleged that defendant touched
KF’s buttocks, and Counts 4 and 5 alleged that defendant inappropriately touched KF by
pressing up against her body, including her buttocks. The jury convicted defendant of Counts 4
and 5 involving KF, but acquitted him of the remaining counts. The trial court sentenced
defendant to 2-1/2 years’ probation, with eight months to be served in jail. Defendant appeals as
of right. We reverse and remand for a new trial.

       The charges arose after KF’s mother confiscated KF’s cell phone as punishment and read
KF’s text messages. After discussing the text messages with KF and AP, who was the daughter
of KF’s mother’s then-boyfriend, KF’s mother contacted the police.

         Testimony at trial indicated that AP worked at the DQ managed by defendant when she
was 16 years old. According to AP, when she was in the back area of the DQ doing dishes in a
small corner surrounded by three large sinks with crates above them, defendant “kind of just
rubbed against [her] butt.” Defendant told her “it was an accident,” but then he did it again and
said “it wasn’t an accident that time.”

      When AP stopped working at the DQ, she recommended to defendant that he hire KF,
who thereafter worked at the DQ when she was 15 and 16 years old. KF testified that on one
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occasion when she was working the front counter, defendant touched her breast while leaning
over her to get a blender. He then asked her if she felt the touch. On another occasion, KF and a
male co-worker were walking through the corridor of the DQ, with defendant walking behind
them, when defendant swung a trash bag and hit KF’s buttocks with the bag. Defendant then
swung the bag and hit KF a second time. When KF turned around and looked at defendant, he
said, “Oh, so you feel it the second time,” and then laughed. KF also testified that there were
two occasions when she was in the back room doing dishes and defendant, whom she described
as “big,” “leaned his body against hers” while reaching for something that was on a rack above
the sink. Defendant’s body made contact with her “butt through mid-back.” Defendant did not
“linger” or stay pressed against her, and KF did not know what part of defendant’s body was
touching her body.

        Both AP and KF testified about the limited work space at the DQ. AP testified that the
DQ was “close quarters” and that on occasion other employees would brush against her arm.
She described a “little hall” that was two to three feet wide that led from the front of the DQ to
the back. KF testified that the back area of the DQ was small, tight and “very cramped,” that it
contained a freezer, cooler, sinks, and crates, and that it had “no wiggle room.” Both AP and KF
also testified about the work environment at the DQ. AP testified that defendant frequently made
“off color jokes with customers and employees” and that “that’s just who he was.” KF testified
that defendant made sexual comments to her, and about other females, that made her
uncomfortable.

        When the police interviewed defendant, he did not recall touching AP’s buttocks. He
also did not recall touching KF’s breast or buttocks, but agreed that incidental contact at work
did occur and claimed that if he did touch her, it was accidental or incidental. Defendant vaguely
remembered the incident when he swung the trash bag and hit KF’s buttocks, but said he only
did so as a joke. Defendant stated that a lot of flirting went on at the DQ, but said he was “pretty
professional.”

       Before trial, the prosecutor filed a motion to introduce evidence of defendant’s conduct
involving other employees under MRE 404(b)(1). The prosecutor stated that the evidence was
being offered to show that defendant’s touchings of AP and KF were not accidental, but rather
were part of an intentional scheme, plan, or system to sexually touch female employees. The
prosecutor informed the court that the evidence would show that defendant made several
inappropriate sexual advances toward other employees and that he engaged in “grooming”
behavior that led up to the touchings in this case. The trial court granted the motion and allowed
the prosecutor to admit evidence involving employees FH, SM, and AP’s sister. At trial, the
prosecution also elicited other-acts evidence from employee LR, who was not included in the
prosecutor’s pretrial notice.1

       The jury convicted defendant of two counts of CSC-IV for the two incidents when he
leaned his body against KF while she was doing dishes and made contact with her “butt through
mid-back.” Defendant was acquitted of the remaining counts.


1
    Defendant does not present any argument on appeal with respect to the lack of pretrial notice.


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        On appeal, defendant argues that the trial court erred in admitting under MRE 404(b)(1)
evidence of his conduct involving other employees. After review of this evidentiary decision for
an abuse of discretion, we agree. See People v Denson, 500 Mich 385, 396; 902 NW2d 306
(2017).

       MRE 404(b)(1) provides:
               Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action 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 other
       crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
       conduct at issue in the case.

       To be admissible under MRE 404(b)(1), other-acts evidence must be relevant to an issue
other than propensity, must be relevant to an issue or fact of consequence at trial, and its
probative value must not be substantially outweighed by the danger of unfair prejudice. People v
VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). The
burden is on the prosecutor to establish the relevance of other acts. People v Knox, 469 Mich
502, 509; 674 NW2d 366 (2004).

        Sexual contact is an essential element of CSC-IV. MCL 750.520a(q) defines “sexual
contact” as “the intentional touching of the victim’s or actor’s intimate parts or the intentional
touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if
that intentional touching can reasonably be construed as being for the purpose of sexual arousal
or gratification, done for a sexual purpose, or in a sexual manner for [other enumerated
purposes].” The other-acts evidence was offered for its relevance to show that defendant acted
intentionally by touching the victims for a sexual purpose. MRE 401 defines relevant evidence
as “evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.”

       In its pretrial motion, the prosecutor argued that the other-acts evidence would show that
defendant had a pattern of making inappropriate verbal comments and sexual advances against
employees and other individuals, and that such evidence would show that the charged acts were
not accidental, but rather were done intentionally for a sexual purpose. The absence of mistake
or accident was a material issue given the defense theory that any touching was accidental and
merely incidental to the work space. The trial court admitted the other-acts testimony after the
prosecutor indicated that the testimony would establish that defendant “made several
inappropriate sexual advances towards the employees,” and made inappropriate sexual
comments about young females. The witnesses, however, did not offer testimony at trial as
represented in the prosecutor’s pretrial motion.

      FH’s testimony indicated that she was 16 years old and defendant was in his mid-20s
when he repeatedly asked her to go to the movies or out to dinner. She also stated that defendant
would not let her boyfriend see her while she was working. FH denied that defendant ever

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touched her or tried to touch her. AP’s testimony indicated that defendant asked if her 14-year-
old sister had taken $20 that was missing from the cash register because her bra looked like it
had gotten bigger during the day. Defendant also said that AP’s sister was pretty and that he
wanted her to be his wife. SM testified that she was 17 years old when defendant gave KF a note
to give to SM, in which defendant asked SM whether she would go on a date with him. LR’s
testimony indicated that she worked at the DQ store for one day and that defendant asked her if
she had a boyfriend. While she was doing dishes, defendant told her that she had a hair or fuzz
on her buttocks and then remarked, “Not that I was looking or anything.”

        Neither FH nor SM testified that defendant “made several inappropriate sexual advances
towards the employees.” AP did not testify that defendant said her sister was “the perfect height
for a blow-job.” Rather, KF testified that she believed defendant insinuated that she [KF] was
the perfect height for a “blow job” if she were to get on her knees. Nor did AP testify that
defendant made inappropriate comments about her sister’s buttocks. In sum, the witnesses did
not offer the testimony as represented by the prosecutor, which led the court to conclude that the
other-acts evidence was admissible to show a pattern of inappropriate sexual advances toward
employees and corroborate the victim’s allegations. There was no pattern or scheme described
by the witnesses that had any significant probative value to the material issue whether defendant
intentionally touched the victims for a sexual purpose. The other-acts testimony as presented to
the jury was far removed from the allegations of sexual contact at issue in the case. The
evidence gave rise to a significant danger that the jury would make an improper character-to-
conduct inference—that is, that it would cause the jury to conclude that even if defendant was
not guilty of the present offenses, he was a person of poor character. The danger of unfair
prejudice from the testimony substantially outweighed whatever probative value the evidence
might have had. See MRE 403. Consequently, the trial court abused its discretion in admitting
the testimony.

        Errors in the admission of evidence will not warrant relief if they were harmless. People
v Crawford, 458 Mich 376, 399; 582 NW2d 785 (1998). In order to establish a right to relief, a
defendant must demonstrate that it is more probable than not that the error affected the outcome
of the lower court proceeding. People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999),
citing MCL 769.26. In Denson, 500 Mich 410, our Supreme Court stated:
       [O]ther-acts evidence carries with it a high risk of confusion and misuse. When a
       defendant’s subjective character [is used] as proof of conduct on a particular
       occasion, there is a substantial danger that the jury will overestimate the probative
       value of the evidence. The risk is severe that the jury will use the evidence
       precisely for the purpose that it may not be considered, that is, as suggesting that
       the defendant is a bad person, a convicted criminal, and that if he did it before he
       probably did it again. [Quotation marks and citations omitted.]

Given these dangers, the Court in Denson instructed that harmless error analysis should be
applied with care and that “the mere presence of some corroborating evidence [of guilt] does not
automatically render an error harmless.” Id. at 413. Rather, the Court explained that the effect
of the error must be assessed “in light of the weight and strength of the untainted evidence.” Id.
(quotation marks and citation omitted).


                                                -4-
        Defendant’s theory that the touchings were not done for a sexual purpose, but rather were
accidental and incidental to the space constrictions of the DQ, was not wholly inconsistent with
the victims’ versions of events. Although defendant’s comments to KF, after he touched her
breast and after the second touching of her buttocks, suggested that these touchings were
intentional, the jury acquitted defendant of both of those counts. The prosecutor also misused
the evidence when she argued during closing arguments that “the testimony of nearly every other
witness supported what they [the victims] said, that “You heard from FH that this has been going
on since 2008,” and that “the testimony of literally every other witness supported the statements
made by the victims.” The testimony of the other witnesses, however, referred to conduct that
was unrelated to the alleged touchings. After considering the entire record, we conclude that the
improper admission of the other-acts evidence undermines the reliability of the jury’s verdict and
that it is more probable than not that, had this evidence not been admitted, the result of the
proceeding would have been different. See Lukity, 460 Mich at 495-496. Accordingly, the error
was not harmless. We therefore reverse defendant’s convictions and remand for a new trial.
Given this conclusion, it is not necessary to address defendant’s other allegations of error.

       Reversed and remanded for a new trial. We do not retain jurisdiction.



                                                            /s/ Colleen A. O’Brien
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Cynthia Diane Stephens




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