PEOPLE OF MI V DANIEL ALLEN LEHMAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 21, 1998
Plaintiff-Appellee,
v
No. 196560
Ingham Circuit Court
LC No. 95-069709 FH
DANIEL ALLEN LEHMAN,
Defendant-Appellant.
ON REMAND
Before: Griffin, P.J., and Holbrook, Jr. and Neff, JJ.
PER CURIAM.
This case has been remanded to this Court by our Supreme Court for reconsideration in light of
People v Starr, 457 Mich 490; ___NW2d ___ (1998). People v Lehman, ___ Mich ___; ___
NW2d ___ (Docket No. 111768, issued 7/13/98). In our original opinion we reversed defendant’s
convictions and remanded the case for a new trial based on evidentiary error involving MRE 404(b).
People v Lehman, unpublished opinion per curiam of the Court of Appeals, issued 3/3/98 (Docket
No. 196560). After careful review of both our previous opinion and the Supreme Court’s opinion in
Starr, we reach the same conclusion and again reverse and remand for a new trial.
I
In Starr, our Supreme Court revisited MRE 404(b) in the context of testimony of prior sexual
misconduct where the defendant was charged with first- and second-degree criminal sexual conduct,
MCL 750.520b; MSA 28.788(2); MCL 750.520c; MSA 28.788(3). In reinstating defendant’s
convictions, the Court simply reiterated the standards for the admissibility of such evidence pursuant to
MRE 404(b) that were articulated in People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993).
Our reading of Starr leaves us with the firm belief that the opinion does not alter, contract or expand the
Court’s earlier pronouncement in VanderVliet regarding MRE 404(b), except to emphasize that the
third prong of the VanderVliet test requires that the probative value of other acts evidence be
substantially outweighed by the risk of unfair prejudice. Starr, supra at 498-500. It is because we
believe that our earlier opinion correctly applied the principles of VanderVliet that we again reverse and
remand.
-1
II
Defendant was convicted of two counts of second-degree criminal sexual conduct, MCL
750.520c; MSA 28.788(3). The prosecutor was permitted to introduce evidence of a prior incident of
sexual misconduct involving defendant’s half-sister. In allowing admission of this evidence, the trial
court applied an incorrect test of admissibility.1 On our review we applied the test required by
VanderVliet and determined that the prior acts testimony (1) was not offered for a proper purpose, and
(2) was not relevant to an issue of consequence at trial. Because of our findings regarding purpose and
relevancy, it was not necessary for us to reach the third prong of the VanderVliet test, the balancing test
of MRE 403, which is the focus of the decision in Starr.
On remand we hold that the decision in Starr, with its focus on the probative value/prejudicial
effect of the evidence compels no different result from the one reached in our original opinion.
III
The Supreme Court’s order on remand does not affect our earlier decision with regard to the
other issue raised on appeal, namely improper questioning by the prosecutor. Accordingly, that holding
stands as the law of the case.
Reversed and remanded for new trial. We do not retain jurisdiction.
/s/ Richard Allen Griffin
/s/ Donald E. Holbrook, Jr.
/s/ Janet T. Neff
1
Specifically, the trial court applied the four-part test from People v Golochowicz, 413 Mich 298; 319
NW2d 518 (1982), as applied in People v Terry Miller (On Remand), 186 Mich App 660; 465
NW2d 47 (1991). Our Supreme Court discarded this test in People v VanderVliet, 444 Mich 52, 74;
508 NW2d 114 (1993).
-2
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