Background
Kosta Lakovic was convicted by a jury of second-degree criminal sexual conduct for sexual contact with KC, a 15-year-old member of his household. KC testified that Lakovic entered the bedroom where she was napping, placed his hand beneath her blanket, and squeezed and groped her upper thigh and between her legs. During a police interview, Lakovic admitted touching KC and acknowledged that she grabbed his wrist and told him to stop, but he denied groping her.
At trial, the prosecution also introduced testimony about Lakovic’s interactions with other teenage girls in the household. The evidence included his touching TP’s breast during a pool game, making sexual comments, asking two girls to draw a penis as part of a game, and touching SP’s waist. A detective additionally gave a general definition of “grooming.” Lakovic argued on appeal that this evidence denied him a fair trial and that the prosecution failed to prove he touched KC for a sexual purpose.
The Court’s Holding
The Court of Appeals affirmed. It held that testimony about Lakovic touching TP’s breast was admissible under MCL 768.27a because a jury could find that conduct constituted fourth-degree criminal sexual conduct, a listed offense against a minor. The evidence was probative of Lakovic’s propensity to touch young girls in his household inappropriately, and its probative value was not substantially outweighed by unfair prejudice.
The remaining other-acts evidence did not describe listed offenses and therefore was not admissible under MCL 768.27a. It was nevertheless admissible under MRE 404(b) to show intent, motive, and a common scheme, plan, or system, as well as to provide context and bear on KC’s credibility. Although the trial court abused its discretion by admitting that evidence without conducting the proper MRE 404(b) analysis, the error was harmless because the evidence itself was admissible, Lakovic had notice and an opportunity to challenge it, and the jury received a limiting instruction.
The detective’s definition of grooming was irrelevant and unfairly prejudicial, making its admission erroneous. That error was also harmless because the reference was brief, the detective did not accuse Lakovic of grooming anyone, and the defense later emphasized the subject. Finally, KC’s account of Lakovic reaching beneath the blanket and groping her inner thigh while she lay in bed permitted a rational jury to find beyond a reasonable doubt that the touching had a sexual purpose.
Key Takeaways
- Other-acts evidence falls under MCL 768.27a only when the conduct constitutes another statutorily listed offense against a minor.
- Conduct outside MCL 768.27a may still be admissible under MRE 404(b) for a proper nonpropensity purpose, including intent or a common scheme, plan, or system.
- An irrelevant definition of grooming did not require reversal where it was mentioned only briefly, was not expressly applied to the defendant, and did not more likely than not affect the verdict.
- A victim’s testimony that the defendant reached beneath a blanket and groped her inner thigh was sufficient to establish sexual contact for purposes of CSC-II.
Why It Matters
The unpublished decision illustrates that Michigan courts must distinguish between other sexual offenses admissible for propensity purposes under MCL 768.27a and other conduct admissible only for a proper purpose under MRE 404(b). Applying the wrong evidentiary framework is an abuse of discretion, but reversal is not automatic when the evidence was independently admissible and the error did not affect the outcome.
The opinion also cautions against introducing generalized grooming testimony when grooming is neither an element of the charged offense nor otherwise a fact in issue. At the same time, it confirms that circumstantial evidence and an alleged victim’s uncorroborated testimony can establish the sexual-purpose component of criminal sexual conduct.