            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 12, 2019
              Plaintiff-Appellee,

v                                                                  No. 340358
                                                                   Macomb Circuit Court
HAROLD VINCENT WILLIAMS,                                           LC No. 2016-003915-FH

              Defendant-Appellant.


Before: JANSEN, P.J., and CAMERON and TUKEL, JJ.

PER CURIAM.

        Defendant, a high school teacher, appeals as of right his jury trial conviction of third-
degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(e)(i), for engaging in sexual
penetration with a student under the age of 18. The trial court sentenced defendant to 20 months
to 15 years’ imprisonment. We affirm.

        The jury found that defendant, a 43-year-old teacher at a public high school, engaged in
sexual penetration with a 17-year-old female student at school. The prosecution presented
evidence that after the police were notified that defendant may be having an inappropriate
relationship with a student, an investigation led the police to the victim. The victim was
originally from Bangladesh, and had been in the United States for two years. She had been a
student at the school where defendant taught, and was part of the school’s Pharmacy Tech
Program, which defendant ran. The victim turned 18 years old in March 2016, and graduated
from high school at the end of the 2015-2016 school year.

         When the police went to defendant’s apartment in September 2016, the victim was there.
She claimed to be in a relationship with defendant at that time, but was reluctant to speak with
the police about defendant. She told the police that she and defendant kissed in February 2016,
but denied having sex with defendant until after she turned 18 years old. Later, however, the
victim disclosed to detectives that she and defendant first had sexual intercourse on March 1,
2016, when she was still only 17 years old. At defendant’s preliminary examination, the victim
testified that she and defendant kissed in February 2016, and had sexual intercourse in his
classroom after school on March 1, 2016, or near the end of February 2016. The victim further



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testified that defendant told her that he was not permitted to have sex with her because she was
his student and only 17 years old, and he cautioned her “not to tell anyone.”

        The victim later recanted, claiming that although she and defendant had sexual
intercourse, it did not occur until after she turned 18 years old. At trial, evidence was presented
that after the preliminary examination, defendant and the victim had numerous communications
in violation of a no-contact order. The prosecutor argued that the victim recanted because of
influence from defendant and members of his family. The victim acknowledged her preliminary
examination testimony at trial, but testified that she was mistaken about the date, and she
repeatedly asserted that she and defendant did not engage in sexual intercourse until after she
turned 18 years old. The defense argued that defendant was not guilty of any crime because the
victim was 18 years old when he engaged in consensual sexual intercourse with the victim. The
defense denied that the victim recanted because of any improper influence, and pointed out that it
was the victim who initiated approximately 80 percent of the contacts between her and
defendant.

                                    I. OTHER-ACTS EVIDENCE

       In his first claim, defendant challenges the trial court’s decision to allow the prosecutor to
present evidence that defendant had sexual contact with another former student, identified as 18-
year-old “Brittany.”1 We disagree.

       We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.
People v Bynum, 496 Mich 610, 623; 852 NW2d 570 (2014). An abuse of discretion occurs
when the trial court’s decision falls outside the range of reasonable and principled outcomes.
People v Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013). “Preliminary questions of law,
such as whether a rule of evidence or statute precludes the admission of particular evidence, are
reviewed de novo[.]” Bynum, 496 Mich at 623.

        “At its essence, MRE 404(b) is a rule of inclusion, allowing relevant other acts evidence
as long as it is not being admitted solely to demonstrate criminal propensity.” People v Martzke,
251 Mich App 282, 289; 651 NW2d 490 (2002); see also People v Mardlin, 487 Mich 609, 615;
790 NW2d 607 (2010). Although MRE 404(b)(1) prohibits “ ‘[e]vidence of other crimes,
wrongs, or acts’ ” to prove a defendant’s character or propensity to commit the charged crime, it
permits such evidence 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.’ ” People v Knox, 469 Mich 502, 509; 674 NW2d 366
(2004), quoting MRE 404(b). Other-acts evidence is admissible under MRE 404(b)(1) if it is (1)
offered for a proper purpose, i.e., one other than to prove the defendant’s character or propensity
to commit the crime, (2) relevant to an issue or fact of consequence at trial, MRE 401, (3)
sufficiently probative to outweigh the danger of unfair prejudice, under MRE 403, and (4) a
limiting instruction may be provided to the jury upon request. People v Starr, 457 Mich 490,



1
    A fictitious name was used to refer to the student to protect her anonymity.


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496-497; 577 NW2d 673 (1998); People v VanderVliet, 444 Mich 52, 55, 63-64, 74-75; 508
NW2d 114 (1993), amended 445 Mich 1205 (1994).

        “A trial court admits relevant evidence to provide the trier of fact with as much useful
information as possible.” People v Cameron, 291 Mich App 599, 612; 806 NW2d 371 (2011).
In People v Sabin (After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000), our Supreme Court
explained that “evidence of similar misconduct is logically relevant to show that the charged act
occurred where the uncharged misconduct and the charged offense are sufficiently similar to
support an inference that they are manifestations of a common plan, scheme, or system.” See
also People v Hine, 467 Mich 242, 251; 650 NW2d 659 (2002) (the evidence “supported the trial
court’s conclusion that there was a common plan, scheme, or system in the defendant’s assaults
on the women and on the child.”). The Sabin Court noted that “[g]eneral similarity between the
charged and uncharged acts does not, however, by itself, establish a plan, scheme, or system used
to commit the acts.” Sabin, 463 Mich at 64. “For other acts evidence to be admissible there
must be such a concurrence of common features that the uncharged and charged acts are
naturally explained as individual manifestations of a general plan.” Hine, 467 Mich at 251; see
also Sabin, 463 Mich at 64-65. But “distinctive and unusual features are not required to establish
the existence of a common design or plan. The evidence of uncharged acts needs only to support
the inference that the defendant employed the common plan in committing the charged offense.”
Hine, 467 Mich at 252-253; see also Sabin, 463 Mich at 65-66.

        We agree that the challenged evidence was probative of defendant’s common scheme,
plan, or system of preying on similarly situated young Bengali females whom he met in his
classroom, had authority over in the Pharmacy Tech Program, and who, because of their culture,
were less likely to disclose sexual contact with him. See Sabin, 463 Mich at 63. The
commonality of the circumstances of the other-acts evidence and the charged crimes were
sufficiently similar to establish a scheme, plan, or system in doing an act. Id. In both the other
act and the charged crime, defendant, a teacher, targeted a female student who had immigrated to
the United States from Bangladesh only recently before attending high school. Both students
had family issues, a lack of family support, were underprivileged, and were from a culture where
females want to maintain privacy or secrecy about any sexual contact, and are less likely to
disclose any inappropriate sexual acts for fear of familial repercussions. Defendant developed
friendships with these young Bengali females outside the classroom, had inappropriate
exchanges with them, used his position to provide internship opportunities for them, led them to
believe that he had deep feelings for them, and had sexual contact with them. The commonality
of the circumstances of the other-acts evidence and the charged offense are sufficiently similar
that the jury could infer that defendant had a system that involved targeting these young,
compliant, immigrant females, who were his students, grooming them, and engaging in sexual
contact with them. Id.

        Further, we are not persuaded that the evidence should have been excluded because it
was unduly prejudicial. Under MRE 403, relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. Cameron, 291 Mich App at
610. MRE 403 is not, however, intended to exclude “ ‘damaging’ ” evidence, because any
relevant evidence will be damaging to some extent. People v Mills, 450 Mich 61, 75; 537 NW2d
909 (1995), mod 450 Mich 1212 (1995) (citation omitted). Instead, under the balancing test of
MRE 403, a court must first decide if the prior bad-acts evidence was unfairly prejudicial, and

                                               -3-
then “ ‘weigh the probativeness or relevance of the evidence’ against the unfair prejudice” to
determine whether any prejudicial effect substantially outweighed the probative value of the
evidence. Cameron, 291 Mich App 611 (citation omitted). Unfair prejudice exists where there
is “ ‘a danger that marginally probative evidence will be given undue or pre-emptive weight by
the jury’ ” or “ ‘it would be inequitable to allow the proponent of the evidence to use it.’ ” Mills,
450 Mich at 75-76 (citation omitted); People v McGuffey, 251 Mich App 155, 163; 649 NW2d
801 (2002). In the second situation, the unfair prejudice language “refers to the tendency of 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.”
Cameron, 291 Mich App 611 (citation and quotation marks omitted).

        We are not persuaded that the jury would have been unable to rationally weigh the
evidence, and consider it for its proper purpose. The record discloses that the prosecutor focused
on the proper purpose for which the evidence was admissible. Moreover, the trial court gave a
cautionary instruction to the jury concerning the proper use of the evidence, thereby limiting any
potential for unfair prejudice. It is well established that jurors are presumed to have followed
their instructions. People v Breidenbach, 489 Mich 1, 13; 798 NW2d 738 (2011). Accordingly,
there was no error in allowing the other-acts evidence.

                           II. SCORING OF OFFENSE VARIABLE 10

        Defendant also argues that the trial court erroneously scored offense variable (OV) 10 of
the sentencing guidelines. Again, we disagree.

         When reviewing a trial court’s scoring decision, the trial court’s “factual determinations
are reviewed for clear error and must be supported by a preponderance of the evidence.” People
v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate
to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law,
is a question of statutory interpretation, which an appellate court reviews de novo.” Id.

        OV 10 addresses exploitation of a vulnerable victim, and the trial court must score 15
points if “[p]redatory conduct was involved.” MCL 777.40(1)(a). “ ‘Predatory conduct’ means
preoffense conduct directed at a victim . . . for the primary purpose of victimization.” MCL
777.40(3)(a). Predatory conduct encompasses “only those forms of ‘preoffense conduct’ that are
commonly understood as being ‘predatory’ in nature . . . as opposed to purely opportunistic
criminal conduct or ‘preoffense conduct involving nothing more than run-of-the-mill planning to
effect a crime or subsequent escape without detection.’ ” People v Huston, 489 Mich 451, 462;
802 NW2d 261 (2011) (citation omitted). In order to find that a defendant engaged in predatory
conduct, a trial court must conclude that (1) the defendant engaged in preoffense conduct, (2) the
defendant directed that conduct toward “one or more specific victims who suffered from a
readily apparent susceptibility to injury, physical restraint, persuasion, or temptation[,]” and (3)
the defendant’s primary purpose in engaging in the preoffense conduct was victimization.
People v Cannon, 481 Mich 152, 161-162; 749 NW2d 257 (2008).

       We conclude that it is unnecessary to determine if there was sufficient evidence of
“predatory conduct” to support the 15-point score for OV 10. The trial court must score 10
points for OV 10 if “the offender abused his or her authority status.” MCL 777.40(1)(b). “

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‘Abuse of authority status’ means a victim was exploited out of fear or deference to an authority
figure, including, but not limited to, a parent, physician, or teacher.” MCL 777.40(2)(d).
Exploitation of a vulnerable victim “means to manipulate a victim for selfish or unethical
purposes.” MCL 777.40(3)(b).

        In this case, defendant was the victim’s teacher, and ran the Pharmacy Tech Program in
which the victim was enrolled. At a minimum, the evidence indicated that defendant exploited
his status as a teacher, and targeted this immigrant student, whom he knew had serious family,
cultural, and other vulnerabilities, to manipulate her for sexual activity which he knew she would
not want to disclose. Given the evidence at trial, including the expert testimony about a teenage
victim’s compliance to an authority figure, the victim’s passive acquiescence to defendant
evidences her willingness to defer to defendant’s authority. This evidence supported, at a
minimum, a 10-point score for OV 10. Defendant received a total OV score of 15 points, placing
him in OV Level II (10 to 24 points). MCL 777.63. A score of only 10 points, rather than 15
points, for OV 10 would not change defendant’s placement in OV Level II. Because any scoring
error would not affect defendant’s sentencing guidelines range, defendant is not entitled to
resentencing. People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). Consequently,
defendant is not entitled to any relief with respect to this issue.

       Affirmed.

                                                            /s/ Kathleen Jansen
                                                            /s/ Thomas C. Cameron
                                                            /s/ Jonathan Tukel




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