                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 22, 2015
               Plaintiff-Appellee,

v                                                                    No. 318545
                                                                     Oakland Circuit Court
HOWARD LEROY McMANAMY,                                               LC No. 2013-245729-FH

               Defendant-Appellant.


Before: O’CONNELL, P.J., and BORRELLO and GLEICHER, JJ.

O’CONNELL, P.J., (dissenting).

        Defendant is a serial sex offender who is required to register under the Michigan’s Sex
Offenders Registration Act (SORA), MCL 28.721 et seq. However, I disagree with the majority
opinion reversing his conviction of failing to register as a sex offender, MCL 28.729(1), and
remanding for a new trial. The majority’s linear reasoning fails to appreciate the ways in which
this case is different from Old Chief v United States, 519 US 172; 117 S Ct 644; 136 L Ed 2d 574
(1997), and fails to appreciate the trial court’s role of weighing the probative value and
prejudicial effect of evidence. In cases such as this, in which the prior conviction is relevant for
other reasons and the stipulation itself would expose the jury to the nature of the offense, I would
require the trial court to conduct an MRE 403 analysis to determine if the probative value
outweighs the prejudicial effect. Here, the trial court did exactly that, and I would not disturb
this discretionary decision of the trial court. I would affirm the trial court’s learned decision.

                                 I. OVERVIEW OF THE ISSUES

        The majority’s opinion ably states the facts of this case. Defendant challenged the
admission of his certified record of conviction and his cross-examination on the convictions,
which essentially mirrored each other. His only objection was that evidence of the degree of his
prior convictions would be unfairly prejudicial. On appeal, he complains that he was prejudiced
because the prosecutor’s admission of a certified copy of his prior convictions allowed the jury
to hear the degree of the sexual offenses. Defendant contends that the trial court abused its
discretion in admitting the evidence when defendant offered to stipulate that he had a sex offense
conviction. The prosecutor responds that the best evidence to establish that defendant is a sex
offender is his prior conviction and, in any event, the error was harmless.

      As I see it, this case presents three issues: (1) whether the trial court abused its discretion
under Old Chief because defendant’s stipulation rendered other evidence of his convictions
                                                -1-
irrelevant, (2) whether the trial court erroneously weighed the probative value and prejudicial
effect of the evidence under the specific facts of this case, and (3) whether the trial court’s error,
if it in fact erred, was harmless.

                                  II. STANDARD OF REVIEW

        We review a trial court’s decision to admit evidence for an abuse of discretion. People v
Mann, 288 Mich App 114, 117; 792 NW2d 53 (2010). “A trial court abuses its discretion when
it chooses an outcome that is outside the range of reasonable and principled outcomes.” People v
Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007). We review de novo preliminary
questions regarding the admissibility of evidence. Mann, 288 Mich App at 117.

                                         III. OLD CHIEF

        In Old Chief, the United States Supreme Court held that it was an abuse of discretion to
reject a defendant’s offer to stipulate to a prior judgment and instead admit the full record of the
judgment, “when the name or nature of the prior offense raises the risk of a verdict tainted by
improper considerations, and when the purpose of the evidence is solely to prove the element of
prior conviction.” Old Chief, 519 US at 174. The defendant was charged with assault with a
dangerous weapon and felon in possession of a firearm. Id. The defendant had a prior
conviction of “assault causing serious bodily injury.” Id. at 175. He sought to stipulate that he
had a prior felony in order to avoid admission of the names and natures of his prior felonies, and
he argued that further proof was not relevant in light of his stipulation. Id. at 175. The
prosecutor contended that he was allowed to “prove his case in his own way,” and the trial court
agreed, denying defendant’s request to enter a stipulation. Id. at 177.

        The United States Supreme Court ruled that the trial court abused its discretion in
admitting the evidence because its probative value was substantially outweighed by its
prejudicial effect. Id. at 191. The Court reasoned in part that the notes to the rules indicated that
the probative value of an item may be lessened when there are other means of proof available, Id.
at 184, and the prejudicial effect of introducing a defendant’s prior convictions may be high. Id.
at 185. It also reasoned that the defendant’s stipulation was “seemingly conclusive of evidence
of the element” in that case—namely, the defendant’s commission of a prior felony. Id. at 186.

        The United States Supreme Court opined that the prosecutor’s entitlement to prove the
case in his or her own way had “virtually no application when the point at issue is a defendant’s
legal status[.]” Id. at 190. Ultimately, the United States Supreme Court concluded:

       For purposes of the Rule 403 weighing of the probative against the prejudicial, the
       functions of the competing evidence are distinguishable only by the risk inherent
       in the one and wholly absent from the other. In this case, as in any other in which
       the prior conviction is for an offense likely to support conviction on some
       improper ground, the only reasonable conclusion was that the risk of unfair
       prejudice did substantially outweigh the discounted probative value of the record
       of conviction, and it was an abuse of discretion to admit the record when an
       admission was available. [Id. at 191.]



                                                 -2-
        The majority concludes that Old Chief controls in this case. I disagree and conclude that
Old Chief is distinguishable on its facts. While certain facts are analogous—the defendant in Old
Chief, as defendant here, offered to stipulate to a prior conviction, the prosecutor contended that
his entitlement to prove his case his own way overrode the stipulation, and the trial court
ultimately admitted the evidence—other facts are highly distinguishable. Therefore, I disagree
that the trial court erred as a matter of law by admitting the evidence.

        This case concerns a different type of status offense than Old Chief concerned. In Old
Chief, any generic felony would support the “status” of a prior felony for the specific charge of
felon in possession of a firearm. Stated another way, the nature of the felony is of little
consequence in a felon in possession of a firearm case. Any generic felony is sufficient to form
the foundation for a felon in possession of a firearm change. This is not true in SORA cases in
which the prosecutor must prove a specific sex offense felony and the degree of the felony in
order to establish a specific SORA violation. This changes the balance of the probative value
and prejudicial effect that was critical to Old Chief’s reasoning.

        Old Chief rested in part on the belief that the defendant’s stipulation was conclusive of a
specific element of the case. In this case, while the majority opines that the proposed stipulation
would have eliminated the prosecutor’s need to prove most of the elements of defendant’s crime,
that is not how I read the record. The model criminal jury instruction regarding stipulations
provides the following:

       When the lawyers agree on a statement of facts, these are called stipulated facts.
       You may regard such stipulated facts as true, but you are not required to do so.
       [M Crim JI 4.7.]

One of the prosecutor’s concerns in this case was that “the jury instruction allows the jury to
accept or reject the stipulation.” The trial court included in its reasoning, when it allowed the
prosecutor to admit the certified copy of conviction, that “[the jurors] don’t have to accept the
stipulation.” Unlike in Old Chief, the defendant’s stipulation was not conclusive of the elements
of the crime, since the jury would have been free to reject the stipulation.

        Most importantly, in this case, the trial court conducted a balancing under MRE 403. The
trial court in Old Chief entirely failed to conduct such a balancing. Under MRE 403, the trial
court has the best opportunity to contemporaneously assess the relative weight of the evidence’s
probative value and prejudicial effect. People v Blackston, 481 Mich 451, 462; 751 NW2d 408
(2008).

       Regarding the evidence’s probative value, the certified copy of defendant’s prior
conviction had purposes other than establishing the fact that defendant was convicted. The
majority completely fails to recognize that defendant’s certified record was not admitted “solely
to prove the element of prior conviction.” See Old Chief, 519 US at 174. Unlike felon-in-




                                                -3-
possession, the charge involved in Old Chief, this case concerns a specific intent crime.1 The
prosecutor must prove the defendant “willfully” violated SORA. The certified copy of
conviction helped to establish this by proving that (1) defendant qualified as a sex offender who
was required to register under SORA, when not all sex offenses qualify, (2) defendant had
registration requirements, and (3) defendant was aware of each requirement, because defendant
initialed each requirement. Therefore, the evidence had more probative value than simply
proving defendant’s status as an offender.

        Regarding the evidence’s prejudicial effect, defendant’s offer to stipulate that he had a
sex offense is of a different quality than the Old Chief defendant’s offer to stipulate to a prior
felony. A wide variety of behaviors qualify as felonies, including crimes with such different
qualities as contingent lobbying, MCL 4.421(1), and assault with intent to do great bodily harm,
MCL 750.84. In Old Chief, the defendant’s prior felony was exactly of the same character as the
felony for which he was charged in the case. See Id. at 174-175. In cases where the prior
conviction is identical to the charged offense, the risk of unfair prejudice is particularly high.
People v Snyder, 301 Mich App 99, 106; 835 NW2d 608 (2013). But in the present case, the
prior conviction of committing criminal sexual conduct was not identical to failing to register or
larceny in a building.

        Further, both the challenged evidence and the proffered stipulation carry a risk of unfair
prejudice because they both informed the jury that defendant was a sex offender and allowed the
jury to improperly view defendant as a bad person deserving punishment. See Old Chief, 519
US at 180-181. Under the defendant’s stipulation, the jury would have been aware of the most
prejudicial aspect of the information, the nature of defendant’s prior conviction.

        Consequently, the only distinguishing feature between the offered stipulation and the
challenged evidence is the specific nature of defendant’s sexual offenses. In this case, my
review of the record shows that the difference only marginally, if at all, increased the prejudicial
risk that defendant’s convictions might improperly affect the jury’s decision. The trial court was
in the best position to determine whether this minimal prejudicial effect substantially outweighed
the evidence’s probative value.

        I conclude that the challenged evidence does not present a significantly greater “risk of a
verdict tainted by improper considerations” than the risk presented by defendant’s proffered
stipulation. See Id. at 174. Accordingly, I cannot say that the probative value of the challenged
evidence, in light of defendant’s proffered stipulation, substantially outweighed the risk of unfair
prejudicial risk. Therefore, the trial court did not abuse its discretion as a matter of law by
declining to exclude the challenged evidence in lieu of defendant’s limited stipulation. See Id. at
183.

                                    IV. HARMLESS ERROR



1
 “[F]elon-in-possession is a general intent crime.” People v Dupree, 284 Mich App 89, 120;
771 NW2d 470 (2009).


                                                -4-
        The majority’s opinion fails to consider whether the error in this case was harmless.
Even if I concluded that the trial court erroneously admitted the evidence, I would still affirm in
this case because the error was harmless.

        When the evidentiary error is preserved, nonconstitutional error, we presume that the
error is harmless unless it appears from an examination of the entire record that it is more
probable than not that the error affected the outcome of the proceedings. People v Lukity, 460
Mich 484, 495-496; 596 NW2d 607 (1999). In People v Swint, 225 Mich App 353, 377; 572
NW2d 666 (1997), this Court similarly found an abuse of discretion where the trial court refused
“to exclude evidence of [the defendant’s] prior felony conviction of assault with a dangerous
weapon in exchange for a stipulation and plea that defendant had been convicted of felonious
assault and was ineligible to possess a firearm.” However, in Swint, this Court concluded the
error was harmless because the defendant’s stipulation “would have placed the jury on notice
regarding the type of felony that he committed.” Id. at 379.

       As in Swint, defendant’s stipulation here would have placed the jury on notice of the type
of felony that defendant committed. I disagree with the majority that the number and type of
offenses was more damaging than notice of the type of offense that defendant committed. For
the same reasons that I conclude the evidence was minimally prejudicial, I am not convinced that
it was more probable than not that the jury’s exposure to the fact defendant committed four
sexual offenses on a single date, or the degree of those offenses, changed the outcome of the
proceedings.

       I would affirm the well-reasoned decision of the trial court.

                                                             /s/ Peter D. O’Connell




                                                -5-
