Other acts evidence admitted under MCL 768.27a; Unfair prejudice; People v Watkins; Waived verdict form claim; Ineffective assistance of counsel; Failure to make a meritless objection

Holding that the trial court did not abuse its discretion in admitting other acts evidence about “flea checks” the victim (GT) testified that defendant conducted on her, the court affirmed his CSC I, CSC II, and second-degree child abuse convictions. GT testified that when she “was 9 or 10 years old, the family moved to a new house, which was infested with fleas and bed bugs. Defendant performed ‘flea checks[]’ by telling GT to take off her clothes. She stated [he] ‘would look at my body and he would run his fingers along my body, like on my breast area, on my thighs, and my butt.’ She approximated that these flea checks happened about 50 times over several years.” On appeal, the court concluded that defendant did not identify “any considerations that would warrant excluding the flea check evidence as unfairly prejudicial. He asserts that the number of alleged flea checks, exceeding 50 over several years, prejudiced him and confused the issues in this matter.” He did not make any “effort to substantiate his argument that the evidence confused the issues, other than to state that the evidence was distracting to the jury. However, defendant proffers no evidence that the jury was unduly preoccupied with or distracted by” the evidence. And as to unfair prejudice, he “simply contends that the sheer frequency of the alleged incidents should weigh against their admission, in an apparent inversion of the Watkins factor pertaining to the frequency of other acts. Critically, courts take into consideration ‘the infrequency of the other acts,’ not their frequency, when deciding whether to exclude other-acts evidence as unfairly prejudicial. Thus, the alleged frequency of the acts supported the admission of the evidence, not its exclusion.” The court also found that his jury verdict form claim was waived and that defense counsel was not ineffective for failing to make a meritless objection to the form.