*1 PEOPLE STARR 14, 1995, Rapids. Docket No. 180089. Submitted Grand November July 23, 1996, appeal sought. Decided at 9:10 Leave to A.M. by jury Malcolm R. Starr was a in convicted the Washtenaw Circuit Court, Ager, Jr., J., E of William two counts of criminal sexual and of conduct one count criminal sexual conduct. He was sentenced to concurrent sentences fifteen to thirty-five years for each conviction years conduct and ten to fifteen for the conviction of second- degree appealed, part, alleging, He conduct. in allowing testily regarding the trial court erred in his half sister to uncharged perpe- criminal sexual conducted the defendant involving her trated on acts similar to those in this prosecution. Appeals
The Court of held: horrendously prejudicial The of similar acts were so require suppression prejudicial as to their permitting bative. The trial court its abused discretion in testimony. Reversed. J., dissenting, that the stated trial court did not abuse its admitting in discretion The did relevant; not violate MRE it because was not offered solely show defendant’s criminal or to establish conformity propensity; that he acted with that it was offered to system doing show an act as well as absence of accident; limiting mistake or instruction that the presented jury, prejudice of unfair did not
substantially outweigh probative testimony. value of the disputed testimony substantially admission of the was not out- potential weighed by prejudice. for unfair — Evidence Other Acts. inflammatory
Other acts evidence that is so and so that its clearly outweighed value is should not admitted be 404(b). Opinion of the Court Attorney General, Thomas L. Kelley, Frank J. Mackie, Brian L. Casey, Solicitor General, Prosecut- King, and David A. Attorney, Senior Assistant people. for the Prosecuting Attorney, *2 Rust, Daniel J. for the defendant. C.J., and Michael Kelly J.
Before: Doctoroff, JJ. Markey, by J. Defendant was convicted Kelly,
Michael criminal sexual jury of two counts of and one conduct, 750.520b; 28.788(2), MCL MSA conduct, MCL count received concur- 750.520c; 28.788(3). MSA Defendant thirty-five years for each rent sentences of fifteen to criminal sexual conduct and conviction of of second- years ten to fifteen for the conviction appeals conduct. Defendant as degree and we reverse. right prosecution pretrial made a motion to admit by defendant’s half sister prior perpetrated criminal sexual conduct uncharged in upon involving her acts similar to those The victim here was defendant’s prosecution. this years trial, and less than stepdaughter, nine old at place. abuse took The accusa- seven when the sexual years tions were not made until two after the events. testify half The motion revealed that the sister would “rape” hav- including about innumerable sexual acts by defendant over a upon been inflicted her ing period (accord- when she was four to thirteen age age or when she was defendant-appellant’s brief), prosecutor’s (according three to adult age of similar conclude that these brief). We horrendously require as to acts were so 217 by suppression prejudicial their It was a bative. This was not a skunk box. unswayed pig fact could have been farm. No trier of depravity by depiction assessing of this dis- decry guilt. per- crete claims of the “bad man’s” We any mitting rubric, of this the effect by including an instruction the court that the with MRE acts were introduced accordance purposes establishing 404(b)(1) for a scheme or plan, or absence of accident or mistake. process guarantee
Due is the constitutional of fed- government charged against eral and state that crimes among indicted, the most hateful us are entitled to be proved beyond examined, and a reasonable doubt. prosecutorial tyranny. given Otherwise we have in to try The effect here was to uncharged the defendant for repugnance criminal acts of monstrous process. without the bother of due The trial court *3 testimony. permitting abused its discretion in Peo- ple (1993). VanderVliet, 52; 444 Mich 508 NW2d prosecution’s argument that because of defend- general ant’s denial all elements of the offenses were issue is correct under but the situa- surrounding alleged tion matory contacts was so inflam-
and so that the value clearly outweighed. Reversed.
Doctoroff, C.J.,concurred. (dissenting). respectfully, strongly, Markey, I but Following trial, dissent. defendant was found guilty of two counts of 28.788(2), conduct, 500.520b; MCL MSA and one conduct, count of MCL by Makkey, 750.520c; MSA for cun- 28.788(3), engaging fellatio, nilingus, and other acts of sexual contact with his seven-year-old stepdaughter. Defendant received con- thirty-five years’ current sentences of fifteen to imprisonment for each conviction.
criminal sexual conduct and years’ ten to fifteen imprisonment for the conviction of second-degree criminal sexual conduct. appeals Defendant as of from right convictions, his that the trial asserting in admitting erred into evidence defendant’s bad acts that the trial adjourn court’s refusal to his sentencing of his change legal counsel denied defendant effective assistance of I counsel. would affirm.
The decision to admit evidence is within the trial
court’s discretion and will not
appeal
be disturbed on
absent an abuse of discretion. Price v Long Realty,
Inc,
466;
461,
In the case at a made testimony by motion to admit defendant’s half sister regarding uncharged including contact, sexual intercourse, that defendant had with her from the time that she was four and defendant was twelve teenager. prosecution argued until she was a placed general all because defendant’s denial ele supra issue, VanderVliet, ments of the offenses at proposed 78, was admissible to show sexually plan, a scheme, defendant had or method of family abusing young females his who lived with authority figure. him and for whom he was an Such a plan or scheme evidences that this is similar conduct general suggest not so and is *5 by Dissent Markey, sexually Despite assault children. defense counsel’s assertion that the situations surrounding alleged sexual contacts were not analogous and the prejudi- cial extremely value was high, the trial court admitted the testimony into evidence. In this reaching decision, the court considered whether the similar acts testi- mony would be logically relevant, whether it was admissible, and whether the danger of unfair prejudice outweighed probative its value; the court also that suggested request counsel a limiting instruc- tion under MRE 105. The court found that posed similar testimony acts fell within the guidelines set forth in VcmderVliet because it would not be intro- duced to show that defendant had a commit a crime or that he had a or good bad character.
In light of our Supreme Court’s findings in Vander- Vliet, supra, including its recognition that MRE is a rule of inclusion rather than exclusion, I find that the half testimony sister’s did not violate MRE 404(b) because (1) it was relevant, (2) it was not solely offered to show defendant’s criminal pro- pensity or to establish that he acted in conformity with that propensity, (3) it was offered to show system in doing an act as well as absence of mistake accident, and (4) of the limiting instruction presented the court jury, prejudice undue did not substan- tially outweigh testimony’s probative value. Van- derVliet 74-75. Accordingly, the trial court did not abuse its discretion in permitting defendant’s half sis- testify ter to trial. Price, supra. at the By reversing defendant’s convictions, majority, though ostensibly utilizing reality by only testimony ignores was not The VanderVliet it. comparable in the instant multiple witnesses. Vander- also was from case but testimony, arguably sim- even less Vliet, too, involved charged here, at issue offense than that ilar to the by sexual abuses the defendant about other testimony was Nonetheless, that with a sex crime. admitted in VanderVliet. majority in the case at deems the because
bar to be *6 type abuse for which relates to the exact of sexual testimony fact, tried. In the defendant was by experiences half about her the defendant’s sister exactly that of the victim. with defendant mirrored Certainly prejudicial, such would be but “mens would be far more of defendant’s plan or common or scheme.” rea, accident, lack of supra at 87. against Considering horrendous lifelong repercussions for the vic- defendant and the apply greatest care tims, this Court should with the factors set forth VanderVliet uncharged bad acts. After faith- other, admission of fully applying factors, these I cannot find that admis- “substantially out- sion of the by potential prejudice. weighed” for unfair I affirm. would