Michigan Court Of Appeals Holds Prior Child Molestation Acts Admissible

On May 12, 2015, the Michigan Court of Appeals held in a criminal case that the trial court erred in granting defendant's motion to suppress a minor-child victim's testimony about defendant molesting her in support of its case against defendant involving defendant's molestation of a second minor-child victim.

In People v Uribe, Docket No. 321012, the Michigan Court of Appeals addressed the issue of whether the trial court erred in granting defendant's motion to suppress a minor-child victim's testimony in a case involving defendant molesting a second minor-child victim. The Court specifically addressed whether the trial court's analysis under MRE 403 and 404(b) was error.

The Court first recited the facts of the case.

Defendant lost his parental rights to his two daughters, J.U. and M.U., in late 2013 because he sexually abused V.G., J.U.’s half-sister. In January 2014, the prosecution charged defendant with five counts of criminal sexual conduct (“CSC”) for his molestation of V.G. As part of its case, the prosecution sought to introduce evidence under MCL 768.27a that defendant had also molested J.U. The prosecution filed a notice of intent that it planned to use J.U.’s testimony on defendant’s abuse at trial, and attached a Michigan State Police (“MSP”) report that effectively summarized her anticipated testimony.

In the report, which recounted a trooper’s interview with J.U., J.U. stated that sometime during summer 2011, she fell asleep with her father in the same bed. She woke up when she felt her father insert his fingers into her underwear. Defendant also attempted to place her hand on his penis on multiple occasions, but J.U. never actually touched her father because she repeatedly moved her body away from him each time he tried to make her touch his penis. Defendant never spoke to her about the episode, apart from laughing after J.U. told him that she had seen his “private” during the night. J.U. noted that she did not want to tell anyone about the molestation, because she did not want her father to get in trouble.

Defendant objected to and filed a motion to suppress the admission of J.U.’s testimony. After a hearing, the trial court granted the motion and explained its reasoning in a holding from the bench. The trial court questioned the credibility of J.U.’s testimony, because she had initially denied her father abused her during the proceedings for termination of parental rights, and her subsequent “statements . . . [were] all over the place.” The court also doubted whether J.U.’s accusations against defendant constituted a “listed offense” under MCL 768.27a, and stated: “it’s more clear that if anything happened J.U.’s been consistent that [defendant’s] hand was on the belly and [his] fingers maybe dropped below the belly button.”

Despite its concerns over the veracity of J.U.’s statements and belief that defendant did not commit a “listed offense” under MCL 768.27a, the trial court “[gave] the prosecutor the benefit of the doubt” that defendant’s alleged actions constituted a “listed offense” under MCL 768.27a. Nonetheless, the court held that J.U.’s testimony would still be barred under MRE 403, because the sexual abuse she detailed was “dissimilar” to the sexual abuse against V.G. alleged by the prosecution, which involved anal penetration. The former molestation also purportedly occurred while others were present, whereas the latter molestation did not. The trial court finally noted that defendant allegedly molested V.G. multiple times, while J.U.’s molestation occurred once. The court closed its holding from the bench by opining that “the purpose of [MCL 768.27a] honestly is to allow in other allegations that are more similar in nature to show a propensity; see, this is what the defendant does, this is what the defendant does.” (Emphasis added.)

The Court's analysis of whether the trial court erred in granting defendant's motion to suppress J.U.'s prior testimony followed.

Here, the trial court made three errors when it assessed the admissibility of J.U.’s testimony under MCL 768.27a. First, the record reveals that the trial court had serious doubts about the witness’ credibility. The record further reveals that the trial court suppressed the proffered evidence, in part, because it doubted J.U.’s credibility. And though it is routine for a trial court to make preliminary factual determinations in making evidentiary rulings, it is inappropriate for a trial court to exclude a witness from testifying simply because the court disbelieves the witness. Such an action goes well beyond routine and permissible foundational rulings on matters of fact, and wrongly intrudes upon the role of the jury to make credibility determinations. Accordingly, the trial court impermissibly allowed its opinion on J.U.’s credibility to influence its evidentiary ruling under MCL 768.27a and MRE 403.

Second, the trial court wrongly expressed doubt that the offense J.U. intended to describe in her testimony constituted a “listed offense” under MCL 768.27a. Again, MCL 768.27a specifies that:

Notwithstanding [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. [MCL 768.27a(1).]

Here, J.U. told the Michigan State Police that, when she was under 13 years old, defendant put his fingers in her underwear and repeatedly attempted to make her touch his penis. Both statements provide ample evidence that defendant committed a “listed offense” under MCL 768.27a, because, if true, they demonstrate that defendant engaged in “sexual contact” under MCL 750.520a—they involve “the intentional touching of the victim’s . . . intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s . . . intimate parts.” The fact that J.U. never touched defendant’s penis is inconsequential, because her statement indicates that defendant attempted to commit a “listed offense” under MCL 768.27a— “the intentional touching of the . . . actor’s intimate parts[.]” 

J.U.’s proposed testimony thus details a “listed offense” under MCL 768.27a that is relevant evidence for proving that defendant committed the charged offense. The trial court’s statement that J.U.’s proposed testimony did not contain evidence of a listed offense was thus simply inaccurate as a matter of law, and the testimony is admissible pursuant to the mandates of MCL 768.27a.

Finally, the trial court committed another error of law when it assessed the admissibility of J.U.’s testimony under MRE 403. Though the trial court said it analyzed the evidence under the traditional MRE 403 balancing test—to determine whether the probative value of J.U.’s testimony was outweighed by the risk of unfair prejudice the testimony posed to defendant—the court actually analyzed J.U.’s testimony by using the now inapplicable propensity test.

The court held the testimony to be inadmissible because it believed the molestation described by J.U. to be too “dissimilar” to the molestation described by V.G. Similarity, or lack thereof, between another criminal act and the charged crime, is a comparison courts frequently make to assess whether evidence of the other criminal act is admissible to show something other than a defendant’s criminal propensity under MRE 404(b). Whether an act is similar or dissimilar to a charged offense does not matter for the purposes of MRE 403, which, as noted, looks to whether otherwise relevant evidence is overly sensational or needlessly cumulative. More importantly, MCL 768.27a clearly mandates the admissibility of any evidence of a “listed offense,” regardless of similarity. Indeed, the similarity element is presumed in the mandate to admit evidence of a listed offense.

Furthermore, the trial court never considered or explained how the probative value of J.U.’s testimony would be outweighed by unfair prejudice under MRE 403. This is likely because J.U.’s testimony is not unfairly prejudicial to defendant. To the contrary, the clearly ated public-policy of this state—to protect children from sexual predators—requires that this precise evidence be admitted.

The trial court therefore erred when it granted defendant’s motion to suppress. In so doing, it did exactly what our Supreme Court cautioned against in Watkins, by reverting, wittingly or unwittingly, to the traditivonal propensity analysis used under MRE 404(b). Accordingly, we reverse the holding of the trial court, and remand for entry of an order permitting the admission of J.U.’s testimony. We do not retain jurisdiction.