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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED October 21, 2014

v No. 316286 Muskegon Circuit Court JAMES ALLEN TOMAS, LC No. 12-062281-FC

Defendant-Appellant.

Before: B ORRELLO , P.J., and S ERVITTO and S HAPIRO , JJ.

P ER C URIAM

. Defendant, James Allen Tomas, a ppeals as of right his convicti on of assault wi th intent to murder, MCL 750.83, following a jury trial. De fendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 20 to 30 years’ impr isonment. For the reasons set forth in this opinion, we affirm the conviction and sentence of defendant.

Testimony revealed that the victim in this case and defendant had been roommates in a one bedroom bungalow for approximately four to fi ve years. Testimony was offered to prove that the victim and defendant had, during their joint tenancy, periodically engaged in physical confrontations with each othe r and often argued. Accounts di ffered on which of the two men typically instigated the disputes.

On July 4, 2012, defendant had gathered with his landlords to celebrate the holiday with a barbeque. Testimony revealed that prior to th e assault, defendant had engaged in drinking, described by one witness as “drinking all day, like always.” As the day progressed, the group gathered to watch fireworks. Before the fi reworks had commenced, defendant and the victim began an argument in their bungalo w over money. According to the victim, as they were arguing over money, defendant went into the kitchen area and returned with a knife which he then used to stick in the victim’s stomach. The victim backed out of th e door and called out for help as his intestines were protruding outside his stomach. Numerous people testified to seeing the victim holding his stomach, describing the wound as appeari ng that “ . . . [His] in sides were hanging out of his stomach . . . .”-2- Police were summoned to the scene, arrange d to have the victim transported to the hospital and took the defendant into custody. After ad vising defendant of his Miranda 1 rights, defendant agreed to speak with police officers a bout the incident, and told them that while the victim had been stabbed, he actually “fell on th e knife.” Defendant admitted that he and the victim had argued earlier over the temperature inside their bungalow, and that was the source of the dispute. During the interview, defendant never suggested that the victim inflicted any violence on him prior to the stabbing.

Prior to trial, the prosecution filed two separate notices of its intent to rely on evidence of other crimes, wrongs or acts under MRE 404(b) a nd MCL 768.27. The first notice related to a 2008 incident in Muskegon. The second notice rela ted to a 1986 incident in Chicago Heights, Illinois. Both notices asserted that the proposed evidence was being offered “in order to prove material facts including intent, absence of mist ake or accident, common scheme, plan or system in doing an act, method of operation.” Defendan t filed objections to the prosecution’s 404(b) notices, arguing that the proposed evidence was not offered for a proper purpose, was irrelevant and, in the case of the incident from Illinois, was more th an 20 years old. On October 26, 2012, a hearing on defendant’s objections was held, a nd the trial court issued its opinion and order overruling defendant’s objections to the prosecution’s notice to use the 1986 incident from Chicago Heights, Illinois and the 2008 Michigan incident, and permitted the use of both prior crimes at trial under both the statute, MC L 768.27, and the court rule, MRE 404(b)(1). Defendant was convicted and sentenced as stat ed above and this appeal then ensued.

On appeal, defendant first argues that the trial court committed error requiring reversal by allowing other bad acts evidence of two prior knife fights, which made it more likely the jury would convict him based on those ot her acts rather than the eviden ce of the charged offense.

The admissibility of bad acts evidence is within the trial court’s discretion and will be reversed on appeal only when there ha s been a clear abuse of discretion. People v Waclawski

, 286 Mich App 634, 670; 780 NW2d 321 (2009). When the decision involves a preliminary question of law, the question is reviewed de novo. People v Mardlin , 487 Mich 609, 614; 790 NW2d 607 (2010). The determination whether the probative value of evid ence is substantially outweighed by its prejudici al effect is best le ft to a contemporaneous assessment of the presentation, credibility and effect of the testimony. Waclawski , 286 Mich App at 670. An error in the admission of bad acts evid ence does not require reversal unl ess it affirmatively appears that the error was outcome determinative. People v Knapp , 244 Mich App 361, 378; 624 NW2d 227 (2001).

MRE 404(b)(1) governs admission of evid ence of bad acts, and provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in c onformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other

1 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-3- crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.

In order for other acts evidence to be admissible under MRE 404(b): 1) it must be offered for a proper purpose; 2) it must be rele vant; and 3) the probative value of the evidence may not be substantially outwe ighed by unfair prejudice. People v VanderVliet , 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). “Evidence relevant to a noncharacter purpose is admissible under MRE 404(b) even if it also reflects on a defendant’s character.” Mardlin , 487 Mich at 615.

The prosecution complied with the pretri al notice requirement of MRE 404(b)(2), by timely filing two notices, relating to a 2008 inci dent in Muskegon involving Bruce Welch and Muskegon Police Officer Kate Strauss, and the 1986 incident in Chicago Heights, Illinois, involving Walter Kane. Though defendant filed objections, defense counsel acknowledged to the trial court that the theories of defense includ ed accident or mistake, identity, lack of intent and self-defense.

Kane testified at trial that he had an encounter with defe ndant outside a bar in 1986, in Chicago Heights, Illinois. They “stepped outsi de to settle it,” and defendant began swinging a knife back and forth at Kane’s f ace and neck, inflicting serious injuries. Welch testified that he and defendant “got into it” in July, 2008. Defendant offered to fight Welch, who anticipated a fist fight, but defendant unexpect edly produced a large knife and swung it w ithin two feet of Welch.

The record shows that the trial court properly determined that other acts evidence was admissible under MRE 404(b )(1). In light of defe ndant’s stated position th at the stabbing of the victim in the case at the bar was an accident an d not done intentionally, the prosecution offered the evidence for the proper purposes of showing “intent” and “absence of mistake or accident” under MRE 404(b)(1). VanderVliet , 444 Mich at 74-75

. The question is not whether the evidence falls within an exception to a supposed rule of exclusion, but rather whether the “evidence [is] in any way relevant to a fact in issue” other than by showing mere propensity.a Id.

at 64. (Internal citations omitted). As stated by our Supreme Court in VanderVliet , 444 Mich at 64: “Put simply, the rule is inclusionary rather than exclusionary.” (Internal citation omitted).

Though the rule is inclusionary rather than exclus ionary, the proposed other acts evidence must also be relevant under MRE 402. Id. In this case, it is appa rent that both prior acts involved defendant’s aggressive use of a knife against an unar med person. In both the 1986 and the 2008 incidents, Kane and We lch did not expect to be assa ulted with a knife. “Unusually frequent events—and particularly purported accide nts—associated with the defendant and falling into the same general category of incidents are ad missible to disprove lack of accident . . . with regard to the charged event.” Mardlin , 487 Mich at 629. Thus, evidence of the other acts was admissible to negate defendant’s claim that the st abbing of the victim in the case at bar was a mere accident. Id . In addition, the prior bad acts eviden ce was relevant to prove defendant’s intent to kill, and was releva nt to defendant’s allegedly innocent intent under MRE 402. VanderVliet , 444 Mich at 78–81.-4- Finally, under MRE 403, the probative value of the proposed other acts evidence must not be substantially outwei ghed by unfair prejudice. Id. “Evidence is unfairl y prejudicial when there exists a danger that marginally probat ive evidence will be given undue or preemptive weight by the jury.” People v Crawford , 458 Mich 376, 398; 582 NW2d 785 (1998). Here, given defendant’s claims of accident and innocen t intent, the past knif e assaults were highly probative. The record does not support that the probative value was substantially outweighed by any unfair prejudice under MRE 403. The trial c ourt was in the best position to make MRE 403 determinations on the basis of “a contemporaneous assessment of the presentation, credibility, and effect of testimony. . . .” VanderVliet , 444 Mich at 81. Accordingl y, the trial court did not abuse its discretion in admitting the other acts evidence under MRE 403.

Lastly, the record also reveals that the trial co urt issued instructions to the jury about the appropriate use of the other acts evidence, and it is well established that jurors are presumed to follow their instructions. People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998). Thus, the impact of any prejudicial use by the jury of the other acts evidence was cured by the instructions. Accordingly, defendant is not entitled to relief on this issue.

Defendant also argues on appeal that the trial court improperly allowed Officer Kate Strauss to testify to statements made by de fendant regarding the 2008 Muskegon incident. Again, our review of defendant’s claim of error is for an abuse of discretion. Mardlin , 487 Mich at 614. A preserved evidentiary error does not mer it reversal in a criminal case unless it appears that it is more probable than not that the error was outcome determinative. People v Burns , 494 Mich 104, 110; 832 NW2d 738 (2013).

Here, defendant argues that the trial court im properly allowed Officer Strauss to testify to statements made by defendant regarding the 20 08 Muskegon incident, in which defendant first denied pulling a knife, but later admitted he had a knife in his hand but did not to use it against Welch. Defendant first told Strauss that, whil e he was cooking chicken on a grill outside, an unknown male with glasses jumped him and started choking him. Later, at the jail, defendant told Strauss that Welch approached him while he was cooking the chicken and, as he turned, defendant had the knife in hi s hand but never tried to cut or stab Welch with it.

According to defendant, the trial court errone ously believed that because it had already allowed the evidence regarding th e 2008 Muskegon incident into ev idence, the statements made by defendant to Officer Strauss could also be adm itted. We glean no such analysis from the trial court’s ruling. Review of the tr ial court’s ruling on the issue reveal s that it was aware that a prior statement does not constitute a pr ior bad act under MRE 404(b) beca use it is just that, a prior statement and not a prior bad act. See, People v Rushlow , 179 Mich App 172, 176; 445 NW2d 222 (1989). Rather, the trial court engaged in th e relevant inquiry as to whether the admitted statement is relevant. Id . Under MRE 801(d)(2), a statement is excluded from the definition of hearsay if it is “offered ag ainst a party and is . . . hi s own statement. . . .” People v Goddard , 429 Mich 505, 523; 418 NW2d 881 (1988) (R ILEY , J., concurring).

In this case, our review of the record evidence reveals that the trial court correctly decided that MRE 404(b) applies only to prior acts, not to prior statements. Rushlow , 179 Mich App at 176. The trial court then properly decided the statements admissible under MRE 801(d)(2), because they were a “descripti on of the act by the defendant himself.” Goddard , 429-5- Mich at 523 (R ILEY , J., concurring). The trial court th en found the statements “relevant and admissible” and determined that their probative value substantially outweighed any prejudicial effect to defendant. MRE 403; People v Feezel , 486 Mich 184, 198; 783 NW2d 67 (2010), stating, in relevant part that the “statements [to Officer Strauss] th at [defendant] made to describe the act. . . [b]etween he and Welch relevant and admissible.” Thus, the trial court’s decision to admit defendant’s statements to Strau ss was not an abuse of its discretion. Mardlin , 487 Mich at 614. Accordingly, defendant is not entitled to relief on this issue.

Affirmed.

/s/ Stephen L. Borrello /s/ Deborah A. Servitto /s/ Doublas B. Shapiro