                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 4, 2015
               Plaintiff-Appellee,

v                                                                  No. 321381
                                                                   Bay Circuit Court
ABDULAI BANGURAH,                                                  LC No. 13-010179-FC

               Defendant-Appellant.


Before: FORT HOOD, P.J., and SAAD and RIORDAN, JJ.

PER CURIAM.

        Defendant appeals his jury trial convictions for first-degree criminal sexual conduct and
first-degree home invasion. For the reasons stated below, we affirm.

                          I. FACTS AND PROCEDURAL HISTORY

        Defendant apparently met the victim at a party on the evening of March 12, 2013. At
some point during the night, the victim, who hosted the gathering at her apartment, asked her
guests to leave because she had had too much to drink. The party-goers left to carry on in
another apartment in the victim’s building. Defendant, however, returned to the victim’s
apartment thereafter. He broke in, found the victim asleep, and got into bed with her. As
defendant began to touch the victim, she told him to stop, but he did not. Defendant then put his
fingers in the victim’s vagina, and ultimately penetrated her with his penis. When the victim
began to scream, defendant forcibly pushed her shoulders down and continued to rape her.
Another resident of the apartment complex, who was returning from work, heard the victim’s
screams and pleas for “help” and for someone to “stop,” and called 911. Defendant continued to
sexually assault the victim until an unidentified man came into the apartment and stated that
police were searching the building.

        The police arrested defendant and the prosecution charged him with: (1) two counts of
first-degree criminal sexual conduct, pursuant to MCL 750.520b(1)(f) (use of force or coercion)
and MCL 750.520b(1)(c) (penetration during commission of a felony); and (2) first-degree home
invasion, pursuant to MCL 750.110a(2). Defendant requested a jury trial, and the Bay Circuit
Court empanelled a jury to hear his case. The jury heard testimony from, among others: the
victim, the victim’s friend and fellow party-attendee, the neighbor who called 911, a police
officer who responded to the scene, a nurse at the sexual trauma center visited by the victim, and
defendant himself.
                                               -1-
        The victim, her friend, and the neighbor testified to the above events, while the nurse and
police officer provided testimony that corroborated these events. Specifically, the nurse stated
that the victim, who came to the trauma center for an exam, said that she had been sexually
assaulted. In her examination of the victim, the nurse found an abrasion on the victim’s genital
area that indicated violent sexual penetration.1 Likewise, the police officer testified that he found
the victim sitting on a mattress, crying, and repeating “he raped me.” The officer also noted that
the door frame to the victim’s apartment had been broken.

        In his testimony, defendant presented a rather different version of events. He claimed
that he and the victim talked and flirted at the party in the victim’s apartment, and that the victim
accompanied the other party-goers when they moved to a neighboring apartment. The victim,
according to defendant, returned to her apartment only after the arrival of his girlfriend, which
supposedly upset her. Defendant said he followed the victim to apologize for his girlfriend’s
behavior, and found the door to the victim’s apartment open. After defendant called the victim’s
name, she invited him to come inside and told him that she liked him. Defendant claimed they
then had consensual sex, and that the victim changed her demeanor only when an unidentified
individual walked into the room.

        During defendant’s cross-examination, the prosecutor asked defendant if he had called
his sister while in jail, to tell her about what had happened the evening of the victim’s rape. This
query led to the following exchange:

               Q (Prosecutor). [Y]ou have a sister . . . , correct?

               A (Defendant). Yes, sir.

               Q. You were talking with her on the phone in August?

               A. Yeah, I talked to my sister, yes.

              Q. Do you recall telling her that you didn’t remember anything about
       what happened that night?

               A. Well, ‘cause I didn’t want to talk about the situation with her.

               Q. So, you did tell her that you didn’t remember anything?

              A. Yeah, because she wanted to know what happened and stuff like that,
       and I was around inmates in the—I didn’t want to talk about my case.

               Q. She wanted to know what happened?



1
  The nurse also explained that while it was possible for an injury of the type the victim
possessed to occur during consensual sex, she had never seen this type of injury in women who
had had consensual sex.


                                                -2-
               A. Yeah. But also, [the victim] . . . got friends that’s in the jail and they
       wasn’t really nice to me and stuff like that. I’m . . . a polite guy. I’m gentle. You
       know, I’m a cool guy. I didn’t want to start no trouble with anyone talkin’ about
       the case.

               Q. So, people were mean to you in the jail?

               A. Yes.

               Q. And you’re a polite guy and you’re gentle?

               A. Yes.

              Q. So, you never bragged to your sister about fights you got into and
       about beating people up in the jail?

               A. That—

       At this point, defense counsel objected to the prosecution’s questioning as irrelevant.
The prosecutor responded that he sought to impeach defendant, because of the fact that
defendant claimed he was “polite” and “gentle,” yet had assaulted other inmates. Though the
court initially permitted the prosecution to continue the line of questioning, it almost
immediately told the prosecutor to move on after the prosecutor and defense counsel spoke with
one another.

        The jury convicted defendant of two counts of first-degree criminal sexual conduct, and
first-degree home invasion. On appeal, defendant argues that the trial court abused its discretion
when it permitted the prosecutor to question him about assaulting other inmates in the jail.
Specifically, defendant says this exchange was: (1) irrelevant under MRE 401 and, even if
relevant, unfairly prejudicial under MRE 403; and (2) impermissible character evidence under
MRE 404(a)(1). The prosecution argues that the prosecutor’s line of questioning was
appropriate, relevant, and not unfairly prejudicial, and asks us to uphold the ruling of the trial
court.

                                 II. STANDARD OF REVIEW

        “A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion.” People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). A trial court abuses its
discretion when it chooses an outcome outside of the range of principled outcomes. People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

        “[P]reliminary questions of law, e.g., whether a rule of evidence or statute precludes
admissibility of evidence,” are reviewed de novo. People v Lukity, 460 Mich 484, 487; 596
NW2d 607 (1999). An error in the admission of evidence “does not warrant reversal unless
‘after an examination of the entire cause, it shall affirmatively appear that it is more probable
than not that the error was outcome determinative.’ ” Burns, 494 Mich at 110, quoting Lukity,
460 Mich at 495-496.


                                               -3-
                                        III. ANALYSIS

        Under MRE 401, relevant evidence tends to “make a material fact at issue more probable
or less probable than it would be without the evidence.” People v Crawford, 458 Mich 376, 387;
582 NW2d 785 (1998). The possibility that defendant assaulted other prisoners indicates that he
is capable of assaulting others, and thus tends to “make a material fact at issue”—whether
defendant broke into the victim’s home and raped her—“more probable . . . than it would be
without the evidence.” Id. Defendant’s arguments to the contrary defy both logic and common
sense, and are without merit.

        Nor is the evidence inadmissible under MRE 403, which only prohibits the admission of
relevant evidence when the evidence’s “probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.” MRE 403.
“Unfair prejudice” means “more than simply damage to the [defendant’s] cause. . . . What is
meant [by MRE 403] is an undue tendency to move the tribunal to decide on an improper basis,
commonly, though not always, an emotional one. People v Vasher, 449 Mich 494, 501; 537
NW2d 168 (1995). When a court assesses whether the probative value of the evidence is
substantially outweighed by unfair prejudice, it performs a balancing task that looks to several
factors, including:

               . . . the time required to present the evidence and the possibility of delay,
       whether the evidence is needlessly cumulative, how directly the evidence tends to
       prove the fact for which it is offered, how essential the fact sought to be proved is
       to the case, the potential for confusing or misleading the jury, and whether the fact
       can be proved in another manner without as many harmful collateral effects.
       [People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).]

       Here, there is nothing unfairly prejudicial about the prosecution’s questioning of
defendant about altercations he allegedly had with other inmates. The time required to question
defendant on this topic was minimal, there was no delay to the trial, the questioning was not
cumulative, the events described by the questioning tended to suggest defendant was capable of
violence, and there was very little potential for the questioning to confuse the jury. Id.

       Equally unavailing is defendant’s argument that the prosecution’s questions about his
fights with other inmates at the jail constituted impermissible character evidence under MRE
404(a)(1). That rule states:

               (a) Evidence of a person’s character or a trait of character is not
       admissible for the purpose of proving action in conformity therewith on a
       particular occasion, except:

              (1) Evidence of a pertinent trait of character offered by an accused, or by
       the prosecution to rebut the same; of if evidence of a trait of character of the
       alleged victim of the crime is offered by the accused and admitted under
       subdivision (a)(2), evidence of a trait of character for aggression of the accused
       offered by the prosecution . . . . [MRE 404(a) (emphasis added).]

                                               -4-
        “In general, where a defendant ‘takes the stand and testifies in his own defense, his
credibility may be impeached and his testimony assailed like that of any other witness . . . .’ ”
People v Fields, 450 Mich 94, 110; 538 NW2d 356 (1995). Put simply, if a defendant testifies to
his own good character, the prosecution can introduce evidence that defendant actually is of bad
character. People v Whitfield, 425 Mich 116, 130; 388 NW2d 206 (1986). It is possible that a
witness “may well slip into a general discourse on the defendant’s character . . . thus opening up
the range of rebuttal allowed to the prosecution . . .” Id. at 131. When this happens, “the defense
may thus unwittingly furnish the foundation for the prosecutor to acquaint the jury with matters
which otherwise could not be admitted into evidence.” Id.

        In this case, defendant put his character at issue by offering unsolicited information about
his supposedly “polite” and “gentle” nature, when the prosecutor merely asked him whether he
told his sister about the events that took place on the night of the victim’s rape. The prosecution
had every right to rebut defendant’s assertions about his character with evidence that defendant
engaged in violent behavior with other inmates. MRE 404(1)(a); Fields, 450 Mich at 110.
Defendant’s assertions that this somehow violated MRE 404(1)(a) are simply wrong and a
misinterpretation of the plain language of that rule and Michigan law.

       In any event, were we nonetheless to find that the trial court improperly admitted this
exchange between the prosecutor and defendant, defendant has failed to show that this brief line
of questioning prejudiced his case. Burns, 494 Mich at 110. The jury heard testimony from the
victim, her friend, her neighbor, a police officer, and a nurse, that contradicted defendant’s
version of events and suggested his guilt—all of which had nothing to do with this single
exchange between defendant and the prosecutor. In sum, it is very likely defendant would have
been convicted absent the line of questioning of which he complains. See Lukity, 460 Mich at
495-496.

       Affirmed.



                                                             /s/ Karen M. Fort Hood
                                                             /s/ Henry William Saad
                                                             /s/ Michael J. Riordan




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