                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 7, 2016
              Plaintiff-Appellee,

v                                                                  No. 324191
                                                                   Oakland Circuit Court
LARRY DOUGLAS SHELTON,                                             LC No. 2014-248956-FC

              Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and JANSEN and STEPHENS, JJ.

STEPHENS, J. (Concurring)

        I write separately because I disagree with the majority’s analysis as to the admission of
AJ’s statements to her mother disclosing sexual abuse by defendant and to the admission of
testimony regarding mother’s illegal sexual contact with defendant when she was fourteen-years-
old and he was twenty-five-years-old. First, I do not believe that the record supports concluding
that AJ’s statements to her mother were made under the stress and trauma of the sexual assault in
order to constitute excited utterances under MRE 803(2). The record is devoid of any testimony
from the mother as to AJ’s demeanor when she recounted the details of the assault. The
erroneous admission of AJ’s statements to her mother, however, was not outcome determinative.
The statements recounted by her mother were cumulative of statements made to medical
professionals and her cousin and aligned with her trial testimony.

       Second, I believe that the admission of testimony regarding mother’s sexual contact with
defendant when he was twenty-five years of age and she was only fourteen years of age is a
disguised propensity argument under MRE 403. The probative value of this evidence is
outweighed by its prejudicial effect when the jury here was more likely to convict based on
defendant’s prior repulsive conduct with the mother. Further, this particular contact was also
remote in time, having occurred over a decade ago. However, as the majority notes, the
testimony regarding defendant’s assault of the victim’s mother was otherwise admissible under
MCL 768.27a and its admission was not erroneous. I therefore, concur with the majority’s
decision to affirm.



                                                           /s/ Cynthia Diane Stephens




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