People of Michigan v. Michael Wayne Hughes

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

September 21, 2023

Plaintiff-Appellee,

v No. 361415

Wayne Circuit Court

MICHAEL WAYNE HUGHES, LC No. 20-001266-01-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 361416

Wayne Circuit Court

MICHAEL WAYNE HUGHES, LC No. 20-003338-01-FH

Defendant-Appellant.

Before: GADOLA, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

In Docket No. 361415, defendant appeals by right the trial court’s judgment of sentence

under which defendant was convicted by a jury of aggravated stalking and sentenced as a second-

offense habitual offender to 5 to 7-1/2 years’ imprisonment. In Docket No. 361416, defendant

appeals by right the trial court’s judgment of sentence under which defendant was convicted by a

jury of assault by strangulation and domestic violence and sentenced to 67 months to 10 years’

imprisonment for the assault conviction and 93 days in jail for the domestic violence conviction.

Finding no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

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Defendant was convicted of assault by strangulation and domestic violence for an incident

involving his former girlfriend in a hotel room on April 21, 2019, in Detroit, Michigan, and of

stalking her from March until October 2019. The victim and defendant were intermittently

involved in a relationship from 2017 until April 2019. The prosecution presented evidence that

while the two were in a hotel room on April 21, 2019, defendant became upset about how the

victim was dressed. When the argument escalated, defendant emptied the victim’s purse, took her

phone, cracked it in half, and threw it. He then threatened to kill the victim as he dragged her by

her hair around the room and strangled her until she briefly passed out. A hotel guest who heard

someone screaming contacted hotel security. The victim regained consciousness when she heard

loud banging on their hotel room door. The police arrested defendant that night but released him

soon thereafter. The prosecution presented evidence that defendant engaged in a series of different

acts against the victim, both before and after the hotel incident, including throwing a brick at her

car, repeated calling and messaging her and her coworkers, and disseminating sexually explicit

photographs and videos of her to her family members and coworkers, and posting such material

on various social media platforms. The prosecutor also presented evidence of other acts of

domestic violence by defendant against the victim, his ex-wife, and another former girlfriend.

At trial, defendant conceded that the prosecution presented sufficient evidence for the jury

to find beyond a reasonable doubt that defendant was guilty of aggravated stalking, and

acknowledged that there may also be sufficient evidence to prove that defendant committed an act

of domestic violence by pulling the victim’s hair. Defendant argued, however, that the evidence

was insufficient to prove beyond a reasonable doubt that defendant was guilty of assault by

strangulation because there was no evidence to corroborate the victim’s testimony that defendant

strangled her. Defendant emphasized that the evidence presented during trial supported only the

stalking charge and that there was very little evidence to support the assault by strangulation

charge. Accordingly, defendant asked the jury to acquit him of assault by strangulation. The jury

found defendant guilty of aggravated stalking, MCL 750.411i, assault by strangulation, MCL

750.84(1)(b), and domestic violence, MCL 750.81(2), and defendant was sentenced as noted

above. This appeal followed.

II. ADMISSION OF EVIDENCE

Defendant first argues that the trial court abused its discretion when it permitted the

prosecutor to introduce evidence of defendant’s other acts of domestic violence against the victim,

a former girlfriend, and his ex-wife because the evidence was inadmissible under MCL 768.27b(1).

We disagree.

A. STANDARDS OF REVIEW

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

People v Thorpe, 504 Mich 230, 251-252; 934 NW2d 693 (2019). “The decision to admit evidence

is within the trial court’s discretion and will not be disturbed unless that decision falls outside the

range of principled outcomes.” Id. (quotation marks and citation omitted.) “A decision on a close

evidentiary question ordinarily cannot be an abuse of discretion.” Id. “Preliminary questions of

law, such as whether a rule of evidence or statute precludes the admission of particular evidence,

are reviewed de novo[.]” People v Bynum, 496 Mich 610, 623; 852 NW2d 570 (2014).

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B. ANALYSIS

MCL 768.27b provides that “in a criminal action in which the defendant is accused of an

offense involving domestic violence . . . evidence of the defendant’s commission of other acts of

domestic violence . . . is admissible for any purpose for which it is relevant, if it is not otherwise

excluded under Michigan rule of evidence 403.” Evidence is relevant if it has “any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” MRE 401. “A trial court admits

relevant evidence to provide the trier of fact with as much useful information as possible.” People

v Cameron, 291 Mich App 599, 612; 806 NW2d 371 (2011). A defendant’s propensity to commit

a crime makes it more probable that he committed the charged offense. People v Watkins, 491

Mich 450, 470; 818 NW2d 296 (2012).

Evidence may be excluded under MRE 403, however, “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

MRE 403. The rule is not, however, intended to exclude evidence simply because it is “damaging,”

as any relevant evidence will be harmful to the defendant to some extent. People v Mills, 450

Mich 61, 75; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). Instead, it is “only when the

probative value is substantially outweighed by the danger of unfair prejudice that evidence is

excluded.” Id. Unfair prejudice exists where there is “a danger that marginally probative evidence

will be given undue or pre-emptive weight by the jury” or “it would be inequitable to allow the

proponent of the evidence to use it.” Id. at 75-76. Courts should consider the following factors

when deciding whether to exclude other-acts evidence under MRE 403 as being overly prejudicial:

(1) the dissimilarity between the other acts and the charged crime, (2) the

temporal proximity of the other acts to the charged crime, (3) the infrequency of

the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the

evidence supporting the occurrence of the other acts, and (6) the lack of need for

evidence beyond the complainant’s and the defendant’s testimony. [Watkins, 491

Mich at 487-488.]

When weighing the probative value of other-acts evidence, courts should consider the extent to

which the other-acts evidence supports the victim’s credibility and rebuts any attack on the

victim’s credibility. Id. at 491-492.

1. OTHER-ACTS EVIDENCE INVOLVING THE VICTIM’S DOG

Defendant first argues that the trial court abused its discretion by admitting evidence of his

treatment of the victim’s dog during an act of domestic violence against her because it was unfairly

prejudicial. In particular, the victim was allowed to testify that during an argument in 2017,

defendant put an extension cord around her dog’s throat, held up the dog by the cord, threatened

to kill the dog, and threatened her. Defendant’s commission of other assaults against the victim,

including the frightening and threatening act against her dog in her presence while threatening her,

was relevant to show defendant’s character or propensity to engage in domestic violence against

the victim, as well as to rebut defendant’s claims that he did not assault her in the hotel. See

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Watkins, 491 Mich at 470. The evidence had a direct bearing on whether defendant had the

propensity to commit the charged acts.

Defendant contends that admission of the evidence involving his treatment of the victim’s

dog should have been excluded under MRE 403 because its minimal probative value was

outweighed by its prejudicial effect. Defendant argues that the trial court “lumped” all the

allegations together and failed to weigh the prejudicial effect of the evidence against its probative

value. We disagree. The record discloses that the trial court addressed the admissibility of the

other-acts evidence in two different hearings, but defendant cites only the trial court’s discussion

from the first hearing. In his brief, defendant ignores the court’s additional discussion at the second

hearing, during which the court examined the allegations regarding the victim’s dog in the context

of comparing it to other evidence the court did not allow because it was unfairly prejudicial. The

court’s discussion from both hearings—including that it did not allow all of the proposed other-

acts evidence, finding some of the evidence to be unfairly prejudicial—demonstrates that the trial

court appropriately engaged in the required analysis.

Defendant also challenges the first factor from Watkins—the similarity between the other

act and the charged assault—by emphasizing that the other act involved the victim’s dog and there

was no allegation concerning an animal in this case. Despite defendant’s argument, this factor

weighs in favor of admissibility. The other act and the current offense involved defendant’s acts

of domestic violence against the victim. There is no requirement under Watkins that defendant use

identical means in his commission of violence against the same victim during their dating

relationship. Defendant further contends that the victim’s testimony in this regard was not

corroborated by any evidence of harm to the dog, such as a veterinary bill. However, “[i]t is the

province of the jury to determine questions of fact and assess the credibility of witnesses. As the

trier of fact, the jury is the final judge of credibility.” People v Lemmon, 456 Mich 625, 637; 576

NW2d 129 (1998) (citation and quotation marks omitted). In other words, the jury chose to believe

the victim’s account of events, absent corroborating evidence, which it was permitted to do.

Defendant also argues that the evidence was unduly prejudicial because it portrayed him

as a person who abuses animals, which is “uniquely horrific.” Defendant’s argument merely

demonstrates that the evidence was damaging for the same reasons that it was relevant, which was

to show defendant’s character or propensity to engage in acts of domestic violence against the

victim, which is not a basis for finding that the evidence was unfairly prejudicial under MCL

768.27b or MRE 403. Moreover, in its final instructions, the trial court gave a cautionary

instruction to the jury, explaining the limited, permissible use of the evidence, thereby minimizing

any potential for unfair prejudice. It is well established that jurors are presumed to have followed

their instructions. People v Breidenbach, 489 Mich 1, 13; 798 NW2d 738 (2011). Defendant has

not presented any basis for overcoming the presumption that the jury followed these instructions

and, consequently, the trial court did not abuse its discretion by determining that the probative

value of the evidence involving defendant’s treatment of the victim’s dog was not substantially

outweighed by the danger of unfair prejudice.

2. ACTS OF DOMESTIC VIOLENCE AGAINST DEFENDANT’S FORMER GIRLFRIEND

Next, defendant argues that the trial court abused its discretion by admitting evidence that

defendant committed acts of assault against a former girlfriend nine years before the incident in

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the hotel. At trial, the witness testified that in December 2009, defendant dragged his former

girlfriend by her hair, stepped on her face, and strangled her. The evidence that defendant

committed acts of domestic violence against a former girlfriend that were similar to his alleged

acts against the victim was relevant to show defendant’s character or propensity to engage in the

same type of domestic violence against the victim, as well as to rebut defendant’s claims that he

did not assault her in the hotel. Defendant’s primary challenge to the admissibility of the evidence

is that the evidence should have been excluded under MRE 403 because of the lack of temporal

proximity of the other acts to the charged crime.

As defendant acknowledges, however, MCL 768.27b generally precludes “[e]vidence of

an act occurring more than 10 years before the charged offense . . . .” MCL 768.27b(4) (emphasis

added). Further, temporal proximity is but one factor that the court may consider and is not

dispositive on its own. Defendant’s nearly identical acts occurred less than 10 years before the

charged crimes in this case, and defendant has not proffered any persuasive argument to show that

the trial court abused its discretion by admitting this evidence.

3. DEFENDANT’S CRIMINAL RECORD

We also reject defendant’s argument that he is entitled to a new trial because “other-acts

evidence” regarding his prior criminal history was improperly introduced at trial. Defendant notes

that witnesses were allowed to give “other-acts” testimony that alluded to him having a prior

criminal history. Before trial, the court permitted the prosecution to introduce evidence of

defendant’s prior acts of domestic violence against his ex-wife, but excluded evidence that

defendant was convicted of domestic violence involving his ex-wife or that he pleaded no contest

to that charge in 2019. In issuing its ruling, however, the trial court twice cautioned defense

counsel that such evidence would be permitted if counsel asked opened-ended questions that

elicited it. Defendant now cites his ex-wife’s testimony on redirect examination that she appeared

in court for defendant’s sentencing in 2019, after defendant pleaded no contest to domestic

violence.

Defendant’s argument fails because before the cited testimony on cross-examination,

defense counsel asked defendant’s ex-wife about defendant pleading no contest in a case involving

her. The witness responded that she “thought we weren’t supposed to discuss that,” and the trial

court allowed her response that defendant now cites as reversible error. A defendant cannot claim

error on appeal on the basis of an error to which he contributed by plan or negligence. People v

Gonzalez, 256 Mich App 212, 224; 663 NW2d 499 (2003), disapproved of on other grounds by

469 Mich 967 (2003). Thus, given that defendant opened the door to the testimony, defendant

cannot now claim that admission of the evidence was erroneous.

Defendant also highlights the victim’s “other-acts” testimony that defendant was in jail for

a period in 2019. Contrary to what defendant asserts, this evidence was not offered as other-acts

evidence under MCL 768.27b but was offered to explain why there was a gap in the series of

events concerning the victim and to corroborate the victim’s testimony regarding the timeline.

Thus, the fact that defendant was incarcerated for a period was relevant to the charge of aggravated

stalking as it explained the timeline of events. See MRE 401. Further, to alleviate any potential

for prejudice, the trial court gave two cautionary instructions to the jury and, on both occasions,

defense counsel indicated that he was satisfied with the instructions. Defendant now argues that

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the trial court’s instructions “would not have been enough to overcome the prejudice,” but

defendant has not presented any basis, other than speculation, for overcoming the presumption that

the jury followed the court’s instructions. Breidenbach, 489 Mich at 13. In sum, defendant is not

entitled to a new trial on the basis of the challenged testimony.

4. CONSTITUTIONALITY OF MCL 768.27B

Defendant also contends that the trial court erred by admitting evidence under MCL

768.27b because the statute is unconstitutional.1 Defendant asserts that the use of propensity

evidence is fundamentally unfair and violates his right to due process. We disagree.

MCL 768.27b reflects the Legislature’s policy choice to allow juries to consider evidence

of other acts for propensity purposes in certain cases. See Cameron, 291 Mich App at 609-610.

“There is no clearly established Supreme Court precedent which holds that a state violates due

process by permitting propensity evidence in the form of other bad acts evidence.” Bugh v

Mitchell, 329 F3d 496, 512 (CA 6, 2003).2 Furthermore, evidence offered under MCL 768.27b is

subject to the requirement that the evidence be relevant and the requirement that its probative value

not be substantially outweighed by the danger of unfair prejudice. These procedural safeguards

are considered sufficient to protect a defendant’s right to due process and a fair trial. See United

States v LeMay, 260 F3d 1018, 1026 (CA 9, 2001) (concluding there was “nothing fundamentally

unfair about the allowance of propensity evidence . . . [a]s long as the protections of Rule 403

remain in place . . . .”). Accordingly, we reject defendant’s argument that MCL 768.27b is

unconstitutional.

III. JOINDER OF OFFENSES

Next, defendant argues that the trial court abused its discretion by granting the prosecutor’s

motion to consolidate the two cases for trial. We disagree.

A. STANDARDS OF REVIEW

Whether joinder is appropriate is a mixed question of fact and law. People v Williams, 483

Mich 226, 231; 769 NW2d 605 (2009). “To determine whether joinder is permissible, a trial court

must first find the relevant facts and then must decide whether those facts constitute ‘related’

offenses for which joinder is appropriate.” Id. This Court reviews the trial court’s factual findings

for clear error, but reviews its interpretation of MCR 6.120(B), which is a question of law, de novo.

Id. The ultimate decision on permissive joinder of related charges lies “firmly within the discretion

of trial courts.” Breidenbach, 489 Mich at 14.

1

Because defendant did not challenge the constitutionality of MCL 768.27b in the trial court, we

review this unpreserved constitutional issue for plain error affecting defendant’s substantial rights.

People v Carines, 460 Mich 750, 762-763; 597 NW2d 130 (1999).

2

Caselaw from lower federal courts is not binding on this Court but may be considered as

persuasive authority. Johnson v Vanderkooi, 502 Mich 751, 764 n 6; 918 NW2d 785 (2018).

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B. ANALYSIS

MCR 6.120(B) states, in pertinent part:

(B) Postcharging Permissive Joinder or Severance. On its own initiative,

the motion of a party, or the stipulation of all parties . . . the court may join offenses

charged in two or more informations or indictments against a single

defendant . . . when appropriate to promote fairness to the parties and a fair

determination of the defendant’s guilt or innocence of each offense.

(1) Joinder is appropriate if the offenses are related. For purposes of this

rule, offenses are related if they are based on

(a) the same conduct or transaction, or

(b) a series of connected acts, or

(c) a series of acts constituting parts of a single scheme or plan.

(2) Other relevant factors include the timeliness of the motion, the drain on

the parties’ resources, the potential for confusion or prejudice stemming from either

the number of charges or the complexity or nature of the evidence, the potential for

harassment, the convenience of witnesses, and the parties’ readiness for trial.

Joinder of the offenses was appropriate under MCR 6.120(B)(1)(c). Offenses are “related”

for purposes of MCR 6.120(B)(1)(c) when the evidence indicates that the “defendant engaged in

ongoing acts constituting parts of his overall scheme or plan.” Williams, 483 Mich at 235.

Defendant does not dispute that the two cases are related. Indeed, the evidence indicated ongoing

acts related to an overall plan of engaging in acts of violence against a domestic partner. All of

the charged offenses involved the same victim, and all of the acts arose from the same domestic

relationship and involved acts of domestic violence, and the timeframe for the series of different

acts of stalking against the victim overlapped with the date of the charged acts of assault by

strangulation and domestic violence in the hotel room. There was little potential for confusion

because the two cases were presented distinctively, and the facts were not complex.

Moreover, defendant has not established prejudice. As the trial court found, if each case

was tried separately, the evidence supporting each charge would have been admissible in each

trial. “The admissibility of evidence in other trials is an important consideration because ‘[j]oinder

of . . . other crimes cannot prejudice the defendant more than he would have been by the

admissibility of the other evidence in a separate trial.’ ” Williams, 483 Mich at 237 (citation

omitted). Defendant contends that he was prejudiced because the evidence supporting the stronger

stalking case was predominate, cumulative, and impeded the jury’s ability to separate the assault

by strangulation offense from the stalking offense. Defendant speculates that the jury had the

impression that if he stalked the victim then he must have been guilty of assault by strangulation.

Contrary to defendant’s arguments, however, the court separately instructed the jury on each

offense and instructed that the prosecutor must meet the standard of proof beyond a reasonable

doubt for each element. As stated previously, juries are presumed to follow their instructions.

Breidenbach, 489 Mich at 13. Other than mere speculation, which is inadequate, defendant has

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not presented any basis for overcoming the presumption that the jury followed these instructions.

In sum, joinder of the offenses was appropriate, and the trial court did not abuse its discretion by

granting the prosecution’s motion for consolidation.

IV. SENTENCING

Next, defendant argues that the trial court erred when it assigned 25 points to the scoring

of prior record variable (“PRV”) 1 (prior high-severity felony convictions) on the basis of

defendant’s out-of-state conviction of aggravated battery. We disagree.

A. STANDARDS OF REVIEW

When reviewing a trial court’s scoring decision, the trial court’s “factual determinations

are reviewed for clear error and must be supported by a preponderance of the evidence.” People

v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate

to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law,

is a question of statutory interpretation, which an appellate court reviews de novo.” Id.

B. ANALYSIS

PRV 1 is scored for “prior high severity felony convictions,” MCL 777.51(1), and PRV 2

is scored for “prior low severity felony convictions.” MCL 777.52(1). For purposes of PRV 1, a

prior high severity felony conviction includes a “felony under a law of . . . another state

corresponding to a crime listed in offense class M2, A, B, C, or D” or a “felony under a law

of . . . another state that does not correspond to a crime listed in offense class M2, A, B, C, D, E,

F, G, or H and that is punishable by a maximum term of imprisonment of 10 years or more.” MCL

777.51(2)(b) and (d). Consistent with MCL 777.51(1)(c), defendant was assessed 25 points for

PRV 1 for having one prior high-severity felony conviction, which was for his plea-based

conviction of aggravated battery in Florida, in violation of Fla Stat 784.045:

A person commits aggravated battery who, in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent

disability, or permanent disfigurement; or

2. Uses a deadly weapon.

Aggravated battery under Fla Stat 784.045 is a second-degree felony, punishable by a maximum

term of 15 years’ imprisonment. See Fla Stat 775.082(3)(d).

Defendant argues that the Florida offense does not qualify as a high-severity felony under

MCL 777.51(2) because it is equivalent to Michigan’s offense of felonious assault, MCL 750.82,

which is a low-severity felony. MCL 750.82(1) provides:

Except as provided in subsection (2), a person who assaults another person

with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous

weapon without intending to commit murder or to inflict great bodily harm less

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than murder is guilty of a felony punishable by imprisonment for not more than 4

years or a fine of not more than $2,000.00, or both.

The trial court correctly rejected defendant’s argument that the Florida offense of

aggravated battery corresponds to felonious assault in Michigan. The Florida aggravated-battery

statute plainly requires the commission of an actual battery, which requires that the defendant

either “[i]ntentionally or knowingly causes great bodily harm, permanent disability, or permanent

disfigurement” or “[u]ses a deadly weapon.” Fla Stat 784.045(1)(a). In Michigan, felonious

assault is a simple assault that is aggravated by the use of a weapon and does not require the

commission of an actual battery. See People v Jones, 443 Mich 88, 100; 504 NW2d 158 (1993).

“An assault may be established by showing either an attempt to commit a battery or an unlawful

act that places another in reasonable apprehension of receiving an immediate battery.” People v

Starks, 473 Mich 227, 234; 701 NW2d 136 (2005). Thus, Florida’s aggravated-battery statute

does not correspond to Michigan’s felonious-assault offense. Because defendant’s Florida

conviction does not correspond with an applicable crime in Michigan, the trial court properly

considered whether the conviction was “punishable by a maximum term of imprisonment of 10

years or more.” MCL 777.51(2)(d)(emphasis added). Defendant does not dispute that the crime

of aggravated battery in Florida is punishable by a maximum term of imprisonment of 15 years.

Consequently, the trial court did not err by finding that defendant’s Florida conviction qualifies as

a high-severity felony and assessing 25 points to PRV 1.

V. CONSTITUTIONALITY OF MCL 769.1K(1)(B)(iii)

In his last argument on appeal, defendant asserts that MCL 769.1k(1)(b)(iii) is

unconstitutional because it (1) infringes on his due-process right to appear before an impartial

judge because trial court judges are incentivized to convict defendants in order to impose costs to

raise money to fund the courts, and (2) violates the separation of powers because the funding

arrangement created by the statute prevents the judicial branch from accomplishing its

constitutionally assigned functions of maintaining impartiality in criminal proceedings. As

defendant recognizes, however, this Court considered and rejected these same constitutional

arguments in People v Johnson, 336 Mich App 688, 692-705; 971 NW2d 692 (2021). Defendant

has failed to present any basis for distinguishing Johnson, which this Court is bound to follow

under MCR 7.215(J)(1). Consequently, defendant is not entitled to appellate relief with respect to

this issue.

Affirmed.

/s/ Michael F. Gadola

/s/ Mark J. Cavanagh

/s/ Kirsten Frank Kelly

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