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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RUSTY LEE BARKER, Defendant-Appellant.

UNPUBLISHED December 21, 2010

No. 294252 Jackson Circuit Court LC No. 08-005424-FH

Before: MURPHY, C.J., and METER and GLEICHER, JJ. PER CURIAM. Defendant appeals as of right his jury-trial conviction of second-degree criminal sexual conduct (CSC 2), MCL 750.520c(1)(b)(ii) (sexual contact with person who is related by blood or affinity and who is at least 13 but less than 16 years of age). He was sentenced as a secondhabitual offender, MCL 769.10, to 5 to 15 years' imprisonment. We affirm. Defendant dated, lived with, and later married the victim's mother. In 1998, when the victim was eight years old, defendant began touching her vagina and breasts with his hands and penis when she was home alone with him. Defendant warned the victim not to tell anyone. The sexual molestation continued until the victim was about 14 years old. The victim testified that during the early years of the molestation, defendant would sexually assault her once every few days. Defendant was still having sexual contact with the victim when she was 13 years old, but it occurred less frequently, "[m]aybe once every couple of weeks." The victim eventually informed her mother because she feared that defendant would start sexually molesting the victim's five-year-old niece. Defendant was kicked out of the family home and the police were contacted. In the felony complaint, warrant, and information, the date of the offense is listed as having occurred between October 2003 and October 2004. The victim was born on October 3, 1990, making her 13 years old on October 3, 2003. On appeal, defendant first argues, citing MRE 404(b), that the trial court erred in admitting prior-bad-acts evidence which showed that defendant had sexually molested the victim from ages 8 through 12, which time period was not encompassed in the CSC 2 charge. The CSC 2 charge was brought under MCL 750.520c(1)(b)(ii), which prohibits sexual contact with a person who is related by blood or affinity and who is at least 13 but less than 16 years of age. Defendant also argues that the trial court erred in allowing the victim to testify that she came forward with her claims against defendant out of concern that he might molest the victim's niece. -1-

At the commencement of trial, both of these evidentiary issues were addressed by the trial court. The court ruled that evidence of prior sexual acts between defendant and the victim was relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice. Therefore, the evidence was admissible. The discussion below of the prior bad acts focused on MRE 404(b) and MRE 401-403. There were also arguments regarding the application of our Supreme Court's decision in People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973). The trial court further ruled that it would allow testimony that the victim feared for her niece, as it provided an explanation for why the victim came forward when she did. On appeal, defendant makes his argument under MRE 404(b) and additionally contends that DerMartzex does not support the proposition that evidence of prior sexual acts between a defendant and a minor are automatically admissible; relevancy must still be established and it was not shown here. We review a trial court's decision to admit other-acts evidence for an abuse of discretion; however, to the extent that the decision entails a preliminary question of law, such as whether a statute or rule of evidence precludes admission, our review is de novo. People v Pattison, 276 Mich App 613, 615; 741 NW2d 558 (2007). The issue presented is not properly analyzed under MRE 404(b). MCL 768.27a provides, in relevant part: (1) [I]n 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. . . . (2) As used in this section: (a) "Listed offense" means that term as defined in section 2 of the sex offenders registration act [SORA], 1994 PA 295, MCL 28.722. (b) "Minor" means an individual less than 18 years of age. MCL 768.27a was enacted pursuant to 2005 PA 135 and made effective January 1, 2006, which was more than three years before our trial. Accordingly, the statute is applicable; it matters not that the acts themselves occurred prior to January 1, 2006. Pattison, 276 Mich App at 618-619 (rejecting argument that application of MCL 768.27a at trial violated the Ex Post Facto Clause where the sexual abuse occurred before the statute took effect). Further, the offenses at issue here were committed against a minor, and the charged crime of CSC 2, as well as the prior bad acts, fall under the umbrella of listed offenses cited in the SORA. MCL 28.722(e)(x) (CSC crimes). We note that MCL 768.27a(1) does not, by its clear language, limit its applicability to past sexual acts committed against a minor who is not the victim in the present-day prosecution in which the acts are sought to be introduced. Rather, the statute is implicated when a defendant commits a SORA-listed offense against any minor. Therefore, it applies to past, uncharged sexual acts committed against the victim of the crime for which a defendant is currently being prosecuted. "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)." -2-

Pattison, 276 Mich App at 618-619. The statutory provision permits the introduction of evidence that previously would have been inadmissible as "it allows what may have been categorized as propensity evidence to be admitted[.]" Id. at 619. MCL 768.27a "reflects the Legislature's policy decision that, in certain cases, juries should have the opportunity to weigh a defendant's behavioral history and view the case's facts in the larger context that the defendant's background affords." Id. at 620. Having a complete picture of a defendant's history can shed light on the likelihood that a given crime was committed. Id. MCL 768.27a(1) expressly requires the evidence to be relevant, and the panel in Pattison also stated that MRE 403 needs to be considered. Pattison, 276 Mich App at 621. Under MRE 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." Here, we hold that the evidence was relevant to show that the charged offense did not simply happen in a vacuum absent any history of contact, where the victim and defendant had been living together for quite some time before the date of the charged offense. That the evidence might have shown defendant's propensity to commit sexual acts against minors does not make the evidence inadmissible under MCL 768.27a. Indeed, propensity constitutes another acceptable and relevant purpose to have used the other-acts evidence. Additionally, the victim testified that she came forward and told her mother about the molestation because she feared for her five-year-old niece, which testimony we conclude was properly admitted for reasons discussed below. Given the young age of the niece, the victim's testimony of sexual contact beginning at age eight, and not solely at age 13, lent support and credence to the victim's claim that she first told her mother about the abuse because of concern for her niece. Absent the otheracts evidence, the jury could realistically have been left with the impression that defendant's sexual interests and actions were directed at teenage girls and not younger children, which in turn could have raised doubts about the victim's claim that she came forward out of concern for her five-year-old niece. Further, we find that the probative value of the other-acts evidence was not substantially outweighed by the danger of unfair prejudice, MRE 403. The focus behind MRE 403 is whether the evidence was unfairly prejudicial, considering that evidence introduced by a prosecutor, and all relevant evidence for that matter, is inherently prejudicial to some extent. People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). Unfair prejudice refers to the tendency of evidence to adversely affect a defendant's position by injecting extraneous considerations such as jury bias, sympathy, anger, or shock. Id. at 75-76; People v Goree, 132 Mich App 693, 702-703; 349 NW2d 220 (1984). While the other-acts evidence at issue here was prejudicial, we find that it was not unfairly prejudicial, nor was its probative value substantially outweighed by the danger of unfair prejudice. As stated by our Supreme Court in DerMartzek, 390 Mich at 413, "it has been held that the probative value outweighs the disadvantage where the crime charged is a sexual offense and the other acts tend to show similar familiarity between the defendant and the person with whom he allegedly committed the charged offense." "`Such previous facts are not only admissible and relevant, but they constitute a necessary part of such principal transaction

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