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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

FOR PUBLICATION

June 26, 2018

v No. 330215

Muskegon Circuit Court

ANTONIO WANYA CRAWFORD, LC No. 14-065291-FC

Defendant-Appellant.

ON REMAND

Before: MARKEY, P.J., and MURPHY and METER, JJ.

MARKEY, P.J. (concurring in part, dissenting part)

I concur in the result reached by the majority, but I respectfully disagree that the otheracts evidence in this case, a 2011 robbery that defendant committed, was relevant to prove the 

proper purpose of defendant’s intent without operating through the propensity inference that 

MRE 404(b) prohibits. According, I conclude, as our Supreme Court did in People v Crawford, 

458 Mich 376, 397; 582 NW2d 785 (1998), “[b]ecause MRE 404(b) expressly prohibits the use 

of prior bad acts to demonstrate a defendant’s propensity to form a certain mens rea, . . . the trial 

court abused its discretion in admitting evidence of the defendant’s prior” robbery. 

Nevertheless, I agree with the majority and this Court’s prior opinion that the evidentiary error in 

admitting the other-acts evidence was harmless. People v Crawford, unpublished per curiam 

opinion of the Court of Appeals, issued May 16, 2017 (Docket No. 330215), slip op at 6, n 3, 

citing People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).

Following a jury trial, defendant was convicted of two counts of armed robbery, MCL 

750.529, and the trial court sentenced him to concurrent terms of 91⁄2 to 32 years imprisonment. 

On his appeal by right, this Court affirmed defendant’s convictions and sentences. In lieu of 

granting leave to appeal, our Supreme Court vacated the part of this Court’s opinion “addressing 

whether the other-acts was probative of defendant’s intent,” and remanded this case to this Court 

for reconsideration in light of People v Denson, 500 Mich 385 (2017).” People Crawford, __ 

Mich __; 906 NW2d 789 (2018). This Court is directed to “reconsider whether the other-acts 

evidence was relevant to show the necessary intent for armed robbery and not merely propensity 

for wrongdoing.” Id. In all other respects, the Court denied defendant leave to appeal. Id. 
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On reconsideration, I conclude that the trial court abused its discretion by admitting the 

other-acts evidence. The evidence of the prior robbery was only marginally probative of 

defendant’s intent regarding the charged armed robbery, and I believe only operated to show his 

intent through the prohibited inference of propensity. The evidence sought to negate defendant’s 

statement of innocent intent regarding his conduct before the robbery occurred, a point when 

defendant’s intent was of little consequence. More important, the prosecution did not establish a 

logical intermediate inference, other than propensity, through which the evidence was material 

and probative of the necessary intent for robbery. 

“MRE 404(b) prohibits the admission of other-acts evidence when the prosecution’s only 

theory of relevance is that the other act demonstrates the defendant’s inclination for wrongdoing 

in general and thus indicates that the defendant committed the conduct in question.” People v 

Denson, 500 Mich 385, 398; 902 NW2d 306 (2017). Also, the prosecution bears the burden of 

articulating a proper noncharacter purpose for the other-acts evidence. Id. More is required than 

a rote incantation of a permissible purpose; the prosecution must explain how the evidence 

relates to the proper purpose other than through propensity. Id. at 400. “[M]erely reciting a 

proper purpose does not actually demonstrate the existence of a proper purpose for the particular 

other-acts evidence at issue and does not automatically render the evidence admissible.” Id. 

The Denson Court further stressed that trial courts must closely scrutinize the logical link 

between the other-acts evidence and the asserted proper, non-propensity purpose. Indeed, logical 

relevance is the “touchstone” of admissibility of other-acts evidence, which requires showing 

both materiality and probative value. Denson, 500 Mich at 400-401. “Materiality is the 

requirement that the other-acts evidence be related to” a consequential fact. Id. at 401. Evidence 

has probative value when it is relevant, “having any tendency to make the existence of any 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; Denson, 500 Mich at 401-402. The prosecution 

must assert not only a proper purpose for the evidence but also “explain how the evidence is 

relevant to that purpose without relying on a propensity inference.” Denson, 500 Mich at 402

(emphasis added). I conclude the prosecution failed to articulate an intermediate, non-propensity 

inference through which the prior robbery tended to prove defendant’s intent in this case. 

The intent necessary for the offense of armed robbery is the intent necessary to commit 

larceny. People v Williams, 288 Mich App 67, 76; 792 NW2d 384 (2010). The intent necessary 

to commit larceny is supplied by the common law, which is the intent to steal another’s property 

or to permanently deprive the owner of his or her property. People v March, 499 Mich 389, 401;

886 NW2d 396 (2016); People v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). 

By definition, the necessary intent for robbery must exist while the defendant is “in the course of 

committing a larceny,” MCL 750.530(1), which “includes acts that occur in an attempt to 

commit the larceny, or during commission of the larceny, or in flight or attempted flight after the 

commission of the larceny, or in an attempt to retain possession of the property.” MCL 

750.530(2). In other words, defendant’s intent before attempting to commit a larceny is not a 

fact necessary to prove the offense of robbery but may, of course, be probative of defendant’s 

future intent while “in the course of committing a larceny.” MCL 750.530. 

In my view, the prosecution has failed to meet its burden of showing that the other-acts 

evidence is logically relevant to the asserted proper purpose of intent through some intermediate 
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inference other than propensity. Denson, 500 Mich at 402. The prosecution contended that the 

other-acts evidence was relevant to show a scheme, plan, or system of doing an act. But this 

Court determined that there were insufficient similarities between the charged offense and the 

prior act for the other-acts evidence to be admitted under this theory. See Crawford, unpub op at 

5-6; see also Denson, 500 Mich at 403 (“If the prosecution creates a theory of relevance based on 

the alleged similarity between a defendant’s other act and the charged offense, we require a 

‘striking similarity’ between the two acts to find the other act admissible.”). 

The majority concludes “that admission of the other-acts evidence served the proper 

purpose of showing defendant’s ‘intent,’ ” and also “that the prosecutor established the proper 

intermediate inference of ‘intent’ arising from the other-acts evidence, and not the improper 

inference of character or propensity to commit the crime.” In other words, “intent” serves both 

as the proper fact sought be proved and the intermediate non-propensity inference to get to that 

proper fact. The majority finds support in People v VanderVliet, 444 Mich 52, 79-80; 508 

NW2d 114 (1993), in which the Court opined that “[w]hen other acts are offered to show intent, 

logical relevance dictates only that the charged crime and the proffered other acts are of the same 

general category,” (emphasis added; quotation marks omitted), and also noting that mens rea or 

lack of accident are permissible intermediate inferences, id. at 87. But VanderVliet also instructs 

that a proper MRE 404(b) purpose, such as intent, may not be proved when it is proved through 

the prohibited inference arising from character or propensity. Id. at 63-64. 

I simply do not agree that the prior robbery shows defendant’s “intent” by any inference 

other than that defendant has the propensity to commit such crimes. As explained by the Court 

in Crawford, 458 Mich at 392-393, other-acts evidence may prove intent through the nonpropensity theory of the “doctrine of chances” or “doctrine of objective improbability.” See also 

VanderVliet, 444 Mich at 79 n 35. This theory “rests on the premise that ‘the more often the 

defendant commits an actus reus, the less is the likelihood that the defendant acted accidentally 

or innocently.’ ” Crawford, 458 Mich at 393 (citation omitted). But because intent in some form 

is almost always an element of the crime, merely asserting that the other-acts will prove intent is 

insufficient and must be closely scrutinized by courts. See id. at 394; Denson, 500 Mich at 400. 

For evidence to be admissible under the theory of the doctrine of chances to prove intent, there 

must be a close factual nexus in terms of similarity between the evidence and the charged 

offense. Crawford, 458 Mich at 395, n 12, n 13. “If the prosecution creates a theory of 

relevance based on the alleged similarity between a defendant’s other act and the charged 

offense, we require a ‘striking similarity’ between the two acts to find the other act admissible.” 

Denson, 500 Mich at 403. In this case, the prior robbery is logically relevant to defendant’s 

intent only if, because the two events are so similar, it may be inferred that defendant possessed 

the intent to commit robbery on each occasion. But this Court held in our prior opinion that the 

two robberies were not sufficiently similar to be admitted on this basis. Crawford, unpub op at 

5-6. In my opinion, merely asserting “intent” is both the proper purpose and the non-character 

intermediate inference of the prior robbery does not render it admissible. 

Despite my disagreement with the majority concerning admissibly, I concur that the error 

in this case was harmless. Under the harmless-error rule, “the effect of the error is evaluated by 

assessing it in the context of the untainted evidence to determine whether it is more probable 

than not that a different outcome would have resulted without the error.” Lukity, 460 Mich at 

495. In sum, “nonconstitutional error is not a ground for reversal unless ‘after an examination of 
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the entire cause, it shall affirmatively appear’ that it is more probable than not that the error was 

outcome determinative.” Id. at 495-496, citing MCL 769.26. 

Unlike Denson, 500 Mich at 410, the untainted evidence of defendant’s guilt in this case 

was overwhelming. At trial, the testimony of Kammers and Ribon regarding the robbery was 

generally consistent. Kammers and Ribon identified defendant as the perpetrator at trial and 

throughout the investigation. Kammers testified that defendant had identified himself as Hicks, 

and other evidence showed that Hicks looked nothing like defendant and that there was 

animosity between defendant and Hicks. One witness testified that defendant would use Hicks’s 

name because defendant would not care if Hicks got into trouble. 

Further, evidence of defendant’s own actions indicated consciousness of guilt. Defendant 

gave the police conflicting statements regarding his whereabouts and conduct on August 9, 2014. 

Defendant made a late statement that placed him at Hackley Hospital meeting the victims 

concerning a video game they had for sale. Further testimony showed that, before trial, 

defendant approached Kammers and asked him to state on camera that defendant was not the 

person who robbed him and that the police had given him defendant’s name. Consequently, it 

does not affirmatively appear more probable than not that the error in the admission of evidence 

of the 2011 robbery was outcome determinative. Lukity, 460 Mich at 495-496. Therefore, I 

would again affirm defendant’s convictions and sentences. 

/s/ Jane E. Markey