_____________ _______________ ____________ Michigan Supreme Court 

# Order

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 fo r leave to appeal th e September 21, 2006 judgment of the Court of Appeals is consid ered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVE RSE 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, re quires the prosecutor to prove the defendant maliciously, and with specific intent to in timidate or harass anot her 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 elemen t of the offense. The complainant’s actions and observations are relevant, bu t the fact that a similar inci dent occurred the night before
is not relevant and is therefore not admissible. MRE 402.

C ORRIGAN , J., dissents and states as follows:

I respectfully dissent. I would not order p eremptory reversal of the Court of Appeals judgment.2

Defendants were charged w ith ethnic intimidation un der MCL 750.147b(1), which requires proof of “specific intent to intimid ate or harass another p erson 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, th reaten, or intimidate any person . . . in the free exercise or enjoyment of any ri ght or privilege secured to him by the Co nstitution or laws of the United States, or because of his having so exercised the same . . . . [18 USC 241.]
Particularly in cases involving cross bur nings, the federal ci rcuits commonly allow juries to consider evidence of the victims’ reactions to pr ove a defendant’s intent to
intimidate. When a threat is alleged, for instance, a vi ctim’s reaction may show both whether a reasonable person woul d perceive a threat and whet her the person making the
threat would have reas onably 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 th at it is appropriate to evaluate the threat
“in context” and take into accoun t the “reaction of the listeners”).

Likewise, “evidence of vi ctims’ reactions to a cross- burning is relevant to a
defendant’s intent und er 18 U.S.C. § 241.” Magleby, supra at 1311 (court properly instructed the jury that they may consid er 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 eviden ce regarding the victim s’ reaction was relevant
to the issue of wh ether the defendants intended to threaten the [victims] by burning a cross, and therefo re 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.]_______________________________________ __ 3

In the instant case, the o ccurrence of the first cross burn ing informed the victims’ reactions and was arguably even more directly relevan t to defendants’ in tent than in the
cases cited above. As the C ourt of Appeals recogni zed, the eviden ce is not typical “other acts” evidence that may be excluded under MRE 404(b) because d efendants 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 co uple who had just moved into the neighborhood, is probative of the culprits’ intent to in timidate on the second night, regardless of who committed either th e first or the second cross burning . As the prosecutor argues: multiple burni ngs negate intent-based defense s such as clai ms that the second burning was “some sort of accident, a holiday celebrati on, a practical joke, or the
like.”

Therefore, the Court of A ppeals properly concluded that the evidence is admissible and that a carefully crafted limiting instructi on 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 Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

May 4, 2007

Clerk