Other-Acts Evidence

2.4Other-Acts Evidence ¹

A.Rule 404(b) and Section 768.27

“Evidence 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.” MRE 404(b)(1). However, “[i]f it is material, the evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, absence of mistake, or lack of accident.” MRE 404(b)(2).

“In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.” MCL 768.27.

“[W]hile MRE 404(b) and MCL 768.27 certainly overlap, they are not interchangeable.” People v Jackson, 498 Mich 246, 269 (2015). MCL 768.27 authorizes the admission of other-acts evidence for the same purposes listed in MRE 404(b)(2)² when one or more of the matters “is material.” Jackson, 498 Mich at 269. “Unlike MCL 768.27, however, MRE 404(b)’s list of such purposes is expressly nonexhaustive, and thus plainly contemplates the admission of evidence that may fall outside the statute’s articulated scope.” Jackson, 498 Mich at 269. Accordingly, “MCL 768.27 does not purport to define the limits of admissibility for evidence of uncharged conduct.” Jackson, 498 Mich at 269.

“Other-acts evidence may also be admissible without regard to MRE 404(b) if the other acts 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.” People v Spaulding, 332 Mich App 638, 650 (2020). “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. (quotation marks and citation omitted). In Spaulding, other-acts evidence “consisting of [the victim’s] description of . . . four [prior] incidents” was relevant “in proving defendant’s connection to aggravated stalking,” and “did not rely on an improper character-to-conduct inference.” Id. at 650, 652 (quotation marks and citation omitted). Although evidence of “defendant’s three communications . . . did not explicitly convey any threats[,] [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.” Id. at 651. “Without knowing that history, the communications would have been innocuous. The prior incidents were critical to understand why a reasonable person would have felt . . . scared by defendant’s conduct under the circumstances.” Id. at 651-652 (noting “defendant’s prior acts of domestic violence were direct evidence of his aggravated stalking: it was literally his own prior misconduct that made the communications at issue crimes”).

1.Applicability of MRE 404(b)

“Evidence relevant to a noncharacter purpose is admissible under MRE 404(b) even if it also reflects on a defendant’s character. Evidence is inadmissible under this rule only if it is relevant solely to the defendant’s character or criminal propensity.” People v Mardlin, 487 Mich 609, 615-616 (2010).

“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. Correspondingly, acts comprised by or directly evidencing the ‘conduct at issue’ are not subject to scrutiny under MRE 404(b).” People v Jackson, 498 Mich 246, 262 (2015) (holding that “[e]vidence that the defendant,” who was 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” and required the prosecution to provide notice under MRE 404(b)).

“MRE 404(b) applies to the admissibility of evidence of other acts of any person, such as a defendant, a plaintiff, or a witness.” People v Rockwell, 188 Mich App 405, 409-410 (1991). This includes “admissibility of defendant’s prior convictions to impeach by contradiction a witness’ testimony[.]” People v Wilder, 502 Mich 57, 64, n 9 (2018). The rule applies to both civil and criminal cases. Wlosinski v Cohn, 269 Mich App 303, 322 (2005).

In order for other-acts evidence to be admissible under MRE 404(b)(2),³ a party must “show that it is (1) offered for a proper purpose, i.e., to prove something other than the defendant’s propensity to act in a certain way, (2) logically relevant, and (3) not unfairly prejudicial under MRE 403.” Rock v Crocker, 499 Mich 247, 257 (2016). “Before applying MRE 403, the trial court must consider whether . . . there [is] a proper purpose for admitting other-acts evidence” under MRE 404(b)(2). Rock, 499 Mich at 259.⁴ “Only if the trial court finds a proper purpose under MRE 404(b) should the trial court then apply MRE 403.” Rock, 499 Mich at 259.

“If necessary to determine the admissibility of evidence under [MRE 404(b)], the court must require the defendant to state the theory or theories of defense, limited only by the defendant’s privilege against self-incrimination.” MRE 404(b)(4). However, a ruling on whether to admit MRE 404(b) evidence does not require an evidentiary hearing if no motion in limine was filed. See People v Williamson, 205 Mich App 592, 596 (1994) (“the trial court’s failure to conduct an evidentiary hearing regarding the admissibility of the evidence [did] not require reversal” because neither People v Golochowicz, 413 Mich 298 (1982),⁵ nor People v Engelman, 434 Mich 204 (1990), “mandates that an evidentiary hearing be held where, as in this case, no motion in limine has been made by the defense”).

A trial court may not circumvent MRE 404(b)(2)⁶ by taking judicial notice ⁷ of the respondent’s past conduct. In re Kabanuk, 295 Mich App 252, 260 (2012). In Kabanuk, the trial court took judicial notice of the defendant’s past bad courtroom behavior, essentially finding that because he had been disruptive at earlier hearings, he had likely been disruptive in the matter before the court. Id. The Court of Appeals found that the trial court’s consideration of the defendant’s prior acts violated MRE 404(b)(2),⁸ but concluded the error was not outcome determinative and therefore, did not require reversal. Kabanuk, 295 Mich App at 260.

A defendant accused of criminal sexual conduct may introduce testimony under MRE 404(b) to show that the complainant’s father previously induced the complainant to make false allegations of sexual abuse against other persons disliked by the father. People v Jackson, 477 Mich 1019 (2007) (“[s]uch testimony does not implicate the rape shield statute”). See also People v Parks, 478 Mich 910 (2007), where the Court remanded the case for an evidentiary hearing at which the defendant was to be given “the opportunity to offer proof that the complainant made a prior false accusation of sexual abuse against another person.”

“[T]here 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),] and [People v] Sholl[, 453 Mich 730 (1996),] delineate the limits of that rule’s applicability.” Jackson, 498 Mich at 268 n 9, 274, overruling any conflicting caselaw “[t]o the extent that such caselaw holds that there is a ‘res gestae exception’ to MRE 404(b)[.]”

Other-acts evidence is admissible to rebut forensic center staff’s testimony on the issue of a defendant’s sanity. See People v McRunels, 237 Mich App 168, 183 (1999). “[T]he concerns that underlie MRE 404[(b)] are not implicated where the challenged evidence is introduced on the issue of the defendant’s sanity, and not in an attempt to have the jury convict of the crime charged on the basis of past misconduct[.]” McRunels, 237 Mich App at 183 (second alteration in original).

2.Notice Requirement in Criminal Case

The prosecutor must provide notice of other acts evidence intended to be offered “at trial, so that the defendant has a fair opportunity to meet it[.]” MRE 404(b)(3)(A). The notice must articulate “the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose[.]” MRE 404(b)(3)(B).^⁹ The prosecutor must provide the defendant with the notice “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.” MRE 404(b)(3)(C).

MRE 404 does not provide a definition of good cause. However, “[a] trial court has broad discretion to determine what constitutes ‘good cause.’” Thomas M Cooley Law Sch v Doe 1, 300 Mich App 245, 264 (2013) (considered in context of an unrelated court rule). “[N]otice is not required when the evidence the prosecution intends to present falls within the res gestae exception to MRE 404(b).” People v Jackson, 498 Mich 246, 256 (2015) (quotation marks, alteration, and citation omitted).

The reasons for the notice requirement are: “(1) to force the prosecutor to identify and seek admission only of prior bad acts evidence that passes the relevancy threshold, (2) to ensure that the defendant has an opportunity to object to and defend against this sort of evidence, and (3) to facilitate a thoughtful ruling by the trial court that either admits or excludes this evidence and is grounded in an adequate record.” People v Hawkins, 245 Mich App 439, 454-455 (2001).

Where the prosecution fails to provide notice of its intent to offer other-acts evidence as required under MRE 404(b)(3),¹⁰ the defendant is not entitled to relief unless he or she “demonstrate[s] that this error ‘more probably than not . . . was outcome determinative.’” Jackson, 498 Mich at 278, 281 (holding that where “the lack of proper pretrial notice did not result in the admission of substantively improper other-acts evidence,” and where the defendant did not show “that any . . . arguments [(against the admission of the other-acts evidence)] would have been availing, or would have affected the scope of testimony ultimately presented to the jury,” he failed to “demonstrate[] entitlement to relief based on the erroneous handling of [the MRE 404(b)] testimony”) (quotation marks and citations omitted).

Where “’written notice’ was not timely provided, . . . and . . . ‘oral notice on the record’ was not provided until one day before trial,” “the trial court erred by admitting [MRE 404(b)] evidence . . . [because] there was [no] good cause to excuse the noncompliance.” People v Felton, 326 Mich App 412, 421 (2018). The prosecution’s claim that it did not timely provide notice of its intent to present evidence of the defendant’s prior conviction because it did not know the prior bad act evidence existed “[held] no weight” because “it [was] undisputed that the prosecution was aware of defendant’s conviction . . . at the time the information was filed.” Id. at 422. Further, “the prosecution’s claim that it did not have the police report . . . until the day before it filed the notice required by MRE 404(b) [was] not adequate to show good cause,” where the record demonstrated “no efforts were made [to obtain the police report] during the six months between the filing of the information and defendant’s trial[.]” Felton, 326 Mich App at 422. Evidence that another witness purchased drugs from the defendant days prior to the current incident was also “procedurally inadmissible” because the prosecutor “failed to indicate that [the] testimony would concern other acts.” Id. at 423-424 (“[i]t was only in response to [the defendant’s] objection that the prosecution explained the general content of [the] expected testimony”). The prosecutor’s argument that it did not know it would need the witness’s testimony until another witness took flight “carrie[d] little weight given that no MRE 404(b) notice was ever filed for [that] witness either.” Felton, 326 Mich App at 424. Under these circumstances, “[i]t is clear that the late notice . . . did ‘unfair[ly] surprise’ defendant and did not provide him with time to ‘marshal arguments regarding both relevancy and unfair prejudice.’” Id. at 421 (alteration in original). Additionally, “the court improperly put the burden on the defendant to produce evidence [that admission of the MRE 404(b) evidence was improper], while it accepted the prosecutor’s statements–that were wholly unsupported by any evidence–as conclusive.” Felton, 326 Mich App at 424.

While failure to provide notice under MRE 404(b)(3)¹¹constitutes plain error, “it may be deemed harmless and therefore not grounds for reversal.” People v Lowrey, 342 Mich App 99, 117 (2022). In Lowrey, the defendant argued “that the trial court erred by admitting evidence of prior domestic and sexual abuse between himself and the victim because of lack of notice.” Id. at 115. However, “defendant fail[ed] to articulate how he would have proceeded differently” or provide “any offer of proof to the effect that the victim’s testimony was untrue.” Id. at 118. Although “it was plain error for [evidence of prior abuse] to be admitted without providing proper notice,” the Lowrey Court determined that the evidence was relevant and “the probative value of this evidence was [not] substantially outweighed by the danger of unfair prejudice.” Id. at 118, 119. Because defendant was unable to “demonstrate that any error was outcome-determinative,” the Court of Appeals concluded that he was “not entitled to relief.”Id. at 119.

3.VanderVliet Test

MRE 404(b) codifies the requirements set forth in People v VanderVliet, 444 Mich 52 (1993). See MRE 404, Note to 1994 Amendment. The admissibility of other-acts evidence under MRE 404(b), except for modus operandi evidence used to prove identity,¹² is generally governed by the test established in VanderVliet, which is as follows:

•The evidence must be offered for a purpose other than to show the propensity to commit a crime. VanderVliet, 444 Mich at 74. Trial courts must “vigilantly weed out character evidence that is disguised as something else.” People v Denson, 500 Mich 385, 400 (2017) (quotation marks and citation omitted). “[M]erely reciting a proper purpose does not actually demonstrate the existence of a proper purpose for the particular other-acts evidence at issue and does not automatically render the evidence admissible.” Id. “[I]n order to determine whether an articulated purpose is, in fact, merely a front for the improper admission of other-acts evidence, the trial court must closely scrutinize the logical relevance of the evidence under the second prong of the VanderVliet test.” Denson, 500 Mich at 400.

•The evidence must be relevant under MRE 402 to an issue or fact of consequence at trial. VanderVliet, 444 Mich at 74. “Other-acts evidence is logically relevant if two components are present: materiality and probative value.” Denson, 500 Mich at 401. See Section 2.2(A) for a detailed discussion of logical relevance.

•The trial court should determine whether the danger of undue prejudice substantially outweighs the probative value of the evidence under MRE 403, in view of the availability of other means of proof and other appropriate facts. VanderVliet, 444 Mich at 74-75.

•Upon request, the trial court may provide a limiting instruction ¹³ under MRE 105, cautioning the jury to use the evidence only for its proper purpose and not to infer that a bad or criminal character caused the defendant to commit the charged offense. VanderVliet, 444 Mich at 75.

The Supreme Court in VanderVliet characterized MRE 404(b) as a rule of inclusion rather than exclusion:

“There is no policy of general exclusion relating to other acts evidence. There is no rule limiting admissibility to the specific exceptions set forth in [MRE] 404(b). Nor is there a rule requiring exclusion of other misconduct when the defendant interposes a general denial. Relevant other acts evidence does not violate [MRE] 404(b) unless it is offered solely to show the criminal propensity of an individual to establish that he acted in conformity therewith.

* * *

“[MRE] 404(b) permits the judge to admit other acts evidence whenever it is relevant on a noncharacter theory.” VanderVliet, 444 Mich at 65.

The VanderVliet case underscores the following principles of MRE 404(b):

•There is no presumption that other-acts evidence should be excluded. VanderVliet, 444 Mich at 65.

•The rule’s list of “other purposes” for which evidence may be admitted is not exclusive. Evidence may be presented to show any fact relevant under MRE 402, except criminal propensity. VanderVliet, 444 Mich at 65.

•A defendant’s general denial of the charges does not automatically prevent the prosecutor from introducing other-acts evidence at trial. VanderVliet, 444 Mich at 78.

•MRE 404(b) imposes no heightened standard for determining logical relevance or for weighing the prejudicial effect versus the probative value of the evidence. VanderVliet, 444 Mich at 68, 71-72.

If other-acts evidence is admissible for a proper purpose under MRE 404(b), it should not be deemed inadmissible simply because it also demonstrates criminal propensity. See VanderVliet, 444 Mich at 65.

“In evaluating whether the prosecution has provided an intermediate inference other than an impermissible character inference, [the court] examine[s] the similarity between a defendant’s other act and the charged offense.” Denson, 500 Mich at 402. “The degree of similarity that is required between a defendant’s other act and the charged offense depends on the manner in which the prosecution intends to use the other-acts evidence.” Id. at 402-403. “If the prosecution creates a theory of relevance based on the alleged similarity between a defendant’s other act and the charged offense, [the Michigan Supreme Court] require[s] a ‘striking similarity’ between the two acts to find the other act admissible.” Id. at 403, quoting VanderVliet, 444 Mich at 67. “When the prosecution’s theory of relevancy is not based on the similarity between the other act and the charged offense, a ‘striking similarity’ between the acts is not required.” Denson, Mich at 403, quoting VanderVliet, 444 Mich at 67. “For example, when the theory of relevance of the other-acts evidence is to identify the defendant as the perpetrator of the charged crime considering the uncommon or distinctive similarity of the facts and circumstances of both the uncharged and charged offenses, there must be a high degree–or striking–similarity so as to earmark the charged offense as the handiwork of the accused, i.e., the defendant’s signature.” People v Galloway, 335 Mich App 629, 639 (2021) (cleaned up). “[W]hen the other-acts evidence is offered to show intent, logical relevance dictates only that the charged crime and the proffered other acts are of the same general category.” Id. at 640 (quotation marks and citations omitted).

Committee Tip:

Over the years, other acts evidence under MRE 404(b) has been referred to as ‘similar acts’ evidence. This nomenclature, although a misnomer, is only partly so. The rule does not use the word similar, but similarity may or may not drive the relevancy and materiality questions. Depending on the prosecutor’s stated purpose for use of other acts evidence, and in conjunction with the theory of the prosecution, the stated purpose for admission may demand a low degree of similarity (intent) or an exceedingly high one (identity). This underscores the need for judicial persistence in ensuring precisely what purpose is advanced for admission.

In cases where the evidence is admissible for one purpose but not others, the trial court may, upon request, give a limiting instruction pursuant to MRE 105. People v Sabin (After Remand), 463 Mich 43, 56 (2000). The trial court has no duty to give a limiting instruction sua sponte, though it should give a limiting instruction even in the absence of a party’s request. People v Chism, 390 Mich 104, 120-121 (1973).

The Michigan Supreme Court and Court of Appeals affirmed the continued viability of VanderVliet’s analytical framework, and its characterization of MRE 404(b) as a rule of inclusion rather than exclusion in Sabin (After Remand), 463 Mich at 55-59, and in People v Katt, 248 Mich App 282, 304 (2001).

Although a panel of the Court of Appeals has said that courts should conduct the VanderVliet analysis on the record, the court is not required to do so. See People v Vesnaugh, 128 Mich App 440, 448 (1983), citing People v Nabers, 103 Mich App 354, 366-367 (1981).

4.Golochowicz Test

Another test for admission of other-acts evidence results from People v Golochowicz, 413 Mich 298, 309 (1982). Generally speaking, the VanderVliet ¹⁴ test has supplanted the Golochowicz test. However, the Golochowicz test remains valid when the proponent of other-acts evidence seeks to show identification through modus operandi. People v VanderVliet, 444 Mich 52, 66 (1993); People v Ho, 231 Mich App 178, 186 (1998).

Before the other-acts evidence may be admitted pursuant to Golochowicz, “(1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant’s identity or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act . . ., opportunity, preparation and knowledge; (3) one or more of these factors must be material to the determination of the defendant’s guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially outweighed by the danger of unfair prejudice.” Golochowicz, 413 Mich at 309.

“[W]hen the theory of relevance of the other-acts evidence is to identify the defendant as the perpetrator of the charged crime considering the uncommon or distinctive similarity of the facts and circumstances of both the uncharged and charged offenses, there must be a high degree–or striking–similarity so as to earmark the charged offense as the handiwork of the accused, i.e., the defendant’s signature.” People v Galloway, 335 Mich App 629, 639 (2021) (quotation marks, alteration, and citation omitted).

5.Other Purposes

a.Motive

Where the defendant was charged with killing the decedent (a woman with whom he lived and had two children in common) on the day their adult daughter moved back into their home, evidence that the defendant sexually assaulted the daughter when she was five years old was admissible for the purpose of establishing the defendant’s motive for killing the girlfriend. People v Edwards, 328 Mich App 29, 32-33 (2019). In explaining how the other-acts evidence related to motive, the prosecutor stated that (1) on the day of the murder, the daughter moved into the decedent’s home (where the defendant resided), (2) the defendant was angry at the decedent’s decision to allow the daughter to move in because of the previous allegations of sexual assault and because he was not allowed to live in the same home as the daughter, and (3) he directed his anger at the decedent by killing her. Id. at 42 (the reasons stated by the prosecutor were supported in the record where a detective testified at the preliminary examination that the defendant stated that he had argued with the decedent about the daughter moving in and that the argument escalated to the point where the defendant shot the decedent). Accordingly, admission of the previous sexual assault of the defendant’s daughter was admissible under MRE 404(b) for a proper purpose. Edwards, 328 Mich App at 43.

In People v Galloway, 335 Mich App 629, 635 (2021), the prosecution argued that evidence of a prior assault was admissible in defendant’s first-degree premeditated murder case “for the proper purpose[] of showing motive[.]” The Galloway Court concluded that “the trial court did not abuse its discretion in excluding evidence of defendant’s assault . . . under MRE 404(b) because there [was] an insufficient factual nexus between the prior conviction and the present charged offense to support any noncharacter theory of admission” where “[t]he incidents did not share idiosyncratic or unexpected conduct like the removal of clothing without sexual assault,” and there was no evidence that the assault victim and murder victim “shared similar injuries because [the murder victim’s] body was never recovered.” Galloway, 335 Mich App at 644-645 (quotation marks and citation omitted; finding that “evidence of defendant’s assault . . . [was] only relevant to show his character or propensity to commit the charged offense and therefore [was] inadmissible”). Defendant’s charge of “first-degree premeditated murder, and the fact that defendant assaulted [another victim did] not tend to establish defendant’s motive” and “there [was] no intermediate fact linking the charged acts and the previous convictions.” Id. at 641. The prosecution’s assertion that the assault was a “practice run” for the murder tended only “to establish defendant’s motive for attacking [the assault victim], not his motive . . . to kill [the murder victim].” Id.

b.Intent

“[A] defendant’s statements of general intent are not prior acts under MRE 404(b).” People v Wisniewski, ___ Mich App ___, ___ (2025) (noting “that such statements are considered the statement of a party-opponent under MRE 801(d)(2)(a)”).

The trial court did not abuse its discretion by permitting the prosecution “to admit evidence of a 2006 incident at a 7-Eleven in which defendant allegedly indicated that he had a gun and that he would shoot the clerk if she did not hand over the money” during the defendant’s trial for an armed robbery of a Halo Burger where the defendant allegedly demanded all the money in the till while holding his hand in his sweatshirt in a way that suggested he had a weapon. People v Henry, 315 Mich App 130, 133, 141 (2016). The Court concluded that “[t]he evidence was offered for a proper purpose and was highly relevant. It was not offered for the purpose of showing that defendant was a bad person. Instead, it was offered to give context to the crime itself. Defendant’s behavior demonstrated an intent to place his victims in fear that he was armed with a dangerous weapon.” Id. at 142 (also concluding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, “especially in light of defendant’s claim that he was not armed and that both [of the employees working at Halo Burger on the night of the robbery] were unreasonable in their fear that defendant was armed”).

In the defendant’s trial for fatally stabbing the victim, “the trial court did not abuse its discretion by admitting evidence of [the] defendant’s prior stabbing of the victim” because the other-acts evidence was admitted “not to demonstrate criminal propensity, but to disprove defendant’s claim that her decision to stab the victim was emotional and made in self-defense, i.e., to prove her intent[.]” People v Dixon-Bey, 321 Mich App 490, 517-519 (2017) (noting that, “much like a victim’s prior acts of violence, a defendant’s prior acts of violence are also highly relevant as to whether a defendant was acting in self-defense”) (citation omitted).

c.Knowledge and Absence of Mistake or Accident

Where the prosecutor sought to establish the defendant’s intent and absence of mistake by introducing evidence that other infants in the defendant’s care had suspicious injuries, it was error for the trial court to prohibit the evidence as impermissible character evidence under MRE 404(b). People v Martzke (On Remand), 251 Mich App 282, 292 (2002).

Where the defendant was charged with second-degree murder and other offenses involving driving while intoxicated, “prior acts evidence . . . involv[ing] incidents in which defendant either drove unsafely, was passed out in her vehicle, or was involved in an accident while impaired or under the influence of prescription substances, or was in possession of pills” was admissible under MRE 404(b)(2)¹⁵ “to show defendant’s knowledge and absence of mistake, and was relevant to the malice element for second-degree murder because it was probative of defendant’s knowledge of her inability to drive safely after consuming prescription substances.” People v Bergman, 312 Mich App 471, 494 (2015). Further, “because the prior incidents were minor in comparison to the charged offense involving a head-on collision that caused the deaths of two individuals, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice under MRE 403.” Bergman, 312 Mich App at 494 (additionally noting that “the trial court gave an appropriate cautionary instruction to reduce any potential for prejudice”).

d.Opportunity, Scheme, or Plan

The trial court did not abuse its discretion in admitting testimony from other-acts witnesses describing a “pattern of defendant using enticements (e.g., promises, jobs, or money) to lure or recruit them to motels for purposes of prostituting or sexually exploiting them, and resorting to threats and violence if they refused” because “there were sufficient similarities between the other incidents and the charged offenses[.]” People v Thurmond, ___ Mich App ___, ___ (2023). “The testimonies of the other-acts witnesses” “was highly probative of defendant’s plan or scheme to use these women for his own financial gain or to satisfy his personal interests[.]” Id. at ___. Considering “the trial court gave a cautionary instruction,” “the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.” Id. at ___. The Court further held that “[a]lthough [records extracted from two cell phones recovered from defendant at the time of his arrest did] not fall within the scope of the human-trafficking charge as alleged in the information, the records were still highly probative of defendant’s scheme or plan to prostitute women and engage in human trafficking during the relevant time period.” Id. at ___.

In People v Smith, 282 Mich App 191, 193 (2009), it was alleged during defendant’s CSC trial that on two occasions the defendant entered his 10 or 11-year-old daughter’s bedroom, pulled down her pants and underwear, and penetrated her vagina with his penis. Under MRE 404(b)(2),¹⁶ the trial court admitted testimony from the victim’s stepsister that she lived with the defendant when she was 11 or 12 years old, and that the defendant exposed his penis to her on three occasions during that time. Smith, 282 Mich App at 193-194. The Court of Appeals held that the trial court did not abuse its discretion in admitting evidence of the defendant’s prior acts of indecent exposure finding that the evidence was offered for the proper purposes of showing opportunity, scheme, or plan. Id. at 197 (also finding that while “[t]he evidence was damaging to defendant, . . . MRE 403 seeks to avoid unfair prejudice, which was not shown here”).

Evidence of the defendant’s previous larcenies of snowmobiles and a trailer, granite and bags of setting materials, and three incidents of thefts from car dealerships was properly admitted under MRE 404(b)(2)¹⁷ during defendant’s trial for charges stemming from allegations that he broke into a car dealership and stole paint and chemical hardeners because (1) it was offered for the proper purpose of proving “that defendant had a common scheme or plan,” (2) it “was relevant in that it showed that defendant had the same scheme or plan in the case at bar,” (3) it was sufficiently similar to the other incidents such that it made the evidence “highly probative of a common scheme or plan,” and (4) “the trial court provided a limiting instruction, which can help alleviate any danger of unfair prejudice, given that jurors are presumed to follow their instructions.” People v Roscoe, 303 Mich App 633, 645-647 (2014) (the previous larcenies showed that the defendant had a common scheme or plan of breaking into businesses and stealing items that have a higher resale value when sold together and that do not appear to be of much value to the average person).

The trial court did not abuse its discretion by admitting evidence of the defendant’s previous thefts during the defendant’s trial for larceny and murder where the other-acts evidence was admissible to show the existence of a common plan, scheme, or system. People v Wood, 307 Mich App 485, 502-503 (2014), vacated in part on other grounds 498 Mich 914 (2015).¹⁸ Specifically, the trial court admitted testimony regarding the defendant’s multiple thefts from the shared home of two disabled women who had hired the defendant to work around their house, the theft of his 77-year-old landlady’s purse from her home, and a theft from another home where the defendant was working. Wood, 307 Mich App at 502-503. The evidence was properly admitted because “[t]he bulk of the other acts . . . shared several common features with the offenses in the instant case.” Id. at 502. Specifically, the evidence regarding the robbery of the two disabled women “demonstrated that defendant targeted vulnerable women . . . by offering to work around their home[s]” and later returned to their homes, intending to steal and armed with a weapon. Id. at 502-503. In the instant case, the defendant was alleged to have met the 80-year-old female victim by offering to perform yard work before returning to her home to commit larceny and murder with a knife he was carrying. Id. at 503. Further, the Court found that the evidence regarding the defendant’s theft from his landlady was another instance of the defendant “target[ing] a vulnerable and elderly woman for theft” by entry into her home.¹⁹ Id.

The trial court did not abuse its discretion “in admitting evidence related to [previous Child Protective Services (CPS)] investigations involving allegations that [the father of the defendant’s daughter] sexually abused his daughter”; “the uncharged conduct . . . was logically relevant under MRE 404(b) to show defendant’s common plan, scheme, or system in using [her daughter] to make a false allegation of sexual abuse against [her daughter’s father] . . . [and] was also relevant to show defendant’s motive for causing the false report to be made in the instant case in that the false report could cause CPS to remove [her daughter] from [her daughter’s father’s] care.” People v Mullins, 322 Mich App 151, 167, 169 (2017). Additionally, “[b]ecause defendant was the party who first pursued the substantive allegations involving the [earlier CPS] petition,” she opened the door to the CPS petition testimony even though “the prosecution never noticed her of its intent to admit such evidence,” and “any prejudice flowing from the evidence was of defendant’s own making.” Id. at 170, 172.

In People v Galloway, 335 Mich App 629, ___ (2021), the prosecution sought to admit evidence of a prior assault in defendant’s first-degree premeditated murder case arguing “that there were striking similarities in each case, which demonstrated a common scheme, plan, or system.” Id. at 635. “There must be such a concurrence of common features that the charged acts and the other acts are logically seen as part of a general plan, scheme, or design.” Id. at 644 (quotation marks and citation omitted). “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.” Id. at 644-645 (quotation marks and citation omitted). “[P]hysical similarities between [the two victims] did not persuasively establish a common scheme or plan.” Id. at 645.

e.Identity

Other-acts evidence regarding a prior attempted murder was properly admitted in defendant’s first-degree murder trial because it was relevant to “whether defendant [was] the person who shot and killed the victim, then tried to dispose of her body using fire,” and it tended “to show defendant’s scheme, plan, or system in committing the charged offenses.” People v Bass, 317 Mich App 241, 260 (2016). There were significant factual similarities between the other-acts evidence and the circumstances in the instant case, specifically: both victims were attacked from behind, both victims were women the defendant knew for a substantial time, the defendant had a sexual relationship with both victims at the time of the offenses, a liquid that smelled like gasoline was poured on the victim during the attempted murder and gasoline was used to burn the victim’s body in the instant case, and the victim in the attempted murder case was wrapped “in a carpet or something” and the victim’s body in the instant case “was found bound with wire atop a plastic tarp.” Id. Further, while it was “a closer question whether the probative value of [the other-acts] evidence was substantially outweighed by the danger of unfair prejudice,” the defendant’s identity was a primary issue at the trial; thus, “the similarities between his assault against [the attempted murder victim] and the facts known about the victim’s death had a heightened probative value.” Id. at 261. Accordingly, “[t]he decision to admit the attempted-murder evidence fell within the range of reasonable and principled outcomes.” Id.

In People v Galloway, 335 Mich App 629, 635 (2021), the prosecution argued that evidence of a prior assault was admissible in defendant’s first-degree premeditated murder case “to identify defendant as [the victim’s] killer.” Although there was substantial evidence that defendant committed the assault because he pleaded guilty to doing so, “the prosecution . . . failed to identify some special quality of the act that tend[ed] to prove defendant’s identity”; “the two cases . . . [did] not show similar degrees or characteristics of preparation,” and “[t]he prosecution [did] not explain how the specific facts of each case [gave] rise to recognizable shared elements of stalking behavior or isolation and asportation of the victim.” Id. at 642-644 (quotation marks and citation omitted; finding the evidence insufficient to prove defendant’s identity under Golowchowicz ²⁰).

6.Error in the Admission of Other-Acts Evidence

Other-acts evidence is not logically relevant to prove a common plan or scheme where is it “undisputed that the alleged offense occurred.” People v Heath, ___ Mich ___, ___ (2022). Indeed, “evidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system[.]” Id. at ___ (quotation marks and citation omitted).

Improper admission of other-acts evidence “is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative—i.e., that it undermined the reliability of the verdict.”²¹ People v Denson, 500 Mich 385, 409 (2017) (quotation marks and citation omitted). Courts should “focus on the nature of the error and assess its effect in light of the weight and strength of the untainted evidence.” Id. at 409-410 (alterations, quotation marks and citation omitted). “[W]hether admission of other-acts evidence is harmless is a case-specific inquiry; the effect of an error should be determined by the particularities of an individual case.” Id. at 413 n 15.

In the defendant’s trial for assaulting a teenager who was dating his daughter, evidence of the defendant’s prior conviction for assaulting an unrelated individual in an unrelated incident involving a drug debt “was [not] admissible under MRE 404(b) to rebut defendant’s claims of self-defense and defense of others”; “the trial court erred when it admitted defendant’s prior act because the prosecution failed to establish that it was logically relevant to a proper noncharacter purpose” and relied upon the other-acts evidence to “evoke[] the very propensity inference that MRE 404(b) forbids.” Denson, 500 Mich at 389, 411. During trial, the prosecution questioned several witnesses about the defendant’s prior violent acts and “further compounded the problem” by arguing in closing that the defendant “did not act in ‘defense of anybody’ because [he] was a ‘bully’ and a ‘coward’ who lost control with [the victim], just as he had lost control with [a prior victim, and . . .] it was ‘not a coincidence’ that ‘[the defendant] pounded on [the victim in this case].’” Id. at 411-412. The prosecutor asserted that “[b]ecause there was no viable self-defense claim in the [prior] incident, . . . there could be no viable self-defense claim [in the current case].” Id. at 412. Additionally, the defendant and the victim testified to “highly conflicting accounts of the same incident, but the introduction of the inadmissible evidence tipped the scales, buoying [the victim’s] credibility while helping to sink defendant’s.” Id. at 410, 413 (noting that the “defendant’s version of events was not wholly inconsistent with the injuries [the victim] sustained”). Accordingly, “the improper admission of the other-acts evidence undermined the reliability of the verdict by making it more probable than not that, had this evidence not been admitted, the result of the proceedings would have been different.” Id at 412-413 (“[a]lthough the prosecution also introduced photographs and medical testimony regarding [the victim’s] injuries, the mere presence of some corroborating evidence does not automatically render an error harmless”; “[o]therwise, [the Court’s] directive to assess the effect of the error ‘in light of the weight and strength of the untainted evidence’ would have no meaning”).

In Denson, “the prosecution built a theory of relevance centered upon the supposed similarity between the [prior] incident and the charged offense to rebut defendant’s claims of self-defense and defense of others”; “[c]onsequently, . . . the prosecution [was required to] show ‘striking similarity’ between the other act and the charged offense.” Denson, 500 Mich at 406, quoting People v VanderVliet, 444 Mich 52, 67 (1993). However, “the circumstances of the prior conviction did not bear a striking similarity to those of the charged offense. Instead, the prosecution relied on the impermissible inference that defendant had committed the charged offense because of his supposed violent character.” Denson, 500 Mich at 408 (noting that “although the prosecution nominally recited what could be a proper purpose under the first prong of the VanderVliet test, evaluation of the probative value of the other-acts evidence under the second prong of the VanderVliet test reveal[ed] that no such purpose actually existed”).

Where a defendant was charged with sexually abusing his daughter, the trial court erred in admitting evidence of the defendant’s alleged sexual misconduct involving a coworker, because “the workplace acts and their contextual circumstances [were] not remotely similar to the charged conduct and [did] not support any inference that defendant’s charged conduct was part of a common plan.” People v Pattison, 276 Mich App 613, 617 (2007). In Pattison, the defendant was charged with four counts of first-degree criminal sexual conduct for the alleged sexual abuse of his minor daughter that occurred repeatedly over two years while she lived with him. Id. at 615. However, the alleged sexual misconduct toward the defendant’s coworker was not admissible because there was no evidence of a “personal or familial relationship” between the defendant and his coworker. Id. at 616-617. Furthermore, the workplace incident involved “surprise, ambush, and force” of a grown woman, while the defendant’s conduct toward his daughter involved “manipulation and abuse of parental authority” of a child. Id.

“[T]he similarity of the drugs sold, unless of some unusual or unique type, [does not constitute] a common scheme for purposes of MRE 404(b).” People v Felton, 326 Mich App 412, 430 (2018). In Felton, the defendant was charged with possession with intent to deliver cocaine and heroin, and the trial court erred in admitting evidence that the defendant previously sold similar types of drugs (crack cocaine) to an undercover detective because “heroin and cocaine are neither unique nor unusual street drugs, nor are they in fact, as the prosecutor repeatedly represented to the jury, ‘the same.’” Id. The prosecution intended to introduce evidence of a prior incident where the defendant “[w]as in possession of heroin,” “[w]as selling it to other individuals,” and “[u]tilized a separate individual and their vehicle to drive him around and assist him with the sale of illegal drugs” (i.e. a common plan or scheme). Id. at 426-427 (quotation marks omitted). Being in possession of heroin and selling it to others were “clearly insufficient” reasons to satisfy the requirements of MRE 404(b) because “they amount[ed] to nothing more than propensity evidence[.]” Felton, 326 Mich App at 427. In addition, the prosecution never established its third reason (utilizing a separate individual/vehicle) because the prior incident was inconsistent with the actions in the instant case. Id. at 427-428 (“[t]here was no evidence that the driver [in the prior incident] was involved in recruiting buyers or doing anything other than driving” unlike the situation in the instant case; in the prior incident, the defendant possessed the drugs and admitted they were his, unlike the situation in the instant case). “The mere fact that defendant possessed drugs in a vehicle driven by someone else is not sufficient to establish a common plan or scheme.” Id. at 427.

Evidence that defendant sold drugs to another witness (a few days prior to the current incident) also failed to demonstrate a common scheme or plan, notably because there was no vehicle involved and defendant possessed the drugs and sold them to the witness directly. Felton, 326 Mich App at 428.

The trial court erred by treating other-acts testimony against the defendant during his trial for first-degree murder and mutilation of a human body “as if it involved just one prior bad act,” where the testimony conceptually involved “two distinct prior bad acts: attempted murder and rape.” People v Bass, 317 Mich App 241, 259-260 (2016). The trial court abused its discretion by admitting the sexual assault other-acts evidence because it lacked logical relevance to the facts of the instant case; however, the attempted murder other-acts evidence was properly admitted to show identity and the defendant’s scheme, plan, or system. Id. at 260-262. The sexual assault other-acts evidence was not relevant to any fact in consequence where the defendant was not charged with criminal sexual conduct, and there was no evidence that the victim was ever sexually assaulted; accordingly, “the only logical purpose for the introduction of the sexual-assault evidence was the improper character purpose, i.e., proof that defendant is a bad person and therefore probably committed the charged offenses.” Id. at 261. Further, the danger of unfair prejudice under MRE 403 outweighed any marginal probative value that might exist because “[s]ex offenders are a loathed class,” and “knowledge that defendant is a rapist did nothing to help the jurors decide whether he committed the charged offenses.” Bass, 317 Mich App at 262 (concluding that reversal was unwarranted because the defendant failed to meet his burden of demonstrating that the erroneous admission of evidence more probably than not resulted in a miscarriage of justice where there was “overwhelming” circumstantial evidence of the defendant’s guilt and the trial court gave a limiting instruction proscribing the jurors from considering the evidence for improper character purposes).

The trial court abused its discretion by admitting testimony from the defendant’s first wife about the defendant’s domestic abuse that occurred at least 16 years before the charged offense under MRE 404(b), “because the purpose of the evidence was to show that in this case, defendant acted in conformity with the character shown in the prior acts, i.e., that defendant was threatening, abusive, and violent.” People v Rosa, 322 Mich App 726, 735 (2018) (also finding that the evidence was inadmissible under MCL 768.27b ²² because it was not “uniquely probative” or “needed to ensure that the jury was not misled”). The defendant’s first wife’s testimony “did not offer probative evidence on a material issue,” where it did not demonstrate a particular pattern or scheme that would serve to identify the defendant and “[t]estimony about defendant’s abusive treatment of his first wife many years ago” did not provide information “about whether defendant had an intent to kill when he strangled [the victim in the current case].” Id. at 735-736 (concluding that compared to the highly probative evidence offered by the victim and the defendant’s son, evidence about “16-year-old assaults against a different person are barely probative of intent, if at all” and “would not survive review under MRE 403”). Notwithstanding, the court found the error harmless because “exclusion of the testimony of defendant’s first wife would not have spared defendant from the devastating propensity evidence that was properly admitted.” Rosa, 322 Mich App at 738.

The trial court abused its discretion by allowing the prosecutor to introduce defendant’s prior convictions through a defense witness for purposes of impeaching the witness by contradiction where “the prosecutor’s initial questions were not logically relevant to a proper purpose under MRE 404(b) because they were not designed to elicit an answer contradicting any statements made by the witness on direct examination.” People v Wilder, 502 Mich 57, 65 (2018). In Wilder, “the witness’s direct testimony was limited to whether defendant owned a gun or possessed one on the date in question,” and the prosecutor repeatedly asked the witness about the defendant’s two prior convictions and whether the witness knew of the defendant “to more generally carry weapons.” Id. (the Court noted that the witness’s “testimony would not have been contradicted even if the witness had acknowledged ‘know[ing] of’ defendant to more generally carry weapons”). The Court concluded that the prosecutor’s questions were not logically relevant to a proper purpose under MRE 404(b); they “were simply an attempt to elicit propensity evidence.” Wilder, 502 Mich at 66 (also concluding that this evidence was not permissible as character evidence under MRE 404(a) and remanding to the trial court to determine whether the error in admitting the evidence was harmless).

7.Error in the Exclusion of Other-Acts Evidence

The trial court abused its discretion by excluding, at the defendant’s trial for charges arising from a sexual assault, evidence of seven other instances of alleged criminal sexual conduct by the defendant that did not result in convictions; “the trial court neglected a fundamental responsibility in its MRE 404(b) evidentiary analysis, and . . . therefore abused its discretion by excluding the proposed testimony” without considering whether the evidence was offered for a proper purpose or its legal relevance. People v Kelly, 317 Mich App 637, 647-648 (2016). “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,” resulting in a failure “to follow the proper legal framework[.]”²³ Kelly, 317 Mich App 647. Further, “the trial court . . . abdicated the necessary relevancy analysis on the basis of impermissible credibility concerns” by allowing the “defendant’s protestations of ‘consent’ in respect to the other acts to control the MRE 404(b) analysis.” Kelly, 317 Mich App at 645. “[T]here [was] considerable evidence that the sexual acts in question occurred and that defendant was the actor”; “[t]he only issue [was] whether that conduct was consensual as claimed by defendant or constituted criminal sexual conduct as asserted by the alleged victims, . . . and the trial court should not have dismissed the evidence . . . merely because there was a credibility dispute.” Id. at 645-646.

Where the defendant was charged with second-degree murder, operating under the influence of intoxicating liquor or a controlled substance causing death, and operating with a suspended license causing death, the defendant’s offer to stipulate that she had a suspended license did not render the prior acts evidence inadmissible under Old Chief v United States, 519 US 172 (1997).²⁴ People v Bergman, 312 Mich App 471, 495-496 (2015) (holding that “the trial court did not abuse its discretion by admitting” the prior acts evidence because the “defendant’s offer to stipulate that she had a suspended license, while being conclusive of a necessary element for that offense, would not have been conclusive of or a sufficient substitute for the malice element of second-degree murder, for which the evidence was offered”).

B.Certain Offenses Against Minors–§ 768.27a

“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.

“[T]he language in MCL 768.27a allowing admission of another listed offense ‘for its bearing on any matter to which it is relevant’ permits the use of evidence to show a defendant’s character and propensity to commit the charged crime, precisely that which MRE 404(b) precludes.” People v Watkins (Watkins II), 491 Mich 450, 470 (2012). Because MCL 768.27a “‘does not principally regulate the operation or administration of the courts,’” it is a substantive rule of evidence and prevails over MRE 404(b). People v Watkins (Watkins I), 277 Mich App 358, 363-364 (2008), aff’d 491 Mich 450 (2012), quoting People v Pattison, 276 Mich App 613, 619 (2007). “MCL 768.27a does not run afoul of [separation-of-powers principles], and in cases in which the statute applies, it supersedes MRE 404(b).” Watkins II, 491 Mich at 476-477.

“[W]hile MCL 768.27a prevails over MRE 404(b) as to evidence that falls within the statute’s scope, the statute does not mandate the admission of all such evidence, but rather ‘the Legislature necessarily contemplated that evidence admissible under the statute need not be considered in all cases and that whether and which evidence would be considered would be a matter of judicial discretion, as guided by the [non-MRE 404(b)] rules of evidence,’ including MRE 403 and the ‘other ordinary rules of evidence, such as those pertaining to hearsay and privilege[.]’” People v Uribe, 499 Mich 921, 922 (2016), quoting Watkins II, 491 Mich at 484-485.

“[E]vidence otherwise admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial simply because a propensity inference is drawn.” People v Wisniewski, ___ Mich App ___, ___ (2025). While evidence admissible under MCL 768.27a remains subject to MRE 403, “courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect.” Watkins II, 491 Mich at 496. “There are several considerations that may lead a court to exclude such evidence.” Wisniewski, ___ Mich App at ___ (quotation marks and citation omitted). When deciding whether MRE 403 requires exclusion of other-acts evidence admissible under MCL 768.27a, a court’s considerations may include:

“(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 II, 491 Mich at 487-488. See also Uribe, 499 Mich at 922.

“This list of considerations is meant to be illustrative rather than exhaustive.” Wisniewski, ___ Mich App at ___, quoting Watkins II, 491 Mich at 488. “[T]hese factors offer tools to facilitate, not a standard to supplant, a trial court’s MRE 403 analysis.” Wisniewski, ___ Mich App at ___ (quotation marks and citation omitted). “There is no indication from Watkins that these factors must be discussed on the record.” People v Hoskins, 342 Mich App 194, 203 (2022) (noting, however, that “the trial court cited Watkins on the record, stated that it had considered the Watkins factors, and referenced a number of these factors in support of its decision to deny [defendant’s] motion” to exclude evidence; defendant “failed to persuasively show that the trial court’s analysis was legally deficient” where the “trial court also cited MRE 403 and discussed its application to evidence admissible under ML 768.27a”).

A court may also “consider whether charges were filed or a conviction rendered when weighing the evidence under MRE 403.” Watkins II, 491 Mich at 489.

“The list of considerations in Watkins provides a tool to facilitate, not a standard to supplant, [the] proper MRE 403 analysis, and it remains the court’s ‘responsibility’ to carry out such an analysis in determining whether to exclude MCL 768.27a evidence under that rule.” Uribe, 499 Mich at 922 (quotation marks and citation omitted). The trial court abused its discretion by excluding MCL 768.27a evidence where it failed to conduct an MRE 403 analysis and instead focused only on the considerations listed in Watkins II. Uribe, 499 Mich at 922. “In ruling the proposed testimony inadmissible under MRE 403, the trial court, citing the illustrative list of considerations in Watkins, expressed concern regarding apparent inconsistencies between the proposed testimony and prior statements made by the witness, and certain dissimilarities between the other act and the charged offenses,” but “failed to explain . . . how or why these concerns were sufficient . . . to render the ‘probative value [of the proposed testimony] . . . substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence,’ as required for exclusion under MRE 403.” Uribe, 499 Mich at 922 (quotation marks and citation omitted).

MCL 768.27a “is applicable in juvenile-delinquency trials” because the statute “embodies substantive policy considerations regarding criminal law, and there is no provision in the juvenile code or juvenile court rules that conflicts with or parallels MCL 768.27a.” In re Kerr, 323 Mich App 407, 414-415 (2018) (citation omitted) (holding that the trial court erred by concluding that MCL 768.27a did not apply to juvenile-delinquency trials, the Court “vacate[d] the trial court’s order excluding the other-acts evidence and direct[ed] the trial court to make its MRE 403 determination in accordance with the principles set forth in Watkins, 491 Mich at 486-490”). See the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 9, for information on the rules of evidence and standard of proof applicable in a delinquency trial.

In People v Pattison, 276 Mich App 613, 619 (2007), the Court found that MCL 768.27a did not violate the Ex Post Facto Clause because admission of propensity evidence occurring before the statute’s effective date “[did] not lower the quantum of proof or value of the evidence needed to convict a defendant.”

In order to conform to the Legislature’s intent in enacting MCL 768.27a “to extend safeguards for the protection of children against sexual predators,” the statute should be used as a rule of inclusion, not exclusion. People v Smith, 282 Mich App 191, 205 (2009). Although it is unnecessary to consider MCL 768.27a when evidence is deemed admissible under MCL 768.27 or MRE 404(b), “the proper analysis chronologically is to begin with MCL 768.27a when addressing other-acts evidence that can be categorized as involving a sexual offense against a minor and make a determination whether ‘listed offenses’ are at issue relative to the crime charged and the acts sought to be admitted.” Smith, 282 Mich App at 205. In examining the admissibility of an offense committed against a minor, the Smith Court offered the following guidance:

“Where listed offenses are at issue, the analysis begins and ends with MCL 768.27a. If listed offenses are not at issue, even where an uncharged offense may genuinely constitute an offense committed against a minor that was sexual in nature, MCL 768.27a is not implicated, but this is not to say that evidence of the offense is inadmissible. We do not construe MCL 768.27a as suggesting that evidence of an uncharged sexual offense committed against a minor is inadmissible if the offense does not constitute a listed offense. Rather, the analysis simply turns to MRE 404(b) to decipher admissibility. Only where the evidence does not fall under the umbrella of MCL 768.27a, nor is otherwise admissible under MRE 404(b), should the court exclude the evidence.” Smith, 282 Mich App at 205-206.

See M Crim JI 20.28a for an instruction on Evidence of Other Acts of Child Sexual Abuse.

A “defendant [is] not deprived of his rights to due process or a fair trial [where] severance of the multiple counts of [criminal sexual conduct is] not required under MCR 6.120” because “even if defendant’s multiple charges had been severed and tried at multiple trials, the prosecution could have introduced the other-acts evidence under MRE 404(b) or MCL 768.27a at each of his hypothetical trials.” Wisniewski, ___ Mich App at ___. “Joinder of offenses under MCR 6.120 is appropriate if the offenses are related”—“offenses are related if they comprise either the same conduct or a series of connected acts or acts constituting part of a single scheme of plan.” Wisniewski, ___ Mich App at ___ (cleaned up). In Wisniewski, defendant was charged with four counts of first-degree criminal sexual conduct (CSC-I) and two counts of second-degree criminal sexual conduct (CSC-II) for his actions involving four young girls. Id. at ___. After he was convicted on five of the six counts, defendant argued on appeal that “he was deprived of his rights to due process or a fair trial because there should have been severance of the multiple counts of CSC-I and CSC-II pursuant to MCR 6.120.” Wisniewski, ___ Mich App at ___. However, “[a]ll six of the CSC charges that were joined at trial were closely related to each other” “to the extent that they involved a series of connected acts amounting to parts of a single scheme or plan.” Id. at ___. “Defendant’s specific method of sexually abusing [two of] the girls . . . was similar, in that he would, while being in close physical proximity to them, put his hands in their pants and touch their genitals,” and “the common themes underlying defendant’s scheme and plan to sexually exploit them were almost identical with each of the victims.” Id. at ___ (noting that the sexual abuse “began when the girls were very young” and “exploited personal relationships of trust”). “[W]ith this pattern of behavior, defendant fail[ed] to demonstrate . . . that the four counts of CSC-I and two counts of CSC-II should not have been joined at trial.” Id. at ___ (rejecting defendant’s argument that “the volume of evidence leading to his convictions,” including “the number of complainants who testified against him, and the number of counts joined at trial[,] combined to rise to a level of extreme prejudice requiring a new trial”). “Because there was not any impermissible misjoinder under MCR 6.120, defendant also [was] unable to establish a constitutional violation, either in the way of the deprivation of his right to a fair trial, or a violation of due process.” Wisniewski, ___ Mich App at ___.

1.Notice Requirement

MCL 768.27a requires the prosecuting attorney to disclose evidence admissible under the statute 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.”

The notice provision of MCL 768.27a(1) “only requires the prosecutor ‘to disclose the evidence to the defendant at least 15 days’ before trial.” People v Wisniewski, ___ Mich App ___, ___ (2025) (quotation marks and citation omitted). In Wisniewski, “the prosecution complied with its statutory obligation [under MCL 768.27a(1)] to provide a summary of the substance of [the witness’s] testimony that it expected to offer at trial” because the witness “testified at the preliminary examination, and . . . defense counsel had an opportunity to perform a cross-examination after listening to her direct examination.” Wisniewski, ___ Mich App at ___ (“Further, because [the witness] was identified by the prosecution as a witness about four months before trial, defendant certainly had notice that she would be testifying in the first instance.”). “[T]he statutory language of MCL 768.27a does not expressly require formal written notice, and because defense counsel had acknowledged on the record that he had received the relevant evidence, as well as informal notice, from the prosecution, any notice challenge was not persuasive.” Wisniewski, ___ Mich App at ___ (quotation marks and citation omitted).

2.Examples of Application

Evidence that the defendant previously committed the crime of attempted CSC-I against another minor was deemed admissible for any relevant reason under MCL 768.27a at the defendant’s subsequent trial for criminal sexual conduct with two other minors. People v Mann, 288 Mich App 114, 118 (2010). In Mann, “[t]he challenged evidence was relevant because it tended to show that it was more probable than not that the two minors in [the current] case were telling the truth when they indicated that [the defendant] had committed CSC offenses against them.” Id. In addition, the evidence tended to make the likelihood of the defendant’s behavior in the current case more probable. Id. Finally, “the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice” because whether the victims were telling the truth was significantly probative of whether the defendant should be convicted. Id.

“[E]vidence otherwise admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial simply because a propensity inference is drawn.” People v Wisniewski, ___ Mich App ___, ___ (2025). In Wisniewski, the defendant argued “that the trial court plainly erred by admitting evidence of other acts of sexual misconduct that he committed against [a witness when she was younger] as the probative value of the evidence was substantially outweighed by its prejudicial effect under MRE 403”; specifically, “defendant assert[ed] that [the witness’s] testimony should have been excluded because of (1) the dissimilarity between the other-acts evidence and the charged crimes, (2) the lack of temporal proximity of the other-acts evidence to the charged crimes, (3) the infrequency of the other acts committed against [the witness], and (4) the lack of need for [the witness’s] testimony given the ample testimony given by [three of the victims].” Id. at ___. However, the witness’s “testimony was highly probative because of the propensity inference, and it also buttressed the credibility of [three of the victims and another witness], each of whom recounted details of defendant’s sexual abuse or what he had said about his sexual interest in prepubescent girls.” Id. at ___. “More significantly, [the witness’s] account of what happened the evening that defendant sexually assaulted her was almost identical to what [two of the victims] had encountered, with defendant using the opportunity of being in close physical proximity to the girls to perpetrate the sexual abuse, and doing so even though others were present in the room.” Id. at ___. Although “the evidence that defendant previously committed a sexual assault against [the witness] was prejudicial because it could demonstrate that defendant committed the charged crimes,” “the evidence was not unfairly prejudicial under MRE 403 because the evidence’s propensity inferences weigh in favor of the evidence’s probative value, as opposed to its prejudicial effect.” Wisniewski, ___ Mich App at ___ (quotation marks and citation omitted) (concluding that this witness’s testimony “was supportive of the credibility of the multiple victims’ testimony at trial” and “provided the jury with a more complete picture of defendant’s history, particularly regarding his sexual interest in young girls”). Additionally, the trial court’s jury instruction—which provided, in part, “You must not convict the defendant here solely because you think he is guilty of other bad conduct”—”had the effect of minimizing the danger of unfair prejudice because the trial court instructed [the jury] of the appropriate use of other-acts evidence.” Id. at ___ (holding that “any danger of unfair prejudice was alleviated because jurors are presumed to follow their instructions”) (quotation marks and citation omitted). Therefore, “the trial court did not plainly err by admitting [the witness’s] testimony under MRE 403 or MCL 768.27a.” Wisniewski, ___ Mich App at ___.

In People v Buie (On Remand), 298 Mich App 50, 72-73 (2012), the defendant was charged with first-degree criminal sexual conduct and had previously been convicted of sexually assaulting a 13-year-old. The testimony of the previous victim indicated that the manner in which the sexual assaults occurred in both instances was similar, the subject crimes occurred within three years of each other, and the evidence of each crime was supported by DNA evidence establishing that the defendant was the offender. Id. at 73. The Court noted that “[a]lthough the evidence was highly prejudicial, it was also highly probative of defendant’s propensity for sexually assaulting young girls.” Id. Accordingly, the defendant failed to “demonstrate[] that the probative value of the evidence was substantially outweighed by the danger of undue prejudice,” and “[t]he trial court did not abuse its discretion by admitting [the] evidence under MCL 768.27a.” Buie (On Remand), 298 Mich App at 73.

Where the defendant was on trial for various counts of criminal sexual conduct against a child who was almost 8 years old, the trial court did not abuse its discretion by admitting evidence under MCL 768.27a that the defendant allegedly assaulted his 13-year-old stepdaughter a few months earlier and was convicted in Arizona of child molestation against a different child after the abuse in this case occurred. People v Duenaz, 306 Mich App 85, 98, 100 (2014). “[T]he trial court applied the proper standard by asking whether the evidence was more prejudicial than probative.” Id. Specifically, “the trial court correctly found that these [other-acts against the defendant’s stepdaughter] were similar to the present crimes” where the defendant’s assault on his stepdaughter was similar to the crime for which he was on trial because both crimes involved anal and vaginal penetration, the defendant threatened both victims with harm to their families if they discussed the assault, the age difference was not material, and less than six months elapsed between the two crimes. Id. at 100. “The evidence of the similar assault against the other victim was very probative and important to the prosecution’s case, especially because defendant was able to claim a lack of physical evidence,” and “the passage of time had faded the victim’s memory regarding some details.” Id. The evidence was also “relevant because it tended to show that it was more probable than not that the minors were telling the truth.” Id. The evidence of defendant’s previous conviction was also properly admitted because although details of the offense were not disclosed, it was a conviction of a crime of the same general category (involving sex crimes against a child) that tended to make the victim’s story more believable by showing propensity to commit the charged offense, and it was not “too far removed temporally from the instant offenses in Michigan.” Id. at 101.

Where the defendant was on trial for first-degree criminal sexual conduct against his then 9-year-old son, the trial court did not abuse its discretion by admitting evidence under MCL 768.27a that the defendant inappropriately touched his nephew when his nephew was 9 years old and living with the defendant. People v Solloway, 316 Mich App 174, 191-192 (2016). The Court held that the other-acts evidence was relevant because evidence that the defendant previously assaulted a 9-year-old relative made it more probable that he committed the charged offense against his son, who was also related to the defendant and 9 years old. Id. at 193. Further, the evidence was relevant to the victim’s credibility because “[t]he fact that defendant committed a similar crime against his nephew made it more probable that [his son] was telling the truth.” Id. Additionally, MRE 403 did not bar admission of the other-acts evidence where the six Watkins considerations favored admission. Solloway, 316 Mich App at 194-195. First, the other-acts and the charged crime were similar – the victims were the same age, defendant was related to both of them, the offenses occurred at a time when the victims were living with the defendant, and both offenses “involved defendant entering the victim’s bedroom in the middle of the night, climbing on top of him, and engaging in some sort of inappropriate touching.” Id. Second, the fact that the acts occurred 12 years apart did not bar admission under MRE 403 in light of the similarity of the acts. Solloway, 316 Mich App at 195. Third, the defendant’s nephew testified that the inappropriate touching occurred multiple times; “[t]herefore, it cannot be said that the other acts occurred so infrequently to support exclusion of the evidence.” Id. Fourth, there were no intervening acts that weighed against admissibility. Id. Fifth, the defendant did not challenge the credibility of the witness offering the other-acts evidence, and the witness’s credibility was bolstered by the fact that the defendant pleaded guilty to CSC-IV with respect to his conduct against the witness. Id. at 195-196. Sixth, “because there were no eyewitnesses to corroborate [the victim’s] testimony and to refute defendant’s theories in regard to the physical evidence of the crime, there was a need for evidence beyond [the victim’s] and defendant’s testimony.” Id. at 196.

“[E]vidence of acquitted conduct is not inadmissible as a matter of law when introduced as other-acts evidence in a subsequent trial for a different offense.” People v Hoskins, 342 Mich App 194, 212 (2022). “MCL 768.27a does not, by its plain language, preclude the admission of other-acts evidence when the defendant was acquitted of charges involving those acts.” Hoskins, 342 Mich App at 212.“[A]s with other evidence offered under MCL 768.27a, the admissibility of evidence of a prior acquittal depends on the application of MRE 403.” Hoskins, 342 Mich App at 212.

Applying MRE 403 to the facts of the case, the Hoskins Court held that “the trial courts ruling to allow the prosecution to introduce evidence of [the defendant’s] acquitted acts was an abuse of discretion” because it “present[ed] a particularly unique risk of unfair prejudice” that “substantially outweigh[ed] the evidence’s probative value.” Hoskins, 342 Mich App at 212, 213. The Court observed that due process guarantees that an individual “who has been acquitted of a crime” is “presumed innocent as to any acquitted conduct” and “prohibits a court from subjecting a defendant to an increased sentence based on acquitted conduct.” Id. at 213. “A jury considering other-acts evidence of acquitted conduct will make its own independent determination of whether the defendant committed the acquitted acts, despite a previous jury’s unanimous verdict finding that defendant not guilty.” Id. at 213 (“other-acts evidence of acquitted conduct is unfairly prejudicial because the accused must again defend against allegations of which he has already been acquitted”). “Perhaps most importantly, the introduction of other-acts evidence also presents the danger that a jury will convict the defendant solely because it believes he committed other criminal conduct, a possibility that is particularly egregious when the defendant has been acquitted of these other acts.” Id. at 214. Accordingly, the Hoskins Court held that “although the evidence of this acquitted conduct has some probative value — particularly to demonstrate [defendant’s] propensity to commit the charged offenses — the danger of unfair prejudice from admitting this acquitted conduct is extremely high.” Id. at 215 (concluding that the trial court abused its discretion by denying the motion to exclude evidence of defendant’s acquitted conduct from a prior trial for a different offense).

In People v Beck, ___ Mich ___, ___ (2022), the defendant’s first trial in 2016 on two counts of CSC-II “for allegedly rubbing his underage daughter TG’s genitals and chest through her clothing while he was alone with her” was declared a mistrial. “In 2017, while awaiting retrial on the original charges, defendant was accused of sexually penetrating one of his son’s friends, CS, who was a minor.” Id. As a result, Defendant was “charged with two counts of CSC-I and one count of CSC-II.” Id. at ___. Subsequently, the 2016 charges and 2017 charges “were jointly tried in a second trial” and “the jury found defendant guilty of all counts.” Id. at ___. On appeal, the Michigan Supreme Court vacated the defendant’s convictions resulting from the 2016 charges because “the trial court’s inquiry was insufficient to find manifest necessity [to declare a mistrial], and therefore, retrial on the 2016 charges violated the Double Jeopardy Clauses of the federal and state Constitutions.” Id. at ___.

However, the Court rejected the defendant’s argument that he was “entitled to a new trial for the 2017 charges because his convictions on those counts were tainted by the admission of evidence during the joint trial relating to the 2016 charges[.]” Beck, ___ Mich at ___. The Beck Court noted that “[w]hile the evidence was admitted at the joint trial, the issue is whether the trial court would have abused its discretion if it had admitted this same evidence in a trial limited only to the 2017 charges.” Id. at ___. Accordingly, the Court considered “whether the testimony of defendant’s daughters and ex-wife would have been inadmissible propensity evidence if the charges had been tried separately.” Id. at ___.

When a defendant is charged with committing a listed offense against a minor, MCL 768.27a allows for the admission of evidence “for its bearing on any matter to which it is relevant” that the defendant committed another listed offense against a minor. Beck, ___ Mich at ___. The victim of the 2016 charges against the defendant and the victim of the 2017 charges testified at the defendant’s retrial. Id. at ___. Further, although the defendant objected, the court permitted the defendant’s ex-wife and three of his other daughters to testify about their experiences with the defendant. Id. at ___. The evidence was relevant to the charges in the 2017 retrial, but the Court had also to examine the evidence as indicated by MRE 403. Beck, ___ Mich at ___. The Court analyzed the evidence under MRE 403 as instructed by the Court in People v Watkins (Watkins III), 491 Mich 450 (2012). Beck, ___ Mich at ___. Admission of the other-acts evidence under Watkins III required the Court to consider the dissimilarity, temporal proximity, frequency of the intervening acts, reliability of evidence in support of the other acts, and whether there was a need for evidence other than the testimony of the defendant and a complainant. Id. at ___. Under MCL 768.27a, and after the probative/prejudicial test of MRE 403, the Court concluded that evidence of the defendant’s conduct related to the 2016 charges and the testimony of other witnesses about the defendant’s conduct with them was properly admitted to show the defendant’s propensity to commit listed offenses against a minor. Beck, ___ Mich at ___. As a result, the convictions arising from the 2017 charges were valid. Id. at ___.

C.Domestic Violence or Sexual Assault–§ 768.27b

MCL 768.27b governs the admissibility of evidence of other acts of domestic violence or sexual assault during a criminal evidentiary hearing or trial in which the defendant is charged with an offense involving domestic violence or sexual assault. MCL 768.27b “does not limit or preclude the admission or consideration of evidence under any other statute, including, but not limited to, under [MCL 768.27a], rule of evidence, or case law.” MCL 768.27b(3). The plain language of MCL 768.27b allows the court to consider evidence admitted under any other rule of evidence, including rules not specifically mentioned in MCL 768.27b. People v Propp, 508 Mich 374, 385-386 (2021).²⁵ Accordingly, MCL 768.27b does not prevent the court from precluding evidence of other acts of domestic violence or sexual assault under MRE 802 as inadmissible hearsay. Propp, 508 Mich at 385-386.

“[P]rior-bad-acts evidence of domestic violence can be admitted at trial because ‘a full and complete picture of a defendant’s history . . . tend[s] to shed light on the likelihood that a given crime was committed.’” People v Cameron, 291 Mich App 599, 610 (2011), quoting People v Pattison, 276 Mich App 613, 620 (2007) (alteration in original).²⁶

MCL 768.27b states in part:

“(1) Except as provided in subsection (4), 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 [MRE] 403.

* * *

(4) 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:

(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.”

MCL 768.27b(1) has “three express limitations on the introduction of prior acts of domestic violence or sexual assault in current prosecutions for offenses involving domestic violence or sexual assault.” People v Berklund, ___ Mich App ___, ___ (2024). “First, the introduction of such evidence is limited by [MCL 768.27b(4)], which precludes the admission of evidence of an act occurring more than 10 years before the charged offense unless certain listed exceptions apply.” Berklund, ___ Mich App at ___ (quotation marks and citation omitted). “Second, the introduction of such evidence is barred [by MCL 768.27b(1)] where the evidence is excluded under [MRE 403].” Berklund, ___ Mich App at ___ (quotation marks and citation omitted). “This makes relevancy, as defined in MRE 401 and MRE 402, the third express limitation in MCL 768.27b(1) on the admission of prior acts of domestic violence or sexual assault in current prosecutions for offenses involving domestic violence or sexual assault.” Berklund, ___ Mich App at ___ . Accordingly, “when a defendant is charged with an offense involving domestic violence, evidence of the defendant’s commission of other acts of domestic violence or sexual assault is admissible under MCL 768.27b(1) subject to the three limitations identified above.” Berklund, ___ Mich App at ___.

“The Legislature in MCL 768.27b(1) did not differentiate between prosecutions for offenses involving domestic violence and prosecutions for offenses involving sexual assault.” Berklund, ___ Mich App at ___. “Rather, the Legislature placed the law governing the admission of propensity evidence in prosecutions for these two types of offenses in the same subsection of the same statute.” Id. at ___. “This evidences the Legislature’s intent for these types of offenses to be considered together. Id. at ___ (“If the Legislature intended for the prosecutions of these offenses to be considered separately, it could have made that intention clear by placing the law governing the kind of propensity evidence admissible in prosecutions for the different offenses in different statutes or different subsections.”). Accordingly, “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other acts of sexual assault is admissible under MCL 768.27b(1) so long as the evidence is not excluded by MCL 768.27b(4) or MRE 403, and is relevant.” Berklund, ___ Mich App at ___.

Although MCL 768.27b “does not define ‘interest of justice,’” “the exception should be narrowly construed.” People v Rosa, 322 Mich App 726, 733-734 (2018). Rather, “evidence of prior acts that occurred more than 10 years before the charged offense is admissible under the [interest of justice exception in] MCL 768.27b only if that evidence is uniquely probative or if the jury is likely to be misled without admission of the evidence.” Rosa, 322 Mich App at 734 (concluding that testimony about abuse that occurred at least 16 years before the charged crimes was not uniquely probative or needed to assure that the jury was not misled because it was “consistent with and cumulative to [the current victim’s] testimony regarding defendant’s character and propensity for violence”).²⁷

The Michigan Court of Appeals extended to MCL 768.27b the holding in Pattison, 276 Mich App at 558, that MCL 768.27a does not constitute an ex post facto law. People v Schultz, 278 Mich App 776, 778-779 (2008). In rejecting the defendant’s ex post facto argument, the Court stated:

“[MCL 768.27b] does not permit conviction on less evidence or evidence of a lesser quality. As with the sister statute [(MCL 768.27a)] analyzed in Pattison, MCL 768.27b did not change the burden of proof necessary to establish the crime, ease the presumption of innocence, or downgrade the type of evidence necessary to support a conviction. Therefore, the statute affects only the admissibility of a type of evidence, and its enactment did not turn otherwise innocent behavior into a criminal act.” Schultz, 278 Mich App at 778-779 (internal citations omitted).

In addition, MCL 768.27b does not violate the separation of powers doctrine. Schultz, 278 Mich App at 779. The Court responded to the defendant’s separation of powers argument by emphasizing that the Legislature’s passage of MCL 768.27b was a reaction to the judicially created standards in MRE 404(b). Schultz, 278 Mich App at 779. The Court stated that “[MCL 768.27b] is a substantive rule engendered by a policy choice, and it does not interfere with our Supreme Court’s constitutional authority to make rules that govern the administration of the judiciary and its process.” Schultz, 278 Mich App at 779. Further, “MCL 768.27b does not infringe on [the Michigan Supreme] Court’s authority to establish rules of ‘practice and procedure’ under Const 1963, art 6, § 5.” People v Mack, 493 Mich 1, 3 (2012).

See M Crim JI 4.11a for an instruction on Evidence of Other Acts of Domestic Violence.²⁸

1.Notice Requirement

MCL 768.27b requires the prosecuting attorney to disclose evidence admissible under this statute, “including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered, to the defendant not less than 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown.” MCL 768.27b(2).

“[A]lthough failure to provide notice [under MCL 768.27b(2)] constitutes plain error, it may be deemed harmless and therefore not grounds for reversal.” People v Lowrey, 342 Mich App 99, 117 (2022). In Lowrey, the defendant argued “that the trial court erred by admitting evidence of prior domestic and sexual abuse between himself and the victim because of lack of notice.” Id. at 115. However, “defendant fail[ed] to articulate how he would have proceeded differently” or provide “any offer of proof to the effect that the victim’s testimony was untrue.” Id. at 118. Although “it was plain error for [evidence of prior abuse] to be admitted without providing proper notice,” the Lowrey Court determined that the evidence was relevant and “the probative value of this evidence was [not] substantially outweighed by the danger of unfair prejudice.” Id. at 118, 119. Because defendant was unable to “demonstrate that any error was outcome-determinative,” the Court of Appeals concluded that he was “not entitled to relief.”Id. at 119.

2.Test for Admission

“MCL 768.27b(1) plainly states that, when a defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other acts of domestic violence or sexual assault is admissible provided that it is relevant and not excluded by MCL 768.27b(4) or MRE 403.” People v Berklund, ___ Mich App ___, ___ (2024) (rejecting defendant’s argument that “MCL 768.27b(1) only permits evidence of a defendant’s commission of other acts of sexual assault to be admitted when the defendant is accused of an offense involving sexual assault, not when . . . the defendant is accused of an offense involving domestic violence”). See also People v Cameron, 291 Mich App 599, 610 (2011).²⁹ “To make this determination, the court must first decide whether introduction of the evidence would be unfairly prejudicial, then “weigh the probativeness or relevance of the evidence against the unfair prejudice.” Cameron, 291 Mich at 611 (quotation marks and citation omitted).

Relevant evidence of domestic violence or sexual assault acts that satisfies this standard must be admitted by the trial court. See People v Daniels, 311 Mich App 257, 274 (2015)³⁰ (holding that in the defendant’s trial for molesting and abusing two of his children, “MCL 768.27b required the trial court to admit” the testimony of his other children “regarding the physical violence defendant committed against them,” because “(1) it [was] relevant; (2) it describe[d] acts of ‘domestic violence’ under [MCL 768.27b(6)(a)³¹]; and (3) its probative value [was] not outweighed by the risk of unfair prejudice under MRE 403”; the testimony was “highly probative because it demonstrate[d] defendant’s violent and aggressive tendencies, as well as his repeated history of committing physical abuse of all his children—not just [the named victims in the case]”).

“Evidence is logically relevant if it is material and probative.” Berklund, ___ Mich App at ___, citing People v Crawford, 458 Mich 376, 388 (1998), and MRE 401. “Evidence is material if it is related to a fact that is of consequence to the action.” Berklund, ___ Mich App at ___. “Evidence is probative if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id. at ___ (quotation marks and citation omitted). “Propensity evidence is logically relevant because a person who has committed an offense may be more likely to commit that or another offense than a person who has not committed that or any other offense.” Id. at ___ (cleaned up). “MRE 404(b) generally excludes the admission of propensity evidence—the rule prohibits evidence of a defendant’s other crimes, wrongs, or acts to prove the defendant’s propensity to commit such acts.” Berklund, ___ Mich App at ___.

“MCL 768.27b is an exception to this general bar on propensity evidence; in prosecutions for offenses involving domestic violence or sexual assault, MCL 768.27b permits evidence of a defendant’s prior commission of domestic violence or sexual assault to show the defendant’s character or propensity to commit such acts.” Berklund, ___ Mich App at ___ (“This reflects a legislative determination that juries should have a full and complete picture of a defendant’s history when the defendant is accused of domestic violence or sexual assault because that history tends to shed light on the likelihood that a given crime was committed.”) (cleaned up).

In Berklund, the defendant “responded to the prosecution’s notice by objecting to the use of his prior conviction as other-acts evidence.” Berklund, ___ Mich App at ___. “[D]efendant argued that evidence that he previously committed sexual assault was not admissible under MCL 768.27b because (1) prior acts of sexual assault could only be admitted in prosecutions for sexual assault, and defendant was not charged with sexual assault in this matter; (2) the nearly 20-year-old sexual-assault conviction lacked any relevance to a determination of defendant’s guilt or innocence in this case because the other act was too remote in time, involved a different victim, and the charged offenses were not sexual in nature; and (3) any probative value attributable to the other-acts evidence was outweighed by the danger of unfair prejudice in light of the differing factual circumstances between the other act and the charged offenses.” Berklund, ___ Mich App at ___.³²

The Berklund Court rejected defendant’s arguments. Berklund, ___ Mich App at ___. In sum, the Court concluded that “[e]vidence that defendant previously committed sexual assault [was] relevant to proving that defendant committed the offenses involving domestic violence . . . because it supported [the victim’s] credibility, presented circumstances similar to those underlying the charged offense, provided the jury with a more complete picture of defendant’s history, and demonstrated defendant’s propensity to commit the type of conduct with which he was charged.” Id. at ___.

“[W]hen applying MRE 403 to evidence admissible under MCL 768.27b, courts should weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect.” Berklund, ___ Mich App at ___. The same nonexhaustive list of considerations identified in People v Watkins, 491 Mich 450 (2012), applies:

“(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. This list of considerations is meant to be illustrative rather than exhaustive.” Berklund, ___ Mich App at ___, citing Watkins, 491 Mich at 487-488 (quotation marks omitted).

The Berklund Court held that the trial court “correctly recognized that evidence defendant previously committed sexual assault would be prejudicial in the sense that it would attempt to prove that the defendant committed the crime with which he was charged, but would not be unfairly prejudicial because . . . the evidence’s propensity inferences weigh in favor of the evidence’s probative value, not its prejudicial effect.” Berklund, ___ Mich App at ___ (quotation marks and citation omitted). “And to any extent that a danger of unfair prejudice may persist, the trial court can minimize that danger by instructing the jury on the proper use of the other-acts evidence.” Id. at ___. “Because evidence of defendant’s prior sexual assault is highly relevant and it is not apparent that the evidence will be unfairly prejudicial (particularly in light of a limiting instruction), the trial court did not abuse its discretion when it concluded that the evidence’s probative value was not substantially outweighed by the danger of unfair prejudice.” Id. at ___.

In Cameron, 291 Mich App at 605, the trial court admitted evidence of the defendant’s prior abusive conduct towards the victim and another ex-girlfriend. Under the first inquiry, the Court found that the admitted evidence “did not stir such passion as to divert the jury from rational consideration of [the defendant’s] guilt or innocence of the charged offenses,” and that “the trial court minimized the prejudicial effect of the bad-acts evidence by instructing the jury that the issue in the case was whether [the defendant] committed the charged offense.” Id. at 611-612. Under the second inquiry, the Court found that the evidence was relevant (1) to establish the victim’s credibility, (2) to show that the defendant acted violently toward the victim and that his actions were not accidental, and (3) to show the defendant’s propensity to commit acts of violence against women who were, or had been romantically involved with him. Id. at 612. The Court concluded that “[the defendant’s] prior bad acts were relevant to the prosecutor’s domestic violence charge under MCL 768.27b,” and that “[a]ny prejudicial effect of admitting the bad-acts evidence did not substantially outweigh the probative value of the evidence[.]” Cameron, 291 Mich App at 612. Accordingly, “the trial court did not abuse its discretion when it allowed [the defendant’s] prior-bad-acts evidence to be introduced under MCL 768.27b.” Cameron, 291 Mich App at 612. See also People v Meissner, 294 Mich App 438, 452 (2011) (although different from the charged offense, the defendant’s “prior acts of domestic violence illustrated the nature of defendant’s relationship with [the victim] and provided information to assist the jury in assessing her credibility”).

In People v Pattison, 276 Mich App 613, 615 (2007), the defendant was charged with four counts of first-degree criminal sexual conduct (CSC-I) for the alleged sexual abuse of his minor daughter that occurred repeatedly over two years while she lived with him. The Court of Appeals relied on MCL 768.27b ³³ in determining that the prosecutor could introduce evidence of the defendant’s other alleged sexual assaults against his ex-fiancee. Pattison, 276 Mich App at 615-616. The Court concluded that evidence of CSC-I against the defendant’s ex-fiancee was admissible under MCL 768.27b because the evidence was “probative of whether he used those same tactics to gain sexual favors from his daughter.” Pattison, 276 Mich App at 616. Having found the evidence admissible under MCL 768.27b, the Court did not review the evidence’s admissibility under MRE 404(b). Pattison, 276 Mich App at 616.

Where the proposed testimony of a defendant’s previous acts of domestic violence is highly relevant to the defendant’s tendency to commit the crime at issue, it may be admissible under MCL 768.27b. People v Railer, 288 Mich App 213, 220-221 (2010). In Railer, the prosecution was permitted to call the defendant’s former girlfriends to testify about the defendant’s threats and physical abuse during their respective relationships with him. Id. at 220. The Court concluded that their testimony described “behavior [that] clearly meets the definition of ‘domestic violence’ under [MCL 768.27b], [behavior that] occurred within 10 years of the charged offense as required by MCL 768.27b(4), and [behavior that] would be highly relevant to show defendant’s tendency to assault [the victim] as charged.” Railer, 288 Mich App at 220.

²The provision previously found in MRE 404(b)(1) now appears in MRE 404(b)(2). See ADM File No. 2021-10, effective January 1, 2024.

³The provision previously found in MRE 404(b)(1) now appears in MRE 404(b)(2). See ADM File No. 2021-10, effective January 1, 2024.

⁶The provision previously found in MRE 404(b)(1) now appears in MRE 404(b)(2). See ADM File No. 2021-10, effective January 1, 2024.

⁸The provision previously found in MRE 404(b)(1) now appears in MRE 404(b)(2). See ADM File No. 2021-10, effective January 1, 2024.

⁹ MRE 404(b)(2) mentions “proving motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, absence of mistake, or lack of accident.”

¹⁰The provision previously found in MRE 404(b)(2) now appears in MRE 404(b)(3). See ADM File No. 2021-10, effective January 1, 2024.

¹¹The provision previously found in MRE 404(b)(2) now appears in MRE 404(b)(3). See ADM File No. 2021-10, effective January 1, 2024.

¹² See Section 2.4(A)(5)(e) for a discussion on how modus operandi evidence used to prove identity may be admissible.

¹⁵The provision previously found in MRE 404(b)(1) now appears in MRE 404(b)(2). See ADM File No. 2021-10, effective January 1, 2024.

¹⁶The provision previously found in MRE 404(b)(1) now appears in MRE 404(b)(2). See ADM File No. 2021-10, effective January 1, 2024.

¹⁷The provision previously found in MRE 404(b)(1) now appears in MRE 404(b)(2). See ADM File No. 2021-10, effective January 1, 2024.

¹⁸For more information on the precedential value of an opinion with negative subsequent history, see our note.

¹⁹The Court also held that “the trial court acted within its discretion in admitting the other acts evidence” because the evidence was admitted for the purpose of “proving several elements of the offenses with which defendant was charged.” Wood, 307 Mich App at 501.

²⁰People v Golochowicz, 413 Mich 298 (1982). See Section 2.4(A)(4) for more information on Golochowicz.

²¹Harmless-error review is applied to all preserved nonconstitutional error. See People v Denson, 500 Mich 385, 409 (2017).

²⁴“In Old Chief, the United States Supreme Court held that the trial court abused its discretion in rejecting the defendant’s offer to stipulate that he had a prior felony conviction, a necessary element of the charged offense of felon in possession of a firearm.” People v Bergman, 312 Mich App 471, 494 (2015). The Old Chief Court explained that “‘evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant,’ and that the defendant’s admission of a prior conviction was not only sufficient to prove that element of the charged offense, but also was ‘seemingly conclusive evidence of the element.’” Bergman, 312 Mich App at 494-495, quoting Old Chief, 519 US at 185-186.

²⁵In Propp, 508 Mich at 385, the Michigan Supreme Court held that the Michigan Court of Appeals erred by relying on People v Watkins, 491 Mich 450, 456, 466, 481-486 (2012), which discussed MCL 768.27a, to interpret MCL 768.27b, “because there is no equivalent to MCL 768.27b(3) in MCL 768.27a, [so] any reliance on Watkins’s interpretation of MCL 768.27a is ultimately irrelevant to the meaning of MCL 768.27b.”

²⁶Effective March 17, 2019, 2018 PA 372 amended MCL 768.27b to include offenses involving sexual assault.

²⁷Note that effective March 17, 2019, MCL 768.27b was amended to expand the admission of prior acts occurring more than 10 years before the charged offense to include certain sexual assaults (in addition to still allowing admission of prior acts “in the interest of justice”). See 2018 PA 372. Rosa was decided before this statutory amendment.

²⁸A similar jury instruction has not been adopted to instruct on evidence of other acts of sexual assault following the amendment of MCL 768.27b to include offenses involving sexual assault. See 2018 PA 372, effective March 17, 2019.

²⁹Effective March 17, 2019, 2018 PA 372 amended MCL 768.27b to include offenses involving sexual assault.

³⁰ Effective March 17, 2019, 2018 PA 372 amended MCL 768.27b to include offenses involving sexual assault.

³²The Court noted that “defendant committed the sexual assault more than 10 years before the instant offense, but evidence of the prior sexual assault was not precluded by MCL 768.27b(4) because the sexual assault ‘was reported to law enforcement within 5 years of the date of the sexual assault,’ MCL 768.27b(4)(a), and ‘a sexual assault evidence kit was collected,’ MCL 768.27b(4)(b)”). Berklund, ___ Mich App at ___.

³³ MCL 768.27b permits trial courts to “admit relevant evidence of other domestic assaults to prove any issue, even the character of the accused, if the evidence meets the standard of MRE 403.” Pattison, 276 Mich App at 615. Note that Pattison was decided before MCL 768.27b was amended to include offenses involving sexual assault. See 2018 PA 372, effective March 17, 2019.