People v. Humble , 108 Mich. App. 777 ( 1981 )

108 Mich. App. 777 (1981) 310 N.W.2d 878

PEOPLE
v.
HUMBLE.

Docket No. 50819.

Michigan Court of Appeals.

Decided August 19, 1981.

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

Roman S. Karwowski, for defendant on appeal.

Before: BRONSON, P.J., and J.H. GILLIS and C.L. BOSMAN,^[*] JJ.

PER CURIAM.

Defendant was charged with first-degree criminal sexual conduct, MCL 750.520b(1); MSA 28.788(2)(1), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). A Recorder's Court jury found him guilty of third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4), and not guilty of felony-firearm. He was sentenced to a term of from 10 to 15 years in prison and appeals as of right.

Defendant's sole issue raised on appeal challenges the admission of the testimony of two prosecution witnesses, Joyce Wilkins and Amelia Robinson, who testified concerning sexual attacks that the defendant allegedly had made on them prior to the date of the criminal sexual conduct with which defendant is charged in this case.

The admission of similar acts evidence will not be reversed on appeal unless the trial court has abused its discretion. People v Hayward, 98 Mich App 332; 296 NW2d 250 (1980). Similar acts evidence is admissible under the following circumstances:

"First, it must be probative of one or more of the statutorily specified purposes, and one or more of those purposes must be material, that is, a proposition `in issue' in the case. [People v Major,] 407 Mich 394, 400 [(1979)]. Then, there should be direct proof of three propositions from which a fourth is inferable: 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. 407 Mich 394, 398." People v Horton, 98 Mich App 62, 69-70; 296 NW2d 184 (1980).

The evidence in this case clearly satisfies these tests. First, it is probative of the purposes specified in MRE 404(b), i.e., proof of a scheme, plan, or system in doing an act, or identity. During trial, defendant placed his identity as the perpetrator of the alleged crime in issue. The evidence also meets the three-proposition test because "there are distinctive characteristics common to the acts which constitute a `signature' identifying the defendant as the perpetrator". Id., 70. The acts to which the two witnesses testified shared distinctive elements with the act against the complainant with which the defendant is charged. Each of the women was young and was accosted by a man with a gun in the same area of town in the early morning hours. Each was taken through an alley and into the back door of the same vacant house on Joseph Campau Street and upstairs into an empty room. The defendant had each of the women stand facing the wall and then made them lie down on something that he had placed on the floor to have sexual intercourse. Two of the women testified that he covered their eyes with a scarf or a hat and that after the sexual act he asked them whether they wanted to go downstairs first or whether he should go first. Each of the women was threatened that if she screamed he would hurt her. We hold that the trial court did not err in admitting this evidence. We reject defendant's claim that the evidence was more prejudicial than probative. Its probative value in establishing the identity of the defendant as the perpetrator of the crimes outweighed its potential prejudicial effect on the defendant.

Affirmed.

NOTES

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