If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

FOR PUBLICATION

September 22, 2022

9:20 a.m.

V No. 355977

Allegan Circuit Court

JUAN CARLOS MUNIZ, LC No. 18-021853-FC

Defendant-Appellant.

Before: MURRAY, P.J., and O’BRIEN and REDFORD, JJ.

REDFORD, J.

Defendant appeals as of right his conviction by a jury of first-degree criminal sexual 

conduct (CSC-I), MCL 750.520b. The trial court sentenced him as a second-offense habitual 

offender, MCL 769.10, to 15 to 25 years’ imprisonment with credit for 207 days served. We 

affirm.

I. BACKGROUND

At trial, the complainant, defendant’s younger cousin, testified that defendant sexually 

abused her at family gatherings when she was aged 4, 7, and 13 years old. The complainant 

reported the incidents to her parents when 14 years old but they did not report the incidents to the 

authorities because they did not wish to cause a conflict in the family. Later, the complainant told 

her friend about the incidents who informed a school counselor which led to investigation by Child 

Protective Services and the police.

On appeal, defendant argues that his trial counsel provided ineffective assistance by failing 

to object to the testimony of two expert witnesses, Thomas Cottrell and Dr. Debra Simms, who he 

argues improperly bolstered the complainant’s testimony. Defendant also argues that sentencing

guidelines Offense Variables (OV) 13 and 19 were errantly scored, that MCL 768.27a is 

unconstitutional, and that propensity evidence admitted under that statute invalidated the results 

below. For the reasons stated in this opinion, we affirm defendant’s conviction and sentence.
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II. STANDARDS OF REVIEW

We review de novo the constitutional question whether an attorney provided ineffective 

assistance depriving a defendant of the right to counsel. People v Unger, 278 Mich App 210, 253; 

749 NW2d 272 (2008). We review for an abuse of discretion a trial court’s decision to grant or 

deny a new trial. People v Terrell, 289 Mich App 553, 559; 797 NW2d 684 (2010). A trial court’s 

decision on an evidentiary issue will be reversed on appeal only when there has been a clear abuse 

of discretion. People v Holtzman, 234 Mich App 166, 190; 593 NW2d 617 (1999). A trial court 

does not abuse its discretion when it chooses an outcome within the range of reasonable and 

principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

III. ANALYSIS

A. EXPERT TESTIMONY

1. COTTRELL

Defendant argues that his trial counsel provided ineffective assistance by failing to object 

to the testimony of licensed social worker and child sexual abuse therapist, Thomas Cottrell, who 

the trial court qualified as an expert in child sexual-abuse victim behavior, and testified generally 

about the reasons for sexual-assault victims’ delayed, or gradual, disclosure of abuse, as well as 

factors related to victims’ recollections of abuse, and recanting reports of abuse. Cottrell also 

offered general information regarding victim selection, and victim behaviors. At the 

postconviction hearing on defendant’s motion for a new trial or an evidentiary hearing, defendant 

argued that defense counsel should have moved to exclude Cottrell’s testimony on the grounds 

that it lacked reliability, as demonstrated by an affidavit submitted by defendant’s expert, and that

it improperly bolstered the complainant’s credibility. The trial court complimented defense

counsel’s vigorous advocacy, but stated that Cottrell did not improperly bolster the complainant’s 

testimony because the “expert witness” did not “respond[] to questions regarding credibility based 

on research, personal experience, practice, expert knowledge.” The trial court further concluded 

that an objection to Cottrell’s qualifications to provide reliable testimony would have been “a 

pleading without merit with this Court.”

a. ADMISSIBILITY

MRE 702 provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of 

fact to understand the evidence or to determine a fact in issue, a witness qualified 

as an expert by knowledge, skill, experience, training, or education may testify 

thereto in the form of an opinion or otherwise if (1) the testimony is based upon 

sufficient facts or data, (2) the testimony is the product of reliable principles and 

methods, and (3) the witness has applied the principles and methods reliably to the 

facts of the case.
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MRE 702 incorporates the standards of reliability established in Daubert v Merrell Dow Pharm, 

Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993). Gilbert v DaimlerChrysler Corp, 470 

Mich 749, 781; 685 NW2d 391 (2004). “[T]he court may admit evidence only once it ensures, 

pursuant to MRE 702, that expert testimony meets that rule’s standard of reliability.” Id. at 782. 

“The trial court thus acts as a gatekeeper for expert testimony and has a fundamental duty to ensure 

that the proffered expert testimony is both relevant and reliable.” People v Bynum, 496 Mich 610, 

624; 852 NW2d 570 (2014). A trial court must make a searching inquiry to determine whether to 

admit expert testimony. Gilbert, 470 Mich at 782. The preliminary determination of the 

qualification of an expert is for the trial court. Id. at 780.

Defendant argues that Cottrell’s testimony lacked reliability because it appeared to be 

based on his training and experience treating victims, rather than academic studies. Michigan 

courts regularly admit expert testimony concerning typical and relevant symptoms of abuse, such 

as delayed reporting and secrecy. People v Peterson, 450 Mich 349, 373; 537 NW2d 857 (1995) 

(holding that the prosecution may present relevant and helpful evidence to generally explain the 

common postincident behavior of child victims of sexual abuse). As to Cottrell not specifically 

citing the academic journals or other sources on which a child sex abuse expert witness relied, our 

Supreme Court long has recognized that “[t]here has developed a body of knowledge and 

experience about the symptomatology of child abuse victimization,” People v Beckley, 434 Mich 

691, 733; 456 NW2d 391 (1990), that “serves only to define the broad range of possible physical, 

psychological, and emotional reactions that a child victim could potentially experience.” Id. 

at 722. Our Supreme Court explained that “the purpose of allowing expert testimony in these 

kinds of cases is to give the jury a framework of possible alternatives for the behaviors,” and “to 

provide sufficient background information about each individual behavior at issue which will help 

the jury to dispel any popular misconception commonly associated with the demonstrated 

reaction.” Id. at 726.

“ ‘Under MRE 702, it is generally not sufficient to simply point to an expert’s experience 

and background to argue that the expert’s opinion is reliable and, therefore, admissible.’ ” Elher 

v Misra, 499 Mich 11, 23; 878 NW2d 790 (2016), quoting Edry v Adelman, 486 Mich 634, 642; 

786 NW2d 567 (2010). However, in addition to his work in treating over 300 victims of abuse, 

Cottrell testified regarding his training, continuing education through conferences and training 

sessions, and research, all sources of his knowledge. A witness may be qualified “as an expert by 

knowledge, skill, experience, training, or education.” MRE 702. In this case, Cottrell discussed 

each of these areas as the foundation of his knowledge.

Defendant does not dispute Cottrell’s qualifications, but argues that his testimony was not 

scientifically valid and thus could not assist the jury in understanding victim behavior. A trial 

court must consider several factors to determine “whether the reasoning or methodology 

underlying the testimony is scientifically valid and . . . whether that reasoning or methodology 

properly can be applied to the facts in issue.” Daubert, 509 US at 592-593. The expert’s opinion 

must be shown to be reliable, including the data underlying the expert’s theories and the 

methodology by which the expert draws his or her conclusions. People v Yost, 278 Mich App 341, 

394; 749 NW2d 753 (2008).

After his trial in his motion for a new trial, defendant submitted an affidavit of a 

psychologist that stated that there was “no scientific consensus, let alone empirical research, to 
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support” many of Cottrell’s statements. The affidavit further asserted that research in the area had

some deficits, and did not fully support Cottrell’s assertions regarding delayed disclosure of abuse, 

victims’ fears about being believed or separated from their families, victims’ memories, and 

victims’ recantations. Although defendant’s affiant may disagree with several of Cottrell’s 

assertions, his affidavit does not establish that the totality of Cottrell’s testimony lacked reliability 

or admissibility. Cottrell defined the parameters of his knowledge base, which were adequate to 

qualify him. Defense counsel had opportunity to thoroughly cross-examine Cottrell and challenge

any of his testimony but did not interrogate Cottrell about research or studies that either supported 

or contradicted his opinions. Defendant failed to establish any ground for doubting Cottrell’s 

reliability.

“It has also long been recognized that the behavior of victims of varying kinds of trauma 

often appears irrational and confusing to most people; and expert testimony is admissible and 

appropriate to explain that behavior with no need to engage in an analysis of scientific reliability.” 

People v Spaulding, 332 Mich App 638, 659; 957 NW2d 843 (2020); see also People v Christel, 

449 Mich 578, 590-591; 537 NW2d 194 (1995). In this case, Cottrell’s testimony provided a 

general explanation of sexual-assault victims’ behavior following an assault. Cottrell gave

testimony regarding a wide range of many aspects of such behavior. His expert testimony properly 

gave a general explanation of “the common postincident behavior of children who are victims of 

sexual abuse.” Peterson, 450 Mich at 373.

b. VOUCHING

Defendant argues further that Cottrell’s testimony vouched for the complainant’s 

credibility. An expert may not vouch for the veracity of a victim. People v Dobek, 274 Mich App 

58, 71; 732 NW2d 546 (2007). Accordingly, an expert may not engage in “unwarranted 

reinforcement of the complaining witness’s testimony” by giving a “stamp of scientific legitimacy 

to the truth of the complaining witness’s factual testimony” concerning the alleged crime. People 

v Izzo, 90 Mich App 727, 730; 282 NW2d 10 (1979). An expert may not testify that a specific 

victim’s allegations are truthful or that abuse in fact occurred. People v Garrison (On Remand), 

187 Mich App 657, 658; 468 NW2d 321 (1991). Sexual-abuse “syndrome evidence is not 

admissible to demonstrate that abuse occurred and . . . an expert may not give an opinion whether 

the complainant is being truthful.” Peterson, 450 Mich at 369.

Defendant argues that Cottrell’s testimony “showed the jury that [the complainant’s] 

behavior was consistent with an actual abuse victim,” and that “Cottrell’s customized profile of an 

actual victim was neatly tailored” to the complainant’s testimony. An expert is not permitted to 

testify “that the particular child victim’s behavior is consistent with that of a sexually abused child” 

because such information “comes too close to testifying that the particular child is a victim of 

sexual abuse.” Peterson, 450 Mich at 373-374. In this case, defendant argues that Cottrell’s 

testimony was so consistent with the complainant’s testimony that it amounted to vouching.

The record, however, indicates that Cottrell never compared his general information about 

the behavior of abuse victims with specific behavior of the complainant. The record reflects that, 

in fact, the prosecution avoided eliciting any testimony as to the validity of the victim’s statements.

That the general information about abuse victim’s conduct about which Cottrell testified happened 

to be consistent with the complainant’s postincident behavior does not constitute vouching. 
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Cottrell testified regarding general conduct of abuse victims based on his 30 years of experience 

in counseling numerous abuse victims. Further, Cottrell testified that he had not met the 

complainant or read the police report or forensic interview, and explained that the prosecutor had 

provided only a brief description of the case over the phone. Cottrell made no references to the 

victim’s allegations, her disclosure of information, or any other aspects of this case. Defendant’s 

trial counsel attempted to ask Cottrell whether his work involved assessing the credibility of abuse 

victims, but the trial court promptly intervened before Cottrell could respond, and at no time during 

his testimony did Cottrell offer any opinion or statement that could be reasonably understood as 

vouching for the complainant in this case. Moreover, during cross-examination, Cottrell admitted 

that a victim’s late disclosure, recanting allegations, and demeanor while testifying did not 

necessarily mean that an allegation was truthful. In fact, Cottrell’s testimony on cross-examination 

served the opposite of vouching. When asked if he was “testifying . . . as to whether or not what 

happened in this case actually happened” he answered that he “could not.” For these reasons, 

Cottrell’s testimony did not vouch for the credibility of the complainant.

c. INEFFECTIVE ASSISTANCE

A defendant’s right to counsel is guaranteed by the United States and Michigan 

Constitutions. US Const, Am VI; Const 1963, art 1, § 20. This “right to counsel encompasses the 

right to the effective assistance of counsel.” People v Cline, 276 Mich App 634, 637; 741 NW2d 

563 (2007). The “effective assistance of counsel is presumed, and the defendant bears a heavy 

burden of proving otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). 

To prevail on a claim of ineffective assistance of counsel, a defendant must show that “counsel’s 

performance was deficient,” and that the “deficient performance prejudiced the defense.” People 

v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007) (quotation marks and citation omitted). 

Defense counsel’s performance is deficient if “it fell below an objective standard of professional 

reasonableness.” People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). The 

performance will be deemed to have prejudiced the defense if it is reasonably probable that, but 

for counsel’s errors, “the result of the proceeding would have been different.” Id. Accordingly, 

“defendant must show that (1) counsel’s performance fell below an objective standard of 

reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability 

that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 

136 (2012) (citations omitted).

Defendant asserts that his trial counsel had no strategic reason for not objecting to Cottrell’s 

testimony. The trial court, however, suggested that defense counsel’s strategy was to challenge 

the limits of Cottrell’s testimony, rather than offering a meritless objection. Regardless of the 

success of this strategy, defense counsel chose to characterize Cottrell’s testimony as inapplicable 

to the facts of this particular case. As the trial court noted, an objection to Cottrell’s qualifications 

as an expert would have been futile. Moreover, as explained previously, Cottrell offered 

admissible expert testimony and he did not vouch for the complainant but stayed clear of testifying 

to inadmissible opinions. Accordingly, had defense counsel objected, such objections would have 

been futile. Counsel is not ineffective for declining to raise a futile objection. See In re Archer, 

277 Mich App 71, 84; 744 NW2d 1 (2007). Defendant’s claim of ineffective assistance, therefore,

fails.
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2. DR. SIMMS

Defendant also argues that his trial counsel provided ineffective assistance by failing to 

object to Dr. Debra Simms’s testimony about the treatment she prescribed for the complainant, on 

the ground that Dr. Simms thus vouched for the complainant’s credibility.

The trial court qualified Dr. Simms as an expert in “child sexual assault examination.” She

testified that “the purpose of this evaluation [of the complainant] was to take a history and to do 

an examination and an evaluation for possible pediatric sexual abuse.” Dr. Simms testified that 

the complainant disclosed to her that she had been sexually abused by defendant until age 14, and 

explained that “any time that you have the potential for body fluid contact . . . there’s the potential 

for sexually transmitted infections. So, she was tested for gonorrhea, chlamydia, and 

trichomonas . . . and . . . also for HIV, syphilis, and Hepatitis C.” Regarding Dr. Simms, the trial 

court reasoned that “[t]here was not a diagnosis of pediatric sexual abuse by Dr. Simms,” but rather 

“referrals for treatment and counseling and for testing.”

a. VOUCHING

Defendant argues that this case is “a near carbon copy of Thorpe.” In People v Thorpe, 

504 Mich 230, 261-262; 934 NW2d 693 (2019), a case presided over by the same trial judge, our

Supreme Court held that the trial court plainly erred by permitting Dr. Simms to testify that a 

victim suffered “probable pediatric sexual abuse” based on the victim’s account of the assault, 

when no physical evidence corroborated such testimony. The Court reiterated that “an examining 

physician cannot give an opinion on whether a complainant had been sexually assaulted if the 

‘conclusion [is] nothing more than the doctor’s opinion that the victim had told the truth.’ ” Id. 

at 262, quoting People v Smith, 525 Mich 98, 109; 387 NW2d 814 (1986).

Defendant argues that Dr. Simms’s testimony that she referred the complainant for tests 

for sexually transmitted diseases implied that Dr. Simms thought it likely that there had been a 

sexual assault, and thus, vouched for the complainant’s testimony. Dr. Simms, however, explained 

that she ordered tests for possible sexually transmitted diseases in response to the mere “potential 

for body fluid contact,” resulting in “the potential for sexually transmitted infections.” Dr. Simms 

ordered the tests out of caution regarding possible infection, rather than out of the belief that the 

complainant had been sexually abused. Dr. Simms stated that the complainant was referred 

because of “possible pediatric sexual abuse.” In this case, Dr. Simms did not diagnose the 

complainant as a probable or actual victim of pediatric sexual abuse.

In Thorpe, Dr. Simms offered improper opinion testimony that she diagnosed the child in 

that case with “probable pediatric sexual abuse” based solely on the victim’s statement. Thorpe, 

504 Mich 245-248. Our Supreme Court held that such testimony prejudiced the defendant by 

clearly improperly vouching for the accuser’s credibility. Id. at 263-264. In this case, by contrast,

Dr. Simms did not provide any diagnosis, gave no opinion regarding the complainant’s statements, 

and testified that she directed follow-up care for testing for sexually transmitted disease infection 

from contact with bodily fluids. Dr. Simms gave no testimony respecting whether the complainant

had been sexually abused. For these reasons, we conclude that Dr. Simms’s did not vouch for the 

credibility of the complainant.
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b. INEFFECTIVE ASSISTANCE

Defendant argues that his trial counsel provided ineffective assistance by failing to object 

to Dr. Simms’s testimony. However, the matter had been well vetted prior to trial. At a motion 

hearing to decide the scope of Dr. Simms’s testimony, defendant argued that Dr. Simms should 

not testify because no admissible evidence existed that the complainant had physical injuries, and

therefore, Dr. Simms could not properly testify that the complainant was sexually abused. The 

trial court agreed and ruled that Dr. Simms “cannot testify to a diagnosis of . . . pediatric sexual 

abuse regardless of what she may testify that there has been these things that she found in her 

medical exam.” Defense counsel, therefore, reasonably refrained from positing a meritless 

objection after having established the limited bounds of Dr. Simms’s testimony. The record 

indicates that the parties avoided eliciting from Dr. Simms any testimony that she had “diagnosed”

the complainant as having been sexually abused. Trial counsel is not ineffective for declining to 

raise a futile objection. In re Archer, 277 Mich App at 84.

B. OFFENSE VARIABLES

Defendant alternatively challenges his minimum sentence on the ground that the trial court 

relied on a guidelines range infected by two scoring errors. We disagree.

We review the trial court’s factual determinations at sentencing for clear error. People v 

Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to 

satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a 

question of statutory interpretation, which an appellate court reviews de novo.” Id. See also 

People v Calloway, 500 Mich 180, 184; 895 NW2d 165 (2017).

“A defendant is entitled to be sentenced by a trial court on the basis of accurate 

information.” People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). A trial court relies on 

inaccurate information when it sentences a defendant by consulting an inaccurate guidelines range. 

See id. at 89 n 7. The court must score and consider the sentencing guidelines and assess the 

highest amount of points properly applicable for each offense variable. People v Lockridge, 498 

Mich 358, 392 n 28; 870 NW2d 502 (2015). The appropriate offense variables are generally 

assessed on the basis of the sentencing offense. People v Sargent, 481 Mich 346, 348; 750 NW2d 

161 (2008). “A sentencing court has discretion in determining the number of points to be scored, 

provided that evidence of record adequately supports a particular score.” People v Dickinson, 321 

Mich App 1, 21; 909 NW2d 24 (2017). The trial court’s factual determinations regarding offense 

variables must be supported by a preponderance of the evidence. People v Osantowski, 481 Mich 

103, 111; 748 NW2d 799 (2008). “The trial court may rely on reasonable inferences arising from 

the record evidence to sustain the scoring of an offense variable.” People v Earl, 297 Mich App 

104, 109; 822 NW2d 271 (2012).

1. OFFENSE VARIABLE 13

The trial court assessed 10 points for OV 13, MCL 777.43(1)(d), which concerns a 

continuing pattern of criminal behavior when “[t]he offense was part of a pattern of felonious 

criminal activity involving a combination of 3 or more crimes against a person or property . . . .” 
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The crimes considered in assessing OV 13 include “all crimes within a 5-year period, including 

the sentencing offense, . . . regardless of whether the offense resulted in a conviction.” MCL 

777.43(2)(a).

“A sentencing court may consider all record evidence before it when calculating the 

guidelines, including, but not limited to, the contents of a presentence investigation report, 

admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary 

examination or trial.” People v Johnson, 298 Mich App 128, 131; 826 NW2d 170, 172 (2012). 

According to the presentence investigation report (PSIR), defendant committed the sentencing 

offense in December 2016, had been convicted of felony breaking and entering twice in December 

2014, and convicted of the felony of attempted unlawful driving away of an automobile in June 

2014. Therefore, the prerequisite three prior felony convictions, including the sentencing offense, 

within five years of the sentencing offense, are matters of record requiring assessment of 10 points 

for OV 13.

Defendant concedes that he was convicted of four felonies since 2014, thus within five 

years of the sentencing offense, but argues that they established no “pattern of felonious activity” 

because the earlier convictions were for crimes against property, as opposed to the instant crime 

against a person. The plain language of MCL 777.43(1)(d), however, specifies assessment of 

points for “felonious criminal activity” consisting of “crimes against a person or property”. 

Defendant’s argument, therefore, lacks merit.

2. OFFENSE VARIABLE 19

Defendant argues that the trial court erred by assessing 10 points for OV 19. MCL 

777.49(c) requires assessment of points if “[t]he offender . . . interfered with or attempted to 

interfere with the administration of justice.” Defendant claims that no evidence established that 

he interfered with the administration of justice.

The factors considered for OV 19 include events that almost always occur after the charged 

offense has been completed. People v Smith, 488 Mich 193, 200; 793 NW2d 666 (2010). 

Interfering, or attempting to interfere, with the administration of justice includes acts that constitute 

obstruction of justice, but is not limited to such acts. People v Ericksen, 288 Mich App 192, 204; 

793 NW2d 120 (2010).

At the sentencing hearing the trial court reasoned that 10 points must be assessed for OV 

19 because defendant had not only denied the complainant’s allegations to the police, but he 

“deflected” the police by telling them that he “really did not go over to [the complainant’s] house 

and she rarely came to their’s,” that the complainant was prescribed psychotropic medications that 

“were really bad for her,” and that the complainant had recanted allegations she made against her 

grandfather. According to the PSIR, defendant also told the police that he did not “remember 

anything” with the complainant, including any sleepovers with her because she had head lice and 

was not permitted to stay over, or that he lived in a different city.

Defendant does not dispute the trial court’s statements or the information in the PSIR, but 

he argues that OV 19 may not be assessed for a defendant’s denial of the allegations underlying a 

conviction. Defendants have an absolute right to maintain their innocence, and a trial court may 
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not base any part of a defendant’s sentence on a refusal to admit guilt. People v Pennington, 323 

Mich App 452, 467; 917 NW2d 720 (2018). However, “interfering with a police officer’s attempt 

to investigate a crime constitutes interference with the administration of justice.” People v 

Passage, 277 Mich App 175, 180; 743 NW2d 746 (2007). Assessment of points for OV 19 is 

appropriate for “conduct that constitutes an attempt to avoid being caught and held accountable 

for the sentencing offense.” People v Sours, 315 Mich App 346, 349; 890 NW2d 401 (2016). In 

Ericksen, 288 Mich App at 204, this Court recognized “fabrications that were self-serving attempts 

at deception obviously aimed at leading police investigators astray” as interference with the 

administration of justice. Because “[l]aw enforcement officers are an integral component in the 

administration of justice,” providing them with false information is interference with the

administration of justice. People v Barbee, 470 Mich 283, 288; 681 NW2d 348 (2004).

In this case, defendant made statements plainly intended to deceive law enforcement during 

the investigation. Defendant attempted to direct responsibility for the allegations onto the 

complainant, attributing them to her therapeutic medications, and he insinuated thatshe was falsely 

accused him as she had done against another person. Defendant’s statements that he could not 

have physically touched the complainant because they had not been in the same location went 

beyond denying the allegations by misleading the police about his ability to physically commit the 

crimes. We conclude that a preponderance of the evidence supported the trial court’s assessment 

of 10 points for OV 19.

C. CONSTITUTIONALITY OF MCL 768.27a

We review de novo constitutional claims. People v Abraham, 256 Mich App 265, 272, 

662 NW2d 836 (2003). However, unpreserved claims are reviewed for plain error affecting 

substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In Carines, our 

Supreme Court explained:

To avoid forfeiture under the plain error rule, three requirements must be met: 1) 

error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the 

plain error affected substantial rights. The third requirement generally requires a 

showing of prejudice, i.e., that the error affected the outcome of the lower court 

proceedings. It is the defendant rather than the Government who bears the burden 

of persuasion with respect to prejudice. Finally, once a defendant satisfies these 

three requirements, an appellate court must exercise its discretion in deciding 

whether to reverse. Reversal is warranted only when the plain, forfeited error 

resulted in the conviction of an actually innocent defendant or when an error 

seriously affected the fairness, integrity or public reputation of judicial proceedings 

independent of the defendant’s innocence. [Id. at 763-764 (quotation marks, 

alteration, and citations omitted).]

MCL 768.27a(1) provides in relevant part that “in 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.” Accordingly, “ ‘[i]n cases involving the sexual abuse of minors, 

MCL 768.27a now allows the admission of other-acts evidence to demonstrate the likelihood of a 

defendant’s criminal sexual behavior toward other minors.’ ” People v Buie, 298 Mich App 50, 
-10-

71-72; 825 NW2d 361 (2012), quoting People v Pattison, 276 Mich App 613, 620; 741 NW2d 558 

(2007). The Legislature enacted MCL 768.27a to “address a substantive concern about the 

protection of children and the prosecution of persons who perpetrate certain enumerated crimes 

against children and are more likely than others to reoffend.” People v Watkins, 491 Mich 450, 

476; 818 NW2d 296 (2012).

1. SEPARATION OF POWERS

Defendant argues that MCL 768.27a is an unconstitutional violation of the separation-ofpowers doctrine because by it the Legislature has permitted the admission of evidence that our 

Supreme Court’s rule of evidence, MRE 404(b), prohibits. Defendant contends that MCL 768.27a

inappropriately allowed the complainant to testify about multiple past acts of sexual abuse by

defendant contrary to MRE 404(b). Our Supreme Court in Watkins, 491 Mich at 475-477, and this 

Court in Pattison, 276 Mich App at 613, have both rejected the same argument.

In People v Cameron, 319 Mich App 215, 232-233; 900 NW2d 658 (2017), this Court 

explained:

Const 1963, art 3, § 2 states that “[t]he powers of government are divided 

into three branches: legislative, executive and judicial. No person exercising 

powers of one branch shall exercise powers properly belonging to another branch 

except as expressly provided in this constitution.” As our Supreme Court has 

explained, however, the separation-of-powers doctrine does not require an absolute 

separation of the branches of government:

While the Constitution provides for three separate branches of 

government, the boundaries between these branches need not be 

airtight. In fact, in designing the structure of our Government and 

dividing and allocating the sovereign power among three co-equal 

branches, the Framers of the Constitution sought to provide a 

comprehensive system, but the separate powers were not intended 

to operate with absolute independence. The true meaning [of the 

separation-of-powers doctrine] is that the whole power of one of 

these departments should not be exercised by the same hands which 

possess the whole power of either of the other departments; and that 

such exercise of the whole would subvert the principles of a free 

Constitution. [Makowski v Governor, 495 Mich 465, 482; 852 

NW2d 61 (2014) (quotation marks and citations omitted; alteration 

in original).]

“If the grant of authority to one branch is limited and specific and does not create 

encroachment or aggrandizement of one branch at the expense of the other, a 

sharing of power may be constitutionally permissible.” Hopkins v Parole Bd, 237 

Mich App 629, 636; 604 NW2d 686 (1999).

This Court has held that MCL 768.27a is “a substantive rule of evidence because it does 

not principally regulate the operation or administration of the courts,” so “does not violate the 
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principles of separation of powers.” Pattison, 276 Mich App at 619. Similarly, our Supreme Court 

held that MCL 768.27a does not violate the separation of powers because it was enacted “not to 

further the orderly dispatch of judicial business, but to address a substantive concern about the 

protection of children and the prosecution of persons who perpetrate certain enumerated crimes 

against children and are more likely than others to reoffend.” Watkins, 491 Mich at 476.

MCL 768.27a, therefore, does not infringe on the Supreme Court’s exclusive rulemaking 

authority with respect to matters of practice and procedure for the administration of the state’s 

courts. See Const 1963, art 6, § 5. Accordingly, defendant is not entitled to relief because Watkins

binds this Court as superior authority, see People v Armisted, 295 Mich App 32, 53; 811 NW2d 

47 (2011), and because this Court must adhere to Pattison’s analysis, see MCR 7.215(C)(2) and 

MCR 7.215(J)(1).

2. PROPENSITY EVIDENCE

Defendant also argues that evidence admitted under MCL 768.27a improperly allows 

character evidence to demonstrate a propensity to commit crimes, and asserts that MCL 768.27a 

does not change the requirement of MRE 404(b) that evidence not be allowed for the purpose of 

showing a defendant’s propensity to commit crimes.1 Pattison addresses this point:

[O]ur cases have never suggested that a defendant’s criminal history and propensity 

for committing a particular type of crime is irrelevant to a similar charge. On the 

contrary, it is because of the human instinct to focus exclusively on the relevance 

of such evidence that the judiciary has traditionally limited its presentation to juries. 

In cases involving the sexual abuse of minors, MCL 768.27a now allows the 

admission of other-acts evidence to demonstrate the likelihood of a defendant’s 

criminal sexual behavior toward other minors. [Pattison, 276 Mich App at 620.]

MRE 404(b) and MCL 768.27a do conflict because MRE 404(b) prohibits the admission of a 

defendant’s other bad acts as character evidence to prove the defendant’s mere propensity to 

commit the charged crime. However, because MCL 768.27a is a legislated rule of evidence based 

on public policy, rather than a purely procedural rule, it is an exception to, and to that extent

supersedes, MRE 404(b). Watkins, 491 Mich at 474; People v Smith, 282 Mich App 191, 204; 772 

NW2d 428 (2009). When the Legislature enacts substantive law in furtherance of public policy, 

 

1 MRE 404(b)(1) provides as follows:

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.
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other than court administration, that contravenes a particular court rule, the court rule should yield. 

McDougall v Sanchez, 461 Mich 15, 30-31; 597 NW2d 148 (1999).

3. DUE PROCESS

Defendant also argues that allowing the testimony of the complainant to include his alleged 

past acts of sexual abuse against her violated his due-process right to a fair trial because the “other 

acts” testimony served as evidence of defendant’s propensity to commit the crime charged, and 

allowed the jury to convict him on that basis. Although MCL 768.27a allows the jury to consider 

other acts of CSC as evidence of a defendant’s character and propensity to commit CSC, it does 

not lower the quantum of proof or probative value of the evidence that the prosecution must present 

for conviction of the crime charged. Pattison, 276 Mich App at 619; People v Schultz, 278 Mich 

App 776, 778-779; 754 NW2d 925 (2008). For these reasons, it was not fundamentally unfair to 

allow the complainant to testify about defendant’s other acts of CSC against her.

Affirmed.

/s/ James Robert Redford 

/s/ Christopher M. Murray 

/s/ Colleen A. O’Brien