Evidence of defendant’s prior conviction for criminal sexual conduct may be admissible under MCL 768.27a.

In People v Yeakey, Unpub, Mich App (#292912, 1/18/2011) the Court of Appeals re-affirmed that evidence of a defendant’s prior conviction for criminal sexual conduct is admissible and “may be considered for its bearing on any matter to which it is relevant” under MCL 768.27a.

MRE 404(b)(1) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.  To be admissible under MRE 404(b), other acts evidence 1) must be offered for a proper purpose, 2) must be relevant, and 3) must not have a probative value substantially outweighed by its potential for unfair prejudice. People v Knox, 469 Mich 502 (2004).

MCL 768.27a provides that (1) notwithstanding section MCL 768.27, 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. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.  (2) As used in this section: (a) “Listed offense” means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722. (b) “Minor” means an individual less than 18 years of age.

Under MCL 768.27a, if a defendant is accused of committing a listed offense against a minor, the prosecution may present evidence that the defendant committed another listed offense against a minor without justifying the admissibility of the evidence under MRE 404(b). People vPattison, 276 Mich App 613 (2007). While such evidence is still subject to the requirements of MRE 401 and 403, the statute allows, in many cases, “evidence that previously would have been inadmissible, because it allows what may have been categorized as propensity evidence to be admitted.

In Yeakey the prosecution filed a “Notice of Intent to Present Other Acts Evidence at Trial Pursuant to MCL 768.27a and MRE 404(b).” There was apparently no objection to the introduction of such evidence by defense counsel and there is no indication whether the trial court allowed the admission of the challenged evidence under MCL 768.27a, or MRE 404(b), or both.

It is uncontested that defendant was previously convicted of a listed offense against a minor, as defined in MCL 768.27a, and was charged in the instant matter with a listed offense against a minor, third degree criminal sexual conduct. The evidence of defendant’s prior conviction was thus admissible and “may be considered for its bearing on any matter to which it is relevant” under MCL 768.27a. Further, evidence of defendant’s prior conviction was relevant under the definition set forth in MRE 401, because the evidence made the likelihood of defendant’s behavior with K. more probable. People v Mann, ___Mich App ___ (2010).  And the probative value of defendant’s prior conviction was not substantially outweighed by the danger of unfair prejudice under MRE 403. The defendant’s prior conviction was probative on the issue of whether K. was telling the truth at trial, or whether defendant was telling the truth. Defendant denied that any sexual contact took place. He further portrayed himself as an honest person and one that would admit when he has done something wrong. The testimony concerning defendant’s prior conviction focused, in large part, on whether he initially admitted to police in that case that he had had sexual intercourse with an underage girl, or whether he had denied it. Given that defendant’s credibility was directly placed at issue and his denial of any sexual contact also placed K.’s credibility at issue, the circumstances surrounding his prior criminal sexual conduct conviction were highly probative and the value of this evidence was not substantially outweighed by unfair prejudice.

Finally, the trial court instructed the jury: The prosecution has introduced evidence of a claimed sexual misconduct by the defendant with a minor, for which he is not now on trial. Before you may consider such alleged acts as evidence against the defendant, you must first find that the defendant actually committed those acts. If you find that the defendant did commit those acts, you may consider them in deciding if the defendant committed the offense for which he is now on trial. Because a jury is presumed to follow its instructions, People v Abraham, 256 Mich App 265 (2003), it is presumed that the jury followed the trial court’s caution regarding the use of defendant’s prior conviction in this matter.

The trial court did not thereby abuse its discretion in admitting evidence of defendant’s prior criminal sexual conduct conviction under MCL 768.27a. (The Court of Appeals finally remarked that it wan not therefore necessary to address whether it was also alternatively admissible under MRE 404(b).