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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DANIEL ROGER TURNER, Defendant-Appellant.

UNPUBLISHED December 15, 2009

No. 286823 Oakland Circuit Court LC No. 2007-216077-FC

Before: Servitto, P.J., and Fort Hood and Stephens, JJ. PER CURIAM. Defendant was convicted of three counts of first-degree criminal sexual conduct (CSC) against the victim, a minor daughter of his live-in girlfriend at the time, Mary Crain. Defendant appeals as of right his sentences and jury trial convictions of two counts of first-degree CSC (person under 13), MCL 750.520b(1)(a), and one count of first-degree CSC (relationship), MCL 750.520b(1)(b). Defendant was sentenced, as a second habitual offender, MCL 769.10, to 30 to 60 years' imprisonment for each CSC conviction. We affirm. A. ADMISSIBILITY OF EVIDENCE UNDER MCL 768.27b Defendant argues that he is entitled to a new trial because evidence of prior sexual acts between him and the victim's mother, Crain, were admitted into evidence. We disagree. Preserved issues of whether evidence was admissible are reviewed for a clear abuse of discretion by the trial court. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). A trial court abuses its discretion when it reaches a decision resulting in an outcome that falls outside the range of reasonable and principled outcomes. People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). However, when the decision regarding the admission of evidence involves a preliminary question of law, the issue is reviewed de novo. People v Pattison, 276 Mich App 613, 615; 741 NW2d 558 (2007). Normally, MRE 404(b) prohibits the admission of evidence of "other crimes, wrongs, or acts [when they are used] to prove the character of a person in order to show action in conformity therewith." However, the Michigan Legislature enacted MCL 768.27b, which provides the following:

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(1) Except as provided in subsection (4), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403. *** (5) As used in this section: (a) "Domestic violence" or "offense involving domestic violence" means an occurrence of 1 or more of the following acts by a person that is not an act of self-defense: (i) Causing or attempting to cause physical or mental harm to a family or household member. (ii) Placing a family or household member in fear of physical or mental harm. (iii) Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress. (iv) Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested. Thus, MCL 768.27b allows for what previously would have been inadmissible propensity evidence in domestic violence cases. See Pattison, supra at 619. In the present case, the prosecution argued at the lower court that the evidence of defendant having anal intercourse with Crain was admissible because the sexual acts were unwanted and forced upon Crain, thereby falling under the definition of "domestic violence" under MCL 768.27b(5)(a)(iii). Crain testified as follows regarding these sexual encounters with defendant: Q. Alright, and tell the jury what it was the defendant did to you that you didn't like? A. He would put his penis in my butt. Q. Okay. The first time that happened, tell us where had you been? A. I had been at his house. Q. Okay. And what had you been doing that night? A. I had been drinking. -2-

Q. Okay. And would you say you were intoxicated? A. Yes. Q. And describe to me how

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