                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 20, 2018
               Plaintiff-Appellee,

v                                                                   Nos. 337638; 337656
                                                                    Oakland Circuit Court
ROGELIO ROLANDO HAMILTON,                                           LC Nos. 2016-259138-FC;
                                                                            2016-259406-FC
               Defendant-Appellant.


Before: O’CONNELL, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

                                     I. DOCKET NO. 337638

        Defendant appeals as of right his jury convictions on two counts of first-degree criminal
sexual conduct (CSC-I), MCL 750.520b(1)(b) (sexual penetration with a blood relative between
13 and 16 years old), and one count of second-degree criminal sexual conduct (CSC-II), MCL
750.520c(1)(b) (sexual contact with a blood relative between 13 and 16 years old). Defendant
was sentenced, as a fourth habitual offender, MCL 769.12, to two concurrent terms of 37 to 60
years’ imprisonment for the CSC-I convictions, and a consecutive term of 19 to 60 years’
imprisonment for the CSC-II conviction. The trial court erroneously ordered defendant to serve
his sentence for the CSC-II conviction consecutive to the sentence for his first count of CSC-I,
rather than serving his CSC-I conviction consecutive to his CSC-II conviction. We affirm
defendant’s convictions and sentences, but remand for the ministerial correction of the judgment
of sentence.

                                     II. DOCKET NO. 337656

        Defendant also appeals as of right his jury convictions of CSC-I, MCL 750.520b(1)(b)
(sexual penetration with a blood relative between 13 and 16 years old), and CSC-II, MCL
750.520c(1)(b) (sexual contact with a blood relative between 13 and 16 years old). Defendant
was sentenced, as a fourth habitual offender, MCL 769.12, to 37 to 60 years’ imprisonment for
the CSC-I conviction, and 19 to 60 years’ imprisonment for the CSC-II conviction. Again, the
trial court erroneously ordered defendant to serve the sentence for the CSC-II conviction
consecutive to the sentence for the CSC-I conviction. The judgment of sentence also
erroneously states that defendant was sentenced to 16 to 60 years’ imprisonment for the CSC-II
conviction in this case, which appears to be a typographical error because the trial court actually
sentenced defendant to 19 to 60 years’ imprisonment for the CSC-II conviction. We affirm
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defendant’s convictions and sentences, but remand to the trial court for ministerial correction of
the judgment of sentence.

                                III. FACTUAL BACKGROUND

        These consolidated cases1 arise out of defendant’s sexual abuse of two of his daughters,
RH and MH, between 2012 and 2015. The incidents of sexual abuse for which defendant was
charged and convicted began in 2012, although defendant began exhibiting sexually abusive
behavior toward RH and MH when they were between the ages of 8 and 10. Defendant’s sexual
abuse of RH and MH included non-penetrative touching of their breasts and buttocks, as well as
digital-vaginal penetration.

                              IV. EVIDENCE OF OTHER ACTS

         Defendant argues that the trial court abused its discretion and denied him due process and
a fair trial by allowing the prosecution to introduce evidence of other uncharged acts of sexual
abuse committed against RH and MH, as well as sexually abusive behavior toward his eldest
daughter, KH. We disagree.

        “ ‘The decision whether to admit evidence falls within a trial court’s discretion and will
be reversed only when there is an abuse of that discretion.’ ” People v Jackson, 498 Mich 246,
257; 869 NW2d 253 (2015) (citation omitted). An abuse of discretion occurs when the trial
court incorrectly interprets a rule of evidence, id., and when the trial court “chooses an outcome
that falls outside the range of reasonable and principled outcomes,” People v Unger, 278 Mich
App 210, 217; 749 NW2d 272 (2008).

       MRE 404(b)(1) governs other-acts evidence, and 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.

Our Supreme Court has adopted a four-part test to determine the admissibility of MRE 404(b) or
other-acts evidence:
       First, that the evidence be offered for a proper purpose under Rule 404(b); second,
       that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the
       probative value of the evidence is not substantially outweighed by unfair
       prejudice; fourth, that the trial court may, upon request, provide a limiting


1
 People v Hamilton, unpublished order of the Court of Appeals, entered April 5, 2017 (Docket
No. 337638). This order consolidated Docket No. 337638 with Docket No. 337656.


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       instruction to the jury. [People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114
       (1993), amended 445 Mich 1205 (1994).]

Thus, the evidence of other acts must be offered “under something other than a character or
propensity theory,” i.e., for a proper purpose. People v Knox, 469 Mich 502, 509; 674 NW2d
366 (2004). The evidence of other acts must also be relevant and the prosecutor bears the burden
of establishing relevance. Id. “ ‘Relevance is a relationship between the evidence and a material
fact at issue that must be demonstrated by reasonable inferences that make a material fact at issue
more probable or less probable than it would be without the evidence.’ ” Id. at 509-510 (citation
omitted). Accordingly, if the evidence is only relevant because it shows the defendant’s
character or his propensity to commit a certain crime, then it must be excluded. Id. at 510. “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). However, “the probative value of the evidence must not
be substantially outweighed by unfair prejudice under MRE 403.” Knox, 469 Mich at 509.

       Prior to trial in this case, the prosecution filed a motion to introduce other-acts evidence
under MRE 404(b), which was granted. The other-acts evidence related to RH included:
       a) Defendant began sexually assaulting his daughter, [RH], when she was eight
       or nine years old. The assaults continued until she was approximately fifteen
       years old. One of the earliest memories she has is when she was lying in bed with
       Defendant and he pushed her head toward his groin area. [RH] left the bed and
       exited the room. Thereafter, Defendant sexually assaulted [RH] approximately
       fifteen to twenty times . . . . These sexual assaults involved Defendant slapping
       her butt, pulling her nipples, groping her breasts, and rubbing and digitally
       penetrating her vagina. On one occasion, she sat next to Defendant on the couch
       in their home . . . . [Defendant] was next to [RH] on the couch and he fondled her
       breasts. [RH] looked over at [defendant] and his penis was erect. The majority of
       the aforementioned sexual assaults involved Defendant fondling [RH’s] breasts
       underneath her shirt.

The prosecution also sought to introduce evidence that defendant would walk around the house
in his underwear with his penis visible, and would enter the bathroom when RH was in there
taking a shower or using the toilet. He would also make inappropriate comments to RH like: “If
you weren’t my daughter I would fuck you.”

        The other-acts evidence related to MH that the prosecutor sought to admit included an
incident in which defendant came into the bathroom while she was in the shower and attempted
to help her wash her hair and body. That night while MH’s was sleeping, she felt defendant’s
hand feeling her breasts over her clothes and then he put his hand down her pants and underneath
her underwear. First he rubbed her, and then he put his fingers inside her vagina. Defendant
would also slap her butt, make attempts at putting his hands underneath her shirt, walk around in
his underwear with his penis visible, and would enter the bathroom when MH was in there taking
a shower or using the toilet.



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        The prosecutor also sought to admit other-acts evidence related to defendant’s eldest
daughter, KH, including that defendant would slap her on the butt, rub her stomach underneath
her clothing, walk around in his underwear with his penis visible, enter the bathroom when KH
was in there taking a shower or using the toilet, and make inappropriate comments to KH like
that she looked “fuckable.”

        The prosecution argued that all of this other-acts evidence was relevant and should be
admitted under MRE 404(b) because it demonstrated that defendant intended to sexually assault
RH and MH, and that he had employed a similar pattern of behavior over the course of many
years by exhibiting sexually abusive behaviors toward RH, MH, and KH. The evidence showed
defendant’s common plan or scheme to groom and desexualize his daughters and was necessary
to rebut defendant’s argument that RH and MH fabricated the incidents. Further, this evidence
was not unfairly prejudicial to defendant. The trial court agreed with the prosecution and the
evidence was admitted. On appeal, defendant argues that the evidence should not have been
admitted because it was not probative or relevant to the crimes of which he was accused and was
unfairly prejudicial. We do not agree.

        “Evidence of uncharged acts may be admissible to show that the charged act occurred if
the uncharged acts and the charged act are sufficiently similar to support an inference that they
are manifestations of a common plan or scheme.” People v Kahley, 277 Mich App 182, 185; 744
NW2d 194 (2007). Defendant sexually assaulted RH and MH in similar ways, beginning in
childhood and persisting into adolescence. In both RH’s and MH’s circumstances, defendant
exhibited similar sexually abusive behaviors, including rubbing their stomachs and breasts,
slapping their buttocks, and purposely walking in on them while they were showering or using
the toilet. In both cases, defendant’s behavior eventually escalated from non-penetrative
touching—some instances of which he was not charged for—to the more severe crime of digital
penetration, for which he was charged and convicted. “Under these circumstances, the charged
act[s] and the uncharged act[s] are sufficiently similar to show that defendant engaged in a
common plan or scheme.” Id. In other words, as the prosecution argued, an inference arises that
defendant’s scheme or plan, as well as intent, was to engage in less intrusive forms of sexual
touching and behaviors with his daughters in the beginning in an effort to groom and desexualize
them before escalating his sexual behavior and committing the charged acts. Furthermore,
because the evidence was sufficient to create an inference that defendant utilized a common plan
or scheme, “the evidence was relevant to whether the charged crime occurred.” Id. We also
agree with the prosecution that the other-acts evidence related to RH, MH, and KH explains and
gives context to the charged offenses, and bears on the credibility of the witnesses. See People v
Dobek, 274 Mich App 58, 89-91; 732 NW2d 546 (2007).

        Further, the probative value of the other-acts evidence introduced at trial was not
substantially outweighed by any unfair prejudice to defendant. The evidence was highly
probative because it was relevant to the issue of whether defendant sexually assaulted RH and
MH. And, while the evidence may have been prejudicial to defendant’s case, it was not unfairly
prejudicial. See People v Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995). Moreover, the
trial court instructed the jury regarding the weight and purpose that they should assign to
evidence of other acts. The trial court stated as follows:



                                               -4-
       You have heard evidence that was introduced to show that the defendant
       committed improper acts for which he is not on trial. If you believe this evidence
       you must be very careful only to consider it for certain purposes. You may only
       think about whether this evidence tends to show that defendant used a plan,
       system, or characteristic scheme that he has used before or since.

             You must not consider this evidence for any other purpose. For example,
       you must not decide it shows that the defendant is a bad person or that he is likely
       to commit crimes.

This limiting instruction was sufficient to inform the jury that it was only permitted to consider
the evidence of other acts for the specific purpose of determining whether defendant acted in
conformity with a common plan or scheme. Limiting instructions protect a defendant’s right to a
fair trial. People v Smith, 243 Mich App 657, 675; 625 NW2d 46 (2000). Thus, the trial court
did not abuse its discretion by admitting evidence of other acts of sexual abuse against RH, MH,
and KH, and defendant’s due process rights were not violated by the introduction of such
evidence. Accordingly, defendant’s claim is without merit.2

                               V. CONSECUTIVE SENTENCING

       Defendant argues that the trial court abused its discretion by imposing consecutive
sentences because his CSC-I and CSC-II crimes did not arise out of the same transaction or
offense. We disagree.

        “[W]hen a statute grants a trial court discretion to impose a consecutive sentence, the trial
court’s decision to do so is reviewed for an abuse of discretion, i.e., whether the trial court’s
decision was outside the range of reasonable and principled outcomes.” People v Norfleet, 317
Mich App 649, 654; 897 NW2d 195 (2016).

        While concurrent sentencing is the norm in Michigan, a consecutive sentence may be
imposed if authorized by statute. People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012)
(citation omitted). The CSC I statute, MCL 750.520b, does authorize a consecutive sentence as
follows:
       The court may order a term of imprisonment imposed under this section to be
       served consecutively to any term of imprisonment imposed for any other criminal
       offense arising from the same transaction. [MCL 750.520b(3).]

Although the term “same transaction” is not explicitly defined in the statute, in order for two or
more separate offenses to be seen as occurring within the same transaction, they must have “a
connective relationship . . . of more than an incidental sort . . . .” Ryan, 295 Mich App at 402-
403 (citation omitted). In the context of MCL 750.520b(3), a defendant must commit both CSC-


2
 Because we conclude that the challenged evidence was admissible under MRE 404(b), we need
not consider whether it was also admissible under MCL 768.27a.


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I and CSC-II in the same “transaction,” with “no relevant disruption in time or in the flow of
events between the two distinct offenses.” Id. at 404; see also People v DeLeon, 317 Mich App
714, 721-722; 895 NW2d 577 (2016).

        In Docket No. 337638, defendant was convicted of two counts of CSC-I [one as to RH
and one as to MH] and one count of CSC-II [as to RH]. Defendant was convicted of the first
count of CSC-I (Count I) and of CSC-II (Count III), based on his sexual assault of RH. The trial
court imposed consecutive sentences for Counts I and III. Counts I and III arose out of one
transaction, wherein defendant inserted his fingers beyond RH’s labia and touched her breasts
while she was laying on a bed. Because these two criminal acts arose out of the same transaction
or occurrence, the trial court had the discretion to impose consecutive sentences for defendant’s
resulting CSC-I and CSC-III convictions.

        Similarly, in Docket No. 337656, defendant was convicted of one count of CSC-I as to
RH (Count I) and one count of CSC-II as to RH (Count II). These convictions also arose out of a
single incident of sexual abuse against RH, wherein defendant touched RH’s breasts and digitally
penetrated her. Again, the actions that led to defendant’s convictions arose out of the same
transaction or occurrence, with no disruption in time between the act leading to the CSC-I
conviction and the act leading to the CSC-II conviction. Therefore, trial court’s decision to
impose consecutive sentences on defendant, as permitted by MCL 750.520b(3), did not fall
outside the range of reasonable and principled outcomes, and thus, did not constitute an abuse of
discretion.

       On appeal, the prosecution correctly observes that the trial court erroneously transposed
the order of defendant’s sentences. In both Docket Nos. 337638 and 337656, the trial court
ordered that defendant must serve his CSC-II sentence consecutive to his CSC-I sentence. The
language of MCL 750.520b(3) provides, instead, that the sentences for defendant’s CSC-I
convictions must be served consecutive to the sentences for his CSC-II convictions. That is so
because the trial court is only statutorily permitted to “order a term of imprisonment imposed”
for CSC-I to be “served consecutively to any term of imprisonment imposed for any other
criminal offense,” such as CSC-II. MCL 750.520b(3); see also DeLeon, 317 Mich App at 721-
722. Accordingly, the prosecution has correctly pointed out that ministerial correction of the
judgments of sentence is warranted. This Court also observes that the judgment of sentence in
Docket No. 337656 indicates that defendant was sentenced to 16 to 60 years’ imprisonment for
the CSC-II conviction, but the trial court actually sentenced him to 19 to 60 years’ imprisonment.
The mistake on the judgment of sentence appears to be a typographical error requiring
ministerial correction.




                                               -6-
        We affirm defendant’s convictions and sentences, but remand for the ministerial
correction of the judgments of sentence to reflect that defendant was sentenced to 19 to 60 years’
imprisonment for the CSC-II conviction in Docket No. 337656, and the sentences for
defendant’s CSC-I convictions must be served consecutive to the sentences for his CSC-II
convictions, in accordance with MCL 750.520b(3). We do not retain jurisdiction.



                                                            /s/ Peter D. O’Connell
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Deborah A. Servitto




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