                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 10, 2017
               Plaintiff-Appellee,

v                                                                    No. 331619
                                                                     Macomb Circuit Court
CHARLES WILLIAM CONFERE,                                             LC No. 2015-001318-FH

               Defendant-Appellant.


Before: GLEICHER, P.J., and M. J. KELLY and SHAPIRO, JJ.

GLEICHER, J. (concurring).

       I concur with the majority’s determination that prosecutorial misconduct resulted in
prejudice that seriously affected the fairness, integrity, and public reputation of the proceedings.
The conduct forcefully and fittingly condemned by the majority exacerbated unfair prejudice
created by the improper admission of the character evidence that permeated the prosecution’s
proofs. I would reverse Confere’s conviction on both grounds.

                             I. IMPROPER CHARACTER EVIDENCE

       Over Confere’s objection, the trial court permitted the prosecutor to elicit testimony
regarding three prior acts: a sexual assault that occurred 30 years ago involving a 14-year-old girl
with cerebral palsy, and two assaults committed on an adult woman who lived in defendant’s
apartment building and walked with a cane. Had we not reversed Confere’s conviction on
prosecutorial misconduct grounds, I would have voted to reverse it based on the improper
admission of this evidence.

        Evidence of a defendant’s past misdeeds is generally inadmissible when offered to prove
the defendant’s “inclination to wrongdoing in general,” and his guilt of the charged offense in
particular. People v VanderVliet, 444 Mich 52, 63; 508 NW2d 114 (1993). MRE 404(b) “does
not prohibit all evidence of other acts that risks this character-to-conduct inference.” People v
Jackson, 498 Mich 246, 259; 869 NW2d 253 (2015). Rather, MRE 404(b)(1) permits the
introduction of evidence of other crimes, wrongs, or acts to prove other relevant considerations,
such as “scheme, plan, or system in doing an act,” and “absence of mistake or accident when the
same is material.” Identifying a proper purpose is only half the battle, however. “[I]n order to
determine whether an articulated purpose is, in fact, merely a front for the improper admission of
other-acts evidence, the trial court must closely scrutinize the logical relevance of the evidence


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under the second prong of the VanderVliet test.” People v Denson, __ Mich __; __ NW2d __
(Docket No. 152916, decided July 17, 2017), slip op at 12.1

        Confere was charged with having digitally penetrated the complainant’s vagina. His
defense was that it never happened. In opening statement, Confere’s counsel explained: “But,
what the big dispute here is whether or not my client did the act that we are here for, whether or
not he penetrated her with his finger. And Mr. Confere absolutely unequivocally denies this.”
Neither “mistake” nor “accident” were “within the range of litigated matters in controversy” in
this case, rendering “mistake” or “accident” irrelevant considerations and invalid grounds for
admission of the other acts evidence. People v Sabin, 463 Mich 43, 69; 614 NW2d 888 (2000).

        The second basis for admission, that the evidence demonstrates a scheme or plan, cannot
withstand even cursory scrutiny. The prosecution argued that Confere engaged in a common
system of making unwanted sexual contact with women with disabilities, all of whom had
limited capacity to stop him. According to the prosecution, the fact that Confere had engaged in
three unwanted sexual acts with two physically disabled women gives rise to a scheme or plan,
opening the evidentiary door to this evidence. In my view, this argument improperly conflated
propensity evidence—that Confere enjoyed assaulting incapacitated women—with the notion
had Confere had a “scheme” or “system” for assaulting women with disabilities. Missing is any
evidence that Confere employed any actual method, plan or scheme to achieve the molestations.
And where there is no method, plan or scheme, there is only propensity.

        Demonstration of a probative fact other than propensity is critical to the admissibility of
other acts evidence. “Woven inextricably into the fabric of our jurisprudence is the principle that
‘we try cases, rather than persons . . . .’ ” Denson, slip op at 10 (citation omitted, alteration in
original). Absent an intermediate, nonpropensity inference (here, that the defendant had formed
a common scheme or plan), other acts evidence “bears only on propensity and is inadmissible.”
VanderVliet, 444 Mich at 87. The other acts introduced in this case were so markedly dissimilar
to the charged offense that they could not possibly represent a common plan or scheme. And as
the prosecutor’s closing argument so clearly reveals, her “plan, scheme or system” claim was
really just a ruse to justify a propensity-driven case.

        A “plan” or “scheme” may involve connected transactions or events, where “the charged
and uncharged acts are constituent parts of a plan in which each act is a piece of the larger plan.”
Sabin, 463 Mich at 63. The three assaults introduced here do not meet that standard, as they
were far removed in time from the charged conduct, and no evidence suggests that they were part
of a greater enterprise or Confere’s object was to achieve some overarching goal. Alternatively,
other acts evidence may be admissible when “the uncharged misconduct and the charged offense
are sufficiently similar to support an inference that they are manifestations of a common plan,
scheme, or system.” Id. (emphasis added). Central to this method of admission is the
intermediate inference of a common system of doing an act:



1
 The second prong of the VanderVliet test is that the evidence is “relevant under [MRE] 402 as
enforced through Rule 104(b).” VanderVliet, 444 Mich at 55.


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       The jury in not required to draw an inference regarding the defendant’s character.
       Rather, the jury is asked to infer the existence of a common system and consider
       evidence that the defendant used that system in committing the charged act as
       proof that the charged act occurred. The logical relevance of the evidence is
       based on the system, as shown through the similarities between the charged and
       uncharged acts, rather than on defendant’s character, as shown by the uncharged
       act. [Id. at 64 n 10.]

        Mere similarity between the other acts and the charged misconduct is not sufficient.
Rather, “ ‘the effort is to establish a definite prior design or system which included the doing of
the act charged as part of its consummation.’ ” Id. at 64, quoting 2 Wigmore Evidence
(Chadbourn rev), § 304, p 249. “ ‘The added element, then, must be, not merely a similarity in
the results, but such a concurrence of common features that the various acts are naturally to be
explained as caused by a general plan of which they are the individual manifestations.’ ” Id.
(emphasis in original). Further, it bears emphasis that “[t]he existence of a plan in a given
situation does not depend on any trait of the person’s moral character.” Leonard, The New
Wigmore, A Treatise on Evidence: Evidence of Other Misconduct and Similar Events, § 9.2.1, p
564.

        The charged offense in this case is that Confere sexually assaulted an incapacitated
victim, violating MCL 750.520(d)(1)(c). The test for admissibility was whether the proposed
other acts evidence demonstrated that Confere devised a common plan and used it repeatedly to
perpetrate separate but similar crimes. General similarity or vague resemblance is not enough;
“common features” are required. I find no concurrence of common features in the other acts
brought to the jury’s attention.

        The first assault was committed against a 14-year-old girl in 1986; Confere was a
maintenance man in the girl’s apartment building. According to the witness, Confere touched
her breast and between her legs, over her clothes.2 The second assault, committed in 2004,
involved an adult woman; Confere touched her breast over her clothes. In 2010, Confere
assaulted the same woman; he “pushed himself” into her apartment, pinned her against the wall,
and touched her breast. Here, Confere and the complainant were friends who frequently watched
movies together. She allowed him to rub her feet, and on the evening in question he tried to
move his hand up her thigh. Although the complainant told Confere to leave, he remained in her
apartment after she fell asleep. She testified that she awoke when she felt Confere’s fingers
inside her vaginal area.




2
  In Denson, slip op at 19 n 11, the Supreme Court considered and rejected even fresher other
acts evidence, observing: “In addition to the lack of similarity, we note that the other act in this
case was remote in time, occurring approximately 10 years before the charged offense, which
further limits its logical relevance.”


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        The victims’ ages differed widely, Confere’s relationships to the victims differed, and the
conduct at issue differed. In the case 30 years ago, Confere entered the victim’s apartment to
perform some maintenance task. Although he knew the second victim, they had no other
relationship. None of the other victims were penetrated, and none were unconscious. Other than
the fact that Confere sexually assaulted each victim, the events bear no resemblance to a
common scheme or plan. Rather, the sole inference created by the other acts evidence was this:
Mr. Confere had a propensity to attack incapacitated women, therefore he acted in conformity
with that propensity by assaulting the complainant. This is precisely the inference that is
forbidden under MRE 404(b). On retrial, I believe the other acts evidence must be excluded.

                             II. PROSECUTORIAL MISCONDUCT

        The prosecutor’s use of the other acts evidence during her closing argument verifies that
the true purpose of the evidence was to prove that “he did it before, therefore he did it this time.”
The majority opinion convincingly explains that Confere’s character was the centerpiece of the
prosecutor’s argument, and that the intentional nature of the prosecutor’s misconduct warrants
reversal. As the Supreme Court pointed out in Denson, slip op at 10 (citation omitted, alteration
in original), “the very danger of other-acts evidence ‘is not that it is irrelevant, but, to the
contrary, that using bad acts evidence can weigh too much with the jury and . . . so persuade
them as to prejudge one with a bad general record and deny him a fair opportunity to defend
against a particular charge.’ ” When cases “turn on the relative credibilities of the defendant and
the prosecuting witness . . . a strict adherence to the rules of evidence and appropriate
prosecutorial conduct is required to ensure a fair trial.” Martin v Parker, 11 F3d 613, 616-617
(CA 6, 1993). The improper use of propensity evidence in this case eliminated any chance that
Confere’s denial would be fairly and rationally considered in light of the admissible evidence.

       I write separately to address a different issue: the use of the term “prosecutorial error,”
which has found its way into other opinions issued by this Court. In obiter dictum, a panel of
this Court recently expressed the view that the term “prosecutorial error” more accurately
describes “the vast majority of cases” in which “the conduct about which a defendant complains
is premised on the contention that the prosecutor made a technical or inadvertent error at trial.”
People v Cooper, 309 Mich App 74, 88; 867 NW2d 452 (2015). I disagree with any change of
nomenclature. In my view, a new term is unnecessary and its use ill-advised.

         There is no empiric support for Cooper’s underlying assumption—that “the vast majority
of cases” alleging prosecutorial misconduct actually involve only “technical or inadvertent error
at trial.” Certainly Cooper cites none, and the caselaw reveals the opposite to be true. Many
varieties of alleged prosecutorial misconduct regularly reviewed in this Court arise from conduct
far more serious than “technical or inadvertent error at trial.” For example, “[a] prosecutor’s
failure to disclose exculpatory evidence is the most frequent abuse of prosecutorial power.”
Caldwell, The Prosecutor Prince: Misconduct, Accountability, and a Modest Proposal, 63 Cath
U L Rev 51, 60 (2013). Violations of the disclosure requirements set forth in Brady v Maryland,
373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), may be intentional or inadvertent, but
withholding evidence constitutes misconduct nonetheless:

       The government is held responsible for evidence within its control, even evidence
       unknown to the prosecution, Kyles v Whitley, 514 US 419, 437; 115 S Ct 1555;

                                                -4-
       131 L Ed 2d 490 (1995), without regard to the prosecution’s good or bad faith,
       United States v Agurs, 427 US 97, 110; 96 S Ct 2392; 49 L Ed 2d 342 (1976) (“If
       the suppression of evidence results in constitutional error, it is because of the
       character of the evidence, not the character of the prosecutor.”). [People v
       Chenault, 495 Mich 142, 150; 845 NW2d 731 (2014).]

       Other forms of prosecutorial misconduct frequently raised in this Court involve improper
witness examinations (bolstering, the introduction of inadmissible evidence, the use of material
outside the record in closing argument, and the improper use of character evidence, as here), the
use of perjured testimony, impugning defense counsel, and disparaging defense witnesses. See
People v Richardson, 489 Mich 940; 798 NW2d 13 (2011). Most of the allegations involve far
more than “technical” mistakes. Indeed, it is not unusual for this Court to find misconduct, but
to deny relief.

        In addition to the absence of any factual foundation for Cooper’s central tenet,3 I see no
benefit to the administration of justice in creating a paradigm that would require courts to
distinguish between various degrees of prosecutorial misconduct. Our caselaw usually describes
in considerable detail the conduct at issue; innocuous or “technical” mistakes simply do not rise
to the level required for relief. In those cases, the Court simply states, “the prosecutor did not
commit misconduct.” People v Roscoe, 303 Mich App 633, 649; 846 NW2d 402 (2014).
Although it may hurt a prosecutor’s feelings to have been unjustly accused of “misconduct,”
that’s a slim reed on which to support a sea change in long-accepted legal parlance. See also
State v Maluia, 107 Haw 20, 26; 108 P3d 974 (2005) (“[W]e believe that separate nomenclature
for different types of prosecutorial misconduct would lead to protracted litigation over semantics;
this would place an additional burden on our courts with no corresponding benefit.”). Until this
Court is presented with data supporting Cooper’s thesis, I believe that the term “prosecutorial
misconduct” should apply.

        In the case before us, it bears emphasis that the conduct at issue was not “error.” The
prosecutor deliberately constructed a cross-examination and a corresponding closing argument
that featured Confere’s character and his propensity to commit sexual assaults. She knew or
should have known that her words crossed the line; MRE 404(b)’s prohibition of the use of “bad
character” to prove conduct is fundamental. The prejudice that she injected encouraged the jury
to convict Confere because was not a “perfect gentleman” and had assaulted other women. The



3
  The legal literature reflects that some scholars have studied prosecutorial misconduct caselaw,
and their work product supplies helpful information regarding the nature of the claims made in
“the vast majority of cases.” For example, Professor Paul J. Speigelman reviewed 45 federal
court of appeals reversals in cases alleging prosecutorial misconduct during a 10-year period.
Professor Speigelman found that 28 of the 45 opinions “use language suggesting that the
prosecutor knew that the conduct was improper; in thirteen other opinions the conduct was such
that the prosecutor knew or should have known it was wrong.” Speigelman, Prosecutorial
Misconduct in Closing Argument: The Role of Intent in Appellate Review, 1 J App Prac & Proc
115, 118 (1999).


                                                -5-
“bad character” theme “pervaded the closing argument and rebuttal,” Washington v Hofbauer,
228 F3d 689, 700 (CA 6, 2000), and the majority correctly finds that the prosecutor’s improper
argument seriously compromised the fairness and integrity of the proceedings.



                                                         /s/ Elizabeth L. Gleicher




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