People v. Watkins; People v. Pullen

818 N.W.2d 296, 491 Mich. 450, 2012 WL 2076841, 2012 Mich. LEXIS 786

Opinions

ZAHRA, J.

These consolidated cases involve MCL 768.27a(l), which 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.”¹ We hold that MCL 768.27a irreconcilably conflicts with MRE 404(b), which bars the admission of other-acts evidence for the purpose of showing a defendant’s propensity to commit similar acts, and that the statute prevails over the court rule because it does not impermissibly infringe on this Court’s authority regarding rules of practice and procedure under Const 1963, art 6, § 5. We also hold that evidence admissible under MCL 768.27a remains subject to MRE 403, which provides that a court may exclude relevant evidence if the danger of unfair prejudice, among other considerations, outweighs the evidence’s probative value.² In applying the balancing test in MRE 403 to evidence admissible under MCL 768.27a, however, courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect. Accordingly, we affirm the judgment of the Court of Appeals in People v Watkins, Docket No. 142031, vacate the judgments of the lower courts in People v Pullen, Docket No. 142751, and remand the latter case to the trial court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

A. DOCKET NO. 142031

In Docket No. 142031, defendant, Lincoln Anderson Watkins, appeals by leave granted the judgment of the Court of Appeals affirming his convictions and sentences. Watkins was charged with five counts of first-degree criminal sexual conduct (CSC-I)³ and one count of second-degree criminal sexual conduct (CSC-II)⁴ for allegedly molesting a 12-year-old girl.

The Court of Appeals summarized the allegations of sexual abuse that the prosecution presented at the pretrial stage:

The victim in the instant case was a 12-year-old girl whose family lived next door to defendant and whose father was defendant’s business partner. The victim had known defendant and his wife since she was two years old and regarded defendant as a father figure. The victim babysat defendant’s youngest child. In May 2006, defendant showed her a picture of his penis being inserted into a vagina. The next day, while she was playing video games with defendant’s daughter in his bedroom, he touched her breasts. The day after that incident the victim was again babysitting at defendant’s house when defendant sent his daughter into another room, unbuttoned the victim’s pants, and told her to pull them down and get on his bed. She stood up and pulled down her pants, and when she bent over, defendant inserted his penis into her vagina from behind repeatedly until he ejaculated. She and defendant engaged in intercourse again in his bedroom the following day while she was babysitting his daughter. The victim claimed that she and defendant engaged in intercourse yet another time in defendant’s bedroom and one time in his living room. The victim alleged that, about two weeks later, defendant asked her if she wanted to have sex, but she declined because she was menstruating. The victim claimed that defendant nevertheless instructed her to stand up and lift her skirt, and, when she complied, he inserted his penis into her vagina. The victim asserted that she worried that defendant might force her to have sexual intercourse in the future, so she told her mother that she had been having a sexual relationship with defendant.

Footnotes

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Before trial, the prosecution filed a motion to introduce evidence of other acts to establish a common plan or scheme, as permitted under MRE 404(b).⁶ In particu lar, the prosecution sought to have a witness, EW^ testify that Watkins had also engaged in vaginal-penile penetration with her.⁷ Like the victim in the instant action, EW was a minor at the time, and she had a close relationship with Watkins’s wife. The trial court granted the motion over Watkins’s objection. The following is a summary of EW’s testimony offered at defendant’s first trial:

At the first trial, [EW] testified that defendant’s wife is her first cousin and that she [EW] met defendant when she was 14 years old. [EW] loved defendant like a brother and often babysat for defendant’s children. On one occasion when she was 15 years old, she visited defendant and his wife for the weekend and helped them with their infant. While alone with [EW], defendant commented on her sexual attractiveness, took her hand, and began leading her up the stairs to his bedroom on the second floor. [EW] was reluctant to go upstairs, so defendant pulled down her pants and inserted his penis into her vagina while they were still in the hallway. After eventually moving to defendant’s bedroom, they continued having intercourse until defendant ejaculated. [EW] stated that the episode began a two-year sexual relationship, during which they had sexual encounters about 15 different times at defendant’s home, her mother’s home, and in empty houses where defendant was painting. [EW] explained that defendant included her in his family; they went to an amusement park together, went out to eat together, and watched movies together.[8]

Following the close of trial, the jury commenced deliberations but was unable to reach a verdict. Consequently, the trial court declared a mistrial.

At the opening of his second trial, Watkins moved for the trial court to reconsider its ruling on the other-acts evidence under MRE 404(b). This time, the trial court granted the motion. It reasoned that the other acts described by EW were too dissimilar from the charged acts to justify their use to show a common plan or scheme. The prosecution applied for leave to file an interlocutory appeal while the case proceeded to trial for the second time.

The trial court declared a second mistrial when it learned that a juror had overheard a supervisor in the prosecutor’s office comment about the court’s exclusion of the other-acts evidence while riding in a courthouse elevator. Meanwhile, the Court of Appeals peremptorily reversed the trial court’s decision to exclude EW’s testimony and remanded the case to the trial court with instructions for it to determine which aspects of EW’s proposed testimony were admissible under MCL 768.27a as evidence of criminal sexual conduct against a minor. Subsequently, this Court vacated the Court of Appeals’ order and remanded the case to the Court of Appeals with directions to consider whether MCL 768.27a conflicted with MRE 404(b) and, if so, whether the statute prevailed over the rule of evidence.⁹

In a published opinion, the Court of Appeals held that MCL 768.27a conflicted with MRE 404(b) and that the statute prevailed over the rule of evidence.¹⁰ Accordingly, it remanded the case to the trial court to determine under MCL 768.27a which aspects of EW’s testimony related to the commission of a criminal sexual act against a minor.¹¹ This Court granted leave to appeal,¹² but later vacated that order after determining that leave had been improvidently granted.¹³ Watkins preserved all his previous constitutional challenges as the case proceeded to trial for the third time.

At the third trial, the victim, then 15 years old, testified that she had known Watkins all her life, having lived next door to him and having occasionally babysat one of his children. She also stated that she was good friends with Watkins’s wife, whom she considered her godmother. She considered Watkins her boyfriend. According to the victim, when she was 12 years old, Watkins approached her at a Memorial Day gathering and showed her sexually explicit images that were on his cell phone. She claimed that Watkins touched her breasts the next time she babysat and penetrated her vaginally the day after that. This conduct allegedly occurred consensually for the next couple of weeks. Sometime thereafter, when the victim arrived to babysit, she declined Watkins’s request to engage in sexual activity because she was menstruating. She testified that Watkins’s insistence disturbed her and she thought he might rape her. She told her mother what had happened. Although the victim did not want to get Watkins in trouble, she agreed to speak with the police.

The trial court allowed EW to testify regarding other-acts evidence under MCL 768.27a. According to EW; about 10 years earlier, when she was 15 years old, she had often babysat Watkins’s oldest child. She testified that, during one visit, Watkins led her upstairs by the hand. He allegedly began kissing her, and their interactions culminated in sexual penetration. According to EW, their sexual relationship lasted a couple of years.

Watkins did not take the stand or call any witnesses. Defense counsel argued that the witnesses lacked credibility because their statements were inconsistent and uncorroborated. Ultimately, the jury returned a verdict finding Watkins guilty of four counts of CSC-I and one count of CSC-II, but not guilty of the remaining count of CSC-I.

Watkins raised several arguments on appeal, including that MCL 768.27a conflicts with MRE 404(b) and the rule of evidence prevails over the statute; that EW’s testimony should have been excluded under MRE 403, which the trial court failed to consider; and that the trial court failed to hold a hearing to determine the proper scope of EW’s testimony.

The Court of Appeals affirmed in an unpublished opinion per curiam.¹⁴ While agreeing with Watkins that MCL 768.27a conflicts with MRE 404(b), it rejected the argument that the rule of evidence takes priority over the statute. Instead, it observed that a previous panel had already held that MCL 768.27a, as a substantive rule of evidence, did not interfere with the Supreme Court’s authority to regulate court administration and, therefore, the statute takes priority over the rule of evidence.¹⁵ With regard to MRE 403, it held that evidence admissible under MCL 768.27a remains subject to MRE 403.¹⁶ Although acknowledging that the trial court had failed to apply MRE 403, the Court of Appeals reasoned that it had already decided the issue of admissibility when it directed the trial court to determine which aspects of EW’s testimony fit the requirements of MCL 768.27a and stated that those aspects were admissible.¹⁷ The Court of Appeals concluded that EW’s testimony would have been admissible even had the trial court considered MRE 403:

The evidence that defendant had assaulted another minor.. . was relevant because it tended to show that it was more probable than not that the victim was telling the truth. The similarity of the relationships (E.W was defendant’s wife’s cousin while the victim thought of his wife as a godmother) and defendant’s modus operandi (taking advantage of minors who had a close relationship with his wife and were present in his home to baby sit) also made the likelihood of defendant’s behavior toward the victim more probable. Moreover, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Whether the victim was telling the truth had significant probative value in deciding whether defendant should be convicted of the crimes for which he was charged. Further, defense counsel was able to effectively cross-examine E.W regarding the fact that she thought of defendant as her boyfriend and maintained contact with him after their relationship ended, even expressing a desire to have his child. Finally, the court instructed the jury on how to properly use the other acts evidence^][18]

Thus, the Court of Appeals concluded that the testimony was relevant and not more prejudicial than probative and that any error by the trial court was harmless.¹⁹

Finally, the Court of Appeals concluded that the trial court had abused its discretion when it failed to determine which aspects of EW’s testimony met the requirements of MCL 768.27a.²⁰ EW’s testimony regarding sexual intercourse with Watkins that occurred from the time she was 16 years old and after was not admissible under the statute.²¹ Nonetheless, as the Court of Appeals explained, the only incident for which EW provided specific details occurred when she was 15 years old.²² Moreover, the testimony regarding events that occurred from the time EW was 16 years old and after was helpful to the defense because it highlighted the fact that EW deeply cared for Watkins.²³ Accordingly, it held that the error in admitting all of EW’s testimony “was not inconsistent with substantial justice.”²⁴ We granted leave, instructing the parties to address

(1) whether MCL 768.27a conflicts with MRE 404(b) and, if it does, (2) whether the statute prevails over the court rule . .., (3) whether the omission of any reference to MRE 403 in MCL 768.27a (as compared to MCL 768.27b(l)), while mandating that evidence of other offenses “is admissible and may be considered for its bearing on any matter to which it is relevant,” would violate a defendant’s due process right to a fair trial, and (4) whether MCL 768.27a interferes with the judicial power to ensure that a criminal defendant receives a fair trial, a power exclusively vested in the courts of this state under Const 1963, art 6, § if. [25]

B. DOCKET NO. 142751

In Docket No. 142751, the prosecution appeals by leave granted the judgment of the Court of Appeals affirming the trial court’s opinion and order granting the motion in limine filed by defendant, Richard Kenneth Pullen. Pullen was charged with two counts of CSC-II²⁶ and one count of aggravated indecent exposure²⁷ for acts allegedly committed against his then 12-year-old granddaughter. At the preliminary examination, the victim testified that Pullen had touched her breasts with his hands under her clothes multiple times and that the touching started when she was five or six years old. She also claimed that Pullen touched her “crotch” under her clothes on a weekly basis. With regard to Pullen’s alleged indecent exposure, the victim testified that, when she was 11 or 12 years old, she saw Pullen touching his penis in the next room while on the computer and, at the time, Pullen knew she could see him masturbating.

Before trial, the prosecution filed a notice of intent to introduce under MCL 768.27a other acts of sexual misconduct against a minor. Specifically, the prosecution sought to introduce a 1989 police report containing allegations that Pullen had sexually abused his then 16-year-old daughter. In the report, Pullen’s daughter alleged multiple instances of digital penetration in which he “checked if [she] was still a virgin.” In addition, the report contained allegations that defendant had frequently touched his daughter’s breasts, buttocks, and genital area while wrestling and massaging her back, had repeatedly walked in on her while she was undressed, and had arranged to expose himself to her when he was bathing. Although Pullen had apparently admitted engaging in some of the conduct alleged in the report, including the digital penetration, criminal charges were never filed.

In response to the notice of intent to introduce the 1989 police report, Pullen filed a motion in limine to bar the evidence as unduly prejudicial. The trial court granted Pullen’s motion and excluded the evidence. After concluding that it “must perform the balancing test set forth in MRE 403 before admitting evidence under MCL 768.27a,” the trial court ruled that the 1989 police report failed to survive that balancing:

[I]t is the opinion of this Court that the prejudicial impact of the evidence proffered by the People substantially outweighs the probative value because it involves more serious facts than those in the case at bar. [Pullen] is charged with having sexual contact with his granddaughter, as well as exposing himself to his granddaughter. The police report from 1989 sets forth facts of a long pattern of sexual abuse by [Pullen] against his daughter, including multiple digital penetrations .... According to the police report, [Pullen] admitted to police that he had perpetrated these acts upon his daughter. Should this evidence be presented to the jury, it is highly probable that the jury would not be able to separate the two cases and would likely decide the case based on emotional impact rather than logical reasons. Thus, this evidence does not survive the balancing test of MRE 403 and is not admissible.

The Court also finds that it would be fundamentally unfair and a violation of due process to force [Pullen] to defend accusations from over 20 years ago for which charges were never filed. [Pullen] is in an untenable position to try to disprove more serious and greatly dated charges. It is unlikely that he would be able to do so, and to require him to do so would be manifestly unjust.

Following the ruling, the trial court agreed to stay the trial court proceedings to allow the prosecution to pursue an appeal. The Court of Appeals granted the prosecution’s interlocutory application for leave to appeal and affirmed the trial court’s ruling in an unpub lished opinion per curiam.²⁸ It concluded that MRE 403 applies to evidence admissible under MCL 768.27a and held that the trial court did not abuse its discretion by excluding the evidence:

Even given the fact that the evidence is relevant because the past conduct also involves a family member, it is highly likely that the jury would convict defendant solely based on his past conduct out of inflamed passion, anger or shock. In addition, because the prior conduct did not result in a conviction or even in the filing of charges, the trial court correctly observed that the necessary presentation of this evidence concerning the earlier alleged conduct would not only overshadow the question of defendant’s guilt that is directly at issue in the instant case, it would be virtually impossible for defendant to defend himself against the earlier unproven allegations.[29]

The prosecution applied for leave to appeal in this Court. We granted leave, instructing the parties to address

(1) whether the omission of any reference to MRE 403 in MCL 768.27a (as compared to MCL 768.27b(l)), while mandating that evidence of other offenses “is admissible and may be considered for its bearing on any matter to which it is relevant,” would violate a defendant’s due process right to a fair trial and (2) whether the Court should rule that evidence of other offenses described in MCL 768.27a is admissible only if it is not otherwise excluded under MRE 403.[30]

II. STANDARD OF REVIEW

Constitutional questions and issues of statutory interpretation are questions of law, which this Court reviews de novo.³¹ In addition, we review for an abuse of discretion a trial court’s decision to exclude evidence.³² A trial court abuses its discretion when it chooses an outcome falling outside the range of principled outcomes.³³

III. ANALYSIS

A. MCL 768.27a AND MRE 404(b) CONFLICT

Addressing whether MCL 768.27a prevails over MRE 404(b) requires the initial determination whether the statute and court rule irreconcilably conflict.³⁴ It is only in cases of irreconcilable conflict that we must determine whether the Legislature has enacted a statute that improperly supplants the Court’s exclusive authority under Const 1963, art 6, § 5 to promulgate rules regarding the practice and procedure of the courts.³⁵ “We do not lightly presume that the Legislature intended a conflict, calling into question this Court’s authority to control practice and procedure in the courts.”³⁶

When construing a statute, whether to determine the existence of a conflict or otherwise, our primary objective remains the same: to ascertain and give effect to the Legislature’s intent.³⁷ We begin our analysis with the text. If the statutory language is plain and unambiguous, courts must “enforce the statute as written and follow its plain meaning, giving effect to the words used by the Legislature.”³⁸ We are also mindful of the need to read statutory provisions as a whole, focusing on not only the individual words and phrases but also the placement of those words and phrases in the context of the broader legislative scheme.³⁹ The same principles govern the construction of court rules.⁴⁰

In this case, we have little trouble concluding that MCL 768.27a and MRE 404(b) irreconcilably conflict. MRE 404(b)(1) provides:

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.

Thus, MRE 404(b) requires the exclusion of other-acts evidence if its only relevance is to show the defendant’s character or propensity to commit the charged offense.⁴¹ “Underlying the rule is the fear that a jury will convict the defendant inferentially on the basis of his bad character rather than because he is guilty beyond a reasonable doubt of the crime charged.”⁴² Preventing the jury from drawing this inference recognizes the risk that propensity evidence might “ ‘weigh too much with the jury and ... so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.’ ”⁴³

By contrast, MCL 768.27a provides:

(1) Notwithstanding [MCL 768.27],[44] 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. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.

(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.

Of significance here is the statutory language allowing the admission of evidence that defendant committed another listed offense “for its bearing on any matter to which it is relevant.” 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.”⁴⁵ Because a defendant’s propensity to commit a crime makes it more probable that he committed the charged offense, MCL 768.27a permits the admission of evidence that MRE 404(b) precludes.

As the Court of Appeals has explained, “our 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.”⁴⁶ Quite the opposite, this Court has long recognized that a defendant’s character and propensity to commit the charged offense is highly relevant because “an individual with a substantial criminal history is more likely to have committed a crime than is an individual free of past criminal activity.”⁴⁷ Indeed, “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.”⁴⁸ Thus, the language in MCL 768.27a allowing admission of another listed offense “for its bearing on any matter to which it is relevant” permits the use of evidence to show a defendant’s character and propensity to commit the charged crime, precisely that which MRE 404(b) precludes.

That the Legislature envisioned and intended the statute to supersede MRE 404(b) is unmistakable given the statute’s prefatory phrase “[notwithstanding [MCL 768.27].” MCL 768.27 codified what later essentially became the substance of MRE 404(b). Both MCL 768.27 and MRE 404(b) limit the admissibility of other-acts evidence to consideration for noncharacter purposes, such as to show a defendant’s motive, intent, or common plan or scheme. “Notwithstanding” is defined as “in spite of” or “without being opposed or prevented by[.]”⁴⁹ Parsed out, MCL 768.27a can be rephrased as follows: In spite of the statute limiting the admissibility of other-acts evidence to consideration for noncharacter purposes, other-acts evidence in a case charging the defendant with sexual misconduct against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. Thus, the statute establishes an exception to MRE 404(b) in cases involving a charge of sexual misconduct against a minor.

Although an issue of first impression for this Court, federal courts have concluded that FRE 414,⁵⁰ the federal counterpart of MCL 768.27a, conflicts with FRE 404(b).⁵¹ One court explained, “[FRE 414] allows the prosecution to use evidence of a defendant’s prior acts for the purpose of demonstrating to the jury that the defendant had a disposition of character, or propensity, to commit child molestation.”⁵² As another federal court succinctly stated, “[propensity evidence is precisely what [FRE] 414 permits.”⁵³ The Michigan Court of Appeals has similarly reasoned:

When a defendant is charged with a sexual offense against a minor, MCL 768.27a allows prosecutors to introduce evidence of a defendant’s uncharged sexual offenses against minors without having to justify their admissibility under MRE 404(b). In many cases, it allows evidence that previously would have been inadmissible, because it allows what may have been categorized as propensity evidence to be admitted in this limited context.[54]

We reach the same conclusion. Because we cannot read MCL 768.27a and MRE 404(b) in harmony, the question becomes which decree prevails — that of the Legislature or that of the judiciary.

B. MCL 768.27a PREVAILS OVER MRE 404(b)

A rule of evidence will prevail over a conflicting statute only if the statute unconstitutionally infringes on this Court’s authority under Const 1963, art 6, § 5 to “establish, modify, amend and simplify the practice and procedure in all courts of this state.” In accordance with separation-of-powers principles, this Court’s authority in matters of practice and procedure is exclusive and therefore beyond the Legislature’s power to exercise.⁵⁵ This exclusive authority, however, extends only to rules of practice and procedure, as “this Court is not authorized to enact court rules that establish, abrogate, or modify the substantive law.”⁵⁶ Accordingly, our task is to determine whether MCL 768.27a is an impermissible rule governing the practice and procedure of the courts or a valid enactment of substantive law.

McDougall v Schanz addressed whether MCL 600.2169, a statute requiring that expert witnesses offered in medical malpractice actions possess certain medical practice or teaching experience, violated the Court’s exclusive authority regarding rules of practice and procedure.⁵⁷ We harbored no doubt in McDougall that MCL 600.2169 acts as a rule of evidence, given that its application determines the admissibility of expert testimony in medical malpractice cases.⁵⁸ MCL 768.27a similarly determines the admissibility of evidence that the defendant committed an offense against a minor in a case charging the defendant with the commission of a separate offense against a minor. Therefore, MCL 768.27a is also a rule of evidence.

But our analysis does not end upon reaching this conclusion. In McDougall, we rejected the mechanical approach of characterizing all rules of evidence as procedural.⁵⁹ Instead, we established a sensible approach to separate procedural rules of evidence on the one hand from substantive rules of evidence on the other:

[A] statutory rule of evidence violates Const 1963, art 6, § 5 only when “ ‘no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified....’” Therefore, “ [i]f a particular court rule contravenes a legislatively declared principle of public policy, having as its basis something other than court administration... the [court] rule should yield.” We agree . .. that “[m]ost rules of evidence have been made by courts. Now and then the legislature has, as a result of policy consideration [sic] over and beyond matters involving the orderly dispatch of judicial business, enacted rules of evidence. The distinction previously pointed out between policy considerations involving the orderly dispatch of judicial business on the one hand and policy considerations involving something more than that on the other hand is the distinction that must be carried through into the evidence field.”[60]

Thus, statutory rules of evidence that reflect policy considerations limited to “the orderly dispatch of judicial business,” i.e., court administration, are procedural and violate Const 1963, art 6, § 5. But statutory rules of evidence that reflect policy considerations “over and beyond matters involving the orderly dispatch of judicial business” are substantive, and in the case of a conflict with a court rule, the legislative enactment prevails. As noted in McDougall, procedural rules of evidence involving the orderly dispatch of judicial business are “ ‘those rules of evidence designed to allow the adjudicatory process to function effectively.... Ex- ampies are rules of evidence designed to let the jury have evidence free from the risks of irrelevancy, confusion and fraud.’ ”⁶¹ McDougall identified the line separating statutory rules of evidence that are constitutional from those that impermissibly venture into the area of practice and procedure over which this Court has exclusive authority.

Applying McDougall, we conclude that MCL 768.27a is a valid enactment of substantive law to which MRE 404(b) must yield. The statute is based on policy considerations over and beyond the orderly dispatch of judicial business. We note several policy reasons that support the Legislature’s decision to allow other-acts evidence in cases involving sexual misconduct against minors. As the United States Supreme Court has observed, “[w]hen convicted sex offenders [including child molesters] reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.”⁶² Evidence of guilt in child molestation cases is typically hard to come by because in most cases the only witness is the victim, whose testimony may not be available, helpful, or deemed credible because of his or her age. It may also be difficult for a jury to believe that a defendant is capable of engaging in such egregious behavior with a child. Consistent with our analysis is the fact that federal courts considering the validity of FRE 414 have identified similar policy considerations underlying the rule that are over and beyond the orderly dispatch of judicial business. Those considerations include “[p]romoting the effective prosecution of sex offenses,” “the reliance of sex offense cases on difficult credibility determinations,” and “the ‘exceptionally probative’ value of a defendant’s sexual interest in children.”⁶³ In our judgment, MCL 768.27a was not “ ‘designed to allow the adjudicatory process to function effectively. . . .’ ”⁶⁴ Rather, it reflects a substantive legislative determination that juries should be privy to a defendant’s behavioral history in cases charging the defendant with sexual misconduct against a minor.

In sum, the reasons for enacting MCL 768.27a were 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. Accordingly, we hold that MCL 768.27a does not run afoul of Const 1963, art 6, § 5, and in cases in which the statute applies, it supersedes MRE 404(b).⁶⁵

The dissent would instead hold that MCL 768.27a is unconstitutional. The dissent first takes the position that MCL 768.27a should fail the McDougall test because the statute primarily concerns the judicial dispatch of litigation, which the dissent says is true of all rules that have the “effect” of “telling [courts] what evidence juries can hear.”⁶⁶ This is a misapplication of McDougall. If it were true that all rules that operate to tell courts what evidence is admissible concerned the judicial dispatch of litigation, then all rules of evidence would be procedural. But McDougall specifically rejected the approach of mechanically characterizing all rules of evidence as procedural. Therefore, the dissent’s position is inconsistent with a proper reading oí McDougall.

Alternatively, the dissent would refine or discard the McDougall test. The dissent’s proposed test would treat the legislative policy concerns surrounding a statute’s enactment as irrelevant to whether an evidentiary rule is substantive or procedural.⁶⁷ According to the dissent, the only inquiry should be whether the function of the statute “is to tell the courts what evidence they may admit in a court proceeding. . . .”⁶⁸ This approach would also mechanically characterize all rules of evidence as procedural because, as a purely functional matter (if we truly disregard every underlying policy concern), all evidentiary rules tell the courts what evidence is admissible.⁶⁹ Thus, although the dissent criticizes the majority’s application of the McDougall test as vastly underinclusive in defining which evidentiary rules qualify as procedural, the dissent’s alternative approaches are vastly overinclusive in defining the same.

The dissent cites the rules of privilege as an example of an area of substantive rulemaking. But rules relating to privilege still serve the exclusive function of telling the courts what evidence is admissible at trial and, therefore, would be procedural under the dissent’s test. Privilege rules function to dictate the admissibility of communications made between parties in certain relationships; accordingly, privilege rules tell the courts what evidence is admissible at trial.⁷⁰

The dissent asserts that privileges and other substantive rules of evidence “do far more than dictate what evidence is admissible in a court proceeding; they directly affect people’s out-of-court behavior.”⁷¹ We do not disagree that privileges influence out-of-court behavior by “promoting] free and open expression in certain relationships with the confidence that what is communicated will not be revealed in a court proceeding.”⁷² What the dissent fails to appreciate, however, is that the goal of promoting free expression and confidence in certain relationships is nothing more than a policy concern advanced by the Legislature, which runs directly counter to the dissent’s position that legislative policy concerns are irrelevant. It is neither proper nor sensible to conclude that court rules should yield to statutes that are grounded in some policy concerns (e.g., a concern for promoting free expression and confidence in certain relationships) but not others (e.g., a concern for protecting children and addressing the high recidivism rates of child molesters). Thus, we question the wisdom of drawing a distinction that is based on whether an evidentiary rule directly influences people’s out-of-court behavior.

Finally, we note as one example that the dissent’s proposed test would mean the end of Michigan’s rape-shield statute, MCL 750.520j, a consequence that the dissent does not dispute. Yet the United States Supreme Court has endorsed Michigan’s rape-shield statute and described it as “representing] a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy.”⁷³ And although the Supreme Court did not specifically address the separation-of-powers issue,⁷⁴ rape-shield laws have been upheld even in the face of a constitutional provision analogous to Const 1963, art 6, § 5.⁷⁵ We reiterate our belief that the sensible divide is between rules involving considerations limited to the orderly dispatch of judicial business, which are procedural, and rules involving considerations over and beyond the orderly dispatch of judicial business, which are substantive. This position recognizes the powers and limitations of both the judicial and the legislative rulemaking authority.

C. MCL 768.27a REMAINS SUBJECT TO MRE 403

Having determined that MCL 768.27a is a valid enactment of substantive law, the question remains whether evidence admissible under the statute may nonetheless be excluded under MRE 403. For the reasons that follow, we hold that evidence admissible pursuant to MCL 768.27a may nonetheless be excluded under MRE 403 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.”

The argument against applying MRE 403 to evidence admissible under MCL 768.27a comes not from the text of either MRE 403 or MCL 768.27a, but from the text of MCL 768.27b, which pertains to other-acts evidence in domestic violence cases. MCL 768.27b provides that “evidence of the defendant’s commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403.”76 It is this emphasized portion of the statute that has generated disagreement surrounding whether MRE 403 applies to MCL 768.27a.

Unlike MCL 768.27b, MCL 768.27a does not explicitly mention MRE 403: “Notwithstanding [MCL 768.27], . . . 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, it is argued that if the Legislature expressly made other-acts evidence under MCL 768.27b subject to MRE 403 in cases of domestic violence, then the failure to mention MRE 403 in MCL 768.27a indicates that the Legislature did not intend MRE 403 to apply with regard to other-acts evidence in cases involving sexual misconduct against minors. We reject the invitation to draw this inference.

Significantly, the Legislature did not draft these statutes simultaneously. MCL 768.27a was enacted by 2005 PA 135, which became effective January 1, 2006, whereas MCL 768.27b was enacted by 2006 PA 78, which became effective March 24, 2006. The Legislature’s “silence” from which it is urged we draw an inference occurred in the earlier enactment. It is one thing to infer legislative intent through silence in a simultaneous or subsequent enactment, but quite another to infer legislative intent through silence in an earlier enactment, which is only “silent” by virtue of the subsequent enactment.

We are also mindful of “considering] whether [the statute and rule of evidence] can be construed so as not to conflict,”⁷⁷ and “[w]e do not lightly presume that the Legislature intended a conflict. . . .”⁷⁸ Unlike the irreconcilable conflict between MCL 768.27a and MRE 404(b), there is nothing inherent in the statute that prevents the application of MRE 403. And because MCL 768.27a makes no specific mention of MRE 403, we choose not to presume that the Legislature intended that MRE 403 not apply to other-acts evidence admissible under the statute. The Legislature could have expressly exempted evidence admissible under MCL 768.27a from analysis under MRE 403, but it did not.

Furthermore, as the United States Supreme Court has observed,

“not every silence is pregnant.” In some cases, Congress intends silence to rule out a particular statutory application, while in others Congress’ silence signifies merely an expectation that nothing more need be said in order to effectuate the relevant legislative objective. An inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent.[79]

In closely examining the statutes, all other textual and contextual evidence of the Legislature’s intent runs contrary to inferring that MRE 403 does not apply to evidence admissible under MCL 768.27a. Despite some similarities, there are notable differences between the two statutes.

First, the Legislature used the permissive term “may” in MCL 768.27a but not in MCL 768.27b. Under MCL 768.27a, “evidence that the defendant committed another listed offense against a minor is admissible,” but the statute goes on to provide that such evidence “may be considered for its bearing on any matter to which it is relevant.”⁸⁰ When the statute is read as a whole, the phrase “is admissible” is qualified by the phrase “may be considered,” thereby indicating that admissibility remains subject to some level of discretion on the part of the trial court. As this Court has explained, “courts should give the ordinary and accepted meaning to . . . the permissive word ‘may’ unless to do so would clearly frustrate legislative intent as evidenced by other statutory language or by reading the statute as a whole.”⁸¹ Because there is no indication in MCL 768.27a that “may” should be interpreted contrary to its generally accepted meaning, the term is permissive, not mandatory. By providing that evidence admissible under MCL 768.27a “may be considered,” the Legislature necessarily contemplated that evidence admissible under the statute need not be considered in all cases and that whether and which evidence would be considered would be a matter of judicial discretion, as guided by the rules of evidence. The most obvious rule available to guide courts in exercising this discretion is MRE 403.

By contrast, MCL 768.27b contains no permissive language. MCL 768.27b(l) simply provides that “evidence of the defendant’s commission of other acts of domestic violence is admissible for any purpose for which it is relevant. . . .” Perhaps it was the choice to omit the permissive language that prompted the Legislature to qualify the admissibility of other-acts evidence under MCL 768.27b with the language “if it is not otherwise excluded under Michigan rule of evidence 403.” We choose not to speculate in this regard. Whatever motivated the Legislature to draft the statutes differently, we must give meaning to the permissive term “may” used by the Legislature in MCL 768.27a.

Second, we must give effect to the prefatory clause “[notwithstanding [MCL 768.27]” contained in MCL 768.27a but absent from MCL 768.27b. MCL 768.27a provides, “Notwithstanding [MCL 768.27], 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.” The specific mention of MCL 768.27, and no other rule or principle of evidence, is significant. MCL 768.27 provides:

In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.

Giving effect to the statute’s reference to MCL 768.27, MCL 768.27a means that other-acts evidence in cases involving sexual misconduct against a minor “may be considered for its bearing on any matter to which it is relevant” notwithstanding that MCL 768.27 limits the admissibility of other-acts evidence to consideration for noncharacter purposes. MCL 768.27a does not apply “notwithstanding any rule or principle of evidence,” but only “[notwithstanding [MCL 768.27].” Put simply, we cannot interpret the prefatory phrase “[notwithstanding [MCL 768.27]” to mean “notwithstanding [MCL 768.27] and MRE 403.” We similarly refuse to read into MCL 768.27a a legislative intent to foreclose the application of other ordinary rules of evidence, such as those pertaining to hearsay and privilege.

In sum, the “silence” in MCL 768.27a arose only by virtue of the subsequent enactment of MCL 768.27b, MCL 768.27a can be read in harmony with MRE 403, and we must give effect to the permissive term “may” and the phrase “[notwithstanding [MCL 768.27]” that are present in MCL 768.27a but absent from MCL 768.27b. For all these reasons, we hold that MRE 403 applies to evidence admissible under MCL 768.27a.⁸²

D. COURTS MUST WEIGH THE PROPENSITY INFERENCE IN FAVOR OF THE EVIDENCE’S PROBATIVE VALUE

Our conclusion that other-acts evidence admissible under MOL 768.27a remains subject to MRE 403 gives rise to the question of proper application. As with any balancing test, MRE 403 involves two sides of a scale — a probative side and a prejudicial side. Propensity evidence is prejudicial by nature, and it is precisely the danger of prejudice that underlies the ban on propensity evidence in MRE 404(b). Yet were a court to apply MRE 403 in such a way that other-acts evidence in cases involving sexual misconduct against a minor was considered on the prejudicial side of the scale, this would gut the intended effect of MCL 768.27a, which is to allow juries to consider evidence of other acts the defendant committed to show the defendant’s character and propensity to commit the charged crime. To weigh the propensity inference derived from other-acts evidence in cases involving sexual misconduct against a minor on the prejudicial side of the balancing test would be to resurrect MRE 404(b), which the Legislature rejected in MCL 768.27a.

Accordingly, when applying MRE 403 to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect. That is, other-acts evidence admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity inference. In reaching this conclusion, we join several federal courts that have addressed this issue with respect to FRE 414 and 403.⁸³

This does not mean, however, that other-acts evidence admissible under MCL 768.27a may never be excluded under MRE 403 as overly prejudicial. There are several considerations that may lead a court to exclude such evidence. These considerations include (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony.⁸⁴ This list of considerations is meant to be illustrative rather than exhaustive.

Several of these considerations are challenged in this appeal. Regarding the decision whether to exclude evidence admissible under MCL 768.27a when applying MRE 403, it is argued that courts should not be permitted to consider how long ago the other act occurred, its dissimilarity to the charged offense, or the fact that the defendant was never convicted of the other act. We disagree.

Although MCL 768.27b expressly imposes a 10-year hmitation on the admissibility of other-acts evidence in domestic violence cases, whereas MCL 768.27a provides no such hmitation, there is simply no legal basis for concluding that the lack of a temporal hmitation in MCL 768.27a somehow means that the length of time since the other act of sexual misconduct against a minor occurred cannot be considered when weighing prejudice under MRE 403. Just as the statute’s failure to refer to MRE 403 did not bar the court rule’s apphcation, the failure to temporally limit the admissibility of other-acts evidence does not preclude a court from considering under MRE 403 how long ago the other act occurred.

The argument that the dissimilarity of the other-acts evidence and the charged offense should not be considered under MRE 403 similarly fails. Although MCL 768.27a, by its terms, applies to all listed offenses, there is no indication that the Legislature intended to suggest that all listed offenses are sufficiently similar to each other that the dissimilarity between them and the charged offense could never be weighed in favor of concluding that the other-acts evidence presents the danger of unfair prejudice under MRE 403.

Finally, it is argued that, because MCL 768.27a applies to more than conduct that resulted in a conviction, whether the evidence of the other act resulted in a conviction is irrelevant under MRE 403. We disagree. That MCL 768.27a permits the introduction of other-acts evidence that did not result in a conviction does not mean that evidence that did not result in a conviction must be admitted or that a court may not consider whether charges were filed or a conviction rendered when weighing the evidence under MRE 403.⁸⁵

The foregoing considerations may be used by trial courts to determine whether the probative value of evidence admissible under MCL 768.27a — which includes the propensity inference derived from the other-acts evidence — is nonetheless outweighed by the danger of unfair prejudice. Trial courts should apply this balancing to each separate piece of evidence offered under MCL 768.27a. In addition, trial courts retain their discretion under MRE 403 to determine how many separate pieces of other-acts evidence may be admitted before the probative value of such evidence is outweighed by the danger of “confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”⁸⁶ This determination can only be made in the context of the entire trial, considering all the other-acts evidence offered under MCL 768.27a as well as the evidence as a whole. There is no bright-line rule for how many “other acts” may be admitted before the scale tips in favor of exclusion. Rather, ensuring that the proba tive value of other-acts evidence is not outweighed by the danger of “confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence” is a responsibility left to the trial court’s discretion.

A final tool available for trial courts when admitting other-acts evidence under MCL 768.27a is CJI2d 20.28a, the standard instruction on evidence of other acts of child sexual abuse:

(1) The prosecution has introduced evidence of claimed acts of sexual misconduct by the defendant with [a minor / minors] for which [he / she] is not on trial.

(2) Before you may consider such alleged acts as evidence against the defendant, you must first find that the defendant actually committed those acts.

(3) If you find that the defendant did commit those acts, you may consider them in deciding if the defendant committed the [offense / offenses] for which [he / she] is now on trial.

(4) You must not convict the defendant here solely because you think [he / she] is guilty of other bad conduct. The evidence must convince you beyond a reasonable doubt that the defendant committed the alleged crime, or you must find [him / her] not guilty.

In cases in which a trial court determines that MRE 403 does not prevent the admission of other-acts evidence under MCL 768.27a, this instruction is available to ensure that the jury properly employs that evidence.

IV APPLICATION

A. DOCKET NO. 142031

In Docket No. 142031, at Watkins’s third and final trial, the trial court permitted EW to testify regarding other acts of alleged criminal sexual conduct and their surrounding circumstances. On appeal, the Court of Appeals properly confirmed its earlier holding that MCL 768.27a conflicts with MRE 404(b) and that the statute prevails over the rule of evidence.⁸⁷ It also properly held that evidence admissible under MCL 768.27a remains subject to MRE 403.⁸⁸ Further, we agree with the Court of Appeals’ conclusion that the trial court’s failure to apply MRE 403 was harmless. In addition to being probative because of the propensity inference, the other-acts evidence also supported the victim’s credibility, presented circumstances similar to those underlying the charged offense, and established Watkins’s modus operandi. And although the trial court failed to determine which aspects of EW’s testimony met the requirements of MCL 768.27a, we agree with the Court of Appeals that the only incident for which EW provided specific details met the statute’s requirements and, therefore, any error in admitting all of EW’s testimony “was not inconsistent with substantial justice.”⁸⁹ Finally, in accordance with CJI2d 20.28a, the jury was instructed on how to properly use the other-acts evidence. Accordingly, we affirm in Watkins.

B. DOCKET NO. 142751

In Docket No. 142751, the trial court granted Pullen’s motion in limine, excluding a 1989 police report containing allegations that Pullen had sexually abused his daughter more than 20 years ago. Although the trial court properly concluded that evidence admissible under MCL 768.27a remains subject to MRE 403, it abused its discretion by misapplying MRE 403.

First, the trial court failed to weigh the propensity inference in favor of the evidence’s probative value. Nowhere in its analysis did the trial court mention that the other-acts evidence was probative of Pullen’s character or propensity to commit the charged offense. Instead, the court stated that, “[s]hould this evidence be presented to the jury, it is highly probable that the jury would not be able to separate the two cases and would likely decide the case based on emotional impact rather than logical reasons.” The Court of Appeals affirmed, characterizing this flawed reasoning as having “provided a reasoned basis” for the trial court’s decision.⁹⁰

Second, the trial court failed to weigh in favor of the evidence’s probative value the extent to which the other-acts evidence supported the victim’s credibility and rebutted the defense’s attack thereof.⁹¹ Pullen admitted that his trial strategy was to attack the victim’s credibility, and the other-acts evidence was highly probative for rebuttal purposes and tended to support the victim’s credibility.⁹²

Third, the trial court failed to review separately under MRE 403 each act alleged in the 1989 report and instead lumped all of the evidence together. The trial court apparently believed that the egregiousness of some of the other-acts evidence — e.g., the allegation made by Pullen’s daughter that he “checked if [she] was still a virgin” — -justified excluding all the other-acts evidence as overly prejudicial. The various acts revealed in the 1989 report included digital penetration, unwelcome and inappropriate touching, and indecent exposure. The trial court should have considered each act separately.⁹³

Finally, the evidence of indecent exposure at issue here did not qualify as a listed offense under MCL 768.27a at times relevant to the instant case and, therefore, its admissibility should have been analyzed under MRE 404(b). The offense of aggravated indecent exposure is set forth at MCL 750.335a.⁹⁴ Currently, § 2 of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., defines “listed offense” as including “[a] violation of [MCL 750.335a(2)(b)] ... if a victim is a minor.”⁹⁵ At times relevant to this case, however, § 2 of SORA defined “listed offense” to mean “[a] violation of [MCL 750.335a(2)(b)] . . . if that individual was previously convicted of violating [MCL 750.335a].”96 Pullen was never convicted of violating MCL 750.335a for exposing himself to his daughter more than 20 years ago, as alleged in the 1989 police report. Indeed, criminal charges were never filed. Because the evidence was not a listed offense under SORA and hence not admissible as a listed offense under MCL 768.27a, the trial court should have analyzed its admissibility under MRE 404(b).⁹⁷ Accordingly, we vacate the judgments of the lower courts in Pullen and remand the case to the trial court for further proceedings consistent with this opinion.

V CONCLUSION

In conclusion, we hold that MCL 768.27a irreconcilably conflicts with MRE 404(b) and that the statute prevails over the court rule. We also hold that evidence admissible under MCL 768.27a remains subject to MRE 403, but that courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect. For the foregoing reasons, we affirm the Court of Appeals’ judgment in Watkins, Docket No. 142031, vacate the judgments of the lower courts in Pullen, Docket No. 142751, and remand the latter case to the trial court for further proceedings consistent with this opinion.

Young, C.J., and Markman and Mary Beth Kelly, JJ., concurred with ZAHRA, J.

1

“ ‘Listed offense’ means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722.” MCL 768.27a(2)(a).

2

Given this conclusion, we need not address whether, if evidence admissible under MCL 768.27a were not subject to MRE 403, the statute would violate a defendant’s due-process right to a fair trial or interfere with the judicial power to ensure that a criminal defendant receives a fair trial.

3

MCL 750.520b(l)(a) (involving a person under the age of 13).

4

MCL 750.520c(l)(a) (involving a person under the age of 13).

5 People v Watkins, 277 Mich App 358, 360; 745 NW2d 149 (2007).