            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 21, 2019
               Plaintiff-Appellee,

v                                                                    Nos. 340501; 340520
                                                                     Macomb Circuit Court
CHRISTOPHER WILLIS,                                                  LC No. 2017-000455-FH;
                                                                             2016-004579-FH

               Defendant-Appellant.


Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.

SHAPIRO, J. (dissenting).

       I respectfully dissent.

        On October 4, 2016, defendant and his live-in girlfriend, the complainant, went to
Dunham’s to purchase a handgun. At the store, defendant paid for the gun and complainant
completed the registration documents in her name. Ten days later, defendant moved out of the
apartment he shared with complainant, taking all his possessions. When moving out he took the
gun with him. Complainant, asserting that the gun had been a gift to her from defendant,
demanded that he return it to her, and he refused unless she paid him for it. About one month
later complainant contacted the police, reporting that defendant had stolen her gun. Eventually,
defendant was charged with larceny of a firearm and receiving and concealing a stolen firearm.

        The sole issue at trial was whether defendant or complainant owned the gun. Relevant to
that determination were the testimony of the parties concerning the purchase of the gun, whether
defendant, having paid for it, intended it as a gift to complainant and whether the fact that it was
registered in complainant’s name demonstrated that it belonged to her. The case was
indisputably a one-on-one credibility contest. In such a setting, any admission of irrelevant or
prejudicial evidence must be reviewed with particular care given the likelihood that it will
improperly effect the verdict. “In a trial where the evidence essentially presents a one-on-one
credibility contest between the victim and the defendant, [improperly admitted] evidence may tip
the scales against the defendant, which means that the error is more harmful.” People v Gursky,




                                                -1-
486 Mich 596, 620-21, 786 NW2d 579 (2010). See also People v Snyder 301 Mich App 99, 112;
835 NW2d 608.

        Prior to trial, the prosecution filed a notice of MRE 404(b) evidence seeking to admit
several prior acts involving domestic violence. The defense objected. At the hearing on this
objection, the prosecutor withdrew the notice explaining that she had incorrectly believed
defendant was charged with domestic violence in this case, which would have allowed the
evidence to be admitted under MCL 768.27b. The prosecutor now understood that domestic
violence was not a charge and confirmed that she would not introduce such evidence.

        Despite the withdrawal of the MRE 404(b) notice, the prosecution introduced MRE
404(b) evidence at trial through the testimony of the arresting police officer.1 The ostensible
purpose of this officer’s testimony was to establish that he found the weapon in defendant’s
backpack, i.e., in his possession. Although defendant’s removal and retention of the gun was not
really in dispute, the discovery of the gun in his possession was relevant to an element of the
offense and so properly introduced. However, during his testimony the officer made multiple
statements that violated MRE 404(b)(1) and, given the lack of notice, MRE 404(b)(2).

        First, the officer testified that he encountered defendant when he was called to the scene
of a “domestic violence incident” between defendant and an ex-girlfriend who was the mother of
his children. The officer described the scene in some detail, including that he heard “yelling and
screaming” at the scene and saw items being thrown. Most significantly, he told the jury that
defendant had a “previous history of domestic incidents,” that numerous police cars reported to
the scene because they believed there to be a “potential for violence” and because they believed
that there “may be weapons involved.”

       As noted, that defendant was in possession of the gun was relevant, albeit to an element
that was not seriously disputed. However, it was surely irrelevant that he possessed the weapon
while engaged in a domestic dispute with a third party, that he had been involved in other
domestic disputes and that the police believed he presented a risk of violence. The officer’s
testimony recounting these facts was of no probative value. “Evidence is probative if it tends ‘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.’ ” People v Denson, 500 Mich
385, 401-402; 902 NW2d 306 (2017), quoting MRE 401.

        The challenged testimony was evidence of other wrongs and of character and so
inadmissible under MRE 404(b)(2) given the lack of notice. The admission of the evidence also
violated MRE 404(b)(1) which permits such evidence only if it is probative of issues such as
“proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act,
knowledge identity or absence of mistake or accident . . . .” The evidence was not relevant to



1
  Defense counsel did not object when this occurred but did object before trial and obtained a
favorable ruling. Whether the issue was properly preserved can be debated, but is of little
consequence because the error was plain.



                                               -2-
any of these purposes; indeed, the prosecution does not even make the claim that it was. The
prosecution argues only that it served to “elicit the events of the specific police response.”

        We can readily dispense with this argument. There was a time when the officer’s
extraneous testimony might have been admitted under the res gestae exception to MRE 404(b).
However, it is now settled that there is no res gestae exception to MRE 404(b) and that such
evidence must pass muster under the rule. People v Jackson, 498 Mich 246, 264; 869 NW2d 253
(2015) (“We begin once again with the plain language of MRE 404(b), which sets forth no such
‘res gestae exception’ from its coverage. Nor do we see any basis for reading one into the rule.”)
Thus, it is no longer enough to assert that the improper evidence should be admitted to show
“context” or, as in this case, to “elicit the events of the specific police response.”

       Even if the challenged testimony had some relevancy, it would be substantially
outweighed by its prejudicial effect. In a case that was a credibility contest, the jury learned that
defendant had an ugly domestic dispute with his children’s mother, that this was not an isolated
incident and the police had been called to the scene of multiple domestic disputes involving him
and that the police considered him potentially violent. This is classic “bad man” evidence which

       presents three types of impropriety. First, that jurors may determine that although
       defendant's guilt in the case before them is in doubt, he is a bad man and should
       therefore be punished. Second, the character evidence may lead the jury to lower
       the burden of proof against the defendant, since, even if the guilty verdict is
       incorrect, no “innocent” man will be forced to endure punishment. Third, the jury
       may determine that on the basis of his prior actions, the defendant has a
       propensity to commit crimes, and therefore he probably is guilty of the crime with
       which he is charged. All three of these dimensions suggest a likelihood that
       innocent persons may be convicted. [People v Allen, 429 Mich 558, 569; 420
       NW2d 499 (1988) (citation omitted).]

Similarly, in Denson, 500 Mich at 410, the Supreme Court warned “that other-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.” (Quotation marks and citations omitted).

       Nevertheless, the prosecution argues and the majority concludes that the improper
admission of this evidence was harmless, a conclusion that cannot be squared with the law or the
evidence. The majority first states that informing the jury that defendant had a history of
domestic disturbances and was considered dangerous by the police was not overly prejudicial
because the officer also testified that he located the gun in defendant’s backpack, a fact which
was relevant and admissible.2 However, the fact that a witness provides some relevant testimony
is obviously not grounds to admit other testimony by that witness which violates the rules of


2
  The officer could easily have testified to discovery of the gun in defendant’s backpack without
referring to the setting in which it occurred, let alone the existence of prior domestic incidents
and the police concern that the defendant might be armed and dangerous.



                                                -3-
evidence. Nor is it grounds to conclude, as the majority does, that the improperly evidence is
harmless.

        The majority’s second rationale is even more circular. It argues that the verdict shows
that the jury found the complainant more credible, when in fact we do not know if that was the
basis for the verdict or if the verdict was influenced by the improperly admitted other acts
evidence. Based on this assumption the majority then states that “defendant has failed to show
how defendant’s past instances of domestic ‘incidents’ influenced the jury’s ability to determine
credibility.” This is a curious assertion given that the prejudicial effect of improperly admitted
404(b) evidence is well-understood. Rather than weighing that likely prejudice against the
untainted evidence so as to determine if the error was harmless, 3 the majority seems to suggest
that the prejudicial effect must somehow be conclusively proven to have actually controlled the
verdict. This assertion implies that absent post-verdict interviews with jurors confirming the
effect of the error—which a court would likely decline to consider—we must conclude that the
error was harmless. However, the law does not require a defendant to demonstrate that the jury’s
deliberations and verdict were in fact improperly effected. Rather, an error justified reversal if
“it is more probable than not that the error affected the outcome of the proceedings,” People v
Young, 472 Mich 130, 141-142; 693 NW2d 801 (2005) (emphasis added), a determination that
reviewing courts are routinely entrusted with despite the fact that it cannot be known with
certainty.4



                                                            /s/ Douglas B. Shapiro




3
  “Our inquiry is to the effect the error had or reasonably may be taken to have had upon the
jury’s decision. To determine whether the defendant was so prejudiced that reversal is required,
we evaluate the prejudicial effect of testimony in the light of other competent evidence.” People
v Straight, 430 Mich 418, 427; 424 NW2d 257 (1988) (quotation marks and citation omitted).
“An error is outcome determinative if it undermined the reliability of the verdict; in making this
determination, this Court should focus on the nature of the error in light of the weight and
strength of the untainted evidence.” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010)
(quotation marks and citation omitted).
4
  I also disagree with the majority’s suggestion that the improper testimony was not emphasized
by the prosecution because it was mentioned only once in the prosecutor’s closing argument.
This overlooks the fact that in her cross-examination of defendant, the prosecutor engaged in
lengthy questioning (5 transcript pages) concerning the events at the domestic incident. He was
asked about the reason for the dispute, to read and comment on his ex-girlfriend’s written
statement about the event in which she stated that she did not want him to see the children
because he had been drinking, whether he had a license to carry a concealed weapon and whether
the gun was loaded.



                                               -4-
