People of Michigan v. Jerry James Hoskins

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, FOR PUBLICATION
June 23, 2022
Plaintiff-Appellee, 9:30 a.m.
v No. 359103
Livingston Circuit Court
JERRY JAMES HOSKINS, LC No. 19-025866-FH
Defendant-Appellant.
Before: GLEICHER, C.J., and SAWYER and GARRETT, JJ.
GARRETT, J.
In this criminal sexual conduct (CSC) case, Jerry James Hoskins stands charged with two
counts of first-degree CSC (CSC-I), MCL 750.520b(1)(a), two counts of second-degree CSC
(CSC-II), MCL 750.520c(1)(a), and two counts of accosting a child for immoral purposes, MCL
750.145a. At a forthcoming trial, the prosecution seeks to introduce evidence of prior criminal
acts by Hoskins from a 2002 case. In that case, a jury convicted Hoskins of assault with intent to
commit CSC, MCL 750.520g(1), and acquitted him of two counts of third-degree CSC (CSC-III),
MCL 750.520d. Hoskins moved to exclude evidence of the acts charged in the 2002 case, but the
trial court denied the motion. We affirm the trial court’s order with respect to evidence of
Hoskins’s prior CSC conviction, but reverse and remand with respect to evidence of his acquitted
charges.
I. BACKGROUND
A. CURRENT CHARGES
This case involves allegations that Hoskins sexually abused his stepdaughter, AB, when
she was 11 years old or younger. At the preliminary examination, AB testified about several
alleged instances of CSC. AB testified that, on one occasion, Hoskins asked her to go downstairs
and place her clothes in a dryer. AB did so, and Hoskins allegedly asked AB to pull down her
pants and underwear. AB testified that she pulled down her pants and her underwear and that
Hoskins touched the outside of her vagina with his fingers. AB did not think that Hoskins placed
his fingers inside her vagina. AB testified that Hoskins pulled down his pants, took her hand, and
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placed it on his penis. AB testified that she later saw “white stuff” come out of Hoskins’s penis
and onto the floor.
AB testified that, on another occasion, Hoskins asked her if she wanted him to lick her
vagina; AB did not reply, and Hoskins became angry and left. AB testified that, on a different
occasion, Hoskins again asked her to pull down her pants and underwear, which she did. Hoskins
placed AB on top of a counter, but AB did not remember what happened afterward. AB added
that, on still another occasion, Hoskins came into her room, asked her to pull her pants down,
which she did, and then placed her on the bed. AB did not remember what happened afterward.
Given the lack of evidence of penetration, the district court bound Hoskins over on charges
of CSC-II and accosting a child for an immoral purpose, and it dismissed the charges of CSC-I.
However, the circuit court subsequently remanded the case to the district court for a continuation
of the preliminary examination. At the continued preliminary examination, another witness,
Brendan Wilson Yeomans, testified that, while in jail, he had overheard Hoskins discuss
penetrating AB’s vagina with his mouth and fingers. In light of this new evidence, and despite
Yeomans’s credibility issues,1 the trial court bound Hoskins over on two counts of CSC-I.
B. INTENT TO INTRODUCE EVIDENCE FROM 2002 CASE
Soon after, the prosecution provided notice of intent to introduce evidence of Hoskins’s
commission of other listed offenses against minors under MCL 768.27a. Specifically, the
prosecution sought to admit testimony from a victim, ED, who was sexually abused by Hoskins in
2002.2 At a 2002 trial, a jury convicted Hoskins of assault with intent to commit CSC and acquitted
him of two counts of CSC-III. According to police reports, ED was 13 years old, and Hoskins was
18 years old, at the time of the incidents that led to Hoskins’s trial and conviction. ED and Hoskins
were unrelated but had purportedly been in a dating relationship. ED alleged that on one occasion,
Hoskins locked her in his bedroom and asked ED to suck his penis. She refused, and Hoskins
proceeded to masturbate and ejaculate on her. In a second incident, ED stated that Hoskins took
her to the laundry room in his house, placed her on a table, started masturbating, and told her to
take her pants off. ED refused, and Hoskins forcefully took off her pants and underwear and
engaged in vaginal intercourse without her consent. Hoskins then ejaculated onto her.
1
Yeomans testified that he knew Hoskins and AB’s mother (Hoskins’s ex-wife) because the
mother of Yeomans’s children was friends with AB’s mother. Yeomans also testified that he saw
AB’s mother a few months after allegedly overhearing Hoskins’s statements in jail, and Yeomans
disclosed to AB’s mother what he heard.
2
The notice of intent also included the judgment of sentence for a 2001 conviction by guilty plea
to assault with intent to commit CSC involving sexual penetration. Hoskins did not discuss this
conviction in his motion to exclude other-acts evidence, and it does not appear that the trial court
addressed whether this evidence was admissible when it provided its reasons for denying
Hoskins’s motion on the record. Accordingly, the admissibility of this 2001 conviction is not
properly before us on appeal, and we decline to address it.
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Hoskins moved to exclude evidence of these incidents involving ED, arguing that their
introduction at trial would be unfairly prejudicial and would outweigh any probative value of the
evidence. The trial court disagreed, finding that “the similarity between the two acts as well as the
need for the evidence beyond the victim’s testimony would outweigh the amount of time passed
between the previous conviction and the instant matter.” This interlocutory appeal followed by
leave granted.3
II. ANALYSIS
A. STANDARD OF REVIEW
Hoskins argues that the trial court erred by denying his motion to exclude the proposed
other-acts evidence. We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010). A court abuses its
discretion when its decision is “outside the range of principled outcomes.” People v Musser, 494
Mich 337, 348; 835 NW2d 319 (2013). “[A] trial court’s decision on a close evidentiary question
ordinarily cannot be an abuse of discretion.” People v Hine, 467 Mich 242, 250; 650 NW2d 659
(2002). 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 McDaniel,
469 Mich 409, 412; 670 NW2d 659 (2003). Likewise, we review the proper interpretation and
application of statutes de novo. People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017). De
novo review means that “we review the issues independently, with no required deference to the
trial court.” People v Beck, 504 Mich 605, 618; 939 NW2d 213 (2019).
B. CONTROLLING LAW
MCL 768.27a allows evidence of other acts to be admitted in a criminal case involving
certain sex offenses:
(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.
3
People v Hoskins, unpublished order of the Court of Appeals, entered January 26, 2022 (Docket
No. 359103).
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(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.
The parties do not dispute that both the 2002 case and the present case involve listed offenses and
that AB and ED were both minors.
In People v Watkins, 491 Mich 450, 468, 477; 818 NW2d 296 (2012), our Supreme Court
held that MCL 768.27a irreconcilably conflicted with, and superseded, MRE 404(b), 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.” By contrast, MCL 768.27a
allows for the introduction of certain other-acts evidence “for its bearing on any matter to which it
is relevant,” which includes evidence of a defendant’s propensity to commit a crime. Watkins, 491
Mich at 470. Therefore, unlike MRE 404(b), the purpose of MCL 768.27a “is to allow juries to
consider evidence of other acts the defendant committed to show the defendant’s character and
propensity to commit the charged crime.” Id. at 486.
Further, Watkins held that evidence admissible under MCL 768.27a may still be excluded
under MRE 403. Id. at 481. MRE 403 allows a trial court to exclude relevant 4 evidence “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.” Given that MCL 768.27a expressly authorizes propensity
evidence, courts applying MRE 403 to evidence admissible under MCL 768.27a “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.” Id. at 487.
Our Supreme Court provided an illustrative, nonexhaustive list of considerations that may lead a
trial court to exclude evidence 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
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. at 487-488.]
When conducting this analysis, trial courts should apply the balancing test of MRE 403 to “each
separate piece of evidence offered under MCL 768.27a.” Id. at 489.
4
Hoskins does not challenge the relevance of the other-acts evidence under MRE 401, and any
such challenge would be futile.
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C. APPLICATION OF WATKINS AND MRE 403
Hoskins initially argues that the trial court erred by failing to analyze each of the Watkins
factors on the record and to conduct an MRE 403 analysis. There is no indication from Watkins
that these factors must be discussed on the record. See Watkins, 491 Mich at 489 (“The foregoing
considerations may be used by trial courts to determine whether the probative value of evidence
admissible under MCL 768.27a . . . is nonetheless outweighed by the danger of unfair prejudice.”)
(emphasis added). In fact, our Supreme Court described the Watkins factors as “illustrative rather
than exhaustive.” Id. at 488. While the factors are important tools that may “inform a court’s
decision” to admit or exclude other-acts evidence, they do not supersede the standard plainly
provided in MRE 403 itself. People v Uribe, 499 Mich 921, 922; 878 NW2d 474 (2016). In any
event, the trial court cited Watkins on the record, stated that it had considered the Watkins factors,
and referenced a number of these factors in support of its decision to deny Hoskins’s motion. The
trial court also cited MRE 403 and discussed its application to evidence admissible under MCL
768.27a. In sum, Hoskins has failed to persuasively show that the trial court’s analysis was legally
deficient.
Next, Hoskins argues that the trial court abused its discretion by ruling that the probative
value of the 2002 other-acts evidence was not substantially outweighed by the danger of unfair
prejudice under MRE 403. In accordance with our duty to review each piece of evidence offered
under MCL 768.27a, we will separately analyze the admissibility of the evidence of Hoskins’s
2002 conviction of assault with intent to commit CSC and the evidence underlying Hoskins’s
acquitted charges for CSC-III. See Watkins, 491 Mich at 489.5
1. 2002 CONVICTION
We begin with Hoskin’s 2002 conviction of assault with intent to commit CSC involving
sexual penetration. The elements of this crime are (1) an assault, meaning an attempt to commit a
battery or an unlawful act that places another person in reasonable apprehension of an imminent
battery, and (2) an intent to commit CSC involving sexual penetration. People v Nickens, 470
Mich 622, 627-628; 685 NW2d 657 (2004). Therefore, the other-acts evidence underlying the
2002 conviction includes ED’s proposed testimony that Hoskins asked ED to perform oral sex on
him, she refused, and Hoskins ejaculated on her.
Turning to the Watkins factors, the first consideration is “the dissimilarity between the
other acts and the charged crime.” Watkins, 491 Mich at 487. Hoskins argues that there is a
significant set of differences between the charged crime and the prior acts. Hoskins focuses first
on the fact that he and ED were purportedly in a dating relationship, whereas AB is his
stepdaughter. We do not find this distinction persuasive. In both circumstances, Hoskins was the
adult in a domestic-type relationship with the minor victim. Therefore, we do not agree with
Hoskins’s contention that these were “significantly different context[s].” Hoskins also emphasizes
that the age gap between himself and AB is far greater than it was with ED. In the present case,
5
Because the parties agree that MCL 768.27a properly applies to the proposed other-acts evidence,
our analysis focuses only on whether the evidence should have been excluded under MRE 403.
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there was approximately a 25-year age gap between Hoskins and AB, whereas the gap was roughly
5 years with the 2002 victim. We find this dissimilarity more pertinent, particularly when
combined with the fact that Hoskins was 18 years old at the time of the 2002 offense and in his
thirties during the charged crimes. However, the conduct supporting the 2002 conviction and the
allegations in the present case also share factual similarities regarding how Hoskins perpetrated
the sexual abuse. In both cases, Hoskins’s criminal conduct includes allegations that he isolated
the minor victim, requested to engage in sexual contact with the victim, and masturbated and
ejaculated in front of the victim. Overall, considering that the other-acts evidence underlying the
2002 conviction contains prominent similarities and dissimilarities with the charged crimes, this
factor neither cuts for or against admission of the evidence.
Second, we consider “the temporal proximity of the other acts to the charged crime.”
Watkins, 491 Mich at 487. Although MCL 768.27a does not expressly impose a temporal
limitation on the admissibility of other-acts evidence, the lack of any such limitation “does not
preclude a court from considering under MRE 403 how long ago the other act occurred.” Id.
at 488. Here, the temporal divide weighs in favor of exclusion of the other-acts evidence. The
2002 conviction involved acts occurring in 2002, and the present charges involve acts taking place
as recently as 2019.6 Under MRE 403, evidence of prior acts committed 17 years before many of
the charged offenses presents a risk that the jury may give undue weight to the other-acts evidence
and overlook reasonable doubts stemming from the evidence presented in support of the current
charges. See People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008). Additionally, while
the propensity inference drawn from the 2002 conviction weighs in favor of the evidence’s
probative value, the strength of the propensity inference is weakened where a very long period of
time has passed between the prior acts and the current charges.
In People v Solloway, 316 Mich App 174, 195-196; 891 NW2d 255 (2016), we upheld the
admission of other-acts evidence under MCL 768.27a that had occurred approximately 12 years
before the charged offense. “While the acts occurred some years apart, given how similar the acts
are, the temporal divide between their occurrences, standing alone, does not preclude the
evidence’s admission.” Id. at 195. Our reasoning in Solloway suggests that a lengthy temporal
proximity supports exclusion of other-acts evidence where the other acts and the charged crime
lack similarities. In this case, some similarities between the 2002 assault with intent to commit
CSC and the charged offenses exist, as previously noted, but they are far less stark than in
Solloway. There, the victims were close in age when the defendant sexually assaulted them, the
defendant was related to both of them, and the defendant abused them when each victim was living
with him. Solloway, 316 Mich App at 194. Additionally, “both the prior act and the charged
6
The amended felony information includes one count of CSC-I and two counts of CSC-II with
offense dates of “on or about” May 20, 2019. The information also includes one count of CSC-I
and two counts of accosting a child for immoral purposes with offense dates of “on or about 2014-
2018.” The charges with the 2014-2018 dates involve acts alleged to have occurred at a house in
Howell, whereas the 2019 offenses allegedly occurred in Handy Township. 2014 appears to be
the year when Hoskins began living with AB and her family, although there was no testimony
presented that the prior acts began that far back. Even accepting this timeframe, the temporal gap
between the other-acts evidence and the current charges would range from 12 to 17 years.
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offense involved defendant entering the victim’s bedroom in the middle of the night, climbing on
top of [the victim], and engaging in some sort of inappropriate touching.” Id. at 194-195. The
similarities present between the other-acts evidence and the charges in the current case are not
factually alike to the extent presented in Solloway. Given that the temporal gap between Hoskins’s
prior acts and the charged offenses is up to five years longer than in Solloway, and the similarities
between the offenses less evident than in Solloway, this factor strongly supports exclusion.
Third, looking at the infrequency of the other acts, ED alleged two instances in which
Hoskins asked ED to engage in sexual acts, ED refused, and Hoskins masturbated and ejaculated
onto her. Given that this was not a one-time occurrence, we cannot conclude that these other acts
occurred so infrequently as to support exclusion of the evidence. See Solloway, 316 Mich App
at 195.
Fourth, the presence of intervening acts does not support exclusion of the other-acts
evidence. Hoskins spent several years in prison following the 2002 conviction and appears to have
been released in 2010.7 To the extent that Hoskins’s release from prison is considered an
“intervening act,” it does not support exclusion, but demonstrates that a period of time passed
where Hoskins’s ability to sexually abuse minor victims was limited.
Fifth, we consider “the lack of reliability of the evidence supporting the occurrence of the
other acts.” Watkins, 491 Mich at 487. In Watkins, 491 Mich at 489, our Supreme Court stated
that whether the other act resulted in a conviction was a relevant factor under MRE 403. “That
MCL 768.27a permits the introduction of other-acts evidence that did not result in a conviction
does not mean that evidence that did not result in a conviction must be admitted or that a court
may not consider whether charges were filed or a conviction rendered when weighing the evidence
under MRE 403.” Id. With respect to the evidence of assault with intent to commit CSC, a jury
convicted Hoskins of this offense at his 2002 trial. The fact of this conviction supports a finding
that the evidence is reliable. See People v Duenaz, 306 Mich App 85, 101; 854 NW2d 531 (2014)
(“[B]ecause there was a conviction, there is no lack of reliability regarding the evidence.”).
Therefore, we conclude that this factor supports admission.
Finally, we consider “the lack of need for evidence beyond the complainant’s and the
defendant’s testimony.” Watkins, 491 Mich at 487-488. In the present case, the evidence
supporting the allegations against Hoskins comes primarily from AB’s testimony. The prosecution
also presented evidence from Yeomans, a witness who, despite having credibility challenges, is
expected to provide testimony in support of the CSC-I charges. The trial court found that the need
for evidence beyond AB’s testimony weighed in favor of admission of the other-acts evidence.
Hoskins argues that AB is fully capable of testifying to her allegations in the present case
and that there is no need to supplement her testimony with ED’s testimony from the 2002 case.
On the one hand, the record from the preliminary examination provides some indication that there
7
A presentence investigation report indicates that Hoskins was discharged from his sentence for
the 2002 assault with intent to commit CSC conviction on September 16, 2010.
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is a need for additional evidence beyond AB’s testimony.8 AB testified that she was nervous and
began crying on the witness stand on at least two occasions. Further, after testifying about two
separate incidents where Hoskins asked her to pull down her pants and underwear, she did so, and
Hoskins placed her on a surface, AB stated that she did not remember what else happened. This
testimony presents three reasonable possibilities: either “the passage of time had faded the victim’s
memory regarding some details,” Duenaz, 306 Mich App at 100, AB withheld information because
she was nervous to testify in front of her abuser, or AB did not remember any additional
information because nothing else occurred. While Yeomans’s testimony tends to support AB’s
allegations, it is reasonable to conclude given his credibility challenges, and the lack of physical
evidence and eyewitness testimony, that there is a need for ED’s testimony about the 2002
conviction. ED’s testimony would support AB’s credibility and the truth of her allegations. See
Watkins, 491 Mich at 492-493 n 92. Therefore, this factor weighs in favor of admission.
In sum, the Watkins factors support admission of the evidence of Hoskins’s 2002
conviction of assault with intent to commit CSC, although the temporal proximity from the present
case weighs in favor of exclusion. Giving due weight to the propensity inference, evidence of
Hoskins’s 2002 conviction and ED’s testimony about the underlying acts would tend to make AB’s
allegations “more believable by showing propensity to commit the charged offense.” See Duenaz,
306 Mich App at 101. ED’s testimony would also be probative of the issue of Hoskins’s intent to
commit the sexual assaults in this case. Therefore, the trial court did not abuse its discretion by
finding that the probative value of this other-acts evidence was not substantially outweighed by
the risk that this evidence would unfairly prejudice Hoskins. We cannot conclude that the trial
court’s resolution of this close evidentiary question was outside the range of principled outcomes.
See Hine, 467 Mich at 250. Accordingly, we affirm the trial court’s order with respect to the
admission of evidence of the 2002 conviction of assault with intent to commit CSC.
2. 2002 ACQUITTED ACTS
We turn next to the trial court’s decision to admit evidence of the CSC-III charges that
Hoskins was acquitted of in 2002. Relevant to this analysis, CSC-III involves “sexual penetration
with another person” when the other person is “at least 13 years of age and under 16 years of age,”
MCL 750.520d(1)(a), or when “[f]orce or coercion is used to accomplish the sexual penetration,”
MCL 750.520d(1)(b). The 2002 jury acquitted Hoskins of two counts of CSC-III, one for sexual
penetration involving a minor between 13 and 15 years old, and another for sexual penetration
using force or coercion. The evidence supporting these CSC-III charges stemmed from ED’s
allegation that Hoskins once forcefully took off her pants and underwear and engaged in vaginal
intercourse against her will. Because the evidence supporting each count of CSC-III involves a
single incident, we address this other-acts evidence together.
8
In this context, the “need” for additional evidence asks whether the other-acts evidence is
important to the prosecution’s case, particularly where there is no physical evidence of the crime
or the victim’s memory has faded. See Duenaz, 306 Mich App at 100. However, it remains true
that the testimony of a victim in a CSC case can itself be sufficient to obtain a conviction. See
MCL 750.520h (“The testimony of a victim need not be corroborated in prosecutions under
sections 520b to 520g.”).
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First, our analysis of the Watkins factors for the acquitted acts mostly mirrors the analysis
for the prior conviction. Once again, several factors weigh in favor of admission, while the
temporal proximity factor strongly supports exclusion. However, the Watkins analysis for the
acquitted other-acts evidence contains one prominent difference—the reliability of the evidence.
Regarding this factor, we reiterate that a court may consider “whether charges were filed or a
conviction rendered when weighing the evidence under MRE 403.” Watkins, 491 Mich at 489.
Here, the trial court did not state on the record whether it considered the fact of the acquittal on
the CSC-III charges from the 2002 trial. In any event, this factor favors exclusion of the evidence.
Other-acts evidence that resulted in an acquittal is not necessarily unreliable. However, it follows
that if evidence of Hoskins’s assault with intent to commit CSC conviction is reliable, then, at a
minimum, evidence of the offenses for which he was acquitted is less reliable. See Duenaz, 306
Mich App at 101.9 These reliability concerns present a risk of unfair prejudice that supports
exclusion of the acquitted conduct.
The Watkins factors are a nonexhaustive guide, and ultimately the balancing standard
provided by MRE 403 must govern our review. See Uribe, 499 Mich at 922. With further
consideration of MRE 403, we conclude that the admission of acquitted conduct here presents a
danger of unfair prejudice that substantially outweighs the evidence’s probative value. The trial
court abused its discretion to the extent that it denied Hoskins’s motion to exclude evidence of the
CSC-III offense.
As an initial matter, we recognize that evidence of acquitted conduct is not inadmissible as
a matter of law when introduced as other-acts evidence in a subsequent trial for a different offense.
See People v Oliphant, 399 Mich 472, 499; 250 NW2d 443 (1976) (holding that introduction of
acquitted conduct as other-acts evidence did not violate double jeopardy). Michigan courts have
also allowed the introduction of other-acts evidence involving an acquittal under MRE 404(b).
See, e.g., People v Gibson, 219 Mich App 530, 533; 557 NW2d 141 (1996); People v Bolden, 98
Mich App 452, 458-459; 296 NW2d 613 (1980). And MCL 768.27a does not, by its plain
language, preclude the admission of other-acts evidence where the defendant was acquitted of
charges involving those acts. See Watkins, 491 Mich at 489. In other words, no categorical rule
of exclusion or admission applies. Rather, as with other evidence offered under MCL 768.27a,
the admissibility of evidence of a prior acquittal depends on the application of MRE 403.
9
We do not go so far as to agree with Hoskins’s contention that, by acquitting him on two CSC-
III charges, the 2002 jury “determined that the 2002 victim was not reliable as to her allegations
of sexual penetration.” While it may be reasonable to believe that the 2002 jury disbelieved ED’s
allegations of sexual penetration, we cannot speculate regarding the jury’s conclusions underlying
its verdict. See People v Garcia, 448 Mich 442, 460-461 n 25; 531 NW2d 683 (1995) (opinion by
RILEY, J.). All we can confidently discern from the jury’s verdict in the 2002 case is the
prosecution did not prove beyond a reasonable doubt that Hoskins committed CSC-III. See People
v Oliphant, 399 Mich 472, 498 n 14; 250 NW2d 443 (1976) (explaining that an acquittal does not
necessarily establish the defendant’s innocence but only shows that the prosecution failed to prove
the charge beyond a reasonable doubt).
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Applying MRE 403 to these facts, the trial court’s ruling to allow the prosecution to
introduce evidence of Hoskins’s acquitted acts was an abuse of discretion. The introduction of
acquitted conduct under these circumstances presents a particularly unique risk of unfair prejudice,
one which substantially outweighs the evidence’s probative value. “Unfair prejudice may exist
where there is a danger that the evidence will be given undue or preemptive weight by the jury or
where it would be inequitable to allow use of the evidence.” Blackston, 481 Mich at 462. This
case presents an ideal example where it would be “inequitable” to allow the prosecution to
introduce evidence that Hoskins committed CSC-III in 2002 when he was acquitted of that offense.
First, an individual who has been acquitted of a crime enjoys a number of constitutional
protections that impact our calculus of unfair prejudice under MRE 403. Due process guarantees
that such an individual is presumed innocent as to any acquitted conduct. See Beck, 504 Mich
at 620-621. Due process also prohibits a court from subjecting a defendant to an increased
sentence based on acquitted conduct. Id. at 629. Nor may a defendant ever be retried for the
acquitted offense. People v Szalma, 487 Mich 708, 717; 790 NW2d 662 (2010). Consequently,
unlike other-acts evidence of a conviction, where a jury has already found the defendant guilty
beyond a reasonable doubt, or evidence of uncharged acts, where a fact-finder has made no
determination, evidence of an acquittal introduced at a subsequent trial raises significant fairness
concerns. A jury considering other-acts evidence of acquitted conduct will make its own
independent determination of whether the defendant committed the acquitted acts, despite a
previous jury’s unanimous verdict finding that defendant not guilty.
Second, other-acts evidence of acquitted conduct is unfairly prejudicial because the
accused must again defend against allegations of which he has already been acquitted. See
Dowling v United States, 493 US 342, 362; 110 S Ct 668; 107 L Ed 2d 708 (1990) (BRENNAN, J.,
dissenting) (“ . . . [I]ntroduction of this type of evidence requires the defendant to mount a second
defense to an offense for which he has been acquitted.”). Not only is defending against a 20-year-
old acquittal more difficult, but placing this burden on Hoskins risks prejudicing his ability to
present a full and adequate defense against the charges that he currently faces. Hoskins will be
unfairly required to “spend time and money relitigating matters considered at the first trial.” See
Dowling, 493 US at 352.10 Requiring Hoskins to defend against this decades-old acquittal from a
case involving a different victim is an inequitable outcome that MRE 403 is designed to prevent.
Perhaps most importantly, the introduction of other-acts evidence also presents the danger
that a jury will convict the defendant solely because it believes he committed other criminal
conduct, a possibility that is particularly egregious when the defendant has been acquitted of these
other acts.11 “Whenever a defendant is forced to relitigate the facts underlying a prior offense for
which he has been acquitted, there is a risk that the jury erroneously will decide that he is guilty
of that offense.” Dowling, 493 US at 361 (BRENNAN, J., dissenting). As a result, “the fact that the
10
Although these concerns also apply to evidence of the 2002 conviction, the unfair prejudice in
that circumstance is lessened because the defendant is no longer presumed innocent of that crime.
11
While a limiting instruction is a tool in the trial court’s arsenal to prevent the jury from misusing
other-acts evidence, see Watkins, 491 Mich at 490, we believe that the risk of unfair prejudice from
admission of this acquitted conduct is too great for any instruction to mitigate its effect.
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defendant is forced to relitigate his participation in a prior criminal offense under a low standard
of proof combined with the inherently prejudicial nature of such evidence increases the risk that
the jury erroneously will convict the defendant of the presently charged offense.” Id. at 362
(BRENNAN, J., dissenting). The danger of unfair prejudice is plain when a jury is allowed to
consider evidence that resulted in an acquittal to convict the defendant of a separate offense. Here,
when that evidence is overly prejudicial—in that it substantially outweighs the evidence’s
probative value—exclusion must follow.
In sum, although the evidence of this acquitted conduct has some probative value—
particularly to demonstrate Hoskins’s propensity to commit the charged offenses—the danger of
unfair prejudice from admitting this acquitted conduct is extremely high. Introducing this evidence
would be inequitable because Hoskins is constitutionally protected from further criminal liability
on the acquitted charges, but would have to defend against them in this case. It would also unfairly
prejudice Hoskins by burdening his defense with the relitigation of facts which already resulted in
an acquittal, and by presenting an unacceptable risk that Hoskins will be erroneously convicted by
a jury’s misuse of the other-acts evidence. When combined with the lengthy temporal proximity
and reliability concerns illustrated by the Watkins factors, the risk of unfair prejudice from
admission of these acquitted acts substantially outweighs the evidence’s probative value. The trial
court abused its discretion by concluding otherwise.
III. CONCLUSION
The trial court did not err by denying Hoskins’s motion to exclude as to evidence of his
2002 conviction of assault with intent to commit CSC. However, the trial court abused its
discretion by denying the motion to exclude as to evidence of Hoskins’s acquitted conduct from
the 2002 trial. If this matter proceeds to trial, the prosecution may admit evidence supporting the
2002 conviction, but may not introduce the evidence of sexual penetration relating to the acquitted
CSC-III charges. We trust that the trial court will act faithfully and judiciously to ensure that the
other-acts evidence is properly admitted and excluded in accordance with our decision.
Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Kristina Robinson Garrett
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
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