Other acts evidence; MRE 404(b); People v VanderVliet; People v Crawford; Modus operandi theory to prove identity; People v Golochowicz; Relevance; People v Sabin (After Remand)

Because the trial court failed to “specifically delineate the theory of admissibility at issue, the appropriate legal test to apply” (VanderVliet or Golochowicz), and analyze the respective test factors, the court vacated its order as to the proposed other acts evidence and remanded for further proceedings. Defendant was bound over on charges of open murder and felony-firearm. He moved to exclude the evidence, which concerned another shooting and text messages addressing his communications about “ghost guns and weapon jamming.” The trial court denied his motion and ruled the evidence admissible “‘except that the prior act be referred to as a shooting,’ as opposed to a ‘murder’ or ‘homicide.’” On appeal, in addition to reviewing the VanderVliet test, the court reviewed the Golochowicz test, which applies when the proponent of the “evidence presents a modus operandi theory to prove identity[.]” It noted that the “test for relevancy is stricter when used to prove identity.” The record showed that the prosecution sought admission of the other acts “evidence to establish identity as well as common scheme or plan. The trial court did not address and state whether the test of VanderVliet or Golochowicz applied.” The prosecution on appeal appeared to abandon admitting “the evidence on common scheme or plan grounds and” argued that an abuse of discretion did not occur under the Golochowicz test. The court concluded remand was required to determine whether admission was appropriate. It also noted that it did not appear from the “record that the text messages were submitted to allow the trial court to conduct an in-depth analysis of the issue. Rather, the trial court seemingly relied on its recollection of them from” a prior trial. Without the content of the messages, the court could not “determine from the record whether defendant complained about the pertinence of the texts as related to the modification or firing pin on the weapon, the role of ghost guns, and any correlation between the” other acts evidence. Thus, remand was also appropriate for the trial court to state its factual findings specifically. The court remanded “for the submission of the text messages and a determination of the admission of” other acts evidence given the prosecution’s apparent reliance on Golochowicz.