            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,                                     FOR PUBLICATION
                                                                     October 3, 2019
               Plaintiff-Appellee,

v                                                                    No. 343255
                                                                     Saginaw Circuit Court
ROBERT LANCE PROPP,                                                  LC No. 16-042719-FC

               Defendant-Appellant.


Before: MURRAY, C.J., and METER and FORT HOOD, JJ.

MURRAY, C.J., (concurring).

        I concur in the decision to affirm defendant’s conviction and sentence. However, for the
reasons explained briefly below, my reasons for doing so are somewhat different than that
utilized by the majority.

        First, with respect to the appointment of a defense expert witness at the state’s expense, I
would conclude that defendant satisfied the first part of the “reasonable probability” standard
from Moore v Kemp, 809 F2d 702 (CA 11, 1987), adopted by the Supreme Court in People v
Kennedy, 502 Mich 206, 226-228; 917 NW2d 355 (2018). In adopting the Moore reasonable
probability standard, the Kennedy Court held that “ ‘a defendant must show the trial court that
there exists a reasonable probability both that an expert would be of assistance to the defense and
that denial of expert assistance would result in a fundamentally unfair trial.’ ” Kennedy, 502
Mich at 227, quoting Moore, 809 F2d at 712.

       Several courts have recognized that evaluating the “reasonable probability” standard is a
“dynamic one” that is, naturally, very case specific. See Moore v State, 390 Md 343, 369; 889
A2d 325 (MD, 2005). This case is neither heavy on the facts, nor on the science or legal theories
presented. In both his motion and supporting brief, as well as at the motion hearing, defense
counsel informed the trial court about “the nature of the crime and the evidence linking
[defendant] to the crime,” Kennedy, 502 Mich at 227, quoting Moore, 809 F2d at 712 (quotation
marks omitted), by indicating that defendant was being prosecuted for murder, and that his
defense was that he accidentally killed the victim through erotic asphyxiation. Defense counsel
also provided a sufficient demonstration of a “substantial basis for the defense,” Kennedy, 502



                                                -1-
Mich at 227, quoting Moore, 809 F2d at 712 (quotation marks omitted), by informing the trial
court that the medical examiner’s testimony would be that the victim died from strangulation,
that defendant and the victim had previously been a couple, that erotic asphyxiation is a
somewhat unknown defense in Michigan, and that the proposed expert would be able to testify as
to the practice of erotic asphyxiation, and that individuals can die through the practice. Although
this information is not nearly as detailed as that provided by the defendant in Ake v Oklahoma,
470 US 68, 86; 105 S Ct 1087; 84 L Ed 2d 53 (1985), the Ake Court specifically noted that it was
not expressing an “opinion as to whether any of these factors [set forth by defendant], alone or in
combination, is necessary to make this finding.” Id. at 86, n 12. Because a reading of Ake,
Moore, and Kennedy do not lead to the conclusion that defendant’s burden of production is an
overly burdensome one, I would hold that defendant satisfied the first portion of the reasonable
probability standard adopted in Kennedy.

        However, as the majority concluded, in the end it is not reasonably probable that the
denial of this expert assistance resulted in a fundamentally unfair trial. Kennedy, 502 Mich at
227. As ably recounted by the majority, in front of the jury the prosecution’s expert recognized
the practice of erotic asphyxiation, and that the victim’s death could have resulted from that
practice. This testimony, in conjunction with defendant’s testimony about the circumstances
surrounding the victim’s death, presented the jury with a full and complete picture regarding the
circumstances surrounding the victim’s death, or at least defendant’s version as to how it
occurred. See Stephens v Kemp, 846 F2d 642, 646-647 (CA 11, 1988). As a result, no reversible
error occurred on this issue.

        Second, with respect to whether hearsay evidence is admissible under MCL 768.27b
without meeting the requirements of the rules of evidence, I do not read the reference in MCL
768.27b(1) to MRE 403 to mean that all other rules of evidence are inapplicable. There are
several reasons for this conclusion. For one, MCL 768.27b(1) not only explicitly invokes MRE
403, but it also implicitly invokes MRE 401 and 402 by stating that “evidence of the defendant’s
commission of other acts of domestic violence or sexual assault is admissible for any purpose for
which it is relevant.” Of course, relevancy is determined under MRE 401, and relevant evidence
is admissible under MRE 402. Thus, contrary to the majority’s conclusion, MCL 768.27b(1)
does not preclude consideration of any rule of evidence other than MRE 403.1

         Additionally, our Court has previously concluded that this very statute did not “ ‘lower
the . . . value of the evidence needed to convict a defendant,’ ” and “does not permit conviction
on less evidence or evidence of a lesser quality.” People v Schultz, 278 Mich App 776, 778; 754
NW2d 925 (2008) (emphasis supplied), quoting in part People v Pattison, 276 Mich App 613,
619; 741 NW2d 558 (2007). As the Schultz Court held, “MCL 768.27b did not change the



1
   MCL 768.27b(3) specifically states that the section “does not limit or preclude . . .
consideration of evidence under any other . . . rule of evidence . . . .” This would seem to answer
the question presented. Although this provision is written toward ensuring that propensity
evidence can still be admitted under other rules, the literal language allows courts to consider
other rules of evidence when addressing propensity evidence.


                                                -2-
burden of proof necessary to establish the crime, ease the presumption of innocence, or
downgrade the type of evidence necessary to support a conviction.” Schultz, 278 Mich App at
778 (emphasis applied). The majority’s construction of MCL 768.27b runs contrary to our
declaration in Schultz that the statute does not downgrade the type of evidence necessary to
support a conviction. Instead, what MCL 768.27b does is set forth a substantive legislative
policy choice—similar to that in MCL 768.27a—that propensity evidence can and should be
used in prosecuting the listed crimes (taking the opposite presumption than MRE 404b), subject
to an analysis under MRE 403.2 See People v Meissner, 294 Mich App 438, 451-452; 812
NW2d 37 (2011). But that substantive policy decision does not address—and does not
eliminate—the need for courts to test the reliability of the evidence used to prove the defendant’s
propensity. Nothing in the statute suggests that the legislature was requiring courts to dispense
with the other rules of evidence that relate to the quality of the evidence admitted at trial. People
v Watkins, 491 Mich 450, 487; 818 NW2d 296 (2012); Schultz, 278 Mich App at 778. See, also,
People v Uribe, 499 Mich 921, 922; 878 NW2d 474 (2016).3

       Finally, although the Watkins Court refused to read additional limitations into the
singular restriction contained in the introductory section of MCL 768.27a, the Court additionally
refused “to read into MCL 768.27a a legislative intent to foreclose the application of other
ordinary rules of evidence, such as those that pertain to hearsay and privilege.” Watkins, 491
Mich at 485.

        The prosecution concedes4 on appeal that certain evidence was inadmissible hearsay, but
also correctly argues that defendant’s conviction should still be affirmed because the evidence
otherwise properly admitted was more than adequate for the jury to convict defendant.
Defendant’s statements to the police, defendant’s testimony at trial regarding what he claims led
to the victim’s death, and the acknowledgment by the prosecutor’s expert of the dangers of erotic
asphyxiation, were all presented to the jury, and in combination was more than sufficient for the




2
  In other words, this statutory provision was a rejection of the principles of MRE 404(b) by
allowing admission of relevant propensity evidence in these types of cases, but acceptance of the
ability of trial courts to determine whether such evidence was more prejudicial than probative.
This, of course, is within the proper power of the legislature. See, e.g., People v Babcock, 244
Mich App 64, 89; 624 NW2d 479 (2000) (recognizing that the Legislature can adopt some
portions of case law while rejecting other parts), rev’d on other grounds in People v Babcock,
469 Mich 247 (2003).
3
  Although there are certain differences between MCL 768.27a and MCL 768.27b, the two
statutes are closely aligned with the same policy considerations. People v Cameron, 291 Mich
App 599, 609-610; 806 NW2d 371 (2011).
4
  Indeed, the prosecution does not even argue that MCL 768.27b(1) allows for consideration of
hearsay evidence. Instead, the prosecution argues that even setting aside the hearsay presented to
the jury, the otherwise admissible evidence was more than enough to convict defendant, so any
error in the admission of this evidence was harmless.


                                                -3-
jury to find defendant guilty beyond a reasonable doubt. For these reasons, I concur in the
majority’s decision to affirm defendant’s conviction and sentence.



                                                        /s/ Christopher M. Murray




                                            -4-
