                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 20, 2014
               Plaintiff-Appellee,

v                                                                   No. 317302
                                                                    Ingham Circuit Court
DREW DAVID SEWARD,                                                  LC No. 11-000879-FH

               Defendant-Appellant.


Before: K. F. KELLY, P.J., and SAWYER and METER, JJ.

PER CURIAM.

     Defendant appeals as of right his jury-trial convictions of obstructing a police officer,
MCL 750.81d(1), and obstructing a police officer causing injury, MCL 750.81d(2). We affirm.

        The police responded to a report of an incapacitated person lying on the ground. Officer
Paul Beasinger found defendant lying incapacitated on the grass near a sidewalk. Defendant
failed to respond to questions, and an ambulance was called. The officer smelled intoxicants on
defendant and kicked the bottom of defendant’s shoe to wake defendant. Defendant asked the
officer to stop kicking his foot and stated that he did not want an ambulance. Defendant
attempted to sit up, and the officer told him he was not free to leave until the ambulance arrived.
Defendant continued to try and get up; when Beasinger and Officer Aaron Wieber attempted to
handcuff him he resisted and began to push and pull away. Wieber used his taser to attempt to
subdue defendant while defendant continued to resist. Defendant attempted to place Beasinger
in a headlock, Beasinger punched defendant to subdue him, and Beasinger broke his hand in the
process. Defendant continued to resist while being transported to the hospital and at the hospital.

        Evidence was introduced in the form of testimony from Officers Penni Elton and Jeromy
Churchill that on a prior occasion a security employee at a bar approached them with concern
that defendant might have a weapon. Elton touched defendant’s arm to get his attention, but
defendant, who was intoxicated, swore at Elton and turned away. Elton attempted to explain
why she was talking to him and gripped his arm more tightly; defendant turned to the officer
with both fists clenched and took an aggressive stance. Elton placed defendant’s arm behind his
back and applied a wrist lock. Churchill grabbed defendant’s other arm. Defendant was loud,
aggressive, and argumentative. Two additional officers helped handcuff defendant and place
him in a patrol car. Defendant yelled, used profanity, and was physically violent. Defendant’s
aggression continued at the jail, where the officers had to place him in belly chains for safety.

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        Defendant argues that the trial court abused its discretion by admitting the other-acts
evidence. We review for an abuse of discretion a trial court’s ruling on the admissibility of
other-acts evidence. People v Waclawski, 286 Mich App 634, 669-670; 780 NW2d 321 (2009).
A trial court abuses its discretion when it chooses a result that is outside the range of reasonable
and principled outcomes. People v Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007).
“The determination whether the probative value of evidence is substantially outweighed by its
prejudicial effect is best left to a contemporaneous assessment of the presentation, credibility,
and effect of the testimony.” Waclawski, 286 Mich App at 670.

       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.

        In People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004), the Michigan Supreme
Court summarized the requirements for the admission of other-acts evidence as follows: (1) the
prosecutor must offer the evidence under a theory other than character or propensity for criminal
behavior; (2) the evidence must be relevant under MRE 402, as enforced by MRE 104(b); and
(3) the probative value of the evidence must not be substantially outweighed by unfair prejudice
under MRE 403.

        Defendant’s theory was that he had fallen asleep in the grass and that, after the kick on
his foot, he had simply been trying to sit up and otherwise reposition himself in order to make his
knee more comfortable, because he had a preexisting knee injury. He denied having tried to put
an officer in a headlock. He stated that he never attempted to leave, because of his painful knee
and because he “had been drinking.” The prosecutor offered evidence that on a previous
occasion defendant acted belligerently and with aggression toward police officers; the
prosecution offered this evidence to show that defendant acted intentionally during the charged
offenses and not as the result of a mistake or accident. The evidence was relevant and highly
probative in light of defendant’s defense. The evidence tended to show that defendant’s defiance
was purposeful and not merely a matter of attempting to alleviate the pain in his knee.

        The trial court did not abuse its discretion in determining that the probative value of the
evidence was not substantially outweighed by unfair prejudice under MRE 403. Unfair prejudice
occurs when marginally probative evidence might be given undue or preemptive weight by the
jury. People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998). The evidence was highly
relevant and served to refute defendant’s suggestion that he acted unintentionally. This
relevance outweighed the danger of unfair prejudice. Secondly, any prejudice was minimized by
the trial court’s instruction that the jury was to use the evidence only to consider whether it
tended to show that defendant acted purposefully, and not whether defendant was a bad person
who tended to commit crimes. A jury is presumed to follow its instructions. People v Graves,


                                                -2-
458 Mich 476, 486; 581 NW2d 229 (1998). The trial court did not abuse its discretion by
admitting the challenged evidence.

      Affirmed.
                                                     /s/ Kirsten Frank Kelly
                                                     /s/ David H. Sawyer
                                                     /s/ Patrick M. Meter




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