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 October 3, 2019

v No. 343255 Saginaw Circuit Court ROBERT LANCE PROPP, LC No. 16

- 042719

- FC

Defendant

- Appellant.

Before: M URRAY

, C .J., and M ETER and F ORT H OOD , JJ.

M URRAY

, C.J., ( concurring ).

I concur in t he decision to affirm defendant’s conviction and sentence. However, for the

reas ons explained briefly below, my reasons for doing so are somewhat different than that utilized by the majority.

First, with respect to the appointment of a defense expert witness at the s tate’s expense

, I

would conclude that defendant satisfied the first part of the “reasonable proba bility” standard

f rom Moore v Kemp , 809 F 2d 702 (CA 11

, 1987)

, adopted by the Supreme Court in People v Kennedy , 502 Mich 206 , 226

- 228 ; 917 NW2d 355 (2018). In adopting the Moore reasonable prob ab ility standard, the Kennedy Court held that “ ‘a defendant must show the trial court that there exists a reasonable probability both t hat an expert would be of assistance to the defense and

th a t denial of expert assistance would result in a fundament ally unfair trial.’ ” Kennedy , 50 2

Mich at 22 7 , quoting Moore , 809 F2d at 712.

Several courts have recognized that evaluating the “reasonable probability” standard is a “dynamic one” that is, naturally, very case specific. See Moore v State , 390 Md 343, 369; 889 A2d 325 (MD, 2005). T his case is neither heavy on the facts, no r on the science or legal theories presented

. In both his motion and supporting brief, as well as at the motion hearing, defense

counsel informed the trial court about “the nature of the crime and the evidence l in king [defendant] to the crime,” Kennedy , 502 Mich at 227, quoting Moore , 809 F2d at 712 (quotation marks omitted) , by indicating that defendant was being prosecuted for murder, and that his defense was that he accidentally killed the victim through erotic asphyxiation. Defense counsel also provided a sufficient demonstration of a “substantial basis for the defense,” Kennedy , 502- 2

- Mich at 227, quoting Moore , 809 F2d at 712 (quotation marks omitted)

, by informing the trial

court that the medical examiner’s te stimony would be that the victim died from strangulation, that defendant and the victim had previously been a couple, that erotic asphyxiation is a somewhat unknown defense in Michigan, and that the proposed expert would be able to testify as to the practi ce of erotic asph y xiation

, and that individuals can die through the practice. Although

this information is not nearly as detailed as that provided by the defendant in Ake v Oklahoma

, 470 US 68, 86; 105 S Ct 1087; 84 L Ed 2d 53 (1985), the Ake Court specifically noted that it was not expressing an “ opinion as to whether any of the se factors [ set forth by defendant ] , alone or in combination, is necessary to make this finding.” Id . at 86, n 12. Because a reading of Ake

, Moore

, and Kennedy do not lead to the conclusion that defendant’s burden of production is an overly burdensome one , I would hold that defendant satisfied the first portion of the reasonable probability standard adopted in Kennedy

.

However, as the majority concluded , in the end it is not reason ably probable that the denial of this expert assistan ce result ed in a fundamentally unfair trial. Kennedy , 502 Mich at 227. As ably recounted by the majority, in front of the jury the prosecution’s expert recognize d the practice of erotic asphyxiation

, and that the victim’s death could have resulted from that practice. This testimony, in conjunction with defendant’s testimony about the circumstances surrounding the victim’s death, presented the jury with a full and complete picture regard ing the circumstances surrounding the victim’s death , or at least defendant’s version as to how it

occurred. See Stephens v Kemp , 846 F2d 642, 646

- 647 (CA 11, 1988). As a result, no reversible

error occurred on this issue.

Second, with respect to whethe r hearsay evidence is admissible under MCL 768.27b without meeting the requirements of the rules of evidence

, I do not read the reference in MCL 768.27b(1) to MRE 403 to mean that all other rules of evidence are inapplicable. There are

several reasons for this conclusion. F or one , MCL 768.27b(1) not only explicitly invokes MRE 403, but it also implicitly invokes MRE 401 and 402 by stating that “evidence of the defendant’s commission of other acts of domestic violence or sexual assault is admissible for any purpose for

which it is relevant .” Of course, relevancy is determined under MRE 401, and relevant evidence

is admissible under MRE 402. Thus, contrary to the majority’s conclusion, MCL 768.27b (1) does not preclude consideration of any rule of evidence other than MRE 403. 1

Additionally, o ur Court has previously concluded that this very statute did not “ ‘ lower

the . . . value of the e vidence needed to convict a defendant, ’ ” and “does not permit conviction

o n less evidence or evidence of a lesser quality .” People v Schultz , 278 Mich App 776, 778; 754 NW2d 925 (2008) (emphasis supplied) , quoting in part People v Pattison , 276 Mich App 613, 619; 741 NW2d 558 (2007). As the Schultz Court held, “MCL 768.27b did not change the

1 MCL 768.27b(3) specifically states that the section “does no t limit or preclude

. . . considerat ion of evidence under any other

. . . rule of evidence

. . . .” This would seem to answer the question presented. Although this provision is written toward ensuring that propensity evidence can still be admitted under other rules, the literal language allows courts to consider

other r ules of evidence when addressing propensity evidence.- 3

- burden of proof necessary to establish the crime, ease the presumption of innocence, or downgrade the type of evidence necessary to support a conviction .” Schultz

, 278 Mich App at

778 (emphasis applied)

. The majority’s construction of MCL 768.27b runs contrary to our

declaration in Schultz that the statute does not downgrade the type of evidence necessary to support a conviction. Instead, what MCL 768.27b does is set forth a substantive legislative policy choice

— similar to that in MCL 768.27a

— that propensity evidence can and should be used in prosecuting the listed crimes (taking the opposite presumption than MRE 404b) , subject to an analysis under MRE 403. 2 S ee People v Meissner , 294 Mich App 438, 451

- 452; 812 NW2d 37 (2011). But that substantive policy decision does not address

— and does not

eliminate

— the need for courts to test the reliability of the evidence used to prove the defendant’s propensity. Nothin g in the statute suggests that the legislature was requiring courts to dispense

with t he other rules of evidence that relate to the quality of the evidence admitted at trial

. People

v Watkins

, 491 Mich 450, 487; 818 NW2d 296 (2012) ; Schultz , 278 Mich App at 778. See, also, People v Uribe , 499 Mich 921, 922; 878 NW2d 474 (2016). 3

Finally

, although the Watkins Cou rt refused to read additional limitations into the singular restriction contained in the introductory section of MCL 768.27a, the C ourt addition a lly

refused “to read into MCL 768.27a a legislative intent to foreclose the application o f other ordinary rules of evidence, such as those that pert ain to hearsay and privilege.” Watkins , 491

Mich at 485.

The prosecution concedes 4 on appeal that certain evidence was inadmissible hearsay

, but also correctly argues that defendant’s conviction should still be affirmed because the evidence otherwise properly admitted was more than adequate for the jury to convict defendant.

Defendant’s statements to the police, defendant’s testimony at trial regarding what he claims led

to the victim’s death, and the acknowledgment by the prosecutor’s expert of the danger s of erotic asphyxiation

, were all presented to the jury

, and in combination was m ore than suffic ient for the

2 In other words, this statutory provision was a rejection of the principles of MRE 404(b) by allowing admission of relevant propensity evidence in these types of cases, but acceptance of the ability of trial courts to determine whether such evidence was more prejudicial than probative. This, of course, is within the proper power of the legislature. See, e.g., People v Babcock , 244 Mich App 64, 89; 624 NW2d 479 (2000) ( recognizing that the Legislature can adopt some portions of case law while rejecting other parts ), rev’d on other grounds in People v Babcock

, 469 Mich 247 (2003).

3 Although there are certain differences between MCL 768.27a and MCL 768.27b, the two statutes are closely al igned with the same policy considerations. People v Cameron , 291 Mich App 599, 609

- 6 10; 806 NW2d 371 (2011).

4 Indeed, the prosecution does not even argue that MCL 768.27b(1) allows for consideration of hearsay evidence. Instead, the prosecution argues t hat even setting aside the hearsay presented to the jury, the otherwise admissible evidence was more than enough to convict defendant, so any

error in the admission of this evidence was harmless.- 4

- jury to find defendant guilty beyond a reasonable doubt . For these reasons, I con cur in the majority’s decision to affirm defendant’s conviction and sentence.

/s/ Christopher M. Murray