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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 26, 2015

v No. 318879 Barry Circuit Court MERWIN SAM SUTHERLAND, LC No. 12-100081-FH

Defendant-Appellant.

Before: B ECKERING , P.J., and B ORRELLO and G LEICHER , JJ.

P ER C URIAM

. Defendant, Merwin Sam Sutherland, appeals as of right his jury trial conviction for assault and battery, MCL 750.81(1). The trial court sentenced him to 45 days in jail and 24 months of probation. We affirm.

I. PERTINENT FACTS

Defendant’s conviction arises out of an altercation that led t o the death of Randy Baker outside the Woodland Townhouse bar on North Main Street in Wood land. On January 7, 2012, defendant and Randy were at the bar. One witness testified tha t upon defendant’s arrival at the bar, Baker became tense; however, another witness testified tha t defendant and Baker were friends. While defendant was at the establishment, he sat at t he bar with Baker and they discussed military service. Witness testimony differed regardi ng whether the conversation escalated into an argument.

Witnesses testified that after the bar closed and people were walking to their cars, defendant and Baker got into an argument when some bystanders m ade a comment about one of Baker’s acquaintances, Michelle Bender. Baker’s ex-wife, Debor ah Baker, testified that Baker began swearing at defen dant. According to D eborah, defendant s hoved Baker agains t the outside wall of the bar, causing Baker to fall to the ground. Later, d efendant and Baker began walking away, and Baker, who was intoxicated, fell to the ground once a gain. It appeared to Deborah that defendant was going to strike Baker while he was on the gr ound, so she called out to him in order to stop him from hitting Ba ker. Defendant complied with her request, and Baker got up and resumed walking down the street.

Baker and defendant began to argue as they continued walking d own the street. Eventually, defendant punched Baker one time in the face, knock ing him to the ground. It was-2- undisputed that Baker fell to the ground after the punch, strik ing his head. Approximately one week later, Baker died from in juries suffered in the fall.

According to some of the witnesses present, defendant and Bake r were some distance apart immediately preceding the punch, and defendant ran toward Baker before ultimately striking the fatal blow. One witness recalled that defendant w as approximately 150 feet away from Baker and that defendant ran toward Baker in order to punc h him. The witness recalled that, preceding the punch, Baker yelled obscenities at defendan t. Another witness recalled that Baker was approximately 60 feet away from defendant when defend ant decided to run toward and strike him. According to this witness, defendant could hav e gotten into his vehicle and left, but he turned to run toward Baker.

Defendant testified on his own behalf and admitted that he pun ched Baker, but claimed that he acted in self-defense. A ccording to defendant, Baker, who was much larger, was behaving aggressively toward him. After the incident with Bend er, Baker said something about inflicting violence on someone and pointed at defendant while s aying this. The way Baker looked at him while saying this made defendant believe that Bak er intended to harm him. Defendant, along with Ronald Pier cefield, a defense witness, te stified that Baker charged at defendant. Defendant testified that he initially backed away f rom Baker, but Baker continued to come after him. One of the bartenders, Jessica Dies, corrobora ted defendant’s testimony that Baker pursued defendant after they left the bar. Defendant tes tified that Baker continued to walk toward him despite his attempts to ward off an altercation, whi ch prompted him to tell Baker that he would punch him if he conti nued to approach. According to d efendant, Baker continued to approach, so defendant punched him. Defendant testified that h e felt he needed to protect himself from Baker.

The jury convicted acquitted d efendant of a charge of involunt ary manslaughter, but convicted him of the lesser o ffense of assault and battery.

II. MRE 404(b) EVIDENCE

Before trial, the prosecution moved the trial court to admit e vidence of several prior acts under MRE 404(b). Some of the evidence was admitted at trial a nd some of it was excluded for reasons not relevant to this appeal. The only evidence at issu e on appeal is testimony from Brandy Logan, a bartender at the Pit Row bar, indicating that i n the winter of 2011, Baker, at Logan’s request, escorted defe ndant and Piercefield out of that bar. Logan did not testify concerning the reason why she asked Baker to escort defendant a nd Piercefield from the bar. The prosecution proffered this evidence for the purpose of show ing that defendant may have had a motive to fight with Baker on the night of January 7, 2012, a nd therefore he did not punch Baker in self-defense. The trial court admitted the evidence f or that purpose. When testifying on his own behalf, defendant recalle d that he had been escorted ou t of the bar, but did not remember that it was Baker who had escorted him. Likewise, Piercefield did not remember that it was Baker who had escorted him out of the bar. Defendant claims th at Logan’s testimony was not relevant to the purpose for which it was offered and that its p robative value was substantially outweighed by the unfair pr ejudice to defendant.-3- We review this preserved evidentiary issue for an abuse of dis cretion. People v Orr , 275 Mich App 587, 588; 739 NW2d 385 (2007). Evidence of other crim es, wrongs, or acts “is inadmissible to prove a propensity to commit such acts.” People v Crawford , 458 Mich 376, 383; 582 NW2d 785 (1998). However, such evidence may be admiss ible for other purposes under MRE 404(b)(1), which states as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. I t may, however, be admissible for other purposes, such as proof of motive, opportu nity, intent, preparation, scheme, plan, or s ystem in doing an act, knowledge , identity, or absence of mistake or accident when the same is material, wheth er such other crimes, wrongs, or acts are contemporaneous with, or prior or s ubsequent to the conduct at issue in the case.

To determine admissibility under MRE 404(b), this Court uses th e following standard. First, the evidence must be offered “for a proper purpose under Rule 404(b )[.]” People v VanderVliet , 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). Second, the evidence must be relevant under MRE 402. Id. Third, the probative value of the evidence must not be substantially outweighe d by unfair prejudice. Id. If the trial court deems the evidence admissible, it may, upon request, p rovide a limiting instructio n to the jury. Id

. Here, the prosecution offered evidence that Baker escorted def endant out of the Pit Row bar to show that defendant had a m otive to assault Baker. This was a proper purpose under MRE 404(b)(1). People v Hoffman , 225 Mich App 103, 105; 570 NW2d 146 (1997). Prior acts by a victim may be relevant under MRE 404(b) to the issue of self-de fense to show a defendant’s motive. People v Taylor , 195 Mich App 57, 61; 489 NW2d 99 (1992). Because the prosecu tion offered this evidence for a proper purpose under MRE 404(b), th e first prong of the VanderVliet standard is satisfied. VanderVliet , 444 Mich at 55.

With regard to relevance, the prosecution argues that the prio r incident between the men is relevant to show that defendant may have had a motive for st arting an altercation with Baker, i.e., revenge for Baker forcing defendant to leave the Pit Row. Defendant argued that he punched Baker in self-defense, a nd the trial court instructed the jury as to the elements of selfdefense. Self-defense excuses an otherwise unlawful act where “the defendant acted out of fear of death or serious bodily harm.” People v Dupree , 284 Mich App 89, 100-101; 771 NW2d 470 (2009). The fact that defendant may have had a motive for punc hing Baker other than his alleged fear of death or serious bodily harm was relevant for d etermining whether he punched Baker in self-defense. See Taylor , 195 Mich App at 59-61. Therefore, the evidence was relevant under MRE 404(b) and the second prong of the VanderVliet standard is satisfied. VanderVliet
, 444 Mich at 55.

In arguing that the evidence wa s irrelevant, defendant points to his testimony on direct examination in which he stated that he did not recall Baker bei ng present when he was escorted out of the Pit Row. According to defendant, if he did not know that Baker was the person who escorted him out of the Pit Row, the evidence was not probative of his motive. We disagree. Defendant’s challenge goes to the weight of the evidence, not i ts admissibility, and weighing the evidence was a task for the jury. See People v Wager , 460 Mich 118, 126; 594 NW2d 487-4- (1999) (a challenge as to the wei ght of evidence “is for the pa rties to argue before the finder of fact.”).

Even if evidence is relevant under 404(b), it is not admissibl e if its probative value is substantially outweighed by the danger of unfair prejudice. VanderVliet , 444 Mich at 55, 74-75; MRE 403. For evidence to be unfairly prejudicial, there must b e a probability that “evidence which is minimally damaging in logic will be weighed by the jur ors substantially out of proportion to its logically damaging effect . . . .” People v Murphy (On Remand) , 282 Mich App 571, 583; 766 NW2d 303 (2009) (quotation marks omitted). The e vidence that Baker escorted defendant out of the Pit Row bar was probative to show that the re may have been “bad blood” between the two, as the trial c ourt characterized the evidence, and that defendant may not have simply punched Baker in self-defense. Taylor , 195 Mich App at 59-61. And the probative value of the evidence was not outweighed by a danger of unfair prejud ice. Generally, such a danger exists when evidence of prior acts creates a danger that a jury will conclude that because a defendant committed a certain bad act in the past, he must have had a propensity to commit the charged act. Crawford , 458 Mich at 398. However, in thi s case, the evidence regardi ng the Pit Row incident did not address defe ndant’s behavior at all, only what Baker did to him. Therefore, there was little danger that the jury impermissibly inferred fr om the evidence that defendant committed the crimes for which he was charged. Id. In sum, the evidence was admissible under 404(b), VanderVliet , 444 Mich at 55, and the trial court did not abuse its discret ion in admitting this evidence, Orr , 275 Mich App at 588. 1

Affirmed.

/s/ Jane M. Beckering /s/ Stephen L. Borrello /s/ Elizabeth L. Gleicher

1 In addition to challenging the other-acts evidence for the pur pose of showing motive, defendant argues that the trial court abused its discretion by admitting the other-acts evidence to show a common plan or system. The record does not support this assert ion of error, as the record reveals that the evidence was neither admitted nor used for suc h a purpose. Thus, we need not address this assertion of error.