            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 7, 2019
              Plaintiff-Appellant,

v                                                                  No. 336685
                                                                   Livingston Circuit Court
JUSTIN MICHAEL BAILEY,                                             LC No. 15-023204-FH

              Defendant-Appellee.


                                         ON REMAND

Before: CAVANAGH, P.J., and SERVITTO1 and BECKERING, JJ.

PER CURIAM.

        Defendant is charged with third-degree criminal sexual conduct (incapacitated victim),
MCL 750.520d(1)(c), and third-degree criminal sexual conduct (force or coercion), MCL
750.520d(1)(b). The prosecutor filed an interlocutory application for leave to appeal a pretrial
order allowing defendant to cross-examine witnesses and present rebuttal witnesses regarding the
results of a DNA sample obtained from the victim’s rape kit, which included the DNA of both
defendant and a second, unidentified man, pursuant to an exception to the rape-shield statute,
MCL 750.520j(1)(b). After we denied the prosecutor’s application, People v Bailey, unpublished
order of the Court of Appeals, entered May 17, 2017 (Docket No. 336685) (Bailey I), our
Supreme Court remanded the case to this Court for consideration as on leave granted. People v
Bailey, 501 Mich 883 (2017) (Bailey II). This panel then reversed the trial court’s order to the
extent that the trial court allowed defendant to introduce evidence of the second male DNA
donor, and remanded for further proceedings. People v Bailey, unpublished per curiam opinion
of the Court of Appeals, issued February 27, 2018 (Docket No. 336685) (Bailey III). On
November 21, 2018, our Supreme Court vacated our opinion and remanded the case to us for


1
 Judge Servitto has been designated to serve as a substitute for former Judge Hoekstra, who was
on the panel in this case. For ease of discussion, we use the term “this panel” in discussing the
prior opinion in this case.
reconsideration in light of People v Sharpe, 502 Mich 313; 918 NW2d 504 (2018). People v
Bailey, 919 NW2d 399 (Mich, 2018) (Bailey IV). Upon reconsideration on remand, we affirm in
part, vacate in part, and remand for proceedings consistent with this opinion.

       This panel’s opinion in Bailey III summarized the underlying facts and proceedings as
follows:
               On November 29, 2014, the complainant became intoxicated at a house
       party and began vomiting in a bathroom. Defendant allegedly indicated that he
       was a firefighter who could assist her, and a friend therefore left the complainant
       in defendant’s care. It is alleged that defendant then locked the bathroom door,
       pulled down the complainant’s pants, and proceeded to engage in nonconsensual
       vaginal intercourse. The complainant’s friends took her to the hospital where a
       rape kit was administered. DNA tests subsequently performed by the Michigan
       State Police forensic scientists on samples collected from the victim’s vulva
       revealed the presence of DNA from defendant and another unidentified male
       donor.[2]

               Before trial, the prosecutor filed a motion to exclude evidence of the
       victim’s sexual conduct with people other than defendant, including evidence of
       the unknown man’s DNA. Defendant filed a motion to allow evidence relating to
       the unknown male’s DNA as an exception to the rape shield act. Relevant to this
       appeal, according to defendant, the presence of a second male DNA donor was
       admissible, despite the rape-shield statute, because without this evidence
       defendant could not fully cross-examine the forensic scientist about the DNA
       testing methodologies used in this case and this line of inquiry is relevant to
       determining the source of the semen in question. Following hearings on the
       parties’ motions, the trial court granted the prosecutor’s motion in part, ordering
       that defendant could not question the victim or other witnesses about the victim’s
       sexual acts with anyone other than defendant. However, with regard to the DNA
       evidence, the trial court’s order states:



2
 In a footnote, this panel provided the following clarification regarding the DNA testing in this
case:
               We note that the DNA testing in this case involved Y-STR analysis, which
       cannot be used to uniquely identify an individual because all males in the paternal
       line share the same Y-STR haplotype and, though less common, an unrelated
       male could also share the same Y-STR haplotype. See People v Wood, 307 Mich
       App 485, 511-514; 862 NW2d 7 (2014), vacated in part on other grounds by 498
       Mich 914 (2015). . . . While we acknowledge that defendant cannot be uniquely
       identified based on the Y-STR haplotype, for ease of discussion we will refer to
       the two donors as defendant and the unidentified or other male. [Bailey III, unpub
       op at 2 n 2.]



                                               -2-
                       The Court DENIES the People’s Motion and GRANTS the
               Defendant’s Motion to the extent that Defendant shall be allowed
               to cross-examine witnesses and provide rebuttal witnesses
               regarding the results of the DNA sample. Such evidence is not
               precluded by the rape-shield act. MCL 750.520j(1)(b) . . . by its
               plain terms allows evidence regarding an alternative source of
               semen. Such evidence shall only be admissible upon a proper
               showing that the probative value outweighs any danger of unfair
               prejudice. To the extent that the lab report puts the source of
               semen at issue, Defendant may cross-examine witnesses as to those
               lab results. The Court will exercise authority to control the manner
               of questioning, to prevent unfair prejudice.

       The trial court stayed proceedings, and the matter is now before us on remand
       from the Supreme Court as on leave granted. [Bailey III, unpub op at 1-2
       (alteration in original).]

        In Bailey III, this panel concluded that the trial court abused its discretion by concluding
that evidence of another man’s DNA in the victim’s rape kit was relevant to a fact at issue and
admissible under MCL 750.520j(1)(b), a provision of the rape-shield statute allowing admission
of “[e]vidence of specific instances of sexual activity showing the source or origin of semen,
pregnancy, or disease[]” if the evidence is material and its inflammatory or prejudicial nature
does not outweigh its probative value. Bailey III, unpub op at 3-5. This panel stated that, “on
the facts presented in this case, evidence of a second male donor with a different Y-STR
haplotype would not generally be relevant to showing that the presence of the Y-STR haplotype
matching defendant was caused by someone other than defendant.” Id. at 5. This panel noted
that “defendant has not offered a factual version of events that would render the unidentified
male’s DNA probative of a material issue or defense theory. He allegedly told police that he was
in the bathroom with the victim but that he could not recall whether or not he had sex with the
victim.” Id. at 5 n 5 (citation omitted). This panel explained its decision as follows:
        . . . [T]he only way evidence of a second male donor could potentially be relevant
       in this case is if, as defendant claims, the presence of a second donor could
       somehow affect the genetic analysis involved and could lead to an error in
       identifying the Y-STR haplotype that was found to match defendant. However,
       defendant failed to make an offer of proof relating to his scientific theories and he
       has thus failed to demonstrate the relevance of the evidence relating to the second
       male donor. Without such an offer of proof, the trial court could not determine
       that MCL 750.520j(1)(b) applied or that defendant was constitutionally entitled to
       introduce this evidence because there is no basis for finding that the evidence
       defendant proposed to offer was material to a fact at issue in the case – the
       accuracy of the results of the rape kit test. Further, without an offer of proof
       demonstrating the relevance of the second male donor, the trial court also could
       not reasonably determine that the inflammatory or prejudicial nature of this
       evidence (i.e., that the victim engaged in sexual acts with another man close in
       time to the alleged sexual assault) did not outweigh the probative value of the
       evidence. In sum, absent an offer of proof demonstrating that the presence of a

                                                -3-
       second male donor affected, or at least could have affected, the DNA testing
       relating to the victim’s rape kit, evidence of the presence of an unidentified male
       donor was inadmissible as evidence of a specific instance of the victim’s sexual
       conduct under MCL 750.520j(1). The trial court thus abused its discretion by
       admitting this evidence. [Bailey III, unpub op at 5-6 (footnote and citations
       omitted).]

This panel therefore reversed and remanded for further proceedings. Id. at 6.

        Defendant filed an application for leave to appeal in our Supreme Court and, in lieu of
granting leave, the Court vacated the Bailey III judgment and remanded this case to us for
reconsideration in light of Sharpe, 502 Mich 313. See Bailey IV, 919 NW2d at 399. We
conclude that, under Sharpe, the evidence of the second male DNA donor in this case does not
fall within the purview of the rape-shield statute, i.e., the rape-shield statute does not govern its
admissibility. However, the prosecutor should be permitted on remand to file any appropriate
motions or make any appropriate objections challenging the admission of this evidence under
MRE 402 or MRE 403.
       MCL 750.520j of the rape-shield statute provides as follows:
       (1) Evidence of specific instances of the victim’s sexual conduct, opinion
       evidence of the victim’s sexual conduct, and reputation evidence of the victim’s
       sexual conduct shall not be admitted under sections 520b to 520g unless and only
       to the extent that the judge finds that the following proposed evidence is material
       to a fact at issue in the case and that its inflammatory or prejudicial nature does
       not outweigh its probative value:

       (a) Evidence of the victim’s past sexual conduct with the actor.

       (b) Evidence of specific instances of sexual activity showing the source or origin
       of semen, pregnancy, or disease.

       (2) If the defendant proposes to offer evidence described in subsection (1)(a) or
       (b), the defendant within 10 days after the arraignment on the information shall
       file a written motion and offer of proof. The court may order an in camera
       hearing to determine whether the proposed evidence is admissible under
       subsection (1). If new information is discovered during the course of the trial that
       may make the evidence described in subsection (1)(a) or (b) admissible, the judge
       may order an in camera hearing to determine whether the proposed evidence is
       admissible under subsection (1).

In Bailey III, this Court held that “evidence of the presence of an unidentified male donor was
inadmissible as evidence of a specific instance of the victim’s sexual conduct under MCL
750.520j(1).” Bailey III, unpub op at 6.

       In Sharpe, our Supreme Court addressed MCL 750.520j(1). In that case, the defendant
was charged with various criminal sexual conduct offenses for allegedly engaging in sexual
penetration and sexual conduct with the 14-year-old victim. Sharpe, 502 Mich at 320. At issue

                                                -4-
was the prosecutor’s pretrial motion to admit evidence of the victim’s pregnancy, abortion, and
lack of sexual partners other than the defendant during the relevant time period. Id. at 321. In
particular, the issue in Sharpe turned on whether this evidence constituted “[e]vidence of specific
instances of the victim’s sexual conduct[]” for the purpose of MCL 750.520j(1). Id. at 328. Our
Supreme Court held that evidence of the victim’s pregnancy, abortion, and lack of sexual
partners other than the defendant did not fall within the scope of the rape-shield statute. Id. at
319. Our Supreme Court stated that “a specific instance of the victim’s sexual conduct must
relate to a particular occurrence of the victim’s sexual conduct.” Id. at 328. The Court reasoned
as follows:
               Evidence of [the victim’s] pregnancy and her subsequent abortion are not
       evidence of a specific instance of the victim’s sexual conduct. Although this
       evidence necessarily implies that sexual activity occurred that caused the
       pregnancy, the pregnancy and abortion are not evidence regarding a specific
       instance of sexual conduct. As we have previously stated, whether evidence falls
       within the purview of the rape-shield statute concerns whether the evidence
       “amount[s] to or reference[s] specific conduct,” People v Ivers, 459 Mich 320,
       329; 587 NW2d 10 (1998), not whether the evidence constitutes a consequence of
       or relates to sexual activity generally. In this case, the pregnancy and abortion
       evidence alone does not describe a particular or specific sexual encounter. The
       evidence demonstrates only that at least one act of sexual intercourse occurred in
       2014 and does not describe one particular occurrence of sexual conduct. Because
       [the victim’s] pregnancy and abortion are not evidence of a particular occurrence
       of sexual conduct, evidence thereof does not fall under the purview of the rape-
       shield statute, and the Court of Appeals erred in determining otherwise. [Sharpe,
       502 Mich at 328-329 (alterations in original).]

      The Sharpe Court further stated that its reasoning was bolstered by a reading of MCL
750.520j as a whole, noting:
       MCL 750.520j(1) explains that specific instances of the victim’s sexual conduct
       shall not be admitted, but MCL 750.520j(1)(b) excepts relevant “[e]vidence of
       specific instances of sexual activity showing the source or origin of semen,
       pregnancy, or disease.” These specific instances of sexual conduct may be used
       to “show,” or “cause or permit to be seen,” Merriam-Webster’s Collegiate
       Dictionary (11th ed), the “origin of semen, pregnancy, or disease.” In so phrasing
       the statute, the Legislature has distinguished between the specific instance of
       sexual activity that shows the origin or the source of the semen, pregnancy, or
       disease – i.e., whatever sexual act led to these consequences – and the semen,
       pregnancy, or disease itself. Accordingly, the Legislature has ipso facto made
       clear that semen, pregnancy, or disease, while perhaps related to sex, are not
       themselves the specific instances of sexual conduct envisioned by MCL 750.520j.
       And because pregnancy, and by extension abortion, is not a specific instance of
       sexual conduct, neither pregnancy nor abortion falls within the rape-shield statute.
       [Sharpe, 502 Mich at 329-330 (alterations in original).]




                                                -5-
Also, evidence that the victim did not engage in sexual intercourse with partners other than the
defendant during the relevant time period did not fall within the purview of the rape-shield
statute given that “[t]his evidence demonstrates an absence of conduct, not a ‘specific instance’
of sexual conduct.” Id. at 330.

       Our Supreme Court in Sharpe further explained that its decision was consistent with the
purposes of the rape-shield statute, noting:
         The rape-shield statute was designed to prevent unwelcome and unnecessary
         inquiry into a complainant’s sexual activities, thereby protecting the
         complainant’s privacy and protecting the complainant from suffering unfair
         prejudice based on her sexual history. But here, the complainant has voluntarily
         offered evidence of her pregnancy, abortion, and lack of sexual history to bolster
         her allegations of criminal sexual conduct against defendant. There is no
         indication from our Legislature or in our caselaw that the rape-shield statute was
         designed to prevent a complainant’s disclosure of her own sexual history or its
         attendant consequences. Accordingly, giving effect to the plain language of the
         statute and to the Legislature’s intent in enacting the rape-shield statute, we hold
         that the entirety of the evidence offered here is not subject to the rape-shield
         statute. [Id. at 330-331 (citations omitted).]

Finally, the Supreme Court in Sharpe concluded that the evidence was admissible under MRE
4023 and MRE 4034 because the evidence was relevant and the danger of unfair prejudice did not
substantially outweigh the probative value of the evidence. Sharpe, 502 Mich at 331-335.

        The analysis in Sharpe leads us to the conclusion that the evidence of the second male
DNA donor in this case does not fall within the scope of the rape-shield statute, i.e., the evidence
is not subject to the rape-shield statute. The rape-shield statute applies to “[e]vidence of specific
instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and
reputation evidence of the victim’s sexual conduct . . . .” MCL 750.520j(1). Plainly, the
evidence concerning the second male DNA donor here is not opinion evidence of the victim’s
sexual conduct or reputation evidence of the victim’s sexual conduct, nor does the prosecutor


3
 MRE 402 provides, in pertinent part, that “[e]vidence which is not relevant is not admissible.”
Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” MRE 401. See also Sharpe, 502 Mich at 331.
4
    MRE 403 provides:
                 Although relevant, evidence may be excluded if its probative value is
         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.

See also Sharpe, 502 Mich at 331-332.


                                                 -6-
argue as much. The question is whether the DNA evidence constitutes evidence of a specific
instance of the victim’s sexual conduct.

        In the prosecutor’s brief on appeal, the prosecutor concedes that, “[i]n this case, the DNA
sample is not identified as saliva, semen, or sperm. It’s just male DNA based on Y chromosome
screening. In fact, the lab report refers to ‘vulvar swabs non-sperm fraction.’ ” See also Bailey
III, unpub op at 5 n 4 (“On appeal, the prosecutor asserts that the evidence of an unidentified
male donor may not be evidence relating to the source of ‘semen’ because the lab report
describes the sample taken from the victim as a ‘DNA extract, non-sperm fraction.’ Thus,
according to the prosecutor[,] the other male sample could be saliva or some other substance not
specifically mentioned in MCL 750.520j(1)(b).”).

        Under the reasoning in Sharpe, we believe that evidence of an unidentified male’s DNA
contained in the victim’s rape kit is not evidence of a specific instance of the victim’s sexual
conduct for the purpose of MCL 750.520j(1). Although this evidence could imply that sexual
activity occurred that caused the unknown male’s DNA to be present in the victim’s vulva, it is
not evidence of a specific instance of sexual conduct. The DNA evidence here does not describe
a particular or specific sexual encounter but rather demonstrates at most that some type of sexual
activity may have occurred at some point between the victim and the unidentified male. Hence,
the unknown male’s DNA sample obtained from the rape kit is not evidence of a particular
occurrence of sexual conduct and does not fall within the purview of the rape-shield statute. See
Sharpe, 502 Mich at 328-329.

         This conclusion is further bolstered by the Sharpe Court’s analysis of MCL 750.520j as a
whole. As noted in Sharpe, the Legislature distinguished between the specific instance of sexual
activity that comprised the source or origin of the semen, pregnancy, or disease and the semen,
pregnancy, or disease itself. Sharpe, 502 Mich at 329. In other words, while semen, pregnancy,
or disease might be “related to sex,” semen, pregnancy, and disease “are not themselves the
specific instances of sexual conduct envisioned by MCL 750.520j.” Id. In this case, the
unknown male’s DNA recovered in the victim’s rape kit, while possibly related to sex,5 is not
itself a specific instance of sexual conduct envisioned by the rape-shield statute. Accordingly,
the DNA evidence in this case falls outside the purview of the rape-shield statute, and thus, the
evidence is not inadmissible under the rape-shield statute.

        Nonetheless, the evidence of the unknown male DNA donor could still be inadmissible
under MRE 402 or MRE 403. In particular, the evidence could be deemed irrelevant for the
reasons set forth in this panel’s opinion in Bailey III, i.e., defendant has offered no basis to
conclude that the evidence is material to a fact at issue in the case. Defendant has provided no
offer of proof such as an expert opinion to establish that the unknown male’s DNA sample
affected the accuracy of the identification of defendant’s DNA recovered from the rape kit. But
the arguments in this case have thus far concerned the rape-shield statute. That is, the
prosecutor’s arguments about relevancy and prejudice have been in the context of the application


5
  Again, it is unknown whether the unidentified male’s DNA sample is comprised of semen,
saliva, or some other substance.


                                                -7-
of the rape-shield statute, as opposed to a more basic evidentiary objection or argument purely
under MRE 402 or MRE 403. Therefore, our analysis is confined to the rape-shield statute but
our decision in this appeal is without prejudice to the prosecutor’s filing an appropriate motion or
making an appropriate objection on remand challenging the admission of any evidence
concerning the unknown male’s DNA under MRE 402 or MRE 403.

        In conclusion, the trial court reached the correct result in part, given that the trial court
ruled that the rape-shield statute did not bar the admission of the evidence concerning the
unidentified male DNA donor. This Court will affirm a trial court’s decision if it reached the
correct result for the wrong reason. People v McLaughlin, 258 Mich App 635, 652 n 7; 672
NW2d 860 (2003). But we vacate, in part, the trial court’s decision that defendant will be
allowed to cross-examine witnesses and provide rebuttal witnesses regarding the results of the
DNA sample. Whether the evidence is ultimately admissible must be determined by the trial
court on remand only after considering any appropriate motions or objections made by the
prosecutor under MRE 402 or MRE 403. Accordingly, the trial court’s order is affirmed in part
and vacated in part because, under Sharpe, the evidence of the second male DNA donor in this
case does not fall within the scope of the rape-shield statute, but the prosecutor should be
permitted on remand to file any appropriate motions or make any appropriate objections
challenging the admission of this evidence under MRE 402 or MRE 403.

       Affirmed in part, vacated in part, and remanded for further proceedings as set forth in this
opinion. We do not retain jurisdiction.




                                                              /s/ Mark J. Cavanagh
                                                              /s/ Deborah A. Servitto
                                                              /s/ Jane M. Beckering




                                                -8-
