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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 23, 2010
Ottawa Circuit Court
LC No. 08-032640-FC
JAMES LEE MOULTER,
Before: O’CONNELL, P.J., and BANDSTRA and MURRAY, JJ.
Defendant appeals as of right from his jury convictions of five counts of first-degree
criminal sexual conduct (CSC I) (sexual penetration of relative between 13 and 16 years of age)
MCL 750.520b(1)(b)(ii). We affirm. This appeal has been decided without oral argument
pursuant to MCR 7.214(E).
Defendant was accused of the repeated sexual abuse of his daughter. He claimed that she
was lying about the abuse, and presented numerous witnesses who testified that he was honest
and that she was untruthful, making her credibility a material issue in this case. On appeal, he
argues that certain evidence was “other acts” evidence that was inadmissible under MRE 404(b)
or MCL 768.27a.
The admissibility of other acts evidence is within the trial court’s discretion and
will be reversed on appeal only when there has been a clear abuse of discretion.
A court abuses its discretion when it chooses an outcome that is outside the range
of reasonable and principled outcomes. The determination whether the probative
value of evidence is substantially outweighed by its prejudicial effect is best left
to a contemporaneous assessment of the presentation, credibility, and effect of the
testimony. [People v Waclawski, 286 Mich App 634, 669-670; 780 NW2d 321
(2009) (citations omitted).]
The admissibility of evidence under MCL 768.27a is also reviewed for an abuse of discretion.
See People v Pattison, 276 Mich App 613, 621; 741 NW2d 558 (2007).
Defendant first takes issue with the testimony of complainant’s friends, L. Z. and R. F.,
regarding instances of defendant tickling and spanking them, and giving them wedgies. L. Z.
testified that he tickled her near her breasts. R. F. said that defendant touched her breast area
during the tickling, and also explained that when he gave her a wedgie his hand would go inside
her pants and touch her buttocks. The girls estimated that they were 10 or 11, and 11 or 12 years
old, respectively, when this happened. This evidence was admitted under MCL 768.27a, which
(1) [I]n a criminal case in which the defendant is accused of committing a listed
offense against a minor, evidence that the defendant committed another listed
offense against a minor is admissible and may be considered for its bearing on
any matter to which it is relevant. . . .
(2) As used in this section:
(a) “Listed offense” means that term as defined in section 2 of the sex offenders
registration act, 1994 PA 295, MCL 28.722.
(b) “Minor” means an individual less than 18 years of age.
Defendant was accused of CSC I with respect to his daughter, a minor, which is a listed offense
under MCL 28.722(e). The trial court found that the statements of R. F. and L. Z. would support
a charge of second-degree criminal sexual conduct, contrary to MCL 750.520c, which is also a
listed offense under MCL 28.722(e). This statute criminalizes sexual contact with a minor under
13 years of age. Sexual contact is defined to include intentional touching of intimate parts if it
“can reasonably [be] construed as being for the purpose of sexual arousal or gratification  done
for a sexual purpose . . . .” MCL 750.520a(q).
Defendant argues that the trial court erred because the tickling, spanking, and wedgie
were benign and playful and not for a sexual purpose, i.e., sexual gratification or arousal. In
making this argument, defendant does not acknowledge the testimony that, during the tickling,
defendant touched their breast or breast area, or R. Z.’s testimony that when he gave her the
wedgie he touched her buttocks. Although defendant paints the behavior as innocuous, the
conduct could give rise to a reasonable finding that it was for the purpose of sexual arousal or
gratification. Accordingly, defendant has not established that the trial court abused its discretion
in concluding that the testimony was admissible under MCL 768.27a.
The probative value of this evidence must outweigh its prejudicial effect. See Pattison,
276 Mich App at 621. However, unfair prejudice results only if the evidence is likely to be given
undue weight by the jury or the probative value is substantially outweighed by the danger of
unfair prejudice. People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995). Here, that defendant
was attracted to young girls made it more probable that complainant was telling the truth when
she claimed that defendant acted out sexually with her. In People v Mann, ___ Mich App ___;
___ NW2d ___ (2010), this Court indicated that whether minors were “telling the truth had
significant probative value because it underlies whether [the defendant] should be convicted of
the crimes for which he was charged.” Id. at ___. Further, the Mann Court found that where, as
here, the jury was instructed that the evidence could only be used to assess the believability of
testimony pertaining to the charged offenses, the probative value would not be outweighed by
the danger of unfair prejudice. Id. Accordingly, we find no error.
Defendant next takes issue with evidence regarding C.F., a 17-year-old girl who lived
with defendant and complainant. Defendant argues that evidence regarding her interactions with
him should not have been admitted under MCL 768.27a because, given that she was over 16
years of age, the evidence would not have supported a charge of accosting or soliciting a minor
for immoral purposes contrary to MCL 750.145a, a listed offense. However, while the trial court
initially ruled that her testimony would be admissible based on the statute, it subsequently issued
an opinion and order on reconsideration acknowledging that this ruling was in error. The court
went on to find that the evidence was admissible under MRE 404(b). Even though the evidence
did not involve sexual intercourse and varied from the charged offense, the court concluded that
it was sufficiently similar to show a common scheme or plan. The court noted that C.F. was
living with defendant, as was his daughter, that C.F. and his daughter were of similar age, that
defendant exercised parental authority over them, and that he promised them gifts. Defendant
has not argued that this ruling was erroneous. He does argue that the evidence was more
prejudicial than probative, but the trial court found no unfair prejudice, reiterating that the
evidence would be highly probative of complainant’s credibility and was not so similar or so
inflammatory that the jury would give it preemptive weight. We find no abuse of discretion.
Next, defendant argues that evidence of cookies on his computer that referenced websites
suggestive of child pornography should have been excluded based on MRE 404(b)(1), which
(1) 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.
In People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), amended 445 Mich 1205
(1994), our Supreme Court elaborated:
[First,] [t]he evidence must be relevant to an issue other than propensity
under Rule 404(b), to protect against the introduction of extrinsic act evidence
when that evidence is offered solely to prove character. Stated otherwise, the
prosecutor must offer the other acts evidence under something other than a
character to conduct theory.
Second, . . . the evidence must be relevant under Rule 402, as enforced
through Rule 104(b), to an issue or fact of consequence at trial.
Third, the trial judge should employ the balancing process under Rule 403.
Other acts evidence is not admissible simply because it does not violate Rule
404(b). Rather, a determination must be made whether the danger of undue
prejudice [substantially] outweighs the probative value of the evidence in view of
the availability of other means of proof and other facts appropriate for making
decision of this kind under Rule 403. [Citations and quotation marks omitted;
emphasis in original.]
This evidence was not proffered to show that defendant had a bad character and acted in
conformity therewith. Complainant testified that defendant showed her pornographic sites to
convince her that their sexual relationship was normal and to illustrate desired sexual behavior.
Her credibility was a central issue at trial. The existence of these sites on defendant’s computer
had a tendency to make it more probable that complainant was telling the truth. Accordingly, the
evidence was relevant under MRE 401 and admissible under MRE 402 unless it was
inadmissible under MRE 403. For the same reasons discussed above, MRE 403 did not require
Finally, defendant challenges the admission of a video recording that he made. One
segment arguably showed that defendant had focused the video camera on his daughter’s breasts
and vaginal area. In another segment, defendant had filmed the buttocks of girls who
participated in a color guard with complainant. Defendant commented “butt shots”, and then
said “Back to [his daughter]” and filmed her buttocks.
In People v Sabin (After Remand), 463 Mich 43, 60-61; 614 NW2d 888 (2000), our
Supreme Court noted that “[u]nlike the courts of other jurisdictions, we have never adopted the
so-called ‘lustful disposition’ rule, which allows the use of other acts for propensity purposes in
sex offense cases.” Thus, the evidence would be precluded if the prosecutor were trying to show
that defendant was interested in sexual activity with young girls as evidence that he had acted on
those impulses. In other words, the evidence would be precluded if the prosecutor were trying to
show that defendant found young girls sexually interesting and acted in conformity therewith.
However, here the prosecutor was trying to show that defendant was sexually attracted to his
daughter. He was not trying to show a lustful disposition generally, but an attraction to the
specific victim. Given this distinction, we conclude that the lustful disposition rule is inapposite.
Moreover, that defendant was sexually attracted to his daughter had a tendency to prove that he
was sexually active with his daughter, and also tended to establish that her claims were credible.
Accordingly, the evidence was not barred by MRE 404(b).
/s/ Peter D. O’Connell
/s/ Richard A. Bandstra
/s/ Christopher M. Murray