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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED March 9, 2017

v No. 332731 Oakland Circuit Court BRENT NELSON, LC No. 2016-257691-FH

Defendant-Appellee.

Before: S ERVITTO , P.J., and S TEPHENS and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. The prosecution appeals by leave granted the trial court’s dec ision denying its motion to introduce evidence of defendant’s subsequent bad acts during tr ial. See People v Nelson
, unpublished order of the Court of Appeals, entered June 3, 2016 (Docket No. 332731). We remand for the trial court t o conduct a MRE 403 balancing test.

I. FACTS AND PROCEDURAL HISTORY

At defendant’s preliminary examination, it was established tha t on November 30, 2015, police officers responded to a re port of an alleged domestic as sault on a victim who had left her house and fled to a nearby TCF Bank with her child. After spea king with the victim, an officer proceeded to her house where the alleged assault took place to look for defendant, the alleged perpetrator, who was the victim ’s boyfriend. Officers found de fendant standing next to the passenger side of his truck, which was parked in the driveway n ext to a row of tall bushes. The officers searched defendant and discovered a clear plastic stra w with cocaine residue in his front pocket. A mesh bag defendant was carrying contained $59,432.00 in cash and four Oxycodone pills. A K-9 narcotic dog alerted for the presence of the odor of narcotics on the cash. Moreover, a purple Crown Royal bag was found in the bushes next to defendant’s truck and appeared to have just been placed there. The Crown Royal bag c ontained 115 grams of cocaine tied in several small bags. A patrol-car video showed defendan t walking to the back of his truck and over to the bushes before the arrival of the police. A hou se surveillance camera showed defendant coming in and out of the house, on numerous occasions , from the back door of the residence to the area where defendant’s truck was parked. A se arch of the basement of the house, where defendant had a room, uncovered several items incl uding a digital scale with cocaine residue on it, a knife, a bag of sandwich baggies sitti ng next to the scale, and a purple straw with cocaine residue. The prosecution’s expert opined th at the manner of packaging the-2- cocaine found inside the Crown Royal bag was in, the scale reco vered from the basement, the sandwich bags found by the scale, and the $59,432.00 found insi de the mesh bag were indicative of intent to distribute the coca ine. Defendant was charged wit h one count of possession with intent to deliver 50-449 grams of a mixture containing the cont rolled substance cocaine, MCL 333.7401(2)(a)(iii); one count of possession of marijuana, MCL 333.7403(2)(d); one count of domestic violence, MCL 750.81(2); and one count of possession o f less than 25 grams of Oxycodone, MCL 333.7403(2)(a)(v). Aft er the preliminary examin ation, the district court bound defendant over on all the charges, holding that probable cause was shown as to each of the offenses.

Subsequently, the prosecution brought a motion to introduce si milar acts evidence at defendant’s trial to show defenda nt’s knowledge of the controll ed substance, his identity as the possessor of the cocaine found inside the Crown Royal bag, and a similar scheme or plan involving the charged offenses and the subsequent act. The pro secution alleged that on March 22, 2016, police officers responded to an alleged assault at a casino and the victim informed them that defendant had struck him in the head with a black pla stic box with a handle. When defendant was arrested, he was hol ding a black pla stic box that contained 27.5 grams (approximately one ounce) of cocaine, prescription pills, and $ 2,046.00 in cash.

Defendant objected to the intr oduction of the subsequent act e vidence, arguing that it was “uncharged post-charge conduct” involving mere possession of dr ugs, which was distinct from possession with intent to distribute. Defendant also argued th at there was an insufficient factual nexus between the similar act evidence and the offenses charged . Defendant contended that the evidence would merely go to show his bad character. The prosec ution argued that the evidence was relevant to establish the “essential element of knowledge a nd right to control,” and would not unfairly prejudice defendant. The trial court denied the p rosecution’s motion, holding that it was a “stretch” to introduce evidence of defendant’s uncharged conduct, which occurred “four to five months” after he committed the charged offenses. The cour t also held that under People v Crawford , 458 Mich 376; 582 NW2d 785 (1998), there was an insufficient nexus to allow the introduction of the ot her acts evidence.

II. STANDARD OF REVIEW

“A trial court’s decision to a dmit or exclude evidence is rev iewed for an abuse of discretion.” People v Burns , 494 Mich 104, 110; 832 NW2d 738 (2013). An abuse of discreti on occurs when the trial court chooses an outcome that is outside the range of principled outcomes. People v Schaw , 288 Mich App 231, 236; 791 NW2d 743 (2010).

III. ANALYSIS

The admission of other acts evidence reflecting on a defendant ’s character is limited by MRE 404(b), to avoid the danger of conviction based on a defend ant’s history of other misconduct rather than on the evidence of his conduct in the ca se in issue. People v Starr , 457 Mich 490, 495; 577 NW2d 673 (1998). MRE 404(b)(1) provides:-3- Evidence of other crimes, wrongs, or action is not admissible t o prove the character of a person in order to show action in conformity the rewith. It may, however, be admissible for other purposes, such as proof of mot ive, opportunity, intent, preparation, scheme, plan, or system in doing an act, k nowledge, identity, or absence of mistake or accident when the same is material, wh ether such crimes, wrongs, or acts are contemporaneous with, or prior or subsequen t to the conduct at issue in the case.

Evidence of other crimes or acts is admissible under MRE 404(b) if such evidence: (1) is offered for a proper purpose and not to prove the defendant’s character or propensity to commit the crime; (2) is relevant to an issue or fact of consequence at tr ial; and (3) the probative value of the evidence is not substantially out weighed by the danger of unfai r prejudice. People v VanderVliet , 444 Mich 52, 74-75; 508 NW2d 111 (1993), amended on other gro unds 445 Mich 1205 (1994).

In People v Mardlin , 487 Mich 609, 616; 790 NW2d 607 (2010), the Michigan Supreme Court stated that MRE 404(b)(1) “is not exclusionary, but is in clusionary, because it provides a nonexhaustive list of reasons to pr operly admit ev idence that m ay nonetheless also give rise to an inference about the defendant’s character.” “Evidence relevant to a noncharacter purpose is admissible under MRE 404(b) even if it also reflects on a defendant’s character” and is

“ inadmissible under this rule only if it is relevant solely to the defendant’s character or criminal propensity.” Id at 615-616. According to the Court, “[a]ny undue prejudice that arises beca use the evidence unavoidably reflects the defendant’s character is then considered under the MRE 403 balancing test, which permits the court to exclude the rele vant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.” Id. (Internal citation marks omitted). Pursuant to MRE 403, relevant evidence may still be excluded if the potential for prejudice significantly outwei ghs its probative value. People v Watson , 245 Mich App 572, 577; 629 NW2d 411 (2001). The Court must weigh the probative value of the evidence against “the danger of unfair prejudice, confus ion of the issues, or mislead ing the jury, or by considerations of undue delay, waste of time, or n eedless presentation of cumu lative evidence.” MRE 403.

A review of the record fails to indicate whether the trial cou rt conducted the balancing test required under MRE 403 in connection with the admission of the evidence under MRE 404(b). In ruling, the trial court merely offered the statemen t that there was not a sufficient nexus between the uncharged act and the charged act to warrant admission under Crawford

. There is no evidence on the reco rd to support that the trial co urt made specific findings as to whether the introduction of other acts evidence would be unfair ly prejudicial or that it weighed the probative value or relevance of the evidence against the un fair prejudice, two distinct inquiries to be made under the balancing test of MRE 403. People v Cameron , 291 Mich App 599, 611; 806 NW2d 371 (2011). For the foregoing reasons, we f ind the trial court erred by failing to conduct a balancing test required under MRE 403. If the trial court did consider the unfair prejudice or weigh the prob ative value or relevance of t he evidence, we find it is not readily apparent from the record making this Court unable to ef fectively review the trial court’s decision to deny the motion to admit similar acts evidence. Ac cordingly, while retaining jurisdiction, we remand this case with instructions to the tria l court to conduct a MRE 403 balancing test.-4- Remanded for further proceedings not inconsistent with this op inion. We retain jurisdiction. /s/ Deborah A. Servitto /s/ Cynthia Diane Stephens /s/ Amy Ronayne KrauseMarch 9

, 2017 

### Court of Appeals, State of Michigan

ORDER

People of MI v Brent Nelson

Docket No. 332731

LC No. 2016-257691-FH Deborah A. Servitto Presiding Judge

Cynthia Diane Stephens

Amy Ronayne Krause Judges

Pursuant to the opinion issued concurrently with this order, th is case is REMANDED for further proceedings consistent with the opinion of this Court. We retain jurisdiction.

Proceedings on remand in this matter shall commence within 56 d ays of the date of this order, and they shall be given priority on remand until they ar e concluded. As stated in the accompanying opinion, the trial court shall conduct an MRE 403 balancing test required in connection with the admission or exclusion of other acts evidence under MR E 404(b). The proceedings on remand are limited to this issue.

The parties shall promptly file with this Court a copy of all p apers filed on remand. Within seven days after entry, a ppellant shall file with this C ourt copies of all orde rs entered on remand.

The transcript of all proceedings on remand shall be prepared a nd filed within 21 days after completion of the proceedings. Upon receipt, appellant s hall provide a copy of the transcript(s) to the Court.

Within 14 days of the filing of the transcript, the parties may file supplemental briefs, not to exceed 10 pages, addressing the proceedings on remand.

/s/ Deborah A. Servitto