Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  May 18, 2016                                                                       Robert P. Young, Jr.,
                                                                                                Chief Justice

                                                                                      Stephen J. Markman
                                                                                           Brian K. Zahra
  151899                                                                           Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                           Joan L. Larsen,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                   Justices
            Plaintiff-Appellee,
  v                                                       SC: 151899
                                                          COA: 321012
                                                          Eaton CC: 13-020404-FC
  ERNESTO EVARISTO URIBE,
           Defendant-Appellant.

  _________________________________________/

         On March 10, 2016, the Court heard oral argument on the application for leave to
  appeal the May 12, 2015 judgment of the Court of Appeals. The application is again
  considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
  VACATE the judgment of the Court of Appeals. The Court of Appeals analysis of
  whether the Eaton Circuit Court reversibly erred by excluding the proposed MCL
  768.27a evidence under MRE 403 is flawed in several central respects. Most notably, the
  Court of Appeals failed to duly acknowledge and consider the following legal principles,
  which this Court articulated in People v Watkins, 491 Mich 450 (2012): (1) the trial
  court’s evidentiary ruling is “review[ed] for an abuse of discretion,” id. at 467; (2) while
  MCL 768.27a prevails over MRE 404(b) as to evidence that falls within the statute’s
  scope, the statute does not mandate the admission of all such evidence, but rather “the
  Legislature necessarily contemplated that evidence admissible under the statute need not
  be considered in all cases and that whether and which evidence would be considered
  would be a matter of judicial discretion, as guided by the [non-MRE 404(b)] rules of
  evidence,” including MRE 403 and the “other ordinary rules of evidence, such as those
  pertaining to hearsay and privilege,” id. at 484-485; and (3) there are “several
  considerations” that may properly inform a court’s decision to exclude such evidence
  under MRE 403, including but not limited to “the dissimilarity between the other acts and
  the charged crime” and “the lack of reliability of the evidence supporting the occurrence
  of the other acts,” id. at 487-488.

        While we vacate the Court of Appeals judgment in full, we nonetheless reach the
  same result: we conclude that the proposed testimony falls within the scope of MCL
                                                                                                               2

768.27a and that the trial court’s exclusion of that evidence, when properly evaluated
under MRE 403 and Watkins, amounted to an abuse of discretion warranting reversal. In
ruling the proposed testimony inadmissible under MRE 403, the trial court, citing the
illustrative list of “considerations” in Watkins, expressed concern regarding apparent
inconsistencies between the proposed testimony and prior statements made by the
witness, and certain dissimilarities between the other act and the charged offenses. The
trial court, however, failed to explain—and this Court, on review of the record, fails to
see—how or why these concerns were sufficient in this case to render the “probative
value [of the proposed testimony] . . . 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,” as required for
exclusion under MRE 403. Id. at 481. The list of “considerations” in Watkins provides a
tool to facilitate, not a standard to supplant, this proper MRE 403 analysis, and it remains
the court’s “responsibility” to carry out such an analysis in determining whether to
exclude MCL 768.27a evidence under that rule. See id. at 489-490. The trial court
misconstrued Watkins and neglected this fundamental responsibility in its evidentiary
analysis; as a result of these legal errors, the court abused its discretion by excluding the
proposed testimony under MRE 403. Accordingly, we REVERSE the trial court’s ruling
to that effect and we REMAND this case to the Eaton Circuit Court for further
proceedings not inconsistent with this order.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 18, 2016
       s0511
                                                                             Clerk
