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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ALAN GEORGE THOMPSON, Defendant-Appellant.

UNPUBLISHED September 28, 2010

No. 292280 St. Clair Circuit Court LC No. 08-002522-FH

Before: FITZGERALD, P.J., and MARKEY and BECKERING, JJ. PER CURIAM. A jury convicted defendant of one count of second-degree criminal sexual conduct (CSC II), MCL 750.520c (person under age 13), and the trial court sentenced defendant to a prison term of 15 to 180 months. Defendant appeals as of right. We affirm. Defendant argues that the trial court abused its discretion when it allowed the prosecutor to introduce "other acts" evidence under MRE 404(b) and MCL 768.27a regarding defendant's alleged criminal sexual conduct involving another minor. Because we hold that the trial court properly admitted the "other acts" evidence under MCL 768.27a, we find it unnecessary to determine whether the evidence was properly admitted under MRE 404(b). MCL 768.27a provides, in relevant part, that " 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." Under the statute, a "listed offense" is defined as those offenses found in MCL 28.722. MCL 768.27a(2). A "minor" is defined as any individual that is under 18 years of age. MCL 768.27a(2)(b). Defendant argues that the trial court should not have admitted the evidence because the prosecutor failed to establish that the "other acts" evidence constituted a listed offense and was relevant to the instant case. We disagree. The "other acts" evidence introduced at trial could constitute either second- or fourthdegree criminal sexual conduct if the jury believed the acts were done for a sexual purpose. Second- and fourth-degree criminal sexual are listed offenses within the meaning of MCL 768.27a(2). See MCL 28.722(e)(x). It is not necessary that a defendant be convicted of the

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"other acts" evidence before they could be admitted under MCL 768.27a. People v Petri, 279 Mich App 407, 411; 760 NW2d 882 (2008). Contrary to defendant's argument, the "other acts" evidence was relevant to determining whether he committed the instant offense. In child sexual assault cases, whether the defendant has the propensity to sexually assault children is relevant to determining whether he or she committed another sexual assault against a child. People v Pattison, 276 Mich App 613, 620; 741 NW2d 558 (2007). Thus, we agree with the trial court's finding that the "other acts" evidence was relevant and admissible under the statute to determine whether defendant intentionally touched the complainant for a sexual purpose. Defendant argues that, even if relevant, the trial court should have excluded the "other acts" evidence because its probative value was substantially outweighed by its prejudicial effect, and thus inadmissible under MRE 403.1 We disagree. Pursuant to MRE 403, evidence, even if relevant, is inadmissible if its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." Clearly, the "other acts" evidence was prejudicial to defendant's case. However, evidence is not unfairly prejudicial merely because it is damaging to a party's case. People v Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995). Evidence is unduly prejudicial if it has "an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one." Id. The danger of introducing unfairly prejudicial evidence is the possibility the jury would find the evidence more probative of an issue than it deserves. Id. Because defendant denied any wrongdoing and alleged that the complainant fabricated her claim that he had inappropriately touched her, the "other acts" evidence was relevant to rebut his claim of fabrication and was highly probative of the complainant's credibility. For that reason, defendant cannot show that the evidence was so prejudicial as to warrant exclusion under MRE 403. See People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998) (stating that "[e]vidence is unfairly prejudicial where there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury").2 In the alternative, defendant argues that application of MCL 768.27a to his case violated his equal protection rights. Specifically, defendant argues that MCL 768.27a is unconstitutionally discriminatory because it unfairly classifies and punishes those defendants charged with criminal sexual assaults against children and there is no rational basis for the unequal treatment under the law. We disagree.

Although not explicitly stated in MCL 768.27a, a trial court considering whether "other acts" evidence is admissible under the statute must still take seriously its responsibility to determine whether MRE 403 might render the evidence inadmissible. Pattison, 276 Mich App at 621. Defendant argues that the trial court committed reversible error when it failed to analyze the admissibility of the "other acts" evidence under the five-factor test articulated in United States v Gaurdia, 135 F 3d 1326, 1331 (CA 10, 1998). Because Michigan courts have not adopted the factors discussed in that case, the trial court was not required to apply those factors.
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The Equal Protection Clauses of both the United States and Michigan Constitutions protect every person against unequal treatment under the law. US Const, Am XIV; Const 1963, art 1,

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