Opinion
367568
10-23-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRADLEY ALAN BERKLUND, Defendant-Appellant.
Newaygo Circuit Court LC No. 2023-013203-FH
Before: N. P. Hood, P.J., and O'Brien and Redford, JJ.
O'Brien, J.
In this interlocutory appeal, defendant, on leave granted, challenges the trial court's decision under MCL 768.27b(1) to allow the prosecution to introduce evidence that defendant previously committed sexual assault. Defendant is facing trial for one count of assault with intent to do great bodily harm less than murder or by strangulation, MCL 750.84(1)(a) or (b), and one count of unlawful imprisonment, MCL 750.349b(1)(c), for allegedly assaulting KR, who used to reside with defendant and his wife.
People v Berklund, Mich.; 4 NW3d 487 (2024).
MCL 768.27b(1) provides, "Except as provided in subsection (4), in a criminal action in which the defendant is accused of an offense involving domestic violence or sexual assault, evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible for any purpose for which it is relevant, if it is not otherwise excluded under" MRE 403. In his brief on appeal, defendant does not dispute that he is accused of an offense involving domestic violence within the meaning of MCL 768.27b, nor does he contest that the prosecution is seeking to introduce evidence of defendant's commission of other acts of sexual assault. Defendant instead argues that MCL 768.27b(1) only permits evidence of a defendant's commission of other acts of sexual assault to be admitted when the defendant is accused of an offense involving sexual assault, not when, as here, the defendant is accused of an offense involving domestic violence. We disagree. MCL 768.27b(1) plainly states that, when a defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible provided that it is relevant and not excluded by MCL 768.27b(4) or MRE 403.
Defendant also contests the admissibility of evidence that he previously committed sexual assault on grounds that (1) the evidence is not relevant to the domestic-violence-related charges that defendant is currently facing and (2) even if relevant, the evidence's probative value is substantially outweighed by the danger of unfair prejudice and should have been excluded by MRE 403. We disagree with both arguments and accordingly affirm.
I. BACKGROUND
At defendant's preliminary examination, KR testified that she graduated high school in 2018 and, while there, "took special needs classes" because she had difficulty reading. After completing high school, KR met defendant and his wife at her job, and she moved in with the couple in December 2021. The couple asked KR to have defendant's baby due to fertility issues, and KR agreed. She and defendant had sexual intercourse on four occasions while she lived with the couple. In July 2022, KR moved out after an argument with defendant's wife.
KR testified that, less than two weeks later, she accepted defendant's offer to meet up and smoke marijuana. She used GPS to drive to the agreed-upon meeting location, which was in a heavily-wooded area along a dirt two-track. When KR arrived, defendant was already there, standing outside his truck. KR and defendant got into defendant's truck, and defendant drove KR to "this narrow area with a lot of trees."
Once defendant stopped his vehicle, they both got out. Defendant directed KR to "go look," and as she did, defendant approached her from behind, put his hands around her throat, and began choking her. Defendant then pulled KR to the ground, tied her hands with a rope, "poured water down . . . [her] throat," and "duct taped" her mouth closed so she would stop screaming. Defendant proceeded to choke KR several more times, punch her in the ear and face several times, and tear off her eyebrow ring. According to KR, defendant said that he was doing this because KR did not spend enough time with her children, lost her job, and refused to move back in with him. Defendant did not stop until KR "peed" herself. He then smashed KR's phone, poured water on it, untied KR, and left the area. KR eventually made her way to a gas station where she called 911. After talking with the police, KR went the hospital.
Following KR's testimony and the parties' arguments, the district court bound defendant over to the circuit court as charged.
Once in circuit court, the prosecution filed notice of its intent to introduce evidence of a sexual assault committed by defendant pursuant to MCL 768.27b. According to the prosecution, "[i]n 2004, the defendant raped a 14-year-old girl at knifepoint." The prosecution alleged that defendant drove a 14-year-old girl to a secluded wooded area where defendant tried to have sex with her while she repeatedly told defendant "no." After the victim resisted his advances, defendant took a folding pocket knife out of the glovebox and pressed the blade against the victim's neck. The victim continued to tell defendant "no," but defendant pressed the blade tighter and inserted his penis into the victim's vagina. The victim reported the crime to authorities within several days of its commission, and a sexual assault kit was completed. Defendant was convicted of first-degree criminal sexual conduct for this incident.
Defendant responded to the prosecution's notice by objecting to the use of his prior conviction as other-acts evidence. As relevant to this appeal, defendant argued that evidence that he previously committed sexual assault was not admissible under MCL 768.27b because (1) prior acts of sexual assault could only be admitted in prosecutions for sexual assault, and defendant was not charged with sexual assault in this matter; (2) the nearly 20-year-old sexual-assault conviction lacked any relevance to a determination of defendant's guilt or innocence in this case because the other act was too remote in time, involved a different victim, and the charged offenses were not sexual in nature; and (3) any probative value attributable to the other-acts evidence was outweighed by the danger of unfair prejudice in light of the differing factual circumstances between the other act and the charged offenses.
At the hearing on defendant's objection, the trial court confirmed that defendant knew the 14-year-old girl whom he sexually assaulted. Then, after listening to the parties' arguments, the court overruled defendant's objection. The court first concluded that MCL 768.27b was applicable because defendant was charged with a crime involving domestic violence within the meaning of the statute, see MCL 768.27b(6)(a)(i) and (b)(ii), and the prosecution was seeking to admit evidence of defendant's commission of other acts of sexual assault as permitted by MCL 768.27b(1). As for whether the evidence was relevant and survived the balancing test required by MRE 403, the trial court explained:
So, the Court next determines that the probative value of this [evidence] is high for propensity, which is the purpose that's allowed under the statute.
And then we have to look at the prejudicial nature of the information. Now, kind of the only thing that cuts against the probative nature is the age of this offense, but the statute specifically allows older offenses to be used. If they wanted to have some open bar of something being too old, they could have put in that 10 years, 15 years, 20 years, they could have set that outside limit as to how old something could be.
This case-[b]oth these cases involve someone that is known to the defendant. They both allegedly involve taking these individuals to someplace that poses a higher risk. Certainly, there was violence used in both cases, a knife in the one case and beating and gaging and binding supposedly in this case. So, I think the danger of any unfair prejudice is low. Clearly, it's prejudicial, but it's not unfair given the facts and circumstances of both these cases.
So the Court is going to order-allow the testimony pertaining to that.
This appeal followed.
II. STANDARD OF REVIEW
A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. People v Watkins, 491 Mich. 450, 467; 818 N.W.2d 296 (2012). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. People v Dixon-Bey, 321 Mich.App. 490, 496; 909 N.W.2d 458 (2017). When the decision to admit or exclude evidence involves a preliminary question of law, such as whether the evidence falls within the ambit of a statute, the question is reviewed de novo. People v Propp, 508 Mich. 374, 383; 976 N.W.2d 1 (2021).
III. MCL 768.27B(1)
Defendant first argues that MCL 768.27b(1) does not permit evidence that a defendant previously committed sexual assault to be admitted when the defendant is accused of an offense involving domestic violence. We disagree.
Addressing defendant's argument requires interpreting the language of MCL 768.27b(1). When construing a statute, the primary objective is ascertaining and giving effect to the Legislature's intent. People v Phillips, 469 Mich. 390, 395; 666 N.W.2d 657 (2003). This inquiry begins with the text of the statute itself. Watkins, 491 Mich. at 467. If a statute's language is clear and unambiguous, "no further judicial construction is required or permitted, because the Legislature is presumed to have intended the meaning it plainly expressed." People v Stone, 463 Mich. 558, 562; 621 N.W.2d 702 (2001).
MCL 768.27b(1) states:
Except as provided in subsection (4), in a criminal action in which the defendant is accused of an offense involving domestic violence or sexual assault, evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403.
The plain language of this statute evidences three express limitations on the introduction of prior acts of domestic violence or sexual assault in current prosecutions for offenses involving domestic violence or sexual assault. First, the introduction of such evidence is limited by subsection (4), which precludes the admission of "[e]vidence of an act occurring more than 10 years before the charged offense" unless certain listed exceptions apply. MCL 768.27b(4).Second, the introduction of such evidence is barred where the evidence is "excluded under Michigan rule of evidence 403." MCL 768.27b(1). Otherwise, the evidence is "admissible for any purpose for which it is relevant." MCL 768.27b(1). This makes relevancy, as defined in MRE 401 and MRE 402, the third express limitation in MCL 768.27b(1) on the admission of prior acts of domestic violence or sexual assault in current prosecutions for offenses involving domestic violence or sexual assault. See Propp, 508 Mich. at 386 n 4 (explaining that the use of "relevant" in MCL 768.27b(1) "can only be taken as referring to MRE 401 and MRE 402").
Here, defendant committed the sexual assault more than 10 years before the instant offense, but evidence of the prior sexual assault was not precluded by MCL 768.27b(4) because the sexual assault "was reported to law enforcement within 5 years of the date of the sexual assault," MCL 768.27b(4)(a), and "a sexual assault evidence kit was collected," MCL 768.27b(4)(b).
Defendant argues that MCL 768.27b(1) places an additional limitation on the introduction of prior acts of domestic violence or sexual assault in current prosecutions for offenses involving domestic violence or sexual assault. According to defendant, evidence of a prior act of sexual assault is only admissible under MCL 768.27b(1) in a current prosecution for an offense involving sexual assault, and evidence of a prior act of domestic violence is only admissible under MCL 768.27b(1) in a current prosecution for an offense involving domestic violence. Defendant accordingly argues that MCL 768.27b(1) does not allow evidence of a prior act of sexual assault to be admitted in a current prosecution for an offense involving domestic violence.
This limitation is not apparent from the text of the statute. Again, MCL 768.27b(1) states that "in a criminal action in which the defendant is accused of an offense involving domestic violence or sexual assault, evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible" subject to the three limitations discussed above. The plainly expressed meaning of this language is that, when a defendant is charged with an offense involving domestic violence, evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible under MCL 768.27b(1) subject to the three limitations identified above. The same is true when a defendant is charged with an offense involving sexual assault-evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible under MCL 768.27b(1) subject to the three limitations identified in this opinion.
Defendant argues that this reading of the statute does not give proper meaning to the Legislature's second use of "or" in MCL 768.27b(1). In support of this argument, defendant relies on the distinction between "and" and "or"-"and" is a conjunction that means "with," "as well as," and "in addition to," Amerisure Ins Co v Plumb, 282 Mich.App. 417, 428; 766 N.W.2d 878 (2009) (quotation marks and citation omitted), whereas "or" is a disjunctive term "used to indicate a disunion, a separation, an alternative." People v Kowalski, 489 Mich. 488, 499 n 11; 803 N.W.2d 200 (2011) (quotation marks and citation omitted). Defendant argues that if the Legislature had intended for prior acts of domestic violence and prior acts of sexual assault to be admissible under MCL 768.27b(1) in a current prosecution for an offense involving domestic violence or sexual assault, then the Legislature would have stated that "in a criminal action in which the defendant is accused of an offense involving domestic violence or sexual assault, evidence of the defendant's commission of other acts of domestic violence and sexual assault is admissible . . . ."
Defendant has, at most, identified language giving rise to an ambiguity in the statute, which is not unusual in these circumstances. We do not believe that the statute is ambiguous, however, because the manner in which the Legislature chose to construct MCL 768.27b makes plain that it intended for evidence that a defendant previously committed an offense involving sexual assault to be admissible in a current prosecution in which the defendant is accused of an offense involving domestic violence, and vice versa. See Watkins, 491 Mich. at 468 ("We are also mindful of the need to read statutory provisions as a whole, focusing on not only the individual words and phrases but also the placement of those words and phrases in the context of the broader legislative scheme.").
"It is well-established that the word 'or' is often misused in statutes and it gives rise to an ambiguity in the statute because it can be read as meaning either 'and' or 'or.'" People v Gatski, 260 Mich.App. 360, 365; 677 N.W.2d 357 (2004). While "and" and "or" are not interchangeable, "their strict meaning is more readily departed from than that of other words, and one read in place of the other in deference to the meaning of the context." People v Humphreys, 221 Mich.App. 443, 452; 561 N.W.2d 868 (1997) (quotation marks and citation omitted). This Court has explained that the purpose of MCL 768.27b is to give the factfinder "a full and complete picture of a defendant's history" when he or she is accused of an offense involving domestic violence or sexual assault because that history "tend[s] to shed light on the likelihood that a given crime was committed." People v Cameron, 291 Mich.App. 599, 610; 806 N.W.2d 371 (2011) (quotation marks and citation omitted). This purpose is served by allowing in evidence about the defendant's history so long as it is relevant and otherwise admissible. This purpose is not served by adding judicially-created exceptions to MCL 768.27b(1) that are not apparent from the plain text of the statute. Thus, if we were to conclude that the statute was ambiguous, the conclusion of this opinion would be the same.
The Legislature in MCL 768.27b(1) did not differentiate between prosecutions for offenses involving domestic violence and prosecutions for offenses involving sexual assault. Rather, the Legislature placed the law governing the admission of propensity evidence in prosecutions for these two types of offenses in the same subsection of the same statute. This evidences the Legislature's intent for these types of offenses to be considered together. If the Legislature intended for the prosecutions of these offenses to be considered separately, it could have made that intention clear by placing the law governing the kind of propensity evidence admissible in prosecutions for the different offenses in different statutes or different subsections. The Legislature plainly knew how to do this, as evidenced by MCL 768.27a. That statute provides that "in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant." MCL 768.27a(1). We cannot simply ignore the fact that the Legislature in MCL 768.27b(1) chose to address the admission of propensity evidence in prosecutions for offenses involving domestic violence and prosecutions for offenses involving sexual assault in the same section of the same statute, especially when the Legislature addressed propensity evidence in prosecutions for other offenses in a different statute. Our interpretation thus gives effect to the Legislature's decision to address prosecutions involving domestic violence and prosecutions for offenses involving sexual assault together in MCL 768.27b(1). That is, our application gives effect to the manner that the Legislature chose to construct MCL 768.27b(1). See Watkins, 491 Mich. at 468.
Defendant's interpretation, in contrast, overlooks the fact that the Legislature in MCL 768.27b(1) addressed actions in which the defendant is accused of an offense involving domestic violence together with actions in which the defendant is accused of an offense involving sexual assault. He offers no explanation for why the Legislature would address prosecutions involving these different types of offenses together if the Legislature intended for prosecutions of the different offenses to be considered separately.
Defendant principally relies on the legislative history of MCL 768.27b in support of his reading of the statute. Legislative history is generally given little significance, People v Olney, 333 Mich.App. 575, 581; 963 N.W.2d 383 (2020), but even considering it here, the legislative history cited by defendant does not clearly support his argument. When MCL 768.27b was amended to include prosecutions for offenses involving sexual assault and a defendant's commission of other acts of sexual assault, see 2018 PA 372, a legislative analysis stated, "Where relevant evidence is already admissible in domestic violence criminal actions, the bill would add that, for sexual assault criminal actions, evidence of the defendant's commission of other acts of sexual assault is also admissible." House Legislative Analysis, HB 5658 (April 17, 2018). On the basis of this statement, defendant concludes that "the legislative analysis history limits use of prior sexual assault to sexual assault criminal actions." But that is not a logical extension of the statement in the legislative analysis. The legislative analysis states circumstances in which a defendant's commission of other acts of sexual assault would be admissible, but it does not set a limit on those circumstances. In other words, the fact that a defendant's commission of other acts of sexual assault would be admissible in prosecutions of an offense involving sexual assault does not mean that the same other-acts evidence would not be admissible in a prosecution for an offense involving domestic violence. The statement relied on by defendant simply does not speak to the latter circumstances.
We accordingly conclude that, in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other acts of sexual assault is admissible under MCL 768.27b(1) so long as the evidence is not excluded by MCL 768.27b(4) or MRE 403, and is relevant. MCL 768.27b(1).
IV. RELEVANCY
Defendant next argues that evidence that he previously committed sexual assault was not relevant to the current prosecution against him for offenses involving domestic violence. We disagree.
Evidence is logically relevant if it is material and probative. People v Crawford, 458 Mich. 376, 388; 582 N.W.2d 785 (1998). See also MRE 401. Evidence is material if it is related to a fact that is of consequence to the action. Id. at 388. Evidence is probative if it "tends 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." Id. at 389-390.
"[P]ropensity evidence is logically relevant" because "[a] person who has committed an offense may be more likely to commit that or another offense than a person who has not committed that or any other offense." People v Engelman, 434 Mich. 204, 243 n 23; 453 N.W.2d 656 (1990) (Levin, J., concurring). MRE 404(b) generally excludes the admission of propensity evidence- the rule prohibits evidence of a defendant's other crimes, wrongs, or acts to prove the defendant's propensity to commit such acts. The reason for this general prohibition on propensity evidence is not because such evidence is irrelevant but because "propensity evidence might weigh too much with the jury and . . . so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge." Watkins, 491 Mich. at 468-469 (quotation marks and citation omitted). See also Michelson v United States, 335 U.S. 469, 475-476; 69 S.Ct. 213; 93 L.Ed. 168 (1948) ("The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.").
MCL 768.27b is an exception to this general bar on propensity evidence; in prosecutions for offenses involving domestic violence or sexual assault, MCL 768.27b permits evidence of a defendant's prior commission of domestic violence or sexual assault to show the defendant's character or propensity to commit such acts. See People v Railer, 288 Mich.App. 213, 219-220; 792 N.W.2d 776 (2010). See also People v Mack, 493 Mich. 1, 3; 825 N.W.2d 541 (2012) (recognizing that MCL 768.27b "expanded the admissibility" of certain propensity evidence "beyond the scope permitted by MRE 404(b)(1)," and holding that this "does not infringe on [the Michigan Supreme] Court's authority to establish rules of 'practice and procedure' under Const 1963, art 6, § 5"). This reflects a legislative determination that juries should have "a full and complete picture of a defendant's history" when the defendant is accused of domestic violence or sexual assault because that history "tend[s] to shed light on the likelihood that a given crime was committed." People v Cameron, 291 Mich.App. 599, 610; 806 N.W.2d 371 (2011) (quotation marks and citation omitted). See also People v Schultz, 278 Mich.App. 776, 779; 754 N.W.2d 925 (2008) ("[MCL 768.27b] reflects a policy decision that, in certain cases, juries should have the opportunity to weigh a defendant's behavioral history and view the case's facts in the larger context that the defendant's background affords.") (Quotation marks and citation omitted); Watkins, 491 Mich. at 475-476 (using similar reasoning in the context of MCL 768.27a).
Defendant argues that evidence he previously committed a sexual assault is irrelevant to the current prosecution against him for offenses involving domestic violence. He correctly observes that the prior act differs from the currently charged offenses in several significant ways- the prior act involved the sexual assault of a minor at knifepoint, while the present case involves a 21-year-old woman who was tied up and beaten. Defendant also correctly notes that the sexual assault occurred approximately 20 years before the charged offenses, and the remoteness in time between the sexual assault and the charged offenses weakens the logical relevance of the prior-acts evidence. People v Yost, 278 Mich.App. 341, 405; 749 N.W.2d 753 (2008).
Defendant's argument, however, ignores several important commonalities between the prior sexual assault committed by defendant and the current offenses involving domestic violence allegedly committed by defendant. In both cases, defendant preyed on vulnerable and unsophisticated individuals, isolated those individuals in secluded wooded areas, and then brutalized his helpless victims either sexually or physically. Defendant in both cases also used force to ensure that the victims would not resist while defendant assaulted them-defendant held a knife to the 14-year-old's throat so she would not resist while he raped her, and he bound KR's hands with a rope and taped her mouth with duct tape so she could not resist or call for help while he physically assaulted and abused her.
In light of these commonalities, the prior-act evidence is relevant to supporting KR's credibility by showing a common plan or scheme for selecting victims and locations where defendant can brutalize helpless victims without the risk of being interrupted. In other words, the prior-acts evidence is relevant because it tends to show that it is more probable than not that KR is telling the truth in describing the assault by defendant, and whether she is telling the truth has significant probative value in determining whether defendant committed the charged assaults. See Watkins, 491 Mich. at 491 (explaining that the other-acts evidence was relevant in part because it "supported the victim's credibility" and "presented circumstances similar to those underlying the charged offense"). Additionally, the prior acts evidence will provide the jury with a more complete picture of defendant's history, consistent with the legislative policy underlying MCL 768.27b. See Cameron, 291 Mich.App. at 610. The prior-acts evidence also demonstrates defendant's propensity to commit violent acts against women, and such propensity evidence is not improper in these circumstances. See People v Rosa, 322 Mich.App. 726, 732; 913 N.W.2d 392 (2018) (recognizing that MCL 768.27b permits certain other-acts evidence "even to show propensity").
In sum, while defendant is correct that the prior sexual assault was not identical to the charged offenses, the prior act does not have to be identical to the charged offense to be relevant and possibly admissible under MCL 768.27b. See People v Meissner, 294 Mich.App. 438, 452; 812 N.W.2d 37 (2011). Evidence that defendant previously committed sexual assault is relevant to proving that defendant committed the offenses involving domestic violence at issue in this case because it supported KR's credibility, presented circumstances similar to those underlying the charged offense, provided the jury with a more complete picture of defendant's history, and demonstrated defendant's propensity to commit the type of conduct with which he was charged.
V. MRE 403
Defendant also argues that evidence he previously committed sexual assault should be excluded under MRE 403 because the evidence's probative value is substantially outweighed by the danger of unfair prejudice. We disagree.
As pertinent here, MRE 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Evidence is unfairly prejudicial if it has a tendency "to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock." People v Pickens, 446 Mich. 298, 337; 521 N.W.2d 797 (1994).
In Watkins, our Supreme Court held that the propensity inference derived from other-acts evidence admissible under MCL 768.27a should weigh in favor of the evidence's probative value, not its prejudicial effect, explaining:
As with any balancing test, MRE 403 involves two sides of a scale-a probative side and a prejudicial side. Propensity evidence is prejudicial by nature, and it is precisely the danger of prejudice that underlies the ban on propensity evidence in MRE 404(b). Yet were a court to apply MRE 403 in such a way that other-acts evidence in cases involving sexual misconduct against a minor was considered on the prejudicial side of the scale, this would gut the intended effect of MCL 768.27a, which is to allow juries to consider evidence of other acts the defendant committed to show the defendant's character and propensity to commit the charged crime. To weigh the propensity inference derived from other-acts evidence in cases involving sexual misconduct against a minor on the prejudicial side of the balancing test would be to resurrect MRE 404(b), which the Legislature rejected in MCL 768.27a. [Watkins, 491 Mich. at 486.]
The same is true for MCL 768.27b. Accordingly, when applying MRE 403 to evidence admissible under MCL 768.27b, courts should weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect. Accord Watkins, 491 Mich. at 487.
Our Supreme Court has cautioned against reliance on Watkin's analysis of MCL 768.27a when analyzing MCL 768.27b, see Propp, 508 Mich. at 385, but the warning in Propp was due to textual differences between the two statutes that do not affect the present analysis.
This conclusion is nothing new. Ever since Watkins was decided, this Court (in unpublished opinions) has routinely relied on it for the proposition that, when analyzing whether evidence submitted under MCL 768.27b is excluded by MRE 403, the propensity inference of the evidence is weighed in favor of the evidence's probative value, not its prejudicial effect. See People v Flanagan, unpublished per curiam opinion of the Court of Appeals, issued November 29, 2012 (Docket No. 305762), p 3; People v Sweeney, unpublished per curiam opinion of the Court of Appeals, issued June 13, 2017 (Docket No. 330662), p 7; People v Buelteman, unpublished per curiam opinion of the Court of Appeals, issued June 11, 2020 (Docket No. 347272), p 3; People v Gonzalez, unpublished per curiam opinion of the Court of Appeals, issued November 17, 2022 (Docket No. 354251), p 6; People v Mathey, unpublished per curiam opinion of the Court of Appeals, issued July 18, 2024 (Docket No. 363120), p 3.
But, as with MCL 768.27a, this does not mean that other-acts evidence admissible under MCL 768.27b may never be excluded by MRE 403. The same nonexhaustive list of considerations identified in Watkins applies:
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant's and the defendant's testimony. This list of considerations is meant to be illustrative rather than exhaustive. [Watkins, 491 Mich. at 487-488.]
These considerations provide "a tool to facilitate, not a standard to supplant," a trial court's MRE 403 analysis. People v Uribe, 499 Mich. 921, 921 (2016).
The trial court's MRE 403 analysis in this case generally focused on the first and second considerations listed in Watkins. The court recognized that the prior sexual assault took place nearly 20 years ago, but it reasoned that this was not dispositive because MCL 768.27b itself permitted older offenses to be admitted in certain circumstances, such as those present in this case. The court also focused on the similarities between the two offenses-both involve someone known to defendant, "both allegedly involve taking these individuals to someplace that poses a higher risk," and both involve the use of violence. Additionally, the court concluded that the evidence's probative value was "high for propensity," which the court correctly noted was "allowed under the statute." See Railer, 288 Mich.App. at 219-220. The court also recognized that, while the evidence was prejudicial, it was not unfairly so "given the facts and circumstances of both these cases."
The trial court did not abuse its discretion by concluding that evidence defendant previously committed sexual assault was not excluded by MRE 403. The trial court appropriately used the considerations from Watkins as a tool to facilitate its analysis, but it did not rely on those considerations to supplant its MRE 403 analysis. Uribe, 499 Mich. at 921. The court also correctly recognized that evidence defendant previously committed sexual assault would be prejudicial in the sense that it would "attempt to prove that [the] defendant committed the crime" with which he was charged, Pickens, 446 Mich. at 336-337, but would not be unfairly prejudicial because, for the reasons explained, the evidence's propensity inferences weigh in favor of the evidence's probative value, not its prejudicial effect. Evidence that defendant previously committed sexual assault is also relevant to proving that defendant committed the offenses involving domestic violence at issue in this case because, as explained, the evidence supported KR's credibility, presented circumstances similar to those underlying the charged offense, and provided the jury with a more complete picture of defendant's history.
It is not otherwise apparent that evidence defendant previously committed sexual assault will either inject considerations extraneous to the merits of the lawsuit, see id. at 337, or stir such passion in the jury as to "divert the jury from rational consideration of [defendant's] guilt or innocence of the charged offenses," Cameron, 291 Mich.App. at 611-612. And to any extent that a danger of unfair prejudice may persist, the trial court can minimize that danger by instructing the jury on the proper use of the other-acts evidence. This will lessen any danger of unfair prejudice because jurors are presumed to follow their instructions. People v Abraham, 256 Mich.App. 265, 279; 662 N.W.2d 836 (2003).
Because evidence of defendant's prior sexual assault is highly relevant and it is not apparent that the evidence will be unfairly prejudicial (particularly in light of a limiting instruction), the trial court did not abuse its discretion when it concluded that the evidence's probative value was not substantially outweighed by the danger of unfair prejudice. That is, the trial court did not abuse its discretion by refusing to exclude evidence that defendant previously committed sexual assault under MRE 403. See People v Mardlin, 487 Mich. 609, 627; 790 N.W.2d 607 (2010) (explaining that, because "[t]he trial court is in the best position to make MRE 403 determinations on the basis of a contemporaneous assessment of the presentation, credibility, and effect of testimony," a trial court's decision regarding whether evidence should be excluded under MRE 403 should only be reversed if an appellate court identifies "a clear abuse of discretion") (quotation marks and citations omitted).
Affirmed.
N. P. Hood, P. J. (concurring in part, dissenting in part).
I respectfully dissent. This case involves a permissible but unusual use of MCL 768.27b's statutory carveout to admit other-acts evidence. Instead of introducing evidence of a prior act of sexual assault in a present sexual-assault case, or introducing evidence of a prior act of domestic violence in a present domestic-violence case, the prosecution sought to admit evidence of a prior act of sexual assault in the present domestic-violence case. I agree with the majority's conclusion in Part III that MCL 768.27b(1) permits the admission of this evidence, subject to MRE 403. I also agree with the majority's conclusion in Part IV to the extent it concludes that the proposed other-acts evidence meets the low hurdle of relevance. But I disagree with the majority's assumption in Part IV that the facts underlying Berklund's prior conviction of criminal sexual conduct are evidence of his propensity to commit the domestic violence at issue in this case. This leads to my broader disagreement with the majority's analysis and conclusions in Part V regarding the required analysis under MRE 403.
Although MCL 768.27a and 27b make no reference to "propensity" evidence, we have long accepted that MCL 768.27b permits the admission of propensity evidence. People v Watkins, 491 Mich. 450, 470-471; 818 N.W.2d 296 (2012). It operates as a statutory carveout to MRE 404(b), which permits the introduction of other-acts evidence for certain purposes other than to show conduct in conformity therewith. See MRE 404(b). See also Watkins, 491 Mich. at 468-469. In other words, MRE 404(b) permits other-acts evidence for a nonpropensity purpose, and MCL 768.27b permits other-acts evidence (of domestic violence or sexual assault) for any purpose for which it is relevant. See Watkins, 491 Mich. at 469-472. Usually, that means propensity. See, e.g., People v Flanagan, unpublished per curiam opinion of the Court of Appeals, issued November 29, 2012 (Docket No. 305762), p 3; People v Sweeney, unpublished per curiam opinion of the Court of Appeals, issued June 13, 2017 (Docket No. 330662), p 7; People v Buelteman, unpublished per curiam opinion of the Court of Appeals, issued June 11, 2020 (Docket No. 347272), p 3; People v Gonzalez, unpublished per curiam opinion of the Court of Appeals, issued November 17, 2022 (Docket No. 354251), p 6; People v Mathey, unpublished per curiam opinion of the Court of Appeals, issued July 18, 2024 (Docket No. 363120), p 3. And as the majority correctly observes, our Supreme Court has held that "a defendant's propensity to commit a crime makes it more probable that he committed the charged offense," see Watkins, 491 Mich. at 470, so MCL 768.27b permits the admission of evidence that MRE 404(b) precludes.
But usually the questions of whether and to what degree statutory other-acts evidence is evidence of one's propensity to commit the charged offense are simpler determinations. The prosecution ordinarily will offer evidence of a prior act of domestic violence as evidence that a defendant committed a new act of domestic violence. Or the prosecution will offer evidence of a prior act of sexual assault as evidence that a defendant committed a new act of sexual assault. With similar prior offenses, the propensity value is high. And as a result, the statutory other-acts evidence will weigh on the probative-value side of the scale, rather than the unfair-prejudice side, during the required MRE 403 analysis. See Watkins, 491 Mich. at 486-490. This is how 27b evidence normally operates.
Here, however, we have an unusual application of 27b. As stated, the prosecution sought to admit evidence of Berklund's prior sexual assault, specifically a sexual assault against a minor, in a pending prosecution for domestic violence, i.e., assault by strangulation. I agree that this is permitted. But this unusual use of 27b requires the trial court to specifically address (1) whether and to what degree the statutory other-acts evidence is actually evidence of propensity to commit the charged offense, (2) if not, what the other relevant purpose is for its admission under 27b, and (3) based on the answers to those questions, analyze MRE 403 under a different or amplified version of the Watkins framework. I address each of these considerations in turn.
The proposed evidence is propensity evidence and meets the low hurdle of relevance. See People v O'Neal, 497 Mich. 892 (2014) (Viviano, J., dissenting) (acknowledging that the bar for admission of other-acts evidence is relatively low, but still requires the trial court to conduct a basic analysis to ensure the bar is cleared). See also Watkins, 491 Mich. at 469-471. Our Supreme Court has recognized that "a defendant's character and propensity to commit the charged offense is highly relevant because 'an individual with a substantial criminal history is more likely to have committed a crime than is an individual free of past criminal activity.'" Watkins, 491 Mich. at 470, quoting People v Allen, 429 Mich. 558, 566; 420 N.W.2d 499 (1988). Many of our analyses regarding whether one crime is evidence of propensity to commit another crime involve two offenses of the same nature. See Watkins, 491 Mich. at 475, citing McKune v Lile, 536 U.S. 24, 33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (discussing the valid policy reasons supporting the Legislature's decision to allow other-acts evidence in certain cases; stating, "[w]hen convicted sex offenders [including child molesters] reenter society, they are much more likely than any other type of offender to be arrested for a new rape or sexual assault."). But our Supreme Court seems to have acknowledged that, generally, prior convictions are evidence of propensity to commit new crimes. See Watkins, 491 Mich. at 470, citing People v Pattison, 276 Mich.App. 613, 620; 741 N.W.2d 558 (2007) (acknowledging this general rule, and observing "it is because of the human instinct to focus exclusively on the relevance of such evidence that the judiciary has traditionally limited its presentation to juries.").
This broadly-framed general rule and the specifics of this case lead me to conclude that the acts here were propensity evidence. As the majority describes, the acts here are of a different nature but bear some similarities. In short, both the other-acts evidence and the allegations in this case involve Berklund committing an extremely violent assault against a woman (or girl) alone in the woods. There are, however, critical differences. For example, the other-acts evidence occurred approximately 20 years ago, it involved a minor instead of an adult, it involved a sexual assault whereas this case does not, and it involved a weapon whereas this case arguably did not. In other words, there are significant differences that should cause the trial court to question whether this is propensity evidence at all. Ultimately the modest similarities are sufficient to conclude that the other-acts evidence carries some modicum of propensity evidence sufficient to get over the hump for relevance. Because it is propensity evidence, albeit propensity evidence with low probative value, I move to the 403 analysis.
It is arguable whether the allegation that Berklund poured water down the complainant's throat, a potential form of torture, amounts to the use of a weapon.
I can easily imagine a case where proposed statutory other-acts evidence under 27b is not actually evidence of a propensity to commit the charged offense. If, for example, Berklund's prior sexual assault occurred in a different location, I would struggle to conclude that a sexual assault against a minor demonstrates a propensity to strangle an adult in the woods approximately 20 years later.
Even though the proposed statutory other-acts evidence is propensity evidence, the extent to which it demonstrates a propensity to commit the charged conduct is low, which must affect how the trial court analyzes MRE 403. When the other-acts evidence is sufficiently different so as to diminish the propensity value, the Watkins analysis may not apply in the same way that it normally does.
In Watkins, our Supreme Court upheld the validity of MCL 768.27a-the sister statute to MCL 768.27b-and provided a framework for analyzing MRE 403 in relation to statutory other-acts evidence. See Watkins, 491 Mich. at 481-490. Regarding the balancing test in MRE 403, Watkins held that propensity evidence admitted under MCL 768.27a counts toward probative value, not unfair prejudice. Id. at 486. As the majority observes, it stated;
As with any balancing test, MRE 403 involves two sides of a scale-a probative side and a prejudicial side. Propensity evidence is prejudicial by nature, and it is precisely the danger of prejudice that underlies the ban on propensity evidence in MRE 404(b). Yet were a court to apply MRE 403 in such a way that other-acts evidence in cases involving sexual misconduct against a minor was considered on the prejudicial side of the scale, this would gut the intended effect of MCL 768.27a, which is to allow juries to consider evidence of other acts the defendant committed to show the defendant's character and propensity to commit the charged crime. To weigh the propensity inference derived from other-acts evidence in cases involving sexual misconduct against a minor on the prejudicial side of the balancing test
would be to resurrect MRE 404(b), which the Legislature rejected in MCL 768.27a. [Watkins, 491 Mich. at 486.]In other words, the 403 analysis is inverted. See id. What would count toward unfair prejudice in the context of MRE 404(B) other-acts evidence, counts toward probative value. See id. But, as identified in the above quoted language, the Court's analysis in Watkins was rooted in the fact that the Legislature intended to allow juries to draw inferences that individuals who previously committed a sex crime against a minor have propensities to do it again. See id. at 486.
Here, however, where a prior sex crime against a minor is introduced in a trial for an extreme domestic-violence offense, it is not clear that this balancing test should work in the same way. The probative value of Berklund's prior child sex-crime conviction is substantially lower than if he had a prior domestic-violence conviction. Watkins offers little guidance on how to handle this scenario. And it seems that its inverted MRE 403 analysis may not apply in the same way, if at all.
The trial court addressed two of the Watkins factors, but it did so with the apparent understanding that the statutory other-acts evidence would weigh in favor of probative value. With this unique application of 27b, it is not clear to me that it does. Instead of affirming, I would remand for the trial court to reassess MRE 403 with the understanding that Watkins's inverted balancing test does not necessarily apply to 27b evidence when it is used this way.