In re ADAM JEFFREY KERR, Minor.
ADAM JEFFREY KERR, Respondent-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellant,
Circuit Court Family Division LC No. 15-011877-DL
Before: Meter, P.J., and Borrello and Boonstra, JJ.
juvenile-delinquency case against respondent, petitioner
appeals by leave granted an order excluding other-acts
evidence. We find that the trial court erred by concluding
that MCL 768.27a does not apply to juvenile-delinquency
trials. We vacate the trial court's order excluding the
other-acts evidence and remand this matter to the trial court
for a determination of the admissibility of the other-acts
evidence under the proper legal framework.
filed two juvenile-delinquency petitions against respondent.
Each petition concerns a separate alleged victim. The first
petition alleges that respondent committed third-degree
criminal sexual conduct (CSC-III), MCL 750.520d(1)(b) (force
or coercion used to accomplish sexual penetration), and
fourth-degree CSC, MCL 750.520e(1)(b) (force or coercion used
to accomplish sexual contact). This petition relates to an
October 27, 2014, incident in which respondent allegedly
touched his minor cousin's vagina through her pants and
then, after removing her pants and underwear, penetrated her
vagina with his fingers and performed cunnilingus. The second
petition alleges that respondent committed CSC-III, MCL
750.520d (multiple variables), by penetrating a 14-year-old
girl's vagina with his fingers, mouth, and penis during
the period from October 30, 2015, to November 1, 2015.
filed a notice of intent to introduce, in both cases,
other-acts evidence under MCL 768.27a. MCL 768.27a(1) states,
in relevant part, that "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."
The notice expressed petitioner's intent to use the acts
alleged in each petition in the trial on the other petition,
i.e., the acts alleged in the first petition in the trial on
the second petition, and the acts alleged in the second
petition in the trial on the first petition.
objected, arguing, in part, that MCL 768.27a allows for the
admission into evidence of prior acts in criminal cases, and
juvenile-delinquency proceedings are not criminal cases.
Respondent contended that petitioner did not indicate what
purpose beyond mere propensity would be served by the
introduction of the other-acts evidence, and stated that
evidence may not be offered to demonstrate propensity under
MRE 404(b). Petitioner acknowledged that it was seeking to
admit the other-acts evidence to show propensity but argued
that this was appropriate under MCL 768.27a because the
statute supersedes MRE 404(b).
trial court ruled in respondent's favor, stating that if
the Legislature had intended to include juvenile proceedings
within the purview of MCL 768.27a, it would have explicitly
said as much in the statute. The court also cited MRE 403,
concluding that the probative value of the evidence would be
outweighed by the danger of unfair prejudice. Petitioner now
appeals the trial court's ruling.
review for an abuse of discretion a trial court's
decision to exclude evidence. People v Watkins, 491
Mich. 450, 467; 818 N.W.2d 296 (2012). "A trial court
abuses its discretion when it chooses an outcome falling
outside the range of principled outcomes." Id.
We review de novo the interpretation of statutes and court
rules. People v Lee, 489 Mich. 289, 295; 803 N.W.2d
165 (2011). We enforce unambiguous language of a statute or
court rule as it is written. People v Comer, 500
Mich. 278, 287; 901 N.W.2d 553 (2017).
768.27a allows the factfinder to consider evidence of other
acts committed by a defendant to show the defendant's
character and propensity to commit the charged crime.
Watkins, 491 Mich. at 470, 486. Again, the statute
provides, in pertinent part, that "[i]n 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." MCL
Watkins, the Michigan Supreme Court concluded that
MCL 768.27a irreconcilably conflicts with MRE 404(b), which
bars the admission of other-acts evidence for the purpose of
showing propensity, and that MCL 768.27a prevails over MRE
404(b). Watkins, 491 Mich. at 455. Evidence
admissible under MCL 768.27a remains subject to MRE 403, and
may be excluded under MRE 403 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.' "
Id. at 481, quoting MRE 403. When applying MRE 403
to evidence admissible under MCL 768.27a, a trial court must
weigh the propensity inference in favor of the probative
value of the evidence, rather than in favor of its
prejudicial effect. Id. at 487. "[O]ther-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." Id.
However, courts may exclude such evidence under MRE 403 for
other reasons, including:
(1) the dissimilarity between the other acts and the charged
crime, (2) the temporal proximity of the other acts to the
charged crime, (3) the infrequency of the other acts, (4) the
presence of intervening acts, (5) the lack of reliability of
the evidence supporting the occurrence of the other acts, and
(6) the lack of need for evidence beyond the
complainant's and the defendant's testimony.
[Id. at 487-488.]
list of considerations is meant to be illustrative rather
than exhaustive." Id. at 488.
central question presented in this case is whether MCL
768.27a applies in juvenile-delinquency trials. MCL 768.27a
does not expressly reference juvenile-delinquency trials. MCR
subchapter 3.900 governs proceedings involving juveniles. MCR
3.901(A)(3) states that "[t]he Michigan Rules of
Evidence, except with regard to privileges, do not apply to
proceedings under this subchapter, except where a rule in
this subchapter so provides. . . ." See also MRE
1101(b)(7) (providing that the Michigan Rules of Evidence do
not apply to juvenile proceedings "wherever MCR
subchapter 3.900 states that the Michigan Rules of Evidence
do not apply"). MCR 3.942 governs juvenile trials. MCR
3.942(C) states: "The Michigan Rules of Evidence and the
standard of proof beyond a reasonable doubt apply at
trial." Therefore, the Michigan Rules of Evidence apply
in juvenile-delinquency trials. MRE 101 provides that
"[a] statutory rule of evidence not in conflict with
these rules or other rules adopted by the Supreme Court is
effective until superseded by rule or decision of the Supreme
Court." MCL 768.27a is a statutory rule of evidence.
Watkins, 491 Mich. at 473. Although MCL 768.27a
conflicts with MRE 404(b), the Supreme Court has determined
that for cases encompassed by the language of MCL 768.27a,
MCL 768.27a supersedes MRE 404(b). Watkins, 491
Mich. at 476-477. Therefore, as a statutory rule of evidence,
MCL 768.27a is effective under the Michigan Rules of Evidence
because the statutory ...