Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  February 7, 2014                                                                  Robert P. Young, Jr.,
                                                                                               Chief Justice

  147220                                                                             Michael F. Cavanagh
                                                                                     Stephen J. Markman
                                                                                         Mary Beth Kelly
                                                                                          Brian K. Zahra
                                                                                  Bridget M. McCormack
                                                                                        David F. Viviano,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                  Justices
            Plaintiff-Appellee,
  v                                                       SC: 147220
                                                          COA: 311180
                                                          Presque Isle CC: 11-092670-FC
  BRIGITTE FAYE REYNOLDS,
            Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the April 15, 2013 order
  of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
  that the questions presented should be reviewed by this Court.

         CAVANAGH, J. (dissenting).

         I agree with Justice VIVIANO that this case raises serious concerns regarding the
  application of MRE 404(b); therefore, I would grant leave to appeal.

        VIVIANO, J. (dissenting).

         I respectfully dissent from the Court’s order denying defendant’s application for
  leave to appeal. I believe that defendant’s prior convictions may have been improperly
  admitted under MRE 404(b) as evidence of her propensity to commit the charged offense.
  I would grant leave to appeal to consider the appropriate standard for admission of other-
  acts evidence when the prosecutor’s stated purpose in seeking the admission of such
  evidence is to prove the defendant’s intent.

          Although defendant was discovered in the victim’s home, she claimed innocent
  intent—that after discovering a broken door, she entered the home to see if anyone inside
  needed assistance. The prosecution sought to admit defendant’s prior convictions for
  breaking and entering and home invasion as proof to rebut defendant’s alleged innocent
  intent.

          Other-acts evidence, including prior convictions, “is not admissible to prove the
  character of a person in order to show action in conformity therewith.” MRE 404(b)(1).
  Such evidence may be admissible if offered for one of several enumerated non-character
  purposes. Id.; People v Crawford, 458 Mich 376, 386-389 (1998). However, “a common
  pitfall in MRE 404(b) cases is the trial courts’ tendency to admit the prior misconduct
  evidence merely because it has been ‘offered’ for one of the rule’s enumerated proper
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purposes.” Crawford, 458 Mich at 387. “In order to ensure the defendant’s right to a fair
trial, courts must vigilantly weed out character evidence that is disguised as something
else.” Id. at 388. To this end, there must be some showing of similarity between the
prior conviction and the present charge. The degree of similarity required differs
depending on the theory of relevance proffered. People v Mardlin, 487 Mich 609, 622
(2010). When, as here, the theory of relevance goes to intent, “logical relevance dictates
only that the charged crime and the proffered other acts ‘are of the same general
category.’” People v VanderVliet, 444 Mich 52, 79-80 (1993), quoting Imwinkelried,
Uncharged Misconduct Evidence, § 3:11, p 23; see also People v Sabin (After Remand),
463 Mich 43, 64 (2000) (stating that “‘mere similarity . . . suffices for evidencing
intent’”) (citation omitted).

       Even though the prior convictions here—breaking and entering and home
invasion—are in the same general category as the offenses charged, I do not believe that
they may properly be admitted without even a minimal inquiry into the similarity of the
circumstances involved. Indeed, the requirement that “past events need only fall into the
same ‘general category’ under these circumstances [to prove innocent intent] does not
extinguish the need for similarity to whatever extent similarity is relevant in a particular
case.” Mardlin, 487 Mich at 623 n 39. For example, in Mardlin, when the defendant was
accused of arson, this Court stated that evidence of the defendant’s involvement in past
fires was “sufficiently similar or related because they each involved a home or vehicle
that was under defendant’s control.” Id.

       In contrast, in People v Crawford, this Court held that the trial court abused its
discretion by admitting the defendant’s prior drug-delivery conviction because it was not
sufficiently similar to the charged offense of possession with intent to deliver. The
defendant had claimed innocent intent based on lack of knowledge of the drugs
discovered in his vehicle. The prosecution sought to admit the prior drug-delivery
conviction under the doctrine of chances, a theory that “rests on the premise that ‘the
more often the defendant commits an actus reus, the less is the likelihood that the
defendant acted accidentally or innocently.’” Crawford, 458 Mich at 393, quoting
Imwinkelried, Uncharged Misconduct Evidence, § 3:11, p 45. But this Court concluded
that there was “an insufficient factual nexus between the prior conviction and the present
charged offense to warrant admission of the evidence under the doctrine of chances.” Id.
at 395-396. In the prior crime, officers had caught the defendant in the act of selling
drugs. Id. at 381-382, 396. In Crawford, a routine traffic violation eventually led to the
discovery of cocaine hidden in the dashboard of the defendant’s car, which he had
purchased only 5 to 10 days before and had loaned to others before the traffic stop. Id. at
379-380, 396-397. Under these circumstances, this Court held that introduction of the
prior conviction was improper:

             The facts of the 1988 drug offense simply do not bear out the
       prosecutor’s contention that the defendant “obviously knew” the drugs
                                                                                           3

       were in his dashboard and that he intended to deliver them. The prior
       conviction only demonstrates that the defendant has been around drugs in
       the past and, thus, is the kind of person who would knowingly possess and
       intend to deliver large amounts of cocaine. To the extent that the 1988
       conviction is logically relevant to show that the defendant was also a drug
       dealer in 1992, we believe it does so solely by way of the forbidden
       intermediate inference of bad character that is specifically prohibited by
       MRE 404(b). Thus, the defendant’s prior conviction was mere character
       evidence masquerading as evidence of “knowledge” and “intent.” [Id. at
       396-397 (emphasis added).]

       I believe that allowing admission of other-acts evidence solely on the ground that,
because defendant has been convicted of offenses in the same general category of crime
in the past, it is more probable than not that defendant had the requisite criminal intent in
this case, “is a poorly disguised propensity argument, which is precisely what Rule
404(b) expressly forbids.” Id. at 397 n 14. Given that “using bad acts evidence can
weigh too much with the jury and . . . so overpersuade them as to prejudge one with a bad
general record and deny him a fair opportunity to defend against a particular charge,” we
should ensure that lower courts closely scrutinize “[t]he logical relationship between the
proffered evidence and the ultimate fact sought to be proven . . . .” Id. at 384, 388
(quotation marks and citation omitted).

        In this case, the prosecution offered absolutely no explanation of the
circumstances of the past crimes, nor did the trial court determine whether they were
similar to the present crimes. Absent such a determination, there was an insufficient
showing of logical relevance between the prior convictions and the charged offenses. See
Mardlin, 487 Mich at 623 n 39. Under these circumstances, it appears that the trial court
succumbed to the “common pitfall” of admitting the prior misconduct evidence “merely
because it has been ‘offered’ for one of the rule’s enumerated proper purposes.”
Crawford, 458 Mich at 387. Although admission of other-acts evidence may be held to a
relatively low bar of similarity for the purpose of proving intent, surely the bar is higher
than what occurred in this case. Thus, I believe that the trial court may have abused its
discretion by admitting evidence of defendant’s prior convictions.

       For these reasons, I would grant leave to appeal.
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MCCORMACK, J., joins the statement of VIVIANO, J.




                 I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
           foregoing is a true and complete copy of the order entered at the direction of the Court.
                 February 7, 2014
h0204
                                                                     Clerk
