Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  June 3, 2011                                                                       Robert P. Young, Jr.,
                                                                                               Chief Justice

  140800                                                                             Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
                                                                                         Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                       Brian K. Zahra,
            Plaintiff-Appellee,                                                                     Justices

  v                                                       SC: 140800
                                                          COA: 284838
                                                          Bay CC: 06-010653-FC
  GEORGE THOMAS NOVAK,
           Defendant-Appellant.

  _________________________________________/

         On order of the Court, leave to appeal having been granted and the briefs and oral
  arguments of the parties having been considered by the Court, we VACATE our order of
  July 15, 2010. The application for leave to appeal the January 26, 2010 judgment of the
  Court of Appeals is DENIED, because we are no longer persuaded that the questions
  presented should be reviewed by this Court.

         MARKMAN, J. (concurring).

         I concur in this Court’s order denying leave to appeal because the Court of
  Appeals, in my judgment, did not err in concluding that the trial court did not abuse its
  discretion in admitting the “minor child incest” story written by defendant. I write
  separately to respond to Justice MARILYN KELLY’s dissenting statement.

         First, contrary to the dissent’s contention, the story was admitted for a proper
  purpose under MRE 404(b). It was admitted for the purpose of demonstrating intent and
  absence of mistake or accident. In order to prove CSC-II, the prosecutor had to establish
  that defendant engaged in “sexual contact,” which is defined as “intentional touching . . .
  for the purpose of sexual arousal or gratification . . . .” MCL 750.520a(q). During
  closing argument, defense counsel argued that “there wasn’t a singular shred of testimony
  that any touching, if it even happened, was for sexual purpose.” Consequently, the fact
  that defendant had written an incest story involving minor children was highly relevant
  to, and probative of, whether defendant’s touching of the complainant was done for the
  purpose of sexual arousal or gratification. That is, the story was admissible for the proper
  purpose of proving the nature of defendant’s intentions in the manner in which he
                                                                                          2

touched his minor grandchild. During closing argument, defense counsel also suggested
that the minor-complainant may have been mistaken in her belief that defendant
penetrated her anus with his penis and that defendant possibly had accidentally touched
her breast. Consequently, the story was also admissible for the purpose of establishing
the absence of mistake or accident. Although the prosecutor conceded on appeal that the
story was not admissible for the latter purpose, this Court is, of course, “not bound to
accept such a concession.” People v Reed, 449 Mich 375, 395 (1995). The trial court
deemed the evidence admissible for the purpose of demonstrating intent and absence of
mistake or accident, and such a determination will be upheld absent abuse of discretion.

       Second, contrary to the dissent’s suggestion, MRE 404(b) “does not require a
showing of distinctive similarity between other acts and the charge at issue in every
instance where Rule 404(b) evidence is proffered.” People v VanderVliet, 444 Mich 52,
69 (1993). Instead, “[w]here the proponents’ theory is not that the acts are so similar that
they circumstantially indicate that they are the work of the accused, similarity between
charged and uncharged conduct is not required.” Id. Because the story here was offered
as evidence of intent and the absence of mistake or accident, rather than as evidence of a
common plan or scheme, distinctive similarity is not required. Furthermore, the dissent is
wrong to assert that there are “no similarities” between the story and the complainant’s
allegations: both involve an adult male having sexual relations with minor female
children who are relatives.

        Third, again contrary to the dissent’s contention, the story’s probative value was
not substantially outweighed by the danger of unfair prejudice. “Evidence is not
inadmissible simply because it is prejudicial. Clearly, in every case, each party attempts
to introduce evidence that causes prejudice to the other party.” Waknin v Chamberlain,
467 Mich 329, 334 (2002). “‘Relevant evidence is inherently prejudicial; but it is only
unfair prejudice, substantially outweighing probative value, which permits exclusion of
relevant matter under Rule 403.’” Id., quoting People v Mills, 450 Mich 61, 75-76 (1995)
(emphasis added). MRE 403 “is not designed to permit the court to ‘even out’ the weight
of the evidence . . . or to make a contest where there is little or none.” Waknin, 467 Mich
at 334 (citation omitted). Instead, the rule only prohibits evidence that is unfairly
prejudicial. “Evidence is unfairly prejudicial when there exists a danger that marginally
probative evidence will be given undue or preemptive weight by the jury.” People v
Crawford, 458 Mich 376, 398 (1998).

        The evidence in the present case was not merely marginally probative. As
explained above, the fact that defendant wrote a story about an adult male having sexual
relations with minor children helped refute defendant’s claim that the complainant was
mistaken about the touching or, if the touching did take place, that it was accidental. It
also shed light on defendant’s intentions. Furthermore, the trial court did a thorough job
of instructing the jury regarding the limited proper purposes of the “other acts” evidence.
As the trial court explained to the jury:
                                                                                          3


              You’ve heard evidence that was introduced to show that the
       defendant committed a crime or improper acts for which he is not on trial.
       If you believe this evidence, you must be very careful only to consider it for
       certain purposes. You may only think about whether this evidence tends to
       show that the defendant had a reason to commit the crime; that the
       defendant specifically meant to have touched [the complainant] for sexual
       purposes; that the defendant acted purposefully — that is, not by accident
       or mistake, or because he misjudged the situation . . . . You must not
       consider this evidence for any other purpose. For example, you must not
       decide that it shows the defendant is a bad person or that he is likely to
       commit crimes. You must not convict the defendant here because you
       think he is guilty of other bad conduct. All the evidence must convince you
       beyond a reasonable doubt that the defendant committed the alleged crime,
       or you must find him not guilty.

       Finally, again contrary to the dissent’s contention, the prosecutor’s case was not
“weak.” The complainant was unequivocal in her testimony concerning who touched her
and where she was touched, and another witness testified that defendant had sexually
abused her in a similar fashion when she was younger. Given this evidence, even
assuming that the trial court did abuse its discretion in admitting the story — and I do not
believe the court did — defendant has not satisfied his burden of demonstrating that it is
more probable than not that the admission of the story was outcome determinative.
People v Lukity, 460 Mich 484 (1999).

       CAVANAGH, J. (dissenting).

        I would reverse the judgment of the Court of Appeals and remand for a new trial
for the reasons stated by the Court of Appeals dissent. I agree with the dissent that the
trial court abused its discretion in admitting defendant’s “sex manual” at trial, and the
error in admitting the manual was not harmless, especially in light of the weaknesses in
the prosecution’s case.

       HATHAWAY, J., joins the statement of CAVANAGH, J.

       MARILYN KELLY, J. (dissenting).

       I disagree with the decision to deny defendant’s application for leave to appeal.
The Court of Appeals dissent was correct in concluding that the trial court abused its
discretion in admitting defendant’s fictitious story in evidence at trial. And the error was
not harmless. Hence, I would reverse the lower courts’ decisions and remand this case
for a new trial.
                                                                                        4

       Defendant was charged with one count of CSC-I and one count of CSC-II based
on allegations that he touched the complainant’s chest and penetrated her anus.
Complainant, his granddaughter, was nine years old when she testified at trial. She stated
that once, when visiting defendant’s house, she sat on defendant’s lap while watching a
movie in the living room. She claimed that, while she was on his lap, defendant touched
her “back butt” with his “front butt.”1 She testified that she did not remember what
defendant’s “front butt” felt like and that she did not recall what she was wearing.2 She
confirmed on two occasions during cross-examination, however, that defendant had his
pants on when his “front butt” touched her “back butt.”

      The complainant also testified that defendant touched her “boobs” with his hands
over her clothes. She testified that this happened only once and that defendant did not
touch her body with his hands at any other place. She did not recall how defendant
touched her breasts, but she was quite definite that he did not touch her “front butt.”

       Before trial, the prosecutor filed a notice of intent pursuant to MRE 404(b)(2) to
present evidence of a fictional pornographic story that defendant had written. The trial
court ruled that the story was admissible. Giving little analysis, it found that the story
was relevant to intent, motive, absence of mistake or accident, and to refute fabrication.

       The fictional story defendant wrote is very graphic. It depicts teenagers engaging
in sexual behavior and incest. It begins with a teenage brother, sister, and female cousin
performing sex acts with each other. Later, the father/uncle character also engages in sex
acts with the two teenage girls. The story is highly prejudicial.

       The prosecutor brought it up on multiple occasions during trial. Not only did she
ask every witness about the story, she quoted lengthy portions of it both during her
opening statement and during her closing argument. She had a police detective reread a
portion of the story to the jury. She told the jury that the story was a “window into
defendant’s mind.”

      The jury convicted defendant as charged. The trial court sentenced him to 20 to
40 years in prison. Defendant appealed to the Court of Appeals, which affirmed his



1
  She explained that her “front butt” is where she goes pee and her “back butt” is where
she goes poop. When asked if her “back butt” had an inside and an outside, she
responded, “Yes.” When asked what part of her “back butt” defendant’s “front butt” had
touched, she responded, “the inside.”
2
  At one point she testified that she had clothing on when the incident occurred. Later,
she stated that she had a towel wrapped around her.
                                                                                         5

convictions in an unpublished per curiam opinion.3 Judge Gleicher dissented. We
granted defendant’s application for leave to appeal.4

       The key issue on appeal was whether defendant’s fictional story was properly
admitted in evidence. We review decisions admitting evidence for an abuse of
discretion.5 The trial court admitted the story as other-acts evidence pursuant to MRE
404(b)(1), which states:

                Evidence of other crimes, wrongs, or acts is not admissible to prove
         the character of a person in order to show action in conformity therewith. It
         may, however, 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 Court of Appeals majority concluded that defendant’s story did not fall within the
scope of MRE 404(b).6 The dissent disagreed. And at oral argument before this Court,
counsel for the prosecution conceded that the Court of Appeals erred in failing to analyze
this case under that rule.

      In People v VanderVliet,7 this Court articulated a four-part test for evaluating
when evidence of past misconduct is admissible:

         First, that the evidence be offered for a proper purpose under Rule 404(b);
         second, that it be relevant under Rule 402 as enforced through Rule 104(b);
         third, that the probative value of the evidence is not substantially
         outweighed by unfair prejudice . . . .[8]
Review of the trial court’s decision to admit defendant’s fictional story as evidence
should be made under this Court’s VanderVliet test.

      The prosecutor offered the story to show that defendant acted in conformity with
what he wrote. According to the prosecutor, the story was offered to prove that, if or
3
  People v Novak, unpublished opinion per curiam of the Court of Appeals, issued
January 26, 2010 (Docket No. 284838).
4
    People v Novak, 486 Mich 1068 (2010).
5
    Dep’t of Transportation v Vanelslander, 460 Mich 127, 129 (1999).
6
    Novak,unpub op at 2.
7
    444 Mich 52 (1993).
8
    People v VanderVliet, 444 Mich 52, 55 (1993).
                                                                                           6

when defendant touched the complainant’s chest, he did so with a sexual intent. Indeed,
the story was necessary to prove defendant’s intent regarding the CSC-II charge because
it was the only evidence showing that the alleged touching was done for sexual
gratification.

       But the purpose for which the evidence was offered was not proper under Rule
404(b). It did not evidence motive, opportunity, intent, preparation, scheme, plan, or
system in doing the acts complained of. It did not evidence knowledge, identity or
absence of mistake or accident. It did not refute fabrication. Instead, the prosecutor
repeatedly used the story as a springboard for broad inferences about defendant’s bad
character. For example, she questioned the only defense witness at length about the
story. In over four pages of trial transcript, the prosecutor attempted to get the witness to
conflate the authorship of the story with a general character flaw.

        The prosecutor’s use of the story shows that she intended it as character evidence
designed to convict defendant for what he wrote. In describing the story as “a window
into the defendant’s mind,” she specifically and improperly suggested to the jury that
defendant possessed a morally repugnant character and a lustful disposition. The only
fact that the story tended to prove was that defendant had a preoccupation with incestuous
relationships.

       In order for evidence to be properly admitted under Rule 404(b), the probative
value of the evidence must not be substantially outweighed by unfair prejudice.9 In this
case, the danger of unfair prejudice substantially outweighed the probative value, if any,
of defendant’s story.

       I question the story’s probative value. Many people write fictional fantasies but
never act them out. In this case, defendant’s fictional story does not track the acts he was
accused of performing. As the Court of Appeals dissent observed:

          [V]irtually no similarities exist between the sexual acts described in the
          story and the acts of criminal sexual conduct that defendant allegedly
          inflicted on [the complainant]. The children described in the story were at
          least 16-years-old, and most of the story detailed sexual relationships
          among the children, rather than between the father and his children.[10]


9
    Id.
10
  Novak, unpub op at 6 (Gleicher, J., dissenting). Notwithstanding the fact that most of
the story detailed sexual relationships among the children, the prosecutor purposefully
chose to focus on a more inflammatory portion of the story involving sexual acts between
the father and his teenage daughter.
                                                                                                                   7



Thus, the probative nature of the evidence is at best very limited.

      On the other hand, the substance of the story was overwhelmingly prejudicial.
Judge Gleicher opined that the story

          . . . is a clumsily written, sexually explicit, generally repulsive document
          that lacks literary or artistic merit. Indisputably, a high likelihood existed
          that the manual would transgress most of the jurors’ norms of decency and
          morality. The danger of unfair prejudice attending this document far
          outweighed whatever marginal probative value it may have possessed.[11]
I believe that the trial court abused its discretion by failing to exclude defendant’s
fictional story on the basis that its extremely prejudicial nature completely overwhelmed
any minimal probative value.

       Since the trial court erred in admitting the story as evidence, it must be determined
whether the error was outcome determinative.12 I believe that it was. Absent the story,
the prosecutor’s case was weak. The primary witness against defendant was the nine-
year-old complainant whose testimony was far from clear. In fact, it was the inherent
weakness of her account of events that prompted the prosecutor to rely on defendant’s
inflammatory fictional story to persuade the jury of defendant’s guilt. Accordingly, I
would reverse the judgment of the Court of Appeals and remand the case for a new trial.




11
     Id. at 7 (Gleicher, J., dissenting).
12
     People v Feezel, 486 Mich 184, 192 (2010).



                             I, Corbin R. Davis, 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.
                             June 3, 2011                        _________________________________________
           t0531                                                                 Clerk
