                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 18, 2018
              Plaintiff-Appellee,

v                                                                  No. 334225
                                                                   Oakland Circuit Court
DANGELO MONTARIS JORGENSEN,                                        LC No. 2016-257394-FC

              Defendant-Appellant.


Before: CAMERON, P.J., and SERVITTO and GLEICHER, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of first-degree home invasion,
MCL 750.110A(2). The trial court sentenced defendant to 7 to 30 years’ imprisonment. We
affirm.

        On November 15, 2015, defendant broke into the Oak Park home of Tory Newsome, his
half-brother’s mother, while she was alone and asleep in the home. Newsome claimed that she
had locked her doors and windows except for those windows in her bathroom and kitchen.
Newsome awoke at about 4:00 a.m. and saw a bright cell phone light shining on her from inside
her bedroom. She jumped up and saw a reflection in the mirror of a short, broad man with a
beard. He was wearing a red sweater, black pants, white socks, and flip-flops or sandals. She
heard him say “shut up and be quiet and I won’t hurt you.” At one point, she got a look at him
before he again shined the light in her face and told her “not to look at him.” Newsome testified
that the man then ran into the kitchen and climbed out the window.

        Responding officers found a lawn chair propped against Newsome’s house under the
kitchen window. Newsome gave officers a description of the intruder, describing his clothing
and explaining that he was a short man in his late teens with a medium build, a broad chest and
stocky shoulders, a peanut or egg-shaped head, a thin or full beard, and a medium or low fade
haircut. Newsome’s kitchen window was dusted for fingerprints. Using the Automated
Fingerprint Identification System (AFIS), a right palm print collected from the kitchen window
matched defendant’s palm print, and prints lifted from the back of the house also matched
defendant’s prints.

      Defendant was interviewed on December 3, 2015. He acknowledged that he had a prior
home invasion. His story about visits to Newsome’s house changed throughout the interview.
Defendant initially said that he did not know anything about the house or where it was. When he
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was told that the police found his fingerprints at the house, he stated that his brother lived there
and that he had been there a week earlier looking for his brother. When he was told that the
break-in occurred two-and-a-half weeks earlier, defendant said that he must have been at the
house three weeks earlier. Defendant also said that he had once been in the house with his father
about two or three months earlier. He explained that he and his father had gone to Newsome’s
house to pick her up for an NA meeting and that when Newsome did not answer the door, his
father climbed through the back window and let defendant in through the front door. Defendant
said that he walked through the living room and into the kitchen to get a glass of water, but did
not go anywhere else in the house. When he was told that his fingerprints were found in the
bedroom (which was not true), defendant said that he had gone into the bedroom to look for
Newsome. Defendant denied breaking into Newsome’s house.

        Defendant’s fiancé provided an alibi, claiming that he picked her up from work at 10:00
p.m., that after they got home, they ate dinner and played video games, and that they then went
upstairs to their bedroom and closed the door. She testified that defendant did not leave the
house that night. Carol Bailey, who also lived there, testified that she did not hear anyone leave
the house that night and that when she got up at 7:30 a.m. the next morning, she saw that
defendant’s bedroom door was closed. Bailey testified that they woke up at about 9:00 a.m. and
that defendant was wearing pajama bottoms and a tee-shirt.

       On appeal, defendant argues that the trial court abused its discretion by admitting a prior
home invasion conviction into evidence.

       Before trial, the prosecutor moved to admit evidence of defendant’s prior home invasion
under MRE 404(b). The prosecutor argued that the evidence was admissible to show
defendant’s identity, as well as to show a common scheme or plan and to rebut a claim that the
incident was fabricated. Defendant objected on grounds that the evidence was more prejudicial
than probative, arguing that the charged act and previous act were too dissimilar. The trial court
admitted the evidence, stating:

               Okay. I reviewed the last case and I noticed the window came into play,
       the opening of the window. And the Court thinks that a method of doing things, a
       scheme is highly relevant. And it weighs the danger of unfair prejudice is
       [out]weighed by the relevancy here. And the Court will give a limiting
       instruction.

          Later, the trial court noted that it had admitted the evidence because defendant
accomplished the prior home invasion by placing a planter box under a window, and in the
instant case, there was a lawn chair under a window, which showed (1) a common scheme or
plan and (2) defendant’s identity. After expressing concern about a propensity-type inference
that could be drawn from the scant evidence introduced about the previous conviction, the court
left it to the parties to decide how to “handle it.” The parties resolved the issue by stipulating to
the admission of the following statement as MRE 404(b) evidence:

              Mr. Jorgensen previously admitted to seeing a bag inside of a residence
       through a window. [He] opened the window and took the bag from inside the
       residence without ever entering the residence.

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       After accepting the stipulation, the court gave a limiting instruction to the jury:

              You have heard evidence that was introduced to show that defendant
       committed a crime for which he is not on trial. If you believe the 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 the defendant used a plan, a
       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 it shows 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’s guilty of
       other bad conduct.

       The admissibility of MRE 404(b) other acts evidence is within the trial court’s discretion,
and will be reversed on appeal only when there has been a clear abuse of discretion. People v
McGhee, 268 Mich App 600, 609; 709 NW2d 595 (2005). A 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). A trial court’s decision on a close
evidentiary question ordinarily cannot constitute an abuse of discretion. People v Sabin (After
Second Remand), 463 Mich 43, 67; 614 NW2d 888 (2000).

        When this Court finds error in the admission of evidence, a preserved nonconstitutional
mistake is reviewed for harmless error and “is presumed not to be a ground for reversal unless it
affirmatively appears that, more probably than not, it was outcome determinative—i.e., that it
undermined the reliability of the verdict.” People v Denson, 500 Mich 385, 396; 902 NW2d 306
(2017), quoting People v Douglas, 496 Mich 557, 565-566; 852 NW2d 587 (2014). This inquiry
“focuses on the nature of the error and assesses its effect in light of the weight and strength of the
untainted evidence.” People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999). “In other
words, the effect of the error is evaluated by assessing it in the context of the untainted evidence
to determine whether it is more probable than not that a different outcome would have resulted
without the error.” Id.

        Defendant argues that the trial court abused its discretion by admitting evidence
pertaining to his previous home invasion conviction under MRE 404(b), which provides in
pertinent part:
        (1) 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.

       In order to present other acts evidence, the prosecutor must meet the standard set forth in
People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).

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Under this standard, the evidence must be offered for a proper purpose under MRE 404(b) and
be relevant under MRE 401 and 402. Id. In addition, the evidence’s probative value must not be
substantially outweighed by unfair prejudice under MRE 403. Id. A trial court may provide a
limiting instruction to the jury if necessary. Id.
        “Under the first prong of the VanderVliet test, the question is whether the prosecution has
articulated a proper noncharacter purpose for admission of the other-acts evidence.” Denson,
500 Mich at 398, citing People v Crawford, 458 Mich 376, 385-386; 582 NW2d 785 (1998).
The prosecution has the burden of establishing that purpose. Id. MRE 404(b) prohibits the
admission of other-acts evidence when the prosecution’s only theory of relevance is that the
other act demonstrates the defendant’s inclination for wrongdoing in general and thus indicates
that the defendant committed the conduct in question. People v Starr, 457 Mich 490, 496; 577
NW2d 673 (1998), citing VanderVliet, 444 Mich at 63. On the other hand, such other-acts
evidence may be admissible whenever it is relevant to a noncharacter purpose, such as one of the
purposes specifically enumerated in MRE 404(b)(1). Starr, 457 Mich at 496-497.

         Here, the trial court concluded that the evidence tended to prove a method of home
invasion that was relevant — placing an object under a window to more easily facilitate an
intrusion. Although, as further discussed below, an object was placed below a window in the
prior act to allow defendant to simply reach into a window to accomplish the crime whereas an
object was placed below a window in the instant matter to allow physical entry of defendant’s
entire body into the home to perpetrate the crime, a generous application of MRE 404(b)(1) may
allow evidence of this sort to be admitted. Therefore, the trial court’s decision could pass muster
under step one of the VanderVliet test. Denson, 500 Mich 385 at 392. Whether it actually does
satisfy VanderVliet is of no moment, given our conclusion that the second prong of VanderVliet
has not been satisfied.
         “Under the second prong of the VanderVliet test, logical relevance is determined by the
application of MRE 401 and MRE 402.” Denson, 500 Mich at 400, citing Crawford, 458 Mich
at 388. Other acts evidence is logically relevant if both materiality and probative value are
present. Id. Materiality is the requirement that the other-acts evidence be related to “any fact
that is of consequence” to the action. Id., quoting MRE 401. Evidence is probative if it tends “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; Crawford, 458
Mich at 389-390. “In the context of prior acts evidence [] MRE 404(b) stands as a sentinel at the
gate: the proffered evidence truly must be probative of something other than the defendant’s
propensity to commit the crime.” Id. In this regard, we look at the similarity between the
defendant’s other act and the charged crime. If the prosecutor’s theory of relevance is based on
the similarity between the defendant’s other act and the charged crime there must be a “striking
similarity” between the two acts to find the other act admissible. Denson, 500 Mich at 403-403.

        Here, the court found evidence of the prior home invasion material and probative as it
showed a common scheme or plan. Defendant’s previous conviction involved moving a planter
beneath an open window to more easily gain access inside the home, opening the window,
reaching into a stranger’s home, and taking a laptop computer from a bag. Those details do not
parallel the details of defendant’s presently charged crime. The only similarity is the use of a
lawn object to get closer to a window of the home. In the first case, however, defendant is
allegedly to have been with another person and simply reached through an open window to take
an easily reachable object. In the instant case, in stark contrast, defendant is alleged to have used

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a lawn chair to climb into the home of someone he knew in the middle of the night, confront the
homeowner, placing something hard in her side and telling her to be quiet and he would not hurt
her, and digitally penetrate her. Defendant then stole a phone and purse (later recovered from
her yard) located inside the home (not directly inside the window) and fled when startled by a car
in the neighbor’s driveway. These crimes are not “strikingly” similar. Accordingly, the second
prong of the VanderVliet test was not satisfied and the other acts evidence should not have been
admitted. We need not consider whether the remaining prongs were met.

        Nevertheless, assessing the error in admitting the other acts evidence in light of the
properly admitted evidence, it is not more probable than not that a different outcome would have
resulted without the error. Lukity, 460 Mich at 495. Newsome identified defendant as the
perpetrator of the crime in a photo lineup. When questioned by police about his knowledge of
Newsome’s home, defendant’s story changed several times until he admitted previously being in
her bedroom when falsely told his fingerprints were found there. Absent the other acts evidence,
then, the jury could have easily convicted defendant of the home invasion.

        Additionally, VanderVliet authorizes “a limiting instruction” upon request. Starr, 457
Mich at 498, citing VanderVliet, 444 Mich at 75. The trial court gave a limiting instruction
regarding defendant’s previous home invasion conviction. As jurors are presumed to follow
their instructions, and it is presumed that instructions cure most errors, People v Abraham, 256
Mich App 265, 279; 662 NW2d 836 (2003), the limiting instruction can be found to have cured
the erroneous admission of the prior bad act.

       Affirmed.



                                                            /s/ Thomas C. Cameron
                                                            /s/ Deborah A. Servitto
                                                            /s/ Elizabeth L. Gleicher




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