Court of Appeals decision expanding the use of 404b evidence in OWI trials.

In People v Amine, __ Mich App __ (Unpub, #294345, 12/21/2010) the Court of Appeals affirmed defendant’s jury trial conviction for OWI-3^rd denying his argument that the trial court improperly admitted other acts evidence of a prior OWI arrest under MRE 404(b).  In the prior bad act and existing charge defendant Amine was intoxicated and sitting in the driver’s seat of a car when the police arrived. In each he denied that he had been driving the car, stated that the driver was someone close to him, and that person confirmed his explanation.  Although there were slight differences, defendant’s behavior in both incidents otherwise was substantially similar. He reacted to each situation—which was functionally the same because he was faced with the possibility of an OWI arrest—with the same defense. From the incidents’ similarities, the jury was able to infer that his present defense was another manifestation of the common pattern defendant employs when discovered drunk behind the wheel of a car. Such an inference does not rely on character evidence, and thus, the trial court did not abuse its discretion in admitting the evidence under MRE 404(b) under the three step test of People v Vandervliet, 444 Mich 52, 74 (1993).  Under Vandervliet, the evidence must be relevant to an issue other than propensity, relevant under MRE 402 to a fact at issue at trial, and it must survive a MRE 403 balancing process determining if the danger of undue prejudice substantially outweighs the evidence’s probative value. Id. at 74-75.  If, however, the only relevance is to character or the defendant’s propensity to commit the crime, the evidence must be excluded. People v Crawford, 458 Mich 376, 385 (1998).   In addition, under Vandervliet “the trial court, upon request, may provide a limiting instruction under Rule 105.” Id. at 75.  The Court of Appeals further, weighing in favor of admitting such testimony reiterated that, “it is essential that prosecutors and defendants be able to give the jury an intelligible presentation of the full context in which disputed events took place.” People v Sholl, 453 Mich 730, 741 (1996).