Opinion
356706
08-17-2021
People of Michigan v. Norman Adam Lueck
LC No. 19-009624-01-FC
Kirsten Frank Kelly, Presiding Judge Thomas C. Cameron, Anica Letica, JudgesORDER
Pursuant to MCR 7.205(E)(2), the trial court's March 5, 2021 order regarding the introduction of other acts evidence is REVERSED, and that matter is REMANDED for entry of an order allowing the introduction of the evidence of defendant's commission of a prior sexual assault pursuant to MCL 768.27b. While this statute was not specifically asserted as a basis for admitting the evidence below, the evidence is clearly admissible under this statutory provision. See MCL 768.27b(1) (where a defendant is accused of sexual assault, evidence of a prior sexual assault is "admissible for any purpose for which it is relevant . . . .") The substance of the evidence has been disclosed to defendant well before trial, satisfying MCL 768.27b(2). The time limitation stated in MCL 768.27b(4) is not applicable in this case, as the prior act occurred less than 10 years before the charged act. And, as evidence admitted under this provision is admissible for propensity purposes, when conducting the balancing test of MRE 403, the propensity inference weighs in favor of admissibility, not against. See People v Watkins, 491 Mich. 450; 818 N.W.2d 296 (2012) (holding that the same "any purpose" language stated in MCL 768.27a(1) allows evidence admitted under that statute to be used for propensity purposes, and that the propensity inference must weigh on the relevancy side of the equation under MRE 403). The probative value of the evidence clearly outweighs any risk of unfair prejudice, and thus, the evidence is not precluded by MRE 403. Under the circumstances of this matter, it would be an abuse of discretion to refuse to admit evidence of defendant's commission of a prior sexual assault under MCL 768.27b.
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.