Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED SEPTEMBER 17, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 120484
ROBERT EDWARD HINE,
Defendant-Appellee.
________________________________
PER CURIAM
I
The defendant was convicted by a jury of first-degree
felony murder, MCL 750.316(b), and first-degree child abuse,
MCL 750.136b. The defendant was sentenced to terms,
respectively, of life without the possibility of parole and
ten to fifteen years. The defendant appealed as of right.
The Court of Appeals reversed the defendant’s convictions
because of the perceived error in admission of other acts
evidence against the defendant and remanded the case to the
trial court.1 This Court vacated the judgment of the Court of
Appeals and remanded the case to that Court for
reconsideration in light of People v Sabin (After Remand), 463
Mich 43; 614 NW2d 888 (2000). 463 Mich 926 (2000). On
remand, the Court of Appeals again reversed the defendant’s
convictions and remanded the case to the trial court.2
On application for leave to appeal by the prosecutor, we
reverse the judgment of the Court of Appeals and remand to
that Court for consideration of the remaining issues of the
defendant that have not yet been addressed. The Court of
Appeals erred in its determination that evidence of
defendant’s assaultive behavior toward three women was
inadmissible under Sabin. We hold that the evidence was
admissible to establish the common scheme, plan, or system of
the defendant in perpetrating a particular type of physical
assault. From that evidence the jury could properly have
inferred that the charged acts were committed, and were
committed by the defendant. Sabin, supra at 66-67.
1
Unpublished opinion per curiam, issued February 25,
2000 (Docket No. 207358). The Court did not address
defendant’s other issues, which concerned unsolicited
testimony about other bad acts committed by the defendant,
omission of an instruction on specific intent, and violation
of double jeopardy principles in the imposition of sentences
on both the felony murder and the predicate felony.
2
Unpublished opinion per curiam, issued November 13,
2001 (Docket No 207358).
2
II
On November 7, 1996, paramedics were called to a home in
Battle Creek, Michigan, because of a report that a child was
choking. The paramedics found Caitlan McLaughlin, a two-and
a-half-year-old girl who was not breathing, had no pulse, and
appeared to be dead. After communication with physicians at
the nearby hospital emergency room, Caitlan was officially
pronounced dead. An autopsy determined that the child had
several internal injuries including a subdural hematoma, a
healing tear of the liver, hemorrhage in the region of the
pancreas, another area of bleeding in the colon (near the
appendix), and a large amount of fluid in the abdomen.
Caitlan had numerous circular bruises on her abdomen and a
bruise across the bridge of her nose. The injuries were of
varying ages, from less than half a dozen hours up to five to
seven days old. The cause of death was multiple blunt force
injuries. The pathologist opined that the aggregate of the
injuries caused Caitlan’s death, and that the death was not
accidental.
The week before Caitlan died, defendant had been her sole
care provider while her mother was at work. Defendant denied
any wrongdoing in connection with Caitlan’s death.
The defendant was charged with open murder, MCL 750.316,
felony murder on the basis of perpetration or attempted
perpetration of child abuse, MCL 750.316(1)(b), and first
3
degree child abuse, MCL 750.136b. The prosecutor notified the
defendant of her intent to introduce other acts evidence
pursuant to MRE 404(b). The trial court held an evidentiary
hearing at which the proposed other acts witnesses testified.3
Three of the witnesses were former girlfriends of the
defendant and included the child’s mother. Although the
prosecutor referred to alternate theories of admissibility
under MRE 404(b),4 the theory before us is proof of a common
3
The prosecutor offered four witnesses, of whom three
were allowed to testify at the trial. Only their testimony
will be discussed. The prosecutor described the testimony
that would be given by the pathologist, Laurence Simson, M.D.,
and an expert in child abuse, Stephen Guertin, M.D.
4
MRE 404 states:
Character evidence not admissible to prove
conduct; exceptions; other crimes
* * *
(b) Other crimes, wrongs, or acts.
(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.
(2) The prosecution in a criminal case shall
provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any
such evidence it intends to introduce at trial and
the rationale, whether or not mentioned in
subparagraph (b)(1), for admitting the evidence.
4
scheme, plan, or system.
One witness testified that she dated defendant in 1996,
the year before Caitlan’s death. She described incidents in
which the defendant grabbed her arms, put his hands in her
mouth, and stretched her lips. This resulted in bruises on
her gums. The witness attributed the violence to the
defendant’s irritation with her. She also described other
incidents involving being threatened with a metal folding
chair and with having her eyes blackened.
Another witness testified that during the time she was
involved with the defendant, she was assaulted by him at least
once a week. Defendant “head-butted” her, a movement
described as defendant hitting his forehead on the witness’
nose. One incident caused bleeding from both her nostrils.
The witness described being picked up and thrown down by the
defendant. Although the defendant never punched her, the
witness said the defendant would grab, throw, and shove her.
Another witness was Caitlan’s mother. She described the
beginning of her relationship with the defendant in late 1995
and their leasing of a residence together in the fall of 1996.
She testified that the defendant would pin down her arms with
his knees when he was angry, causing bruises on her arms. The
If necessary to a determination of the
admissibility of the evidence under this rule, the
defendant shall be required to state the theory or
theories of defense, limited only by the
defendant's privilege against self-incrimination.
5
defendant would push and shove her. Once, the defendant kneed
her in her mouth, which caused her lips to become swollen and
bruised. The defendant poked her in the forehead and chest
with enough force that it hurt. Caitlan’s mother gave the
descriptive name of “fish-hook” to the maneuver described by
the first witness in which the defendant put his fingers or
hand inside her mouth and forcefully pulled. Caitlan’s mother
also described several head-butting incidents.
Additionally, the prosecutor summarized the evidence that
would be presented by the forensic pathologist and the expert
in child abuse.
The trial court ruled on the prosecutor’s motion on the
first day of trial. The court looked to this Court’s decision
in People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), and
relied upon its four-pronged analysis:
In VanderVliet, supra at 74-75, we adopted the
approach to other acts evidence enunciated by the
United States Supreme Court in Huddleston v United
States, 485 US 681, 691-692; 108 S Ct 1496; 99 L Ed
2d 771 (1988). That approach employs the
evidentiary safeguards already present in the rules
of evidence. First, the prosecutor must offer the
other acts evidence under something other than a
character to conduct or propensity theory. MRE
404(b). Second, the evidence must be relevant
under MRE 402, as enforced through MRE 104(b), to
an issue of fact of consequence at trial. Third,
under MRE 403, a “‘determination must be made
whether the danger of undue prejudice
[substantially] outweighs the probative value of
the evidence in view of the availability of other
means of proof and other facts appropriate for
making decision of this kind under Rule 403.’”
VanderVliet, supra at 75, quoting advisory
committee notes to FRE 404(b). Finally, the trial
6
court, upon request, may provide a limiting
instruction under MRE 105. [Sabin, supra at 55-56.]
The trial court held that the evidence was not being
offered to show the defendant’s propensity to commit the
criminal act. Rather, the other acts evidence was offered to
show defendant’s scheme, intent, system, or plan in committing
the acts and to show the lack of accident.5 The court
specifically noted the testimony regarding episodes of head
butting and mouth-grabbing committed by the defendant. The
court ruled that the evidence was relevant to show who
inflicted the injuries on the child and the intent with which
they were done. The court also found the other acts evidence
to be highly probative. It recognized the danger of unfair
prejudice, but held that the prejudice was diminished because
the other acts evidence involved women, not children, and the
women gave no testimony about the defendant harming children.
Finally, the court stated that it would give a limiting
instruction to the jury regarding the use of the other acts
evidence.
At trial, an expert on child abuse opined that some of
the bruises on Caitlan’s jaw were likely five days old and
5
Contrary to the observation of the Court of Appeals,
the defendant offered “accident” as an explanation of several
of Caitlan’s injuries. For example, the liver injury was
attributed to a fall off a bicycle, and a facial injury was
attributed to Caitlan falling on a toy box while in the
defendant’s care. However, the testimony of the pathologist
and the expert on child abuse presented ample evidence that
the injuries were not accidental.
7
resembled a fingernail imprint. Another mark on Caitlan’s jaw
was described by the expert as typical of the mark left when
picking up and shaking a child in a certain way. The witness
also described poking injuries sustained by Caitlan that could
not have been accidental. The expert opined that the head
injuries had been inflicted on the day the child died.
The defendant testified. He attributed several of
Caitlan’s injuries to a fall on a bathtub and falls on toy
boxes that occurred while she was in his care. He denied he
kicked or punched Caitlan on the day she died. He admitted he
spanked her two days previously, but said he had “swatted” her
only once.6
The jury convicted the defendant of felony murder and
first-degree child abuse. The defendant was acquitted of open
murder.
III
The Court of Appeals has twice reversed the defendant’s
convictions. In its first opinion, the Court looked to
VanderVliet, supra, and People v Crawford, 458 Mich 376; 582
NW2d 785 (1998), and found that the other acts evidence made
none of the facts in dispute at defendant’s trial more or less
probable. The Court held that substantial dissimilarities
existed between the assaults on the other acts witnesses and
6
The bruises on Caitlan’s buttocks were described by the
experts as massive and as dating from three days before death.
Multiple blows, not a single blow, were the cause.
8
the injuries sustained by the victim in this case. The Court
stated its concern that the evidence had been used to show the
defendant’s propensity to commit a criminal act and concluded
that the danger of unfair prejudice outweighed any marginal
probative value the evidence possessed.
We remanded the case to the Court of Appeals after the
prosecutor sought leave to appeal in this Court. On remand
for reconsideration in light of Sabin, the Court of Appeals
again reversed, reasoning that the other acts evidence was
used to prove the “very act” that was the object of proof.
Perceiving that a higher degree of similarity between the
other acts evidence and the charged act was required, the
Court held that there was “nothing, within the universe of
violent assaults” particularly unusual or distinctive in the
conduct of the defendant. The Court also stated that there
was “precious little evidence that there was a criminal act”
involving the child. In this the Court of Appeals erred.
IV
A trial court ruling admitting evidence is reviewed for
an abuse of discretion. People v Bahoda, 448 Mich 261; 531
NW2d 659 (1995). An abuse of discretion occurs “when the
result is ‘so palpably and grossly violative of fact and logic
that it evidences not the exercise of will but perversity of
will, not the exercise of judgment but [the] defiance [of it]
. . . .’” Dep’t of Transportation v Randolph, 461 Mich 757,
9
768; 610 NW2d 893 (2000). An abuse of discretion involves far
more than a difference of opinion. Id. Further, a trial
court’s decision on a close evidentiary question ordinarily
cannot be an abuse of discretion. People v Smith, 456 Mich
543, 550; 581 NW2d 654 (1998). An abuse of discretion might,
however, result where the trial court operates within an
incorrect legal framework. In this case, the Court of Appeals
expressed its difference of opinion with the trial court
regarding the degree of similarity between the other acts
evidence and the charged conduct. The approach taken by the
Court of Appeals, however, failed to take into account the
evidence presented to the trial court in support of the
prosecutor’s theory that Caitlan died as a result of multiple,
nonaccidental, blunt force injuries. The evidence presented
at the evidentiary hearing and at trial supported the trial
court’s conclusion that there was a common plan, scheme, or
system in the defendant’s assaults on the women and on the
child. Indeed, the Court of Appeals panel’s recitation of the
facts is perplexing. Rather than viewing the evidence in a
light most favorable to the prosecution, as it was required to
do, the panel discounted the prosecution’s evidence and
accorded undue weight to defendant’s version of the events.
See slip op at 1-2.
In Sabin, we held that evidence of similar misconduct is
logically relevant to show that the charged act occurred where
10
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. For other
acts evidence to be admissible there must be such a
concurrence of common features that the uncharged and charged
acts are naturally explained as individual manifestations of
a general plan. Sabin, supra at 64-65. Sabin involved the
use of other acts evidence to prove that the charged act
occurred. We recognized that the degree of similarity between
the uncharged and charged conduct required as a threshold for
admissibility in such a case was higher than that needed to
prove intent, but not as great as that needed to prove
identity. Id. at 65.
In this case, the Court of Appeals imposed a standard of
a high degree of similarity between the other acts and the
charged acts, apparently because it believed that the evidence
presented to the trial court did not demonstrate any unlawful
conduct. Slip op at 10. The Court of Appeals was mistaken.
The testimony and offers of proof at the evidentiary hearing
suggested that Caitlan had died from multiple, nonaccidental,
blunt force injuries, and that her death was a homicide.
Specifically, the evidence established that the “fish
hook” assaults on the defendant’s former girlfriends were
similar to the method or system that could have caused the
fingernail marks on Caitlan’s right cheek. Further, one of
11
the other acts witnesses described the forceful and hurtful
“poking” inflicted upon her by the defendant. The forensic
pathologist testified that Caitlan had fifteen to twenty
circular bruises on her abdomen, the largest of which measured
about one inch. The expert on child abuse testified that
these injuries were typical of injuries received when a child
has been poked, and that accidental injuries in that area of
a child’s body were completely atypical. Thus, contrary to
the observations of the Court of Appeals, there were both
injuries distinctive from ordinary assaults,7 and similarities
between the other acts (uncharged conduct) and injuries to the
child (charged conduct). As we stated in Sabin, distinctive
and unusual features are not required to establish the
existence of a common design or plan. The evidence of
uncharged acts needs only to support the inference that the
defendant employed the common plan in committing the charged
offense. Sabin, supra at 65-66.
The trial court did not abuse its discretion in
determining that the assaults by the defendant on his former
girlfriends and the charged offenses regarding Caitlan shared
sufficient common features to permit the inference of a plan,
scheme, or system. The charged and uncharged acts contained
common features beyond similarity as mere assaults.
7
The Court of Appeals cited no authority for its view of
what constitutes the “universe of violent assaults.”
12
V
The trial court operated within the correct legal
framework in determining the evidence admissible under Sabin.
That the Court of Appeals had a different view of the evidence
does not establish an abuse of discretion by the trial court.
Therefore, we reverse the decision of the Court of Appeals,
and remand this case to that Court for consideration of
defendant’s remaining arguments.
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
CAVANAGH and KELLY , JJ., concurred in the result only.
13