Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  March 23, 2018                                                                     Stephen J. Markman,
                                                                                                Chief Justice

  156421 & (38)(39)(40)                                                                    Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                        Kurtis T. Wilder
            Plaintiff-Appellee,                                                     Elizabeth T. Clement,
  v                                                       SC: 156421                                 Justices
                                                          COA: 333546
                                                          Washtenaw CC: 15-000716-FC
  CHRISTOPHER NICHOLSON,
             Defendant-Appellant.
  _________________________________________/

        On order of the Court, the application for leave to appeal the August 10, 2017
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court. The motions to
  expand the record, to change the trial court judge, and for an evidentiary hearing are
  DENIED.

         MCCORMACK, J. (concurring).

         I concur in this Court’s order denying leave to appeal, but write separately because
  I believe the Court of Appeals erred by applying the “common scheme or plan” exception
  to MRE 404(b) when the evidence of the defendant’s prior armed-robbery conviction was
  only logically relevant to prove identity under a modus operandi theory. I nevertheless
  concur in the order denying leave because the defendant has not shown that the error
  undermined the reliability of the verdict.

         Evidence of other acts may be admissible under MRE 404(b) if the proponent can
  show logical relevance and a proper, nonpropensity purpose such as “proof of motive,
  opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge,
  identity, or absence of mistake or accident . . . .” MRE 404(b). A court considering
  404(b) evidence must not simply accept at face value the stated purpose of other-acts
  evidence. Instead, the court must “closely scrutinize” whether the proponent’s theory of
  relevance is consistent with its stated purpose. People v Denson, 500 Mich 385, 400
  (2017). Scrutiny is especially important when the prosecution asks the jury to consider
  the defendant’s prior crimes as evidence that the defendant committed this crime. This
  Court has imposed a higher standard of logical relevance for other-acts evidence used to
  prove identity under a modus operandi theory than for other theories. People v
  Golochowicz, 413 Mich 298, 325-326 (1982). To admit evidence of other acts to prove
  identity, (1) there must be “substantial proof that the defendant committed one of the
  similar acts” and (2) the acts must have a “special quality or circumstance” that identifies
  the defendant as the perpetrator. People v VanderVliet, 444 Mich 52, 66 n 16 (1993),
  amended 445 Mich 1205 (1994). To establish a common design or plan, however,
                                                                                                               2

it is not necessary to show either “distinctive and unusual features” or a “high degree of
similarity” between the charged act and the other acts. People v Hine, 467 Mich 242,
252-253 (2002).

        The trouble, of course, is that a common design or common plan is the core
element of a modus operandi theory. See 1 McCormick, Evidence (7th ed), § 190, p
1036 (modus operandi requires common characteristics of perpetrator’s crimes be “so
unusual and distinctive as to be like a signature”). For cases in which only identity is at
issue, the proponent cannot just pluck out the core element of modus operandi and dub it
a “common plan or scheme” to admit the same evidence under the lower standard. To do
so would render the stricter standard all but illusory.

       In this case, the prosecution proffered evidence—ostensibly for the purpose of
showing a common scheme or plan under MRE 404(b)—that the defendant had been
convicted of armed robbery a decade before. The Court of Appeals found that a common
scheme or plan existed based on certain similarities between the two robberies: both
happened at gas stations in the city of Ann Arbor, both occurred late at night, and both
were committed by two people wearing bandannas and holding pellet guns. The panel
concluded that the trial court had not abused its discretion by admitting the evidence
because it was “highly probative to demonstrate that defendant had a characteristic
pattern that he employed in robbing stores.” People v Nicholson, unpublished per curiam
opinion of the Court of Appeals, issued August 10, 2017 (Docket No. 333546), p 5.

       This was error. The only element in dispute was the identity of the robbers, so the
logical relevance of the defendant’s previous armed-robbery conviction was only to show
it was more likely than not that he committed this robbery. The trial court should have
considered whether there was such a “ ‘striking similarity’ ” between the two robberies as
to constitute a signature. Denson, 500 Mich at 403, quoting VanderVliet, 444 Mich at 67.
Instead, the prosecutor was allowed to do an end run around that difficult standard by
labeling the evidence a common scheme or plan. Therefore, I would hold that the trial
court’s failure to scrutinize the logical relevance of the evidence and evaluate it under the
standard for identity was an abuse of discretion. I concur in the Court’s denial of leave,
however, because the defendant cannot show that the error of admitting the evidence was
more probably than not outcome-determinative. Denson, 500 Mich at 409.

       BERNSTEIN, J., joins the statement of MCCORMACK, J.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         March 23, 2018
        t0320
                                                                             Clerk
