Other acts evidence; MRE 403; Whether MCL 768.27b is unconstitutional; Prosecutorial error; Vouching for the credibility of witnesses; Sentencing as an habitual offender; Proof of service; MCL769.13; People v Head

The court held that the trial court did not abuse its discretion by admitting the other acts evidence, and it rejected defendant’s argument that MCL 768.27b is unconstitutional. Further, it found no error in the prosecutor’s argument and thus, also rejected his contention that his trial counsel was ineffective for failing to object. Finally, it held that the prosecution’s failure to file the proof of service as to an habitual offender enhancement was harmless error. He was convicted of CSC I and AWIGBH. He was sentenced as a fourth-offense habitual offender to 300 to 456 months in prison. Defendant contended that “the trial court erred by admitting evidence under MCL 768.27b that he sexually assaulted” other acts witness-SS. He argued that “the evidence should have been excluded under MRE 403 because it was unduly prejudicial.” The court concluded that he did not show the evidence of the assault on SS was inadmissible.” Victim-CC asserted that “while at defendant’s apartment, defendant engaged in sex with her while she was incapacitated and without her consent, and that during sex defendant choked her without her consent. SS testified to a very similar assault by defendant seven months later, also at defendant’s apartment, in which she described waking up to find defendant having sex with her and choking her without her consent.” The court held that “SS’s testimony was relevant to support CC’s credibility,” and to demonstrate “defendant’s propensity to commit a sexual assault in the manner described by CC. The evidence also indicated a common plan or scheme for selecting victims and committing sexual assaults while the victims were unable to resist. In addition, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.” The court concluded that the “evidence did not invite the jury to consider matters extraneous to the case, such as the jury’s bias, sympathy, anger, or shock, nor was the jury invited to give marginally probative evidence undue or preemptive weight.” The probative value of the evidence “was not substantially outweighed by the danger of unfair prejudice under MRE 403.” Therefore, the trial court did not abuse its discretion by admitting it. Affirmed.