author: P. C. Elliott, J. M. F. Cavanagh, J.

text:
    PEOPLE v JONES
    Docket No. 78-4387.
    Submitted December 12, 1979, at Detroit.
    Decided July 1, 1980.
    Mearl E. Jones was convicted of larceny in a building, Wayne Circuit Court, William L. Cahalan, J. Defendant appeals, alleging 1) evidence presented to the jury of his intent to permanently deprive a store owner of its property was insufficient as a matter of law, 2) admission of statements defendant made to the police after his arrest constituted error, and 3) the court erred in allowing the use of defendant’s criminal conviction record for the purpose of impeachment. Held:

    1. The law does not require that the term "permanently deprive” be understood literally. Lack of purpose to return the property within a reasonable time is sufficient. There was ample evidence from which the trier of fact could determine that intent existed.
    2. The trial court did not err in admitting defendant’s statements to the police after determining that he had been apprised of and had voluntarily waived his rights.
    3. The trial court properly exercised its discretion in determining that the probative value of evidence of defendant’s prior convictions on the issue of credibility outweighed any prejudicial effect and allowing their admission for impeachment.
    Affirmed.
    M. J. Cavanagh, J., concurred in the result, agreeing there was no abuse of discretion by the trial court in admitting evidence of defendant’s prior convictions, but disagreeing with the statement by the majority concerning the frequency of perjury by defendants in criminal trials as being a factually unsound generalization providing an inappropriate guideline for future cases.
    References for Points in Headnotes

       50 Am Jur 2d, Larceny § 36.

       29 Am Jur 2d, Evidence § 327.

      Opinion op the Court
    1. Larceny — Words and Phrases — Criminal Intent,
    The law on larceny does not require that the term "permanently deprive” be understood literally; lack of purpose to return property taken within a reasonable time is sufficient.
    2. Criminal Law — Evidence — Cross-Examination — Prejudicial Effect — Probative Value — Witnesses — Impeachment — Rules of Evidence.
    Mention of a defendant’s past crimes for purposes of impeachment during cross-examination is barred unless the prejudicial effect is outweighed by the probative value on the issue of credibility (MRE 609[a][2]).
    3. Criminal Law — Evidence — Prior Convictions — Prejudicial Effect — Probative Value — Witness Credibility — Relevancy — Impeachment.
    The similarity of a prior conviction to the offense charged increases its prejudicial effect and is a factor to be weighed against its use for impeachment, but its probative value also increases on the issue of credibility because of the similarity, and it is relevant for purposes of impeachment.
    4. Criminal Law — Evidence — Prejudicial Effect — Probative Value — Prior Convictions — Defenses.
    The trial court, in attempting to balance the prejudicial effect and the probative value on credibility of proffered evidence of a defendant’s prior convictions, should consider, among other factors, the effect such evidence will have on 1) the testimony of the defendant and other witnesses, 2) a claim of good character by the defendant or his witness, and 3) the probability of a defense of diminished capacity, mistake, ignorance or accident.
    5. Criminal Law — Evidence — Prior Convictions — Misdemeanors — Impeachment — Statutes — Rules of Evidence.
    Evidence of prior convictions for misdemeanors involving theft, dishonesty or false statement may be used for purposes of impeachment (MRE 609[a][l]).
    6. Criminal Law — Evidence — Abuse of Discretion — Prior Convictions — Impeachment.
    A trial court will not be held to have abused its discretion in admitting evidence of a defendant’s prior convictions for the purpose of impeachment unless the result of such admission is so palpably and grossly violative of fact and logic that it evidences perversity of will, defiance of judgment, or is based on passion or bias rather than the exercise of reason.

      Concurrence by M. J. Cavanagh, J.
    7. Criminal Law — Evidence — Courts — Abuse of Discretion — Prior Convictions.

      Admission of evidence of a defendant’s prior convictions is not improper where there was no abuse of discretion by the trial court.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Rita Chastang, Assistant Prosecuting Attorney, for the people.

      Bernstein, Rabinovitz & Weitzman, P.C., for defendant on appeal.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   P. C. Elliott, J.

Defendant appeals of right from his conviction, by a jury, of larceny in a building, MCL 750.360; MSA 28.592. He was sentenced to prison for two to four years.

Facts

Defendant and a woman entered a jewelry store and asked to see wedding rings. While the woman tried to distract the salesman, the salesman and the cashier saw defendant lean over and grab an expensive diamond ring through the opened door in the back of a showcase. "Give me that ring,” the salesman demanded. "What ring? I don’t have a ring,” defendant said. When the salesman yelled to the cashier, "Call the police,” defendant passed something from his hand to the hand of the woman, who then ran from the store. Defendant quickly followed her. Several hours later the missing ring was found in the parking lot and returned by an honest woman, Elizabeth Hands.

The trial judge conducted a very patient and thorough inquiry before ruling that defendant’s statements to the police were admissible. Defendant had falsely denied that he had signed a Miranda warning card and falsely claimed that he had been beaten. In his statement, defendant said he and his girlfriend were looking at rings when he was accused of taking one. He denied it and left. After his statement, he offered to take the police to her apartment. On the way there, he asked the detective what he would do for him and said he wanted to be released. When he was told that the detective couldn’t make any promises, defendant refused to take the police to his accomplice.

Four years earlier, defendant had been arrested and convicted of larceny in a building. Later plea-bargaining reduced two separate breaking and entering charges to another conviction of larceny in a building and a conviction of attempted larceny in a building. The trial judge denied defendant’s motion to bar use of his three prior convictions for impeachment; the motion was made after the Walker hearing and before the trial began. The trial judge referred to MRE 609 and noted that thefts are especially relevant to veracity.

Defendant chose not to testify and no evidence was presented in his behalf. In his final argument, defense counsel contended that the jury could not find that defendant "intended to permanently deprive the owner of its property”.

Three claims are made on appeal:

I. Evidence of an intent to permanently deprive was insufficient as a matter of law._

II. Admission of defendant’s statements was error.

III. The court erred in allowing use of defendant’s three prior convictions for impeachment.

I. Larcenous Intent

The only logical and reasonable inference to be drawn from the proven actions of the defendant and his accomplice is that they intended to steal the ring they took.

It has become popular to refer to the "intent to steal” which is necessary to larceny as the "intent to permanently deprive the owner of his property”. See chapter 23 of the proposed Michigan Criminal Jury Instructions. Unless there is evidence indicating an intention to return the property taken or that otherwise suggests that an intent to steal did not exist, the phrase "intent to steal” is really more accurate and more easily understood than the phrase that describes the mental element as the "intent to permanently deprive”. Everyone, including jurors, basically understands the meaning of the commandment: "Thou shalt not steal.” The chances are that some of the jurors have been tempted to steal something, sometime, themselves.

In the first place, at the time of a theft, the thief is only selfishly intent on his own personal gratification. Deprivation to a victim is a result, but it is not the purpose of a theft. Often the thief does not know who owns the stolen property and, usually, he does not care what happens to the victim. Because the thief is probably not thinking: "I want to permanently deprive the owner of this property,” it is misleading to say that such a state of mind is an essential element of any larceny.

Secondly, the law does not require, in a literal sense, that a thief have an intent to permanently deprive the owner of the property. CJI Commentary, 23-11, observes:

"[0]ne may assume that as in other jurisdictions 'intent to deprive permanently’ means in application 'lack of purpose to return the property with reasonable promptitude and in substantially unimpaired condition.’ ”

The current proposed revision of our criminal code, House Bill 4842, Section 3201(h), shows how much the words "permanently deprive” must be defined to get the phrase close to the true meaning of the word "steal”. Sec 3201(h) says:

" 'Permanently deprive’ means doing any of the following: (i) Withholding property or causing property to be withheld from a person permanently or for such an extended period or under such circumstances, so that a significant portion of the property’s economic value or of the use and benefit of the property is lost to the person, (ii) Disposing of the property in a manner which makes it unlikely that the owner will recover the property, (iii) Retaining the property with the intent to restore the property to the owner only if the owner purchases or leases it back or pays a reward or other compensation for the property’s return, (iv) Selling, giving, pledging, or otherwise transferring any interest in the property, (v) Subjecting the property to the claim of a person other than the owner.”

In the case before us, however the intent is labeled, there was ample evidence from which a jury could find that it existed although Mrs. Hands found the ring in the parking lot later in the day.

II. Defendant’s Statements to the Police

The standard of review of the ruling permitting use of a defendant’s statements, admissions or confessions is stated in People v Crawford, 89 Mich App 30; 279 NW2d 560 (1979). Rather than a definite and firm conviction that the trial judge erred, which would be necessary for us to reverse the trial judge, we have an independent conviction that he correctly assessed defendant’s claims of police brutality and forgery as lies. We commend the trial judge for his initiative in obtaining evidence from a hospital and from a handwriting expert and for his patience during the hearing and trial.

III. The MRE 609(a) Question

A. Some General Observations

The purpose of the criminal justice process is to protect society, and accuracy should be its chief goal. The purpose of the rules of evidence, as stated in MRE 102, is "* * * to the end that truth may be ascertained and proceedings justly determined”. Perjury is the enemy of truth and accuracy. Perjury occurs often in criminal trials, especially by the defendant, who has the most to gain by it. The proper application and interpretation of the rules of evidence must come to grips with that fact.

MRE 609(a)(2) requires the judge to bar mention of a defendant’s past crimes during his cross-examination unless the prejudicial effect of the disclosure is outweighed by the probative value of his record on the issue of credibility. There is a ten year limit on all convictions, juvenile court histories cannot be used, and use of convictions for misdemeanors, is forbidden unless the misdemeanor is especially relevant to veracity because it involves dishonesty, false statement or theft.

If the criminal conviction record that is the subject of an MRE 609(a) motion is extensive, it will indicate the defendant is a serious recidivist, a professional criminal. Often the series of convictions to be considered are for the same type of crime as the offense charged, because some professional criminals specialize in a particular crime. Armed robberies, narcotics sales, shoplifting, passing forged checks, burglaries or other criminal activity may become a life style. A professional criminal is apt to be a chronic liar. See Yochelson & Samenow, The Criminal Personality (New York: Jason Aronson, Inc., Vol I, 1976, Vol II, 1977).

When the defendant testifies, the trial often becomes a contest as to who is telling the truth. A defendant’s testimony will usually disparage or contradict the evidence against him. Frequently the issue of credibility is a comparison of the believability of the alleged victim or of an eyewitness with the defendant’s denial. Suppression of the defendant’s usable conviction record clothes him with a false and undeserved impression of good character that may be given great weight by the jury.

People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), held that the similarity of a prior conviction to the offense charged increases its prejudicial effect and is a factor to be weighed against its use for impeachment. But frequently the probative value of a conviction, or series of convictions, is increased, proportionally or greater, on the issue of credibility because of that similarity. The principles underlying MRE 404(b) may bear upon the credibility issue, depending in part on the nature of the defense defendant’s testimony presents, even if the similarities are not great enough so that the evidence would qualify under that rule.

When a victim says "He did it!” and the defendant says "I didn’t,” or "I was so drunk I didn’t mean to,” or even "I was ten miles away at the time,” it is relevant to the central issue of who is telling the truth that the defendant has been guilty of similar criminal conduct before, perhaps repeatedly. Both the prejudicial effect and the probative value on the issue of credibility are because of the true fact of life, based on human experience and fundamental to human insight, that it is more probable that a person has committed a crime if he has done it before, maybe several times. A jury should not be deprived of that information simply because the crimes are similar or because the criminal record is extensive. When it comes to whom to believe, it should not benefit the defendant that he is a repeater, perhaps specializing in this kind of crime, or that his record is so bad that it will weigh heavily against him. After all, he committed the previous crimes and they tell a great deal about him and about whether he is lying now.

We recognize that a defendant may wish to have a ruling on the MRE 609(a) question in advance of the trial. It may affect whether the defendant will testify and, therefore, defense counsel’s jury voir dire and the timing and content of his opening statement. However, the judge is in no position, in most cases, to rule on the question (except tentatively) until he has heard the prosecution’s proofs and learned, out of the hearing of the jury, the substance of defendant’s proposed testimony and has some idea of what other proofs defendant will present. That information is necessary to a balancing of the factors MRE 609(a) says the judge must weigh. The judge has no crystal ball with which to foretell prejudicial effect or probative value on credibility. The following questions are a partial list of factors crucial to the balancing required of the court: (1) Will the defendant’s testimony directly contradict the testimony of one or more key prosecution witnesses? When the trial becomes a credibility contest, background information about the disputants is essential to a jury. (2) Will the defendant claim or imply good character, by his own testimony or by a character witness, that his hidden record would refute? MRE 609 does not entitle a defendant to "pull the wool” over the jury’s eyes. (3) Will the defendant claim a defense such as diminished capacity due to intoxication, mistake, ignorance or accident that becomes far less probable in the light of his prior criminal conduct? A claim by a defendant, for example, that he left the store without paying for an item because he forgot he had put it in his pocket does not go over so well when it becomes known, on cross-examination, that the defendant has been convicted of several thefts before.

When the judge waits to find out what the theory of the defense is before finally ruling on the MRE 609(a) question, that question may become moot because evidence of prior convictions will be available to the prosecution through MRE 404(b), concerning similar acts, or MRE 405 and MRE 608, concerning character evidence; and, if not, the policies behind those rules may influence the MRE 609(a) issue. In some cases, defense counsel will make a MRE 609(a) motion in limine although the defendant has nothing reasonable to say in his own defense and will not testify regardless of the ruling. He may prefer a ruling against him to gain an appealable issue out of a hopeless trial. If the judge requires a preview of defendant’s proposed testimony, the motion may be dropped.

MRE 609 is a modified version of Rule 609 of the Federal Rules of Evidence which grew out of case law developed in Luck v United States, 121 US App DC 151, 156, fn 7; 348 F2d 763 (1965), and Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967). Luck advocated "the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case”, and observed that "a trial judge cannot be expected to give preliminary rulings which will foreclose him completely as the trial progresses * * *”. Gordon recognized that before the trial judge decides whether and to what extent impeachment by prior convictions should be permitted, he might have to listen to the defendant’s testimony outside the hearing of the jury. A recent Federal case, United States v Cook, 608 F2d 1175, 1186 (CA 9, 1979), said:

"In future cases, to preserve the issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.”

United States v Oakes, 565 F2d 170, 171-172 (CA 1, 1977), said:

"Defendant could be asked to state the substance of his testimony in advance. Should defendant mislead the court, the court may later change its ruling and let the record in if otherwise admissible. A defendant will not thereafter be heard to complain of any resulting prejudice created by his own actions. Cf. Jeffers v United States, 432 US 137, 150, 97 S Ct 2207, 53 L Ed 2d 168 (1977). Indeed, a court’s advance ruling might still be helpful even if made expressly provisional, allowing the court greater leeway to change it in light of later events and testimony.”

Michigan recognizes that convictions involving theft, dishonesty or false statement are especially probative on the issue of who is telling the truth; therefore the Michigan rule permits use of such convictions although misdemeanors. Such convictions (although perhaps not all thefts) shall be admitted under Rule 609 of the Federal Rules of Evidence. A Federal judge could not exclude them. Although a Michigan trial judge could prevent impeachment use of crimes involving dishonesty, falsity, or theft if, in his discretion, he finds the prejudicial effect outweighs the probative value on the issue of credibility, if the Michigan judge decides otherwise, because of the obviously great probative value of such crimes, his decision can hardly be considered an abuse of discretion.

Gordon, supra, 940, said:

"In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity.”

The standard for appellate review of a MRE 609(a) ruling by a trial judge who recognizes his discretion and the factors to be balanced is stated in People v Worden, 91 Mich App 666, 675-676; 284 NW2d 159, 164-165 (1979):

"The decision concerning the admission of evidence of a conviction for the purpose of impeachment is addressed to the trial court’s discretion. Its decision may only be reversed upon a finding that the discretion granted to it was abused. People v Merritt, 396 Mich 67, 80; 238 NW2d 31 (1976). The term 'abuse of discretion’ was defined in Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), as:
" 'Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations.. In order to have an "abuse” in reaching such determination, the result must be 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 defiance thereof, not the exercise of reason but rather of passion or bias.’
"The discretion granted the trial court in this instance concerns the weighing of the probative value of evidence of a defendant’s prior conviction against the prejudicial effect introduction of such evidence will have. The exercise of this discretion envisions a decision by the trial court based upon its evaluation of the given fact situation, rather than the application of any rigid legal standard, and the Spalding standard should be utilized to determine whether its discretion was abused.”

It is difficult to imagine how an abuse of discretion can be found on review when the trial judge, who accurately realizes his function under MRE 609(a), finds that the probative value on the issue of credibility of criminal convictions involving theft, dishonesty or false statement outweighs their prejudicial effect, regardless of how many or how similar they may be.

B. This Case

In this case the trial judge recognized his function and exercised his discretion. The motion was made in advance of trial, right after the Walker hearing. At that hearing, the judge listened to defendant’s claims of police forgery and brutality and must have concluded they were false when he decided that defendant had waived his Miranda rights and made a statement that was voluntary. Thus the judge had good reason to expect more perjury of the defendant, if he testified. Defense counsel did not assert that the defendant would testify if his record were suppressed, and neither defendant nor his lawyer said what his testimony would be. What could it be? He was distinctly seen by two eyewitnesses stealing the ring; surely he would have to dispute them. He had already admitted to the police that he and his girlfriend were present and accused of the theft. The trial judge referred to MRE 609 and permitted use, for impeachment, of defendant’s three convictions, all recent, because they involved theft, a kind of dishonesty which would be especially probative of where the truth lies in this case. We cannot say that the court’s ruling was wrong, much less an abuse of discretion, although the convictions were for the same or similar crimes.

A judge who refers on the record to MRE 609(a) and quotes language in subparagraph (1) of that rule must be credited with recognition and performance of the function imposed upon him by sub-paragraph (2) of that rule when he decides the suppression motion. Incorporation of the controlling law into the court’s determination by specific reference to the governing rule satisfies, surely, the previous requirement that "the trial court 'must positively indicate and identify its exercise of discretion’ ” reiterated in People v West, 408 Mich 332, 340; 291 NW2d 48 (1980), if that holding applies to trials conducted after March 1, 1978, the effective date of Michigan’s Rule of Evidence. West reviewed a 1976 trial.

Affirmed.

M. J. Kelly, P.J., concurred.

M. F. Cavanagh, J.

(concurring). I concur with my brothers that defendant’s conviction should be affirmed. I do so separately, however, because I do not agree with the majority’s "Some General Observations” of the MRE 609(a) question. The statement by the majority that, "Perjury occurs often in criminal trials, especially by the defendant who has the most to gain by it”, is a generalization which I feel is factually unsound and hardly an appropriate guideline for those charged with the responsibility of rendering an impartial determination of guilt or innocence. As I find no abuse of discretion in the trial court’s admission of evidence of prior convictions in this case, I would affirm.

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

       "The reason for exposing the defendant’s prior record is to attack his character to call in question his reliability for truth-telling * *

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).


source: Caselaw Access Project

author: Bronson, J. M. J. Kelly, P.J. D. C. Riley, J.

license: Public Domain

text:
    PEOPLE v BRIDGES
    Docket No. 43371.
    Submitted January 17, 1980, at Detroit.
    Decided July 1, 1980.
    Leave to appeal applied for.
    Artaway Bridges, Jr., was convicted, on his pleas of guilty, of three counts of armed robbery and one count under the felony- ■ firearm statute, Detroit Recorder’s Court, James A. Hathaway, J. The defendant was sentenced to concurrent prison terms of from four to ten years on the armed robbery convictions and to the mandatory two-year consecutive term on the felony-firearm conviction. Evidence at the guilty plea proceeding indicated that the defendant was shooting pool in a bar when two men entered with pistols and announced a stick-up. The defendant, armed with a pool cue, aided in the robbery by relieving one woman and two men of their money. The defendant then left with the two armed men and the three men divided the proceeds among themselves. There was no evidence to establish that the defendant knew the other two men or that there was any plan or prior agreement amongst the three concerning the hold-up. The defendant appeals, alleging that an insufficient factual basis existed for acceptance of his plea to the felony-firearm charge because there was no evidence that defendant ever personally possessed a firearm. Held:

    The armed robbery convictions are affirmed and the felony-firearm conviction is reversed. •
    Bronson, J., believed that personal possession of a firearm is necessary for conviction of felony-firearm and that conviction as an aider and abettor is not permissible. He also believed that, even if conviction as an aider and abettor were permissible, there was an insufficient factual basis in this case to support such a conviction since there was no evidence to show any act of encouragement done with intent to help the possessors of the firearm to obtain or retain possession.
    M. J. Kelly, P.J., agreed with the rationale that personal possession is necessary for conviction of felony-firearm. He would have preferred to affirm the felony-firearm conviction without prejudice to granting the defendant the option of having his pleas set aside. He would have preferred this disposition to prevent the defendant from reaping the benefit of his negotiated sentence bargain, of which the felony-firearm conviction was an integral part.

      References for Points in Headnotes
    [1] 79 Am Jur 2d, Weapons and Firearms §7 et seq.

       21 Am Jur 2d, Criminal Law §§ 119, 123.

       21 Am Jur 2d, Criminal Law § 491.5.

       21 Am Jur 2d, Criminal Law § 527.

       73 Am Jur 2d, Statutes § 299 et seq.

      D. C. Riley, J., dissented. She would affirm the defendant’s conviction under the felony-firearm statute. She noted that neither the aider and abettor statute nor the felony-firearm statute expressly or impliedly limits the persons encompassed by its terms. Further, punishing aiders and abettors is consistent with and supportive of the felony-firearm statute’s statutory object of penalizing defendants who use firearms in the commission of felonies. She would affirm the defendant’s felony-firearm conviction.
    Opinion op Beonson, J.
    1. Criminal Law — Firearms — Felony-Firearm Statute — Possession — Statutes.
    Conviction of a defendant under the Michigan felony-firearm statute requires personal possession of a firearm (MCL 750.227b; MSA 28.424[2]).
    2. Criminal Law — Aiding and Abetting — Elements.

      A defendant must encourage, counsel, or assist another in the commission of a crime with the intention of rendering such help and with the knowledge that the criminal act is contemplated tobe convicted as an aider and abettor.

    3. Criminal Law — Possessory Crime — Aiding and Abetting.

      A defendant, to be convicted as an aider and abettor of a possessory crime, must perform an act or encourage the possession knowingly with the intent to aid the possessor obtain or retain possession.

    Concurrence in Result by M. J. Kelly, P. J.
    4. Criminal Law — Dependants — Sentence Bargain — Options.

      A defendant should not be given the option of having his plea to an invalid conviction set aside where the record is clear that a negotiated sentence bargain occurred in which the trial court agreed to sentence the defendant to four to ten years on three valid armed robbery convictions each of which exposed the defendant to a life maximum sentence.

      Dissent by D. C. Riley, J.
    5. Criminal Law — Aiding and Abetting — Felony-Firearm — Statutes.

      There is no express or implied limit to the persons encompassed by the terms of either the aider and abettor statute or the felony-ñrearm statute (MCL 767.39; MSA 28.979, MCL 7S0.227[b]; MSA 28.424[2]).

    6. Criminal Law — Aiding and Abetting — Felony-Firearm Statute — Statutes — Punishment.

      Punishment of aiders and abettors is consistent with and supportive of the felony-ñrearm statute’s object of penalizing defendants who use ñrearms in the commission of felonies.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and William T. Morris, Assistant Prosecuting Attorney, for the people.

      Robert G. Yolles, for defendant on appeal.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   Bronson, J.

Defendant was convicted on his pleas of guilty to three counts of armed robbery, MCL 750.529; MSA 28.797, and to one count under the felony-firearm statute, MCL 750.227b; MSA 28.424(2). He was sentenced to concurrent prison terms of from four to ten years on the armed robbery convictions, and to the mandatory two-year consecutive term on the felony-firearm conviction. He now appeals as of right.

As Judge Riley’s dissent notes, defendant’s sole argument on appeal is that an insufficient factual basis existed for acceptance of his plea to the felony-firearm charge because there was no evidence that defendant ever personally possessed a firearm. See Guilty Plea Cases, 395 Mich 96, 128-132; 235 NW2d 132 (1975), GCR 1963, 785.7(3)(a). The facts as established at the guilty plea proceeding showed that defendant was shooting pool in a bar when two men entered with pistols and announced a stick-up. Defendant, armed with his pool cue, aided in the robbery by relieving one woman and two men of their money. He then left with the two armed men and the three divided the proceeds among them. There was no evidence to establish that defendant knew the other two robbers or that there was any plan or prior agreement amongst the three concerning the hold-up.

The felony-firearm statute, MCL 750.227b; MSA 28.424(2), states in part:

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years.”

The question of whether a person who does not actually possess a firearm may be convicted under the statute as an aider and abettor has engendered a split in the decisions of this Court. Compare People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Walter Johnson, 85 Mich App 654, 658-659; 272 NW2d 605 (1978), lv gtd 407 Mich 882 (1979), with People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979), lv gtd 407 Mich 882 (1979). I would follow Powell and Walter Johnson, and hold that personal possession is required.

I believe this result is mandated by the extraordinary nature of the felony-firearm statute. In response to the rising incidence of the use of firearms during the commission of crimes, the Legislature enacted a statute with a very broad scope and additionally provided for a mandatory two-year sentence, removed the possibility of the sentence being served concurrently with the sentence on the underlying felony, and disallowed suspension, probation, or parole. The unique characteristics of the statute were recognized by the Supreme Court in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich 374; 280 NW2d 793 (1979). The statute clearly speaks in terms of personal possession. It is possession during the course of a felony, or attempted felony, that is required for conviction. While the aiding and abetting statute has been applied to a possessory crime, it has not been applied to a possessory crime of such an extraordinary nature.

While I would premise the vacation of defendant’s felony-firearm conviction solely on these grounds, I would also suggest that even if defendant could be convicted as an aider and abettor, an insufficient factual basis was established to convict defendant as an aider and abettor of a felony-firearm offense. The statute provides:

"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.” MCL 767.39; MSA 28.979.

To be convicted as an aider and abettor, one must encourage, counsel, or assist another in the commission of a crime with the intention of rendering such help and with the knowledge that the criminal act is contemplated. People v Gary Spry, 74 Mich App 584, 594; 254 NW2d 782 (1977), lv den 401 Mich 825 (1977). The question of what is required for aiding and abetting a possessory crime is more problematic, as it is conceptually more difficult to assist another in possessing an item than it is to assist in doing an act. Nevertheless, this Court has held that, to be convicted as an aider and abettor of a possessory crime, "[t]he act or encouragement must be done knowingly with the intent to aid the possessor [to] obtain or retain possession”. People v Doemer, 35 Mich App 149, 152; 192 NW2d 330 (1971). Accordingly, the conviction in Doemer was upheld, as there was evidence from which the jury could infer that the defendant drove a codefendant to Ypsilanti for the purpose of purchasing marijuana. In People v Tavolacci, supra, a sufficient factual basis was said to exist because it was established that defendant had participated in a plot to kill an undercover narcotics agent. In each of these cases, there was sufficient testimony to establish that the defendant aided and abetted others in obtaining possession. In the instant case, however, the evidence falls far short of even allowing an inculpatory inference to be drawn. People v Haack, 396 Mich 367; 240 NW2d 704 (1976), Guilty Plea Cases, supra, 130. There is no evidence that defendant had any prior knowledge that an armed robbery would occur so that it could be inferred that he encouraged, counseled, or assisted in obtaining possession of a firearm. Similarly, there is nothing in the record that tends to establish that defendant aided the others in the retention of their weapons during the course of the felony. Accordingly, even if personal possession was not required for a conviction under the felony-firearm statute, defendant’s conviction would have to be vacated for failure to establish a sufficient factual basis to support his conviction as an aider and abettor.

Because defendant’s testimony clearly established that he did not possess a firearm during the robbery, his conviction under the felony-firearm statute must be vacated for failure to establish the requisite factual basis. Alternatively, I would reverse his felony-firearm conviction for failure to establish that he aided and abetted others in the possession of a firearm in the course of a felony. His armed robbery convictions should be affirmed.

Affirmed in part and reversed in part.

M. J. Kelly, P.J.

(concurring). I concur in the result reached by Judge Bronson but do not approve the rationale. I would follow the rationale in People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978). I would have much preferred to affirm this defendant’s convictions without prejudice to granting the defendant the option of having his pleas set aside if he preferred. The reason I would have preferred that alternative is because the record is clear that this was a negotiated sentence bargain in which the trial court agreed to sentence the defendant to four to ten years on three armed robbery charges on each of which he was exposed to a life maximum. I could not persuade either of my learned colleagues to agree to this alternative.

I concur only in the result.

D. C. Riley, J.

(dissenting). Defendant pled guilty to three counts of armed robbery, contrary to MCL 750.529; MSA 28.797, and one count of felony-firearm, contrary to MCL 750.227(b); MSA 28.424(2), and was sentenced to concurrent four to ten year terms and a two year sentence respectively. He now appeals as of right.

Defendant’s sole contention on appeal is that, since he never personally possessed a firearm during the robberies but merely aided and abetted those who did, he cannot be convicted under the felony-firearm statute. There is presently a split of opinion in the Court of Appeals on this issue. See People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979), People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978). With all due respect to the Johnson panel, I am persuaded (particularly in the wake of Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 [1979]), that Tavolacci should control this case, as its reasoning most closely executes the intent of the felony-firearm act. Neither the aider and abettor statute (MCL 767.39; MSA 28.979) nor the felony-firearm statute expressly or impliedly limits the persons encompassed by its terms. Further, punishing aiders and abettors is consistent with and supportive of the felony-firearm statute’s object of penalizing defendants who use firearms in the commission of felonies. Tavolacci, supra, 474-475.

"Punishment of those who aid and abet this crime serves as a deterrence to such aiding and abetting. Consequently less persons would be likely to act as aiders and abettors. This reduction serves as additional deterrence upon the commission of the crime as well, as there are likely to be persons who are unable or unwilling to commit the offense of 'felony-firearm’ without some assistance.” Id., 475.

In light of these considerations, I would find that the felony-firearm statute does extend to aiders and abettors like the defendant and, accordingly, would affirm.

       Judge Kelly’s opinion also expresses approval of the rationale in Powell and Walter Johnson.

       See generally, Schwartz, Multiple Punishment for the "Same Offense": Michigan Grapples with the Deñnitional Problem, 25 Wayne L Rev 825, 839-841 (1979).

       MCL 767.39; MSA 28.979.

       It was applied to the offense of possession of marijuana in People v Doemer, 35 Mich App 149; 192 NW2d 330 (1971).

       See 47 ALR3d 1236.


author: R. M. Maher, P.J. M. F. Cavanagh, J.,

text:
    HERMANN v HANEY
    Docket No. 43683.
    Submitted January 7, 1980, at Detroit.
    Decided July 1, 1980.
    Leave to appeal applied for.
    Barbara J. Hermann was injured in an automobile collision with a car driven by defendant Chester R. Hackney. Mrs. Hermann and her husband, Michael Hermann, brought an action in the Wayne Circuit Court against Mr. Hackney and Edwin M. Haney, who was the driver of another car and who allegedly contributed to the accident. In a deposition, Mrs. Hermann testified that she suffered bruises on her legs and knees and a bump on her head. Immediately after the accident, she was taken to the hospital, given a pain killer and discharged. The bruises did not prevent her from sitting or standing and disappeared in two months. The bump was gone in one month. Two days after the accident she experienced neck and back pains. She was referred to a doctor who saw her nine times and treated her with heating pads but no medication. One month after the accident, she was working a full shift and performing her regular household chores. The court, John M. Wise, J., granted summary judgment for defendants. Plaintiffs appeal. Held:

    The threshold requirement of serious impairment of bodily function of the no-fault act is met where either the initial injury is severe or the effects of the initial injury are continuing — either permanent or long-term. Factors to be considered include the extent of the injury, treatment required, duration of disability, extent of residual impairment and prognosis for eventual recovery. The question of whether a particular impairment satisfies the threshold requirement of the no-fault act for a serious impairment of bodily function is not always a question for the fact finder. There are cases in which the trial court can rule, as a matter of law, that a plaintiff’s injury is so minor that it fails to reach the threshold of a serious impairment. The trial court did not err.

      References for Points in Headnotes
    [1-4] 7 Am Jur 2d (Rev), Automobile Insurance §§ 349, 358. 73 Am Jur 2d, Summary Judgment §§ 26, 27.
    Validity and construction of "no fault” automobile insurance plans. 42 ALR3d 229.

      Affirmed.
    M. F. Cavanagh, J., dissented. He would hold that, until the Legislature or the Supreme Court defines "serious impairment of bodily function” with more precision, the question of whether or not a given injury meets the definition should be left to the jury.
    Opinion of the Court
    1. Insurance — Automobiles — No-Fault — Serious Bodily Impairment — Jury Question — Question of Law.

      The question of whether a particular impairment satisfíes the threshold requirement of the no-fault act for a serious impairment of bodily function is not always a question for the fact ñnder; there are cases in which the trial court can rule, as a matter of law, that a plaintiffs injury is so minor that it fails to reach the threshold of a serious impairment.

    2. Insurance — Automobiles — No-Fault — Serious Bodily Impairment.

      The threshold requirement of serious impairment of bodily function of the no-fault act is met where either the initial injury is severe or the effects of the initial injury are continuing — either permanent or long-term; factors to be considered include the extent of the injury, treatment required, duration of disability, extent of residual impairment and prognosis for eventual recovery.

    3. Insurance — Automobiles — No-Fault — Serious Bodily Impairment — Summary Judgment.
    Summary judgment in favor of a defendant was proper in an action alleging serious impairment of bodily function under the no-fault act where plaintiffs injuries were neither severe nor long-term, treatment was minimal and there was no residual impairment following a brief period of limited disability.
    Dissent by M. F. Cavanagh, J.
    4. Insurance — Automobiles — No-Fault — Serious Bodily Impairment — Jury Question.

      A question of whether or not an injury meets the threshold requirement of "serious impairment of bodily function” under the no-fault act should be leñ to the trier of fact until more clearly defined by the Legislature or the Supreme Court.

      Posner, Posner & Posner, for plaintiffs.

      Mitchell & Leon (by Robert I. Morrison), for defendant Hackney.

      Collins & Einhorn, P.C. (by Dale J. McLellan), for defendant Haney.
    Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   R. M. Maher, P.J.

This appeal is from an order granting summary judgment for defendants. The question before this Court is whether it can be said with certainty that no reasonable jury could view Mrs. Hermann’s alleged impairment of body function as "serious” under MCL 500.3135; MSA 24.13135. See McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976).

Not every question of whether a particular impairment falls within the act must be submitted to the trier of fact. Cassidy v McGovern, 86 Mich App 321; 272 NW2d 644 (1978). There are cases in which the trial court may properly rule that, as a matter of law, a plaintiff’s injury fails to reach the threshold of a serious impairment. Brooks v Reed, 93 Mich App 166; 286 NW2d 81 (1979), Harris v McVickers, 88 Mich App 508; 276 NW2d 629 (1979), Vitale v Danylak, 74 Mich App 615; 254 NW2d 593 (1977).

In Brooks v Reed, supra, summary judgment in favor of defendants was affirmed where injuries to plaintiff’s arms and wrists allegedly required four visits to a chiropractor at three to four week intervals for heat treatment and medication. In Harris v McVickers, supra, one plaintiff alleged headaches and the other claimed a stiff neck, knee pains and headaches. Although there was no doubt that plaintiffs suffered discomfort, this Court affirmed an order of summary judgment in favor of defendant on the threshold question. In Vitale v Danylak, supra, complaints of a stiff neck for one week following the accident and two or three visits to a doctor who presumably prescribed pain killers and/or muscle relaxants was appropriately decided by summary judgment in favor of defendant.

On the other hand, summary judgment was not deemed appropriate in McKendrick v Petrucci, supra, where plaintiff alleged that tendonitis of the biceps tendon of his right arm caused him persistent pain which could not be corrected surgically. In Cassidy v McGovern, supra, plaintiff sustained complete breaks in both bones of his lower right leg as well as other contusions and abrasions. The trial court was instructed to recognize on remand that, if the nature of plaintiff’s injury is such as to meet the threshold of serious impairment as a matter of law, a directed verdict for plaintiff should be granted.

Finally, in Pohl v Gilbert, 89 Mich App 176; 280 NW2d 831 (1979), judgment for defendant on the issue of serious impairment following a bench trial was reversed. There plaintiff incurred cuts, bruises, headaches and pain in her shoulders, neck and back when thrown from the car in which she was riding. Although treated with ultrasound, muscle relaxants, anti-inflammatory agents, pain killers and manipulation, plaintiff’s condition had worsened in the four years since the accident. In all, plaintiff suffered a spine sprain, with pain radiating into her arms and legs. Muscle spasms steadily increased the pain and plaintiff lost sensation and suffered reduction of grip and intermittent loss of use of her right arm. She had scoliosis and the pain forced her to take to bed intermittently, seek frequent medical attention and reduce substantially her physical and social activities. She suffered occasional depression and spoke of suicide because of constriction of blood flow to the brain.

The above cases demonstrate that, in order to meet the threshold of serious impairment, either the initial injury must be severe or the effects must be continuing — either permanent or long-term. Among the factors to be considered are the extent of the injury, treatment required, duration of disability, extent of residual impairment and prognosis for eventual recovery. Additional relevant factors may be considered as well. Conversely, not all the factors mentioned need be present to find serious impairment in a given case.

For example, a severely injured person who eventually makes a total recovery with little or no residual impairment may be found to suffer serious impairment. Cassidy, supra. In other words, the more extensive or severe the injuries, the less need for residual impairment. Thus, one who suffers life-endangering injuries but experiences complete recovery within a relatively short time may nonetheless meet the threshold requirement. By the same token, a relatively less disabling condition which is permanent (or of significantly long duration) or recurring may constitute serious impairment by virtue of its longevity. E.g., tendonitis in McKendrick, supra; nerve damage in Pohl, supra. The more likely that the impairment will be recurring or of a permanent nature, the less severe the condition must be. Where neither severe nor long-term, e.g., Vitale, supra, an impairment is not to be considered serious within the meaning of MCL 500.3135(1); MSA 24.13135(1).

In the instant case, Mrs. Hermann testified at her deposition that, as a result of an automobile accident, she suffered bruises on her legs and knees and a bump on her head. Immediately following the accident, she was given a pain killer and dischrged from the hospital. The bruises did not prevent her from sitting or standing and disappeared after two months. The bump went away within one month.

Approximately two days following the accident, she experienced neck and back pains. She was referred to a doctor by her attorney. This doctor saw her nine times, prescribed no medication and treated her only with heating pads. Approximately one month following the accident, she was working a full shift and performing her regular household duties.

The injuries were neither severe nor long-term. Treatment of the injuries was minimal and there is no residual impairment following a brief period of limited disability. Summary judgment was proper.

Affirmed. Costs to defendants.

Cynar, J., concurs in the result only.

M. F. Cavanagh, J.,

(dissenting). I am in agreement with my brother that this case involves the type of injury which the Legislature intended to keep out of court by enacting the threshold requirements of the no-fault act. However, until the uncertain phrase "serious impairment of body function” is more clearly defined, either by our Supreme Court or preferably our Legislature, I am persuaded that the threshold determination should be left to the trier of fact, except in those cases referred to in Watkins v City Cab Corp, 97 Mich App 723; 296 NW2d 162 (1980), at the outermost limits of the spectrum. The injuries in this case fall in between, and accordingly, I would reverse.

       The motion for summary judgment in this case was incorrectly brought pursuant to GCR 1963, 117.2(1) and (3). However, a review of the record indicates that the parties and trial court proceeded as if the motion was brought only under GCR 1963, 117.2(3). No party was misled and the motion was understood. See Harris v McVickers, 88 Mich App 508, 510, fn 1; 276 NW2d 629 (1979).


author: M. J. Kelly, J. Allen, P.J.,

text:
    PEOPLE v BOLDEN
    Docket No. 43721.
    Submitted November 21,1979, at Detroit.
    Decided July 1, 1980.
    Leave to appeal applied for.
    Clifton E. Bolden was convicted of two counts of criminal sexual conduct, second degree, and one count of armed robbery, Recorder’s Court of Detroit, James A. Hathaway, J., and sentenced on the armed robbery conviction and on one count of criminal sexual conduct. He appeals, alleging the trial court 1) abused its discretion in permitting impeachment using his prior felony convictions, 2) erred in admitting similar acts testimony, 3) erred in failing to apprise the jury of defendant’s acquittal on the similar act charges, and 4) erred in the sentences. Held:

    1. The trial court’s weighing of the similarity of prior offenses as a factor in favor of admissibility of evidence of them was an abuse of discretion constituting reversible error.
    2. Similar acts testimony was properly introduced since defendant’s identity was in issue and direct proof was offered that the manner in which the criminal act was performed bore distinguishing characteristics and that similar acts performed by the defendant bore the same characteristics from which it was inferable that the crime in question was committed by the defendant.
    3. Failure to apprise the jury of defendant’s acquittal on similar acts charges did not constitute error since defendant’s rights were sufficiently protected by limiting instructions concerning the purpose of similar acts testimony and the jury was cautioned not to regard the testimony as proof of defendant’s criminal disposition or guilt of other improper conduct.
    4. The trial court did not err in imposing sentence.
    Reversed
    N. J. Lambeos, J., concurred.
    References for Points in Headnotes

       29 Am Jur 2d, Evidence § 327.

       29 Am Jur 2d, Evidence § 326.
    [3, 6, 8] 29 Am Jur 2d, Evidence § 332.

       75 Am Jur 2d, Trial § 747.

       21 Am Jur 2d, Criminal Law §§ 8, 9.

       29 Am Jur 2d, Evidence § 333.

      Allen, P.J., concurred in part and dissented in part. He would hold that upon retrial testimony of defendant’s acquittal on similar acts charges should be admitted into evidence upon request.
    Opinion op the Court
    1. Criminal Law — Evidence — Prior Offense — Similar Acts — Admissibility — Error.
    The similarity of a prior offense to that charged is a factor weighing against admissibility of evidence of it for impeachment purposes, and the weighing of the similarity by a trial court in favor of admissibility constitutes error.
    2. Criminal Law — Evidence — Similar Acts — Proper Introduction — Direct Proof — Trials.
    Similar acts evidence is properly introduced where direct proof is offered 1) that the manner of performance of the criminal act in question or some significant aspect, thereof bore certain distinguishing, peculiar or special characteristics to the proffered evidence, 2) that acts performed contemporaneously with or prior or subsequent to the act in question bore the same characteristics, 3) that these similar acts were performed by the defendant, and 4) that, inferentially, defendant committed the crime.
    3. Criminal Law — Evidence — Similar Acts.
    Failure by the trial court to apprise the jury of a defendant’s acquittal on similar act charges where evidence of similar acts has been admitted does not constitute error.
    4. Criminal Law — Defendant’s Rights — Evidence — Similar Acts Testimony — Courts — Jury Instructions.
    A defendant’s rights are sufficiently protected subsequent to the introduction of similar acts testimony by the trial court’s limiting instructions concerning the purpose of such testimony.
    5. Criminal Law — Statutes — Criminal Sexual Conduct — Multiple Convictions — Trial.
    The criminal sexual conduct statutes do not support multiple convictions for the same sexual conduct based on varying aggravating circumstances (MCL 750.520a et seq.; MSA 28.788[1] et seq.).

      Concurrence in Part and Dissent in Part by Allen, P. J.
    6. Criminal Law — Evidence — Similar Acts — Failure to Convict — Trial.

      Failure to convict a defendant of a similar act on a prior occasion does not preclude introduction of evidence of the act at a subsequent trial.

    7. Criminal Law — Evidence — Similar Acts — Trial — Reasonable Doubt — Prosecuting Attorneys.

      A prosecutor, in establishing similar acts of a defendant, need not establish proof beyond a reasonable doubt, but must offer substantial evidence of their commission by the defendant.

    8. Criminal Law — Evidence — Similar Acts — Prior Acquittal — Trial.

      A defendant should be entitled to show that another jury determined that he did not commit a similar act, to the extent that the prior acquittal reflects on the accuracy of the charge that he did commit the act.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Brian Marzec, Assistant Prosecuting Attorney, for the people.

      George C. Dovas, for defendant on appeal.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   M. J. Kelly, J.

Defendant Clifton Bolden was convicted by a jury of two counts of criminal sexual conduct, second degree, MCL 750.520c; MSA 28.788(3), and one count of armed robbery, MCL 750.529; MSA 28.797. Defendant was sentenced to concurrent terms of imprisonment of 20 to 30 years on the armed robbery count and 10 to 15 years on one count of criminal sexual conduct. Defendant was not sentenced on the other criminal sexual conduct, second degree, count. He appeals by right.

As the trial began, defense counsel moved to suppress reference to the defendant’s criminal record. The trial court denied the motion, permitting impeachment by use of the defendant’s 1971 conviction of attempted receiving and concealing stolen property valued over $100, 1973 conviction of attempted breaking and entering a business place, and recent conviction of armed robbery.

The first witness to testify was the 69-year-old complainant who identified the defendant as the man who raped and robbed her at her home during daylight hours. Paula McCowan, who lived across the street from the victim, testified that she had seen a man walking back and forth on Rut-land in front of the victim’s home. She identified this man as the defendant.

Police Officer Paul Rehn conducted the lineups in this case. He testified that on September 13, 1977, the victim and Ms. McCowan each identified the defendant and also testified to the details of the lineup procedure.

Jean Brown testified as a similar act witness. She was 55 years old and was robbed and raped in her home on June 29, 1977. She identified, the defendant as the perpetrator of that crime. The trial court excluded from evidence the fact that the defendant had been acquitted by a jury of all charges relating to the crimes against Ms. Brown.

The defendant testified in his own behalf. He denied ever having robbed or raped the victim or Ms. Brown. He denied being in the vicinity of the crime when it occurred and denied ever having seen either woman before he was arrested. He did not present an alibi. The defendant’s sister, Betty Ann Gordon, testified to his physical appearance during the time period in question. The jury returned a verdict of guilty on all counts.

Defendant first contends that the trial court abused its discretion in permitting impeachment with evidence of prior felony convictions. The prosecutor urged admission of the evidence of prior convictions since they involved crimes of dishonesty which were probative of defendant’s credibility. The court then recognized its discretion on the record and indicated that it would allow interrogation on those offenses for the following reasons:

"The Court: All right.
"The Court is well aware of the law as recited by the Supreme Court of the State of Michigan in People versus Jackson.
"The Court would rule in this case that the probative nature of the offenses, the similarity of the violence involved, particularly as it relates to robbery armed, breaking and entering of a business place, and the fact that the attempt receiving and concealing is within a time scheme and a time sequence that is pertinent to this type of an offense. * * *”

The decision to admit or exclude evidence of the defendant’s prior convictions for impeachment purposes should be based upon a careful balancing of the evaluative factors established by this Court in People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). Although the trial judge need not make recorded findings on each, People v Roberson, 90 Mich App 196; 282 NW2d 280 (1979), affirmative misapplication has been held to require reversal. Crawford, supra.

A recent decision by the Supreme Court, People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), affirms the principle that evidence of similar crimes should be admitted with great caution. The Baldwin Court reversed the convictions in two separate cases, based on the admission of evidence of prior convictions similar in nature to the charged offense. Baldwin was on trial for assault with intent to commit murder. The trial court allowed impeachment by reference to prior convictions for felonious assault and attempted armed robbery, noting that the similar assaultive nature of the offense was a factor in favor of their use. The Court held this was a misapplication of the standard adopted in People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), first developed in Luck v United States, 121 US App DC 151; 348 F2d 763 (1965), and Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967). The Court explained:

"The error in these cases occurred because the trial judge weighed the nature of the prior offense (similarity) as a factor in favor of admissibility. Gordon, rather, makes similarity a factor weighing against admissibility:
" 'A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that "if he did it before he probably did so this time.” As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.’ 127 US App DC 347.”

The trial court’s reasoning in the instant case is identical to that condemned in Baldwin. The court’s abuse of discretion in misapplying the standards governing admission of evidence of prior convictions constitutes reversible error.

For the first time on appeal, defendant claims error in the admission of the similar acts testimony of Jean Brown. We address this issue due to the substantial likelihood that the question will resurface at defendant’s new trial. A careful examination of the record indicates that the similar acts testimony was properly admitted since defendant’s identity was in issue and all other requirements for the admission of such evidence were satisfied. MCL 768.27; MSA 28.1050. The Supreme Court in People v Major, 407 Mich 394, 398; 285 NW2d 660 (1979), clearly and succinctly set forth the guidelines for admission of similar acts evidence as follows:

"The evidential process by which similar acts evidence is properly introduced involves direct proof of three propositions from which a fourth is inferable and thus proved circumstantially. They are:
1) That the manner in which the criminal act in question or some significant aspect of it was performed bore certain distinguishing, peculiar or special characteristics;
2) That certain specific similar acts, performed contemporaneously with or prior to or subsequently to the act in question, bore the same distinguishing, peculiar or special characteristics;
3) That the similar acts were performed by the defendant; and
4) That, accordingly, the crime in question was committed by the defendant.
"It is the distinguishing characteristics which constitute the acts as similar within the meaning of MCL 768.27 and MRE 404(b), not the fact that all constitute the same crime or are violative of the same statute. The distinguishing, peculiar or special characteristics which are common to the acts and thus personalize them are said to be the defendant’s 'signature’ which identifies him as the perpetrator, or, if his identity is not contested, negates the suggestion that his behavior in performing the challenged act was unintended, accidental, a mistake, or otherwise innocent.”

A comparison of the similar acts evidence proffered here and the evidence of the complainant, Ms. Watson, reveals striking similarity. Both victims were older women who were assaulted in their own homes in the afternoon. In each case the assailant entered the home while the victim was outside. In each case, the assailant put his hand over the woman’s mouth and threatened to kill her if she did not cooperate. Both women were taken forcibly into the bedroom, raped, and tied in the identical manner to the bedpost. The assailant searched both homes for money and jewelry. Thus, the prior act and the act in question bore the same special characteristics which tend to identify the defendant as the perpetrator.

Trial counsel conceded the admissibility of the similar acts testimony, but strongly objected to the trial court’s refusal to allow cross-examination of the witness or to otherwise inform the jury regarding defendant’s acquittal of the involved charges. The people rely on People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), in support of the proposition that defendant’s acquittal on charges arising out of the prior incidents does not bar admission of the testimony. In an earlier case involving this same defendant and charged offenses, People v Bolden, 92 Mich App 421; 285 NW2d 210 (1979), another panel of this Court approved the admission of similar acts testimony identical to that challenged here. The critical distinction between Oliphant, Bolden I and the instant case is that in the former trials, the jury was aware of the defendant’s acquittal. The Bolden I Court made the following observation concerning the similar acts testimony and defendant’s acquittal on the involved charges:

"The admission of the testimony concerning prior bad acts or criminal convictions of a defendant will always have some prejudicial effect. However, in the present case, this effect was minimized, as the jury was made aware that defendant had been acquitted of the prior sexual assaults. The jury’s verdict, acquitting defendant of the criminal sexual conduct charges, is further proof of the evidence’s minimal prejudicial effect.” 92 Mich App 421, 425.

However, we find no authority for defendant’s position that failure to apprise the jury of defendant’s acquittal on the similar acts charges constitutes error. The trial court in the instant case heard arguments from both counsel out of the jury’s presence and concluded that earlier verdicts were irrelevant and immaterial and would only cause juror speculation regarding the earlier trial totally unrelated to the limited purpose for which the testimony was offered in the present circumstance.

The Oliphant Court, in explaining the rationale for admitting similar acts testimony despite acquittal on the involved charges, stated:

"Offering evidence of a prior crime, for which defendant has been acquitted, to a jury embarked on a distinct inquiry, as here, does not involve asking the second jury to convict defendant for the prior crime. It does not involve the second jury contradicting the first jury, since the first jury did not find that defendant did not commit the crime, only that the people had not proved that he had beyond a reasonable doubt.” 399 Mich 472, 498 fn 14. (Emphasis supplied.)

Accord, People v Johnston, 328 Mich 213, 226-227; 43 NW2d 334 (1950).

We find this reasoning equally applicable to our consideration. The prosecutor must produce evidence sufficient to show that defendant "probably committed the other acts”, People v Cook, 95 Mich App 645; 291 NW2d 152 (1980). If he or she can satisfy that burden, the jury should not be confused by the additional information of an acquittal which could mislead them into believing that the defendant absolutely did not commit the prior similar acts. The fact that another jury harbored a reasonable doubt as to defendant’s guilt of the other offense does not negate the substantive value of the testimony to establish identity, scheme, plan, etc. in the case at bar. The issue should not be clouded by encouraging speculation regarding the verdict reached in a separate trial on a separate offense involving a different complainant. Defendant’s rights were sufficiently protected by the trial court’s limiting instructions concerning the purpose of similar acts testimony. In addition to clearly setting forth the narrow consideration to be given to this evidence the court cautioned the jury not to regard it as proof of defendant’s criminal disposition or guilt of other improper conduct.

Furthermore, the prejudicial impact of similar acts testimony is not necessarily diminished when the jury is informed of defendant’s acquittal of the alleged offense; rather, the manner in which such evidence is presented is highly determinative of the potential for jury misuse. In People v Corbeil, 77 Mich App 691, 696-697; 259 NW2d 193 (1977), the trial court, in its charge to the jury, informed them of defendant’s acquittal on the charges which formed the basis of the similar acts testimony. This Court, nevertheless, viewed the evidence as more prejudicial than probative:

"Moreover, the informants’ testimony meandered to and fro between the events of the 21st and those of the 30th, blurring the depictions of each into a vague pattern of alleged misdeeds by the defendant. As a result, the possibility is great that the jury based its findings on a belief in the defendant’s guilt of the earlier transaction, rather than on that of the January 30th occurrence.”

Based on the foregoing analysis, we are inclined to agree with the trial court’s ruling that earlier verdicts pertaining to the similar acts evidence are irrelevant and immaterial. We find no error in the trial court’s decision to exclude this information.

We find no error on the final issue raised by defendant with respect to an error in sentencing. The Supreme Court recently decided that 1974 PA 266, which created the criminal sexual conduct statutes, MCL 750.250a et seq.; MSA 28.788(1) et seq., does not support multiple convictions for the same sexual conduct based on varying aggravating circumstances. People v Willie Johnson, 406 Mich 320; 279 NW2d 534 (1979).

Reversed.

N. J. Lambros, J., concurred.

Allen, P.J.,

(concurring in part, dissenting in part). I agree with the majority that reversal is required under the principles set forth in People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979). But I disagree that upon retrial testimony of defendant’s acquittal on the charges introduced as similar acts cannot be offered into evidence. Rather, my position would fall somewhere between the majority opinion and the opinion expressed in the recent decision of a panel of this Court in People v Atkins, 96 Mich App 672; 293 NW2d 671 (1980).

In People v Atkins, supra, it was held that dismissal of charges and a directed verdict of acquittal as to alleged similar acts precluded the prosecution from using evidence of those similar acts against defendant in a subsequent criminal trial. I disagree with this holding because it is in direct contradiction to the Michigan Supreme Court’s decision in People v Oliphant, 399 Mich 472, 498, fn 14; 250 NW2d 443 (1976), and People v Johnston, 328 Mich 213, 227; 43 NW2d 334 (1950). Evidence of similar acts need not be proven beyond a reasonable doubt. People v Allen, 351 Mich 535, 547; 88 NW2d 433 (1958), People v Duncan, 402 Mich 1, 13-14; 260 NW2d 58 (1977). Hence, failure to convict defendant of the similar act on a prior occasion does not preclude introduction of evidence of that similar act at a subsequent trial.

At the same time, I cannot agree with the majority that "earlier verdicts pertaining to similar acts evidence is irrelevant and immaterial”. In establishing the similar acts of the defendant, the prosecutor must "* * * show that the defendant probably committed the other acts, or that the evidence offered 'may tend to show’ the defendant’s intent or common scheme in committing the charged offense.” (Emphasis supplied.) In short, while the proof need not be beyond a reasonable doubt, there must be "substantial evidence indicating that the defendant committed the other acts”. People v Cook, 95 Mich App 645, 655-656; 291 NW2d 152 (1980), People v Davis, 343 Mich 348; 72 NW2d 269 (1955). To the extent that a prior acquittal. of the alleged similar act of the defendant reflects on the accuracy of the charge that defendant committed that act, then the defendant should be entitled to show that another jury determined that he did not commit the similar act.

I appreciate the validity of the rationale of the majority that withholding from the jury information of defendant’s acquittal for the similar acts avoids speculation "regarding the earlier trial”. However, because of the inherently prejudicial nature of similar acts evidence, I strongly believe that the defendant should have every opportunity for minimizing the impact of that evidence so long as it is relevant. In this regard, I consider evidence of defendant’s acquittal as relevant. His acquittal of the similar acts charges has a strong tendency to make more probable the fact that he did not actually commit those alleged similar acts, than it would be if that evidence had not been admitted. MRE 401.

On retrial, evidence that defendant had been tried and acquitted of the similar acts should be admitted upon request.

        People v Atkins, 96 Mich App 672; 293 NW2d 671 (1980), should not be read, as the dissent suggests, as being directly contradictory to People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976). The Atkins Court analyzed all factors for admission of the similar acts evidence and found no error in the trial court’s decision to exclude it. Not only was defendant acquitted of the prior acts, but there were no distinguishing characteristics illustrating a "trademark” of the defendant. Finally, the trial court found that, in the balance, the similar acts evidence was more prejudicial than probative.


author: C. W. Simon, J.

text:
    GLOVER v CITY OF KALAMAZOO
    Docket No. 44222.
    Submitted March 6, 1980, at Grand Rapids.
    Decided July 1, 1980.
    Leave to appeal applied for.
    George Glover, hereinafter plaintiff, was employed as a police officer by the City of Kalamazoo, hereinafter defendant. As a result of criminal charges for perjury being brought against plaintiff plaintiff was suspended indefinitely from the police force. Upon review of the matter, the Chief of Police terminated plaintiff’s employment. Subsequently, plaintiff requested, within the required 30-day period, a hearing pursuant to the veterans preference act. Following the hearing officer’s determination that plaintiff was guilty of official misconduct, the Mayor of Kalamazoo affirmed plaintiff’s removal from the police department. Plaintiff appealed to the Kalamazoo Circuit Court, wherein Robert L. Borsos, J., held that plaintiff was wrongfully deprived of his right to a hearing on the indefinite suspension, that the suspension without a hearing was a violation of due process and that the burden of going forward with evidence was wrongfully placed upon the plaintiff in the veterans preference hearing and ordered plaintiff reinstated with back pay. The defendant appeals, alleging that the trial court erred in -finding noncompliance with the veterans preference act because the plaintiff waived his right to a hearing by not filing a written protest within 30 days of his suspension. Held:

    1. The time limitation for protesting suspension set forth in the veterans preference act is tolled by pending criminal proceedings against the person suspended at the time he was suspended.
    2. The city was not required to hold a hearing on the suspension. The officer had not demanded it and could have at any time during pending criminal charges.
    3. The order of proofs, as a general rule, is within the discretion of the trial court, and there will be no interference by an appellate court unless there is an abuse of discretion.

      References for Points in Headnotes

       51 Am Jur 2d, Limitation of Actions § 170.
    [1, 2, 4] 77 Am Jur 2d, Veterans and Veteran’s Laws § 123.

       70 Am Jur 2d, Sheriffs, Police, and Constables § 15.

       75 Am Jur 2d, Trial § 146.

      4. There is no abuse of discretion in a veterans preference hearing where a suspended police officer proceeded first, although it is better procedure for the city employing the officer to present its ground for suspension and termination first.
    5. The trial court erred when it reversed the mayor’s decision and ordered plaintiff reinstated with back pay.
    Reversed
    Allen, P.J., did not participate.
    1. Limitation of Actions — Statutes — Veterans Preference Act — Suspension — Tolling.
    The time limitation for protesting suspension set forth in the veterans preference act is tolled by criminal proceedings pending against the person suspended at the time he was suspended (MCL 35.402; MSA 4.1222).
    2. Municipal Corporations — Police Officer — Suspension — Hearings.
    A city need not hold a hearing under the veterans preference act on the suspension of a police officer where the suspended officer could have demanded a preference hearing at any time during pending criminal charges.
    3. Courts — Order of Proofs — Discretion — Appeal.
    The order of proofs, as a general rule, is within the discretion of the trial court and there will be no interference by an appellate court unless there is an abuse of discretion.
    4. Municipal Corporations — Veterans Preference Hearing — Order of Proofs — Abuse of Discretion.
    There is no abuse of discretion in a veterans preference hearing where a suspended police officer proceeded first, although it is better procedure for the city employing the officer to present its ground for suspension and termination first.

      Plaszczak & Bauhof, P.C. (by James F. Bauhof), for plaintiff.

      Don M. Schmidt, City Attorney, and William S. Baird, Assistant City Attorney, for defendant.

      Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   C. W. Simon, J.

Defendant appeals as of right from a February 23, 1979, order reversing the suspension and discharge of plaintiff, a Kalamazoo police officer, and reinstating him with back pay.

This proceeding arose out of an altercation between plaintiff and a citizen, Larry Jack, on October 23, 1975. During a traffic stop, an argument led to blows. Plaintiff arrested Jack and charged him with obstructing a police officer. Plaintiff testified at the preliminary examination of Jack. The case against Jack was later dismissed. As a result of plaintiff’s testimony at the preliminary examination, perjury charges were brought against plaintiff. Due to the pending criminal charges, plaintiff was suspended indefinitely.

The charges against plaintiff were dismissed at trial because the court found that the prosecution did not use due diligence to produce two res gestae witnesses.

The Chief of Police then reviewed the matter and terminated plaintiff on October 21, 1977, due to his false testimony.

Plaintiff requested a hearing pursuant to the veterans preference act, MCL 35.402; MSA 4.1222, within the required 30 days.

On December 15, 1977, and February 21, 22, 1978, a veterans preference hearing was held. The hearing officer found plaintiff guilty of official misconduct.

On May 11, 1978, pursuant to statute, the Mayor of Kalamazoo rendered his decision holding plaintiff guilty of official misconduct and affirming his removal from the police department.

Plaintiff appealed this decision to the Kalamazoo County Circuit Court which reversed the mayor’s decision and reinstated plaintiff with back pay from the date of his suspension until the date of the mayor’s decision. The circuit court held that plaintiff was wrongfully deprived of his right to a hearing on the indefinite suspension; that the suspension without a hearing was a violation of due process; and that the burden of going forward with evidence was wrongfully placed upon the plaintiff in the veterans preference hearing.

On appeal, defendant argues that the trial court erred in finding noncompliance with the veterans preference act because plaintiff waived his right to a hearing by not filing a written protest within 30 days of his suspension.

In pertinent part, MCL 35.402; MSA 4.1222, provides:

"* * * such veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing * *

However, the statute requires the veteran to file a written protest of noncompliance with the act or waive the privileges and benefits therein:

"Provided, however, that where such veteran has been removed, transferred, or suspended other than in accordance with the provisions of this act, he shall file a written protest with the officer whose duty under the provisions of this act it is to make the removal, transfer, or suspension, within 30 days from the day such veteran is removed, transferred, or suspended; otherwise the veteran shall be deemed to have waived the benefits and privileges of this act * *

Since plaintiff did not file a written protest within 30 days of his suspension, it would seem that he waived his right to a hearing thereon. However, we find that the time limitation was tolled while the criminal charges were pending against plaintiff. Michigan State Employees Ass’n v Civil Service Comm, 406 Mich 313, 319; 279 NW2d 530 (1979). In Michigan State Employees Ass’n, the Michigan Supreme Court held that the time limitations for protesting discharge set forth in the Civil Service Grievance and Appeal Procedure were tolled from the time investigation is begun with an eye toward potential criminal prosecution until the prosecution terminates. Similarly, we hold that the time limitation for protesting suspension set forth in the veterans preference act was tolled by the criminal proceeding pending against plaintiff at the time he was suspended.

Thus, plaintiff’s protest was timely filed both as to the suspension and discharge following dismissal of the criminal charges against him. Subsequently, a hearing was held and a decision adverse to plaintiff was rendered by the mayor.

We hold that the trial court erred when it found a violation of the hearing requirement of the veterans preference act. Plaintiff could have, but need not have, demanded a preference hearing at any time during the criminal prosecution. In the absence of such a demand, defendant had no affirmative duty to hold a hearing on the suspension.

We also hold that plaintiff was not deprived of procedural due process as a result of his suspension. It is clear that defendant had an opportunity to be heard on the suspension. Plaintiff could have demanded an earlier hearing if he so desired. On these facts, the hearing plaintiff received satisfied procedural due process.

Defendant also argues that the trial court erred when it held that the burden of going forward with evidence was wrongfully placed on plaintiff in the veteran’s preference hearing. We agree.

This issue arises because the hearing officer requested that plaintiff, as petitioner, proceed first. This is a question of order of proofs, since the burden of proof was properly placed upon defendant. As a general rule, the order of proofs is within the discretion of a trial court. See GCR 1963, 507.2. Thus, there will be no interference by an appellate court unless there is an abuse of discretion. In re Mann’s Estate, 219 Mich 695; 189 NW 991 (1922). While we believe that the better procedure in a veteran’s preference hearing is to require the city to present its ground for suspension and termination first, we find that there was no abuse of discretion on these facts.

In conclusion, we hold that the trial court erred when it reversed the mayor’s decision and ordered plaintiff reinstated with back pay.

Reversed. No costs, a public question.

Allen, P.J., not participating.


author: J. H. Gillis, J. R. B. Burns, P.J.,

text:
    PEOPLE v HAMMER
    Docket No. 44564.
    Submitted May 7, 1980, at Grand Rapids.
    Decided July 1, 1980.
    Ronald G. Hammer was convicted of first-degree criminal sexual conduct, Kent Circuit Court, Roman J. Snow, J. He appeals, alleging that the admission of similar acts testimony of the complainant and her sisters constituted reversible error. Held:

    Evidence of prior bad acts is admissible where the crime charged is a sexual offense and the other acts tend to show similar familiarity between the defendant and the person with whom he allegedly committed the charged offense, and is further justified where the offense is charged against a member of the victim’s household. The same rationale supports admission into evidence of the testimony of her sisters as to similar acts committed against them.
    Affirmed.
    R. B. Burns, P.J., dissented. He would hold it was reversible error to allow complainant’s sisters to testify as to prior sexual acts committed against them since there was no showing of mistake or accident, or of any scheme, plan or system on the part of the defendant.
    Opinion of the Court
    1. Criminal Law — Evidence — Similar Acts — Sexual Offense — Complaining Witness.
    Evidence of prior bad acts is admissible where the crime charged is a sexual offense and the other acts tend to show similar familiarity between the defendant and the person with whom he allegedly committed the charged offense.
    2. Criminal Law — Evidence — Similar Acts — Sexual Offense — Close Relationship.
    The admission of evidence of antecedent sexual acts between the defendant and the alleged victim is justified where the offense is charged against a member of the victim’s household.

      References for Points in Headnotes
    [1-4, 6] 29 Am Jur 2d, Evidence § 321. 65 Am Jur 2d, Rape §§ 70-74.
    Admissibility, in prosecution for sexual offense, of evidence of other similar offenses. 77 ALR2d 841.

       29 Am Jur 2d, Evidence §§ 251-257.

      3. Criminal Law — Evidence — Similar Acts — Sexual Offense — Corroborating Witnesses.
    Evidence of prior sexual acts between the defendant and other witnesses of the same filial relationship as the complainant is admissible where a sexual offense is charged to corroborate and lend credence to the complainant’s testimony.
    4. Criminal Law — Evidence — Similar Acts — Sexual Offense — Judicial Discretion — Probative Value — Prejudicial Effect.
    Evidence of prior sexual acts in a criminal sexual conduct trial is admissible where the trial court, in its discretion, determines that its probative value outweighs its potential prejudicial effect.
    5. Evidence — Admissibility — Different Theories.
    Evidence admissible under a particular theory, but admitted by the trial court under a different theory, may be upheld.
    Dissent by R. B. Burns, P. J.
    6. Criminal Law — Evidence — Similar Acts — Sexual Offense — Error.

      Admission of evidence in a criminal sexual conduct trial of prior sexual acts between the defendant and other witnesses of the same Glial relationship as the complainant where there is no showing of mistake or accident, or of any scheme, plan or system on the part of the defendant constitutes reversible error.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.

      Buth, Wood & Weidaw (by George S. Buth and Stephen M. Tuuk), for defendant.
    Before: R. B. Burns, P.J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis, J.

The defendant was convicted of first-degree criminal sexual conduct contrary to MCL 750.520b(1)(b); MSA 28.788(2)(1)(b) by a Kent County Circuit Court jury on December 13, 1978. He was sentenced to 7-1/2 to 20 years imprisonment and appeals as of right. GCR 1963, 806.1.

The charge in the instant case arose out of the alleged sexual penetration, MCL 750.520a(h); MSA 28.788(l)(h), of the defendant’s 15-year-old daughter, Rhonda. Prior to trial, the prosecutor moved to permit Rhonda and defendant’s other daughters, Tammie, 18, Sherrie, 16, and Raelynn, 10, to testify as to prior sexual acts committed against them by the defendant. At the conclusion of a hearing on the motion, the trial court ruled that such testimony would be permitted because such testimony was material to show a common scheme or plan on the part of the defendant to engage in sexual activities with his daughters. MCL 768.27; MSA 28.1050. The complainant and her sisters were permitted to testify at trial as to such prior sexual acts. Defendant contends that the admission of such testimony constitutes reversible error. We disagree and affirm.

Evidence of defendant’s other bad acts is generally inadmissible because its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant, preventing an objective determination of the disputed factual issues. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts. People v Matthews, 17 Mich App 48, 52; 169 NW2d 138 (1969).

This exclusionary rule, however, is not without exception. The exception relied on by the trial court is statutory, MCL 768.27; MSA 28.1050. There also exists a judicially created exception. It is on this latter exception which we rely in affirming the defendant’s conviction.

Evidence of prior bad acts is admissible where the crime charged is a sexual offense and the other acts tend to show similar familiarity between the defendant and the person with whom he allegedly committed the charged offense. People v Der-Martzex, 390 Mich 410, 413; 213 NW2d 97 (1973). The rationale underlying this exception is expressed by Justice Christiancy in an appeal from a conviction of the offense of incest:

"* * * [WJhere a witness has testified to a fact or transaction which, standing alone and entirely unconnected with anything which led to or brought it about, would appear in any degree unnatural or improbable in itself, without reference to the facts preceding and inducing the principal transaction, and which, if proved, would render it more natural and probable; such previous facts are not only admissible and relevant, but they constitute a necessary part of such principal transaction — a link in the chain of testimony, without which it would be impossible for the jury properly to appreciate the testimony in reference to such principal transaction. And such previous facts should therefore be elicited by the examination of the party producing the witness. Any other rule, in such case, would be grossly unfair towards the witness; render a trial a process for suppressing, rather than eliciting, the truth, and defeat the very objects for which courts of justice are instituted.
"In the order of nature, facts do not occur single and independent — isolated from all others — but each is connected with some antecedent fact, or combination of facts, from which the fact in question follows as an effect from a cause. Torn from this necessary connection, and exhibited alone, many real occurrences would appear under the guise of falsehood, and truth itself would be made to lie.
"To permit the evidence, therefore, of an isolated transaction, which could only be made to appear probable by exhibiting the antecedent facts which induced it, and yet to exclude from the investigation all such antecedent facts, would be to set at defiance the order of nature, and the laws of truth which God has stamped upon the human mind.” People v Jenness, 5 Mich 305, 323-324 (1858). See also People v Swift, 172 Mich 473, 484-485; 138 NW 662 (1912), People v Trzil, 235 Mich 469, 472-473; 209 NW 564 (1926).

The principal issue confronting the jury in the instant case was the credibility of the alleged victim. Limiting her testimony to the specific act charged and not allowing her to testify to the prior sexual acts would have seriously undermined her credibility in the eyes of the jury. The admission of evidence of antecedent sexual acts between the defendant and the alleged victim is justified where the offense is charged against a member of the victim’s household. Otherwise, the testimony of the victim concerning the sexual assault which is the subject to the instant charge may well appear incredible. People v DerMartzex, supra, 414-415. The admission of evidence of antecedent sexual acts against the complainant, Rhonda Hammer, was justified here.

The second question to be addressed is whether the lower court properly allowed the complainant’s sisters to testify at trial regarding defendant’s sexual assaults against them. The answer is that such evidence was properly admitted. We hold that the rationale supporting the admission of the complainant’s testimony concerning prior sexual acts committed upon her by the defendant similarly supports the admission into evidence of the testimony of her sisters as to such acts committed upon them.

Again, we emphasize that the principal issue confronting the jury was the credibility of Rhonda Hammer. If her sisters were prohibited from testifying as to sexual assaults against them, Rhonda’s credibility would have been undermined. The jury might well have asked the question, Why would the defendant engage in such conduct toward only one of four daughters? To prevent such an erroneous question from reaching the jury’s consideration, we hold that under the facts of the instant case the testimony of the complainant’s sisters was properly admitted to corroborate and lend credence to the complainant’s testimony. See People v Fritts, 72 Cal App 3d 319; 140 Cal Rptr 94 (1977), and State v Sutton, 4 NC App 664; 167 SE2d 499 (1969). This holding is particularly appropriate when one notes that the defendant denied the sexual assault in question or any prior sexual assaults had taken place, thereby implicitly charging the complainant with fabricating the evidence against him.

On the basis of the foregoing analysis, the defendant’s conviction is affirmed.

D. C. Riley, J., concurred.

R. B. Burns, P.J.,

(dissenting). I must dissent. In my opinion it was reversible error to allow the complainant’s three sisters to testify as to prior sexual acts committed against them._

MCL 768.27; MSA 28.1050 provides:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

In People v Oliphant, 399 Mich 472, 488; 250 NW2d 443 (1976), the Supreme Court allowed the testimony of three young women, other than the complainant, who claimed that the defendant had raped them, and stated:

"We agree with the trial court and the Court of Appeals that the testimony of 'A’, 'B’, and 'C’ goes beyond tending to show that defendant raped other young women. The many similarities in all four cases tend to show a plan or scheme to orchestrate the events surrounding the rape of complainant so that she could not show nonconsent and the defendant could thereby escape punishment. Defendant’s plan made it appear that an ordinary social encounter which culminated in voluntary sex had simply gone sour at the denouement due to his reference to complainant’s unpleasant body odor; a vain and bitter woman seeking revenge against an innocent man.”

In the present case there was no showing of mistake or accident on the part of the defendant, or of any scheme, plan or system.

I would reverse and remand for a new trial.

       We do not decide whether the evidence was properly admitted under MCL 768.27; MSA 28.1050. Assuming, arguendo, that the evidence was not admissible under the statute, this would not affect our disposition of the case. Proceeding on this assumption, we would simply conclude that the trial court assigned the wrong reason to the correct result. See People v Perryman, 89 Mich App 516, 520; 280 NW2d 579 (1979).

       Such evidence is not always admissible. The trial judge must exercise his discretion and exclude the proffered evidence if its probative value is outweighed by its potential prejudicial effect. In the present case, we find no abuse of that discretion.

       See footnote 2, supra.