                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 15, 2017
               Plaintiff-Appellee,
V                                                                   No. 332258
                                                                    Calhoun Circuit Court
RAY W COLE,                                                         LC No. 2015-001604-FH

               Defendant-Appellant.


Before: O’BRIEN, P.J., and HOEKSTRA and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by right his conviction, following a jury trial, of third-degree criminal
sexual conduct (CSC III), MCL 750.520d(1)(b) (penetration with force or coercion). The trial
court sentenced defendant to serve a term of imprisonment of 60 to 180 months, with 70 days’
credit for time served. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        The prosecution charged defendant with CSC III, naming KS as the victim. Before trial,
the prosecution filed a notice of intent to present, as other acts evidence under MRE 404(b),
witness testimony from RW concerning a second uncharged sexual assault that defendant
allegedly perpetrated on the same afternoon as the charged assault. The prosecution argued that
RW’s testimony would show that defendant had acted in accordance with a common scheme or
plan, in that he knew both women, lured them to his place of employment outside of business
hours, locked them inside, and assaulted them. Defendant objected that the prosecution sought
to introduce impermissible character evidence, arguing that the two encounters, which defendant
insisted were consensual, were not sufficiently similar to show a common scheme or plan.

        The trial court permitted RW’s testimony as other-acts evidence under MRE 404(b). The
trial court noted the prejudicial effect of the evidence, but found RW’s testimony to be probative
of “the way that [defendant] chose his victims, the way he asked his . . . alleged victims . . . to
come to his place of employment, and the manner in which he perpetrate[d] the alleged assaults.”
The court held that the evidence related to material issues of fact regarding consent, timing,
location, “how the victim was contacted,” and “where the victim was when the alleged assault
took place.”


                                                -1-
        At trial, KS testified that she met defendant about two weeks before the incident at issue,
and that she occasionally patronized a bar where defendant worked as a bartender. KS stated
that she and a companion visited the bar on the evening of February 7, 2015, and then returned
the following morning, a Sunday (apparently to retrieve KS’s car). They found defendant at
work but the premises otherwise unoccupied. According to KS, defendant initially declined
offers for a ride home, but not long after KS and her companion left, defendant sent KS a
message asking for a ride. KS returned to the bar alone in her own car, expecting to leave
shortly thereafter. Defendant met KS at the door and locked it after she was inside. Defendant
began asking KS questions about her personal and sex life. Defendant excused himself to use
the restroom; when he returned, KS was “standing in front of the pool table” and moving closer
to the door. KS testified that defendant resumed talking suggestively, put his hands under her
sweatshirt, touched her breasts, and tried to kiss her despite her protests. Defendant then pressed
her “against the pool table,” in response to which she “sat on the pool table” to try to move away
from defendant, but defendant followed her onto the table and held her by the arm. Defendant
“started to pull [her] pants down” and touch her under her pants, and also pulled his own pants
down a bit. KS asked defendant to “stop and to get off” her, but defendant told her “that it was
fine because he had a condom on.” KS testified that defendant’s “penis was inside of [her]
vagina” for a time, but that defendant eventually stopped due to her screaming or tone of voice.
KS admitted that after the incident she drove defendant home.

        Testifying in his own defense, defendant substantially agreed with KS’s account of when
and how he and KS arrived at and departed from the bar, but differed from KS in stating that he
thought she had signaled some attraction to him, and that he had attempted to initiate sex by
approaching KS with his penis in his hand, but immediately backed off when KS expressed
discomfort. Defendant indicated that he may have accidentally penetrated KS or penetrated her
prior to her expressing that she didn’t want to have sex. Defendant also testified that, at the same
time he sent a message asking KS for a ride, he sent a similar message to RW.

        Before RW offered her account of the second incident with defendant, the trial court
instructed the jury as follows:
              You may or will hear evidence that is introduced to show that the
       Defendant committed a crime 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 or not this evidence tends to show that
       Defendant used a plan, scheme, 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 that it shows that the Defendant is a bad person or that he is
       likely to commit crimes.

              You must not convict the Defendant here because you think he is guilty of
       other bad conduct.

             All of the evidence must convince you beyond a reasonable doubt that the
       Defendant committed the alleged crime or you must find him not guilty.
                                                -2-
        RW testified that she lived near the bar where defendant worked, and had known
defendant for ten years. She admitted that she had been interested in dating defendant a few
years earlier, and stated that the two had exchanged electronic messages in the weeks before
February 8, 2015, that defendant invited her out to eat, and that she told him she had a boyfriend.
RW confirmed that defendant sent her a message on the afternoon of February 8, 2015, asking
her for a ride, and stated that she did not have a car but walked to the bar to meet defendant,
expecting to have a drink and socialize. RW testified that defendant let her in and locked the
door behind her, then pushed her onto the pool table. According to RW, defendant’s “pants were
down . . . around his ankles,” and he pulled her pants down. RW stated that she ended up lying
on the pool table, while defendant “was having sex with” her, by which she meant that
defendant’s penis was inside her vagina. RW added that she felt confused and protested, but that
defendant put his hand over her mouth so that she could not talk.

        On cross-examination, RW agreed that she was acquainted with her ex-husband’s
brother, Greg Gwillim. Gwillim testified that he was defendant’s best friend, and that RW had a
reputation for being untruthful. When defense counsel asked RW if she had ever lost a baby,
RW responded that she had, upon which the prosecuting attorney objected. While the attorneys
and the court were discussing the propriety of that line of questioning, RW interjected that she
had records of her pregnancy.

        The trial court stated that defendant was “entitled to explore” RW’s credibility, but
expressed concern over defense counsel’s intention to ask RW about her history of mental illness
or of fabricating stories. Defense counsel referred to RW as a “crazy person,” and stated his
intention to bring witnesses to testify about RW’s history of untruthfulness. The trial court
determined that defense counsel had not demonstrated that any of RW’s alleged mental health
issues had a bearing on her credibility, and excluded evidence concerning RW’s mental health
history.

       The court took a half-hour recess to allow defense counsel to locate authority favoring the
introduction of extrinsic evidence to show that RW had a history of lying. After the recess, the
court asked defense counsel if had something to put on record, and counsel replied that he
thought it unnecessary and was prepared to “go on otherwise.” The trial court struck from the
record “anything involving [RW’s] history of being or not being pregnant” and admonished the
jury not to consider RW’s testimony on that subject “as evidence in this case.”

       At the close of proofs, the trial court repeated the instruction concerning other-acts
evidence that the court had provided before RW testified. The court further instructed the jury to
consider the evidence relating to RW’s character for truthfulness “together with all of the other
evidence in the case in deciding whether [to] believe the testimony of [RW] and in deciding how
much weight to give that testimony.”

       Defendant was convicted as described above. This appeal followed.




                                                -3-
                                 II. OTHER-ACTS EVIDENCE

       The Court reviews a preserved evidentiary challenge for an abuse of discretion. People v
Roscoe, 303 Mich App 633, 645; 846 NW2d 402 (2014). Defendant argues that the trial court
erred by permitting RW to testify about an uncharged act under MRE 404(b). We disagree.

        MRE 404(b)(1) generally prohibits the admission of evidence “of other crimes, wrongs,
or acts . . . to prove the character of a person in order to show action in conformity therewith.”
The rule further provides as follows:
       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 instructed trial courts to use “the evidentiary safeguards already present
in the Rules of Evidence” to determine whether to admit other-acts evidence under MRE 404(b).
People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), amended on other grounds 445
Mich 1205 (1994). First, the evidence must “be offered for a proper purpose,” meaning that it is
“relevant to an issue other than propensity.” Id. (quotation marks and citation omitted). Second,
“the evidence must be relevant under Rule 402, as enforced through Rule 104(b), to an issue or
fact of consequence at trial.” VanderVliet, 444 Mich at 74. Third, the trial court should
“determine whether the probative value of the similar acts evidence is substantially outweighed
by its potential for unfair prejudice.” Id. (quotation marks and citation omitted). Fourth, “the
trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered
only for the proper purpose for which it was admitted.” Id. (quotation marks and citation
omitted).

                               A. COMMON SCHEME OR PLAN

        Our Supreme Court has held that “evidence of similar misconduct is logically relevant to
show that the charged act occurred where 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.” People v Sabin (After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000).
Although general similarities will not suffice, “the plan need not be unusual or distinctive; it
need only exist to support the inference that the defendant employed that plan in committing the
charged offense.” Id. at 65-66 (quotation marks and citation omitted).

        In this case, the trial court found enough similarities in the evidence of the assaults on KS
and RW to admit the latter’s testimony. We agree. KS and RW both testified that they were
acquainted with defendant, and defendant expressed his belief that both women had indicated
romantic interest in him in the past. Defendant also had contact with both women shortly before
the afternoon in question and had been flirtatious with them. Defendant messaged both women
asking for a ride on the day of the offense. Moreover, both incidents took place at the closed bar
where defendant worked, which allowed defendant an opportunity to be alone with each woman.

                                                -4-
Once inside, defendant locked the door behind each of them, and each stated that defendant
assaulted them on the pool table. And, of course, the two alleged assaults occurred on the same
day. Taken together, these similarities showed that defendant acted in accordance with a
common plan or scheme. See People v Knapp, 244 Mich App 361, 378-380; 624 NW2d 227
(2001) (affirming the trial court’s admission of other-acts evidence because “each step of
defendant’s prior conduct in approaching and isolating his victim mirrored his conduct in this
case”).

        We also agree with the trial court that the challenged evidence was relevant to show
whether a forcible assault on KS had occurred. Evidence is relevant if it has “any tendency 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.” MRE 401. The elements of
third-degree criminal sexual conduct include “sexual penetration with another person” along
with circumstances including the use of “[f]orce or coercion . . . to accomplish the sexual
penetration.” MCL 750.520d(1)(b). RW’s testimony described conduct meeting the elements of
the charged conduct, where she testified to penile-vaginal penetration and defendant’s use of
force in accomplishing it. As stated, the testimony reflected numerous notable similarities
between the two assaults, rendering RW’s testimony relevant to facts of consequence in this
case. See, People v Bass, 317 Mich App 241, 261-262; 893 NW2d 149 (2016).

        Defendant argues that because the alleged assault on RW occurred after the assault on
KS, RW’s testimony cannot show a preexisting scheme or plan. But MRE Rule 404(b) does not
require that the charged act have occurred first; rather, it covers acts “contemporaneous with, or
prior or subsequent to the conduct at issue in the case,” and the trial court properly so instructed
the jury. Defendant relies on language in Sabin to the effect that the purpose of other-acts
evidence is “ ‘to prove a preexisting design, system plan, or scheme, directed forwards to the
doing of that act.’ ” Sabin, 463 Mich at 64, quoting 2 Wigmore Evidence (Chadbourn rev),
§ 304, p 249. However, defendant erroneously equates the plan with its execution. Defendant
messaged KS and RW at the same time asking for a ride, and those messages ultimately brought
both women to the bar. The relative timing of the charged and uncharged acts is immaterial;
RW’s testimony is indicative of a preexisting common scheme or plan by defendant to lure
women to his place of employment that Sunday to sexually assault them.

         Defendant argues that KS’s and RW’s descriptions of defendant’s use of the pool table in
the assaults was not indicative of a common scheme or plan to assault the women, but merely
indicates that the pool table was near the entrance to the bar. However, the positioning of the
pool table, and each woman’s testimony that she was assaulted on that pool table, when
considered in context with the other similarities identified, support the trial court’s finding that
the other act and the charged act were sufficiently similar to show a common scheme or plan and
to justify the admission of RW’s testimony. Even if the use of the pool table in the two assaults
was by chance, sufficient similarities between the charged and uncharged acts would remain to
support the trial court’s admission of RW’s testimony.

       Defendant also presents his own version of what happened on the day in question and
argues that his portrayal of the two incidents indicates that they are too different to support the
admission of RW’s testimony. Defendant’s argument goes not to the admissibility of RW’s
testimony, however, but rather to its credibility, which is a matter for the jury to resolve. See

                                                -5-
People v Kelly, 317 Mich App 637, 645-646; ___ NW2d ___ (2016) (explaining that the
defendant’s asserted innocence presented a question of credibility for the jury to decide, but was
not a proper factor to consider in determining the relevance of proposed other acts evidence).

        The trial court also found the probative value of the evidence not to be substantially
outweighed by their prejudicial effect. We agree. Not all prejudice is unfair prejudice, and in
this case, where KS’s testimony and defendant’s own admissions confirmed many of the
statements made by RW, there was little danger that marginally probative evidence would be
given undue or preemptive weight by the jury. People v Ortiz, 249 Mich App 297, 306; 642
NW2d 417 (2001). Further, the trial court twice gave the jury a limiting instruction regarding
RW’s testimony and the purposes for which it could be considered. Limiting instructions “can
help to alleviate the danger of unfair prejudice, given that jurors are presumed to follow their
instructions.” Roscoe, 303 Mich App at 646.

       In sum, the trial court did not abuse its discretion by admitting the challenged other-acts
evidence.

                                         B. CONSENT

        We also agree with the trial court that RW’s testimony was relevant to the issue of
consent. Defendant characterizes KS’s and RW’s conduct, in going to the bar to meet defendant,
as that of two people meeting in a private place, reflective of consensual sex. However,
defendant’s assertion of consent in both cases “underscores, rather than obviates, the relevancy
of the other acts evidence.” Kelly, 317 Mich App at 646. Again, “defendant’s differing version
of events” raised an issue of credibility for the jury to decide, but did not mandate the exclusion
of the challenged evidence. See id. Because RW testified to an uncharged assault, KS testified
about the assault at issue, and defendant testified that both encounters were consensual, the trial
court properly found RW’s testimony relevant to the issue of consent.

       Moreover, “evidence that is admissible for one purpose does not become inadmissible
because its use for a different purpose would be precluded.” VanderVliet, 444 Mich at 73.
Accordingly, the admission of RW testimony to show defendant’s common scheme or plan, as
relevant to how defendant committed the offense, does not become inadmissible even if it bears
no relevance to the issue of consent (and vice versa). The trial court did not abuse its discretion
by admitting the challenged testimony.

                                       C. DUE PROCESS

        Defendant argues that his right to due process was violated because he was convicted for
an uncharged alleged wrong. However, defendant failed to preserve this argument with an
objection below, and likewise fails on appeal to offer substantial argument in support of it. In
light of these failures of preservation and presentation, we decline to consider the argument. See
People v Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004) (deeming the appellant’s
ineffective assistance of counsel arguments abandoned where he gave them “only cursory
treatment”).


                                                -6-
        In any event, defendant fails to show plain error. Defendant merely restates the rationale
for the 404(b) balancing test, which is to alleviate the danger of convicting a defendant of bad
character rather without regard for his or her guilt in connection with the charged offense. See
People v Crawford, 458 Mich 376, 383-384; 582 NW2d 785 (1998) (recognizing that the
prohibition of propensity evidence follows from the presumption of innocence, and the risk that a
jury will infer guilt “on the basis of . . . bad character”). Accordingly, our resolution of the
404(b) issues answers defendant’s due process argument. See People v Gaines, 306 Mich App
289, 303 n 9; 856 NW2d 222 (2014) (“Defendant’s claim that the admission of other-acts
evidence violates due process is moot because the admission of the evidence was subject to the
MRE 403 balancing test.”).

                                 III. CONFRONTATION CLAUSE

        Defendant also argues that his constitutional right of confrontation was violated when the
trial court prohibited him from cross-examining RW about her bipolar disorder and history of
fabricating stories. We disagree. Defendant did not object to the trial court’s evidentiary ruling
on constitutional grounds. See People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003). We
thus review it “for plain error affecting defendant’s substantial rights.” Roscoe, 303 Mich App at
639.

        The Sixth Amendment to the United States Constitution1 recognizes a defendant’s right
“to be confronted with the witnesses against him.” The Confrontation Clause secures “the right
of cross-examination,” but “not without limit.” People v Adamski, 198 Mich App 133, 138; 497
NW2d 546, app dis 508 NW2d 493 (1993). “The scope of cross-examination is within the
discretion of the trial court.” People v Canter, 197 Mich App 550, 564; 496 NW2d 336, 343
(1992). The trial court may curtail cross-examination “with respect to collateral matters bearing
only on general credibility . . . as well as on irrelevant issues.” Id.

        In this case, the trial court did not plainly err by not permitting defense counsel to cross-
examine RW regarding her mental health. The trial court deemed evidence of RW’s mental
health not relevant to the assault in question, particularly where defendant did not connect RW’s
bipolar disorder and consequent use of medication with his representation that RW had a history
of fabricating stories. The trial court noted that mental illness, or the use of attendant
medication, do not necessarily imbue a person with a propensity to lie. Defense counsel failed to
draw a logical connection between RW’s mental health and a propensity to lie, but instead
merely asserted counsel’s own opinions on the matter, as demonstrated by his reference to RW
as a “crazy person.” Further, even after a recess, defendant could identify no authority
permitting that line of questioning. In the absence of a link between RW’s mental health and
credibility, the trial court did not plainly err by deeming RW’s mental health history “completely
unrelated to this event.”




1
    See also Const 1963, art 1, § 20.


                                                -7-
        Additionally, defendant did cross-examine RW about her encounter with defendant, and
called witnesses to testify both regarding RW’s reputation for untruthfulness and defendant’s
reputation for truthfulness. Further, the trial court instructed the jury regarding the assessment of
witness credibility.

        Defendant also attempted to introduce specific evidence that RW had fabricated stories in
the past. MRE 608(b) places “in the discretion of the court” the decision whether to permit
cross-examination regarding specific instances of conduct. The trial court permitted defense
counsel to ask RW about specific instances of conduct when he asked her if she “ever made up
stories about other people concerning sexual matters in the past.” RW’s denial properly put an
end to the matter. See People v LeBlanc, 465 Mich 575, 590; 640 NW2d 246 (2002)
(acknowledging the long-standing rule “that a cross-examining attorney must accept the answer
given by a witness regarding a collateral matter”). The trial court acted properly within its
discretion in ruling that MRE 608(b) did not permit defendant to offer extrinsic evidence to
prove otherwise, particularly considering that RW was not the victim of the charged offense.
See People v Brownridge, 459 Mich 456, 463-465; 591 NW2d 26, amended on other grounds
459 Mich 1276 (1999).

       Affirmed.



                                                              /s/ Colleen A. O’Brien
                                                              /s/ Joel P. Hoekstra
                                                              /s/ Mark T. Boonstra




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