            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 17, 2019
              Plaintiff-Appellee,

v                                                                  No. 342995
                                                                   Wayne Circuit Court
DARYL FREDERICK CLIFF,                                             LC No. 17-008328-01-FC

              Defendant-Appellant.


Before: METER, P.J., and O’BRIEN and SWARTZLE, JJ.

PER CURIAM.

      Defendant appeals as of right his jury-trial convictions of five counts of criminal sexual
conduct and three counts of child abuse.1 On appeal, defendant argues that the trial court erred
by admitting prior-acts evidence of a back-rubbing incident between defendant and a 15-year old
boy. We affirm.

                                      I. BACKGROUND

       Defendant’s convictions result from his physical and sexual abuse of the minor NR, who
was a friend of defendant’s family. NR testified that his first sexual encounter with defendant
occurred in defendant’s basement when NR was 11 years old. Defendant approached NR from


1
  Specifically, defendant was convicted of one count of first-degree criminal sexual conduct
(CSC-I), MCL 750.520b, two counts of second-degree criminal sexual conduct (CSC-II), MCL
750.520c, one count of third-degree criminal sexual conduct (CSC-III), MCL 750.520d, one
count of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e, two counts of second-
degree child abuse, MCL 750.136b(3), and one count of third-degree child abuse, MCL
750.136b(5). The trial court sentenced defendant to 25 to 40 years of imprisonment for CSC-I,
10 to 15 years of imprisonment for each count of CSC-II, 10 to 15 years of imprisonment for
CSC-III, 5 to 10 years of imprisonment for each count of second-degree child abuse, one to two
years of imprisonment for third-degree child abuse, and 90 days in jail, time served, for CSC-IV.



                                               -1-
behind and began to rub NR’s back and shoulders while NR played a videogame on defendant’s
computer. According to NR, defendant slowly moved his hands down to NR’s genital area and
began to rub NR’s penis with his hand. NR testified that, on another occasion at a local
recreational center, defendant had NR come into the same shower stall as him, forced NR onto
his knees, and placed his penis inside NR’s mouth. A similar incident happened at a laser-tag
center. NR testified that, over time, the frequency of defendant’s sexual abuse increased until
defendant was sexually abusing NR weekly, often by touching NR’s penis and buttocks while in
defendant’s basement.

       In addition to the sexual abuse, NR testified that defendant physically abused him, often
when he would resist defendant’s sexual advances. On one occasion, defendant stabbed NR in
the back with a medical syringe and on several occasions defendant forced NR to cut himself on
the arm with a knife. Frequently, defendant would hit NR on his upper arms and back and kick
NR’s feet when NR rebuffed his advances. According to NR, on regular occasions, defendant
would force him to pretend to be a dog—requiring NR to eat dog food, wear a dog leash, and
follow commands typically given to a canine. Investigators found a syringe in defendant’s
home, but did not locate some of the items related to defendant allegedly forcing NR to pretend
he was a dog.

         According to NR, defendant’s abuse ceased when NR was 13 years old and was twice
hospitalized for attempted suicide. NR first revealed defendant’s abuse to his therapist during
one of these hospitalizations. Eventually, detective Jane Kass and her partner interviewed
defendant at the jail. During the interview, defendant revealed that, some 30 years prior, he had
given a 15-year-old boy a back massage in defendant’s basement. Defendant added that the
encounter “ended badly.” Detective Kass told defendant that she was aware that he had
massaged the boy’s genitals. Defendant did not deny the allegation and in subsequent statements
appeared to admit that he did, in fact, touch the boy’s genitals. For instance, Detective Kass
pressed defendant, asking if he had massaged the boy’s genitals under the boy’s clothes, to
which defendant replied that the boy was fully dressed. Detective Kass asked if defendant was
getting “turned on” by giving the boy a back massage, to which defendant replied, “Maybe, a
little bit.” Detective Kass questioned defendant whether he thought it was a good idea to
massage the boy’s genitals to see if the boy would also become sexually aroused. Defendant
stated, “I’m not sure. . . . I know it was wrong.” Defendant later stated that he had asked the
boy’s family for forgiveness.

        Before trial, the prosecution filed a notice of intent to introduce defendant’s interview
statements at trial under MCL 768.27a. Defendant moved to suppress the statements, arguing
that they were inadmissible under MCL 768.27a and MRE 403. The trial court denied the
motion and the statements were admitted into evidence at trial. As noted previously, defendant
was convicted of several counts of criminal sexual conduct and child abuse. This appeal
followed.

                                        II. ANALYSIS

       On appeal, defendant argues that the trial court erred by admitting his statements
regarding the back-rubbing incident under MCL 768.27a. “The decision whether to admit
evidence is within the trial court’s discretion and will not be disturbed absent an abuse of that

                                               -2-
discretion.” People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). An abuse of
discretion occurs “when the court chooses an outcome that falls outside the range of principled
outcomes.” People v Douglas, 496 Mich 557, 565; 852 NW2d 587 (2014) (internal quotation
marks and citation omitted). Yet, when “the decision involves a preliminary question of law,
which is whether a rule of evidence precludes admissibility, the question is reviewed de novo.”
McDaniel, 469 Mich at 412.

        As a general principle, in a criminal trial, MRE 404(b)(1) precludes the prosecution from
introducing “[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in
order to show action in conformity therewith.”2 Nonetheless, where MCL 768.27a applies, “it
supersedes MRE 404(b).” People v Watkins, 491 Mich 450, 476-477; 818 NW2d 296 (2012).
MCL 768.27a provides, in pertinent part, “[I]n 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.” MCL 768.27a(1). As noted in the statute, evidence introduced under
MCL 768.27a may be considered for any relevant matter, including “the likelihood of a
defendant’s criminal sexual behavior toward other minors.” People v Pattison, 276 Mich App
613, 620; 741 NW2d 558 (2007). Evidence admissible under MCL 768.27a, however, remains
subject to exclusion under MRE 403. Watkins, 491 Mich at 481.

       The prosecution offered the prior back-rubbing incident as evidence of defendant’s prior
criminal sexual conduct with a minor. Indeed, as proffered, defendant’s prior act of massaging
the boy’s genitals constituted the “listed offense” of fourth-degree criminal sexual conduct
against a minor, meaning that it was admissible as propensity evidence under MCL 768.27a.3
See MCL 768.27a(2)(a); MCL 28.722(j), (s)(v). Defendant, however, argues that the evidence
should have been excluded under MRE 403. “Exclusion is required under MRE 403 when the
danger of unfair prejudice substantially outweighs the probative value of the evidence.” People
v Brown, 326 Mich App 185, 192; 926 NW2d879 (2018) (internal citation and quotation marks


2
    MRE 404(b)(1) does provide that evidence of other crimes, wrongs, or acts may be admissible
         for other purposes, such as proof of motive, opportunity, intent, preparation,
         scheme, plan, or system in doing an act, knowledge, identity, or absence of
         mistake or accident when the same is material, whether such other crimes,
         wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct
         at issue in the case.
The prosecution has not argued that the statements were admissible under this second provision
of MRE 404(b)(1).
3
 As mentioned in defendant’s brief, we acknowledge that defendant never said, “I did this” to
questions regarding the prior sexual encounter. The defendant’s absolute admission is not
needed, however, to present the evidence for the jury’s deliberation under MCL 768.27a.
Defendant made several statements appearing to admit that he did, in fact, touch the boy’s
genitals, and any questions regarding whether this conduct occurred were questions the trial
court instructed the jury to resolve before it could use the evidence for propensity purposes.


                                                -3-
omitted). When making its determination under MRE 403, the trial court may consider the
following nonexhaustive list of factors:

       (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.]

        Defendant points out that the prior act occurred some 30 years before the incident at issue
and argues that the prosecution presented insufficient evidence for the jury to reliably conclude
that the prior act did occur. Although we agree that the temporal separation between the prior act
and the acts in this case is a factor weighing in favor of exclusion under MRE 403, we cannot
conclude that the evidence supporting the prior act was unreliable. Indeed, the prior act was
supported by defendant’s own alleged admissions during the police interview and any questions
whether the conduct actually occurred were properly presented for the jury’s determination.
Moreover, the prior act was substantially similar to a portion of the conduct for which defendant
was charged. Both the prior act and the current charges involve a teenage boy and conduct that
occurred, at least partially, in defendant’s basement. In both instances, defendant initiated the
sexual predation by giving the boy a massage and using the massage as a rouse to touch the
boy’s genitals. “[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.” Id. at 487. Given the significant probative value of the prior-acts evidence,
we are unable to conclude that the evidence should have been excluded under MRE 403.

        Finally, although defendant does not challenge the trial court’s instructions regarding the
prior-act evidence in his statement of the questions presented for appeal, defendant argues that
the trial court’s instruction to the jury “prescribe[d] a finding of guilt” and that his counsel was
ineffective for failing to object to the instruction.4 A defendant requesting reversal of an
otherwise valid conviction bears the burden of establishing “(1) the performance of his counsel
was below an objective standard of reasonableness under prevailing professional norms and (2) a
reasonable probability exists that, in the absence of counsel’s unprofessional errors, the outcome
of the proceedings would have been different.” People v Sabin (On Second Remand), 242 Mich
App 656, 659; 620 NW2d 19 (2000).

       In regard to the prior-acts evidence, the trial court instructed the jury as follows:

       And in this particular case, there’s some really tricky stuff that you have to
       navigate. One of those tricky things was past accusations of sexual behavior.
       That’s really tricky. Most people, they listen to that tape, first of all, you have
       to—Well, you look at the tape, obviously. It’s, it’s Mr. Cliff. So, there’s no


4
  The latter assertion of counsel’s ineffectiveness is contained in the statement of questions
presented.


                                                 -4-
          question about Mr. Cliff being there. You still have to make a determination if
          he’s telling the truth.

                  Before you accept what he says, it’s easy to see that it’s him, you have to
          accept that he’s telling the truth. And then, if you decide that, you know, just:
          What is he talking about? And what impact does that have on this trial? Because
          the tricky part and why, you know, this is just really strange, is because it’s almost
          that you tell, being told lightning strikes twice. If he did it once, he’ll do it again.
          So, you don’t even have to really believe this person because, you know, you
          don’t have to go through the same changes because if you believe that he admitted
          to having inappropriate—He did it before. He’ll do it again. That once a person
          exhibits some behavior, they’re gonna do that behavior over and over and over,
          doesn’t matter if it was ten years ago, twenty years ago, thirty years ago, forty
          years ago, yesterday. You know that’s, that’s the leap.

                 So, you have to use that evidence carefully because you have to determine
          if what you heard today and yesterday, well yesterday and the day before, if that
          amounts to fulfilling the elements of the crime that Mr. Cliff has been charged
          with.

We agree with defendant that the trial court’s instruction was not clearly worded and note that
the better practice would have been for the trial court to give the standard instruction set forth at
M Crim JI 20.28a.5 That being said, the trial court’s instruction does contain the substance of
M Crim JI 20.28a, particularly the model instruction’s requirement that the jury must find that
defendant actually committed the prior act before it could use the prior act as propensity
evidence. Moreover, the trial court reminded the jury that it was only to convict defendant if it
found that his conduct in this case fulfilled each element of the charged offenses.

        To the extent that defense counsel could have objected and requested a clearer
instruction, we note the tendency of the objection to highlight the prior-acts evidence. Counsel is
not ineffective for making a strategic decision not to highlight prejudicial evidence. See People


5
    M Crim JI 20.28 sets forth the model instruction for prior acts of sexual misconduct as follows:
          (1) You have heard evidence that was introduced to show that the defendant has
          engaged in improper sexual conduct for which the defendant is not on trial.
          (2) If you believe this evidence, you must be very careful to consider it for only
          one, limited purpose, that is, to help you judge the believability of testimony of
          [name of complainant] regarding the act(s) for which the defendant is now on
          trial.
          (3) You must not consider this evidence for any other purpose. For example, you
          must not decide that it shows that the defendant is a bad person or that the
          defendant is likely to commit crimes. You must not convict the defendant here
          because you think [he/she] is guilty of other bad conduct.


                                                    -5-
v Horn, 279 Mich App 31, 40; 755 NW2d 212 (2008). In any event, it is unlikely that the
outcome of the proceeding would have been different had defense counsel made the objection.
NR testified in significant detail about years of sexual and physical abuse that defendant inflicted
upon him. The jury’s verdict indicates that it found this testimony credible and the testimony
was corroborated, at least in part, by physical evidence at defendant’s home. Again, the trial
court’s instruction contained the basic elements of the model instruction. Given the significant
evidence supporting defendant’s convictions, it is unlikely that any additional clarity in the trial
court’s instruction would have altered the outcome of the proceedings. Defendant’s claim of
ineffective assistance is without merit.

       Affirmed.



                                                             /s/ Patrick M. Meter
                                                             /s/ Colleen A. O’Brien
                                                             /s/ Brock A. Swartzle




                                                -6-
