People v. Berklund

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRADLEY ALAN BERKLUND, Defendant-Appellant.

No. 367568

Court of Appeals of Michigan

October 23, 2024

Newaygo Circuit Court LC No. 2023-013203-FH

Before: N. P. Hood, P.J., and O'Brien and Redford, JJ.

O'Brien, J.

In this interlocutory appeal, defendant, on leave granted,^[1] challenges the trial court's decision under MCL 768.27b(1) to allow the prosecution to introduce evidence that defendant previously committed sexual assault. Defendant is facing trial for one count of assault with intent to do great bodily harm less than murder or by strangulation, MCL 750.84(1)(a) or (b), and one count of unlawful imprisonment, MCL 750.349b(1)(c), for allegedly assaulting KR, who used to reside with defendant and his wife.

MCL 768.27b(1) provides, "Except as provided in subsection (4), in a criminal action in which the defendant is accused of an offense involving domestic violence or sexual assault evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible for any purpose for which it is relevant, if it is not otherwise excluded under" MRE 403. In his brief on appeal defendant does not dispute that he is accused of an offense involving domestic violence within the meaning of MCL 768.27b, nor does he contest that the prosecution is seeking to introduce evidence of defendant's commission of other acts of sexual assault. Defendant instead argues that MCL 768.27b(1) only permits evidence of a defendant's commission of other acts of sexual assault to be admitted when the defendant is accused of an offense involving sexual assault, not when, as here, the defendant is accused of an offense involving domestic violence. We disagree. MCL 768.27b(1) plainly states that, when a defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible provided that it is relevant and not excluded by MCL 768.27b(4) or MRE 403.

Defendant also contests the admissibility of evidence that he previously committed sexual assault on grounds that (1) the evidence is not relevant to the domestic-violence-related charges that defendant is currently facing and (2) even if relevant, the evidence's probative value is substantially outweighed by the danger of unfair prejudice and should have been excluded by MRE 403. We disagree with both arguments and accordingly affirm.

I. BACKGROUND

At defendant's preliminary examination, KR testified that she graduated high school in 2018 and, while there, "took special needs classes" because she had difficulty reading. After completing high school, KR met defendant and his wife at her job, and she moved in with the couple in December 2021. The couple asked KR to have defendant's baby due to fertility issues, and KR agreed. She and defendant had sexual intercourse on four occasions while she lived with the couple. In July 2022, KR moved out after an argument with defendant's wife.

KR testified that, less than two weeks later, she accepted defendant's offer to meet up and smoke marijuana. She used GPS to drive to the agreed-upon meeting location, which was in a heavily-wooded area along a dirt two-track. When KR arrived, defendant was already there, standing outside his truck. KR and defendant got into defendant's truck, and defendant drove KR to "this narrow area with a lot of trees."

Once defendant stopped his vehicle, they both got out. Defendant directed KR to "go look," and as she did, defendant approached her from behind, put his hands around her throat, and began choking her. Defendant then pulled KR to the ground, tied her hands with a rope, "poured water down . . . [her] throat," and "duct taped" her mouth closed so she would stop screaming. Defendant proceeded to choke KR several more times, punch her in the ear and face several times, and tear off her eyebrow ring. According to KR, defendant said that he was doing this because KR did not spend enough time with her children, lost her job, and refused to move back in with him. Defendant did not stop until KR "peed" herself. He then smashed KR's phone, poured water on it, untied KR, and left the area. KR eventually made her way to a gas station where she called 911. After talking with the police, KR went the hospital.

Following KR's testimony and the parties' arguments, the district court bound defendant over to the circuit court as charged.

Once in circuit court, the prosecution filed notice of its intent to introduce evidence of a sexual assault committed by defendant pursuant to MCL 768.27b. According to the prosecution, "[i]n 2004, the defendant raped a 14-year-old girl at knifepoint." The prosecution alleged that defendant drove a 14-year-old girl to a secluded wooded area where defendant tried to have sex with her while she repeatedly told defendant "no." After the victim resisted his advances, defendant took a folding pocket knife out of the glovebox and pressed the blade against the victim's neck. The victim continued to tell defendant "no," but defendant pressed the blade tighter and inserted his penis into the victim's vagina. The victim reported the crime to authorities within several days of its commission, and a sexual assault kit was completed. Defendant was convicted of first-degree criminal sexual conduct for this incident.

Defendant responded to the prosecution's notice by objecting to the use of his prior conviction as other-acts evidence. As relevant to this appeal, defendant argued that evidence that he previously committed sexual assault was not admissible under MCL 768.27b because (1) prior acts of sexual assault could only be admitted in prosecutions for sexual assault, and defendant was not charged with sexual assault in this matter; (2) the nearly 20-year-old sexual-assault conviction lacked any relevance to a determination of defendant's guilt or innocence in this case because the other act was too remote in time, involved a different victim, and the charged offenses were not sexual in nature; and (3) any probative value attributable to the other-acts evidence was outweighed by the danger of unfair prejudice in light of the differing factual circumstances between the other act and the charged offenses.

At the hearing on defendant's objection, the trial court confirmed that defendant knew the 14-year-old girl whom he sexually assaulted. Then, after listening to the parties' arguments, the court overruled defendant's objection. The court first concluded that MCL 768.27b was applicable because defendant was charged with a crime involving domestic violence within the meaning of the statute, see MCL 768.27b(6)(a)(i) and (b)(ii), and the prosecution was seeking to admit evidence of defendant's commission of other acts of sexual assault as permitted by MCL 768.27b(1). As for whether the evidence was relevant and survived the balancing test required by MRE 403, the trial court explained:

So, the Court next determines that the probative value of this [evidence] is high for propensity, which is the purpose that's allowed under the statute.

And then we have to look at the prejudicial nature of the information. Now, kind of the only thing that cuts against the probative nature is the age of this offense, but the statute specifically allows older offenses to be used. If they wanted to have some open bar of something being too old, they could have put in that 10 years, 15 years, 20 years, they could have set that outside limit as to how old something could be.

This case-[b]oth these cases involve someone that is known to the defendant. They both allegedly involve taking these individuals to someplace that poses a higher risk. Certainly, there was violence used in both cases, a knife in the one case and beating and gaging and binding supposedly in this case. So, I think the danger of any unfair prejudice is low. Clearly, it's prejudicial, but it's not unfair given the facts and circumstances of both these cases.

So the Court is going to order-allow the testimony pertaining to that.

This appeal followed.

II. STANDARD OF REVIEW

A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. People v Watkins, 491 Mich. 450, 467; 818 N.W.2d 296 (2012). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. People v Dixon-Bey, 321 Mich.App. 490, 496; 909 N.W.2d 458 (2017). When the decision to admit or exclude evidence involves a preliminary question of law, such as whether the evidence falls within the ambit of a statute, the question is reviewed de novo. People v Propp, 508 Mich. 374, 383; 976 N.W.2d 1 (2021).

III. MCL 768.27B(1)

Defendant first argues that MCL 768.27b(1) does not permit evidence that a defendant previously committed sexual assault to be admitted when the defendant is accused of an offense involving domestic violence. We disagree.

Addressing defendant's argument requires interpreting the language of MCL 768.27b(1). When construing a statute, the primary objective is ascertaining and giving effect to the Legislature's intent. People v Phillips, 469 Mich. 390, 395; 666 N.W.2d 657 (2003). This inquiry begins with the text of the statute itself. Watkins, 491 Mich. at 467. If a statute's language is clear and unambiguous, "no further judicial construction is required or permitted, because the Legislature is presumed to have intended the meaning it plainly expressed." People v Stone, 463 Mich. 558, 562; 621 N.W.2d 702 (2001).

MCL 768.27b(1) states:

Except as provided in subsection (4), in a criminal action in which the defendant is accused of an offense involving domestic violence or sexual assault, evidence of the defendant's

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