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-Appellant,

UNPUBLISHED

July 18, 2024

v No. 367741

Ottawa Circuit Court

JOMAR AYALA-LOPEZ, LC No. 23-045834-FH

Defendant-Appellee.

Before: CAMERON, P.J., and M. J. KELLY and YATES, JJ.

PER CURIAM.

In this interlocutory appeal, the prosecution appeals by leave granted1the trial court’s order 

denying the prosecution’s motion to allow other-acts evidence in this case arising out of an alleged 

first-degree home invasion and felonious assault. For the reasons stated in this opinion, we affirm 

in part, reverse in part, and remand for further proceedings.

I. BASIC FACTS

Following a preliminary examination, defendant, Jomar Ayala-Lopez, was bound over on 

charges of first-degree home invasion, MCL 750.110a, felonious assault, MCL 750.82, 

interference with electronic communications causing injury, MCL 750.540(2)(b), and malicious 

destruction of personal property, MCL 750.377a. According to the complainant, on January 25, 

2023, Ayala-Lopez entered the complainant’s apartment without permission while she was 

sleeping. She woke up when he entered her bedroom. The complainant and Ayala-Lopez were, 

at one point, in a dating relationship. However, the complainant testified that she had told him 

earlier that day not to come to her apartment. When she woke to find him in her bedroom, she told 

him to leave and warned that if he did not do so that she would call the police. She testified that 

Ayala-Lopez became upset, grabbed her wrists, and threw her onto the bed. She stated that she 

yelled at him that she “wanted him out” and wanted “nothing to do with him.” She again warned 

 

1 People v Ayala-Lopez, unpublished order of the Court of Appeals, entered March 8, 2024 (Docket 

No. 367741).
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that she would call the police. According to the complainant, Ayala-Lopez put his hand in his 

pocket and pulled out a full bottle of beer, which he used to strike her a few times, including in her 

head. When she reached for her cellular telephone, he grabbed it. She demanded that he return it 

to her, but he instead tried to break it against the corner of her bed. Ayala-Lopez then ran out of 

her apartment with her telephone.

The complainant stated that she ran after him and demanded that he return her telephone. 

Ayala-Lopez allegedly threw the telephone at her, and it broke when it fell to the ground. The 

complainant stated that she turned and started running back to her apartment, but that Ayala-Lopez 

grabbed her hair and dragged her toward the garage. She claimed that he hit her in the ribs and 

“busted up” her lip. She “started yelling as hard as” she could. Ayala-Lopez allegedly threw her 

to the ground. She continued yelling for help, and he started running away. When she tried to run 

back to the apartment, he again pursued her. According to the complainant, when Ayala-Lopez 

saw her son standing in the doorway, he looked at her, hugged her, kissed her forehead, and told 

her that he loved her. He then left. The complaint used her son’s telephone to call the police.

Following the preliminary examination, the prosecution filed a notice of intent “to 

introduce evidence.” The prosecution identified the evidence to be admitted as (1) a recorded 

telephone conversation between Ayala-Lopez, the complainant, and a third party during which 

Ayala-Lopez threatened the complainant; (2) a call log indicating that Ayala-Lopez placed 63 

unanswered telephone calls to the complainant while a no-contact order was in place; (3) a call log 

indicating that, after the complainant’s phone number was blocked, Ayala-Lopez placed seven 

calls to the complainant’s mother; and (4) a letter that Ayala-Lopez wrote to the complainant. The 

prosecution asserted that each piece of evidence was relevant and was admissible under 

MRE 801(d)(2), MRE 404(b), and MCL 768.27b. The defense objected. Following a hearing on 

the motion, the trial court issued a written opinion and order denying the prosecution’s motion to 

admit the evidence.

II. ADMISSION OF EVIDENCE

A. STANDARD OF REVIEW

The prosecution argues that the trial court abused its discretion by denying its motion to 

admit evidence. Challenges to a trial court’s decision to exclude evidence are reviewed for an 

abuse of discretion. People v Spaulding, 332 Mich App 638, 649; 957 NW2d 843 (2020). “A trial 

court abuses its discretion when it chooses an outcome falling outside the range of principled 

outcomes.” People v Watkins, 491 Mich 450, 467; 818 NW2d 296 (2012).
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B. ANALYSIS

On appeal, the prosecution argues that the trial court abused its discretion by denying its 

motion to admit the proffered evidence because it was relevant under MRE 401.

2

 Generally, 

relevant evidence is admissible. MRE 402. Evidence is relevant if it has “any tendency to make 

the existence of any fact that is of consequence to the determination of the action more probable 

or less probable than it would be without the evidence.” MRE 401. Stated differently, to be 

relevant, evidence must be material, i.e., related to any fact that is of consequence to the case, and 

it must be probative, i.e., it must have a tendency to make the existence of a fact of consequence 

more or less probable than it would be without the evidence. People v Sabin (After Remand), 463 

Mich 43, 57; 614 NW2d 888 (2000). In order to be material, the fact must only be “ ‘in issue’ in 

the sense that it is within the range of litigated matters in controversy.” Id. (quotation marks and 

citation omitted).

We first consider whether the trial court abused its discretion by determining that a 

transcript of a telephone call among Ayala-Lopez, the complainant, and a third party is irrelevant. 

In evaluating the conversation, the trial court found that Ayala-Lopez likely threatened harm to the 

complainant during the phone call. We disagree. The comments were made on the same day that 

the complainant testified against Ayala-Lopez at the preliminary examination. In the call, AyalaLopez asked whether the complainant had testified willingly and when she stated that she had, he 

responded that that was the “worst” thing that she could have done. She asked if he was threatening 

her. He stated, “No, but I expect you to move, and your mom to move, and your sister to move.” 

The complainant stated that she thought he was threatening her. Ayala-Lopez responded, “You 

be careful. Finish the call, please—hello?” The complainant did not respond because she had 

hung up. Taken as a whole, Ayala-Lopez’s comments show that he intended to threaten the 

complainant and that she understood his comments to be a threat.

“A defendant’s threat against a witness is generally admissible” because it “can 

demonstrate consciousness of guilt.” People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996). 

Additionally, “[e]vidence that a defendant made efforts to influence an adverse witness is relevant 

if it shows consciousness of guilt.” People v Schaw, 288 Mich App 231, 237; 791 NW2d 743 

(2010). We conclude that Ayala-Lopez’s threat to the complainant during the conversation tends

to demonstrate his consciousness of guilt because it appears to have been made in an effort to 

intimidate her into not testifying against him. Although a threatening remark may, in some 

instances, “simply reflect the understandable exasperation of a person accused of a crime that the 

person did not commit,” it is the jury’s duty to “determine the significance of a threat in 

conjunction with its consideration of the other testimony produced in the case.” Sholl, 453 Mich 

at 740. Therefore, it was for the jury to decide the significance of his threat. Accordingly, the trial 

court abused its discretion when it determined that the portion of the telephone conversation where 

he communicated the threat to the complainant was irrelevant.

 

2 The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective 

January 1, 2024. See ADM File No. 2021-10, 512 Mich lxiii (2023). This opinion relies on the 

version of the rules in effect at the time this matter was decided.
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The court, however, did not abuse its discretion by concluding that Ayala-Lopez’s 

comment to a third party that the complainant would be “fucked” when he was released from jail 

was irrelevant. The comment confirms Ayala-Lopez’s intent to harm the complainant when he 

was released from jail; however, because it was not communicated to the complainant, it was not 

relevant to the matters at issue in this case.

Next, the trial court concluded that a letter that Ayala-Lopez wrote to the complainant was 

irrelevant. According to the prosecution, the letter was sent the week before the preliminary 

examination. In the letter, Ayala-Lopez apologized for what had occurred, declared his 

unwavering love for the complainant, and reminisced on “beautiful” memories that they had 

shared. Thereafter, he asked her to state that her son had let him into the home (which would 

undermine that factual basis of the first-degree home invasion charge). Then he asked her to drop 

the charges so that he could plead guilty, which could indicate that he expected a better plea deal 

if the complainant stopped cooperating with the prosecution on the most serious charge. Overall, 

the structure and content of the letter suggest that Ayala-Lopez employed manipulation tactics 

throughout it to influence the complainant. Therefore, the letter tends to demonstrate a 

consciousness of guilt, which renders the letter relevant. See Sholl, 453 Mich at 740; Schaw, 288 

Mich App at 237. Indeed, his consciousness of guilt is clearly reflected by the fact that he 

apologized to her for what had occurred. Accordingly, the trial court abused its discretion when it 

determined that the entire letter was irrelevant.

Finally, the prosecution seeks to introduce a call log showing that, over the span of eight 

days, Ayala-Lopez made 63 unanswered calls to the complainant. And after he was blocked from 

calling her, he made seven calls to her mother. The calls violated a no-contact order. In ruling on 

the admissibility of this evidence, the trial court held:

While this evidence does show [Ayala-Lopez’s] repeated violation of the jail’s nocontact order, this is not at issue in this case. Thus, it does not have [a] tendency to 

make any facts material to this case more likely or less likely to have occurred. As 

[Ayala-Lopez] accurately asserts, this evidence is more appropriate for the 

subsequent case filed against [Ayala-Lopez] for Witness Intimidation.

We agree. Notwithstanding that it is generally reasonable to conclude that incessant calling is a 

form of harassment, the record does not reflect that the complainant was aware that Ayala-Lopez 

was repeatedly calling her. Moreover, we can only speculate as to his intent in placing the calls. 

It is equally plausible that the purpose of the calls was innocuous as it is that they were meant to 

be nefarious. As a result, unlike the letter and the phone call through a third party, both of which 

were relevant to show consciousness of guilt, the call log is not relevant for any purpose. 

Accordingly, the trial court did not abuse its discretion by holding that the call log was irrelevant 

and, therefore, inadmissible.

Determining that the letter and part of the phone call is relevant does not end our inquiry. 

The prosecution contends that the evidence is admissible under MCL 768.27b(1), which provides 

that “in a criminal action in which the defendant is accused of an offense involving domestic 

violence or sexual assault, 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, if it is not otherwise 

excluded under Michigan rule of evidence 403.” MRE 403 provides that relevant evidence “may 
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be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence.” Alternatively, the prosecution suggests that it 

is admissible under MRE 404(b), which also requires the trial court to conduct an analysis under 

MRE 403’s balancing test. See People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), 

amended 445 Mich 1205 (1994).

3

With regard to the letter, the trial court determined Ayala-Lopez’s statement, “If you can 

drop the charges so that I can plead guilty,” would substantially confuse the jury. Again, relevant 

evidence may be excluded under MRE 403’s balancing test if its probative value is substantially 

outweighed by the danger of “confusion of the issues, or misleading the jury . . . .” Given the 

inherently contradictory nature of the comment, which on one hand asks the complainant to have 

the charges dropped and on the other hand suggests that Ayala-Lopez wanted to plead guilty, the 

jury is reasonably likely to be confused or mislead about the intended purpose of the statement. 

As a result, we conclude that the trial court did not abuse its discretion by excluding that sentence 

under MRE 403. See People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998) (“The trial 

court’s decision on a close evidentiary question ordinarily cannot be an abuse of discretion.”).

However, the trial court did not apply MRE 403’s balancing test to the balance of the letter, 

nor did it apply it to the portion of the phone conversation where Ayala-Lopez threatened the 

complainant. MRE 403 “determinations are best left to a contemporaneous assessment of the 

presentation, credibility, and effect of testimony” by the trial court. People v Blackston, 481 Mich 

451, 462; 751 NW2d 408 (2008) (quotation marks and citation omitted). As a result, we conclude 

that the trial court is in the best position to make a determination under MRE 403 as to each piece 

of evidence. We, therefore, decline to rule in the first instance whether the evidence satisfies or 

does not satisfy MRE 403’s balancing test. And, because the evidence may not be admitted under 

MCL 768.27b or MRE 404(b) unless it first satisfies MRE 403’s balancing test, we conclude that, 

although the evidence is relevant, it is not yet clear whether it is admissible. We therefore remand 

to the trial court for further proceedings. See VanderVliet, 444 Mich at 81.

Lastly, in the interest of completeness, we briefly address the prosecution’s contention that 

all of the evidence is relevant to prove motive, intent, knowledge, identity, and the absence of 

mistake or accident. Below and on appeal, the prosecution proffered the above cursory list of 

reasons for why the evidence is relevant and admissible. Yet, “[m]echanical recitation of 

“knowledge, intent, absence of mistake, etc.,” without explaining how the evidence relates to the 

recited purposes, in insufficient to justify admission under MRE 404(b)(1).” People v Crawford, 

458 Mich 376, 386; 582NW2d 785 (1998). We conclude that none of the offered evidence makes 

it more probable than not that Ayala-Lopez had a motive to commit the crimes that he was charged 

with. Nor is it probative as to his intent at the time that he is alleged to have committed those 

crimes. Further, Ayala-Lopez has not asserted that his actions were the result of mistake or 

 

3 The prosecution also argued that it was admissible as non-hearsay under MRE 801(d)(2). We 

agree that any relevant comments by Ayala-Lopez are non-hearsay under MRE 801(d)(2), but that 

fact is not dispositive as to their overall admissibility.
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accident, and his identity is not in dispute. Thus, we conclude that the prosecutions alternative 

rationale for why the evidence is relevant are baseless.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with 

this opinion. We do not retain jurisdiction.

/s/ Thomas C. Cameron

/s/ Michael J. Kelly

/s/ Christopher P. Yates