6.3Other Crimes, Wrongs, or Acts Under Michigan Rule of Evidence 404(b)

A.Admissibility

“Under Michigan’s rules of evidence, all logically relevant evidence is admissible at trial, except as otherwise prohibited by the state or federal constitutions or other court rules.” People v Ackerman, 257 Mich App 434, 439 (2003). MRE 404(b)(1) states that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” However, other-acts evidence may, if material, be admissible for reasons other than to show that a defendant has a propensity to commit the offenses with which the defendant is charged. MRE 404(b)(2).

Accordingly, “MRE 404(b) . . . permits the admission of any logically relevant evidence, ‘even if it also reflects on a defendant’s character,’ so long as the evidence is not ‘relevant solely to the defendant’s character or criminal propensity.’” People v Spaulding, 332 Mich App 648, 649 (2020), quoting People v Mardlin, 487 Mich 609, 615-616 (2010). See also People v Sabin (After Remand), 463 Mich 43, 55-59 (2000); People v Katt (Katt I), 248 Mich App 282, 303-304 (2001).

Other-acts evidence offered for a reason other than to show propensity to commit the charged crime “must be relevant under MRE 402, as enforced through MRE 104(b), to an issue of fact of consequence at trial.” Sabin, 463 Mich at 55. “To be relevant, the evidence must be material or probative of a fact of consequence to the action. To be material, the fact must be one ‘in issue’ or within the ‘range of litigated matters in controversy.’” Ackerman, 257 Mich App at 439, quoting Sabin, 463 Mich at 57 (citation omitted). If the other-acts evidence is offered for a proper purpose and is relevant to a material fact, the court must determine “whether the danger of undue prejudice [substantially] outweighs the probative value of the evidence[.]” Sabin, 463 Mich at 55-56 (quotation marks and citation omitted). Finally, if requested, the trial court may give the jury a limiting instruction under MRE 105.¹ Sabin, 463 Mich at 56.

“MRE 404(b) only applies to evidence of crimes, wrongs, or acts ‘other’ than the ‘conduct at issue in the case’ that risks an impermissible character-to-conduct inference.” People v Jackson, 498 Mich 246, 262, 265 (2015) (“Evidence that the defendant [charged with CSC-I involving a child who was a member of the church where the defendant served as a pastor] previously engaged in sexual relationships with other parishioners, above or below the age of consent, [fell] well within this scope of coverage.”).

Other acts that are “so intertwined with the charged offense that they directly prove the charged offense, or their presentation is necessary to comprehend the context of the charged offense” may be admissible without regard to MRE 404(b). Spaulding, 332 Mich App at 650. “Such evidence is also admissible to fill what would otherwise be ‘a chronological and conceptual void regarding the events’ to the finder of fact.” Id. (Citation omitted.) In Spaulding, the evidence of the defendant’s prior communications with the victim did not expressly convey any threats and did not appear to support the victim’s claim that she felt “terrorized, frightened, intimidated, threatened, harassed, or molested.” Id.; M Crim JI 17.25. According to the Court, “[i]t was impossible to comprehend the significance of those communications without an understanding of the history of the relationship between [the victim] and defendant.” Spaulding, 332 Mich App at 651. The evidence was “critical to understand[ing] why a reasonable person would have felt (and [the victim] did feel) scared by defendant’s conduct under the circumstances.” Id.

B.Notice Requirements

MRE 404(b)(3) requires the prosecution to

“(A) provide notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing at least 14 days before trial, unless the court, for good cause, excuses pretrial notice, in which case the notice may be submitted in any form.”

C.Caselaw

The following cases address the admissibility of other-acts evidence under MRE 404(b) when sexual assault is alleged.

•People v Kelly, 317 Mich App 637 (2016):

The trial court improperly excluded evidence of defendant’s seven other instances of criminal sexual conduct that did not result in convictions. “[T]he trial court neglected a fundamental responsibility in its MRE 404(b) evidentiary analysis . . . . by excluding the proposed testimony” without considering whether the evidence was offered for a proper purpose or its legal relevance. Kelly, 317 Mich App at 647-648. “Without considering the evidence’s legal relevance for a proper purpose, the trial court could not conclude that the evidence’s probative value was substantially outweighed by unfair prejudice or any of the other concerns identified in MRE 403,” and thus, failed “to follow the proper legal framework[.]” Kelly, 317 Mich App at 647. Furthermore, “the trial court . . . abdicated the necessary relevancy analysis on the basis of impermissible credibility concerns” by allowing “defendant’s protestations of ‘consent’ in respect to the other acts to control the MRE 404(b) analysis.” Kelly, 317 Mich App at 645. “The only issue [was] whether [defendant’s] conduct [on those other occasions] was consensual as claimed by defendant or constituted criminal sexual conduct as asserted by the alleged victims.”² Kelly, 317 Mich App at 646. “[T]he trial court should not have dismissed the evidence . . . merely because there was a credibility dispute.” Id.

•People v Jackson, 498 Mich 246 (2015):

MRE 404(b) governed the admissibility of testimony in the defendant’s trial for CSC-I where “the prior sexual relationships to which [a witness’s] testimony referred plainly did not constitute the ‘conduct at issue’ . . . [or] directly evidence or contemporaneously facilitate its commission[.]” Jackson, 498 Mich at 275. Rather, the testimony was “offered to provide inferential support for the conclusion that the ‘conduct at issue’ occurred as alleged.” Id. at 275-276.

•People v Smith, 282 Mich App 191 (2009):

The defendant was convicted of CSC-I and CSC-II against his daughter when she was 10 or 11 years old. Smith, 282 Mich App at 193. Under MRE 404(b)(1), the trial court did not abuse its discretion in admitting evidence of defendant’s prior acts of indecent exposure involving the victim’s stepsister who also lived with defendant at the time. Smith, 282 Mich App at 193-194, 206. The Smith Court discussed “sufficiently similar” prior bad acts:

“[S]ufficiently similar prior bad acts can be used ‘to establish a definite prior design or system which included the doing of the charged act as part of its consummation.’ ‘[T]he result is to show (by probability) a precedent design which in its turn is to evidence (by probability) the doing of the act designed.’ . . . However, general similarity between the charged act and the prior bad act is not enough to show a pattern. Rather, there must be ‘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.’ A high degree of similarity is required—more than is needed to prove intent, but less than is required to prove identity—but the plan itself need not be unusual or distinctive.” Smith, 282 Mich App at 196, quoting People v Sabin (After Remand), 463 Mich 43, 65-66 (2000) (citations omitted; second alteration in original).

•People v Kahley, 277 Mich App 182 (2007):

The defendant was convicted of CSC-I against his four-year-old son. Kahley, 277 Mich App at 183, 185. At trial, evidence was properly admitted that the defendant had sexually abused his girlfriend’s son. Id. at 186. The evidence was relevant, probative, and the danger of unfair prejudice did not substantially outweigh the evidence’s probative value because the sexual assaults occurred within a four-month period, the victim and the defendant’s girlfriend’s son were both four years old, under the defendant’s care and supervision, and sexually assaulted in the same manner. Id. at 184-185. The Court noted that “[d]istinctive and unusual features are not required to establish the existence of a common plan or scheme[.]” Id. at 185.

•People v Drohan (Drohan I), 264 Mich App 77 (2004):³ 

The defendant was convicted of CSC-III and CSC-IV against a former coworker for rubbing the victim’s breast, grabbing her wrist and making her touch his crotch on several occasions, and forcing her into the passenger seat of a car where he forced her to perform oral sex on him. Drohan I, 264 Mich App at 79-80, 86. Two additional witnesses testified to separate occasions when the defendant had initiated unwanted contact with each of them. Id. at 81-82. The trial court admitted testimony regarding these former acts because “the evidence was ‘relevant to show the existence of a scheme, plan, or method by which the defendant accomplished the sexual assault in that consent [was] an issue, therefore, showing a scheme, plan, or method by which he non-consentually [sic] engages in sexual assault with women[.]’” Id. at 84 (second alteration in original). The evidence was introduced for a proper purpose because each of the incidents had common features that allowed the inference “that defendant had a common scheme of suddenly grabbing unwilling women and seeking immediate sexual gratification from them.” Id. at 87.

•People v Ackerman, 257 Mich App 434 (2003):

The defendant was the mayor of Port Huron and served as a supervisor at a community youth center during the time of his misconduct with three girls under the age of 13. Ackerman, 257 Mich App at 438. Several young females testified that the defendant allowed his pants to fall down to expose his genitals to the girls when they were at the youth center. Id. at 441. The trial court permitted the evidence because it agreed that the evidence “supported an inference that defendant’s actions were part of a system of desensitizing girls to sexual misconduct.” Id. The trial court did not abuse its discretion by admitting evidence against the defendant of his consensual relationships with two young women other than the complainants, as well as evidence of the defendant’s indecent exposure convictions by jury at the defendant’s first trial. Id. at 437 n 1, 441-442.

•People v Katt (Katt I), 248 Mich App 282 (2001):

The defendant was convicted of three counts of CSC-I against a seven-year-old boy and a five-year-old girl (brother and sister) who lived with the defendant, their mother, the mother’s ex-husband, and another person. Katt I, 248 Mich App at 285. The trial court permitted the prosecution in rebuttal to introduce evidence of an alleged prior sexual assault against a nine-year-old boy in which the defendant allegedly touched the boy’s “privates” while the defendant and the boy were both disrobed after taking a bath together. Id. at 301-302. “[The evidence] was properly admitted under the common scheme, plan, or system of logical relevance.” Id. at 306. The charged and the uncharged conduct was “sufficiently similar” to support an inference that they were manifestations of a common system. Id. The Court explained: “(1) the victims and defendant knew each other, (2) the victims were all of a tender age, (3) the alleged sexual abuse occurred when defendant was alone with the children, and (4) the improper contact allegedly involved the touching of the children’s sexual organs when defendant and the victims were disrobed.” Id.

•People v Watson, 245 Mich App 572 (2001):

The defendant was convicted of CSC-I and assault with intent to commit CSC-II against his stepdaughter when she was between the ages of 11 and 13. Watson, 245 Mich App at 574-575. The trial court properly admitted into evidence a cropped photograph found in the defendant’s wallet that showed the victim’s naked buttocks. Id. at 575-578. The Court of Appeals ruled that the evidence was admissible under MRE 404(b) to show the defendant’s motive: “[T]he other acts evidence showed more than defendant’s propensity toward sexual deviancy; it showed that he had a specific sexual interest in his stepdaughter, which provided the motive for the alleged sexual assaults.” Watson, 245 Mich App at 580.

•People v Pesquera, 244 Mich App 305 (2001):

The defendant was convicted of CSC-I and CSC-II against five children between the ages of four and six who lived in the same mobile home park as the defendant. Pesquera, 244 Mich App at 308. At trial, two other children testified to being sexually assaulted by the defendant. Id. at 316-317. The trial court properly admitted this testimony to show a scheme, plan, or system. Id. at 318-319. The common features identified by the Court of Appeals were: (1) the defendant and the victims knew each other; (2) the defendant and the victims were friends; (3) the victims were very young; (4) the assaults occurred after the defendant invited the children to play with him; and (5) the assaults involved the defendant’s touching of the children’s sexual organs. Id. at 319.

•People v Sabin (After Remand), 463 Mich 43 (2000):

The defendant was convicted of CSC-I against his 13-year-old daughter. Sabin, 463 Mich at 47, 52. According to the complainant, the defendant told her after the assault that if she told her mother, her mother would be upset with her for breaking up the family again. Id. at 48-49. Over the defendant’s objection, his stepdaughter testified that he performed oral sex on her from the time she was in kindergarten until she was in seventh grade. Id. at 49-50. She testified that the defendant told her not to tell anyone about his conduct because it would hurt the family and because her mother would be angry with them. Id. at 50.

The stepdaughter’s testimony was properly admitted as relevant to the defendant’s scheme, plan, or system. Sabin, 463 Mich at 66. The following common features beyond commission of the sexual conduct supported the trial court’s discretionary ruling: (1) the father-daughter relationship; (2) the similar age of the victims; and (3) the defendant’s attempt to silence the victims by playing on their fears of breaking up the family. Id.

•People v Starr, 457 Mich 490 (1998):

The defendant was convicted of CSC-I and CSC-II against his nine-year-old adopted daughter; the sexual assaults were not reported until two years after they occurred. Starr, 457 Mich at 492-493. Accompanied by a limiting instruction, the trial court properly permitted the defendant’s half-sister to testify that the defendant had subjected her to similar, uncharged sexual acts for 14 years, beginning when she was four years old and ending when she was around 18 years old, three years before the defendant’s trial. Id. at 492-493, 503. The Court determined that admission of the evidence was permissible because it allowed the prosecution to “effectively rebut defendant’s claim that the charges were groundless and fabricated by [the victim’s] mother.” Id. at 502.

The two-year delay between the time of the assaults and the time the victim told authorities about them was because the victim’s mother herself did not find out about the assaults until two years after they occurred. Starr, 457 Mich at 501-503. Two years after the victim was assaulted, the victim’s mother learned that the defendant had sexually assaulted his half-sister, which prompted the victim’s mother to ask the victim questions about her relationship with the defendant. Id. at 501-502. According to the Court, “the half-sister’s testimony was the only evidence to explain why the mother specifically questioned the victim about her relationship with her father, and why the victim waited two years before telling her mother about the abuse[.]” Id. at 501.

•People v Layher, 238 Mich App 573 (1999):

The defendant was convicted of CSC-I and CSC-II against his niece. Layher, 238 Mich App at 575-576. The charged assaults occurred while the victim and the defendant were living at the apartment of the victim’s grandmother. Id. at 586. According to the victim, two of the charged assaults took place while other family members were in the apartment. Id. At trial, evidence of an earlier, uncharged sexual assault by the defendant against the victim during which the victim’s mother was nearby was admitted. Id. The evidence was properly admitted under MRE 404(b) because it “was offered for a proper purpose and was relevant to an issue of consequence at trial.” Layher, 238 Mich App at 586. The evidence enabled the prosecutor to rebut the defendant’s theory that the victim’s allegations were fabricated “by showing that defendant was, in both instances, willing to risk assaulting complainant while other family members were nearby.” Id.