Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  November 7, 2014                                                                Robert P. Young, Jr.,
                                                                                             Chief Justice

  148921                                                                           Michael F. Cavanagh
                                                                                   Stephen J. Markman
                                                                                       Mary Beth Kelly
                                                                                        Brian K. Zahra
                                                                                Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                    David F. Viviano,
            Plaintiff-Appellee,                                                                   Justices


  v                                                       SC: 148921
                                                          COA: 311760
                                                          Oakland CC: 2012-239764-FH
  CHARLES WILLIAM O’NEAL,
           Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the January 21, 2014
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

           VIVIANO, J. (dissenting).

         I respectfully dissent from the Court’s order denying defendant’s application for
  leave to appeal.

         This case arises from defendant’s conviction of attempted first-degree home
  invasion. Before trial, the trial court granted the prosecution’s motion to admit three
  prior breaking and entering convictions and one prior conviction of receiving and
  concealing stolen property. The prosecution offered the convictions to rebut defendant’s
  claim that he did not intend to break into the house when he kicked the front door but
  rather was in need of assistance and became frustrated when the occupants refused to
  open the door.

         As I explained in my dissenting statement in People v Reynolds, 1 I believe that a
  decision to admit other-acts evidence to show intent merits more than cursory review.




  1
      People v Reynolds, 495 Mich 940 (2014) (VIVIANO, J., dissenting).
                                                                                                                 2

And I continue to believe that this Court should intervene in appropriate cases to ensure
that lower courts “vigilantly weed out character evidence” to avoid the “common pitfall”
of admitting “poorly disguised” propensity evidence. 2 Otherwise, there is little incentive
for courts to take seriously their duty to serve as the gatekeepers of evidence.

       Indeed, here it appears that the trial court abdicated its gatekeeping role by
admitting the prior convictions merely because they were offered to show intent. 3 The
trial court made no effort to assess the prior convictions to determine their logical
relevance and failed to weigh the probative value of the convictions against their
prejudicial effect. 4 Although the trial court stated on the record that it would make those
determinations at a later date, it did not do so. This raises an especially significant
concern in this case in which the trial court repeatedly acknowledged that the sufficiency
of the evidence hinged on admission of the prior convictions. The bar for admission of
other-acts evidence to prove intent may be relatively low, 5 but the trial court still must
conduct the basic analysis required by our evidentiary rules to ensure that the bar is
cleared. 6

         CAVANAGH and MCCORMACK, JJ., join the statement of VIVIANO, J.



2
    People v Crawford, 458 Mich 376, 387, 388, 397 n 14 (1998).
3
 See id. at 387; MRE 404(b) (listing intent as one of the purposes for which a prosecutor
may seek to admit other-acts evidence).
4
 See Reynolds, 495 Mich at 940-942 (VIVIANO, J., dissenting); People v VanderVliet,
444 Mich 52, 74-75 (1993).
5
    See Reynolds, 495 Mich at 942 (VIVIANO, J., dissenting).
6
  See VanderVliet, 444 Mich at 74-75 (directing courts “to employ the evidentiary
safeguards already present in the Rules of Evidence” as identified in Huddleston v United
States, 485 US 681, 691-692 (1988): (1) the evidence must be offered for a proper
purpose under MRE 404(b); (2) the evidence must be relevant under MRE 402 as
enforced through MRE 104(b); (3) the probative value of the evidence must not be
substantially outweighed by unfair prejudice under MRE 403; and (4) the trial court may,
upon request, provide a limiting instruction to the jury under MRE 105).



                           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.
                           November 7, 2014
         d1104
                                                                               Clerk
