Opinion
No. 350497
01-28-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. GEORGE ANDREW TACKETT, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-269508-FC Before: METER, P.J., and FORT HOOD and REDFORD, JJ. PER CURIAM.
In this interlocutory appeal, the prosecution appeals by leave granted the trial court's denial of its motion to introduce other-acts evidence under MCL 768.27b. We reverse.
People v Tackett, unpublished order of the Court of Appeals, entered September 19, 2019 (Docket No. 350497).
I. BACKGROUND
On the evening of November 9, 2018, the alleged victim, AM, met up with defendant and his girlfriend, CR, at a bar and eventually left the bar for CR's house. At this time, defendant was employed as a police officer. At CR's house, the three continued to drink and, allegedly, defendant attempted to kiss AM out of CR's presence. AM rebuffed defendant's advances. When AM was ready to go home, defendant offered to drive her and AM accepted. CR did not come along for the ride. Once the pair got to AM's house, AM got out of the car and started walking up the driveway; defendant followed her. Once inside the house, they ended up in AM's bedroom. AM testified that defendant "had me on the bed" and pulled off her underwear. According to AM, defendant told her that he "wanted to do this since [they] first met." Defendant allegedly removed AM's breasts from her shirt, and touched them with his hands and his mouth, while he had his elbow pressing into her stomach. AM testified that she asked defendant to stop, but defendant pulled her underwear off and inserted his fingers into her vagina. Defendant also allegedly grabbed AM's hand and made her touch his penis.
Defendant was eventually charged with one count of first-degree criminal sexual conduct (CSC I), MCL 750.520b, and two counts of second-degree criminal sexual conduct (CSC II), MCL 750.520c. Before trial on these charges, the prosecution filed a motion to admit other-acts evidence under MCL 768.27b and/or MRE 404(b). The other-acts evidence that the prosecution intended to admit consisted of the events of a camping trip in 2017. According to the prosecution's proffer, in the summer of 2017, defendant went on a camping trip with a group that included CR and CR's longtime friend, AC. Defendant allegedly took AC's hand and said, "whenever you're ready, you have my phone number." Later, when AC was alone, defendant allegedly approached AC from behind and placed both of his hands on the clothing covering AC's breasts without AC's consent. The prosecution's argument focused on MRE 404(b); according to the prosecution, the prior act was evidence of defendant's common plan or scheme to proposition and later molest women outside of his girlfriend's presence. The trial court denied the motion under MRE 404(b), noting that admissibility under MRE 404(b) is a "really high standard" and that the evidence was not strong enough to meet this standard. The trial court also denied the motion under MCL 768.27b without prejudice, indicating that the prosecution failed to provide a complete argument under this authority.
Subsequently, the prosecution renewed its motion to introduce other-acts evidence under MCL 768.27b, arguing that the prior act constituted a prior sexual assault, which is admissible under MCL 768.27b unless its probative value is outweighed by the danger of unfair prejudice as set forth in MRE 403. Regarding, MRE 403, the prosecution argued that the prejudicial value of the evidence did not outweigh its probative value, again pointing out the similarities between the other-acts evidence and the alleged conduct. The trial court denied the motion under MRE 403, noting that defendant was never charged with a crime regarding the prior incident and finding that a "trial within a trial" on this evidence would confuse the jury. This interlocutory appeal followed.
II. ANALYSIS
On appeal, the prosecution does not challenge the trial court's preclusion of the other-acts evidence under MRE 404(b); rather, the prosecution argues only that the trial court erred by declining to admit the evidence under MCL 768.27b. "The decision whether to admit evidence is within the trial court's discretion and will not be disturbed absent an abuse of that discretion." People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). An abuse of discretion occurs "when the court chooses an outcome that falls outside the range of principled outcomes." People v Douglas, 496 Mich 557, 565; 852 NW2d 587 (2014) (internal quotation marks and citation omitted).
MCL 768.27b(1) provides:
. . . 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.Where MCL 768.27b applies, it supersedes MRE 404(b). See People v Watkins, 491 Mich 450, 476-477; 818 NW2d 296 (2012). Evidence introduced under MCL 768.27b may be considered for any matter for which it is relevant, including the likelihood of a defendant's criminal sexual behavior toward other alleged victims. See People v Cameron, 291 Mich App 599, 609; 806 NW2d 371 (2011); People v Pattison, 276 Mich App 613, 620; 741 NW2d 558 (2007).
Before March 17, 2019, the effective date of 2018 PA 372, MCL 768.27b provided only for the admission of evidence of other acts of domestic violence. Indeed, before 2018 PA 372 became effective, there existed no statutory provision providing for the general admission of evidence of prior sexual assaults; however, MCL 768.27a, which is still in effect, provided for the admission of evidence of the defendant's commission of a prior "listed offense" against a minor in cases in which the defendant is charged with committing a listed offense against a minor. In essence, 2018 PA 372 expanded, with certain exceptions, the rule allowing for the admission of prior-acts sexual-assault evidence in cases involving a minor victim to cases of sexual assault, generally. In this regard, to the extent that issues have not been expressly decided under the amendments to MCL 768.27b, where appropriate, our precedent under MCL 768.27a naturally informs our analysis. Similarly, our analysis is informed by our precedents under the domestic-violence provisions of MCL 768.27b, which were not abrogated by the amendatory language.
MCL 768.27b(4) provides:
Evidence of an act occurring more than 10 years before the charged offense is inadmissible under this section unless the court determines that 1 or more of the following apply:Because the prior-acts evidence did not occur outside of this 10-year window, MCL 768.27b(4) provides no impediment to the admission of the other-acts evidence in this case. Notably, the 10-year provision does not appear in MCL 768.27a.
(a) The act was a sexual assault that was reported to law enforcement within 5 years of the date of the sexual assault.
(b) The act was a sexual assault and a sexual assault evidence kit was collected.
(c) The act was a sexual assault and the testing of evidence connected to the assault resulted in a DNA identification profile that is associated with the defendant.
(d) Admitting the evidence is in the interest of justice.
The prosecution argues that defendant's alleged nonconsensual touching of AC's breasts constitutes fourth-degree criminal sexual assault (CSC-IV), MCL 750.520e. MCL 750.520e(1)(b)(v) provides that a person is guilty of CSC-IV if he "achieves sexual contact through concealment or by the element of surprise." In turn, MCL 750.520a(q) defines "sexual contact" as including the "intentional touching of the victim's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification." As noted previously, in the prior incident, defendant allegedly came behind AC and, without her consent, placed his hands on the clothing covering her breasts. See MCL 750.520a(f) (delineating "the breast of a human being" as an "intimate part"). That defendant's alleged conduct was for the purpose of sexual arousal or gratification is evidenced by the fact that defendant allegedly extended an offer for a sexual encounter to AC earlier in the day. Accordingly, we agree that the alleged prior conduct constitutes the crime of CSC-IV. Because CSC-IV qualifies as a sexual assault under MCL 768.27b, see MCL 768.27b(6)(c); MCL 28.722(j), (s)(v), the other-acts evidence was admissible under MCL 768.27b.
Evidence admissible under MCL 768.27b, however, remains subject to exclusion under MRE 403. "Exclusion is required under MRE 403 when the danger of unfair prejudice substantially outweighs the probative value of the evidence." People v Brown, 326 Mich App 185, 192; 926 NW2d 879 (2018) (internal citation and quotation marks omitted). When making its determination under MRE 403, the trial court may consider the following nonexhaustive list of factors:
(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. [Watkins, 491 Mich at 487-488.]When applying MRE 403 to evidence admissible under MCL 768.27b, the trial court must weigh the propensity inference in favor of the evidence's probative value, rather than its prejudicial effect. See id. at 487. "The unfair prejudice language of MRE 403 refers to the tendency of the proposed evidence 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." Cameron, 291 Mich App at 611 (internal citation and quotations marks omitted). Put another way, unfair prejudice occurs when "a probability exists that evidence which is minimally damaging in logic will be weighed by the jurors substantially out of proportion to its logically damaging effect." People v McGuffey, 251 Mich App 155, 163; 649 NW2d 801 (2002) (internal citation and quotations marks omitted).
The trial court found that the evidence was unfairly prejudicial for two primary reasons: (1) the prior conduct did not result in a criminal conviction and (2) introduction of the other-acts evidence would result in a "trial within a trial," which would be confusing for the jury. Prior conviction, however, is not a prerequisite to admitting other-acts evidence. See MCL 768.27b. Regarding the latter concern, the prosecution intends only to present one witness regarding the prior act: AC, the alleged victim. Moreover, the evidence is not overly complicated: the jury need only determine whether AC's testimony that defendant intentionally touched her breasts without her consent was credible. If it found the evidence credible, it could use it as propensity evidence.
Defendant argues that the prior act was too dissimilar to the charged conduct to be helpful to the jury's determination. We disagree. Under MCL 768.27b, the prior conduct and the charged conduct need not be so similar that they rise to the level of a common scheme or plan under MRE 404(b). Indeed, if this were the relevant standard, there would be no need for MCL 768.27b. The relevant consideration under MRE 403 as applied to MCL 768.27b is whether the evidence is so dissimilar as to create a legitimate concern that the jury's verdict would be unduly impacted by extraneous factors—such as bias or emotion—as a result of the other-acts evidence. In this regard, we note that the other-acts evidence, while undeniably offensive to AC, was of a lesser statutory degree than the charged conduct; while the prior act involved an alleged touching of the victim over her clothes, the charged conduct allegedly involved the sexual penetration of the victim. Simply put, it is not likely that the jury in this case would find defendant guilty of comparatively worse conduct on the basis of its reaction to comparatively lesser conduct. In other words, we are not concerned that the other-acts evidence would be "weighed by the jurors substantially out of proportion" to its logical evidentiary purpose. McGuffey, 251 Mich App at 163.
We note that the trial court did not focus on the dissimilarities between the acts when denying the prosecution's motion. To the extent that defendant argues that the trial court's ruling should be upheld on different grounds, we will address the relative similarity of the charged and prior conduct.
Still, to pass muster under MRE 403, the other-acts evidence must bear sufficient similarities to the charged conduct to guard against the possibility that the jury would find the defendant guilty on the basis of its belief that he is a bad person. Stated differently, there must be sufficient similarities between the charged and prior conduct to render the other-acts evidence probative to the jury's determination of the issues before it. Here, in both the charged and prior conduct—which occurred within a relatively short 18-month timeframe—defendant's predation allegedly began at a group gathering defendant attended with his girlfriend. While out of his girlfriend's presence, defendant would allegedly first propose a consensual sexual encounter with a female member of the group. After the female member rebuffed his advance, defendant would not press the issue further. Rather, defendant would wait to assault the woman until she was alone. Accordingly, defendant's alleged conduct on both occasions is sufficiently similar to allow the jury to infer that defendant targeted friends of his girlfriend—seeking first a consensual encounter with them and then assaulting them in private after they rebuffed his advances.
Although there are relevant differences between the charged and prior conduct—namely the amount of force exerted and the relative severity of the assault—as noted previously, these differences do not create a serious concern that the jury will render its verdict on anything but its thoughtful consideration of the relevant evidence. Therefore, we conclude that the trial court's decision to preclude the evidence fell outside the range of principled outcomes.
Reversed.
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
/s/ James Robert Redford