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In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20150512_C321012_50_321012.OPN.PDF">People v. Uribe</a>, No. 321012, the Michigan Court of Appeals held that the trial court misapplied MCL 768.27a, which allows the prosecutor to present evidence that the defendant committed other sex crimes against children in a child molestation prosecution, when it excluded evidence of the defendant’s other acts of child molestation.  In this case, the Court of Appeals held that the evidence was not probative of a “listed offense” under the statute and, further, it was more probative than prejudical under MCE 403. 
  
The defendant was charged with five counts of criminal sexual conduct stemming from the molestation of his daughter’s half-sister. The prosecutor sought to introduce evidence that the defendant had also molested his daughter, but the trial court held that even if it gave the prosecutor the “benefit of the doubt” as to whether the conduct constituted a listed offense under MCL 768.27a, the evidence would be excluded because the sexual conduct was dissimilar to the charged sexual conduct. 
  
The court reasoned that MCL 768.27a was specifically intended as an exception to the general MRE 404(b) prohibition against evidence tending to show that a defendant has a propensity to commit criminal acts. The court relied on the Michigan Supreme Court’s decision in People v. Watkins, 491 Mich 450 (2012), which noted that prior acts of child molestation may not be excluded under MRE 403 merely because they allow the jury to draw a propensity inference.

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COA: Prior acts of CSC may not be excluded merely because jury may draw propensity inference

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COA: Prior acts of CSC may not be excluded merely because jury may draw propensity inference

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