                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      March 19, 2015
               Plaintiff-Appellee,

v                                                                     No. 320275
                                                                      Oakland Circuit Court
CHARLIE CROSKEY III,                                                  LC No. 2013-246512-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SAWYER and O’CONNELL, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a jury trial, of first-degree home
invasion, MCL 750.110a(2), and domestic violence, MCL 750.81(2). The trial court sentenced
defendant as a fourth habitual offender, MCL 769.12, to 57 months to 40 years in prison for the
home invasion conviction and to 90 days (time served) for the domestic violence conviction. We
affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       Defendant’s convictions arise from an incident that occurred on June 11, 2013, when he
broke into a home occupied by his girlfriend, Monica Colon-Holloway, and assaulted her.

         Before trial, the prosecution filed a notice of intent to introduce other-acts evidence under
MCL 768.27b, asserting that the evidence was relevant to prove both defendant’s character and
his intent to commit the charged offenses, and “to rebut a claim that the incident was fabricated.”
The other-acts evidence related to prior incidents of physical violence between defendant and
Colon-Holloway and threatening phone calls made by defendant to Colon-Holloway and her
mother. Defendant did not file a response to the notice, and the court did not address the matter
until trial.

         Before jury selection, the prosecution moved for the admission of the evidence listed in
its notice of intent. Defendant announced an intent to object to the evidence when it was offered
at trial, contending that it was not relevant to the charged incident that occurred on June 1,
20131. The trial court ruled as follows:

              Notice was appropriately and properly given to the Defendant that the
       People intended to use these two other circumstances or incidents as other acts

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       evidence in this case. The statute is clear that once the Notice is given and it’s not
       for purpose to prove character, but some other allowable purpose the Court does
       the balancing test and in this case I find that it would be relevant to show state of
       mind of the victim.

              Also, any lack of mistake also can lead to show scheme, plan of the
       Defendant and that’s very relevant in this case. So People’s motion and request is
       granted. Objection is overruled.

        Colon-Holloway testified that she began a dating relationship with defendant in 2012 and
had moved in with him and his daughter by the end of that year. She testified that defendant was
controlling and was physically abusive when drinking. She testified that in January 2013, she
and defendant argued. She was uncertain whether defendant hit her during that argument. Later,
while defendant and his daughter were absent from the home, Colon-Holloway packed up her
things and went to stay with her mother.

        Colon-Holloway testified that, after she moved from defendant’s home, she and
defendant “quit talking for a minute.” She further testified that in February 2013, “we got the
stalking and the harassing calls.” Colon-Holloway explained that defendant started calling her
and asking why she had left him. Sometimes he called her several times a day. On February 22,
2013, defendant called Colon-Holloway 20 or 30 times. He told her that he was going to come
to her mother’s house. Colon-Holloway believed that defendant was drunk when he called.
Colon-Holloway, who was not home at the time, called her mother to warn her. This incident led
to police involvement. Defendant was issued a citation and the court imposed a no-contact
order.

       Despite the no-contact order, Colon-Holloway and defendant continued to speak.
Defendant promised not to drink anymore and said he was going to change. They agreed to “try
to make it work” and began seeing each another again in March 2013.1 Colon-Holloway and
defendant became engaged on or about May 3, 2013.

        Colon-Holloway testified that on the evening of June 11, 2013, she went out with
defendant. Because her aunt, among others, did not approve of the relationship, Colon-Holloway
did not want anyone to know that she was going out with defendant, so she met him at a local
party store between 5:00 and 6:00 p.m. Defendant picked her up at that location and they drove
around for awhile and talked. Defendant asked Colon-Holloway about her relationship with a
man named Paul. When Colon-Holloway confirmed that Paul was a friend of hers, defendant
became angry and said, “I might as well just take you back to your aunt’s house.” Defendant
dropped Colon-Holloway off at Holloway’s house; Colon-Holloway went inside the house and
assumed that defendant had left.




1
 By that time, Colon-Holloway was living with her aunt, Cheryl Holloway. Also living in the
home were Holloway’s boyfriend, Terrence Stroman, and their three teenaged children.


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        Colon-Holloway testified that she and her cousin were in the living room “when the front
door flew open” and defendant came in and attacked her. Specifically, defendant rushed at her
and hit or pushed her in the back, knocking her to the floor. Her cousin intervened and pushed
defendant away. Colon-Holloway got up and defendant started calling her names and hit her
once in the mouth. The cousin and defendant “exchanged words.” Colon-Holloway and her
cousin told defendant to leave. Colon-Holloway said that she was going to call the police, and
defendant ran out the door saying, “I’m coming back to kill you guys.” One of Colon-
Holloway’s cousins called Holloway, who was not in the house, and Holloway called the police.
Holloway came home and the police arrived shortly thereafter. Colon-Holloway spoke to the
police, but originally denied having any current relationship with defendant and claimed (in an
effort to prevent him from going to jail) that he had just shown up unexpectedly.

        Colon-Holloway’s cousin and Holloway confirmed Colon-Holloway’s version of events.
Holloway testified that although defendant had been to her house on numerous occasions, was
allowed to come over to see Colon-Holloway, and had even spent the night on occasion, he was
not allowed to come into the house without permission.

        Christopher Miracle, an Oakland County deputy sheriff, testified that he was dispatched
to Holloway’s house at 10:20 p.m. on June 11, 2013 to investigate a call of “a domestic nature.”
Miracle spoke to Colon-Holloway outside. She was upset and showed him a cut on the inside of
her lip. Colon-Holloway told Miracle that defendant was her ex-boyfriend and that they had a
no-contact order. While speaking to Miracle, Colon-Holloway saw defendant driving up to the
house and pointed him out to Miracle. Another deputy initiated a traffic stop. Defendant was
reluctant to stop and resisted the officers when they tried to handcuff him.

        Defendant admitted to having a dating relationship with Colon-Holloway but denied ever
striking her. He admitted to having “[a]n argument on the phone” with Colon-Holloway, which
led to a citation “for harassing phone calls” and the no-contact order, but said that Colon-
Holloway’s mother was to blame. He claimed that he went to Colon-Holloway’s aunt’s house on
the night in question to return a yard tool and that he and Colon-Holloway had argued; he denied
striking her and testified that he left because he was too tired to argue anymore. He stated that he
was returning to the house to apologize when he was arrested.

        The jury convicted defendant as described above. This appeal followed. Defendant’s
sole issue on appeal is that the trial court erred in admitting under MCL 768.27b evidence of
prior acts of abuse and harassment by defendant against Colon-Holloway.

                                 II. STANDARD OF REVIEW

        Defendant objected to the admission of the challenged evidence on the ground that it was
not relevant; however, he did not object on the ground that, even if relevant, the evidence was
more prejudicial than probative. “An objection based on one ground at trial is insufficient to
preserve an appellate attack based on a different ground.” People v Acevedo, 217 Mich App 393,
398; 551 NW2d 478 (1996). Thus, only the relevancy issue is preserved. A preserved issue
regarding the admission of evidence is reviewed for an abuse of discretion. People v Hine, 467
Mich 242, 250; 650 NW2d 659 (2002). An unpreserved evidentiary issue is reviewed for plain
error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130

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(1999); People v Houston, 261 Mich App 463, 466; 683 NW2d 192 (2004), aff’d 473 Mich 399
(2005).

                                         III. ANALYSIS

        We find no error requiring reversal in the admission of the challenged evidence. Where,
as here, a defendant is charged with an offense involving domestic violence, evidence of other
acts of domestic violence that occurred less than 10 years before the charged offense “is
admissible for any purpose for which it is relevant, if it is not otherwise excluded under [MRE]
403.” MCL 768.27b(1) and (4). Unlike MRE 404(b), the MCL 768.27b permits the evidence to
be used “to show a defendant’s character or propensity to commit the same act.” People v
Railer, 288 Mich App 213, 219-220; 792 NW2d 776 (2010). The other acts consisted of
harassing telephone calls and actual physical violence. Both types of conduct qualify as
“domestic violence” as defined by MCL 768.27b(5)(a). Although defendant asserts that the
evidence was not relevant, he does not otherwise address the question of relevancy, or argue a
basis for its alleged irrelevancy. Therefore, we could deem that aspect of defendant’s argument
abandoned. People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004) (“[a]n appellant’s
failure to properly address the merits of his assertion of error constitutes abandonment of the
issue”). Nonetheless, we note that the evidence of the phone calls was at least minimally
relevant in shedding light on a material point, i.e. the nature of defendant and Colon-Holloway’s
relationship. The evidence of other acts of physical violence towards Colon-Holloway was
highly relevant to show defendant’s propensity to commit the act for which he was charged. See
MRE 401, 402, People v Murphy (On Remand), 282 Mich App 571, 580; 766 NW2d 303 (2009);
see also Railer, 288 Mich App at 219-220. Thus, we conclude that the trial court did not abuse
its discretion in determining that the challenged evidence was relevant. See People v Blackston,
481 Mich 451, 467; 751 NW2d 408 (2008).

       The primary focus of defendant’s argument is that the evidence should have been
excluded under MRE 403. We disagree.

       “Although relevant, evidence may be excluded if the probative value is substantially
outweighed by the danger of unfair prejudice[.]” MRE 403. In People v Cameron, 291 Mich
App 599, 611; 806 NW2d 371 (2011), this Court stated:

              [T]his Court must make two distinct inquiries under the balancing test of
       MRE 403. First, this Court must decide whether the introduction of [the
       defendant’s] prior-bad-acts evidence at trial was unfairly prejudicial. Then, this
       Court must apply the balancing test and “weigh the probativeness or relevance of
       the evidence” against the unfair prejudice. Upon completion of this second
       inquiry, this Court can determine whether the trial court abused its discretion in
       allowing [the defendant’s] prior bad acts into evidence. [Footnote omitted.]

       The fact that evidence is damaging does not mean that it is unfairly prejudicial because
“‘[a]ny relevant testimony will be damaging to some extent.” Sclafani v Peter S Cusimano, Inc,
130 Mich App 728, 735-736; 344 NW2d 347 (1983). Evidence offered against a party is “by its
very nature . . . prejudicial, otherwise there would be no point in presenting it.” People v Fisher,
449 Mich 441, 451; 537 NW2d 577 (1995). Instead, “unfair prejudice refers to the tendency of

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the proposed evidence to adversely affect the objecting party’s position by injecting
considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or
shock.” People v Goree, 132 Mich App 693, 702-703; 349 NW2d 220 (1984). Generally,
evidence is unfairly prejudicial if there is “a danger that marginally probative evidence will be
given undue or preemptive weight by the jury,” People v Crawford, 458 Mich 376, 398; 582
NW2d 785 (1998), if it would lead the jury to decide the case on an improper basis such as
emotion, People v Meadows, 175 Mich App 355, 361; 437 NW2d 405 (1989), or if “it would be
inequitable to allow the use of the evidence,” Blackston, 481 Mich at 462.

       In a related context, our Supreme Court has identified a list of factors “that may lead a
court to exclude” evidence “under MRE 403 as overly prejudicial,” including “(1) the
dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the
other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of
intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other
acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s
testimony.” People v Watkins, 491 Mich 450, 487-488; 818 NW2d 296 (2012) (footnote
omitted). While the trial court should apply the balancing test “to each separate piece of
evidence offered,” id. at 489, it need not conduct the balancing test on the record. People v
Gaines, 306 Mich App 289, 302 n 8; 856 NW2d 222 (2014).

        The harassing telephone calls were not particularly similar to the charged offense, which
involved a physical assault. But they occurred close in time to the charged offense, only four
months earlier. The frequency of the harassing telephone calls is unclear; the evidence showed
that on one occasion, defendant made 20 to 30 calls in one day, but it did not indicate how
seldom or often defendant made other harassing calls to Colon-Holloway. As stated earlier, the
harassing phone calls were, like the physical abuse, indicative of the dysfunctional nature of the
couple’s relationship. The February incident of harassing phone calls was well-documented; in
addition to both the Colon-Holloway’s and defendant’s testimony, it was supported by a register
of actions from the 50th District Court that was admitted into evidence. Balancing these factors,
it cannot be said that the trial court’s admission of the evidence constituted plain error. See
Carines, 460 Mich at 763-764. Further, although the evidence of the phone calls may have been
only minimally probative, there was little risk that the brief testimony regarding the phone calls
would lead the jury to convict defendant on an improper basis. See Meadows, 175 Mich App at
361.

        The evidence of other incidents of physical violence against Colon-Holloway was highly
similar to the charged offense of domestic violence. The temporal proximity and frequency of
the other acts in relation to the charged offense is unclear, but it appears that it was a recurrent
feature of the relationship; the couple argued frequently, and when they argued defendant was
apt to become physically abusive, especially if he had been drinking. These other incidents were
similar to the charged offense, which took place during or shortly after an argument. Defendant
denied any acts of physical violence. The evidence was necessary to help the jury determine
which of the victim’s or defendant’s versions of the events was more likely accurate and
credible. Finally, although evidence that defendant had previously struck Colon-Holloway was
undoubtedly prejudicial, it was not the sort of evidence that would lead the jury to decide the
case on an improper basis; indeed the jury was properly allowed to consider such highly
probative evidence in determining whether defendant had committed the charged offense of

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domestic violence. See MCL 768.27b; see also Meadows, 175 Mich App at 361. We find that
the admission of such evidence was not plain error. See Carines, 460 Mich at 763-764.

      Affirmed.

                                                     /s/ Mark T. Boonstra
                                                     /s/ David H. Sawyer
                                                     /s/ Peter D. O’Connell




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