Sufficiency of the evidence for a CSC II conviction under MCL 750.520c(1)(c) (sexual contact under circumstances involving the commission of another felony); Delivery; People v Waltonen; Other acts evidence; Prosecutorial misconduct; Improperly elicited testimony; Ineffective assistance of counsel; Failure to object or request curative instructions

The court held that there was sufficient evidence defendant engaged in sexual contact with victim-OW under circumstances involving the delivery of marijuana to OW to support his CSC II convictions under MCL 750.520c(1)(c). However, it reversed his convictions due to improperly admitted other acts evidence and remanded for a new trial. He argued that there was insufficient evidence to sustain his convictions because the sexual contact did not occur under circumstances involving the felonious delivery of marijuana to a minor. The court held that while the direct interrelationship between the felony and the sexual contact was “not as explicit as in Waltonen, the jury could reasonably infer from the evidence that defendant gave OW the marijuana to facilitate the sexual contact. And although the sexual contact occurred after the felony, the jury could find that the sexual contact was directly related to the delivery of marijuana. Additionally, the jury could reasonably infer from defendant’s statement to OW that they would have ‘adult problems’ if she told anyone about the marijuana that defendant had intended the sexual assault when he gave the marijuana to OW.” As in Waltonen, “the evidence supported a finding that the delivery of marijuana was part and parcel of the sexual contact.” But the court noted that the evidence was not overwhelming and that while the jury found him guilty as to OW, it found him not guilty on charges involving another complainant. The “trial as to OW was a credibility contest between her and defendant and his supporting witnesses. OW testified that defendant sexually touched her after providing her with marijuana. Defendant denied providing OW with marijuana and sexually touching her. OW’s disclosure was delayed and the police found no evidence that defendant photographed OW as she had reported. If defendant’s guilt depends on determining witness credibility and an error contributes to the jury’s resolution of this credibility question, we are hard-pressed to conclude that the other-acts evidence did not affect defendant’s substantial rights or the fairness of the judicial proceedings, especially given the long-standing rules controlling the admission of evidence concerning a defendant’s prior arrest, conviction, and criminal history.”