Other acts evidence under MCL 768.27a; People v Watkins; MRE 403; Evidence of gang affiliation; Rebuttal evidence; The rule of curative admissibility; Ineffective assistance of counsel; Prejudice; Motion to suppress cell phone evidence; Supervision of probationers exception to the warrant requirement; Search condition in a probation order; United States v Knights; Whether the cell phone qualified as a computer; MCL 752.792(3); Reasonable suspicion to search the phone; Admission of defendant’s police statements; Waiver of Miranda rights; People v Cheatham; Sentencing; Consecutive sentences; People v Norfleet

The court held that the trial court (1) did not abuse its discretion in admitting other acts evidence under MCL 768.27a and evidence of defendant’s gang affiliation or (2) err in denying his motion to suppress evidence obtained from his cell phone. As to the admission of his police statements, the court found no clear error in the trial court’s finding that he was competent to waive his Miranda rights. It also rejected his ineffective assistance of counsel claim. But it agreed with him “that the trial court abused its discretion by imposing consecutive sentences without providing adequate justifications for doing so.” Thus, while the court affirmed his convictions of CSC I, aggravated child sexually abusive activity, aggravated possession of child sexually abusive material, and using a computer to commit a crime, it “remanded for the trial court to articulate its rationale for imposing each consecutive sentence or to resentence defendant.” The other acts evidence he challenged on appeal “involved the forcible sexual penetration of a 14-year-old while being falsely imprisoned[.]” He asserted the evidence should have been excluded as unfairly prejudicial under MRE 403. The court determined that the similarities between the “incidents weighed in favor of admitting the” challenged evidence. “Both incidents involved defendant, at age 23, engaging in penetrative sex with 14-year-old girls. Similarly, the temporal proximity of the incidents, as well as the absence of intervening acts, weigh in favor of admission because both incidents occurred when defendant was 23 years old.” The court concluded he failed to show “that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.” As to the admission of gang-related testimony, the court noted MRE 404(b) did not apply as this evidence was admitted “for the limited purpose of rebuttal under the rule of curative admissibility, more colloquially known as the ‘opening the door’ doctrine.” And defendant could not establish the prejudice prong of his related ineffective assistance claim. As to the cell phone evidence, (1) the record showed that he accepted the search condition in his probation order, (2) that “order unambiguously provided that [his] cell phone was subject to the warrantless search[,]” and (3) the officers had reasonable suspicion to search the phone.