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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 14, 2016

v No. 325198 Wayne Circuit Court MAKALANI HAMADI DANIELS, LC No. 14-005154-FC

Defendant-Appellant.

Before: O’C ONNELL , P.J., and M ARKEY and O’B RIEN , JJ.

P ER C URIAM

. Defendant, Makalani Hamadi Daniels, appeals as of right his co nviction, following a bench trial, of kidnapping, MCL 750.349(1)(c), and first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(c) and (e). The trial court sentenced Dani els to serve 12 to 25 years’ imprisonment for both o ffenses. We affirm.

I. FACTUAL BACKGROUND

According to the victim, in September 2003, she took a cab to her boyfriend’s house on the west side of Detroit one eve ning. They argued, and after t he argument escalated into a physical fight, the victim left her boyfriend’s home at between 11:00 p.m. and midnight. As she waited at a bus stop, Daniels dr ove up and stopped at the curb nearby. Daniels pointed a gun at the victim and told her to get into the car. When the victim w as in the car, Daniels drove her to an alley, climbed into the victim’s seat, and sexually assaulte d her. Afterward, he pushed the victim out of the car, threw her clothes out after her, and dro ve away.
The prosecution also admitted the evidence of others acts witn esses. According to the first witness, she met Daniels through a friend in 2009. At ar ound 2:00 or 3:00 a.m. in May 2009, the first witness was getting ready to walk to a gas stat ion when Daniels called her and invited her to “hang out.” Daniels picked her up while she was walking. As soon as the first witness got into the car, Daniels “pulled a gun on [her].” At first, she thought he was joking, but he drove to an empty street and parked. While in the car, Dani els made her perform fellatio and had vaginal intercourse with her . When Daniels finished, the w itness left the car.

According to the second witness, at about 5:30 a.m. on a morni ng in April 2014, she was waiting at a bus stop to catch a bus to work. While she was wa iting for the bus, Daniels approached her in a car and offered to pay her for sexual servi ces. The second witness declined-2- and told Daniels she was on her way to work. Daniels grabbed t he second witness and dragged her into the car. He then drove to an alley, where he made the second witness perform fellatio before he had vaginal intercour se with her. He then forced the second witness out of the car and threw her belongings out after her.

A variety of other witnesses, including police officers and a DNA analyst, testified at defendant’s bench trial. Though DN A samples were collected in a rape kit after the offense, they were not tested until recently. The DNA analyst testified that the likelihood that a random person was the major DNA donor to the victim’s rape kit was “on e in 51.15 quintillion for whites, one in 299 quadrillion for blacks, and one in 3.067 qui ntillion for Hispanics.” Daniels testified that each of the witnesse s was a prostitute whom he a ccidentally failed to pay.

Following the trial, the trial court found that it believed th e victim. The testimonies of the police officers and a nurse at the hospital corroborated th e victim’s condition, and DNA testing indicated Daniels was the major donor to sperm found on the victim. The trial court found that it could not credit defendant’s testimony that all t hree women were prostitutes that he had accidentally failed to pay because that number of coinciden ces was unlikely. It ultimately found Daniels guilty of kidnapping and CSC I.

II. STANDARD OF REVIEW

This Court reviews for an abuse of discretion preserved challe nges to the trial court’s evidentiary rulings. People v Duncan , 494 Mich 713, 722; 835 NW2d 399 (2013). We review de novo the preliminary questions of law surrounding the admiss ion of evidence, such as whether a rule of evide nce bars admitting it. Id . at 723.

III. ANALYSIS

Daniels contends that the other-acts evidence was inadmissible because it was not relevant and there were not enough common factors to demonstrat e that the assaults were part of a common scheme. We disagree.

Generally, MRE 404 prohibits a party from introducing evidence of another party’s other crimes, wrongs, or acts to prove that person’s character or pro pensity to engage in that type of action. Such evidence

may, however, be admissible for other purposes, such as proof o f motive, opportunity, intent, preparation, scheme, plan, or system in do ing an act, knowledge, identity, or absence of mistake or accident when the same is material . . . . [MRE 404(b)(1).]

“Evidence relevant to a noncharacter purpose is admissible unde r MRE 404(b) even if it also reflects on a defendant’s character.” People v Mardlin , 487 Mich 609, 615-616; 790 NW2d 607 (2010) (emphasis removed). The trial court properly admits oth er acts evidence if the proponent establishes that (1) it is offering the evidence for a proper p urpose, (2) the evidence is relevant to a fact of consequence at trial, and (3) the evidence is not sub stantially more prejudicial than probative. People v Sabin (After Remand) , 463 Mich 43, 55-56; 614 NW2d 888 (2000).-3- In this case, the trial court admitted the evidence as evidenc e of a common scheme and evidence that the victim did not consent to defendant’s conduct . Other acts are admissible as part of a defendant’s common sche me if the defendant’s actions show “common features indicating a common design” to an extent that they “indicate th e existence of a plan rather than a series of similar spontaneous acts[.]” Id . at 65-66. Common schemes need not be identical and need only show sufficient common features to support the infere nce that such features are part of a general plan. Id . at 64-65.

The trial court may admit other-acts evidence when a defendant ’s use of a common plan tends to show that it is less likely that the complainant conse nted to the conduct, including schemes that a defendant uses “to give the appearance of consen t and make proof of nonconsent difficult.” People v Oliphant , 399 Mich 472, 491; 250 NW2d 443 (1976). An unusual frequency of events indicates that the ev ents are logically relevant:

If a type of event linked to the defendant occurs with unusual frequency, evidence of the occurrences may be probative . . . because it is objecti vely improbable that such events occur so often in relation to the same person due t o mere happenstance. [ Mardlin , 487 Mich at 617.]

In this case, the victim and witnesses were all women alone at night. All the women were on foot and accosted by a lone driver on a public way. Th e driver drove each woman to a nearby, isolated area and had sex with her against her will in the vehicle. In two instances, the driver threw the woman’s belongin gs out into the street before driving off. Even though one witness was acquainted with Daniels and willingly got into the vehicle, and one witness did not testify that the conduct was at gunpoint, there are sufficient similarities in the acts to demonstrate a common scheme. This evidence tended to make it less likely t hat the victim had consented to defendant’s conduct and made it highly unlikely that the circum stances were coincidental. We conclude that the trial court pr operly determined that the othe r acts evidence was relevant under MRE 404(b).

We affirm.

/s/ Peter D. O’Connell /s/ Jane E. Markey /s/ Colleen A. O’Brien