People v. Sabin

Griffin, P.J.

On May 16, 1997, this Court reversed defendant’s convictions and remanded for a new trial, holding that “[d]efendant was entitled to a fair trial but did not receive one.” People v Sabin, 223 Mich App 530, 539; 566 NW2d 677 (1997). Thereafter, the people timely appealed, and on August 29, 1997, the Supreme Court issued an order holding the appeal in abeyance pending the decision of People v Starr, 457 Mich 490; 577 NW2d 673 (1998). No further action was taken by the Supreme Court until December 22, 1998, at which time “[i]n lieu of granting leave to appeal, the case is remanded to the Court of Appeals for reconsideration in light of People v Starr, 457 Mich 490 [577 NW2d 673] (1998), and People v Crawford, 458 Mich 376 [582 NW2d 785] (1998). MCR 7.302(F)(1).” 459 Mich 920 (1998).

On remand, we have reconsidered our prior decision in light of Starr and Crawford. After doing so, we reaffirm our previous opinion and again reverse and remand for a new trial.

*5I

PEOPLE v CRAWFORD

People v Crawford, supra, is the most recent Supreme Court decision construing a much litigated rule of evidence, MRE 404(b). In Crawford, the defendant was convicted following a jury trial of possession with intent to deliver 50 to 225 grams of cocaine. MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). Over the defendant’s objection, the people moved to admit into evidence testimony regarding the defendant’s prior conviction of delivery and conspiracy to deliver 225 to 650 grams of cocaine. During a pretrial motion, the prosecutor successfully convinced the trial court to admit evidence of the prior conviction on the grounds that it was relevant to show “defendant’s knowledge of the presence of cocaine and his intent to deliver it.” Crawford, supra at 381.

After the defendant’s conviction was affirmed by this Court, the defendant appealed to the Supreme Court, which reversed and remanded to the trial court for further proceedings. The Supreme Court held that the purposes for which the prior conviction was offered by the prosecution were not relevant and material to the issues in the case. The Supreme Court explained:

[A] common pitfall in MRE 404(b) cases is the trial courts’ tendency to admit the prior misconduct evidence merely because it has been “offered” for one of the rule’s enumerated proper purposes. Mechanical recitation of “knowledge, intent, absence of mistake, etc.,” without explaining how the evidence relates to the recited purposes, is insufficient to justify admission under MRE 404(b). If it *6were, the prosecutor could routinely admit character evidence by simply calling it something else. Relevance is not an inherent characteristic, Huddelston [v United States] 485 US [681] 689 [108 S Ct 1496; 99 L Ed 2d 771 (1988)], nor are prior bad acts intrinsically relevant to “motive, opportunity, intent, preparation, plan,” etc. Relevance is a relationship between the evidence and a material fact at issue that must be demonstrated by reasonable inferences that make a material fact at issue more probable or less probable than it would be without the evidence. [Crawford, supra at 387-388 (emphasis in original).]

After noting that all elements of a criminal offense are “in issue” when a defendant enters a plea of not guilty, the Supreme Court set forth the initial screening function of MRE 404(b):

In the context of prior acts evidence, however, MRE 404(b) stands as a sentinel at the gate: the proffered evidence truly must be probative of something other than the defendant’s propensity to commit the crime. If the prosecutor fails to weave a logical thread linking the prior act to the ultimate inference, the evidence must be excluded, notwithstanding its logical relevance to character. [Crawford, supra at 390 (emphasis in original).]

Crawford is consistent with numerous decisions of this Court, including our prior Sabin opinion and People v Hoffman, 225 Mich App 103; 570 NW2d 146 (1997). In Hoffman, we affirmed a ruling of the trial court that admitted other-acts evidence for the purpose of establishing the defendant’s motive to commit the crime. There, the defendant’s professed hatred toward women (misogyny) and his statement that “women are all sluts and bitches and deserve to die” were held to establish more than a propensity toward violence. “[T]he other-acts evidence was relevant and material to defendant’s motive for his unprovoked, *7cruel, and sexually demeaning attack on his victim. . . . Absent the other-acts evidence establishing motive, the jurors may have found it difficult to believe the victim’s testimony that defendant committed the depraved and otherwise inexplicable actions.” Id. at 109-110.

Further, in Hoffman, we discussed in a footnote the confusion that has arisen with the Supreme Court’s characterization of MRE 404(b) as a rule of inclusion, not exclusion:

Michigan has now joined with a number of other jurisdictions in labeling MRE 404(b) as a rule of inclusion, not exclusion. However, this characterization has been criticized by a leading authority as being inaccurate:
“As we have noted, the Federal and Revised Uniform Rules state the general rule as one of exclusion. See supra § 186. But see § 190, at 558 note 9, collecting cases that characterize Rule 404(b) as “inclusionary.” The term “inclusionary” is poorly chosen, however, for it merely indicates that the enumeration of issues in Rule 404(b) as to which evidence of other crimes or bad acts may be introduced is not exhaustive. The rule remains an exclusionary one: it keeps certain evidence out. [1 McCormick, Evidence (Practitioner Treatise Series, 4th ed), § 188, p 793, n 7.]” [Hoffman, supra at 105, n 1 (emphasis added).]

The above comment is in accord with Crawford, which holds that although the categories set forth in MRE 404(b) are not exhaustive, the purpose for which the evidence is offered must relate to an issue of consequence.

In defining “relevant evidence,” MRE 401 specifies that for evidence to be relevant, it must also be material:

*8“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [Emphasis added.]

Further, MRE 402 provides that irrelevant evidence is not admissible:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible. [Emphasis added.]

Finally, as noted by the Crawford Court, the proponent of proposed evidence always bears the burden of showing its relevance and materiality:

The dissent vociferously objects to the proposition that the prosecutor must bear the burden of articulating a proper noncharacter purpose for the admission of prior acts evidence under MRE 404(b). However, the principle that the proponent of evidence bears the burden of establishing relevance and admissibility is a matter of basic horn-book law. See 22 Wright & Graham, Federal Practice & Procedure, § 5166, pp 65-76. Instead of fashioning an argument why the prosecutor should be relieved of this burden in MRE 404(b) cases, the dissent accuses the majority of somehow shifting or heightening the prosecutor’s burden under MRE 404(b). Our requirement that the prosecutor articulate a proper noncharacter purpose comports not only with the plain language of MRE 404(b), but also with the approach utilized by the majority of federal circuits. [Crawford, supra at 386, n 6.]

In the present case, the trial court admitted, as other-acts evidence, testimony regarding defendant’s prior alleged sexual misconduct involving the victim’s *9stepsister. These alleged acts of abuse ended more than ten years before trial and did not result in a charge or conviction. In permitting the other-acts testimony, the trial court ruled that “the evidence tends to show that defendant has committed other wrongful acts involving a child or juvenile, who was a member of the same household, which is the exact situation we have in the allegations of this trial.” Although on appeal the prosecution argues that the other-acts evidence may have been admissible to establish defendant’s “common scheme, plan, or system,” the other acts were substantially dissimilar from defendant’s charged conduct:

There is little physical similarity between the repeated acts of oral molestation described by the victim’s stepsister and the violent, forcible vaginal rape alleged by the victim. Nor does the testimony indicate that defendant committed the acts in the same room or had some unique, consistent pattern or scheme in approaching, overcoming, or treating his victims. [Sabin, supra at 536.]

In summary, after reconsideration, we conclude that our previous decision was consistent with, and is now supported by, the precedent of Crawford.

n

PEOPLE v STARR

The second case that we are asked to consider is People v Starr, supra. In Starr, the trial court admitted into evidence other-acts evidence regarding the defendant’s sexual abuse of the victim’s younger half-sister. According to the Supreme Court, the testimony *10of the victim’s half-sister was that the defendant “had subjected her to similar sexual conduct and rape [as experienced by the victim].” Starr, supra at 492. At trial, the prosecution offered the other-acts testimony of the half-sister “for a myriad of reasons,” id. at 500, including to prove a common scheme, plan, or method. In holding the other-acts evidence admissible, the Supreme Court noted “[o]f these theories, only one needs to be a proper, noncharacter reason that compels admission for the testimony to be admissible.” Id. at 501. With regard to the issue of scheme and plan, the Court stated “the half-sister’s testimony revealed a striking similarity between the half-sister’s age, living arrangement, and relationship with defendant at the time the abuse of the half-sister began, to that of the victim. The similarity explains why the mother became so concerned with her daughter’s relationship with defendant . . . ” Id. at 503.

While the Starr Court found a proper purpose for the admission of the other-acts evidence, its major holding was that for relevant and material evidence to be excluded pursuant to the MRE 404(b) balancing test, the unfair prejudice of the evidence must substantially outweigh its probative value. Starr, supra at 499. In this regard, our reading of Starr leaves us with a firm belief that it does not alter, contradict, or expand the Court’s earlier standards set forth in People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), mod on other grounds 445 Mich 1205 (1994), except to emphasize the third prong of VanderVliet. On reconsideration, we hold that our earlier opinion correctly applied the principles of VanderVliet as interpreted in Starr.

*11in

The second basis for our prior decision was that the trial court committed error requiring reversal by admitting, over objection, testimony that defendant returned to his home in violation of an “agency order” that prohibited him from having any physical contact with his children. This evidence, which implied that defendant was on parole at the time of the present offense, was not relevant to any issues in the case. Sabin, supra at 537-539. MRE 401. Furthermore, the probative value, if any, of this evidence was substantially outweighed by the danger of unfair prejudice. MRE 403. Starr, supra.

Our previous holding that the evidentiary errors were not harmless was made without the benefit of People v Gearns, 457 Mich 170; 577 NW2d 422 (1998). See also People v Graves, 458 Mich 476, 482-483; 581 NW2d 229 (1998). However, after reconsidering our decision in light of the new harmless-error standard, we again conclude that defendant’s convictions must be reversed because the prosecution has not sustained its burden of proving that it is “highly probable” that the erroneously admitted evidence did not affect the verdict. Gearns, supra at 203-205.

Reversed and remanded for a new trial. We do not retain jurisdiction.

McDonald, J., concurred.