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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 22, 2015

v No. 318545 Oakland Circuit Court HOWARD LEROY MCMANAMY, LC No. 2013-245729-FH

Defendant-Appellant.

Before: O’C ONNELL , P.J., and B ORRELLO and G LEICHER , JJ.

P ER C URIAM

Defendant is a sex offender. His sex crime “rap sheet” lists four 1987 convictions, two involving persons 13-15 years of age, and two with “multiple va riables.” These convictions triggered defendant’s life-long duty to register pursuant to Mi chigan’s Sex Offenders Registration Act (SORA), MCL 28.722(w)( iv ); MCL 28.725(12). SORA’s registration rules mandate that defendant update his address “immediately” upon va cating his residence or domicile. MCL 28.725(1)(a). A “ willful[]” violation of this r ule is a felony. MCL 28.729(1). 1

In 2013, the prosecutor charged defendant with larceny from a building, MCL 750.360, and willfully failing to notify the police of his address chang e, thereby violating MCL 28.729(1)(a). Defendant offered to stipulate that he was a con victed sex offender subject to SORA’s registration requirements . The prosecutor objected, and the trial court refused to accept the stipulation. The court received in evidence a “certified r ecord” of defendant’s criminal sexual conduct (CSC) convictions , including a list of the four offenses, their unsavory circumstances, and defendant’s 15-year maximum sentence.

The trial court abused its discretion in admitting the annotat ed list of defendant’s convictions. Defendant’s offer to stipulate to his status as a convicted sex offender subject to SORA’s statutory registration re quirements purged the descripti ons of his prior convictions of evidentiary probity. What remain ed was prejudice that tainted his trial. We reverse and remand.

1 Specifically, the statute provi des, “[A]n individual required to be registered under this act who willfully violates this act is guilty of a felony.”-2- I. BACKGROUND FACT S AND PROCEEDINGS

Defendant was discharged from prison in October 2011. In Augu st 2012, he moved into a trailer owned by Robert Roy. D efendant registered this addre ss with the Sex Offender Registry, as required.

On March 18, 2013, Roy checked himself into an inpatient rehab ilitation facility for treatment of his self-acknowledge d “serious alcohol problem.” According to Eugene Lessor, a resident of Roy’s trailer park, defendant then moved in with Le ssor. Lessor recalled that defendant brought clothing, utens ils, dishes, a mirror, an exte nsion cord, a camera, a cot, a hammer, refrigerator magnets, and n ight lights to his new abode

. Within a few weeks, Roy returned from his stint in rehabilitat ion and noticed that several items were missing from his trailer, including his television, a DVD player, a drill, a camping cot, a cordless screwdriver, ref rigerator magnets, a spaghetti strainer, and towels. Roy filed a police report. Later that same day, Roy located some of his mi ssing property in Lessor’s mobile home. Roy confronted defendant, and defendant left the trailer park. Eventually defendant was arrested and charged with larceny from a building in violation of MCL 750.360 and willfully failing to register his change o f address as required under the SORA in violation of MCL 28.729(1)(a).

Defendant determined to defend both the larceny and the SORA c harges. He contended that Roy had either given him the items at issue or that they n ever actually belonged to Roy. 2 As to the registration charge, defendant disputed that he had “wil lfully” failed to register a new address, claiming that at the time of his arrest he had not off icially moved into new lodgings. Defendant alleged that although he had moved some of his belong ings to Lessor’s mobile home, he continued to sleep, eat some meals, and keep some things in Roy’s trailer. These defenses required defendant’s testimony. Accordingly, his counsel, Jose ph Horenstein, offered to stipulate to his sex offender status to avoid cross-examinationregarding the details of those crimes. The following colloquy ensued:

Mr. Horenstein : Yes. I would stipulate . . . that the defendant has a prior sex offense that requires him to register. I won’t -- I’m not going to stipulate that he did not register.

The Court : Right.

Mr

. Horenstein : But I would stipulate that there was an offense that would require him to register.

The Court : People?

[The Prosecutor] : And, your Honor, certainly I’d accept the stipulation. But, as the court’s aware, the jury instruction allows the juryto accept or reject

2 Roy was hospitalized with an unspecified malady at the time of trial, so his preliminary examination testimony was read to the jury.-3- the stipulation. And while that may satisfy the burden of prod uction, I don’t think the stipulation satisfies the burden of proof and I still think it would be fair game to ask questions on cross.

The Court : I tend to agree with the prosecutor in the event -- I don’t think I need to make -- well, do you want to respond --

Mr

. Horenstein : Yes, Judge.

The Court : -- I guess I should make a ruling before he makes this decision.

Mr

. Horenstein : I would argue that by telling the jury what degree the offense was, could prejudice the defendant. I would stipulate to -- the stipulation would be that he -- he committed a sex offen (ph) -- a sex offe nse . . . that required him to register, but I don’t think it’s proper that -- or I’m afraid that if the jury hears what degree, like 3rd -- 2nd Degree or 3rd Degree, t hat could prejudice them.

The Court : People?

[ The Prosecutor ]: Your Honor, . . . I think the degree’s necessary. One, by the [SORA] because there are some degrees that don’t require registration or at least the same level of registration. Two, the forms from the Michigan State Police, with regards to the reg istry, that say what the defenda nt’s requirements are as well as his acknowledgment of receiving those responsibiliti es, list the offense itself. They list how often he has to register. They list the tier that he’s on, Tier 3. And I believe that document itself is admissible, as it’s a certified document.

So the information, I believe, would be coming into evidence an yway. I think the question is the degree to which it’s discussed on the Record and if the defendant’s going to testify. I think certainly I’d get to ask him question such as “You were convicted of such and such offense, on such and such a date. You understand that you were required t o register” and those types of things.

The Court : I think the defendant’s basis for objecting is not one of relevancy obviously but one of undue prejudice, under Rule 403. The probative value of the conviction is extremely high. I think undue preju dice is low under these circumstances. He’s going to be tried for the offense of Sex Offender’s Failure to Register, the prerequisite of which is . . . a [sic] offense by which he must register. I think the People are correct, connection withthis probative value and the jury will certainly understand that their decision is t o determine whether or not he failed to register, not to find him guilty because he ’s been previously found guilty of another charge. . . .

Defendant testified and was cro ss-examined about his sex offen der status. He admitted to having “served a lengthy prison sentence” as a result of two co nvictions for “CSC 3 rddegree,” and conceded that he had to register for the rest of his life. The prosecutor then introduced into-4- evidence a multipage document substantiating defendant’s status as a sex offender subject to the SORA. The exhibit’s second page set forth, among other things, the nature of defendant’s convictions. The fifth and sixth pages, titled, “Sex Offender Registration Explanation of Duties To Register As A Sex Offender,” consists of 15 statements descr ibing registration requirements. Defendant acknowledged each of these rules upon his 2011 releas e from prison by initialing them on the form. 3 The jury considered this evidence before finding defendant gu ilty of larceny from a building and failing to reg ister as a sex offender.

The trial court imposed a departure sentence of 60 months to 1 5 years’ imprisonment, remarking that defendant’s multiple prior offenses “keenly and irresistibly grab[] this Court’s attention, [and] self- evidently [are] of c onsiderable worth in sentencing the defendant.” 4

On appeal, defendant challenges h is departure sentence and the admission of the full judgment record detailing defendant’s sex crimes. Because the trial court’s evidentiary error requires a new trial, we declin e to address defendant’s asserte d sentencing errors.

II. ANALYSIS

We review for an abuse of discretion a trial court’s decision whether to admit evidence. People v Lukity , 460 Mich 484, 488; 596 NW2d 607 (1999). A trial court abuses its discretion when it selects an outcome that falls outside the range of reas onable and principled outcomes. People v Babcock , 469 Mich 247, 269, 666 NW2d 231 ( 2003). “We review de novo w hether a court rule or statute precludes the admission of evidence.” People v Murphy (On Remand) , 282 Mich App 571, 578; 766 NW2d 303 (2009).

Defendant’s proffered stipulation to his status as a sex offen der subject to the SORA’s registration requirements rendered the second page of the SORA documentation inadmissible under MRE 403. 5 That page presented the number of defendant’s CSC convictions (four), and that the circumstances attending two of them involved minors. In the face of the proposed stipulation, this evidence was highly prejudicial, and lacked a ny probity whatsoever. MRE 403 therefore compelle d its exclusion.

We ground our reasoning in an opinion of the United States Sup reme Court, Old Chief v United States

, 519 US 172; 117 S Ct 644; 136 L Ed 2d 574 (1997). In Old Chief , the Supreme Court held that a federal district court had abused its discret ion under FRE 403 by refusing to accept the defendant’s stipulation of his prior conviction for a felony offense. MRE 403 is identical to FRE 403. Our Supreme Court has looked to federal case law when interpreting Michigan evidentiary rules. People v Katt , 468 Mich 272, 280; 662 NW2d 12 (2003). And this

3 We have attached the second page , and the last two pages as ex hibits to this opinion.

4 Defendant’s sentences run concurrently. The minimum sentencin g guidelines range was 12 to 48 months.

5 This evidentiary rule provides: “Although relevant, evidence m ay be excluded if its probative value is substantially outweighe d by the danger of unfair preju dice, confusion of the issues, or misleading the jury, or by cons iderations of undue delay, waste of time, or needless presentation of cumulative evidence.”-5- Court adopted Old Chief “as persuasive authority” in People v Swint , 225 Mich App 353, 379; 572 NW2d 666 (1997).

Johnny Lynn Old Chief stood trial under a federal statute proh ibiting possession of a firearm by anyone with a prior fel ony conviction. Old Chief’s prior conviction arose from an assault causing serious bodily injury. Rather than risk recitation of the facts underlying that conviction, Old Chief offered to stipulate to his status as a f elon during the relevant period. Old Chief , 519 US at 174-175. The government refused the stipulation, a nd the trial court declined to force the government to accept the stipulation. Id. at 177. The Court of Appeals for the Ninth Circuit affirmed. Id. The Supreme Court reversed, ho lding that the trial court had abused its discretion by allowing the government to establish the underlyi ng felony by means of unfairly prejudicial evidence, in the f ace of a stipulation advancing th e equivalent evidence.

The Supreme Court rested its opinion on FRE 403, “which author izes exclusion of relevant evidence when its ‘proba tive value is substantially ou tweighed 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. ’” Id . at 180. The “unfair prejudice” element of FRE 403, the Court explained, “speaks to the capacity of some relevant evidence to lure the factfinder into declaring guilt on a groun d different from proof specific to the offense charged.” Id . The balancing contemplated by the evidentiary rule requires that courts “take account of the full evidentiary context of the cas e” before determining whether the probative value of proffered ev idence outweighs its unfairly pr ejudicial effect. Id . at 182. The task of balancing necessitates th at trial courts consider wheth er other, less prejudi cial evidence is available as a substitute for the prejudicial facts: “If an alt ernative were found to have substantially the same or great er probative value but a lower d anger of unfair prejudice, sound judicial discretion would discoun t the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unf airly prejudicial risk.” Id . at 182-183.

The Supreme Court took pains t o emphasize that a defendant’s o ffer to stipulate to a point of evidence does not automatically transform relevant evi dence into irrelevant evidence. Rather, the trial court must always bear in mind the prosecutio n’s “need for evidentiary richness and narrative integrity in presenting a case[.]” Id at 183. Nevertheless, the Supreme Court continued, the trial court and the prosecution must accept a st ipulation of the felony element in a felony-firearm prosecution. The Court reasoned:

In dealing with the specific pr oblem raised by [18 USC] 922(g) (1) [the federal felon-in-possession st atute] and its prior-conviction e lement, there can be no question that evidence of the name or nature of the prior of fense generally carries a risk of unfair prejudi ce to the defendant. That risk will vary from case to case, for the reasons already gi ven, but will be substantial wh enever the official record offered by the government would be arresting enough to l ure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case the ris k of unfair prejudice would be especially obvious. [ Old Chief , 519 US at 185.]-6- FRE 403 compels this result, the Supreme Court explained, beca use the prosecution’s need to prove a point with “evidentiary depth to tell a continu ous story” loses its strength “when the point at issue is a defendant’s legal status, dependent on some judgment rendered wholly independently of the concrete eve nts of later criminal behavior charged against him.” Id . at 190. The Court elaborated:

As in this case, the choice of evidence for such an element is usually not between eventful narrative and abstract proposition, but between propos itions of slightly varying abstraction, either a record saying that conviction for some crime occurred at a certain time or a statement admitting the same th ing without naming the particular offense. The issue of substituting one statement for the other normally arises only when the record of conviction would not be admissible for any purpose beyond proving status , so that excluding it would n ot deprive the prosecution of evidence with multiple utility; if, indeed, ther e were a justification for receiving evidence of the nature of prior acts on some issu e other than status ( i.e., to prove “motive, opportunity, intent, preparation, plan, know ledge, identity, or absence of mistake or acciden t,” [FRE] 404(b)), Rule 404(b) guarantees the opportunity to seek its admission. Nor can it be argued that th e events behind the prior conviction are proper nourishment for the jurors’ sense o f obligation to vindicate the public interest. The issue is not whether concret e details of the prior crime should come to the jurors’ attention but whether the name or general character of that crime is to be disclosed. . . . The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a conv ict from possessing a gun, an d this point may be made readily in a defendant’s admission and underscored in t he court’s jury instructions. Finally, the most obvious reason that the general presumption that the prosecution may choose its evidence is so remote from appli cation here is that proof of the defendant’s status goes to an element entirely out side the natural sequence of what the defendant is charged with thinking and doi ng to commit the current offense. Proving status without telling exactly why tha t status was imposed leaves no gap in the story o f a defendant’s subsequent criminality, and its demonstration by stipulation or a dmission neither displaces a c hapter from a continuous sequence of conventional evidence nor comes across a s an officious substitution, to confuse or offend or provoke reproach. [ Id at 190-191 (citations omitted).]

We find this reasoning highly pertinent here. Defendant’s all egedly willful failure to register under the SORA does not turn on the characteristics of defendant’s prior sex convictions. The number of convictions, and whether they deriv ed from sexual activity with minors or were associated with “multiple variables,” lost any p ossible relevance when defendant offered to stipulate that he was fully subject to the SORA’s re gistration requirements. With that stipulation in evidence, the jury would have no need to read pa ge two of the exhibit to find defendant guilty of willfully failing to register. As with Old Chief’s conviction for assault causing serious bodily injury, the details of defendant’s prior CSC convictions as presented on page two invited unfair prejudi ce. The risk of prejudice flows from the likelihood that a jury will-7- decide that “a bad person deserves punishment.” Old Chief , 519 US at 181, quoting United States v Moccia , 681 F2d 61, 63 (CA 1, 1982) (B REYER , J.). 6

In rejecting the proposed stipul ation, the trial court erred a s a matter of law by concluding that the probative value of the conviction information qualifie d as “extremely high.” The parties agree that the jury would be ins tructed as follows regarding th e elements of the failure to register charge:

To prove this charge, the prosecutor must prove each of the fo llowing elements beyond a reasonable doubt. First, that the defendant was an individual who is required to register as a sex offender. Under the law a person who has been convicted of criminal sexual conduct 3 rddegree, is required to register as a sex offender. Second, the defendant was a resident of the Stat e of Michigan. Third, that the defendant willfully violated the Sex Offender R egistration Act by failing to register a change of address.

The proposed stipulation would have eliminated the prosecutor’s need to prove all elements of the crime except willfulness. Beyond proving defendant’s oblig ation to register, the prosecutor has brought forward no relevant, noncharacte r purpose for the e vidence containe d on page two of the exhibit. Nor would exclusi on of this evidence derail the p rosecutor’s cross-examination, as evidence of defendant’s sex crime s and their characteristics do es not fall within the realm of admissible impeachment evidence under MRE 609.

Further, the prosecutor’s stated reason for rejecting the stip ulation—that it would not satisfy the burden of proof—is simply incorrect. The Supreme C ourt summarized the power and effect of such stipulations as follows:

To the bench, the bar, and administrative agencies, be it know n herefrom that the practice of submission of questions to any adjudicatin g forum, judicial or quasi-judicial on stipulation of fact, is praiseworthy in prope r cases. It eliminates costly and time consuming hearings. It narrows and delineates i ssues. But once stipulations have been received and approved they are sacrosanc t. Neither a hearing officer nor a judge may t hereafter alter them. This hol ding requires no supporting citation. The necessity of the rule is apparent. A p arty must be able to rest secure on the premise that the stipulated facts and stipul ated ultimate conclusionary facts as accepted will be those upon which adjudi cation is based. Any deviation therefrom results in a denial of due process for the obvious reason that both parties by accepting the stipulation have been forecl osed from making any testimonial or other evidentiary record. [ Dana Corp v Employment Security Comm , 371 Mich 107, 110; 123 NW2d 277 (1963).]

6 The Indiana Court of Appeals has also applied Old Chief in prosecutions under a sex registration statute. See McClain v State , 898 NE2d 409 (Ind App, 2008). The Supreme Court of Tennessee applied Old Chief in a prosecution for prison escape, State v James , 81 SW3d 751, 762 (Tenn, 2002), the Texas Court of Criminal Appeals adopted i ts reasoning in adriving while intoxicated prosecution, Tamez v State , 11 SW3d 198 (Tx 2000), and the Arkansas Supreme Court found Old Chief ’s logic persuasive in Diemer v State , 365 Ark 61; 225 SW3d 348 (2006).-8- Stipulations substitute for proof . Properly instructed, a jury would have no choice but to accept the stipulation.

The prosecutor has also urged t hat the six-page registry infor mation “would be coming into evidence anyway.” This argument, too, misapprehends gover ning evidentiary principles. Portions of the exhibit that qua lified as more prejudicial thanprobative could and should have been excluded from admission. Other portions, such as the init ialed pages demonstrating defendant’s awareness of his re porting obligations, were proper ly admitted as they contained highly relevant, unobjectionable material. In Old Chief , the Supreme Court specifically recognized that a trial court c ould properly accept a redacted record of defendant’s convictions as a substitute for a stipulation. Old Chief , 519 US at 191 n 10. Rather than adopting that approach, however, the trial court improperly permitted the pro secutor to introduce descriptive evidence of defendant’s underlying sex crimes bearing no probat ive value and giving rise to a substantial likelihood of unfair prejudice.

As to the larceny case, the error clearly was not harmless. W e evaluate the erroneous admission of defendant’s convicti on details under the standard applicable to preserved, nonconstitutional error. Defendant must demonstrate that the e rror he seeks to vindicate has resulted in a miscarriage of justice. MCL 769.26; Lukity , 460 Mich at 495. The central question is “whether absent the error, it is ‘more probable than not’ th at a different outcome would have resulted.” People v Gursky , 486 Mich 596, 619; 786 NW2d 579 (2010) (citation omitted).

Both the larceny and the registration cases were credibility c ontests. Defendant’s declaration of innocence would be vindicated only if the jury b elieved his claim that the goods did not belong to the complainant , and that he had not willfull y failed to register. In the larceny case, the complaining witness suffered from a “serious alcohol problem” and did not appear at the trial. Defendant’s testimony regarding the ownership of th e disputed items stood alone. By showing defendant to be a child-molesting “bad person [who] des erves punishment,” the prosecution unfairly boosted the likelihood of conviction. The trial court’s failure to give a limiting instruction compounde d the prejudice.

The failure to register case presents a closer question. Defe ndant’s probation officer testified that defendant informed her that he had moved, and th at she twice instructed him to update his registry address. Def endant insisted that he had “p aid up” his rent for his space in Roy’s trailer through April 8, 2013, and never “officially” mov ed into Lessor’s trailer. 7 Because the only contested issue as to the registration charge was whet her defendant willfully failed to register, admission of the unnecessary details of his sex crime s made it highly unlikely that a jury would believe his version of events. As the trial court noted when imposing a departure sentence, defendant’s past crimes “keenly and irresistibly” gra b one’s attention. We have no reason to believe that the jur y did not experience a similar re action. The sordid details of those

7 Roy returned from rehab on April 2, 2013.-9- crimes added no utility to the pro secutor’s case; rather, they unfairly prejudiced defendant’s ability to persuade the jury tha t he did not deliberately viola te the law.

We reverse and remand for a new trial. We do not retain juris diction.

/s/ Stephen L. Borrello /s/ Elizabeth L. Gleicher