Other acts evidence; MCL 768.27b; MRE 404(b); Relevance; MRE 401 & 402; Unfair prejudice; MRE 403; Threat against a witness; Consciousness of guilt; People v Sholl

The court held that the trial court did not abuse its discretion by denying the prosecution’s motion to admit some of its proffered other acts evidence, but did abuse its discretion as to the rest of it. Defendant was bound over on charges of first-degree home invasion, felonious assault, interference with electronic communications causing injury, and malicious destruction of personal property, for entering his ex-girlfriend’s apartment and assaulting her. On appeal, the court agreed in part with the prosecution’s argument that the trial court abused its discretion by denying its motion to admit the proffered other acts evidence because it was relevant under MRE 401. “[T]he trial court abused its discretion when it determined that the portion of the telephone conversation where he communicated the threat to the complainant was irrelevant.” However, it “did not abuse its discretion by concluding that [defendant’s] comment to a third party that the complainant would be ‘fucked’ when he was released from jail was irrelevant. The comment confirms [his] intent to harm the complainant when he was released from jail; however, because it was not communicated to the complainant, it was not relevant to the matters at issue in this case.” In addition, a letter defendant wrote to the complainant tended “to demonstrate a consciousness of guilt, which renders the letter relevant. Indeed, his consciousness of guilt is clearly reflected by the fact that he apologized to her for what had occurred.” As such, the trial court “abused its discretion when it determined that the entire letter was irrelevant.” Further, “unlike the letter and the phone call through a third party, both of which were relevant to show consciousness of guilt, the call log is not relevant for any purpose.” Thus, the trial court “did not abuse its discretion by holding that a call log was irrelevant and, therefore, inadmissible.” It also did not abuse its discretion by excluding a particular sentence from the letter, but it did not “apply MRE 403’s balancing test to the balance of the letter, nor did it apply it to the portion of the phone conversation where” defendant threatened the complainant. The court noted the trial court was “in the best position to make a determination under MRE 403 as to each piece of evidence.” Therefore, it declined “to rule in the first instance whether the evidence satisfies or does not satisfy MRE 403’s balancing test. And, because the evidence may not be admitted under MCL 768.27b or MRE 404(b) unless it first satisfies MRE 403’s balancing test . . . , although the evidence is relevant, it is not yet clear whether it is admissible.” Affirmed in part, reversed in part, and remanded.