People of City of Warren v. Nancy Hooks ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE CITY OF WARREN, UNPUBLISHED
February 4, 2021
Plaintiff-Appellee,
v No. 354019
Macomb Circuit Court
NANCY HOOKS, LC No. 2020-000153-AR
Defendant-Appellant.
Before: K. F. KELLY, P.J., and STEPHENS and CAMERON, JJ.
PER CURIAM.
Defendant appeals by leave granted1 the circuit court order denying defendant’s delayed
application for leave to appeal the district court decision to admit prior acts evidence. Finding
error warranting reversal, we reverse the decision to admit other acts evidence and remand for
proceedings consistent with this opinion.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant was charged with violating Warren Code of Ordinances § 22-22(a), hindering,
resisting, or opposing a law enforcement officer, and § 22-23, failing to obey a lawful command
of a police officer. Specifically, in April 2019, Warren police officers responded to a report of
shots fired in defendant’s neighborhood. When the police officers arrived at the scene, they found
a crowd of people and multiple victims with severe injuries. It was alleged that defendant did not
witness the fighting, but drove to the scene and attempted to interject herself into the police
investigation. The police purportedly advised defendant that she would be arrested in light of her
repeated refusal to leave the scene, and during the course of the arrest, she was taken to the ground
and secured in handcuffs. The brief interaction of defendant’s arrest was recorded on video.
1
People v Hooks, unpublished order of the Court of Appeals, entered August 6, 2020 (Docket No.
354019).
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Plaintiff filed a motion in district court to admit evidence of two prior incidents involving
defendant from 2012 and 2017, under MRE 404(b), for non-propensity reasons of showing plan
and intent. Specifically, plaintiff alleged the prior bad acts were relevant to show defendant’s
intent to harass and pick fights with police officers and a history of planning out these verbal and
physical altercations. In response, defendant alleged the motion was untimely filed, and did not
establish a proper purpose for admission, under MRE 404(b), because intent and plan were not
material to the charged offense. She asserted that she could not “plan” a response to random police
incidents in her neighborhood.
Defendant’s prior contacts with the police were delineated in police reports in 2012 and
2017. With regard to the 2012 incident, defendant was arrested for obstructing police officers and
disturbing the peace after she approached a Warren police officer while he was investigating two
individuals pushing a shopping cart full of scrap metal that appeared to be duct work. Defendant
stopped her vehicle in the street, and she demanded to know why the police officer was speaking
to the individuals, her neighbors. The police officer instructed defendant to leave, and she initially
complied. However, defendant returned shortly thereafter and “began screaming that [the police
were] always mess[ing] with the wrong people.” Defendant continued to question the officer and
interfere with the scene, despite demands to leave the area. Consequently, she was arrested.
For the 2017 incident, defendant was arrested for resisting a police officer, disturbing the
peace, and violation of a local leash law. On this occasion, defendant was the subject of the police
investigation. A neighbor found defendant’s dogs barking and biting at his driveway gate, causing
damage. This neighbor feared that defendant’s dogs would breach the gate and fight with his own
dog and called for police assistance. In response to the complaint about defendant’s dogs, Warren
police officers went to defendant’s house and asked her about the incident. Defendant “became
belligerent and began yelling at the officers that she did nothing wrong.” Defendant continued
yelling after being issued a ticket for not leashing her dogs and attempted to follow the police
officers back to her neighbor’s home. After failing to follow several requests to return to her home,
defendant was arrested. However, the officers had difficulty handcuffing defendant because of
her continued resistance and a cast on her left arm. Ultimately, leg shackles had to be used to
arrest defendant, and she continued to levy threats that the police and her neighbor would “get
theirs.” After the arrest, defendant reportedly kicked the patrol car and attempted to strip off her
clothes at the jail.
The district court determined evidence of the 2012 and 2017 incidents was relevant to the
charged offense and admissible under MRE 404(b), stating:
After reviewing your brief, sir, and after reading and reconfirming the
404(b) statute [sic] itself, I’m satisfied that it is evidence that is relevant for
purposes of determining proof of motive, intent, plan, or system in doing an act
absence of mistake or accident. And in hearing the offer of proof today that it is
the defendant’s intention to assert that she was complying with the law at the time,
it certainly seems to me that the 404(b) evidence is relevant in contradicting that
defense, therefore, the 404(b) motion is granted.
Defendant filed an interlocutory appeal to the circuit court, alleging the district court erred
in admitting the evidence because the prosecution did not successfully establish a proper purpose,
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but sought admission to show propensity. Even if the evidence was admissible under MRE 404(b),
she asserted it should have been excluded under MRE 403 because the evidence would unfairly
prejudice the jury and would convince the jury to convict defendant on the basis of her prior
conduct. In response, plaintiff asserted the evidence was admissible for the nonpropensity purpose
of showing defendant’s criminal intent, plan, and system in engaging with officers during
investigations that did not involve her, yelling to attract an audience, and refusing to leave the
scene even when threatened with arrest. Because the nature of the crimes was only disorderly
conduct, plaintiff contended the evidence did not rise to the level that would cause unfair prejudice
that substantially outweighed the probative value. Without oral argument or legal analysis, the
circuit court simply denied defendant’s application for leave to appeal for lack of merit in the
grounds presented.
II. ANALYSIS
Defendant contends the district court erred in admitting prior bad acts evidence regarding
defendant’s 2012 and 2017 incidents. We agree.
“Our review of a circuit court’s review of a district court’s order is . . . de novo.” Noll v
Ritzer, 317 Mich App 506, 510; 895 NW2d 192 (2016). Generally, the admissibility of prior bad
acts evidence is within the trial court’s discretion and will not be disturbed absent a clear abuse of
discretion. People v Denson, 500 Mich 385, 396; 902 NW2d 306 (2017). The trial court “abuses
its discretion when it chooses an outcome that is outside the range of reasonable and principled
outcomes.” People v Waclawski, 286 Mich App 634, 670; 780 NW2d 321 (2009). “The
determination whether the probative value of evidence is substantially outweighed by its
prejudicial effect is best left to a contemporaneous assessment of the presentation, credibility and
effect of the testimony.” Id. (citation omitted). Further, “whether a rule or statute precludes
admission of evidence is a preliminary question of law” that the appellate court reviews de novo.
Denson, 500 Mich at 396. The prosecutor bears the burden of establishing a proper purpose for
admitting the other acts evidence. Id. at 398.
MRE 404(b) address other crimes, wrongs, or acts and states, 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. [MRE 404(b)(1).]
“It is a deeply rooted and unwavering principle that other-acts evidence is inadmissible for
propensity purposes.” People v Felton, 326 Mich App 412, 425; 928 NW2d 307 (2018) (quotation
marks and citation omitted). “This rule reflects the fear that a jury will convict a defendant on the
basis of his or her allegedly bad character rather than because he or she is guilty beyond a
reasonable doubt of the crimes charged.” Id. (quotation marks and citation omitted). As a result,
evidence of prior bad acts are only admissible if:
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(1) the evidence is offered for some purpose other than under a character-
to-conduct theory, or a propensity theory, (2) the evidence is relevant to a fact of
consequence at the trial, and (3) the trial court determines under MRE 403 that the
probative value of the evidence is not substantially outweighed by the danger of
unfair prejudice. If requested, the trial court may provide a limiting instruction
under MRE 105. [People v Bass, 317 Mich App 241, 259; 893 NW2d 140 (2016),
quoting People v Ackerman, 257 Mich App 434, 440, 669 NW2d 818 (2003).]
Evidence is unfairly prejudicial when it presents the danger that marginally probative evidence
will be given undue or preemptive weight by the jury. Id. A mechanical recitation of a proper
purpose without an accompanying explanation addressing how the evidence relates to the recited
purpose will not justify admission under MRE 404(b). Felton, 326 Mich App at 425-426. Instead,
a trial court must “vigilantly weed out character evidence that is disguised as something else.” Id.
at 426 (quotation marks and citation omitted).
The district court erred in its admission of the evidence of defendant’s 2012 and 2017
incidents. Defendant’s 2012 and 2017 incidents have minimal probative value because they
merely establish that on two prior occasions defendant behaved in an unruly or hostile manner in
encounters with police officers in her neighborhood. As noted, the 2012 incident involved
defendant approaching and yelling at police officers when they were conducting an unrelated
investigation, and the 2017 incident involved defendant yelling at police officers after responding
to a neighbor’s complaint about defendant’s dogs.
While “[o]ther-acts evidence may be admissible when 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[,]” the “[m]ere similarity between the other-acts evidence and
the charged conduct is not sufficient; rather, the effort is to the establish a definite prior design or
system which included the doing of the act charged as part of its consummation.” Felton, 326
Mich App at 426 (quotation marks and citation omitted). Defendant’s prior incidents did not
demonstrate defendant’s intent or pattern of deliberately going to crime scenes that did not involve
her and engaging in verbal and physical altercations with police. Instead, the prior incidents and
charged offenses are merely similar in that each incident involves the Warren police and defendant.
In fact, the 2017 incident did not involve defendant’s “plan” to insinuate herself into an unrelated
police investigation and “harass and pick fights” with the police. Rather, defendant was the subject
of a 2017 complaint by a neighbor, and the police went to defendant’s home to investigate an
incident involving her dogs. Thus, plaintiff failed to establish that defendant’s behavior in 2017
proved she intended to approach and disobey the police officers in accordance with the current
offenses. Denson, 500 Mich at 401.
Further, defendant’s intent, plan, or system to allegedly commit the charged offenses was
not a material issue in this case because defendant’s interaction with the officers was entirely
captured on video. Instead, the underlying reason for admitting this evidence was to show
defendant’s disrespect for police officers and conformity with that characteristic to commit the
charged offenses. Because MRE 404(b) prohibits the use of the prior bad acts evidence to show a
propensity to commit a charged offense, the district court’s erred in concluding that the evidence
was offered for a proper purpose.
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However, even if we were to conclude that the evidence of the prior incidents was offered
for a proper purpose, prior bad acts evidence is, nonetheless, limited to evidence that satisfies the
more probative than prejudicial balancing test of MRE 403, which states:
Although relevant, evidence may be excluded if its 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.]
Evidence is not “unfairly prejudicial” just because it is damaging; rather, the term
refers to the tendency of the proposed evidence to adversely affect the objecting
party’s position by injecting considerations extraneous to the merits of the lawsuit,
e.g., the jury’s bias, sympathy, anger, or shock. Moreover, admission of evidence
is unfairly prejudicial when . . . the danger exists that marginally probative
evidence will be given undue or preemptive weight by the jury. [People v
Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011) (quotation marks,
citations, and brackets omitted).]
“[C]ourts must weigh the propensity inference in favor of the evidence’s probative value
rather than its prejudicial effect.” People v Watkins, 491 Mich 450, 487; 818 NW2d 296 (2012).
To determine whether to exclude evidence under MRE 403, a trial court can properly consider the
following nonexhaustive list of factors:
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal
proximity of the other acts to the charged crime, (3) the infrequency of the other
acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence
supporting the occurrence of the other acts, and (6) the lack of need for evidence
beyond the complainant’s and the defendant’s testimony. [Watkins, 491 Mich at
487-488 (citation omitted).]
Evidence of defendant’s 2012 and 2017 incidents were excluded by MRE 403 because
their probative value was substantially outweighed by their prejudicial effect. Admittedly, there
are similarities between the 2012 and 2017 incidents and the current offenses in that defendant
becomes belligerent and hostile in her contacts with the police. However, the 2012 incident
involving defendant’s presence at a police investigation took place seven years before the charged
offenses, and defendant has not been arrested for similar behavior since 2012. Thus, defendant’s
disorderly behavior with police officers cannot be considered frequent and reoccurring. Moreover,
evidence of the 2012 incident does not provide additional evidence as to whether defendant
committed the charged offenses, especially since defendant’s interaction with the police officers
in the charged offense was entirely captured on video. Therefore, the district court’s decision to
admit evidence of the 2012 incident has created a substantial prejudicial risk that the jury will
convict defendant for the charged offenses because her behavior conformed with her behavior in
a single incident seven years earlier.
For similar reasons, evidence of defendant’s 2017 incident was not admissible under MRE
403. The 2017 incident is entirely dissimilar from the charged offenses and purported basis
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proffered by the prosecution for admission under MRE 404(b). Specifically, defendant was
directly and involuntarily involved in the 2017 incident because the police officers went to her
home after receiving complaints about her dogs, and defendant began yelling at the police officers
after they instructed her to leash her dogs. Likewise, evidence of the 2017 incident does not
provide additional evidence as to whether defendant committed the charged offenses or had a
propensity to insert herself in and hinder police investigations that do not involve her. Therefore,
the district court’s decision to admit evidence of the 2017 incident has created a substantial
prejudicial risk that the jury will convict defendant because her behavior conformed with her
behavior in a single incident two years earlier.
Further, the prejudicial effect will be dramatically increased if evidence of both prior
incidents are admitted at trial because, taken together, the jury will undoubtedly view the 2012
incident, 2017 incident, and charged offenses as a pattern of disorderly conduct with police
officers. Because the prejudicial effect of defendant’s prior bad acts substantially outweighs the
probative value, the district court erred in admitting this evidence.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Cynthia Diane Stephens
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