May 12, 2015
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
ERNESTO EVARISTO URIBE, Defendant-Appellee
Eaton Circuit Court. LC No. 13-020404-FC.
For PEOPLE OF MI, PLAINTIFF-APPELLANT: BRENT MORTON, CHARLOTTE, MI.
For URIBE ERNESTO EVARISTO, DEFENDANT-APPELLEE: ANN M PRATER, CHARLOTTE, MI.
Before: SAAD, P.J., and OWENS and K. F. KELLY, JJ.
[310 Mich.App. 469] Saad, P.J.
The prosecution appeals the trial court's order that suppressed evidence the prosecution sought to admit under MCL 768.27a. For the reasons stated below, we reverse the trial court's decision, and remand for entry of an order that permits the admission of the proffered evidence.
I. NATURE OF THE CASE
MCL 768.27a is an evidentiary statute that applies to cases in which a defendant is charged with a sexual offense against a minor. The statute provides that the prosecution may present any evidence that the defendant committed other sex crimes against children, and that evidence may be considered for its bearing on any relevant matter, including the defendant's propensity to commit sexual crimes against children. This statutory mandate is contrary to MRE 404(b), which generally provides that evidence of other acts may not be used at criminal trials to show propensity. [310 Mich.App. 470] By enacting MCL 768.27a, the Legislature made an important public-policy choice to limit the procedural rights of criminal defendants contained in MRE 404(b), by mandating the admissibility of this specific type of propensity evidence, to better protect the rights of children from sexual predators. Accordingly, under the [310 Mich.App. 471] plain meaning of the statute, if evidence
that a defendant committed other sex crimes against a child is admissible under MCL 768.27a, a court must admit the evidence without reference to or consideration of the standard propensity rule set forth in MRE 404(b)(1). People v Watkins, 491 Mich. 450, 471; 818 N.W.2d 296 (2012).
The Michigan Supreme Court rejected a constitutional challenge to MCL 768.27a in People v Watkins, id. at 476-477, and upheld the statute's categorical mandate that requires the admission of propensity evidence in cases involving sex crimes against children. In so doing, Watkins carved out a very limited role for the judiciary in making admissibility determinations under MCL 768.27a, by using the safety valve of MRE 403. Id. Watkins, 491 Mich. at 481.
[310 Mich.App. 472] Historically, MRE 403 has been used sparingly by trial courts to exclude otherwise
admissible evidence because the evidence is either overly sensational or needlessly cumulative. In Watkins, the Michigan Supreme [310 Mich.App. 473] Court held that the exclusionary power of MRE 403 should be used even more sparingly in the context of evidentiary determinations made pursuant to MCL 768.27a. Watkins, 491 Mich. at 487. This is because MCL 768.27a represents a clear public-policy choice to admit specific evidence to protect children from sexual predators.
Because MCL 768.27a mandates the admission of propensity evidence, which for many years had generally and routinely been excluded by the judiciary, in Watkins our Supreme Court expressed concern that trial courts might misapply MRE 403, and exclude the evidence by reverting to the traditional propensity analysis used under MRE 404(b). Id. at 486. The Court therefore held that the usual propensity analysis under MRE 404(b) has no applicability to evidentiary determinations made under MCL 768.27a. Id. at 471.
In sum, when the prosecution seeks to admit evidence under MCL 768.27a, a court determines the admissibility of the evidence in three steps. First, the court ascertains whether the proffered evidence is [310 Mich.App. 474] relevant to the case at hand. Second, the court determines whether the proposed evidence constitutes a " listed offense" under MCL 768.27a. Finally, the court analyzes, under MRE 403, whether the probative value of the evidence is substantially outweighed by its prejudicial effect. When it makes this analysis under MRE 403, the court must weigh the probative value of the evidence--i.e., its tendency to show defendant's propensity to commit sex crimes against children--in favor of admission. If the trial court finds that evidence submitted under MCL 768.27a is (1) relevant, (2) constitutes evidence of a " listed offense" under the statute, and (3) has probative value that is not substantially outweighed by unfair prejudice under MRE 403, the evidence must be admitted.
Here, the trial court suppressed evidence, submitted by the prosecution under MCL 768.27a, that defendant committed other sex crimes against his daughter that are separate from the charged offense. The prosecution says this ruling is erroneous, because the trial court misapplied MCL 768.27a and Watkins in two significant and dispositive ways when it held that the proffered evidence: (1) was not evidence of the occurrence of a " listed offense" under MCL 768.27a, and (2) was more prejudicial than probative under MRE 403.
We hold that the trial court misapplied MCL 768.27a when it suppressed the evidence at issue. In so doing, it appears the court did precisely what the Michigan Supreme Court feared and warned against in Watkins. Under the rubric of conducting an MRE 403 balancing test, the trial court improperly analyzed the admissibility of the evidence by using the traditional propensity analysis. Because the proffered evidence is admissible, we remand for entry of an order that admits the evidence.
[310 Mich.App. 475] II. FACTS AND PROCEDURAL HISTORY
Defendant lost his parental rights to his two daughters, JU and MU, in late 2013 because he sexually abused VG, JU's half sister. In January 2014, the prosecution charged defendant with five counts of criminal sexual conduct (CSC) for his molestation of VG. As part of its case, the prosecution sought to introduce evidence under MCL 768.27a that defendant had also molested JU. The prosecution filed a notice of intent indicating that it planned to use JU's testimony regarding defendant's abuse at trial and attached a Michigan State Police (MSP) report that summarized her anticipated testimony.
In the report, which recounted a trooper's interview with JU, JU stated that sometime during summer 2011, she fell asleep with her father in the same bed. She woke up when she felt her father insert his fingers into her underwear. Defendant also attempted to [310 Mich.App. 476] place her hand on his penis on multiple occasions, but JU never actually touched her father because she repeatedly moved her body away from him each time he tried to make her touch his penis. Defendant never spoke to JU about the episode, apart from laughing after JU told him that she had seen his " private" during the night. JU noted that she did not want to tell anyone about the molestation, because she did not want her father to get in trouble.
Defendant objected to and moved to suppress the admission of JU's testimony. After a hearing, the trial court granted the motion and explained its reasoning in a holding from the bench. The trial court questioned the credibility of JU's testimony, because she had initially denied her father abused her during the proceedings for termination of parental rights, and her subsequent " statements . . . [were] all over the place." The court also doubted
whether JU's accusations against defendant constituted a listed offense under MCL 768.27a, and stated: " it's more clear that if anything happened she's been consistent that [defendant's] hand was on the belly and [his] fingers maybe dropped below the belly button."
Despite its concerns over the veracity of JU's statements and belief that defendant did not commit a listed offense under MCL 768.27a, the trial court " [gave] the prosecutor the benefit of the doubt" that defendant's alleged actions constituted a listed offense under MCL 768.27a. Nonetheless, the court held that JU's testimony would still be barred under [310 Mich.App. 477] MRE 403, because the sexual abuse she detailed was " dissimilar" to the sexual abuse against VG alleged by the prosecution, which involved anal penetration. The former molestation also purportedly occurred while others were present, whereas the latter molestation did not. The trial court finally noted that defendant allegedly molested VG multiple times, while JU's molestation occurred once. The court closed its holding from the bench by opining that " the purpose of [MCL 768.27a] honestly is to allow in other allegations that are more similar in nature to show a propensity; see, this is what the defendant does, this is what the defendant does." (Emphasis added.)
III. STANDARD OF REVIEW
Issues that involve statutory interpretation or the interpretation of court rules " are questions of law," and are reviewed de novo. In re Bail Bond Forfeiture, 496 Mich. 320, 325; 852 N.W.2d 747 (2014). When it interprets a statute, a court must examine the statute's " plain language, which provides the most reliable evidence of [legislative] intent. If the statutory language is unambiguous, no further judicial construction is required or permitted." People v McKinley, 496 Mich. 410, 415; 852 N.W.2d 770 (2014) (citations and quotation marks omitted). The principles that govern statutory interpretation also govern the interpretation of court rules. Watkins, 491 Mich. at 468.
[310 Mich.App. 478] IV. ANALYSIS
A. LEGAL STANDARDS
1. MCL 768.27
In full, MCL 768.27a reads:
(1) Notwithstanding [MCL 768.27], in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.
(2) As used in this section:
(a) " Listed offense" means that term as defined in section 2 of the sex offenders
registration act, 1994 PA 295, MCL 28.722.
[310 Mich.App. 479] (b) " Minor" means an individual less than 18 years of age.
Accordingly, MCL 768.27a permits the prosecution to introduce any " evidence"  that a criminal defendant committed " another listed offense against a minor" for any relevant purpose. See People v Duenaz, 306 Mich.App. 85, 101; 854 N.W.2d 531 (2014). Accordingly, MCL 768.27a permits the introduction of other-acts evidence that shows a defendant has a propensity to commit sex crimes against minors. See Watkins, 491 Mich. at 471.
This judicial interpretation is more expansive than the description of MCL 768.27a found in the statute's legislative history, which states:
[MCL 768.27a] would allow prior convictions for listed sex offenses committed against a minor to be admissible as evidence in a current criminal case involving a charge of a listed offense committed against a minor. [House Legislative Analysis, HB 4934, HB 4936, HB 4937, HB 4958, SB 606, SB 607, and SB 615, August 22, 2006, p 10 (emphasis added).]
As we noted above, for this reason MCL 768.27a [310 Mich.App. 480] conflicts with and " supersedes" MRE 404(b), Watkins, 491 Mich. at 476-477, which bars evidence of a defendant's other criminal acts if that evidence is used solely to show that defendant has a propensity to commit the crime with which he is charged. MCL 768.27a specifically intends to bar the applicability of MRE 404(b) in cases that involve sexual crimes against children, as the statute aims to address " a substantive concern about the protection of children and the prosecution of persons who perpetrate certain enumerated crimes against children and are more likely than others to reoffend." Watkins, 491 Mich. at 476.
In other words, MRE 404(b) has no applicability to evidence that is admitted pursuant to MCL 768.27a.
To repeat: MCL 768.27a permits the admission of relevant evidence that tends to show a defendant committed a " listed offense" under the statute. If evidence of the defendant's other acts of child sexual abuse are admissible under the mandates of MCL 768.27a, a court must admit the evidence without reference to or consideration of MRE 404(b). Watkins, 491 Mich. at 471.
2. MRE 403
If relevant evidence is admissible under MCL 768.27a, it may nonetheless be excluded under MRE 403. Watkins, 491 Mich. at 481. Under MRE 403, such [310 Mich.App. 481] evidence will be excluded only if " its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403 (emphasis added). And, as noted, it is " only in unusual circumstances that [a] court should exclude relevant evidence under Rule 403." Robinson & Longhofer, § 403.2, p 382.
To assess whether the probative value of the evidence is substantially outweighed by unfair prejudice under MRE 403, a court must perform a balancing test that looks to several factors, including:
the time required to present the evidence and the possibility of delay, whether the evidence is needlessly cumulative, how directly the evidence tends to prove the fact for which it is offered, how essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects. [ People v Blackston, 481 Mich. 451, 462; 751 N.W.2d 408 (2008).]
Again, evidence may only be excluded under MRE 403 when the prejudice the defendant would suffer from admission is unfair, which means
more than simply damage to the [defendant's] cause. A party's case is always damaged by evidence that the facts are contrary to his contentions, but that cannot be grounds for exclusion. What is meant [by MRE 403] is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one. [ People v Vasher, 449 Mich. 494, 501; 537 N.W.2d 168 (1995).]
[310 Mich.App. 482] The prosecution is not required to use the least prejudicial evidence to make its case, People v Fisher, 449 Mich. 441, 452; 537 N.W.2d 577 (1995), nor is the fact that the prejudicial evidence involves acts of depravity necessarily grounds for exclusion, see People v Starr, 457 Mich. 490, 499-500; 577 N.W.2d 673 (1998) (" [W]hile . . . the acts described in the proffered testimony are certainly 'depraved' and of 'monstrous repugnance,' such characteristics were inherent in the underlying crime of which defendant stood accused." ). Indeed, the nature of the charged offense
and the nature of the evidence that the defendant committed another listed offense converge with the mandate in MCL 768.27a--to admit that evidence even to show propensity--to practically eliminate any consideration of the depravity factor.
In the specific context of evidence submitted under MCL 768.27a, " [t]he Watkins Court provided guidance to trial courts in applying . . . the balancing test of MRE 403." Duenaz, 306 Mich.App. at 99. Because the purpose of MCL 768.27a is to permit the admission of evidence showing that defendant committed other sex crimes against children apart from the charged offense, Watkins held that a trial court must " weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect. That is, other-acts evidence admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity inference." Watkins, 491 Mich. at 487. Specifically, the Watkins court stated that:
[p]ropensity evidence is prejudicial by nature, and it is precisely the danger of prejudice that underlies the ban on propensity evidence in MRE 404(b). Yet were a court to apply MRE 403 in such a way that other-acts evidence in cases involving sexual misconduct against a minor was [310 Mich.App. 483] considered on the prejudicial side of the scale, this would gut the intended effect of MCL 768.27a, which is to allow juries to consider evidence of other acts the defendant committed to show the defendant's character and propensity to commit the charged crime. To weigh the propensity inference derived from other-acts evidence in cases involving sexual misconduct against a minor on the prejudicial side of the balancing test would be to resurrect MRE 404(b), which the Legislature rejected in MCL 768.27a. [ Id. at 486.]
Here, the trial court made three errors when it assessed the admissibility of JU's testimony under MCL 768.27a. First, the record reveals that the trial court had serious doubts about the witness's credibility. The record further reveals that the trial court suppressed the proffered evidence, in part, because it doubted JU's credibility. And though it is routine for a trial court to make preliminary factual determinations in making evidentiary rulings, it is inappropriate for a trial court to exclude a witness from testifying simply because the court disbelieves the witness. Such an action goes well beyond routine and permissible foundational rulings on matters of fact, and wrongly intrudes upon the role of the jury to make credibility determinations. Accordingly, the trial court impermissibly allowed its opinion of JU's credibility to influence its evidentiary ruling under MCL 768.27a and MRE 403.
Second, the trial court wrongly expressed doubt that the offense JU intended to describe in her testimony [310 Mich.App. 484] constituted a " listed offense" under MCL 768.27a. Again, MCL 768.27a(1) specifies:
Notwithstanding [MCL 768.27], in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.
Here, JU told the Michigan State Police that, when she was under 13 years old, defendant put his fingers in her underwear and repeatedly attempted to make her touch his penis. Both statements provide ample evidence that defendant committed a " listed offense" under MCL 768.27a, because, if true, they demonstrate that defendant engaged in " sexual contact" under MCL 750.520a(q)--given that they involve " the intentional touching of the victim's . . . intimate parts or the intentional touching of the clothing covering the immediate area of the victim's . . . intimate parts . . . ."  The fact that JU never touched defendant's penis is inconsequential, because her statement indicates that defendant attempted to commit a " listed offense" under MCL 768.27a--" the intentional touching of the . . . actor's intimate parts . . . ." MCL 750.520a(q).
JU's proposed testimony thus details a " listed offense" under MCL 768.27a, and that testimony is relevant evidence that defendant committed the [310 Mich.App. 485] charged offense. The trial court's statement that JU's proposed testimony did not contain evidence of a listed offense was thus simply inaccurate as a matter of law, and the testimony is admissible pursuant to the mandates of MCL 768.27a.
Finally, the trial court committed another error of law when it assessed the admissibility of JU's testimony under MRE 403. Though the trial court said it analyzed the evidence under the traditional MRE 403 balancing test--to determine whether the probative value of JU's testimony was outweighed by the risk of unfair prejudice the testimony posed to defendant--the court actually analyzed JU's testimony by using the now inapplicable propensity test.
The court held the testimony to be inadmissible because it believed the molestation described by JU to be too " dissimilar" to the acts described by VG. [310 Mich.App. 486] Similarity,
or lack thereof, between another criminal act and the charged crime, is a comparison courts frequently make to assess whether evidence of the other criminal act is admissible to show something other than a defendant's criminal propensity under MRE 404(b). Whether an act is similar or dissimilar to a charged offense does not matter for the purposes of MRE 403, which, as noted, looks to whether otherwise relevant evidence is overly sensational or needlessly cumulative. Blackston, 481 Mich. at 461-462. More importantly, MCL 768.27a clearly mandates the admissibility of any evidence of a " listed offense," regardless of similarity. Indeed, any required level of similarity is presumed in the mandate to admit evidence of another listed offense against a minor when a defendant is charged with a listed offence against a minor.
Furthermore, the trial court never considered or explained how the probative value of JU's testimony would be outweighed by unfair prejudice under MRE 403. This is likely because JU's testimony is not unfairly prejudicial to defendant. To the contrary, the clearly stated public policy of this state--to protect children from sexual predators--requires that this precise evidence be admitted.
[310 Mich.App. 487] The trial court therefore erred when it granted defendant's motion to suppress. In so doing, it did exactly what our Supreme Court cautioned against in Watkins, by reverting to the traditional propensity analysis used under MRE 404(b). Accordingly, we reverse the holding of the trial court, and remand for entry of an order permitting the admission of JU's testimony. We do not retain jurisdiction.
Reversed and remanded.
Henry William Saad, Donald S. Owens, Kirsten Frank Kelly