People v. Nelson

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. NATALIE CHRISTINA NELSON, Defendant-Appellant.

No. 360860

Court of Appeals of Michigan

August 31, 2023

UNPUBLISHED

Wayne Circuit Court LC No. 19-008280-01-FH

Before: Gadola, P.J., and Borrello and Hood, JJ.

PER CURIAM.

Defendant appeals as of right her jury trial convictions of felonious assault, MCL 750.82; possession of a firearm in commission of a felony (felony-firearm), MCL 750.227b; and domestic violence, MCL 750.812. Defendant was sentenced to three years' probation for her felonious assault conviction two years' imprisonment for her felony-firearm conviction with 169 days jail credit, and 93 days, time served, for her domestic violence conviction. For the reasons set forth in this opinion, we affirm the convictions and sentences of defendant.

I. BACKGROUND

This appeal arises from an assault that occurred between defendant and the victim who were living together as boyfriend and girlfriend at the time of the incident. On September 10 2019, defendant, after arriving home from an outing with her daughter, approached the victim, asking to use his phone. While using the victim's phone, defendant saw the victim had a call from his cousin, who was allegedly a child molester. Defendant, upset and concerned that the victim had been speaking to his cousin, began questioning and arguing with the victim. The victim alleged defendant grabbed him by the neck, scratched him, attempted to hit him, and threw an ashtray at him. Defendant alleged the victim pushed her, jumped on her, choked her, and said: "Don't ever ask me about my f***ing cousin ever again. I will kill you."

As defendant and the victim were arguing, defendant's son entered defendant's bedroom and began arguing with the victim. Defendant alleges the victim pushed defendant into her bed railing and then began packing his clothes. Defendant repeatedly told the victim to leave, eventually grabbing a gun she had in the bedroom. The victim finished packing and with defendant following him, hurried down the stairs to the front door, where defendant allegedly kicked him in the back. The victim reported the altercation to the Detroit Police Department the next day.

The same day of the incident, defendant went to the hospital to be treated for pain in her neck, back, and thighs. Defendant asked her daughter to take photographs of the bruises on her thighs. One day after leaving the hospital, defendant went to speak with the victim's father at his home. The next day, defendant went to the police station and reported the altercation with the victim. Eventually, charges were filed against defendant.

During voir dire, a juror indicated she had been a victim of domestic violence or an assault with a weapon and admitted to having a bias against defendants who perpetrated violence against children, but affirmed she could set aside her experiences, judge the case based on the evidence presented, and be equally fair to the prosecution and defendant. Defense counsel and the prosecutor made no challenges for cause; however, defense counsel used all preemptory challenges to excuse jurors-not including the allegedly biased juror.

During trial, the prosecution's case-in-chief centered on the theory defendant unreasonably brandished a gun at the victim because he was taking too long to leave the house, not because defendant was acting in self-defense or in defense of her children. The victim denied he ever choked defendant and alleged defendant was the main aggressor during the altercation.

At trial, defendant argued she acted in self-defense of herself and her children. Of importance to this appeal, during direct examination, defendant attempted to relay the victim's threat to kill her during their altercation. However, the prosecutor objected to defendant's testimony of the victim's statement on the grounds that the statement constituted hearsay. The trial court granted the motion, erroneously concluding that the statement was hearsay.

Defendant was convicted and sentenced as noted above.^[1] Following sentencing, this appeal ensued.

II. ANALYSIS

On appeal, defendant first contends that the trial court abused its discretion and prejudiced defendant when it improperly excluded defendant's testimony regarding the threat made by the victim. The prosecution rightfully concedes error; admitting it is clear that the trial court's ruling that the statement was hearsay constituted error. However, the prosecution argues that defendant cannot meet her burden to establish that this error was not harmless, i.e., outcome-determinative. According to the prosecution, the main reason the error was not outcome-determinative is based on the fact that the defendant testified as to the victim's threat during cross-examination.

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. People v Edwards, 328 Mich.App. 29, 41-44; 935 N.W.2d 419 (2019). An abuse of discretion occurs when the trial court's decision rests outside the range of reasonable and principled outcomes. People v Baskerville, 333 Mich.App. 276, 287; 963 N.W.2d 620 (2020). Preliminary questions of law, including whether a rule of evidence precludes the admission of evidence, are reviewed de novo. People v Lane, 308 Mich.App. 38, 51; 862 N.W.2d 446 (2014) (citations omitted). "A trial court abuses its discretion when it makes an error of law in the interpretation of a rule of evidence." People v Jackson, 498 Mich. 246, 257; 869 N.W.2d 253 (2015).

Under Michigan's evidentiary rules, "[h]earsay is an unsworn, out-of-court statement that is offered to establish the truth of the matter asserted." People v Stamper, 480 Mich. 1, 3; 742 N.W.2d 607 (2007), citing MRE 801(c). Under MRE 802, hearsay is not admissible unless it "falls under one of the hearsay exceptions set forth in the Michigan Rules of Evidence." Stamper, 480 Mich. at 3. If, however, the proponent of the evidence offers the statement for a purpose other than to prove the truth of the matter asserted, then the statement is not hearsay. MRE 801(c). "An out-of-court statement introduced to show its effect on a listener, as opposed to proving the truth of the matter asserted, does not constitute hearsay under MRE 801(c)." People v Gaines, 306 Mich.App. 289, 306-307; 856 N.W.2d 222 (2014). "Evidence of prior threats is admissible when the defendant has raised an argument of self-defense." People v Ake, 362 Mich. 134, 136-137; 106 N.W.2d 800 (1961).

Here, defendant claimed she acted in self-defense of herself and her children. For the jury to conclude defendant acted in self-defense, they would have to find defendant "had a reasonable and honest belief that the use of deadly force was necessary to prevent imminent death or great bodily harm." People v Guajardo, 300 Mich.App. 26, 42; 832 N.W.2d 409 (2013). Further, for the jury to conclude defendant acted in defense of her children, the jury would have to find defendant acted in "defense of [her] own life, or that of [her] family, relatives or [dependents], within those relations where the law permits the defense of others as of one's self." People v Leffew, 508 Mich. 625, 638; 975 N.W.2d 896 (2022) (quotation marks and citation omitted).

During her direct examination, defendant testified that she grabbed her gun in self-defense and defense of her children because the victim choked her and made her fear for her life. Defendant also attempted to relay the victim's threat to kill her during their argument. However, the prosecutor objected to defendant's statement and the trial court erroneously ruled defendant's testimony was hearsay.^[2]

Our conclusion that the trial court erred does not end our analysis of the issue. MCR 2.613 states, in relevant part:

An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not grounds for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice. [MCR 2.613(A).]

As previously stated, even though the trial court erroneously prohibited introduction of the victim's threat on direct examination, on cross-examination, the same prosecutor who objected to the statement later elicited the following from defendant:

Q. So when you came in the house you immediately asked to see [the victim's] telephone?

A. No. I seen his name in the phone. And I asked him. I said, "Did Jay call you?" And that's when he jumped on top of me and started to choke me. And he was saying, "Don't ever ask me about my f***ing cousin ever again. I will kill you."

Defendant's arguments to the contrary, the victim's verbal threat directed at defendant was admitted as testimony for the jury to consider. As is the case in a criminal trial, the jurors were instructed to consider all the evidence when reaching their verdict, regardless of whether it was presented on direct or cross-examination or which party presented it. And, because jurors are presumed to follow their instructions, People v Unger, 278 Mich.App. 210, 235; 749 N.W.2d 272 (2008), defendant has failed to prove the trial court's failure to admit defendant's testimony on direct examination amounts to more than harmless error. Therefore, defendant is not entitled to a relief on this issue.

Defendant next argues the trial court abused its discretion when it admitted irrelevant, prejudicial evidence that defendant visited the victim's father after the alleged assault. The prosecution counters that the evidence was relevant in determining defendant's credibility

" 'Relevant evidence'...