Ineffective assistance of counsel; Failure to timely move to suppress other acts evidence; MRE 404(b); MCL 768.27b; Relevance; Unfair prejudice; MRE 403; People v Watkins; CSC I charges under MCL 750.520b(1)(c); First-degree home invasion; Failure to object to the prosecution expert’s testimony; MRE 702; Failure to investigate the prosecution’s case; Failure to timely file a witness list & exhibit list; Failure to request a mistake of fact jury instruction; Brady v Maryland violation; Prosecutorial error; Civic duty argument; Denigrating the defense; Cumulative error; Instructional error

Holding that defendant was entitled to a new trial due to ineffective assistance of counsel and cumulative error, the court vacated his convictions and sentences and remanded for a new trial. He was convicted of CSC I under MCL 750.520b(1)(c), first-degree home invasion, and larceny from a building. The court concluded defense counsel at trial was ineffective for failing to (1) timely move to suppress other acts testimony, resulting “in the admission of evidence that was both irrelevant and highly prejudicial[,]” (2) object to the prosecution expert’s testimony, (3) investigate the prosecution’s case, (4) timely file a witness list and exhibit list, and (5) request a mistake of fact jury instruction. The other acts testimony came from three witnesses. The court found that “a large portion of” their testimony “was not relevant to prove the sexual assault offenses with which defendant was charged.” CSC I under MCL 750.520b(1)(c) has two elements – “(1) sexual penetration (2) that occurs under circumstances involving the commission of another felony.” The first element was clearly established without these witnesses’ testimony. As to the second element, only a small portion of their testimony pertained “to defendant’s propensity to enter a dwelling without permission. Because the vast majority of the testimony of the three witnesses was unrelated to that issue, the bulk of” their testimony was not relevant to the first-degree home invasion charge, except to the extent it related to larceny. The court found that apart from the limited portions of the testimony, “the remaining testimony was not only irrelevant, but also highly prejudicial. The parties in this case agreed on most of the facts; the only factual issues in dispute at the time of trial were whether defendant had permission to enter [victim-H’s] home and whether he intended to steal [H’s] phone or took it accidentally.” The court noted that defense “counsel had ample opportunity to object to the anticipated testimony . . . before trial, but disregarded the” trial court’s deadline for objections, “and waited until the afternoon before trial to file objections in a haphazard manner and without a supporting brief.” In addition to the ineffective assistance of counsel, the court found that a statement by the prosecutor “during closing argument improperly appealed to the jury’s civic duty and” contributed to cumulative error, along with an instructional error related to the CSC I charge that warranted reversal.