Joinder of cases; Parts of a common plan or scheme; MCR 6.120(B)(1)(c); Other acts evidence; MRE 404(b); MRE 403; Due process; Constitutional challenge to MCL 750.81d(1) (resisting arrest); Schad v Arizona; United States v Mosley (6th Cir); People v Morris; Absence of a specific unanimity jury instruction; Alternate acts establishing the actus reus

The court concluded that even if the trial court erred in joining defendant’s resisting arrest cases under MCR 6.120(B)(1)(c), there was no outcome determinative error because the other incidents would have been admissible under MRE 404(b) in separate trials. It also rejected his argument that MCL 750.81d is facially unconstitutional under Schad, and determined that he did not show that the trial court’s failure to give a specific unanimity jury instruction constituted plain error affecting his substantial rights. Thus, the court affirmed his four resisting arrest convictions. It found that any misjoinder was harmless because the evidence of the other incidents would have been admissible in separate trials “to establish the absence of mistake.” Most clearly showing the relevance of the other incidents was defendant’s “repeated acts of spitting at” officers. While inadvertent spittle “is certainly possible, the idea that defendant’s conduct was inadvertent becomes significantly less probable when considering that on three separate occasions defendant spat directly in the faces of three police officers, hitting two of them in the eye with spit.” As to MRE 403 and defendant’s risk of jury confusion argument, the court found that the evidence “was not complex, and there was little risk of confusion.” In addition, it noted that “the high degree of similarity between the incidents actually increases the evidence’s probative value. And the evidence had much more than ‘negligible’ probative value, particularly given the difficulty in proving defendant’s state of mind and the fact that” his mens rea was at issue. Further, its probative value “was not outweighed by the risk of unfair prejudice.” As to his constitutional claim, the court concluded that all the relevant considerations identified in Schad showed “that MCL 750.81d(1) sets forth alternative means of committing a single offense rather than separate and distinct offenses. Because the Legislature did not exceed the constitutionally ‘permissible limits in defining criminal conduct,’ there was no constitutional violation in submitting the alternatives in MCL 750.81d to the jury as alternate means for committing a single offense.”