Other acts evidence; MCL 768.27a; MRE 404(b); People v VanderVliet; People v Watkins; “Sexual contact”; Prejudice; MRE 403; Harmless error

Holding that the trial court did not err by admitting the other acts evidence through the testimony of witnesses-MW, ZG, and RI (except in one instance that was harmless), the court affirmed. Defendant-Evink was convicted of CSC I and II. As he did “not dispute, at least some of MW’s testimony pertained to incidents that occurred when she was a minor and constituted listed offenses under MCL 768.27a. Accordingly, the trial court did not abuse its discretion by concluding that such testimony was admissible under” the statute. The court concluded that the evidence was not more prejudicial than probative, and it “gave a limiting instruction to the jury on the proper purpose for the” other acts evidence. Thus, it held that “the trial court did not err by admitting MW’s testimony of her abuse that continued into adulthood under MRE 404(b).” It also found “ZG’s testimony that Evink presented his naked body to her constitute[d] evidence of the offense of indecent exposure,” but it noted that “indecent exposure is not a listed offense,” as the prosecutor conceded. The court held “that the trial court erred by admitting ZG’s testimony about these incidents of exposure under MCL 768.27a. Similarly, Evink’s conduct while feeling ZG’s bed at night did not constitute a listed offense because ZG did not testify that Evink’s physical contact was sexual contact.” Thus, the trial court “erred by admitting ZG’s testimony about this incident under MCL 768.27a.” However, it found “Evink’s act of touching ZG’s buttocks and keeping his hand there after she tried to move away from him constitute[d] ‘sexual contact’ of the ‘intimate parts’ of a person under 13 years old . . . . ” The court found “ZG’s testimony about this touching established that testimony was admissible under MCL 768.27a.” The court held under “VanderVliet, the prosecution identified a proper purpose for the introduction of MW’s allegations that occurred when she was an adult as Evink’s ‘plan or scheme’ to commit the assaults with ‘distinguishing characteristics.’” It found the “evidence also satisfied the second VanderVliet factor of logical relevance under MRE 401 and MRE 402 because [it] was material and had probative value.” And it was also “material because the conduct she described had similar characteristics of his abuse of multiple victims when they were asleep and under covers, which showed a likelihood that the assaults alleged by the victim occurred.” Further, RI’s claim “that Evink rubbed his penis on [her] hands constituted ‘sexual contact’ with someone under the age of 13” for purposes of CSC II, because ‘“sexual contact’ requires touching of a victim or actor’s ‘intimate parts,’ which are ‘the primary genital area, groin, inner thigh, buttock, or breast.’” Further, it appeared “that RI’s testimony that Evink stood over her while naked, though not technically a listed offense alone under MCL 768.27a, was part of [his] conduct in making sexual contact with her.” Also, “the evidence offered through the testimony of MW, ZG, and RI under MCL 768.27a was not overly prejudicial . . . .”