                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 17, 2017
               Plaintiff-Appellee,

v                                                                  No. 329606
                                                                   Washtenaw Circuit Court
ROMUALDO FIESTA GABUT,                                             LC No. 14-000027-FC

               Defendant-Appellant.


Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ.



PER CURIAM.

       A jury found defendant guilty of two counts of CSC-I, MCL 750.520b(2)(b) (victim
under 13), and two counts of CSC-II, MCL 750.520c(1)(a) (victim under 13). The trial court
sentenced defendant to serve concurrent sentences of 25 to 50 years prison sentence for each
CSC-I conviction and a 7 to 15 years prison sentence for each CSC-II conviction. For the
reasons set forth in this opinion, we affirm the convictions of defendant.

                                      I. BACKGROUND

        This matter comes to this court following the victim reporting to a counselor that she had
been sexually abused by defendant. Defendant, who is the uncle of the victim in this case, was
accused by the victim of engaging her in sexual acts when the two were either alone in the home
of the victim’s mother or when there was another adult in the house who was incapacitated.1 In
addition to the complaints of the victim in this case, during the course of their investigation,
police learned that another of defendant’s nieces (hereinafter niece) claimed that defendant had
sexually assaulted her, at the same house, when the niece was a minor.

        Pursuant to MCL 768.27a plaintiff sought to admit the testimony of the niece at trial.
Plaintiff asserted that the evidence of past criminal sexual conduct was relevant to whether


1
 Defendant also lived in the home with the victim, the victim’s mother and grandmother. The
grandmother died prior to trial.


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defendant committed the charged offenses against the victim, the victim’s truthfulness,
defendant’s intent, and to rebut any claim of accident or mistake. Additionally plaintiff argued,
“the probative value of the other-acts evidence . . . substantially outweighs any possibility of
unfair prejudice.”

        Conversely, defendant argued that the niece’s testimony should be excluded because it
was not “legally and logically relevant,” as it would not make the victim’s testimony any more or
less truthful. Additionally defendant argued that the “high degree of similarity” between the
allegations would “confuse the jury and prejudice [it] against . . . [d]efendant before [it has] fully
deliberated the evidence in the case at hand”; and defendant was not claiming accident or
mistake. Defendant also argued that the evidence’s probative value was substantially
outweighed by the danger of undue prejudice because its “very limited probative value” was
outweighed by the fact that the allegations were “‘nearly identical’ ” to the allegations in this
case.

        After hearing arguments on the issue of the admissibility of the proffered evidence, the
trial court concluded “that the notice is well-founded and that the evidence is admissible pursuant
to the notice that’s been filed.” Defendant was convicted and sentenced as outlined above. This
appeal then ensued focusing on the trial court’s admission of the testimony of the niece.

                                          II. ANALYSIS

       Defendant’s issue on appeal is whether the trial court abused its discretion in permitting
defendant’s niece to testify pursuant to MCL 768.27a. We review a “trial court’s decision to
admit or exclude evidence . . . for a clear abuse of discretion,” which occurs “when the trial
court’s decision falls outside the range of reasonable and principled outcomes.” People v
Solloway, ___ Mich App ___; ___ NW2d ___ (2016) (Docket No. 324559); slip op at 9.

       MCL 768.27a(1) provides:

       Notwithstanding section 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.2



2
 CSC-I and CSC-II are among the listed offenses. MCL 768.27a(2)(a); MCL 28.722(j), (w)(iv),
and (w)(v).




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        “Evidence is relevant if it has ‘any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.’ ” People v Watkins, 491 Mich 450, 470; 818 NW2d 296 (2012), quoting
MRE 401. Accordingly, under its clear language, MCL 768.27a “permits the admission of
evidence” of “a defendant’s propensity to commit a crime,” notwithstanding MRE 404(b). Id. at
469-471, 475. Additionally, evidence can be relevant if offered to address a victim’s
truthfulness, People v Mann, 288 Mich App 114, 118; 792 NW2d 53 (2010), a victim’s
credibility, Watkins, 491 Mich at 492, a defendant’s modus operandi, id., a defendant’s common
plan, scheme, or system of doing an act, People v Masroor, 313 Mich App 358, 367; 880 NW2d
812 (2015), lv gtd sub nom on other grounds People v Steanhouse, 499 Mich 934; 879 NW2d
252 (2016), a defendant’s opportunity to commit a crime, People v Miller, 165 Mich App 32, 43;
418 NW2d 668 (1987), or a defendant’s motive to commit a crime, id.

        However, evidence offered pursuant to MCL 768.27a must still pass a MRE 403
balancing test. People v Uribe, 499 Mich 921, 922; 878 NW2d 474 (2016); Watkins, 491 Mich
at 481. MRE 403 provides that relevant evidence “may be excluded 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.” Evidence’s probative value can be substantially outweighed by the
danger of unfair prejudice when there “is an undue tendency [that the jury will] decide [the case]
on an improper basis, [such as on] an emotional” basis, People v Vasher, 449 Mich 494, 501;
537 NW2d 168 (1995), or when the evidence is “ ‘marginally probative’ ” and there is “ ‘a
danger that [it] will be given undue or pre-emptive weight,’ ” People v Mills, 450 Mich 61, 75-
76; 537 NW2d 909, mod on other grounds 450 Mich 1212 (1995), quoting Sclafani v Peter S
Cusimano, Inc, 130 Mich App 728, 735-736; 344 NW2d 347 (1983) (alteration added). The
Court in Watkins provided the following illustrative, nonexclusive list of factors that could result
in exclusion 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. . . . [Watkins,
       491 Mich at 487-488.]

        If evidence is admissible for a relevant purpose pursuant to MCL 768.27a and is not
excluded by MRE 403, trial courts can instruct the jury on how to consider the evidence, “to
ensure that the jury properly employs that evidence,” Watkins, 491 Mich at 490, thereby
mitigating any unfair prejudicial impact, People v Pesquera, 244 Mich App 305, 320; 625 NW2d
407 (2001). M Crim JI 20.28a is the model criminal jury instruction for considering MCL
768.27a evidence. Watkins, 491 Mich at 490.

      In this case, defendant was charged with committing two counts of CSC-I and two counts
of CSC-II against a minor, and his niece that defendant committed, at least, CSC-II against her
when she was a minor. Hence, MCL 768.27a is applicable.



                                                 -3-
         Next, we turn our analysis to determine whether the niece’s testimony was not prohibited
by MRE 403. We begin by noting that plaintiff offered the evidence for a relevant purpose.
MCL 768.27a; MRE 401. As previously stated, plaintiff asserted in its notice that the evidence
was relevant to whether defendant committed the offenses against the victim, the victim’s
truthfulness, defendant’s intent, and to rebut any claim of accident or mistake. Defendant
correctly asserted before trial that the victim’s credibility was the primary issue in the case. Due
to the time lag between when the criminal sexual conduct occurred and the time when the victim
reported the abuse to a counselor who then reported it to the police, plaintiff was unable to offer
any physical evidence at trial. Rather, plaintiff offered the testimony of three witnesses—the
victim, Police Officers Stephen Andrews and Eric Roth—and the latter’s testimony stemmed in
significant part from the victim’s version of events. As testified to by the victim, other than
defendant, she was the only eyewitness to the assaults. The niece’s testimony of defendant’s
prior, similar acts committed against her in the same house when she was roughly the same age
as the victim supported the victim’s credibility. Watkins, 491 Mich at 492; Mann, 288 Mich App
at 118. Further, the niece’s testimony suggests that defendant intended to sexually assault the
victim.

       Review of the record also reveals that the niece’s testimony was not substantially more
prejudicial than probative.3 The evidence was not “ ‘marginally probative.’ ” Mills, 450 Mich at
75-76, quoting Sclafani, 130 Mich App at 735-736. Rather, the niece’s testimony was relevant
to a variety of matters at issue, including defendant’s intent, his propensity to commit criminal
sexual conduct against minor relatives, his opportunity to commit the crimes, his modus
operandi, and his use of a common scheme, plan or system of committing criminal sexual
conduct. Significantly, the niece’s testimony was highly relevant to the victim’s credibility (a
consideration bolstered by the tendency of the evidence to make it more probable that the other
matters identified point to defendant’s guilt).

        Additionally, the Watkins factors allow for admission of the evidence. “[T]he acts are not
so dissimilar as to preclude admission of [the niece’s] other-acts evidence.” Solloway, ___ Mich
App at ___; slip op at 10 (applying the Watkins factors). Indeed, both sets of acts are quite
similar. Both the victim and the niece testified that defendant repeatedly touched their vaginal
areas (at least 15 times each) at the victim’s home when they were between five and seven years
old. Defendant concedes that the acts are similar, but argues that the high degree of similarity is
actually prejudicial. This Court rejected such an argument in Solloway, ___ Mich App at ___;
slip op at 10. In Solloway, this Court held that the question is not simply whether the evidence is
prejudicial; rather, the question is whether the evidence is unfairly prejudicial. The prejudicial
nature of the evidence recognized by defendant is a function of its high probative value. Id.,
quoting Watkins, 491 Mich at 487 (“ ‘[W]hen applying MRE 403 to evidence admissible under
MCL 768.27a, courts must weigh the propensity inference in favor of the evidence’s probative
value rather than its prejudicial effect.’ ”)


3
 The trial court is required to make a clear finding on this issue and erred when it failed to do so.
Uribe, 499 Mich at 922. However, we find the trial court’s omission harmless. See Masroor,
313 Mich App at 361, 367-368.


                                                -4-
         Additionally, we find that there exists a “temporal divide” between defendant’s acts
against the niece and the victim, as stressed by defendant. Solloway, ___ Mich App ___; slip op
at 10. The niece testified that defendant abused her sometime around 1995, and the victim
testified that defendant abused her between the time she was six or seven, which would be five to
ten years later. However, “given how similar the acts are, the temporal divide between their
occurrences, standing alone, does not preclude the evidence’s admission. Solloway, ___ Mich
App ___; slip op at 10. Indeed, the passage of time can be viewed as simply a function of when
victims of a similar age were accessible. Further, there is no evidence of “any intervening acts
that would weigh against the admissibility of [the niece’s] other-acts evidence.” Id. at ___ slip
op at 11.

         Additionally, defendant’s other acts were not infrequent. Watkins, 491 Mich at 487-488.
Rather, the niece testified that defendant molested her “[t]wenty or so” times over a “couple
year[ ]” period. See Solloway, ___ Mich App ___; slip op at 10. When addressing “the lack of
reliability of the evidence supporting the occurrence of the other acts,” defendant argues that
there is no evidence supporting the niece’s testimony. Watkins, 491 Mich at 487-488. It is true
that there was no physical evidence or eyewitness testimony offered to corroborate the niece’s
testimony. But as testified to by the niece, the validity of her allegations also constitutes the
classic “he-said-she-said” situation. In this vein, Roth’s testimony that the niece’s testimony in
court was consistent with what she told him before trial supports the reliability of the evidence.

         Finally, defendant argues that the niece’s testimony was not needed because plaintiff
could seek a conviction based on the victim’s testimony alone. Watkins, 491 Mich at 487-488.
It is true that the crimes of CSC-I and CSC-II can be proven simply on the basis of the victim’s
testimony. MCL 750.520h. But defendant made the victim’s credibility the focus of his defense.
For example, defendant argued in closing that she “d[id]n’t like” defendant, and that “kids get
confused” and “make statements that aren’t completely accurate.” And under such a
circumstance, other acts testimony from a second victim is properly admitted to corroborate the
victim’s testimony. See, e.g., Solloway, ___ Mich App ___; Watkins, 491 Mich at 492; slip op at
9-10; Mann, 288 Mich App at 118. That the jury might have convicted based on the victim’s
testimony alone does not mean that the jury necessarily must do so, or that the probability of
conviction based on her testimony alone is so high that the other acts evidence was not needed.

       Additionally, we note that the trial court instructed the jury how to consider the niece’s
testimony when it offered a jury instruction mirroring M Crim JI 20.28a:

                The prosecution has introduced evidence of claimed acts of sexual
       misconduct by the defendant with a minor, [the niece], for which he is not on trial.
       Before you may consider such acts as evidence against the defendant you must
       first find that the defendant actually committed those acts.

              If you find that the defendant did commit those acts you may consider
       them in deciding if the defendant committed the offense for which he is now on
       trial.

              You must not convict the defendant here solely because you think he is
       guilty of other bad conduct. The evidence must convince you beyond a

                                               -5-
       reasonable doubt that the defendant committed the crimes or you must find him
       not guilty.

Because “[i]t is well established that jurors are presumed to follow their instructions,” People v
Graves, 458 Mich 476, 486; 581 NW2d 229 (1998), it can be presumed that this instruction
mitigated the possible unfairly prejudicial effect of the niece’s testimony, Pesquera, 244 Mich
App at 320.4

       Affirmed.



                                                            /s/ Kurtis T. Wilder
                                                            /s/ Stephen L. Borrello
                                                            /s/ Elizabeth L. Gleicher




4
  Plaintiff also argues on appeal that the niece’s testimony was admissible under MRE 404(b).
The trial court admitted the evidence under MCL 768.27a, not MRE 404(b). And MCL 768.27a
allows admission of the evidence notwithstanding MRE 404(b). Watkins, 491 Mich at 469-471,
475; MCL 768.27. Therefore, we need not consider whether the niece’s testimony was
admissible pursuant to MRE 404(b).


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