PEOPLE v. BREIDENBACH
Docket No. 140153
Supreme Court of Michigan
Argued January 21, 2011. Decided April 28, 2011.
489 Mich. 1
Anthony J. Breidenbach was charged in the Genessee Circuit Court with indecent exposure,
In an opinion by Chief Justice YOUNG, joined by Justices MARKMAN, MARY BETH KELLY, and ZAHRA, the Supreme Court held:
Separate juries are not necessarily required when a criminal defendant is charged with a sexual offense as well as with being a sexually delinquent person, and Helzer is overruled to the extent that it held to the contrary. Trial courts must exercise their discretion when determining whether separate jury trials are required under these circumstances in accordance with the Michigan Court Rules and may empanel separate juries when necessary to protect a defendant‘s rights or ensure a fair determination of guilt or innocence.
MCL 767.61a sets forth the procedure to be followed in prosecutions for certain sexual offenses committed by a sexually delinquent person, including the form of the indictment, the availability of expert testimony, and the requirements to be followed when a defendant pleads guilty to one or both charges. Helzer required separate juries when a defendant is charged with both a principal sexual offense and being a sexually delinquent person. Nowhere inMCL 767.61a , however, did the Legislature require, explicitly or implicitly, that a jury separate from the one convicting a defendant of an underlying sexual offense determine whether the defendant is also a sexually delinquent person. There are also no compelling policy justifications that support the Helzer rule of mandatory bifurcation. The potential for prejudice in having the same jury decide both charges exists whenever related crimes are tried together, and given that evidence of a defendant‘s history of sexual misbehavior can be, and often is, admitted under MRE 404(b) or under the doctrine of chances, both juries are likely to consider the same type of evidence. MCR 6.120(B) allows trial courts to order separate juries sua sponte or on motion of a party if necessary to fairly determine a defendant‘s guilt or innocence of each offense, and the potential for confusion or unfair prejudice may provide a sufficient basis for exercising this discretion when a charge of sexual delinquency is involved. This determination is to be made on a case-by-case basis in consideration of the specific circumstances and facts of the case.- Helzer was wrongly decided to the extent that it created a mandatory rule requiring bifurcated trials, and the factors set forth in Robinson v. Detroit, 462 Mich. 439 (2000), weigh in favor of overruling that holding. Helzer is overruled in part.
Trial court order vacated; case remanded for reinstatement of conviction.
Justice CAVANAGH concurred in the result only.
Justice MARILYN KELLY concurred in the result, but dissented from much of the analysis. She wrote separately to state that she disagreed with the partial overruling of Helzer because it was unnecessary in light of the fact that defendant had forfeited the issue, that she would not have relied on the doctrine of chances, and that she believed cases involving charges of sexual offenses and sexual delinquency would likely need to be tried before separate juries more often than cases involving other crimes. She further disagreed with the majority‘s assertions with regard to stare decisis that only criminals rely on caselaw interpreting criminal statutes and that reliance interests cannot arise from a court‘s erroneous interpretation of a statute.
Justice HATHAWAY concurred with the majority that the trial court‘s order granting defendant a new trial should be vacated and that his conviction should be reinstated, but would have reached that result by holding that defendant had forfeited his right to be tried by two separately empaneled juries. She dissented from the partial overruling of Helzer on the ground that that issue need not have been reached.
CRIMINAL LAW — SEXUALLY DELINQUENT PERSONS — TRIAL BY SEPARATE JURIES.
A defendant charged with committing a sexual offense and with being a sexually delinquent person is not necessarily entitled to have separate juries determine his or her guilt on those charges; whether separate jury trials are required under these circumstances is within the discretion of the trial court to determine in accordance with the court rules; the court may empanel separate juries when necessary to protect a defendant‘s rights or ensure a fair determination of guilt or innocence (
Jonathan B. D. Simon for defendant.
OPINION OF THE COURT
YOUNG, C.J. In People v. Helzer,1 this Court held that when a criminal defendant is charged with being a sexually delinquent person in relation to an underlying sexual offense, separate juries must determine a defendant‘s guilt of the sexual delinquency charge and the underlying charge. In this case, defendant was convicted by a single jury of “indecent exposure as a sexually delinquent person.” The trial court granted defendant‘s motion for a new trial after the Court of Appeals vacated his conviction on the ground that the first trial violated his procedural rights under Helzer. The prosecutor appealed, arguing that Helzer was wrongly decided.
We hold that because the sexual delinquency statute,
quency apart from the primary offense, the Helzer Court erred when it created a compulsory rule to that effect. Because the Helzer rule lacks support in the language of the statute itself, determinations whether separate juries are needed should be made on a case-by-case basis in accordance with the Michigan Court Rules.
For the reasons stated below, we grant the prosecutor‘s application for leave to appeal, vacate the trial court‘s order granting defendant a new trial, and reinstate defendant‘s conviction.
I. FACTS AND PROCEDURAL HISTORY
While on parole for a similar offense, defendant Anthony Breidenbach exposed himself to a woman at a public bookstore. Defendant was charged with “indecent exposure as a sexually delinquent person”2 in the Genesee Circuit Court and tried before one jury without objection. At trial, the prosecutor presented specific testimony related to two prior similar convictions, and defendant‘s parole officer testified regarding defendant‘s extensive criminal history, which
included convictions for 21 prior sexual offenses, 16 of which were felonies. The jury convicted defendant as charged, and the trial court sentenced him to a prison term of “one day to life in prison,” pursuant to the indeterminate sentence provided by statute.3
Defendant appealed and moved to remand, arguing that the trial court had violated
The prosecutor now appeals in this Court, arguing that Helzer was wrongly decided and should be overruled, or, alternatively, that defendant waived any claim of error under Helzer by failing to object to the original decision to try his case before a single jury.
II. STANDARD OF REVIEW
This case requires that we determine whether
III. PEOPLE v. HELZER
In People v. Helzer,8 this Court held that separate juries are required when a criminal defendant is charged both with a principal sexual offense and with being a sexually delinquent person. In that case, the defendant was convicted by a single jury of two charges of gross indecency, and subsequently convicted by the same jury of being a sexually delinquent person at the time the acts occurred.9 Noting that a conviction of sexual delinquency “can be obtained only in conjunction with conviction on the principal charge,” the Court stated that sexual delinquency is a matter of sentencing that is unrelated to proof of the principal charge.10
On the basis of this understanding, the Helzer Court held that in order to proceed fairly “against a defendant under this modified statutory scheme, the alternate nature of the sentence requires a hearing and record before a separate jury in cases where defendant does not
waive jury trial.”11 The Court reasoned that the “substantial function and discretion of the jury in hearing the sexual delinquency charge, the high potential for automatic conviction were the original jury to hear the delinquency charge and the penalty of life imprisonment possible upon finding sexual delinquency all inform our order for separate jury consideration.”12 The Court further offered the following policy rationale as support for its decision:
The trial court cannot predict at the outset whether a defendant will actually be prejudiced by having the same jury decide both the principal charge and the sexual delinquency charge. However, the potential for prejudice is inescapable, given the broad function and wide discretion necessarily accorded the jury in the sexual delinquency hearing. Much more is involved than simply determining whether this defendant is the person convicted of specific prior offenses. Indeed, acts not necessarily resulting in criminal convictions may be considered under the statute. See
MCL 750.10a ; MSA 28.200(1). Furthermore, the definition of a sexually delinquent person allows, and in fact must depend upon, consideration of the prior principal sexual offense. Consequently, we find the possibility too real that a jury which only shortly before had found defendant guilty beyond a reasonable doubt on the principal sexual offense might without responsible deliberation conclude he was also a sexually delinquent person. In short, the likelihood of an automatic conviction in this subsequent proceeding requires us to order a separate jury.13
discretion of the trial judge.”14 Instead, unless a defendant waives a second jury, Helzer requires “that a second jury be provided in every case to decide the sexual delinquency charge” and that the jury should be empaneled immediately following the conviction on the principal charge.15
IV. ANALYSIS
We take this opportunity to revisit the scope of this Court‘s decision in Helzer in light of what the plain language of
On the basis of the language of
In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. In every such prosecution the people may produce expert testimony and the court shall provide expert testimony for any indigent accused at his request. In the event the accused shall plead guilty to both charges in such indictment, the court in addition to the investigation provided for in [
MCL 768.35 ], and before sentencing the accused, shall conduct an examination of witnesses relative to the sexual delinquency of such person and may call on psychiatric and expert testimony. All testimony taken at such examination shall be taken in open court and a typewritten transcript or copy thereof, certified by the court reporter taking the same, shall be placed in the file of the case in the office of the county clerk. Upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges the court may impose any punishment provided by law for such offense.
Nowhere in
To the contrary, the text of the statute affirmatively demonstrates that a separate jury is not required when a defendant is charged as a sexually delinquent person. For example, the statute provides that “the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed,
a sexually delinquent person.”18 More important, the statute also provides that “[u]pon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges the court may impose any punishment provided by law for such offense.”19 This statutory language contemplates that a defendant may be charged and tried in one action for both sexual delinquency and the underlying sexual offense. Moreover,
Nor do we believe that Helzer‘s policy justifications demand such a requirement. The Helzer Court was first concerned with the potential for prejudice in having the same jury decide both charges. However, such potential could be said to be present any time a prosecutor charges a defendant with more than one offense. Courts cannot predict with perfect accuracy whether allowing particular types of related charges to be tried in the same proceeding will prejudice a defendant — and this is true regardless of whether the joinder concerns charges of sexual delinquency or any other related crimes. So
too may it be said that “the potential for prejudice is inescapable”21 when any related crimes are tried together. Simply because the potential for prejudice exists or because charges of sexual delinquency are unique in nature does not require separate trials in all instances regardless of the individual circumstances. Perhaps cases involving charges of sexual delinquency will need to be tried before separate juries at a higher rate than other crimes, but this does not necessitate a special rule applicable to all cases involving charges of sexual delinquency, particularly those in which indications of prejudice do not exist.
Moreover, we note that Helzer‘s concern regarding the high potential for automatic conviction if the same jury is allowed to hear both charges — and in the process hear evidence of a defendant‘s history of sexual misconduct — is not very compelling when such evidence can be, and often is, admitted anyway under the Michigan Rules of Evidence or the doctrine of chances. Specifically, MRE 404(b) provides that evidence of other “crimes, wrongs, or acts” may be admissible in order to prove a defendant‘s motive, intent, preparation, scheme, plan, system of doing an act, or absence of mistake or accident, among other purposes. This “other acts” evidence need not be evidence
Michigan has long recognized the doctrine of chances, which provides that rare or unusual events that occur frequently in relation to a single person are less likely to have an innocent explanation and more likely to demonstrate the probability of an actus reus.23 In certain cases, this doctrine also would permit evidence of a defendant‘s past sexual misconduct to come before a jury. Accordingly, Helzer‘s rule mandating separate juries, however well-intentioned, does not take into account the practical reality that evidence of a defendant‘s history of sexual misbehavior will often come before the jury even when the charges are severed. This
reality undermines Helzer‘s policy rationale because, as we explained in People v. Williams, “[j]oinder of... other crimes cannot prejudice the defendant more than he would have been by the admissibility of the other evidence in a separate trial.”24 Limiting instructions are the classic means by which trial courts direct juries to consider certain evidence for its proper purpose only. There is no indication that a proper limiting instruction would be any less appropriate or effective in this type of case.
The Helzer Court was further concerned that a jury deciding both charges might conclude without “responsible deliberation” that a defendant is a sexually delinquent person — in other words, that there is a high likelihood of “automatic conviction.”25 However, requiring
recently convicted of a sexually based crime is a natural and appropriate consequence of such a conviction and not unfairly prejudicial.
Finally, we note that Michigan‘s court rules contemplate that decisions regarding joint or severed trials for related charges lie firmly within the discretion of trial courts. In particular, MCR 6.120(B) provides:
On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in [MCR 6.120(C)], the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant‘s guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties’ readiness for trial.28
We believe that this rule provides the proper framework for courts to analyze whether separate juries are required when sexual delinquency is charged in addition to a primary sexual offense. That is, if “a fair
determination of defendant‘s guilt or innocence of each offense” would require separate juries, trial courts may order separate juries either sua sponte or on the motion of one of the parties. In accordance with the rationale supporting the Helzer Court‘s original holding, the “potential for confusion or prejudice” in particular may provide a sufficient basis for a trial court‘s exercise of its discretion to order separate juries when a charge of sexual delinquency is involved. When that potential does not exist, however, separate juries need not be empaneled in order to consider separately the charges against a defendant.
Although we conclude that Helzer wrongly created a rule mandating bifurcated trials when a defendant is charged with being a sexually delinquent person in addition to an underlying criminal sexual offense, that does not end our inquiry regarding whether Helzer should be overruled. In Robinson v. Detroit, we set forth a multifactored test that this Court applies before overruling a precedent in order to provide respectful consideration to the cases decided by our predecessors.29 “The first question, of course, should be whether the earlier decision was wrongly decided.”30 However, “the mere fact that an earlier case was wrongly decided does not mean overruling it is invariably appropriate.”31 Rather, “[c]ourts should also review whether the decision at issue defies ‘practical workability,’ whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the
questioned decision.”32 We conclude that these criteria generally weigh in favor of overruling Helzer.
First, we examine whether the Helzer rule of mandatory bifurcation defies “practical workability.” Although we conclude that the Helzer rule is not practically unworkable, it does impose unnecessary enormous costs on the judicial system because it requires empaneling two juries when the need for this has not been specifically determined. As noted, in accordance with Michigan‘s court rules, Michigan courts are well able to accommodate joined or bifurcated trials as the circumstances of an individual case require.
Second, and most important, regarding reliance interests, this Court asks “whether the previous decision has become so embedded, so accepted, so fundamental, to everyone‘s expectations that to change it would produce not just readjustments, but practical real-world dislocations. It is in practice a prudential judgment for a court.”33 We conclude that Helzer has not become so embedded in, or fundamental to, society‘s general expectations that overruling it would produce significant dislocations. Indeed, it cannot fairly be said that citizens contemplate criminal activity in reliance on the particular procedural rule implicated in this case.34 Nor do we believe that overruling Helzer would work a hardship on the criminal justice system or affect the manner in which determinations of guilt are fairly and efficiently made. To the extent that the bench and bar
are aware of the rule of mandatory bifurcation set forth in Helzer, given Michigan‘s well-settled rules regarding joinder and severance, overruling Helzer in a prospective manner is unlikely to upset their reliance interests.
Moreover, as we noted in Robinson, when discussing reliance interests in the context of statutory law, the words of a statute themselves are of paramount importance because “it is to the words of the statute itself that a citizen first looks for guidance in directing his actions.”35 As we have discussed, we believe that the
Finally, we examine whether intermediate changes in the law or facts no longer justify the Helzer decision. Because Helzer created a policy-based, prophylactic rule, its continued validity is only supported to the extent that legal realities require it. Yet, as discussed at length earlier, the policy justifications for Helzer are largely undercut by the application of the rules of evidence and various legal doctrines in a trial setting.36 Most important, by allowing for bifurcated trials in appropriate cases, Michigan‘s court rules otherwise provide an adequate means of protecting against the harms identified in Helzer. Accordingly, there is no
compelling policy justification that supports retaining Helzer‘s rule of mandatory bifurcation.
Having reviewed these factors and considering the deference that must be accorded to the exact words chosen by the Legislature in
VI. CONCLUSION
We hold that separate juries are not necessarily required when a criminal defendant is charged with a sexual offense as well as with being a sexually delinquent person. To the extent that Helzer held contrarily, we overrule that portion of the decision and direct trial courts to exercise their discretion consistently with Michigan‘s court rules when determining whether separate jury trials are required in a given case.37
Accordingly, the prosecutor‘s application for leave to appeal is granted, the trial court‘s order granting defendant a new trial is vacated, defendant‘s conviction is reinstated, and this case is remanded to the Genesee Circuit Court for further proceedings consistent with this opinion.38
MARKMAN, MARY BETH KELLY, and ZAHRA, JJ., concurred with YOUNG, C.J.
CAVANAGH, J. I concur in the result only.
MARILYN KELLY, J. (concurring in part and dissenting in part). I concur in the result reached by the majority. However, I write separately to express my disagreement with several parts of the majority opinion.
I disagree with the partial overruling of People v. Helzer1 because it is unnecessary. Defendant forfeited his right to
The majority correctly notes that defendant testified about his prior felony convictions at trial. He also advanced as fact that he had accepted responsibility for those offenses to show that he would not have committed the indecent exposure alleged in this case. Moreover, many of his prior offenses would have been admissible under MRE 404(b) in a trial for the indecent exposure charge.
However, the testimony of defendant‘s parole officer about defendant‘s lengthy criminal history would have been admissible in the sexual delinquency case only to establish the elements of that offense. The prejudice inherent in admitting a defendant‘s entire criminal
history at a trial on both charges when it is relevant only to prove the sexual delinquency charge is significant.
Under the facts of this case, I cannot conclude that the admission of defendant‘s criminal history constituted plain error warranting reversal. Thus, I agree with the majority‘s decision to reinstate defendant‘s conviction, but would have decided this case on the narrow grounds previously discussed.
Because the majority reaches the Helzer rule and overrules it in part, I must also explain my disagreement with some of its reasoning. First, I would not rely on the doctrine of chances. As I explained in my dissenting opinion in People v. Mardlin, “[t]he decision whether to apply the doctrine of chances is made on a case-by-case basis considering the particular facts of the case.”5 Thus, application of the doctrine is appropriate only if the facts of the case support it. The majority has not shown that they do, though it notes that only “[i]n certain cases” would the doctrine permit evidence of a defendant‘s past sexual misconduct to come before a jury.6
I also write separately to address the majority‘s supposition that “[p]erhaps cases involving charges of sexual delinquency will need to be tried before separate juries at a higher rate than other crimes, but this does not necessitate a special rule applicable to all cases involving charges of sexual delinquency, particularly those in which indications of prejudice do not exist.”7 I believe that it is highly likely that such cases will need to be tried before separate juries more often than cases involving other crimes.
The potential for prejudice is greatly increased in cases in which the prosecution must prove the elements of an underlying sexual offense and the repetitive nature of the defendant‘s conduct.8 This is so because
I would further caution trial courts that nothing in the Court‘s ruling today undermines Helzer‘s persuasive reasoning for bifurcating jury trials as a discretionary matter. Henceforth, trial courts should carefully consider the potential for prejudice in such cases and whether a defendant can get a “fair determination” of his or her guilt or innocence “of each offense.”9
I also disavow part of the majority‘s stare decisis discussion. In its analysis of the reliance interest, the majority states that “citizens [do not] contemplate criminal activity in reliance on the particular procedural rule implicated in this case.”10 Hence, the majority asserts that reliance interests can never be implicated by caselaw interpreting a criminal statute because only criminals rely on that law. As I have previously explained, this statement is incorrect.11
Moreover, reliance interests are supposedly not implicated here simply because “the Helzer Court failed to
accord full meaning to the words of
For these reasons, I concur in the result reached by the majority opinion but dissent from much of its analysis.
HATHAWAY, J. (concurring in part and dissenting in part). I concur with the majority that the trial court‘s order granting defendant a new trial should be vacated and that defendant‘s conviction should be reinstated. However, I reach this conclusion because defendant has forfeited his right to separately empaneled juries in the matter before us. As the majority acknowledges, defendant was charged with “indecent exposure as a sexually delinquent person”1 and tried before one jury without objection. Under the circumstances presented in this case, defendant forfeited his right to separately empaneled juries. Accordingly, I respectfully dissent from the majority‘s decision to partially overrule People v. Helzer, 404 Mich. 410; 273 N.W.2d 44 (1978), which has served as precedent for more than 30 years in this state, because it is unnecessary to reach the issue whether Helzer was
correctly decided given that defendant forfeited the right to trial by separate juries.
I. ANALYSIS
At issue is whether defendant was entitled to separately empaneled juries. The
To determine whether the alleged error was forfeited, we first examine the right claimed by defendant. While defendant argues that he was denied the right to a jury trial, which cannot be waived without meeting the procedural requirements of MCR 6.402, I find defendant‘s argument without merit. Defendant was not denied the right to a jury trial; to the contrary, defendant was tried by a jury in this case. Defendant‘s claim of error involves the right to be tried by separate juries, in order to exclude possible prejudice resulting from the same jury hearing certain evidence. However, the right to separate juries found in Helzer was not
based on any federal or state constitutional right; rather, the right found in Helzer was based on the procedural language contained in
The test set forth in Carines for reversing a conviction on the basis of a nonconstitutional, unpreserved error requires that the defendant show a plain error that affected substantial rights.5 Further, “[t]he reviewing court should reverse only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.”6 Based on the violation of the right to separate juries set forth in Helzer, defendant did demonstrate a plain error. The error, however, at most resulted in the jury hearing and considering evidence that was potentially prejudicial. “[A] fair trial does not include the right to exclude relevant and competent evidence.”7 Therefore, the fact that the jury heard testimony concerning defendant‘s past convictions did not demonstrate prejudice affecting his substantial rights.
Even assuming that excluding this evidence implicated a substantial right, there was no showing that defendant in this case
Additionally, while Helzer discussed the right to separate juries in the context of fairness, in all situations in which severance is mandatory, the court rules clearly place the burden on the defendant to request the relief by motion.8 I see no reason to treat the Helzer right to severed trials differently from any other situation in which severance is mandatory. Further, there is nothing unfair in requiring a defendant to do so. The burden is on a defendant to request separate juries, and if a defendant fails to do so, the right is subject to the unpreserved-forfeiture analysis set forth in Carines. Given the circumstances of this case, there is nothing in
the record to reflect that defendant was actually innocent or that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings that resulted in his conviction.
Accordingly, I must respectfully dissent from the majority‘s decision to overrule Helzer. Helzer has served as precedent in this state for more than 30 years. Given that the defendant forfeited the Helzer issue, there is no reason to overrule Helzer, even in part, in the case before us. Overruling precedent may be warranted in certain circumstances, but overruling 30-year-old precedent should not be done without thoughtful consideration of the principle of stare decisis. Any stare decisis analysis must focus on the individual case and the reasons for overruling precedent. While the majority finds that the Robinson9 factors have been met in this instance, I disagree. The majority‘s reasons for overruling 30-year-old precedent are paramount to any articulated test, and given that the issue has been forfeited, there is no reason to partially overrule Helzer in the case before us.
II. CONCLUSION
I concur with the majority that the order granting defendant a new trial should be vacated and that defendant‘s conviction should be reinstated, although I reach this result on the ground that defendant forfeited his right to separately empaneled juries. Accordingly, I respectfully dissent from the majority‘s decision to partially overrule Helzer, which has served as precedent for more than 30 years in this state, because it is unnecessary to reach the issue whether Helzer was correctly decided.
Notes
See, e.g., People v. McNally, 470 Mich. 1, 5; 679 N.W.2d 301 (2004). See also Spencer v. Texas, 385 U.S. 554, 567-569; 87 S. Ct. 648; 17 L. Ed. 2d 606 (1967) (holding that there is no federal constitutional right to a bifurcated criminal trial).any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.
no reference to the sexual delinquency charge should be made to the jury trying the principal charge. Given the provision for separate juries, absolutely no need remains to acquaint the jury hearing the principal charge with the possible subsequent conviction of defendant as a sexually delinquent person. Discovery during trial of the principal charge that the jury hearing that case has learned of the sexual delinquency charge will henceforth be grounds for mistrial on the principal charge or reversible error on appeal. The two charges must be tried separately. Basic fairness to defendant requires this holding. [Id. at 426.]
Just as MRE 404(b) evidence may be used in this case to demonstrate defendant‘s intent, motive, or other non-character based purpose for exposing himself, the facts here also seem to present a particularly appropriate situation in which to properly employ the doctrine of chances. Defendant argued in particular that he did not intend to expose himself, or was not physically capable of exposing himself, in the instant case. This claim of a lack of intent or impossibility is belied by defendant‘s repeated convictions of similar crimes. Defendant‘s history of similar sexual deviancy demonstrates an objective likelihood of an actus reus in this case based on reasonable probabilities. Thus, because this evidence is likely otherwise admissible for proper purposes under MRE 404(b) or the doctrine of chances, the Helzer Court‘s concern about unfair prejudice from trying the charges before a single jury is significantly diminished.