Michigan Supreme Court Holds Res Gestae Exception Inapplicable to 404(b) Evidence

On July 28, 2015, the Michigan Supreme Court held in a criminal case that the res gestae exception to the hearsay rule does not permit the prosecution to work around the mandatory procedural requirements of Michigan Rule of Evidence (MRE) 404(b) when admitting other acts evidence at trial.

In People v Jackson, Docket No. 149798, the Michigan Supreme Court addressed the issue of whether the trial court erred in permitting a witness to testify to other acts of sexual abuse as a res gestae witness when the prosecution failed to comply with the pretrial notice and other requirements of MRE 404(b).

From the opinion's syllabus:

Timothy W. Jackson was convicted by a jury in the Wayne Circuit Court of six counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) and (1)(b)(iii), for sexually abusing a young member of the church where he served as pastor. The abuse occurred while the complainant was serving as a “youth nurse” to defendant, and came to light when the complainant’s aunt—who was a parishioner at the church, and had previously served as a nurse to defendant—asked the complainant about her relationship with defendant. At trial, the complainant’s aunt testified that she had approached the complainant to discuss the possible abuse in light of her own experiences and after talking with another woman who had also served as a nurse to defendant and had subsequently left the church. Defense counsel objected and moved for a mistrial, arguing that this testimony indicated that defendant had engaged in sexual relationships with the complainant’s aunt and her acquaintance, and was inadmissible evidence of other acts under MRE 404(b). The trial court, James A. Callahan, J., overruled the objection and denied the motion, ruling that admissibility of the testimony was not governed by MRE 404(b) because the testimony was not evidence that defendant had engaged in prior sexual conduct with underage parishioners. The Court of Appeals, JANSEN, P.J., and OWENS, J. (SHAPIRO, J., concurring), affirmed in an unpublished opinion per curiam issued April 10, 2014 (Docket No. 310177), holding that although the testimony was evidence of other acts under MRE 404(b), it fell within an exception to that rule for res gestae evidence and thus could be admitted without reference to or compliance with the rule. The Supreme Court ordered and heard oral argument on whether to grant defendant’s application or take other peremptory action. 497 Mich 930 (2014).

In a unanimous opinion by Justice MCCORMACK, the Supreme Court held:

The Court of Appeals erred by holding that the testimony at issue could be admitted without reference to or compliance with MRE 404(b) by virtue of a “res gestae exception” to that rule. There is no “res gestae exception” to MRE 404(b), nor does the definition of “res gestae” set forth in People v Delgado, 404 Mich 76 (1978), or People v Sholl, 453 Mich 730 (1996), delineate the limits of that rule’s applicability. To the extent that previous Court of Appeals cases have held otherwise, they are overruled. Because the testimony at issue constituted evidence of other acts under MRE 404(b), its admission was governed by that rule and its procedural requirements. However, the Court of Appeals correctly determined that the defendant’s convictions should be affirmed because defendant failed to show that he was entitled to relief on the basis of this error.

1. The plain language of MRE 404(b) limits the rule’s scope to evidence of other crimes, wrongs, or acts that are contemporaneous with, or prior or subsequent to, the conduct at issue in the case and may be offered to prove the character of a person in order to show action in conformity therewith. Thus, by its plain terms, 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. Acts comprised by or directly evidencing the conduct at issue are not subject to scrutiny under MRE 404(b). The conduct at issue in the instant case was defendant’s charged acts of criminal sexual conduct against the complainant. Defendant’s prior relationships with the complainant’s aunt and her acquaintance plainly did not constitute, directly evidence, or contemporaneously facilitate the commission of this conduct. Rather, the testimony regarding those prior relationships was offered to provide inferential support for the conclusion that the charged conduct did, in fact, occur as alleged, and that those allegations were not fabricated. Such evidence fell within the prevailing and established scope of “other acts” contemplated by MRE 404(b), and the propriety of its inferential support was subject to scrutiny under that rule.

2. The trial court erred by ruling that the challenged testimony was too vague and nonspecific to constitute evidence of other acts. Although the complainant’s aunt did not expressly state that defendant had engaged in sexual conduct with her and her acquaintance, her testimony clearly indicated as much, and in fact, the offered relevance of her testimony turned on the role this prior sexual conduct played in her decision to approach the complainant. While the testimony’s level of detail regarding this prior conduct bore on its admissibility under MRE 404(b), the testimony constituted evidence of other acts and its admission was governed by that rule.

3. The trial court erred by deeming MRE 404(b) inapplicable because the testimony involved women who were above the age of consent at the time of their prior relationships with defendant. This was not factually established and, in any event, had no bearing on whether the testimony was subject to MRE 404(b). The rule does not limit its reach to evidence of other criminal conduct; rather, it expressly contemplates evidence of other crimes, wrongs, or acts that may give rise to an impermissible character-to-conduct inference. Evidence that defendant had previously engaged in sexual relationships with other parishioners, above or below the age of consent, fell well within this scope of coverage.

4. The Court of Appeals majority erred by holding that the challenged testimony fell within a “res gestae exception” to MRE 404(b). The plain language of MRE 404(b) sets forth no such exception from its coverage, nor was such an exception created in Delgado or Sholl, which provide a definition for potentially admissible “res gestae” evidence but which do not purport to exempt all evidence meeting that definition from scrutiny under MRE 404(b). This definition of “res gestae” also does not provide an apt delineation the boundaries of MRE 404(b)’s applicability; to the contrary, it is readily susceptible to a broad reading that significantly overlaps with the established scope of MRE 404(b), which risks unduly eroding the rule’s plainly stated scope and undermining its procedural protections. MRE 404(b) applies to evidence of crimes, wrongs, or acts other than the conduct at issue in the case that may give rise to a character-to-conduct inference. In this case, the prior sexual relationships to which the challenged testimony referred plainly did not constitute the conduct at issue, nor did they directly evidence or contemporaneously facilitate its commission; instead, they were offered to provide inferential support for the conclusion that the conduct at issue occurred as alleged. Accordingly, the admissibility of that testimony was governed by MRE 404(b).

5. Defendant was not entitled to relief based on the erroneous handling of the challenged testimony because the error was harmless. The testimony was logically relevant to a material fact in the case as required by MRE 401 and MRE 402 and was offered for the proper, nonpropensity purpose of explaining the timing and circumstances of the complainant’s disclosure of the alleged abuse to her aunt, which was necessary to counter defendant’s theory that the complainant’s allegations of abuse were fabricated at the behest of the complainant’s aunt. Further, the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice under MRE 403 because the testimony was tailored to its proper purpose and did not delve into unnecessary detail or unduly invite the jury to draw an impermissible character-to-conduct inference from it. Therefore, the testimony was substantively admissible under MRE 404(b), notwithstanding the trial court’s failure to properly analyze it under that rule. And while defendant was not provided proper pretrial notice of the testimony as required by MRE 404(b)(2), he has not shown outcome-determinative prejudice from that error. The lack of proper pretrial notice under MRE 404(b)(2) did not result in the admission of substantively improper other-acts evidence. Although defendant was not afforded an opportunity to marshal arguments against its admission before it was introduced at trial, he did not show that any such arguments would have been availing or would have affected the scope of testimony ultimately presented to the jury. While defendant suffered unfair surprise from the unexpected introduction of this testimony at trial, he was aware of the general version of events in the challenged testimony before trial and did not demonstrate how he would have approached trial or presented his defense differently with proper notice of the proposed testimony. Lastly, irrespective of the challenged testimony, the other evidence of defendant’s guilt was overwhelming. The complainant testified at length and in detail regarding defendant’s alleged acts of abuse, and her account was corroborated not only by other witness testimony but also by substantial objective evidence for which defendant had no colorable explanation or response. Accordingly, the erroneous handling of the challenged testimony did not undermine the reliability of the verdict.

Convictions affirmed; Court of Appeals opinion vacated in part.