Other acts evidence involving a minor; MCL 768.27a; Unfair prejudice; MRE 403; People v. Watkins; Prosecutorial error; People v. Dobek; People v. Seals; Improper vouching; People v. Thomas; Presumption that jurors follow their instructions; People v. Kowalski; Ineffective assistance of counsel; People v. Randolph; People v. Leblanc; Prejudice; People v. Fyda

The court held that the trial court did not abuse its discretion by finding that evidence of sexual acts committed by defendant during a second period in which the victim resided in his home was admissible despite the trial court’s pretrial order excluding it. It also held that defendant was not prejudiced by an isolated improper comment from the prosecution, or by defense counsel’s failure to object. He was convicted of multiple counts of CSC I and CSC II for sexually abusing his adopted granddaughter. On appeal, the court found that the trial court did not abuse its discretion when, “rather than engaging in curative measures, it instructed both parties that they could not further address sexual acts committed by defendant during the second period that the victim resided in defendant’s home.” Not only was the evidence “admissible under MCL 768.27a, notwithstanding the prosecution’s failure to timely disclose its intentions of using such evidence, but defense counsel’s line of questioning implicitly undermined the credibility of the victim’s allegations.” Where defense counsel “opened the door, the prosecution was permitted to examine the victim about the second period of time that she resided in defendant’s home.” It also found that the probative value of the evidence was not substantially outweighed by its prejudicial effect. The proffered “evidence and the charged conduct were similar: both occurred between defendant and the victim, in defendant’s home, while the victim was living there.” Moreover, there was a “temporal relationship between” this evidence and the charged conduct. Finally, the court found that although the prosecution “improperly vouched for the victim’s credibility by implying that she had some special knowledge of the victim’s” truthfulness, a new trial was not warranted because the comment “was not outcome-determinative, and because a curative instruction, if requested, would have alleviated any prejudice.” And it was “not reasonably probable that the outcome of the proceedings would have differed if defense counsel objected . . . .” Affirmed.