People v. Hart

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JASON ROBERT HART, Defendant-Appellant.

No. 359054

Court of Appeals of Michigan

March 9, 2023

UNPUBLISHED

Berrien Circuit Court LC No. 2020-002059-FC

Before: SHAPIRO, P.J., and LETICA and FEENEY, JJ.

PER CURIAM

Defendant appeals as of right his jury trial conviction of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a); MCL 750.520b(2)(b) (victim less than 13 years of age and defendant 17 years of age or older). He was sentenced to 25 to 53 years' imprisonment. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

Defendant and his ex-wife are the parents of two children: AH and MH. Defendant's conviction relates to his conduct that occurred in approximately 2010. AH testified that defendant came into her room during the night, got into her bed with her, and digitally penetrated her vagina. AH was approximately 10 years old^[1] at the time. AH was uncomfortable and confused about what happened to her but she did not tell anyone about the incident at that time. AH convinced herself that it was a vivid dream and repressed the incident. This was the only sexual contact between defendant and AH.^[2] In late 2019 or early 2020, when AH was 16 years old, she heard defendant enter her bedroom in the early morning hours. It was common for defendant to enter AH's bedroom to retrieve her car keys to move her car. AH was not wearing clothing underneath her blanket because it was warm in the home. Defendant lifted the blanket, and AH heard a clicking sound that led her to believe that defendant photographed or filmed her while she was sleeping in the nude. After defendant allegedly photographed AH, she only told her then-boyfriend about the incident.^[3]

In 2020, AH took a psychology class and was given an assignment to write a personal essay. Her teacher advised that the content would only be reviewed by him, and the papers would be destroyed after being read. AH wrote about the 2010 incident of sexual abuse and the more recent photo incident for her psychology assignment, which resulted in a report to the authorities and prompted the current criminal proceedings.

Over defendant's objections, the trial court also allowed the prosecutor to introduce other-acts evidence under MCL 768.27a, which involved abuse allegedly perpetrated by defendant against his stepsisters-HG and NH-when defendant was a preteen and teenager. At a pretrial hearing, and again at trial, HG and NH testified that defendant sexually abused them between approximately 1985 and 1993. Defendant, who was born in 1974, was between approximately 11 and 19 years of age at the time of the abuse. HG was approximately three years younger than defendant, and NH was approximately six years younger than defendant.

According to defendant's stepsisters, defendant abused them on an almost daily basis. This abuse included touching HG's genital area over and under her clothes. He also unsuccessfully tried to penetrate her vagina with his penis. NH testified that defendant would touch her and have her touch him. He touched her genitals with his hands, both inside and outside her vagina. He also penetrated her vagina with his penis and had her perform oral sex on him. HG and NH were both present while the other was abused; they also saw defendant abuse their brother. Defendant would have them all remove their clothing and lie naked in bed with him. Defendant also reportedly watched NH and HG in the shower.

Defendant testified on his own behalf. He denied both the 2010 incident and the more recent photography incident related to AH. He also denied sexually abusing his stepsisters. Defendant's sister, TR, testified that she lived with defendant and her stepfather when her stepfather married HG and NH's mother. At the time, TR was 16 years old, cared for the children, including HG and NH, and drove them around. She never witnessed any inappropriate sexual behavior. The jury convicted defendant of CSC-I. Defendant now appeals as of right.

II. ANALYSIS

On appeal, defendant contends that the trial court abused its discretion by admitting other-acts evidence under MCL 768.27a that included acts committed by defendant more than 20 years before the events giving rise to the current charges and which occurred when he was approximately 11 to 19 years old. Defendant submits that the evidence was more prejudicial than probative and that it should have been excluded under MRE 403. We conclude that the trial court did not abuse its discretion by admitting the other-acts evidence under MCL 768.27a.

A. STANDARD OF REVIEW

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. A court abuses its discretion when its decision is outside the range of principled outcomes. A trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion. Further, when the decision involves a preliminary question of law, which is whether a rule of evidence precludes admissibility, the question is reviewed de novo. [People v Hoskins, __ Mich.App. __, __; __ N.W.2d __ (2022) (Docket No. 359103); slip op at 3 (quotation marks, citations, and brackets omitted).]

B. MCL 768.27A

Under MCL 768.27a, other-acts evidence may be admitted in cases involving allegations of certain sex offenses against minors as follows:

(1) Notwithstanding [MCL 768.27], in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.

(2) As used in this section:

(a) "Listed offense" means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295 MCL 28.722.

(b) "Minor" means an individual less than 18 years of age.

"Under MCL 768.27a, evidence is relevant, and therefore admissible, when offered to show the defendant's propensity to commit the charged crime." People v Solloway, 316 Mich.App. 174, 193; 891 N.W.2d 255 (2016). MCL 768.27a irreconcilably conflicts with, and supersedes MRE 404(b), which is a rule of evidence requiring the exclusion of other-acts evidence if its only relevance is to show the defendant's character or propensity to commit the charged offense. People v Watkins, 491 Mich. 450, 475-477; 818 N.W.2d 296 (2012); Hoskins, __ Mich.App. at __; slip op at 4 (quotation marks omitted). "When a defendant is charged with a sexual offense against a minor, MCL 768.27a allows prosecutors to introduce evidence of a defendant's uncharged sexual offenses against minors without having to justify their admissibility under MRE 404(b)." People v Pattison, 276 Mich.App. 613, 618-619; 741 N.W.2d 558 (2007). As a result, in many cases, evidence may be admitted under MCL 768.27a that previously would have been inadmissible under MRE 404(b) as improper propensity evidence. Id. at 619.

Evidence that a defendant committed a prior listed offense is not, however, automatically admissible under MRE 768.27a. Watkins, 491 Mich. at 483-484. The admission of such evidence is within a trial court's discretion, id., and evidence otherwise admissible under MCL 768.27a remains subject to the balancing test in MRE 403, id. at 486. Under MRE 403, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Notably, when weighing the propensity inference under MRE 403 in the context of MCL 768.27a, a trial court must "weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect." Watkins, 491 Mich. at 487.

This does not mean, however, that other-acts evidence admissible under MCL 768.27a may never be excluded under MRE 403 as overly prejudicial. There are several considerations that may lead a court to exclude such evidence. These considerations include (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant's and the defendant's testimony. This list of considerations is meant to be illustrative rather than exhaustive. [Id. at 487-488.]

Watkins also instructs that "[t]rial courts should apply this balancing to each separate piece of evidence offered under MCL 768.27a." Id. at 489. It is within the trial court's discretion to determine "how many separate pieces of other-acts evidence may be admitted before the probative value of such evidence is outweighed by the danger of confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id. (quotation marks and citation omitted).

1. LISTED OFFENSES

On appeal, defendant briefly argues that some of the other acts particularly those alleged to have occurred before he was 14 years old, do not qualify as listed offenses for purposes of MCL 768.27a. This argument lacks merit. As noted, MCL 768.27a(2)(a) defines...