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Order Michigan Supreme Court 

Lansing, Michigan 

May 4, 2007 Clifford W. Taylor,

 Chief Justice 

132285-86 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellee, Justices 

v SC: 132285 

 COA: 268017 
 Wayne CC: 05-009694-01 

KEVIN ROBERT MACKIN, 

Defendant-Appellant. 

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, 

v SC: 132286 

 COA: 268018 
 Wayne CC: 05-009694-02 

JASON THOMAS WOZNIAK,

Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the September 21, 2006 

judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in 

lieu of granting leave to appeal, we REVERSE the portion of the Court of Appeals 

judgment that held evidence of the July 3, 2005 cross-burning was admissible. The 

ethnic intimidation statute, MCL 750.147b, requires the prosecutor to prove the defendant 

maliciously, and with specific intent to intimidate or harass another because of that 

person’s race, color, religion, gender or national origin, did certain prohibited acts. The 

complainant’s state of mind is not an element of the offense. The complainant’s actions 

and observations are relevant, but the fact that a similar incident occurred the night before 

is not relevant and is therefore not admissible. MRE 402. 

CORRIGAN, J., dissents and states as follows: 

I respectfully dissent. I would not order peremptory reversal of the Court of 

Appeals judgment. 
2 

Defendants were charged with ethnic intimidation under MCL 750.147b(1), which 

requires proof of “specific intent to intimidate or harass another person because of that 

person’s race, color, religion, gender, or national origin.” The prosecutor reasonably 

compares federal caselaw analyzing proof of specific intent to intimidate under 18 USC 

241, which makes it unlawful for 

two or more persons [to] conspire to injure, oppress, threaten, or intimidate 

any person . . . in the free exercise or enjoyment of any right or privilege 

secured to him by the Constitution or laws of the United States, or because 

of his having so exercised the same . . . . [18 USC 241.] 

Particularly in cases involving cross burnings, the federal circuits commonly allow 

juries to consider evidence of the victims’ reactions to prove a defendant’s intent to 

intimidate. When a threat is alleged, for instance, a victim’s reaction may show both 

whether a reasonable person would perceive a threat and whether the person making the 

threat would have reasonably foreseen that the victim would perceive a threat. See 

United States v Magleby, 241 F3d 1306, 1311 (CA 10, 2001); United States v 

Hartbarger, 148 F3d 777, 782-783 (CA 7, 1998), overruled in part on other grounds 

United States v Colvin, 353 F3d 569 (CA 7 2003); United States v JHH, 22 F3d 821, 827-

828 (CA 8, 1994); cf. Watts v United States, 394 US 705, 708 (1969) (analyzing a 

different statute requiring a “threat” and stating that it is appropriate to evaluate the threat 

“in context” and take into account the “reaction of the listeners”). 

Likewise, “evidence of victims’ reactions to a cross-burning is relevant to a 

defendant’s intent under 18 U.S.C. § 241.” Magleby, supra at 1311 (court properly 

instructed the jury that they may consider the victims’ reactions to the cross burned on 

their yard in determining the defendant’s intent); Hartbarger, supra at 783-784 (evidence 

of the effect on an interracial couple of a cross burned on their lawn confirmed the 

defendant’s intent to intimidate and interfere). The Hartbarger Court explained: 

[W]hile it [i]s not essential to show that the victims were actually 

intimidated, . . . such evidence [is] not irrelevant . . . . 

* * * 

[Here,] . . . the evidence regarding the victims’ reaction was relevant 

to the issue of whether the defendants intended to threaten the [victims] by 

burning a cross, and therefore the court did not err in instructing the jury 

that 

“While a victim’s reaction to a cross burning is not conclusive 

evidence of the defendant’s intent, it may be considered nonetheless as 

some evidence of his intent.” [Hartbarger, supra at 784-785.] 
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3 

In the instant case, the occurrence of the first cross burning informed the victims’ 

reactions and was arguably even more directly relevant to defendants’ intent than in the 

cases cited above. As the Court of Appeals recognized, the evidence is not typical “other 

acts” evidence that may be excluded under MRE 404(b) because defendants were not 

specifically linked to the first cross burning. Rather, evidence that a cross was burned 

the night before, on the lawn of the very same interracial couple who had just moved into 

the neighborhood, is probative of the culprits’ intent to intimidate on the second night, 

regardless of who committed either the first or the second cross burning. As the 

prosecutor argues: multiple burnings negate intent-based defenses such as claims that the 

second burning was “some sort of accident, a holiday celebration, a practical joke, or the 

like.” 

Therefore, the Court of Appeals properly concluded that the evidence is 

admissible and that a carefully crafted limiting instruction under MRE 105 would be 

sufficient to counterbalance any possibility of prejudice. For these reasons, I would deny 

defendant’s application for leave to appeal. 

t0501 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

May 4, 2007 

Clerk