Other acts evidence; MRE 404(b)(1); People v Denson; Notice; MRE 404(b)(2); People v Hawkins; Relevance; MRE 401 & 402; Unfair prejudice; MRE 403; People v Dobek; Right to present a defense; People v Unger

The court held that the trial court erred by admitting other acts evidence, and that its admission affected defendant’s substantial rights. He was convicted of CSC II and accosting a child for immoral purposes for allegedly sexually assaulting the complainant, his stepdaughter. On appeal, the court agreed with defendant that evidence of his meth abuse and his alleged physical abuse of the complainant and her mother was inadmissible other acts evidence. The prosecution failed to provide written notice of the physical abuse evidence as required by MRE 404(b)(2), and this was plain error. The court concluded that “in light of the trial court’s affirmative statement that it would have excluded the evidence, there is more than a reasonable probability that the evidence would have been excluded at a pretrial hearing if the prosecutor had provided the mandated notice . . . .” In addition, “the trial court stated that if there had been a timely objection to the evidence” of his meth use and that he “had introduced the complainant’s mother to it, then the court would have sustained the objection.” Further, even if notice had been given, the other acts evidence did not show that he “had a motive to sexually abuse the complainant, that he intended to sexually abuse the complainant, that he had a common plan or scheme to do so. It was not needed to identify him as the perpetrator of the abuse. The purpose of the evidence was not to show the absence of a mistake or accident. The purpose of the evidence was anything but proper.” In addition, it was irrelevant, and there was no curative instruction. Finally, the court found there was “a reasonable probability that, when weighing the testimony of a child against the testimony of a man who repeatedly beat her and abused drugs, that the jury’s credibility evaluation was tainted such that the outcome of the trial was unfairly affected.” Reversed and remanded for a new trial.