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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 12, 2015

v No. 317923
Kent Circuit Court CHAD MICHAEL WALTERS, LC No. 12-011427-FH

Defendant-Appellant.

Before: O’C ONNELL

, P.J., and S AWYER and M ARKEY

, JJ.

P ER C URIAM

.

Defendant Chad Michael Walters was convicted by a jury of assa ult with a dangerous weapon (felonious assault), MCL 750.82. Defendant appeals as o f right. We affirm.

Defendant first challenges the sufficiency of the evidence sup porting his conviction. We review challenges to the sufficiency of the evidence de novo. People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010). Viewing the evidence in a light most favorable to the prosecution, we must determine whether the evidence was suffici ent to justify the trier of fact’s conclusion that the essential elements were proven beyond a rea sonable doubt. People v

Harverson , 291 Mich App 171, 175; 804 NW2d 757 (2010). All conflicts in the evidence must
be resolved in favor o f the prosecution. People v Wolfe , 440 Mich 508, 514- 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Circumstantial evidence and all reasonable inferences drawn therefrom can constitute satisfactory proof of the crime. People v Carines , 460 Mich 750, 757; 597 NW2d 130 (1999).

A felonious assault is a simple assault aggravated by the use of a dangerous weapon with the “intent to injure or place the victim in reasonable apprehe nsion of an immediate battery.” People v Avant , 235 Mich App 499, 505; 597 NW2d 864 (1999). Defendant only c hallenges the element of intent. Intent may be inferred from all the facts a nd circumstances, People v

Hardrick , 258 Mich App 238, 246; 671 NW2d 548 (2003), including the def endant’s words, actions, means, or manner employed to commit the offense, People v Hawkins , 245 Mich App 439, 458; 628 NW2d 105 (2001).

Here, sufficient evidence was presented to prove beyond a reas onable doubt that defendant acted with the requis ite intent. At trial, defendant admitted to threaten ing the victim in a road-rage incident. The evidence also showed that defendant told the responding officers that he grabbed a knife and, as he exited his vehicle, told the vict im that he would cut him. The-2- victim testified that he believed defendant’s threat. Because a jury may infer a defendant’s intent from his words or actions, Hawkins , 245 Mich App at 458, a jury could find that defendant acted with the requisite intent. Thus, the evidence was sufficient t o establish that defendant intended to place the victim in reasonabl e apprehension of an immediate battery.

Defendant also argues that the evidence was insufficient to re but his claim of selfdefense. In claiming self-defense, a defendant bears the initi al burden to produce some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense
of self-defense exist. People v Dupree , 486 Mich 693, 709-710; 788 NW2d 399 (2010). The prima facie case of self-defense requires the evidence to show that the defendant honestly and reasonably believed that he was in danger of death or serious b odily harm, and it appeared immediately necessary to take action to prevent such harm. People v Guarjado , 300 Mich App 26, 35; 832 NW2d 409 (2013).

We find that defendant did not meet his initial burden of prod uction. See Dupree , 486 Mich at 709-710. Although defenda nt presented evidence through his testimony that he saw the victim with a gun, defendant did not produce any evidence that it appeared immediately necessary to take action to pre vent harm. Defendant allegedly saw the victim with a gun when
defendant was in his own vehicle and the victim in another vehi cle. Defendant could have driven away and avoided any interaction with the victim. Moreo ver, a responding officer testified that defendant admitted to not seeing the victim with a gun when the victim started to exit his vehicle. Nevertheless, defendant subsequently threate ned the victim with a knife. Defendant did not meet his burden of producing evidence on the element that taking action to prevent harm appeared immediately necessary. Accordingly, defen dant’s challenge to the sufficiency of the evidence rebutting his self-defense claim is without merit because the prosecution must prove beyond a reasonable doubt that defendant did not act in self-defense only
once a defendant introduces evidence on that defense. People v Forston , 202 Mich App 13, 20; 507 NW2d 763 (1993).

Next, defendant challenges on a ppeal the trial court’s jury in structions. First, defendant
contends that the trial court de prived him of his constitutiona l right to present a defense by not instructing the jury on self-def ense. We generally review cons titutional issues de novo. People

v Kurr , 253 Mich App 317, 327; 654 NW2d 651 (2002). However, because defendant did not raise this constitutional issue in the trial court below, our r eview is limited to plain error affecting defendant’s substantial rights. Carines , 460 Mich at 763.

Although a criminal defendant has a due process right to presen t a defense under the state and federal constitutions, Kurr , 253 Mich App at 326, that right is not absolute, People v Hayes

, 421 Mich 271, 279; 364 NW2d 635 (1984). Failure to give an app licable instruction constitutes error if the instruction “concerns an important point in the tr ial so that the failure to give it seriously impaired the defendant’s ability to effectively prese nt a given defense.” People v

Moldenhauer , 210 Mich App 158, 159-160; 533 NW2d 9 (1995). Here, the tria l court did not seriously impair defendant’s abili ty to effectively present a d efense because defendant did not present enough evidence to warrant a self-defense jury instruct ion.

Defendant also argues that the trial court abused its discretio n by failing to instruct the jury on self-defense. We review a trial court’s determination of whether a jury instruction is-3- applicable to the facts of a case for an abuse of discretion. People v Gillis , 474 Mich 105, 113; 712 NW2d 419 (2006). An abuse of discretion is found if the tr ial court’s decision falls outside the range of reasonable and principled outcomes. Guarjado , 300 Mich App at 34.

“A criminal defendant is entitled to have a properly instructe d jury consider the evidence against him.” People v Riddle , 467 Mich 116, 124; 649 NW2d 30 (2002). If evidence supports a jury instruction requested by the defendant, the trial court mu st give the instruction. Id . at 124. Because the evidence in this case did not support a jury instru ction on self-defense, as discussed,

supra , the trial court did not abus e its discretion in declining to give the instruction.

Defendant also claims that the trial court abused its discreti on by granting the prosecutor’s request for an inst ruction on flight. “Flight” is an applicable theory in a criminal case regarding actions such as “fl eeing the scene of the crime, leaving the jurisdiction, running from the police, resisting arrest, and attempting to escape cus tody.” People v Coleman , 210 Mich App 1, 4; 532 NW 2d 885 (1995). Flight does not necessaril y imply guilt. People v Taylor

, 195 Mich App 57, 63; 489 NW2d 99 (1992). When applicable to th e facts of a given case, the jury’s role is to determine what caused the defendant to flee. Id.

In this case, there was evidence presented at trial supporting a jury instruction on flight. Evidence showed that during the assault, the victim’s girlfrien d yelled to defendant that she was telephoning the police after defe ndant stated that he would cut the victim. The victim testified that as soon as his girlfriend th reatened to telephone the poli ce, defendant reentered his vehicle and drove away. It is possible for a jury to conclude that the girlfriend’s statement caused defendant to flee. Additionally, any potential error was harml ess because the jury was instructed that flight does not necessarily evidence consciousness of guil t and that an individual may flee for innocent reasons. Accordingly, the trial court did not abu se its discretion in giving the flight
instruction.

Lastly, defendant challenges on appeal the admission of MRE 40 4(b) evidence. We
review a trial court’s decision to admit or exclude evidence fo r a clear abuse of discretion. People v Starr , 457 Mich 490, 494; 577 NW2d 673 (1998). A preserved trial er ror in the admission of evidence does not constitute grounds for reversal “unless, after an examination of the entire cause, it affirmatively appears that it is more prob able than not that the error was
outcome determinative.” People v King , 297 Mich App 465, 472; 824 NW2d 258 (2012).

Evidence of crimes, wrongs, or other acts is inadmissible to d emonstrate a defendant’s propensity to act in conformity with those acts. People v Crawford , 458 Mich 376, 383; 582 NW2d 785 (1998). However, other-acts evidence may be admissibl e under MRE 404(b) for another purpose. People v Sabin (After Remand) , 463 Mich 43, 56; 614 NW2d 888 (2000). We analyze MRE 404(b) challenges under a four-part test adopted by our Supreme Court in People v
VanderVliet , 444 Mich 52, 65; 508 NW2d 114 (1993) , amended 445 Mich 1205 ( 1994):

First, that the evid ence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104 (b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the tri al court may, upon request, prov ide a limiting instruction to the jury. [ Id. at 55.]-4- Applying this test to the present case, we find that the trial court abused its discretion in admitting the MRE 404(b) evidence because the evidence was not logically relevant to a nonpropensity purpose.

The question of relevancy is the “critical threshold issue” un der MRE 404(b). Hawkins

, 245 Mich App at 449. Relevant evidence must have some “tendenc y to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. The prosecutor be ars the burden to show that the evidence is relevant to a proper purpose or proves a fact other than the defendant’s character or criminal propensity. People v Mardlin , 487 Mich 609, 615; 790 NW2d 607 (2010). When the only relevance is to prove the de fendant’s character or propens ity to commit the crime, then the
evidence is inadmissible. People v Knox , 469 Mich 502, 510; 674 NW2d 366 (2004).

Here, the trial court admitted evidence of a prior incident fr om 2002 between defendant and his then-girlfriend in which defendant allegedly pointed a gun at her and their two children after fighting over an ongoing cu stody dispute. The prosecutor offered the evidence to show intent, “method of reacting,” and absence of mistake. 1 Nevertheless, the proffered evidence was not logically relevant to the purposes submitted by the prosecu tor. When evidence is offered to show intent or absence of mistake, the past event and charged c rime must be of the “same general category” and “sufficien tly alike to support an inferen ce of criminal intent.” Mardlin

, 487 Mich at 623-624. The factual relationship between the past event and the charged offense may be too remote if it affects the jury’s ability to draw an i ntermediate inference to the proffered purpose. See Crawford , 458 Mich at 396. The prior incident and the charged offense were too factually detached from one another and remote in time , occurring 10 years apart. In one instance, defendant was alleged to have pointed a gun at hi s then-girlfriend and children, and, in the other, defendant was alleged to have threatened a s tranger in a road-ra ge incident with a knife. Any inference from the prior act evidence is indicati ve only of defendant’s criminal propensity. Like our Supreme Court held in Knox , 469 Mich at 512-513, “evidence of defendant’s past anger could only serve the improper purpose of demonstrating that he had the bad character or propensity to harm [the victim].” Therefore, because the proffered evidence was not relevant to a non-prope nsity purpose, the evidence was improperly admitted at trial.

Even if relevant, we conclude that the evidence’s probative va lue was substantially outweighed by the danger of unfair prejudice. The proffered ev idence had a great likelihood of injecting extraneous considera tions of bias, sympathy, anger, o r shock in the jurors’ minds. People v Pickens , 446 Mich 298, 337; 521 NW2d 797 (1994) (citation and quotatio n omitted). The other-acts evidence compares defendant’s reaction to a stra nger in a traffic incident to defendant putting his girlfriend and children in harm related t o a custody dispute. Because the evidence only suggests that defe ndant was a person of bad chara cter and acted in conformity therewith in the present matter , the evidence was inadmissible. Crawford , 458 Mich at 398-400.

1 Mistake was never claimed as a defense in this case; therefore , the evidence of the prior
incident would not be relevant to show an absence of mistake be cause it was not a fact of consequence here. Sabin (After Remand) , 463 Mich at 69.-5- In so ruling, we note that although the trial court provided a cautionary instruction to the jury regarding the MRE 404(b) evidence, the trial court simply reiterated all of the MRE 404(b) purposes and did not limit consideration of the prior acts evid ence to the specific purposes for which it was admitted. Even though a cautionary instruction ma y limit the potential for undue prejudice, Murphy , 282 Mich App at 583, the instruction here was not sufficient to eliminate the prejudicial effect of t he other-acts evidence.

For defendant to be entitled to reversal, however, it must be more probable than not that the error in admitting the other-acts evidence was outcome dete rminative. King , 297 Mich App at 472. Thus, we examine the “nature of the error and assess[] its effect in light of the weight and strength of the untainted evidence.” People v Mateo , 453 Mich 203, 215; 551 NW2d 891 (1996).

In doing so, we find that the error was harmless. The untaint ed evidence clearly supports a finding that defendant was guilty of felonious assault beyond a reasonable doubt. Defendant admitted at trial that he jumped out of his car with a knife an d threatened to cut the victim. The victim testified that he believed defendant’s threat, and the v ictim’s girlfriend telephoned the police. Although defendant asserted that he saw the victim wit h a gun, the evidence supported that the victim did not own a weapon or have one in the vehicle . Thus, although the improper admission of the MRE 404(b) evidence was likely prejudicial to defendant, the untainted evidence does not support that it was more probable than not th at the prior acts evidence affected the outcome of trial. Accordingl y, defendant is not entitled t o reversal of his conviction.

Affirmed.

/s/ Peter D. O’Connell /s/ David H. Sawyer /s/ Jane E. Markey