Evidence of sexual orientation & pornography preferences; Relevance; MRE 402; MRE 404(a); Improper character evidence; Ineffective assistance of counsel

The court held that the “prosecutor plainly erred by questioning defendant regarding his sexual identity and his preference for pornography involving transgender and gay men. Defendant was unfairly prejudiced as a result, and” was thus entitled to a new trial. In all other respects, he failed to show error warranting relief. He was convicted of CSC I and accosting a child for immoral purposes. Defendant first argued “that evidence of his sexual orientation and pornography preferences was irrelevant, impermissible character evidence, and that it was admitted at trial in violation of MRE 402 and MRE 404(a).” The court agreed in part. “In the context of the charges against defendant, the prosecutor’s questions were largely relevant to establish that defendant showed the victim pornography on his cell phone and to tie defendant’s crime against the victim with his predilection for pornography involving stepfathers and stepsons. MRE 402. Thus, the line of questioning pertaining to defendant’s use of pornography and some of his search terms related to ‘boy,’ ‘stepdad,’ and the like, were relevant and admissible. Additionally, such testimony was directly related to the crimes of which defendant was accused, and thus, its probative value substantially outweighed any potential prejudice.” However, the court held that the same could not “be said about the evidence pertaining to whether defendant watched ‘transsexual’ pornography, as well questions regarding whether he identified as a gay man.” It concluded that the “line of questioning was irrelevant to the matter at hand.” Thus, it agreed with defendant that plain error occurred. It further agreed with him that the error was unfairly prejudicial. He also argued that his attorney was ineffective for failing to object to the prosecutor’s questioning on cross-examination. Defendant faulted his counsel “on the grounds that the testimony elicited was irrelevant or prejudicial.” However, the fact remained “that defense counsel did object to the prosecutor’s line of questioning—once successfully, once unsuccessfully.” And the record reflected “that defense counsel later utilized the prosecutor’s cross-examination regarding defendant’s sexual orientation and pornography preferences to argue that the prosecutor was attempting to distract the jury from the issues at hand.” Reversed and remanded.