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. ...