Other acts evidence; MRE 404(b); Commonality; People v Smith; MRE 403; Sufficiency of the evidence for a CSC III conviction under MCL 750.520d(1)(c); Hearsay; Prior consistent statements; MRE 801(d)(l)(B); Admission of an email sent by the victim; Adequate foundation; MRE 901(a) & (b)(1); A command distinguished from a statement; Relevance; Late production to the defense; MCR 6.201(J); The best evidence rule; MRE 1002, 1001(3), & 1003; Prosecutorial misconduct; Vouching; Denigration of defendant or defense counsel; Sentencing; Scoring of OV 13; MCL 777.43(1)(c); Uncharged conduct; Cumulative error

The court held that the trial court did not abuse its discretion in admitting other acts evidence and that there was sufficient evidence to support defendant’s CSC III conviction. It rejected his hearsay and prosecutorial misconduct claims. It also concluded that an adequate foundation was laid for admission of an email from the victim, and that the email and an accompanying news article were relevant. Further, “the trial court did not abuse its discretion by failing to exclude the e-mail as a discovery sanction” and there was no merit to defendant’s assertion it should not have been admitted because the prosecution did not produce “the ‘original’ news article.” The court also rejected his unfair prejudice and cumulative error claims, and upheld the 25-point score for OV 13. Witness-HK testified “she was defendant’s former girlfriend and that a few days before the charged assault against the victim, defendant initiated nonconsensual anal sex with HK while HK was sleeping.” The prosecution offered the evidence to show, among other things, a common plan by defendant. Applying the Smith rationale, the court held that the prosecution presented “sufficient indicia of commonality between the prior assault of HK and the charged offense to show the existence of a common system, plan, or scheme. In both instances, defendant engaged in unwelcomed sexual penetration of women with whom he had either a friendship or romantic relationship, and he initiated the sexual activity while the women were asleep next to him. His actions showed a common plan of exploiting a relationship to surprise a helpless victim to engage in sexual penetration. Although there were some differences between the two incidents, there were sufficient common features for reasonable persons to infer the existence of a common plan or method.” The evidence was also relevant to show he “did not accidentally or mistakenly touch the victim.” Further, it was not unfairly prejudicial. As to the sufficiency of the evidence, “the victim testified that she recognized her assailant’s arm as defendant’s arm,” and that when she later confronted him, “he responded that they ‘did not do that much.’ Defendant’s response allowed the jury to infer that he tacitly admitted that he was the person in the bed beside the victim and had touched her.” Another witness’s testimony also supported his identification. Affirmed.