PEOPLE V SABIN (AFTER REMAND)
Docket No. 114953
Supreme Court of Michigan
July 27, 2000
463 MICH 43
Argued April 4, 2000 (Calendar No. 2).
In an opinion by Justice CORRIGAN, joined by Chief Justice WEAVER, and Justices TAYLOR, YOUNG, and MARKMAN, the Supreme Court held:
The trial court did not abuse its discretion in admitting evidence that defendant sexually assaulted his stepdaughter and that an agency order existed prohibiting him from having contact with children under the age of seventeen.
MRE 404(b)(1) does not require еxclusion of otherwise admissible evidence; rather, it reiterates the general rule prohibiting use of evidence of specific acts to prove a person‘s character to show that the person acted in conformity with character on a particular occasion. This prohibition, however, does not preclude use of the evidence for other relevant purposes. All relevant evidence is admissible, except as otherwise provided by the United States and Michigan Constitutions and other rules. That the Rules of Evidence preclude the use of evidence for one purpose does not render the evidence inadmissible for other purposes. Rather, the evidence is admissible for a proper purpose, subject to a limiting instruction underMRE 105 .- Under VanderVliet, the trial court‘s initial determination in deciding whether to admit other acts evidence is one of relevance, i.e., evidence that is material and that has probative force. A material fact is one that is in issue in the sense that it is within the range of litigated matters in controversy. The trial court may exclude the admissible evidence of other acts if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. VanderVliet encouraged trial courts to utilize a flexible approach for determining admissibility to facilitate the informed exercise of their discretion.
- Because the prosecution identifiеs a permissible theory of admissibility and the defendant enters a general denial does not automatically render other acts evidence relevant in a particular case. The trial court must still make an individualized determination of relevance, i.e., it must determine whether the evidence, under a proper noncharacter theory, has a tendency to make the existence of a fact of consequence in the case more or less probable than it would be without the evidence. Evidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system. Logical relevance is not limited to circumstances in which the charged and uncharged acts are part of a single continuing conception or plot. General similarity between the charged and uncharged acts, by itself, does not establish a plan, scheme, or system used to commit the acts. The necessary degree of similarity is greater than that needed to prove intent, but less than that needed to prove identity.
- In this case, the trial court did not abuse its discretion in determining that the defendant‘s alleged assault of the complainant
and the alleged abuse of his stepdaughter shared sufficient common features to infer a plan, scheme, or system to do the acts. The charged and uncharged acts contained common fеatures beyond mere commission of acts of sexual abuse. The trial court did not abuse its discretion in declining to exclude the evidence under MRE 403 . The evidence was admissible to show the actus reus of the offense. The probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Likewise, the Court did not abuse its discretion in admitting evidence of the existence of the agency order. The evidence was clearly relevant because it explained the complainant‘s testimony regarding the threat used by the defendant in an effort to secure her silence. It was also relevant to the issue of the complainant‘s delay in reporting the assault.
Reversed and remanded.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated that the defendant‘s scheme, plan, or system in doing things was not a purpose offered or articulated at trial as required by VanderVliet, Crawford, and Starr. Also, the majority fails to show that the evidence of a common plan in this case is relevant apart from its tendency to show that the defendant committed the instant crime because he acted in conformity with his criminal disposition. Finally, the majority errs in creating a rule providing that any similarities among successive crimes proves a plan, and thus proves that the charged offense was committed.
Under VanderVliet, something more than a mechanical recitation of the list of “proper purposes” under
The majority‘s analysis of plan, scheme, or system is lacking the “relevance to a fact in issue” requirement. Where the ultimate fact to be proved through other acts evidence is that a criminal act took place, there must be a proper intermediate inference established by the other acts evidence that is probative of whether the crime occurred. The majority has provided no intermediate inference, however. Instead, it adopts the rule that the prosecutor need only show similarities in the charged and uncharged crimes. Yet, these similarities prove only that the defendant acted in conformity with his character to commit similar acts. This analysis allows the prosecution to skip the intermediate-inference requirement and instead point to one or two similarities as proof that the second act must have occurred. In other words, the prosecutor now may work backwards and argue that, where there are similarities, there is a plan and, therefore, the other acts evidence proves defendant committed the instant crime. This logic has never been adopted, and it appears this leap is now made simply to convict a reprehensible defendant. The proper rule would follow well-established principles of evidence that require a showing that the other acts evidence is being presented to show something other than propensity to commit the crime.
This new rule removes the prosecutor‘s burden of weaving a logical thread linking the prior act to the ultimate inference. Under the California rule adopted by the majority, to establish a common plan, the common features had to indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan did not need to be distinctive. Thеre is no requirement that the prosecutor show a permissible intermediate inference to prove any material fact. Similarities instantly show a plan, and use of a plan shows that the defendant committed the crime at issue. However, even under its new rule, the majority has shown nothing to indicate that the common features of the charged and uncharged crimes indicated the existence of a plan rather than a series of similar spontaneous acts. Rather, the facts indicate that the defendant spontaneously took advantage of an opportunity to rape his daughter while they were alone in the house. No facts show that he manipulated the situation in order to get his daughter alone in the house as part of a plan to later attack her. The threat that she would break up the family appears to have been an afterthought to
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Judith B. Ketchum, Assistant Prosecuting Attorney, for the people.
Martin J. Beres for the defendant-appellee.
Amici Curiae:
John D. O‘Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, for Wayne County Prosecuting Attorney.
Gentry Law Offices, P.C. (by Kevin S. Gentry), and Willey & Chamberlain (by Raymond E. Beckering, III) for Criminal Defense Attorneys of Michigan.
Brian L. Mackie, President, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appеllate Attorney, for Prosecuting Attorneys Association of Michigan.
AFTER REMAND
CORRIGAN, J. We granted leave in this criminal sexual conduct case arising from defendant‘s alleged sexual assault of his thirteen-year-old daughter to consider whether the trial court abused its discretion in admitting evidence that defendant sexually assaulted his
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
The complainant alleged that defendant sexually assaulted her in late September 1994. She testified that she and defendant were alone in the family home in the afternoon. Defendant began “acting weird” and left the living room, where the complainant was watching television. He returned after removing his t-shirt. He sat next to the complainant and began rubbing her leg. He then stood up, locked the front door, turned off the television, and unplugged the telephone. The complainant attempted to leave through the back door, but defendant led her by the arm back into the living room.
The complainant testified that defendant pushed her to the ground and, while holding her down, removed her clothes. Defendant then had sexual intercourse with the complainant. After the assault, defendant told the complainant that if she reported the incident to her mother, her mother would “be
The prosecution moved before trial under
At trial, defendant‘s stepdaughter testified outside the presence of the jury that defendant sexually abused her during the period beginning when she was in kindergarten and ending in 1985, when she was in the seventh grade. The abuse stopped because defendant “went away.” The stepdaughter testified that defendant performed oral sex on her three to seven times weekly during the period. She also recalled one incident during which defendant had her lay on her side and he placed his penis between her legs. She recalled another incident during which defendant‘s daughters from a prior marriage2 were at the family home for the weekend. The stepdaughter
In argument, the prosecution stressed the similarities between the charged incident and the abuse of the stepdaughter. The prosecution argued that the evidence was relevant to show the absence of mistake, to support the complainant‘s credibility, and to aid the jurors in their evaluation of the evidence by demonstrating that an adult can be sexually attracted to, and actually accomplish a sex act with, a child.
The trial court admitted the evidence, reasoning as follows:
Here, I think the evidence tends to show that the Defendant has committed other wrongful acts involving a child, or a juvenile, who was a member of the same household, which is the exact situation we have in the allegations in this trial.
Furthermore, we have the Defendant indicating that that conduct should not be reported for fear of breaking up the family or getting people in trouble. And, I think that is all consistent with the—the way in which he is alleged to have engaged in sex or sexual penetration in this case.
Therefore, I think it is, indeed, relevant, particularly where the Defense is a general denial.
Therefore, I believe it is offered for a proper purpose.
The second facet which I must consider is whether it is relevant. In light of the general denial I think it is relevant.
Third, whether the probative value is substantially outweighed by unfair prejudice under
MRE 403 . I find that it—it is not, in light of the testimony presented here today, particularly because I will give a limiting instruction as pro-vided for in [People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993)] and I will give it not only in advanсe of [the stepdaughter‘s] testimony, but if so requested I will give a limiting instruction at the conclusion of the trial in my general instructions to the jury.
The trial court gave a preliminary instruction to the jury regarding the stepdaughter‘s testimony, cautioning the jury regarding its consideration of the evidence. The court explained that “the relevancy of this testimony is to show ... the Defendant‘s scheme, plan or system of how he does certain things. It is not—you must not conclude, and you cannot conclude or infer that because he may have done something wrong in the past that he, therefore, did something wrong in the incident for which he is on trial.” The stepdaughter then testified before the jury regarding the alleged abuse.
The prosecution also moved before trial to admit evidence of the existence of an order prohibiting defendant from having contact with children under the age of seventeen. In the spring of 1994, the parole board had released defendant after having served nine years in prison for a 1985 first-degree criminal sexual conduct conviction arising from his having had sexual intercourse with one of his daughters from his first marriage. A condition of defendant‘s parole was that he not have contact with anyone under the age of seventeen.
The prosecution argued that the existence of the order was relevant because it would explain the complainant‘s actions after the assault. The prosecution proposed that witnesses and counsel refer to the condition of parole as a “state agency” order to guard
The jury convicted defendant of first-degree criminal sexual conduct. The trial court sentenced defendant to a term of life imprisonment. The Court of Appeals reversed defendant‘s conviction on the ground that the trial court erred in admitting evidence regarding defendant‘s abuse of his stepdaughter and the existence of the state agency order.3 The Court construed the trial court‘s remarks as admitting the evidence for the improper purpose of establishing defendant‘s propensity to sexually abuse his children. The Court further determined that the evidence was not admissible to prove defendant‘s common scheme, plan, or system because the only similarity between the acts was that defendant allegedly told each victim that disclosing the abuse would break up the family. The Court concluded that the prejudicial effect of the evidence greatly outweighed its probative value.
Regarding the state agency order, the Court of Appeals held that the unfair prejudice resulting from the evidence substantially outweighed its probative value. It further concluded that the evidence likely misled the jury and confused the issues. The Court reasoned that the jury likely drew a connection between evidence that defendant had been separated from his family for ten years, a state agency had determined that defendant posed a risk to children, and defendant had molested his stepdaughter. The evidence, the Court concluded, seriously prejudiced defendant by informing thе jury that defendant could not be trusted near his own children. The Court
The Court of Appeals determined that the trial court‘s errors were not harmless. It rejected, however, defendant‘s claim that the prosecution‘s failure to specify the exact date of the offense in the information denied him due process of law. The Court declined to address defendant‘s remaining arguments in light of its decision to reverse and remand for a new trial.
The prosecution applied for leave to appeal to this Court. We initially held the application in abeyance for People v Starr, 457 Mich 490; 577 NW2d 673 (1998). After deciding Starr, we remanded this case to the Court of Appeals for reconsideration in light of Starr, supra, and People v Crawford, 458 Mich 376; 582 NW2d 785 (1998). 459 Mich 924 (1998).
On remand, the Court of Appeals reaffirmed its prior decision.4 The Court concluded that Crawford supported its prior decision because defendant‘s alleged abuse of his stepdaughter was “substantially dissimilar” from the charged conduct. 236 Mich App 9. On examination of Starr, supra, the Court deter-
Judge WHITBECK dissented. The dissent criticized the Court of Appeals majority for relying too heavily on a similar acts rationale because
II. EVIDENCE OF DEFENDANT‘S ABUSE OF HIS STEPDAUGHTER
We conclude that the trial court did not abuse its discretion in admitting evidence concerning defendant‘s alleged abuse of his stepdaughter.
A. MRE 404(b)
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
In VanderVliet, supra at 74-75, we adopted the approach to other acts evidence enunciated by the United States Supreme Court in Huddleston v United States, 485 US 681, 691-692; 108 S Ct 1496; 99 L Ed 2d 771 (1988). That approach employs the evidentiary safeguards already present in the rules of evidence. First, the prosecutor must offer the other acts evidence under something other than a character to conduct or propensity theory.
The VanderVliet analytical framework reflects the theory of multiple admissibility on which
Under VanderVliet, the trial court‘s initial determination in deciding whether to admit other acts evidence is one of relevance.
In VanderVliet, supra at 90-91, we encouraged trial courts to utilize a flexible approach for determining admissibility to facilitate the informed exercise of their discretion under
The probative value of other acts evidence and its true potential for prejudice is often unclear until the proofs are actually presented. Other acts evidence relevant to elements technically at issue because of a not guilty plea may initially have only marginal probative value in comparison to the potential prejudice generated by the evidence. Where, for example, the real issue contested is whether the act was committed, and the prosecution‘s claim is that the disputed issue of mens rea requires admission of other acts evidence in the case in chief, the trial court should defer the ruling on admissibility where the jury would be likely to determine criminal state of mind from the doing of the act, allowing admission in the case in chief only if the evidence of other acts meets the standards for admission as proof of actus reus. On the other hand, in some cases the cross-examination of witnesses in the case in chief may make it clear that the intent with which the act was committed is likely to be a matter of significant concern to the factfinder. The prosecutor should not be allowed to introduce other acts evidence only because it is technically relevant, nor should the defendant be allowed to interdict proofs that are highly probative of a truly contested issue. By waiting to determine the admissibility of other acts evidence relevant
to an element only technically at issue, the trial court is able to forestall gamesmanship by the parties and insure the admission of evidence that possesses significant probative value. The ultimate goal is an enlightened basis for the trial court‘s conclusion of relevance and for the attendant inquiry under MRE 403 .
We again encourage trial courts to use this approach.
B. RELEVANCE
In this case, the prosecution argues that the other acts evidence was admissible to show defendant‘s scheme, plan, or system in doing an act, to show defendant‘s motive and intent, to show an absence of mistake, and to bolster the complainant‘s credibility.6
We review the trial court‘s evidentiary rulings under
As we have often stated, a defendant‘s general denial places all the elements of the charge at issue. Starr, supra at 501; VanderVliet, supra at 78. That the prosecution has identified a permissible theory of admissibility and the defendant has entered a general denial, however, does not automatically render the other acts evidence relevant in a particular case. The trial court must still detеrmine whether the evidence, under a proper theory, has a tendency to make the existence of a fact of consequence in the case more or less probable than it would be without the evidence.
We recognize that determining relevance is often difficult because it necessarily involves drawing subtle distinctions. Although we sympathize with the trial courts in their struggle with evidentiary rulings in sexual abuse cases involving children, our evidentiary rules require that trial courts engage in the inquiry. Unlike the courts of other jurisdictions, we have never adopted the so-called “lustful disposition” rule,7
1. SCHEME, PLAN, OR SYSTEM
In this case, the trial court apparently held that the evidence was relevant under a theory that it showed defendant‘s plan, scheme, or system in doing an act. In People v Engelman, 434 Mich 204; 453 NW2d 656 (1990), this Court rejected the notion that use of
Engelman, supra at 220-221, explained:
If it could be shown in this case that defendant did indeed follow a common scheme or plan in committing such acts against young children, it would defy lоgic to limit the use of that evidence to proof of identity or state of mind. The former will never be in dispute where the defendant and the victim know each other, and the defendant‘s state of mind is not an element of many of the offenses set forth in the criminal sexual conduct act. Yet, in many cases such evidence might be not only relevant to the determination of defendant‘s guilt or innocence, but also material in the sense required by [People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982)], as proof that the act was committed. As explained in 2 Wigmore, Evidence (Chadbourn rev), § 304, p 249, “[w]hen the very doing of the act charged is yet to be proved, one of the evidential facts receivable is the person‘s design or plan to do it....”
Engelman, however, provided little guidance for lower courts in determining the existence of a plan, scheme, or system. This Court suggested that to establish a “true plan,” the evidence must show ” ‘that the defendant in fact and in mind formed a plan including the charged and uncharged crimes as stages in the plan‘s execution.’ ” Id. at 221, quoting Imwinkelried, Uncharged Misconduct Evidence, § 3:21, p 53. We also quoted a passage from 1 Wharton, Criminal Evidence (14th ed), § 186, pp 786-787, stating that evidence ” is admissible when it tends to establish a common plan, design, or scheme embracing a series of crimes, including the crime charged, so
Engelman thus focused on one of the two situations that fall within this theory of logical relevance. The situation identified in Engelman is where the charged and uncharged acts are constituent parts of a plan in which each act is a piece of the larger plan. That situation is not present in this case. Instead, this case is one wherе the defendant allegedly “devis[ed] a plan and us[ed] it repeatedly to perpetrate separate but very similar crimes.” State v Lough, 125 Wash 2d 847, 855; 889 P2d 487 (1995).9
Today, we clarify that evidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system.10 See People v Ewoldt, 7 Cal
General similarity between the charged and uncharged acts does not, however, by itself, establish a plan, scheme, or system used to commit the acts. 2 Wigmore, Evidence (Chadbourn rev), § 304, p 249, explains:
But where the conduct offered consists merely in the doing of other similar acts, it is obvious that something more is required than that mere similarity, which suffices for evidencing intent . . . . The object here is not merely to negative an innocent intent at the time of the act charged, but to prove a preexisting design, system, plan, or scheme, directed forwards to the doing of that act. In the former case (of intent) the attempt is merely to negative the innocent state of mind at the time of the act charged; in the present case the effort is to establish a definite prior design or system which included the doing of the act charged as part of its consummation. In the former case, the result is to give a complexion to a conceded act, and ends with that; in the present case, the result is to show (by probability) a precedent design which in its turn is to evidence (by probability) the doing of the act designed.
The added element, then, must be, not merely a similarity in the results, but such a concurrence of common features
that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Emphasis in original.]
Wigmore, supra at 250-251, expounds on the common features between the uncharged and charged act necessary to support an inference of a plan, scheme, or system:
[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity. . . .
The clue to the difference is best gained by remembering that in the one class of cases the act charged is assumed as done, and the mind asks only for something that will negative innocent intent; and the mere prior occurrence of an act similar in its gross features—i.e., the same doer, and the same sort of act, but not necessarily the same mode of acting nor the same sufferer—may suffice for that purpose. But where the very act is the object of proof, and is desired to be inferred from a plan or system, the combination of common features that will suggest a common plan as their explanation involves so much higher a grade of similarity as to constitute a substantially new and distinct test. [Emphasis in original.]
In Ewoldt, supra at 402-403, the Supreme Court of California provided guidance for ascertaining the existence of a common plan used by the defendant to commit the charged and uncharged acts. As Ewoldt explains, the necessary degree of similarity is greater than that needed to prove intent, but less than that needed to prove identity.
To establish the existence of a common design or plan, the common features must indicate the existence of a plan
In this case, we conclude that the trial court did not abuse its discretion in determining that defendant‘s alleged assault of the complainant and alleged abuse of his stepdaughter shared sufficient common features to infer a plan, scheme, or system to do the acts. The charged and uncharged acts contained common features beyond mere commission of acts of sexual abuse. Defendant and the alleged victims had a father-daughter relationship. The victims were of similar age at the time of the abuse. Defendant allegedly played on his daughters’ fear of breaking up the family to silence them. One could infer from these common features that defendant had a system that involved taking advantage of the parent-child relationship, particularly his control over his daughters, to perpetrate abuse.11
We acknowledge that the uncharged and charged acts were dissimilar in many respects. Defendant‘s stepdaughter testified that, over the course of seven or eight years beginning when she was in kindergarten, defendant performed oral sex on her three to seven times weekly. The abuse took place at night in her bedroom. She recalled one incident when she was in the fifth grade during which defendant had her lay on her side and he placed his penis between her legs. The charged act in this case, in contrast, was the only time defendant assaulted the complainant. The complainant did not allege prolonged sexual abuse. The incident occurred during a weekday afternoon, not at night while the complainant slept. The sexual act was intercourse, not oral sex. On the basis of this evidence, one could infer that the uncharged and charged acts involvеd different modes of acting, both in terms of sexual acts and the manner in which defendant allegedly perpetrated the abuse.
This case thus is one in which reasonable persons could disagree on whether the charged and uncharged acts contained sufficient common features to infer the existence of a common system used by defendant in committing the acts. As we have often observed, the trial court‘s decision on a close evidentiary question such as this one ordinarily cannot be an abuse of discretion. E.g., People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998); Bahoda, supra at 289. We therefore conclude that the trial court did not abuse its discretion in determining, under the circum-
2. MOTIVE AND INTENT
The prosecution next argues that the evidence was admissible to prove defendant‘s motive and intent. “A motive is the inducement for doing some act; it gives birth to a purpose.” People v Kuhn, 232 Mich 310, 312; 205 NW 188 (1925). Evidence of the defendant‘s motive to commit the charged crime lends itself to three theories of logical relevance: (1) identity; (2) actus reus, and (3) mens rea. Imwinkelried, supra, §§ 3:15, 4:19, and 5:35.
In this case, the prosecution argues that defendant‘s motive was to have sex with young girls who were related to him and that the existence of this motive, as evidenced by other sexual misconduct with his stepdaughter, tended to prove that the sexual assault alleged by the complainant actually occurred. This proffered purpose is undistinguishable from the so-called “lustful disposition” rule. However, as stated, this Court has never adopted that rule, and we decline to do so here. To accept the prosecutor‘s theory of logical relevance would allow use of the evidence for the prohibited purpose of proving defendant‘s character to show that he acted in conformity therewith during the events underlying the charged offense.
We likewise conclude that the evidence was not logically relevant under a theory that it proved defendant‘s intent. First-degree criminal sexual conduct is a general intent crime. People v Langworthy, 416 Mich 630, 645; 331 NW2d 171 (1982). “[N]o intent is requi-
3. ABSENCE OF MISTAKE
We reject the prosecution‘s argument that the evidence was relevant to show the absence of mistake in the victim‘s perception of the incident underlying the charges. We agree that the ultimate fact—that sexual penetration occurred—was a fact of consequence at trial. Nevertheless, the thirteen-year-old complainant‘s perception of the incident, i.e., whether she mistakenly believed that sexual penetration occurred when, in fact, it did not, was not “in issue.” The complainant‘s perception of the incident was not within the range of litigated matters in controversy. Mills, supra at 68. “The relationship of the elements of the charge, the theories of admissibility, and the defenses asserted governs what is relevant and material.” VanderVliet, supra at 75. In this case, defendant‘s theory of defense was not that the complainant mistakenly perceived his actions, but that the entire incident did not take place. We therefore conclude that the evidence was not relevant under a theory of absence of mistake.
4. THE COMPLAINANT‘S CREDIBILITY
The prosecution lastly argues that the evidence was relevant to bolster the complainant‘s credibility. In People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), this Court held that evidence of uncharged
C. MRE 403
We turn to the trial court‘s determination under
In VanderVliet, supra at 81, this Court observed that the
III. AGENCY ORDER
We agree with the prosecution that the Court of Appeals erred in concluding that the trial court abused its discretion in admitting evidence of the existence of the agency order. In this case, the prosecution did not offer the evidence for the purpose of demonstrating defendant‘s bad character by means of an inference from his having violated the order. The evidence was instead clearly relevant because it explained the complainant‘s testimony regarding the threat used by defendant in an effort to secure her silence. The complainant testified that defendant told her that if she reported the incident to her mother, her mother would “be really upset with [her] for
We conclude that the evidence was also relevant to the issue of the complainant‘s delay in reporting the assault, even though defendant ultimately chose not to vigorously argue that the delay signified that the assault did not occur. Materiality “does not mean that the evidence must be directed at an element of a crime or an applicable defense.” Mills, supra at 67-68. Rather, a material fact is one that is “‘in issue’ in the sense that it is within the range of litigated matters in controversy.” Id. at 68, quoting United States v Dunn, 805 F2d 1275, 1281 (CA 6, 1986). Evidence regarding the existence of the agency order shed light on the family secret that possibly caused the complainant to hesitate before reporting the abuse for fear that the report would get her parents in trouble. Therefore, viewed from the trial court‘s perspective at the time it ruled on the prosecution‘s motion, the evidence was admissible to explain the complainant‘s delay in reporting the assault in order to rebut defendant‘s claim that the complainant fabricated the allegation of a sexual assault.
We further conclude that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
IV. CONCLUSION
We hold that the trial court did not abuse its discretion in admitting evidence that defendant sexually assaulted his stepdaughter and that an agency order existed prohibiting defendant from having contact with children under the age of seventeen. Accordingly, we reverse the decision of the Court of Appeals, and remand this case to the Court of Appeals for consideration of defendant‘s remaining arguments.
WEAVER, C.J., and TAYLOR, YOUNG, and MARKMAN, JJ., concurred with CORRIGAN, J.
CAVANAGH, J. (dissenting). I agree with the majority‘s rejection of motive, intent, absence of mistake, and bolstering the victim‘s credibility as proper
PROPER PURPOSE
VanderVliet teaches that something more than a mechanical recitation of
Each of the prosecution‘s arguably plausible6 purposes are properly rejected by the majority. However, the majority has gone one step further, and makes a determination whether “scheme, plan, or system” is a
Judge WHITBECK‘S dissent below properly recognized that the initial question for the appellate court is whether, under VanderVliet, the prosecutor articulated a proper purpose at trial. 236 Mich App 1, 16; 600 NW2d 98 (1999). It is insufficient for the prosecutor, on appeal, to recite purposes that were articulable at trial. Id. Under VanderVliet, the prosecutor has the burden of articulating a nonpropensity ground for admission of other acts evidence. It is not enough that a nonpropensity theory might exist if it was not articulated or relied on by the prosecution at trial. This was reiterated in both Starr and Crawford. See 236 Mich App 17, n 6 (explaining that those cases require that the proper purpose be offered or articulated by the prosecutor, rather than simply requiring that a proper purpose exists). Moreover, it is not enough that the trial court may have listed or articulated a proper purpose when accepting the evidence. The first leg of VanderVliet requires the prosecutor at trial to articulate a proper purpose for admitting the prior acts evidence, it does not look forward to the purposes articulated by the trial court when accepting the evidence.
This view is further supported by this Court‘s adoption of a procedural safeguard in these cases after VanderVliet.
Additionally, as a matter of fairness to the defendant, the prosecutor should not be allowed to list its purposes and rationale at trial, and then grasp for more on appeal when those fail.
Judge WHITBECK scoured the record to find any and all arguments showing the prosecution‘s nonpropensity theories.7 Scheme, plan, or system was not included in the list. In fact, it was not until the case reached this Court a second time that the “scheme, plan, or system” theory was added by the prosecutor. The prosecutor cites People v Engelman, 434 Mich 204, 223, n 27; 453 NW2d 656 (1990), for the proposition that the failure to advance the correct theory of admission does not justify automatic reversal of a conviction. This fails because, first, this was dicta, and, second, Judge WHITBECK correctly noted that the cases relied upon in the Engelman footnote do not support the prosecutor‘s view. Judge WHITBECK stated:
I first note that Engelman, in turn, cites Templin v Nottawa Twp, 362 Mich 257; 106 NW2d 825 (1961), and Plec v Liquor Control Comm, 322 Mich 691; 34 NW2d 524 (1948) . . . . Templin, however, does not deal with an evidentiary rule and stands only for the time-honored proposition that a
reviewing court will not disturb the conclusions of a lower court that reached the right conclusion regardless of the reasons it cites for reaching that conclusion. Templin, supra at 261. The decision in Plec rests on the same basis . . . . At best, therefore, it seems to me that Engelman stands for the proposition that the fact that a trial court may have erred in assigning a proper purpose for accepting the other acts testimony is not fatal on appeal, if a proper purpose existed and was articulated at trial. I secondly note that, quite obviously, Engelman predated the Court‘s adoption of the VanderVliet four-legged test and therefore should not be interpreted as speaking definitively to the question of an “articulated” versus an “articulable” purpose with respect to the first leg. [236 Mich App 20, n 10 (emphasis in original).]
After two attempts at the Court of Appeals, and two attempts at this Court, it appears that the prosecutor has finally articulated a proper purpose under the majority view. It is apparent that the first leg of the four-legged test articulated in VanderVliet has been rendered a nullity. That case is left to wobble on its remaining three legs. From today forward, prosecutors may ignore the requirements of
Because the prosecutor failed to meet the requirements of the first leg of VanderVliet and our court rules regarding character evidence, I would affirm the decision of the Court of Appeals.
SCHEME, PLAN, OR SYSTEM
As explained, the proper purpose articulated by the prosecutor must be relevant to a fact in issue. The
The majority explains that the proper purpose must be relevant, or material:
Materiality, however, “does not mean that the evidence must be directed at an element of a crime or an applicable defense.” A material fact is one that is “‘in issue’ in the sense that it is within the range of litigated matters in controversy.” [Ante, p 57 (citations omitted).]
In finding that defendant‘s scheme, plan, or system was material, the majority relies on an interesting interpretation of the Engelman dicta. Ante, pp 61-62. It is true that other acts evidence is not limited to proving identity or intent. We need not look to Engelman to support this statement when
Lough simply followed the Ewoldt analysis and its precedent. The Ewoldt rule provides that other acts
The majority has provided no intermediate inference.9 Instead, it adopts the rule that the prosecutor need only show similarities in the charged and uncharged crimes. These similarities prove only that defendant acted in conformity with his character to commit similar acts. This analysis allows the prosecution to skip the intermediate inference requirement and instead point to one or two similarities as proof that the second act must have occurred. In other words, the prosecutor may now work backwards and argue that, whеre there are similarities, there is a plan, and therefore the other acts evidence proves defendant committed the instant crime. This logic has never been adopted, and it appears this leap is now made simply to convict a reprehensible defendant. The proper rule would follow well-established principles of evidence that require a showing that the
SUFFICIENT SIMILARITY
The majority‘s new rule removes the prosecutor‘s burden of weaving a logical thread linking the prior act to the ultimate inference. Rather than follow our established law in this area, it adopts California‘s “sufficient similarity” test provided in Ewoldt. However, under the facts of this case, it fails to carry even this light burden. Ewoldt explains that to establish a common plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan need not be distinctive. Ewoldt, supra at 403.
In this case, the majority points to three common features among the uncharged and charged acts. First, the alleged victims had a father-daughter relationship. Second, the victims were of similar age at the time of the abuse. Third, defendant played on his daughters’ fears of breaking up the family to silence them. Ante, p 66. The problem with such common features is that they include the very elements of the uncharged and charged crimes. Defendant was convicted of CSC I pursuant to
It is obvious that the preceding logic will do great damage to the law of evidence if the prosecutor is allowed to introduce the very elements or nature of a prior crime in order to show that the defendant committed a later crime. Any second offender of a charged or uncharged similar crime will have his prior acts disclosed to the jury in order to prove a plan. There is no longer a requirement that the prosecutor show a permissible intermediate inference to prove any material fact. Similarities instantly show a plan, and use of a plan shows that defendant committed the crime at issue.
Moreover, the majority has shown nothing to indicate that the common features of the charged and uncharged crimes “indicate[d] the existence of a plan rather than a series of similar spontaneous acts” under the Ewoldt test. Id. at 403. Rather, the facts indicate that defendant spontaneously took advantage of an opportunity to rape his daughter while they
CONCLUSION
The majority errs for several reasons. First, it has removed the responsibility of the prosecutor to provide and articulate a proper purpose as required under the first leg of the VanderVliet test. Instead, it adopts a new “common plan” purpose not argued by the prosecutor. This allows appellate courts, in hindsight, to search for proper purposes to support admission of
For the above reasons, I would affirm the decision of the Court of Appeals.
KELLY, J., concurred with CAVANAGH, J.
Notes
In Crawford, supra at 388, this Court stated that “[i]n order to ensure the defendant‘s right to a fair trial, courts must vigilantly weed out character evidence that is disguised as something else. The logical relationship between the proffered evidence and the ultimate fact sought to be proven must be closely scrutinized.” Although strongly worded, one should not construe Crawford as creating a heightened standard of relevance for other acts evidence. Rather, Crawford recognizes that determining the admissibility of other acts evidence is often difficult. The trial court must ascertain whether the proffered theories of logical relevance apply under the circumstances of a particular case.
After VanderVliet, we amended
The prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting the evidence. If necessary to a determination of the admissibility of the evidence under this rule, the defendant shall be required to state the theory or theories of defense, limited only by the defendant‘s privilege against self-incrimination.
This case reveals that, even with this notice provision, the trial court‘s task is not an easy one.
It is not solely the prosecutor‘s failure to recite magic words that requires reversal in this case. It is the failure under our case law and MRE 404(b)(1) and (2) to provide a legitimate rationale for admitting the evidence. The majority argues that pointing out similarities between an uncharged and charged act satisfies the prosecutor‘s burden to articulate and provide rationale for admission of the evidence. In future cases, criminal defendants should cite this rationale to ensure review of issues not preserved at trial. The majority also argues that the trial court admitted the evidence under a “scheme, plan, or system” theory. The record is void of support for this assertion. The court simply stated that the evidence was relevant because it was similar. Finally, instructing the jury that it should use the evidence to support a showing that this is “how he [defendant] does certain things” fails to cure the error.The prosecution argued in the trial court that the other acts evidence would show defendant‘s motive and intent, show the absence of mistake, demonstrate the possibility that adults can be sexually attracted to, and engage in sex acts with, children, and bolster the complainant‘s credibility. Under the first leg of VanderVliet, the prosecution must “offer” the evidence for a proper purpose. Here, the prosecution clearly offered the evidence for permissible purposes. The key question is whether, under the circumstances of this case, the evidence was relevant under those theories of logical relevance.
In Crawford, supra at 386, n 6, this Court emphasized that the prosecution bears the burden of articulating a proper purpose for the admission of prior acts evidence under
We simply do not share the dissent‘s view that the failure of the prosecution to speak the words “plan, scheme, or system” requires reversal of defendant‘s conviction. First, in this case, one could arguably construe the prosecution‘s emphasis on the similarities between the charged and
“When the prosecutor offers uncharged misconduct to prove the commission of the actus reus, the judge should very carefully scrutinize the prosecutor‘s theory of logical relevance. This is the theory of relevance in which it is easiest for the prosecutor to slip into improper character reasoning. Since the ultimate inference is conduct, this theory places the greatest strain on the prohibition in the first sentence of Rule 404(b). The courts are reluctant to admit uncharged misconduct to prove the actus reus, and that reluctance is well-founded. If the prosecutor wants to avoid Rule 404(b), the prosecutor must persuade the judge that the prosecutor is invoking an intermediate inference other than the defendant‘s subjective character.” [434 Mich 215-216 (citations omitted).]Of course, after today, the prosecutor need not bother with these unduly strict requirements, and may introduce evidence of prior acts by pointing to similarities between the prior act and the offense charged.
Further, the dissent‘s reading of Engelman would conflict with People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), in which this Court held that evidence that the defendant sexually assaulted other women in a similar manner was properly admitted to show the defendant‘s plan or scheme. Although this Court determined that the evidence was probative of the issue of consent, it clearly viewed the plan, scheme, or system theory as encompassing situations where the charged and uncharged acts are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system.
The majority‘s explanation, that the “common system” theory itself is its own intermediate inference, is vacuous, but would fit quite well into a work of Lewis Carroll.