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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 12, 2015

v No. 318411
Kent Circuit Court WALTER OLIVER, JR., LC No. 12-011445-FH

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and M URPHY and H OEKSTRA , JJ.

P ER C URIAM

.

Defendant was convicted by a ju ry of arson (preparation to bur n property of $20,000 or more), MCL 750.77(1)(d)( i ), 1 and aggravated stalking, MCL 750.411i. Defendant was sentenced as a habitual offender, fourth-offense, MCL 769.12, t o 152 months’ to 50 years’ imprisonment. He appeals as of right. Because the trial court did not abuse its discretion by admitting relevant other-acts evidence in the form of prelimina ry examination testimony relating to a previous arson offense and de fendant is not entitled to re sentencing, we affirm.

For approximately two years, def endant and the victim in the c ase, Kartina Harrison, were involved in an intimate relationship. After the relations hip ended, defendant began stalking Harrison and she obtained a pers onal protection order against h im. Defendant’s stalking behavior included sending notes to Harrison, her family, her fr iends and even her employer. Defendant would also park his ve hicle outside Harrison’s apartm ent, or her place of work, and knock on the windows to her home. He similarly parked outside the home belonging to
Harrison’s mother when Harris on was visiting and he tapped on t he windows to the house.

Most significant to the present case, on November 26, 2012, ea rly in the morning hours before Harrison left for work, defendant tapped on her window a nd told her to “come outside because he was going to kill [her].” Harrison called the polic e, but defendant left before they arrived. A short time later, Harrison went to the dry cleaning business where she worked and she discovered defendant’s vehicle parked in front of the building. Some hours later, at

1 Defendant’s conviction arose under former MCL 750.77, as amend ed by 1998 PA 312. The
statute has since been amended. See 2012 PA 533.-2- approximately 1:00 p.m., Harrison heard a “big boom” at the bac k door. When she opened the door she could smell gasoline, she saw a gasoline can on the gr ound, and she saw that gasoline had been splattered over the back of the door. Forensic analys is of the liquid later confirmed the substance to be gasoline. When she went outside into the parki ng lot, Harrison also saw defendant at the scene. Specifically, she saw him “trotting” t oward his vehicle, and then he drove away. Later that day, H arrison found a butcher knife stu ck in her bedroom window.

Defendant’s conduct toward Harrison was not the first time tha t he had employed arson against a former romantic partner and, relying on MRE 404(b), t he prosecutor presented evidence of defendant’s past cr iminal conduct. In particular, in 1987, defendant pled guilty to a charge of arson in connection with his attempt to burn a house belonging to Betty Tucker, a woman who had at that time just recently ended a dating relatio nship with defendant. At the present trial, relying on MRE 804(b)(1), the prosecutor introdu ced Tucker’s preliminary examination testimony relating to the 1987 proceedings. Tucker testified that she and defendant had an argument on June 10, 1986, and that 20 minutes after def endant left the house, Tucker noticed a fire. Preliminary examination testimony relating to the 1986 arson was also presented from defendant’s sister, Miche lle Smith, who stated that defend ant told her he was not happy that his relationship with Tucker e nded “so he told [Smith] he set the fire because he was going to kill [Tucker].” Officer Peter Quic k, a police officer involved with investigating the 1986 arson, testified in person at the present trial. He explained that he responded to the incident at Tucker’s house where he found a gasoline can and a broken basement windo w. It appeared that the gasoline had been poure d through the broken window.

As noted, in the present case, the jury convicted defendant of preparation to burn and aggravated stalking. Defendant w as sentenced as previously set forth. He now appeals to this Court as of right.

Defendant first contests the admission of Tucker’s and Smith’s preliminary examination testimony relating to the 1986 arson. In particular, defendant challenges the trial court’s finding of due diligence under MRE 804(a)(5) with respect to the prosec utor’s efforts to locate Smith
and Tucker for trial. Defendant also maintains that the admiss ion of the preliminary examination testimony violated his ri ght to confrontation.

We review the trial court’s ruling on the admissibility of evi dence for an abuse of
discretion. People v Briseno , 211 Mich App 11, 14; 535 NW2d 559 (1995). An abuse of
discretion is found when the tri al court “chooses an outcome th at falls outside the range of reasonable and principled outcomes.” People v Unger , 278 Mich App 210, 217; 749 NW2d 272 (2008). Whether the prosecutor exercised due diligence to secu re witness testimony involves a finding of fact that will not be set aside absent clear error. Briseno , 211 Mich App at 14; MCR 2.613(C). A finding is clearly erroneous if it leaves this Cou rt with a “definite and firm
conviction that a mistake has been made.” People v McSwain , 259 Mich App 654, 682; 676 NW2d 236 (2003) (citation omitted).

Generally, hearsay—i.e., an out-o f-court statement offered to prove the truth of the matter
asserted—is not admissible. MRE 801(c); MRE 802. However, MRE 804(b)(1) provides that former testimony of a declarant, “given as a witness at another hearing of the same or a different proceedings,” is not excluded by the hearsay rule if the declar ant is “unavailable as a witness”-3- and “if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect e xamination.” Among other reasons, a declarant is unava ilable if the declarant

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attenda nce . . . by process or other re asonable means, and in a criminal case, due diligen ce is shown. [MRE 804(a)(5).]

The test for unavailability as described in MRE 804(a)(5) is, looking at the facts and circumstances of each case, whether the proponent “made a dilig ent good-faith effort in [his or her] attempt to locate a witness for trial.” People v Bean , 457 Mich 677, 684; 580 NW2d 390 (1998). This test is “one of reasonableness,” which means that this Court examines whether good-faith efforts were made as opposed to whether more stringe nt efforts would have been
successful. People v James (After Remand) , 192 Mich App 568, 571; 481 NW2d 715 (1992).

In this case, the trial court did not clearly err in finding t hat the prosecutor made a reasonable, diligent, and good-fa ith effort to locate the witne sses. The prosecutor intended to use defendant’s 1986 arson as other-acts evidence. Although the pr osecutor had been generally aware of defendant’s prior arson since the beginning of the cas e, she did not receive the case file relating to the 1986 arson until the week before trial. Upon f inding a preliminary examination transcript with the witnesses’ information in the file, the pro secutor and a detective searched social security records, Michigan Secretary of State records, p olice records, obituaries dating back to 1986, and Facebook. They also called a telephone numbe r contained in the old records, but the number now belonged to an architectural firm. Despite these efforts, they were ultimately unsuccessful in locating Tucker or Smith to testify.

In suggesting that these efforts were insufficient, defendant emphasizes that the prosecutor did not begin searchi ng for Tucker and Smith until t hree days before trial. He maintains the prosecutor’s efforts at that time were too little too late, and he compares the present facts to those in three cases: People v Dye , 431 Mich 58, 67-68; 427 NW2d 501 (1998);

Bean , 457 Mich at 685, 689; and James (After Remand) , 192 Mich App at 572. After reviewing these cases, we find the present case distinguishable. In thos e cases, the witnesses in question were res gestae witnesses of who m the prosecutor had long knownyet failed to maintain contact with and/or there was ample available information which the pol ice failed to utilize to locate the
witnesses. 2 In comparison, the witnesses in this case testified in a comp letely unrelated

2 See, e.g., Dye , 431 Mich at 67-68 (determining that the prosecutor did not sh ow due diligence where, after a mistrial, the prosecutor made no effort to re-lo cate witnesses, who were also accomplices to the crime, “even though the prosecution knew tha t the witnesses were needed, they had expressed an intention to leave the state, and had inc entives to go into hiding”); Bean

, 457 Mich at 685, 689 (concluding that police efforts involving phone calls and visits to the witness’s house were not indicative of due diligence when polic e had reason to believe the witness moved out of state but did not pursue other information , including the possibility of contacting known relatives and governmental agencies); James (After Remand) , 192 Mich App at 572 (finding a lack of due dili gence when, despite knowing o f a witness, there was no-4- preliminary examination more than 25 years before defendant’s c urrent trial. The prosecutor and police had no reason, and certain ly no obligation, to remain incontact with Tucker or Smith in the more than 25 years leading up defendant’s current trial. I nstead, as soon as the prosecutor obtained the relevant court file, she followed the relatively m inimal leads she had to find these witnesses, including searches based on dates of birth and a tel ephone number from the police report, but no efforts were successful and we fail to see what additional reasonable efforts the prosecution should have taken. Accordingly, the trial court’s finding of due diligence was not clearly erroneous, and the tria l court did not abuse its discre tion by admitting the former testimony under MRE 804(b)(1). Briseno , 211 Mich App at 14.

To the extent defendant also maintains that the admission of t his former testimony violated his right to confront ation, his argument is without me rit. Use of former testimony does not violate a defendant’s right t o confrontation provided that the witness is unavailable to testify
at trial and that the defendant had a prior opportunity to cros s-examine the witness. People v

Bennett , 290 Mich App 465, 481; 802 NW2d 627 (2010). In this case, as discussed, Tucker and Smith were unavailable to testify at trial. Moreover, defendan t had an opportunity to crossexamine these witnesses at the previous preliminary examination . Indeed, on appeal, defendant does not dispute that he had a previous opportunity for cross-e xamination; rather, he maintains this opportunity did not provide him with a chance to “fully” c ross-examine these witnesses because the “tactics and requirements” at a preliminary examina tion differ from those at trial. Contrary to defendant’s arguments, while there are certainly di fferences between a preliminary examination and a trial, a preliminary examination nonetheless affords a defendant an opportunity for effective cross-examination. See People v Meredith , 459 Mich 62, 67; 586 NW2d 538 (1998). The Confrontation Clause requires nothing mor e. See United States v

Owens , 484 US 554, 559; 108 S Ct 838, 842; 98 L Ed 2d 951 (1988) (“[ T]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (citation omitted)). In sum, because the witnesses were unavailable for trial and defendant had a prior opportunity for cross-examination, the admission of the former testimony at trial did not violate defendant’s right of confrontation. See Bennett , 290 Mich App at 481.

Next, defendant argues that the trial court abused its discret ion by admitting other-acts evidence relating to the 1986 arson under MRE 404(b). Specific ally, defendant emphasizes that
the 1986 arson occurred almost 30 years ago. He maintains that the other-acts evidence was improperly admitted as character evidence, that it was irreleva nt, and that any probative value was substantially outwei ghed by unfair prejudice.

We review a trial court’s decision to admit or exclude evidenc e for a clear abuse of
discretion. People v Starr , 457 Mich 490, 494; 577 NW2d 673 (1998). A n abuse of discreti on is
found when the trial court “chooses an outcome that falls outsi de the range of reasonable and principled outcomes.” Unger , 278 Mich App at 217.

evidence the prosecutor had a ny contact with the witness for al most 31⁄2 years between the time of the preliminary examinati on and the time of trial).-5- Evidence of crimes, wrongs, or o ther acts is inadmissible to s how a defendant’s propensity to act in conformity therewith. People v Crawford , 458 Mich 376, 383; 582 NW2d 785 (1998). Other-acts evidence, however, may be admissible un der MRE 404(b) for another purpose, such as proof of intent, scheme, plan or system in doi ng an act, or identity. MRE 404(b); People v Sabin (After Remand) , 463 Mich 43, 56; 614 NW2d 888 (2000). Efforts to introduce evidence under MRE 404(b) are evaluated under a four- part standard:

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 outweighedby unfair prejudice; fourth, that the tri al court may, upon request, prov ide a limiting instruction to the jury. [ People v VanderVliet , 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).]

The prosecutor bears the burden of showing that the evidence i s relevant to a proper purpose and is not being offered to prove defendant’s character or criminal propensity. People v

Mardlin , 487 Mich 609, 615; 790 NW2d 607 (2 010). Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is o f consequence to the determination of the action more probable or less probable than it would be without the
evidence.” MRE 401. Relevance re quires both materiality and p robative value. Crawford , 458
Mich 388. “Different theories of relevance require different d egrees of similarity between past acts and the charged offense to warrant admission.” Mardlin , 487 Mich at 622. For example,
evidence is relevant to show intent when the other acts are “of the same general category as the charged crime.” VanderVliet , 444 Mich at 79-80.

In this case, the trial court did not abuse its discretion in allowing the prosecutor to introduce evidence relating to d efendant’s arson in 1986. Firs t, the prosecutor offered the testimony relating to the 1986 arson for a proper purpose liste d in MRE 404(b), namely, to demonstrate defendant’s identity as the arsonist in this case a nd to establish his intent. The trial
court admitted the evidence ba sed on the conclusion that it was relevant to defe ndant’s intent.

Second, in terms of relevance, the evidence relating to the 19 86 arson was relevant to defendant’s intent. Intent was a material issue because, by pl eading not guilty, defendant placed all elements of preparation to burn at issue, including the req uirement that he have the intent “to willfully and maliciously set fire to or burn the building.” M CL 750.77(1)(d)( i ), as amended
1998 PA 312. See also Crawford , 458 Mich at 389. Indeed, given that no fire was actually started at Harrison’s workplace, the question of defendant’s in tent to burn the building was an important one at trial, and the prosecutor specified when argui ng for the admission of this
evidence that it would be relev ant to responding to claims by d efendant that he did not intend to burn the building. In short, given defendant’s not guilty plea and his assertions that there was no intent to burn the building, there can be no question that inte nt was a material issue.

Further, the evidence relating to the 1986 arson had significa nt probative value in regard to defendant’s intent in the present case. That is, the prior act and the charged crime were obviously of the “same general category.” In both instances, t he victim of defendant’s wrongdoing was a woman with whom defendant had recently ended a romantic relationship. In both cases, defendant expressed a desire to kill the victim aft er the relationship ended, and in-6- both cases defendant made use of gasoline in his efforts to ret aliate against the victim by pouring gasoline on a building occupied by the victim. Given these mar ked similarities, evidence relating to the 1986 arson was logi cally relevant to defendant’ s intent in the present case. 3

Third, the probative value of the other-acts evidence was not substantially outweighed by the danger of unfair prejudice. MRE 403. All relevant evidenc e is prejudicial to some extent, and its admission is not unfair merely because it is damaging t o defendant’s case. People v Murphy (On Remand) , 282 Mich App 571, 582-583; 766 NW2d 303 (2009). Instead, evid ence may be considered unfairly prejud icial only if the evidence “in ject[s] considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” People v Pickens

, 446 Mich 298, 337; 521 NW2d 797 (1994) (citation and quotation omitted). Evidence is also unfairly prejudicial if there exis ts a danger that the jury gav e marginally probative evidence undue or preemptive weight. Crawford , 458 Mich at 398.

Defendant’s claim of undue prejudice in this case relates to t he fact that the 1986 arson was committed approximately 27 years before the charged crime. Relevant to defendant’s argument, “[a]lthough there is no time limit applicable to the admissibility of the acts evidence,”
the remoteness in time between t he charged conduct and the prev ious acts may, in some cases, limit the logical relevance of the prior acts. People v Yost , 278 Mich App 341, 405; 749 NW2d 753 (2008). This is not true, however, when, despite a large t ime gap, there remains a high degree of similarity between the incidents. See People v Knapp , 244 Mich App 361, 380; 624 NW2d 227 (2001) (holding 20-year gap did not lessen prior acts high probative value where acts “mirrored” one another). In such circumstances, the remoteness of the previous act “only affects the weight of the evidence rather than its admissibility.” People v McGhee , 268 Mich App 600, 611-612; 709 NW2d 595 (2005).

3 The record indicates that the trial court initially admitted the evidence to show intent but later, it instructed the jury that the evidence could be used to show whether defendant acted purposefully, whether there was a common plan or scheme, or as proof of identity. Considering the startling similarity between the present crime and the arso n in 1986, beyond the issue of intent, we note that the 1986 arson evidences a common plan or scheme because the two crimes
share a “concurrence of common features” such that the acts “ar e naturally explained as manifestations of a general plan.” People v Hine , 467 Mich 242, 251; 650 NW2d 659 (2002). Therefore, the other-acts eviden ce was logically relevant to sh ow common plan or scheme. Similarly, the acts “were sufficiently alike to support an infe rence of criminal intent,” rather than a possibility of accident or mistake. See Mardlin , 487 Mich at 623-624. Whether the acts possessed a “special quality” that tends to prove defendant’s i dentity poses a somewhat closer question, but given the striking similarity between defendant’s conduct in 1986 and his conduct toward Harrison, we are persuaded that his efforts to harm form er girlfriends through the use of gasoline may be considered “so unusual and distinctive as to be like a signature.” See People v
Golochowicz , 413 Mich 298, 310; 319 NW2d 518 (1982); People v Waclawski , 286 Mich App 634, 674; 780 NW2d 321 (2009). Consequently, the trial court d id not abuse its discretion in instructing the jury on these purposes.-7- Consequently, in this case, despite the passage of approximate ly 27 years, the fact that defendant had committed an incredibly similar act of arson in t he past against a former girlfriend makes it more probable that defe ndant intended to burn the buil ding in the present case. 4 There
is no indication that evidence of the prior act was likely to i nject considerations extraneous to the merits of the case, Pickens , 446 Mich at 337, or was given undue or preemptive weight by t he jury, Crawford , 458 Mich at 398. Moreover, the trial court provided the jurywith two limiting instructions concerning this evi dence. A cautionary instructio n may limit the potential for undue prejudice, Murphy (On Remand) , 282 Mich App at 583, and jurors are presumed to follow their instructions, Waclawski , 286 Mich App at 674. On the whole, the trial court did not abuse its discretion by admitting the other-acts evidence.

Lastly, defendant argues that h e is entitled to resentencing. In particular, defendant
maintains that the trial court failed to articulate substantial and compelling reasons for its departure from the recommended minimum sentencing range under t he legislative guidelines.

Absent substantial and compelling reasons for a departure, a s entencing court is required to impose a minimum sentence within the recommended minimum sen tencing range calculated under the legislative guidelines. MCL 769.34(3); People v Babcock , 469 Mich 247, 264; 666 NW2d 231 (2003). Substantial and compelling reasons are those which “‘keenly’ or ‘irresistibly’ grab our attenti on” and are of “considerable wor th” in deciding the length of a

sentence. Babcock , 469 Mich at 257 (citation omitted). Substantial and compelli ng reasons are said to “exist only in exceptional cases.” Id. Moreover, only factors which are “objective and verifiable” may be used to judge whether substantial and compel ling reasons for departure exist.

Id.

On appeal, we review the existence or nonexistence of a reason given for departure for
clear error. Id. at 255. The conclusion that a r eason is objective and verifia ble is reviewed as a
matter of law. Id. “Whether the reasons given are substantial and compelling enoug h to justify the departure is reviewed for an abuse of discretion, as is the amount of the departure.” People v
Smith , 482 Mich 292, 300; 754 NW2d 284 (2008). “A trial court abuse s its discretion if the minimum sentence imposed falls ou tside the range of principled outcomes.” Id.

In this case, the trial court departed from the sentencing guid elines because it determined that “the sentencing guidelines substantially and remarkably un derstate the enormous seriousness
of the defendant’s criminalit y,” and specifically, “defendant’s continued pattern of using arson of buildings as a reaction to people who reject his affections in a dangerous, dangerous manner, unswayed by . . . over 20 years of incarceration, less than two years after being paroled, or less than three years after being pa roled, the defendant engages in similar conduct in the matter which

4 Indeed, while the jury was not advised of the time defendant s pent in prison, we note that, although 27 years elapsed between the two events, defendant spe nt most of those years in prison and he was not discharged until December of 2010. In other wor ds, while defendant’s 1986 arson may have happened long ago, he committed a remarkably sim ilar act within two years of his release from prison. In these circumstances, we cannot see that the passage of time lessened the evidence’s probative value.-8- give[s] rise to the instant convi ction.” The trial court speci fied that the sentencing guidelines did
not account for defendant’s “inte ntional, reckle ss, disregard o f human life and of property of others and the endangerment of ot hers that this defendant’s dem onstrated record of arson
reflects.” Given defendant’s conduct and his lack of rehabilit ation, that trial court concluded that defendant was “a very dangerous person” and that “it is a small miracle that he has not killed someone already.” In light of these substantial and compelling reasons, the trial court
determined that it would be “more accurate” to sentence defenda nt at the highest end for a class D offense; that, is in the range of 43 to 152 months, and the t rial court accordingly set
defendant’s minimum sentence at 152 months. See MCL 777.21(3); MCL 777.65.

On appeal, defendant contests whether the trial court offered substantial and compelling reasons for departure. First, he contends that the trial court relied on subjective beliefs when it determined defendant to be “very dangerous” and noted that it w as “a small miracle that he has not killed someone already.” T his argument lacks merit.

It is true that, a trial court’s opinion on a defendant’s gene ral criminal propensity may not by itself be an objective and verifiable factor. People v Horn , 279 Mich App 31, 44; 755 NW2d 212 (2008). But, “objective and verifiable factors underlying this belief—such as repeated offenses and failures at rehabilitation—constitute an acceptabl e justification for an upward departure.” Id. at 44-45. For example, a defend ant’s criminal history, the fa ilure of prison time to deter the defendant from criminal behavior, and a concern fo r the protection of society have been found to be valid justifications for departure. People v Solmonson , 261 Mich App 657, 671; 683 NW2d 761 (2004).

In this case, taken in context, the trial court’s conclusion t hat defendant was a “very dangerous” person, who was lucky not to have killed someone, wa s rooted in objective and verifiable factors, including defe ndant’s lack of rehabilitatio n despite more than 20 years’ incarceration and the startling pa ttern of his crimes against f ormer girlfriends. There is no merit
to defendant’s assertion that the trial court departed based on a subjective view of defendant’s criminality.

On appeal, defendant also argues that his prior record was alr eady accounted for in the sentencing guidelines, specifically under prior record variable (PRV) 1 and PRV 2. Relevant to this assertion, under MCL 769.34(3 )(b), a departure may not be based “on an offense characteristic or offender characteristic already taken into ac count in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has b een given disproportionate weight.” When relying on the defendant’s prior record as a substantial a nd compelling reason for departure, the trial court must a rticulate how the defendant’s prior record received inadequate weight within the sentencing guidelines. People v Hornsby , 251 Mich App 462, 474; 650 NW2d 700 (2002). The trial court did so in this case, plainly detai ling, in light of defendant’s lack of rehabilitation and his striking pattern of conduct, the reasons why the extent of defendant’s criminal history was not adequately accounted for by the senten cing guideline range; thus, this argument is without merit.

Finally, we find that the reasons articulated by the trial cou rt “keenly” or “irresistibly” grab the court’s attention and ar e “of considerable worth” in d etermining defendant’s sentence.-9- Smith , 482 Mich at 299. Given defendant’s deliberate pattern of con duct, and notably the fact
that he committed the instant offense so soon after his release from prison, this case is certainly an “exceptional case.” Babcock , 469 Mich at 257. For these r easons, we find that the trial c ourt did not abuse its discretion by fi nding substantial and compell ing reasons to depart from the sentencing guidelines and to im pose a sentence of 152 months’ t o 50 years’ imprisonment.

Affirmed.

/s/ Michael J. Kelly /s/ William B. Murphy
/s/ Joel P. Hoekstra