Other acts evidence admitted under MCL 768.27a; Whether the other acts evidence may have confused jurors as to the nature of the charged offenses; Whether any such confusion outweighed the evidence’s probative value; MRE 403; Whether the child forensic interviewer’s testimony entitled defendant to a new trial under People v Thorpe

On remand from the Supreme Court, while the court rejected defendant’s claim as to the other acts evidence admitted under MCL 768.27a, it held that the child forensic interviewer’s (B) testimony ran afoul of Thorpe. Thus, it reversed, vacated defendant’s CSC II convictions and sentences, and remanded for a new trial. The court reconsidered whether admission of other acts evidence may have confused jurors as to the nature of the charged offenses, and if so, this outweighed the evidence’s probative value, and whether B’s testimony entitled defendant to a new trial under Thorpe. He argued that the other acts evidence “was confusing, and therefore unfairly prejudicial under MRE 403.” However, he did not specify the “testimony that ostensibly confused the jury[.]” The court held that where “defense counsel expressly declined to ask for any clarifying instructions,” this issue was waived for appellate review. Regardless, defendant was entitled to a new trial on an alternative ground. As the court concluded “that clarification would have been helpful,” it cautioned “the trial court and the parties on remand to consider carefully differentiating evidence of sexual contacts offered to establish the factual bases for the criminal charges from evidence of sexual contacts offered for other reasons.” It next held that B’s testimony itself, as well as the prosecutor’s argument relating to her “testimony, constituted improper bolstering of the complainant’s credibility. Under the guidance provided by Thorpe, this was plain error, and because the prosecution’s case against defendant overwhelmingly depended on the complainant’s credibility, the improper bolstering seriously affected the fairness or integrity of the proceedings.”