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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,

UNPUBLISHED

September 20, 2018

v Nos. 337638; 337656

Oakland Circuit Court

ROGELIO ROLANDO HAMILTON, LC Nos. 2016-259138-FC; 

2016-259406-FC

Defendant-Appellant.

Before: O’CONNELL, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

I. DOCKET NO. 337638

Defendant appeals as of right his jury convictions on two counts of first-degree criminal 

sexual conduct (CSC-I), MCL 750.520b(1)(b) (sexual penetration with a blood relative between 

13 and 16 years old), and one count of second-degree criminal sexual conduct (CSC-II), MCL 

750.520c(1)(b) (sexual contact with a blood relative between 13 and 16 years old). Defendant 

was sentenced, as a fourth habitual offender, MCL 769.12, to two concurrent terms of 37 to 60 

years’ imprisonment for the CSC-I convictions, and a consecutive term of 19 to 60 years’

imprisonment for the CSC-II conviction. The trial court erroneously ordered defendant to serve 

his sentence for the CSC-II conviction consecutive to the sentence for his first count of CSC-I, 

rather than serving his CSC-I conviction consecutive to his CSC-II conviction. We affirm 

defendant’s convictions and sentences, but remand for the ministerial correction of the judgment 

of sentence.

II. DOCKET NO. 337656

Defendant also appeals as of right his jury convictions of CSC-I, MCL 750.520b(1)(b) 

(sexual penetration with a blood relative between 13 and 16 years old), and CSC-II, MCL 

750.520c(1)(b) (sexual contact with a blood relative between 13 and 16 years old). Defendant 

was sentenced, as a fourth habitual offender, MCL 769.12, to 37 to 60 years’ imprisonment for 

the CSC-I conviction, and 19 to 60 years’ imprisonment for the CSC-II conviction. Again, the 

trial court erroneously ordered defendant to serve the sentence for the CSC-II conviction 

consecutive to the sentence for the CSC-I conviction. The judgment of sentence also 

erroneously states that defendant was sentenced to 16 to 60 years’ imprisonment for the CSC-II 

conviction in this case, which appears to be a typographical error because the trial court actually 

sentenced defendant to 19 to 60 years’ imprisonment for the CSC-II conviction. We affirm
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defendant’s convictions and sentences, but remand to the trial court for ministerial correction of 

the judgment of sentence.

III. FACTUAL BACKGROUND

These consolidated cases1 arise out of defendant’s sexual abuse of two of his daughters, 

RH and MH, between 2012 and 2015. The incidents of sexual abuse for which defendant was 

charged and convicted began in 2012, although defendant began exhibiting sexually abusive 

behavior toward RH and MH when they were between the ages of 8 and 10. Defendant’s sexual 

abuse of RH and MH included non-penetrative touching of their breasts and buttocks, as well as 

digital-vaginal penetration.

IV. EVIDENCE OF OTHER ACTS

Defendant argues that the trial court abused its discretion and denied him due process and 

a fair trial by allowing the prosecution to introduce evidence of other uncharged acts of sexual

abuse committed against RH and MH, as well as sexually abusive behavior toward his eldest 

daughter, KH. We disagree.

“ ‘The decision whether to admit evidence falls within a trial court’s discretion and will 

be reversed only when there is an abuse of that discretion.’ ” People v Jackson, 498 Mich 246, 

257; 869 NW2d 253 (2015) (citation omitted). An abuse of discretion occurs when the trial 

court incorrectly interprets a rule of evidence, id., and when the trial court “chooses an outcome 

that falls outside the range of reasonable and principled outcomes,” People v Unger, 278 Mich 

App 210, 217; 749 NW2d 272 (2008).

MRE 404(b)(1) governs other-acts evidence, and provides:

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. It may, however, be 

admissible for other purposes, such as proof of motive, opportunity, intent, 

preparation, scheme, plan, or system in doing an act, knowledge, identity, or 

absence of mistake or accident when the same is material, whether such other 

crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the 

conduct at issue in the case.

Our Supreme Court has adopted a four-part test to determine the admissibility of MRE 404(b) or 

other-acts evidence:

First, that the evidence 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 trial court may, upon request, provide a limiting 

 1 People v Hamilton, unpublished order of the Court of Appeals, entered April 5, 2017 (Docket 

No. 337638). This order consolidated Docket No. 337638 with Docket No. 337656.
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instruction to the jury. [People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 

(1993), amended 445 Mich 1205 (1994).]

Thus, the evidence of other acts must be offered “under something other than a character or 

propensity theory,” i.e., for a proper purpose. People v Knox, 469 Mich 502, 509; 674 NW2d 

366 (2004). The evidence of other acts must also be relevant and the prosecutor bears the burden 

of establishing relevance. Id. “ ‘Relevance is a relationship between the evidence and a material 

fact at issue that must be demonstrated by reasonable inferences that make a material fact at issue 

more probable or less probable than it would be without the evidence.’ ” Id. at 509-510 (citation 

omitted). Accordingly, if the evidence is only relevant because it shows the defendant’s

character or his propensity to commit a certain crime, then it must be excluded. Id. at 510. “At 

its essence, MRE 404(b) is a rule of inclusion, allowing relevant other acts evidence as long as it 

is not being admitted solely to demonstrate criminal propensity.” People v Martzke, 251 Mich 

App 282, 289; 651 NW2d 490 (2002). However, “the probative value of the evidence must not 

be substantially outweighed by unfair prejudice under MRE 403.” Knox, 469 Mich at 509.

Prior to trial in this case, the prosecution filed a motion to introduce other-acts evidence 

under MRE 404(b), which was granted. The other-acts evidence related to RH included:

a) Defendant began sexually assaulting his daughter, [RH], when she was eight 

or nine years old. The assaults continued until she was approximately fifteen 

years old. One of the earliest memories she has is when she was lying in bed with 

Defendant and he pushed her head toward his groin area. [RH] left the bed and 

exited the room. Thereafter, Defendant sexually assaulted [RH] approximately 

fifteen to twenty times . . . . These sexual assaults involved Defendant slapping 

her butt, pulling her nipples, groping her breasts, and rubbing and digitally 

penetrating her vagina. On one occasion, she sat next to Defendant on the couch 

in their home . . . . [Defendant] was next to [RH] on the couch and he fondled her 

breasts. [RH] looked over at [defendant] and his penis was erect. The majority of 

the aforementioned sexual assaults involved Defendant fondling [RH’s] breasts 

underneath her shirt.

The prosecution also sought to introduce evidence that defendant would walk around the house 

in his underwear with his penis visible, and would enter the bathroom when RH was in there 

taking a shower or using the toilet. He would also make inappropriate comments to RH like: “If 

you weren’t my daughter I would fuck you.”

The other-acts evidence related to MH that the prosecutor sought to admit included an 

incident in which defendant came into the bathroom while she was in the shower and attempted 

to help her wash her hair and body. That night while MH’s was sleeping, she felt defendant’s 

hand feeling her breasts over her clothes and then he put his hand down her pants and underneath 

her underwear. First he rubbed her, and then he put his fingers inside her vagina. Defendant 

would also slap her butt, make attempts at putting his hands underneath her shirt, walk around in 

his underwear with his penis visible, and would enter the bathroom when MH was in there taking 

a shower or using the toilet.
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The prosecutor also sought to admit other-acts evidence related to defendant’s eldest 

daughter, KH, including that defendant would slap her on the butt, rub her stomach underneath 

her clothing, walk around in his underwear with his penis visible, enter the bathroom when KH 

was in there taking a shower or using the toilet, and make inappropriate comments to KH like 

that she looked “fuckable.”

The prosecution argued that all of this other-acts evidence was relevant and should be 

admitted under MRE 404(b) because it demonstrated that defendant intended to sexually assault 

RH and MH, and that he had employed a similar pattern of behavior over the course of many 

years by exhibiting sexually abusive behaviors toward RH, MH, and KH. The evidence showed 

defendant’s common plan or scheme to groom and desexualize his daughters and was necessary 

to rebut defendant’s argument that RH and MH fabricated the incidents. Further, this evidence 

was not unfairly prejudicial to defendant. The trial court agreed with the prosecution and the 

evidence was admitted. On appeal, defendant argues that the evidence should not have been 

admitted because it was not probative or relevant to the crimes of which he was accused and was 

unfairly prejudicial. We do not agree.

“Evidence of uncharged acts may be admissible to show that the charged act occurred if 

the uncharged acts and the charged act are sufficiently similar to support an inference that they 

are manifestations of a common plan or scheme.” People v Kahley, 277 Mich App 182, 185; 744 

NW2d 194 (2007). Defendant sexually assaulted RH and MH in similar ways, beginning in 

childhood and persisting into adolescence. In both RH’s and MH’s circumstances, defendant 

exhibited similar sexually abusive behaviors, including rubbing their stomachs and breasts, 

slapping their buttocks, and purposely walking in on them while they were showering or using 

the toilet. In both cases, defendant’s behavior eventually escalated from non-penetrative 

touching—some instances of which he was not charged for—to the more severe crime of digital 

penetration, for which he was charged and convicted. “Under these circumstances, the charged 

act[s] and the uncharged act[s] are sufficiently similar to show that defendant engaged in a 

common plan or scheme.” Id. In other words, as the prosecution argued, an inference arises that 

defendant’s scheme or plan, as well as intent, was to engage in less intrusive forms of sexual 

touching and behaviors with his daughters in the beginning in an effort to groom and desexualize 

them before escalating his sexual behavior and committing the charged acts. Furthermore, 

because the evidence was sufficient to create an inference that defendant utilized a common plan 

or scheme, “the evidence was relevant to whether the charged crime occurred.” Id. We also 

agree with the prosecution that the other-acts evidence related to RH, MH, and KH explains and 

gives context to the charged offenses, and bears on the credibility of the witnesses. See People v 

Dobek, 274 Mich App 58, 89-91; 732 NW2d 546 (2007).

Further, the probative value of the other-acts evidence introduced at trial was not 

substantially outweighed by any unfair prejudice to defendant. The evidence was highly 

probative because it was relevant to the issue of whether defendant sexually assaulted RH and 

MH. And, while the evidence may have been prejudicial to defendant’s case, it was not unfairly 

prejudicial. See People v Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995). Moreover, the 

trial court instructed the jury regarding the weight and purpose that they should assign to 

evidence of other acts. The trial court stated as follows:
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You have heard evidence that was introduced to show that the defendant 

committed improper acts for which he is not on trial. If you believe this evidence 

you must be very careful only to consider it for certain purposes. You may only 

think about whether this evidence tends to show that defendant used a plan, 

system, or characteristic scheme that he has used before or since. 

You must not consider this evidence for any other purpose. For example, 

you must not decide it shows that the defendant is a bad person or that he is likely 

to commit crimes.

This limiting instruction was sufficient to inform the jury that it was only permitted to consider 

the evidence of other acts for the specific purpose of determining whether defendant acted in 

conformity with a common plan or scheme. Limiting instructions protect a defendant’s right to a 

fair trial. People v Smith, 243 Mich App 657, 675; 625 NW2d 46 (2000). Thus, the trial court 

did not abuse its discretion by admitting evidence of other acts of sexual abuse against RH, MH, 

and KH, and defendant’s due process rights were not violated by the introduction of such 

evidence. Accordingly, defendant’s claim is without merit.2

V. CONSECUTIVE SENTENCING

Defendant argues that the trial court abused its discretion by imposing consecutive 

sentences because his CSC-I and CSC-II crimes did not arise out of the same transaction or 

offense. We disagree.

“[W]hen a statute grants a trial court discretion to impose a consecutive sentence, the trial 

court’s decision to do so is reviewed for an abuse of discretion, i.e., whether the trial court’s 

decision was outside the range of reasonable and principled outcomes.” People v Norfleet, 317 

Mich App 649, 654; 897 NW2d 195 (2016).

While concurrent sentencing is the norm in Michigan, a consecutive sentence may be 

imposed if authorized by statute. People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012) 

(citation omitted). The CSC I statute, MCL 750.520b, does authorize a consecutive sentence as 

follows:

The court may order a term of imprisonment imposed under this section to be 

served consecutively to any term of imprisonment imposed for any other criminal 

offense arising from the same transaction. [MCL 750.520b(3).]

Although the term “same transaction” is not explicitly defined in the statute, in order for two or 

more separate offenses to be seen as occurring within the same transaction, they must have “a 

connective relationship . . . of more than an incidental sort . . . .” Ryan, 295 Mich App at 402-

403 (citation omitted). In the context of MCL 750.520b(3), a defendant must commit both CSC-

 2 Because we conclude that the challenged evidence was admissible under MRE 404(b), we need 

not consider whether it was also admissible under MCL 768.27a.
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I and CSC-II in the same “transaction,” with “no relevant disruption in time or in the flow of 

events between the two distinct offenses.” Id. at 404; see also People v DeLeon, 317 Mich App 

714, 721-722; 895 NW2d 577 (2016).

In Docket No. 337638, defendant was convicted of two counts of CSC-I [one as to RH 

and one as to MH] and one count of CSC-II [as to RH]. Defendant was convicted of the first 

count of CSC-I (Count I) and of CSC-II (Count III), based on his sexual assault of RH. The trial 

court imposed consecutive sentences for Counts I and III. Counts I and III arose out of one 

transaction, wherein defendant inserted his fingers beyond RH’s labia and touched her breasts 

while she was laying on a bed. Because these two criminal acts arose out of the same transaction 

or occurrence, the trial court had the discretion to impose consecutive sentences for defendant’s 

resulting CSC-I and CSC-III convictions.

Similarly, in Docket No. 337656, defendant was convicted of one count of CSC-I as to 

RH (Count I) and one count of CSC-II as to RH (Count II). These convictions also arose out of a 

single incident of sexual abuse against RH, wherein defendant touched RH’s breasts and digitally 

penetrated her. Again, the actions that led to defendant’s convictions arose out of the same 

transaction or occurrence, with no disruption in time between the act leading to the CSC-I 

conviction and the act leading to the CSC-II conviction. Therefore, trial court’s decision to 

impose consecutive sentences on defendant, as permitted by MCL 750.520b(3), did not fall 

outside the range of reasonable and principled outcomes, and thus, did not constitute an abuse of 

discretion.

On appeal, the prosecution correctly observes that the trial court erroneously transposed 

the order of defendant’s sentences. In both Docket Nos. 337638 and 337656, the trial court 

ordered that defendant must serve his CSC-II sentence consecutive to his CSC-I sentence. The 

language of MCL 750.520b(3) provides, instead, that the sentences for defendant’s CSC-I 

convictions must be served consecutive to the sentences for his CSC-II convictions. That is so 

because the trial court is only statutorily permitted to “order a term of imprisonment imposed”

for CSC-I to be “served consecutively to any term of imprisonment imposed for any other 

criminal offense,” such as CSC-II. MCL 750.520b(3); see also DeLeon, 317 Mich App at 721-

722. Accordingly, the prosecution has correctly pointed out that ministerial correction of the 

judgments of sentence is warranted. This Court also observes that the judgment of sentence in 

Docket No. 337656 indicates that defendant was sentenced to 16 to 60 years’ imprisonment for 

the CSC-II conviction, but the trial court actually sentenced him to 19 to 60 years’ imprisonment. 

The mistake on the judgment of sentence appears to be a typographical error requiring 

ministerial correction.
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We affirm defendant’s convictions and sentences, but remand for the ministerial 

correction of the judgments of sentence to reflect that defendant was sentenced to 19 to 60 years’

imprisonment for the CSC-II conviction in Docket No. 337656, and the sentences for 

defendant’s CSC-I convictions must be served consecutive to the sentences for his CSC-II 

convictions, in accordance with MCL 750.520b(3). We do not retain jurisdiction.

/s/ Peter D. O’Connell

/s/ Mark J. Cavanagh

/s/ Deborah A. Servitto