People of Michigan v. Brandon Martell Jones ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 13, 2023
Plaintiff-Appellant,
v No. 362146
Ingham Circuit Court
BRANDON MARTELL JONES, LC No. 19-000351-FC
Defendant-Appellee.
Before: GADOLA, P.J., and PATEL and MALDONADO, JJ.
PER CURIAM.
Defendant is charged with first-degree criminal sexual conduct (CSC-I), MCL
750.520b(1)(f) (coerced or forced sexual penetration causing personal injury to victim). The
prosecution appeals by leave granted1 the trial court’s order granting defendant’s motion to exclude
other-acts evidence noticed by the prosecution under MCL 768.27b. Finding that the court’s
exclusion of the subsequent other-acts evidence under MRE 403 was not outside the range of
principled outcomes, we affirm.
I. BACKGROUND
Defendant’s charges arise out of an alleged sexual assault against the victim, CC, at a
February 2019 party in a third person’s home.2 Defendant and CC met for the first time at the
party. CC purchased cocaine from defendant during the party. Defendant allegedly lured CC into
a secluded back room of the house under the guise of giving her more cocaine. Once in the room,
defendant allegedly forcibly removed CC’s pants and sexually penetrated her vagina with his
penis. CC allegedly fought defendant and eventually escaped the room. CC immediately told a
friend at the party about the sexual assault. When defendant discovered this, he allegedly took CC
1
People v Jones, unpublished order of the Court of Appeals, entered December 13, 2022 (Docket
No. 362146).
2
Because defendant waived arraignment and preliminary examination, the available factual record
is limited.
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back into the secluded room, physically assaulted her, and threatened to kill her if she reported the
sexual assault. Defendant does not dispute that he went into the room with CC, but he contends
that they engaged in consensual sex.
In March 2022, the prosecution notified defendant of its intent to introduce evidence of
other subsequent acts of sexual assault pursuant to MCL 768.27b. The prosecution explained that
defendant stood charged with eight counts of CSC-I and other crimes in a separate case involving
JW, who alleged that defendant sexually assaulted her in January 2021. The prosecution intended
to introduce JW’s testimony at the trial for defendant’s assault of CC. It was anticipated that JW
would testify that she had a two-week dating relationship with defendant and, over the course of
several days, he held her captive in her own home and forcibly sexually penetrated her orally,
vaginally, and anally multiple times.
Defendant moved to exclude JW’s testimony. The trial court granted the motion and
granted the prosecution a stay pending appeal. We granted the prosecution leave to appeal the
court’s order.
II. ANALYSIS
The prosecution contends that the trial court abused its discretion by excluding evidence
that defendant engaged in other acts of sexual assault. We disagree.
We review evidentiary challenges for an abuse of discretion. People v Thorpe, 504 Mich
230, 252; 934 NW2d 693 (2019). “The decision to admit evidence is within the trial court’s
discretion and will not be disturbed unless that decision falls outside the range of principled
outcomes. A decision on a close evidentiary question ordinarily cannot be an abuse of discretion.”
Id. at 251-252 (cleaned up). “[W]hether a rule or statute precludes admission of evidence is a
preliminary question of law that this Court reviews de novo.” People v Propp, 508 Mich 374, 383;
976 NW2d 1 (2021).
“Generally, under MRE 404(b), evidence of other crimes, wrongs, or acts of an individual
is inadmissible to prove a propensity to commit such acts.” Id. at 384 (cleaned up). But in criminal
actions alleging domestic violence or sexual assault, MCL 768.27b “in certain instances expands
the admissibility of . . . other-acts evidence beyond the scope permitted by MRE 404(b)(1) . . . .”
People v Mack, 493 Mich 1, 2-3; 825 NW2d 541 (2012).3 MCL 768.27b provides in relevant part:
(1) Except as provided in [MCL 768.27b(4)4], in a criminal action in which
the defendant is accused of an offense involving domestic violence or sexual
assault, evidence of the defendant’s commission of other acts of domestic violence
3
Effective March 17, 2019, 2018 PA 372 amended MCL 768.27b to include offenses involving
sexual assault.
4
MCL 768.27b(4) limits the admissibility of other acts that occurred more than 10 years before
the charged offense.
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or sexual assault is admissible for any purpose for which it is relevant, if it is not
otherwise excluded under Michigan rule of evidence 403.
* * *
(3) This section does not limit or preclude the admission or consideration of
evidence under any other statute . . . rule of evidence, or case law.
* * *
(6) As used in this section:
* * *
(c) “Sexual assault” means a listed offense as that term is defined in section
2 of the sex offenders registration act, 1994 PA 295, MCL 28.722.
We have observed that the purpose MCL 768.27b is to give a “complete picture” of the
defendant’s history, which will “shed light on the likelihood that a given crime was committed.”
People v Cameron, 291 Mich App 599, 610; 806 NW2d 371 (2011) (cleaned up). But evidence
of other sexual assaults is not admissible if exclusion is warranted under MRE 403, which provides
that relevant evidence “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice . . . .” “ ‘[U]nfair prejudice’ refers to the tendency of the proposed
evidence to adversely affect the objecting party’s position by injecting considerations extraneous
to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” People v Parrott,
335 Mich App 648, 681; 968 NW2d 548 (2021) (cleaned up). “Evidence is unfairly prejudicial
when there exists a danger that marginally probative evidence will be given undue or preemptive
weight by the jury[,]” People v Musser, 494 Mich 337, 357; 835 NW2d 319 (2013) (cleaned up),
“or where it would be inequitable to allow use of the evidence.” People v Blackston, 481 Mich
451, 462; 751 NW2d 408 (2008).
When analyzing whether MRE 403 precludes the admission of evidence, a court must
balance various factors to determine whether the potential for unfair prejudice substantially
outweighs the probative value, including:
the time required to present the evidence and the possibility of delay, whether the
evidence is needlessly cumulative, how directly the evidence tends to prove the fact
for which it is offered, how essential the fact sought to be proved is to the case, the
potential for confusing or misleading the jury, and whether the fact can be proved
in another manner without as many harmful collateral effects. [Blackston, 481
Mich at 462.]
In People v Watkins, 491 Mich 450, 487-488; 818 NW2d 296 (2012), our Supreme Court
set forth a list of nonexclusive factors that may be considered when assessing whether other-acts
evidence should be excluded under MRE 403:
(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
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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. [Id.]5
These factors may “inform a court’s decision” regarding the admission of other-acts evidence, but
these factors do not supersede MRE 403’s standards. People v Uribe, 499 Mich 921, 922; 878
NW2d 474 (2016).
In this case, the trial court found that there was a significant risk of unfair prejudice and
excluded the evidence under MRE 403. First, there is a stark contrast in circumstances surrounding
CC’s and JW’s allegations against defendant. CC alleged that defendant sexually assaulted her by
forcibly penetrating her vagina at a party within a few hours of meeting her. But JW is expected
to testify that defendant, with whom she was in a dating relationship at the time, allegedly held her
captive in her home and repeatedly sexually assaulted her by penetrating her orally, vaginally, and
anally over the course of several days two years after he allegedly assaulted CC. Further, because
the other alleged acts involving JW have not resulted in a conviction, there are reliability concerns
that present a risk of unfair prejudice that outweighs the evidence’s probative value.6 Finally, the
evidence supporting the current charges is expected to come from CC’s testimony, physical
evidence, and several other witnesses that were present on the day of the assault. There is no need
to supplement this evidence and testimony with JW’s testimony.7 While JW’s testimony may have
some probative value, the probative value is substantially outweighed by the risk of unfair
5
The Watkins Court considered these factors when weighing evidence offered under a sister
statute, MCL 768.27a. We note that our Supreme Court criticized this Court’s reference to Watkins
and our analogy between MCL 768.27a and MCL 768.27b in People v Propp, 330 Mich App 151;
946 NW2d 786 (2019), rev’d in part, vacated in part, 508 Mich 374; 976 NW2d 1 (2021). In
reversing that portion of this Court’s opinion, our Supreme Court concluded, “[G]iven that Watkins
dealt with the application of MCL 768.27a, any reference to MCL 768.27b was only done for the
sake of comparison. In other words, it was unnecessary in Watkins to examine MCL 768.27b in
its entirety.” Propp, 508 Mich at 385, 387. “[B]ecause there is no equivalent to MCL 768.27b(3)
in MCL 768.27a,” the Court determined that “any reliance on Watkins’s interpretation of MCL
768.27a is ultimately irrelevant to the meaning of MCL 768.27b” and whether certain hearsay
statements concerning other acts is admissible. Id. at 385-386. The reasons identified by the Court
in Propp do not affect the application of MRE 403 in the instant case. In fact, this Court on remand
expressly declined to reconsider its analysis regarding the admissibility of the other-acts evidence
under MRE 403. People v Propp, __ Mich App __, __; __ NW2d __ (2022) (Docket No. 343255);
slip op at 2, lv pending.
6
A court may consider “whether charges were filed or a conviction rendered when weighing the
evidence under MRE 403.” Watkins, 491 Mich. at 489.
7
Cf. People v Solloway, 316 Mich App 174, 196; 891 NW2d 255 (2016) (holding that there was
a need for the other-acts evidence beyond the victim’s and the defendant’s testimony because there
were no eyewitnesses to corroborate the victim’s testimony).
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prejudice and thus the trial court did not abuse its discretion by excluding the evidence of
defendant’s alleged assaults on JW under MRE 403.
Affirmed.
/s/ Michael F. Gadola
/s/ Sima G. Patel
/s/ Allie Greenleaf Maldonado
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