Other acts evidence; MCL 768.27a; People v. Watkins; MRE 403; People v. Cameron; Prosecutorial error; People v. Dobek; Vouching; People v. Cain; People v. McGhee; Eliciting sympathy for the victim; People v. Unger; Distinguishing People v. Dalessandro; Presenting unsupported theories; People v. Pegenau; Cumulative effect of errors; People v. Cooper

Holding that the trial court did not abuse its discretion in admitting the challenged other acts evidence under MCL 768.27a, and that there was no prosecutorial error requiring reversal, the court affirmed defendant’s CSC II convictions. The victim was his girlfriend’s daughter, who was just short of 11 years old at the time of the trial. The court concluded that her testimony about defendant asking her “if she would like to see his penis, defendant exposing his penis to [her], defendant having [her] touch his penis, defendant kissing [her] on the lips like he would kiss her mother, defendant touching [her] chest and breasts, defendant removing [her] clothes and looking at her vagina, and defendant touching [her] vagina with his mouth or hands would be admissible under MCL 768.27a for any matter to which it was relevant, even as propensity evidence.” As to whether it should have been excluded under MRE 403, the court determined that the probative value of the victim’s “testimony was not substantially outweighed by the danger of unfair prejudice. First, the evidence was relevant because it showed defendant’s propensity to sexually abuse [her], and that he was ‘grooming’ her for the eventual sexual assaults that comprised” the CSC II charges at issue. Further, the relevant Watkins factors weighed in favor of admitting the evidence. The other acts “were not remote in time, and were similar in that they involved the same victim and a series of escalating sexual acts towards or involving” her. In addition, the trial court correctly instructed the jury on the proper consideration of this evidence. As to his prosecutorial error claims, the court found that there was no improper vouching, and it saw no error in the statements defendant claimed improperly elicited sympathy for the victim. The “only prosecutorial error was the use of some prejudicial language that did not rise to the level of denying defendant his due process right to a fair trial.”