People of Michigan v. Brandon Ray-Vaughn Drendall ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 28, 2021
Plaintiff-Appellee,
v No. 350069
Isabella Circuit Court
BRANDON RAY-VAUGHN DRENDALL, LC No. 2018-001162-FC
Defendant-Appellant.
Before: GADOLA, P.J., and BORRELLO and M. J. KELLY, JJ.
PER CURIAM.
Defendant, Brandon Drendall, was convicted of second-degree criminal sexual conduct
(CSC-II), MCL 750.520c(2)(b), and accosting a child for immoral purposes, MCL 750.145a. He
was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve 142 months to 30 years’
imprisonment for CSC-II, concurrent with 8 to 15 years’ imprisonment for accosting a child.
Because Drendall was denied a fair trial by the admission of highly prejudicial, inadmissible
testimony, we reverse his convictions and remand for a new trial.
I. BASIC FACTS
In June 2017, the complainant, who was seven years old at the time, heard an argument
between her mother and Drendall. At the time Drendall was married to the complainant’s mother
and she called him “dad.” The complainant testified that she went to the family’s “mudroom” to
see what was happening. She believed that both Drendall and her mother were drunk. Eventually,
the complainant’s mother left the room, crying.
The complainant stayed with Drendall. She recalled sitting on his lap while he identified
rocks in a rock collection. She testified that Drendall put his hand up her shirt and then moved it
down into her underwear. She stated that Drendall put his finger inside her vagina and moved it
in a circular motion. He did not say anything. The complainant made up an excuse to leave the
room and went into the kitchen where her teenage sister, her sister’s boyfriend, and her mother
were located. She then went with her sister to her sister’s bedroom and disclosed what had just
happened. Later that same night, the complainant told her mother about Drendall touching her.
She explained that she told her sister first because she could trust her. Although the complainant
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immediately disclosed the abuse, neither her mother nor her sister contacted the police on her
behalf.
Approximately three months later, in September 2017, the complainant’s mother left
Drendall. In October 2017, she filed for divorce. At issue in the divorce was the custody of the
complainant’s mother and Drendall’s children in common. The complainant’s mother testified
that she was “somewhat” concerned about whether she would keep custody of the children. And
the defense was able to elicit limited testimony regarding the contentious nature of the Drendalls’
divorce from the complainant’s mother.
The June 2017 sexual abuse was not reported to the police until November 18, 2017. On
that night, three teenagers were babysitting the complainant and her half-siblings. Drendall,
believing that the teenagers were drinking alcohol and smoking, called the police. The record
reflects that, approximately one hour before Drendall called the police, the complainant’s maternal
grandmother arrived at the house. The grandmother explained that she was scheduled to take over
babysitting the children. Five minutes before the police arrived the complainant reported the June
2017 incident to her grandmother. The grandmother testified that within that five minutes she was
“able to convince [the complainant, who had sworn her grandmother to secrecy,] that she needed
to tell so that someone else couldn’t be hurt.” After the police arrived, the grandmother promptly
told the police about it.
Drendall was charged with first-degree criminal sexual conduct (CSC-I), CSC-II, and
accosting a minor for immoral purposes. At trial, the defense theory was that the complainant had
made up the allegations at the direction of her mother and grandmother because of the contentious
divorce. The jury deliberated for two days and asked the court twice what would happen if they
could not reach a unanimous verdict. The jury ultimately acquitted Drendall of CSC-I, but found
him guilty of CSC-II and accosting a child for immoral purposes.
II. ADMISSION OF EVIDENCE
A. STANDARD OF REVIEW
Drendall first argues that he was denied a fair trial because the prosecutor repeatedly
elicited inadmissible, irrelevant, and highly prejudicial evidence that he physically abused the
complainant, physically and emotionally abused the complainant’s mother, and that he used
methamphetamine and got the complainant’s mother hooked on methamphetamine. Drendall’s
lawyer did not object to the evidence of physical abuse, and he did not timely object to the evidence
of Drendall’s drug abuse. Consequently, this issue is unpreserved. See People v Jones, 468 Mich
345, 355; 662 NW2d 376 (2003). We review a defendant’s unpreserved claims of error for plain
error affecting substantial rights. Id. To avoid forfeiture, a defendant must show that “(1)
error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected
substantial rights.” Id. “The third requirement generally requires a showing of prejudice, i.e., that
the error affected the outcome of the lower court proceedings.” People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999). “Reversal is warranted only when the plain, unpreserved error
resulted in the conviction of an actually innocent defendant or when an error seriously affected the
fairness, integrity, or public reputation of judicial proceedings independent of the defendant’s
innocence.” Jones, 468 Mich at 355.
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B. ANALYSIS
Drendall argues that evidence of his methamphetamine abuse and his alleged physical
abuse of the complainant and her mother was inadmissible other-acts evidence and that its
admission was plain error affecting his substantial rights. We agree.
The prosecution elicited detailed testimony from the complainant that Drendall would
spank her with his hand, a belt, or “a wooden stick covered in tape.” The complainant explained
that he would keep the stick atop a little oven, and, after the complainant’s grandmother made him
get rid of it, he made a new one.1 She stated that he would leave “red marks” on her when he hit
her, and during her forensic interview, she disclosed that she had to hide the marks so that relatives
would not become upset. During the medical examination, the complainant added that Drendall
“would spank me with a stick of wood with tape wrapped around it because it hurts worse than
spanking with a hand.” The complainant agreed with the prosecutor that Drendall had an anger
problem, and she stated that she tried to stay away from Drendall because she “knew at some point
he would hurt me because he gets really mad . . . and tries to hurt people.”
The jury also heard that the complainant reported to the medical doctor that Drendall “does
awful things when he’s drunk.” The complainant explained that “he says hurtful things like the B
word, the F word and the N word,” that he would sometimes push her, and that he fought with her
mother all the time. She also told the doctor that Drendall “put hot coffee on my mom, her face
was really, really red, he hurt her.” The complainant testified that Drendall treated her mother
badly, recounting that Drendall would “hit hurt, hurt her, cuss at her, throw things at her and do
not very nice things to her.” She noted that he broke the TV by throwing a remote at her mother.
During her testimony, the complainant’s mother corroborated that a TV remote was thrown at her
and broke the TV. The mother also testified that Drendall broke a flat screen TV over her head,
resulting in her having to get stitches. She stated that Drendall threw multiple TVs at her.2 The
1
The existence of a taped stick was corroborated by multiple witnesses, and one witness even
confirmed that the stick was kept above the stove. None of the witnesses questioned admitted to
seeing Drendall actually beat any of the children with the stick, but multiple witnesses described
it as a “scare tactic” to make the children behave, and it was frequently referred to as a “whooping
stick.” The grandmother corroborated that she threw the stick away on one occasion; she also
testified that the stick had the names of each of the children, including the complainant’s, written
on it.
2
On appeal, the prosecution contends that the mother’s testimony that multiple TVs were thrown
at her was “absurd.” However, the jury also heard that Drendall drank copious quantities of
alcohol, had a tape-wrapped stick to threaten and/or beat children, used methamphetamine and
introduced others to it, had previously choked the complainant’s mother leaving bruises on her
neck, had hit the complainant’s mother with a flat screen TV making her bleed and requiring
stitches, and had thrown hot coffee on her face which left red marks and hurt her. From the
complainant, the jury was informed that Drendall was mean when he was drunk and that he had
unchecked anger issues. In light of all the evidence on the record, an allegation that he also threw
a couple of TVs is not so absurd and unbelievable so as to discredit the abundant evidence of
physical abuse that was repeatedly presented to the jury.
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complainant’s grandmother’s testimony was supportive in this regard. She testified that she had
to take the complainant’s mother to the emergency room on one occasion because Drendall “had
beat her up.” The grandmother also recounted that she had seen “bruises around her neck where
[the complainant’s mother] suggested that [Drendall] had choked her.”
Finally, the prosecutor asked the complainant’s mother if Drendall had a problem with
drugs or alcohol; the complainant noted that he did, explaining that he would “drink a lot of beer
and get drunk.” The prosecution asked other witnesses about Drendall’s drug use. Of note, the
complainant’s mother testified that she used methamphetamine because Drendall, who also used
methamphetamine, had introduced it to her. The prosecutor also questioned a family witness, who
stated that although she was unaware of Drendall’s drug use, if he did use methamphetamine it
would “[a]bsolutely” affect his parenting because he “would be acting erratic” and would not be
“in his right mind.” That witness added that she was a licensed nurse practitioner.
MRE 404(b)(1) concerns the admission of other-acts evidence and represents a “deeply
rooted and unwavering principle that other-acts evidence is inadmissible for propensity purposes.”
People v Denson, 500 Mich 385, 397; 902 NW2d 306 (2017). MRE 404(b)(1) operates to prevent
a jury from convicting a defendant because of his bad character, rather than because the defendant
is guilty of the charged offense. Id. Our court rules require the prosecution to provide notice of
its intent to introduce other-acts evidence under MRE 404(b). Specifically, MRE 404(b)(2)
provides:
The prosecution in a criminal case shall provide written notice at least 14
days in advance of trial, or orally on the record later if the court excuses pretrial
notice on good cause shown, of the general nature of any such evidence it intends
to introduce at trial and the rationale, whether or not mentioned in subparagraph
(b)(1), for admitting the evidence. If necessary to a determination of the
admissibility of the evidence under this rule, the defendant shall be required to state
the theory or theories of defense, limited only by the defendant’s privilege against
self-incrimination.
The purpose of the notice requirement is three-fold: to force the prosecutor to identify and seek
admission only of relevant bad acts evidence, to ensure that the defendant has an opportunity to
object to, and defend against, the evidence, and to facilitate a thoughtful ruling grounded on an
adequate record. People v Hawkins, 245 Mich App 439, 454-455; 628 NW2d 105 (2001).
In this case, the prosecution did not provide written notice before trial of its intent to
introduce testimony that Drendall physically abused the complainant and her mother. Instead,
during his direct examination of the complainant, he brought it up and questioned her at length
regarding the nature and extent of the abuse. Other witnesses were also extensively questioned
with regard to the abuse. The failure to provide notice under MRE 404(b)(2) is a plain error.
Furthermore, it is outcome determinative error as the trial court stated that it would have kept the
testimony out had it been presented with a challenge before the jury heard it. The judge stated that
the only reason that it permitted the evidence to remain in the record was because there was no
objection by the defense lawyer. The judge suggested that it was part of the defense strategy, and,
on appeal, the prosecution contends that the defense strategy was to discredit the complainant’s
and grandmother’s testimony by pointing out inconsistencies between the various witnesses
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statements regarding the abuse. Yet, the record does not support that this was a strategy the defense
was relying on before trial. Instead, viewing the record as a whole, it is apparent that, after the
jury already heard the unfairly prejudicial testimony, the defense strategy was to minimize it by
bringing in testimony contradicting aspects of the complainant’s testimony and bringing in
witnesses to state that they never saw any physical abuse. Thus, given that there is nothing to
suggest that this was part of the pretrial strategy, and in light of the trial court’s affirmative
statement that it would have excluded the evidence, there is more than a reasonable probability
that the evidence would have been excluded at a pretrial hearing if the prosecutor had provided the
mandated notice under MRE 404(b)(2).
Additionally, there was no pretrial notice given of the prosecution’s intent to introduce
evidence that Drendall abused methamphetamine. Rather, the prosecutor questioned the
complainant regarding Drendall’s use of drugs, eliciting testimony from her that Drendall used
both drugs and alcohol. Later, when questioning the complainant’s mother, the prosecutor learned
that the complainant’s mother started using methamphetamine because of Drendall introducing it
to her. He then asked a number of follow-up questions to multiple witnesses regarding the drug
abuse. On appeal, the prosecutor argues that MRE 404(b)(2)’s notice requirement is not implicated
because the mother’s answer was nonresponsive to the question asked by the prosecution.
However, even if it was nonresponsive, the prosecutor had already asked the complainant about
Drendall’s drug use. That suggests that the prosecutor was already planning to introduce testimony
regarding Drendall’s drug use. Moreover, even if the prosecution had no intent to bring evidence
before the jury that Drendall used methamphetamine, once the complainant’s mother testified to
it, the prosecutor should not have made additional inquiries into an irrelevant and unfairly
prejudicial subject matter without first asking the court to excuse the lack of pretrial notice for
“good cause,” as allowed by MRE 404(b)(2). Again, the purpose of notice is to compel the
prosecutor to only put relevant other-acts evidence before the jury and to allow the defense an
opportunity to object—before the jury hears irrelevant other-acts evidence—to the admission of
the testimony. Hawkins, 245 Mich App at 454-455. Here, the trial court stated that if there had
been a timely objection to the evidence that Drendall used methamphetamine and had introduced
the complainant’s mother to it, then the court would have sustained the objection. Consequently,
not only is the lack of notice under MRE 404(b)(2) plain error, but it is also outcome determinative
error as well.
Even if the prosecution had complied with the notice provision in MRE 404(b)(2),
admission of the other-acts testimony was nevertheless plain error affecting Drendall’s substantial
rights. MRE 404(b)(1) provides:
(1) 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.
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Evidence of other acts is admissible under MRE 404(b)(1) if “(1) the evidence is offered for a
proper purpose, i.e., ‘something other than a character to conduct theory,’ (2) the evidence is
relevant under MRE 402, as enforced by [MRE] 104(b), ‘to an issue or fact of consequence at
trial,’ and (3) the probative value of the evidence is not substantially outweighed by its potential
for undue or unfair prejudice under MRE 403.” People v Dobek, 274 Mich App 58, 85; 732 NW2d
546 (2007), quoting People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), amended
on other grounds 445 Mich 1205 (1994).
Drendall argues that the evidence that he physically abused the complainant and the
complainant’s mother left the jury with the image that Drendall is a mean, violent man who hits
women. Drendall contends that it would “not be too big of a leap” for the jury to have concluded
that because he was physically abusive he was also sexually abusive. The prosecution bears the
burden to demonstrate that the other-acts evidence is relevant to a proper purpose. People v
Mardlin, 487 Mich 609, 615; 790 NW2d 607 (2010). The prosecution did not meet that burden in
the proceedings before the trial court. The evidence that Drendall used methamphetamine and
physically abused the complainant and her mother did not show that Drendall had a motive to
sexually abuse the complainant, that he intended to sexually abuse the complainant, that he had a
common plan or scheme to do so. It was not needed to identify him as the perpetrator of the abuse.
The purpose of the evidence was not to show the absence of a mistake or accident.
The purpose of the evidence was anything but proper. It was used to show that he was a
man who had a problem with drugs and alcohol. A man who had unchecked anger problems. A
man who used a tape-covered stick with the names of the children living in the house scrawled on
it as a “scare tactic” to terrorize the children into behaving. A man of violence who thought nothing
wrong with hitting the complainant with that stick, leaving red marks that she had to cover to
prevent anyone from getting in trouble. A man who used a tape-covered stick because it hurt more
than a bare hand. The evidence painted him as a man who introduced his wife to methamphetamine
when they were getting along. When they were not getting along, however, he was a man who
pushed her and called her names, threw hot coffee in her face, threw TVs and TV remotes at her,
hit her over the head with a TV, and choked her. The jury was allowed to consider the above
evidence without even a minimal caution that such evidence should not be used as support for an
inference that Drendall is a bad man with a propensity to do bad things.
The evidence was irrelevant. It did not have a tendency to make a “fact of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.” See MRE 401. The action to be determined was whether Drendall sexually abused the
complainant. His drug use and physical abuse of the complainant and her mother was unrelated
to the crime charged. It was also not relevant to impeach the credibility of the complainant. The
parts of the physical abuse that she testified to were corroborated by other witnesses, thereby
bolstering her credibility while simultaneously painting Drendall as an angry, physically abusive,
drug abuser. “Where the only relevance of the proposed evidence is to show the defendant's
character or the defendant's propensity to commit the crime, the evidence must be excluded.”
People v Knox, 469 Mich 502, 510; 674 NW2d 366 (2004). In any event, any minimal probative
value the evidence may have had to impeach the complainant’s mother and grandmother on this
unflattering aspect of Drendall’s character was substantially outweighed by the danger of unfair
prejudice. Thus, even if there was some limited relevance, a proper analysis of the testimony
would have resulted in its exclusion under MRE 404(b) and MRE 403.
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We note that, when admitting other-acts evidence under MRE 404(b), the trial court should
provide a limiting instruction directing the jury on the proper use of the evidence. People v Knox,
469 Mich 502, 509; 674 NW2d 366 (2004). In this case, notwithstanding the other-acts nature of
the challenged evidence, no limiting instruction was provided. Instead, when the defense asked
for a curative instruction regarding what everyone agreed was improperly admitted evidence of
methamphetamine use, the trial court refused to give the instruction, stating instead that “the proofs
are in, the proofs are the proofs.” Thus, when it went to deliberate, the jury was permitted to
consider as substantive evidence—for any purpose it deemed proper—evidence that Drendall was
a violent, drug user with an anger problem.3
The prosecution argues that even if admission of the evidence was plain error, the error did
not affect Drendall’s substantial rights, i.e., there is not a reasonable probability that the outcome
of the proceedings would have been different without the improper character evidence.
Drendall was charged with sexually molesting a young girl. The complainant was the only
witness who testified that she was sexually abused and there was no physical evidence
corroborating the abuse.4 Drendall denied the accusations and introduced evidence that there was
an ongoing custody dispute between himself and AR’s mother. Although the trial court kept out
portions of the testimony concerning the divorce, it is plain that although the abuse allegedly
occurred in June 2017, it was not reported until November 2017, after the parties were embroiled
in their contentious divorce. The jury in this case was ultimately presented with a credibility
contest between Drendall on one side and the complainant on the other side. Weighing heavily
against Drendall during that credibility contest was testimony from multiple witnesses that he
physically abused the complainant and her mother and that he was a drug-abuser who had gotten
his wife hooked on methamphetamine. The other-acts evidence, as explained above, had no
probative value. It did have a substantial and unfair prejudicial effect. We conclude that, on this
record there is a reasonable probability that, when weighing the testimony of a child against the
3
During closing argument, the prosecutor twice noted that Drendall was not on trial for being a
“bad man.” Yet, despite that recognition, and ignoring his own role in introducing the inadmissible
character evidence, the prosecutor told the jury that the defense had introduced most of the
evidence and that, now that it was in, the jury would “have to look at” whether the evidence would
go to the credibility of the witnesses. Subsequently, the prosecutor highlighted the more egregious
physical abuses Drendall inflicted on his family, thereby leaving the jury with the implication that
Drendall’s denial of wrongdoing was less worthy of belief because he was a violent man while
simultaneously arguing that the complainant’s physical-abuse testimony had been corroborated.
Thus, not only was the jury not properly instructed, but the way the prosecutor used the
inadmissible evidence during his closing argument sowed further confusion as to the use of the
evidence and exacerbated the error in admitting it in the first instance, and admitting it without
limitation in the second.
4
The complainant’s testimony that she was sexually assaulted did not need to be corroborated.
See MCL 750.520h. In any event, we do note that notwithstanding the lack of corroborating
evidence regarding the sexual assault, multiple witnesses did corroborate that Drendall physically
abused the complainant’s mother, had a “whooping stick” covered in tape, and that he spanked the
children.
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testimony of a man who repeatedly beat her and abused drugs, that the jury’s credibility evaluation
was tainted such that the outcome of the trial was unfairly affected.
The prosecution argues that the fact that the jury convicted Drendall of only one of the two
charged counts of criminal sexual conduct suggests that they were not affected by any prejudice
arising from the improper testimony. Yet, given that the jury twice asked what would happen if
they could not reach a unanimous verdict, we cannot discount the likelihood that the testimony
that Drendall repeatedly subjected the complainant and her mother to physical violence likely
influenced the jury to conclude that even if it did not fully believe the complainant’s testimony,
Drendall was nevertheless a violent man who abused women and children, thereby making him
worthy of punishment even if there was reasonable doubt as to the charged crime. “[C]haracter
evidence may lead the jury to lower the burden of proof against the defendant, since, even if the
guilty verdict is incorrect, no ‘innocent’ man will be forced to endure punishment.” People v Allen,
429 Mich 558; 569; 420 NW2d 499 (1988).
Additionally, the danger of the jury using inadmissible evidence to convict Drendall was
exacerbated by the trial court’s outright refusal to give a curative instruction regarding the
improper admission of the drug-abuse evidence. Here, when asked to give a curative instruction,
the court declined, stating that there had been no timely objective, so “the proofs are in, the proofs
are the proofs.” Given that admission of the drug-use testimony was plainly erroneous, we
conclude that the trial court abused its discretion by declining to give a curative instruction. See
Brenner v Kolk, 226 Mich App 149, 164; 573 NW2d 65 (1997). It is impossible to know whether,
absent the improper other-acts evidence, the jury would have convicted Drendall or whether it
would have acquitted him of all charges, but there is a reasonable probability that they would have
acquitted him of both. Finally, given that Drendall’s trial was infected with repeated instances of
highly prejudicial other-acts evidence, allowing the jury to convict on the basis that he was a bad
man, we conclude that the fairness of the judicial proceedings was seriously affected, so reversal
is warranted. See Jones, 468 Mich at 356.5
III. RIGHT TO PRESENT A DEFENSE
A. STANDARD OF REVIEW
Drendall next argues that the trial court deprived him of his constitutional right to present
a defense when it excluded evidence regarding the custody and divorce proceedings between him
and the complainant’s mother and evidence that the complainant had made nearly identical
allegations of sexual abuse against another man that the complainant’s mother was in conflict with
at the time the allegations were made. Questions about whether a defendant was deprived of his
5
Drendall also argues that reversal is warranted because his lawyer provided constitutionally
ineffective assistance when he failed to object to the inadmissible other-acts evidence and, in some
instances, actually elicited testimony that Drendall physically abused the complainant and her
mother. Because we conclude that reversal is warranted based upon the plainly erroneous and
outcome-determinative admission of the other-acts evidence, we decline to address this alternative
basis for reversal.
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constitutional right to present a defense are reviewed de novo. People v Unger, 278 Mich App
210, 247; 749 NW2d 272 (2008). A defendant has a fundamental right to present evidence in his
own defense. Id. at 249. However, this right is not absolute and may “bow to accommodate other
legitimate interests in the criminal trial process.” Id. at 250 (quotation marks and citations
omitted).
B. ANALYSIS
1. DIVORCE AND CUSTODY
Drendall first argues that the trial court erred by preventing him from presenting evidence
that the complainant’s allegations were made on the same day that he filed a motion in the divorce
case with the complainant’s mother. On cross-examination, Drendall’s lawyer asked the mother
whether Drendall had filed a motion on November 19, 2017, regarding custody, and she did not
contest it, stating: “There was lots of motions filed, but I’m sure if that’s what you’re saying then
I’m sure it’s true.” Drendall’s lawyer then attempted to refresh her memory with a document, but
the trial court sustained the prosecutor’s objection.
The trial court’s decision to exclude the evidence was not error because the complainant’s
mother did not contest that Drendall had filed a motion regarding custody on November 19, 2017.
As a result, there was no need to refresh her memory. Further, evidence that a custody motion was
filed on November 19, 2017, was not relevant to the determination of this case. Officers arrived
at the home at 11:37 p.m. on the night of November 18, 2017, and Drendall did not file the motion
until the next day. Therefore, the motion could not be used as evidence that the complainant’s
grandmother reported allegations to get back at Drendall for filing the motion.
2. MOTHER’S DRUG USE
Drendall next argues that he was prevented from presenting a defense because the trial
court erroneously excluded evidence that the complainant’s mother had a positive drug screen
around the time that AR’s allegations were reported to the officers. Drendall’s lawyer tried to
introduce the evidence to impeach the complainant. However, the complainant had already
testified at that point and the evidence was not relevant to her testimony. Furthermore, the jury
heard from the complainant’s mother that she was a “hot mess” who abused methamphetamine.
Drendall was not denied a defense on this basis.
3. PRIOR SEXUAL ASSAULT ALLEGATIONS
Finally, Drendall argues that he was denied the opportunity to present a defense because
the trial court erroneously prevented him from introducing evidence that the complainant had made
nearly identical allegations of assault against another man. Drendall tried to admit evidence
showing that the complainant had previously disclosed that, in July 2014, her maternal
grandmother’s boyfriend put his finger in her vagina.6 Drendall’s lawyer stated that he intended
to call the grandmother’s now ex-boyfriend, who would testify that he believed the complainant’s
6
At the time, the complainant would have been approximately four years old.
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mother was behind the allegations because she did not like him. The prosecution noted that the
complainant was four years old at the time of her forensic interview, and there had not been
sufficient evidence to criminally charge the grandmother’s boyfriend. The trial court refused to
admit the evidence.
Drendall argues that the evidence was admissible pursuant to MRE 404(b) as evidence of
a common scheme or plan by the complainant’s mother to put the complainant up to making false
allegations of sexual abuse against men that she was in conflict with. Such evidence is not subject
to the rape-shield statute. People v Rogers, ___ Mich App ___, ___; ___ NW2d ___ (2020)
(Docket No. 336000); slip op at 14; see also People v Jackson, 477 Mich 1019, 1019 (2007)
(stating that testimony that “the complainant has previously been induced by his father to make
false allegations of sexual abuse against other persons disliked by the father” was admissible under
MRE 404(b) and that such evidence did not implicate the rape-shield statute, MCL 750.520j).
Indeed, it has long been recognized by Michigan courts that, in defense against a charge of sexual
assault, “the defendant should be permitted to show that the complainant has made false
accusations of rape in the past.” People v Hackett, 421 Mich 338, 348; 365 NW2d 120 (1984).
Yet, before such evidence may be admitted, the defendant must first make an offer of proof
demonstrating the evidence’s relevance to a proper purpose. People v Williams, 191 Mich App
269, 272-273; 477 NW2d 877 (1991). And, if necessary, the trial court should conduct an
evidentiary hearing to determine whether the evidence is admissible and to ensure that the scope
of the cross-examination is limited “to prevent questions that would harass, annoy, or humiliate
the victim and to guard against fishing expeditions.” Id. at 273.
Here, the defense lawyer made an offer of proof as to what the grandmother’s ex-boyfriend
would have offered during his testimony. Specifically, the defense identified that the allegations
were nearly identical, with both ex-boyfriend and Drendall accused of inserting a finger into the
complainant’s vagina. In the present matter, there was testimony that the complainant’s mother
was going through a contentious divorce with Drendall and she was somewhat concerned about
custody. In the prior matter, the offer of proof showed that the alleged abuser was in conflict with
the complainant’s mother who did not like that he had told the complainant’s grandmother to stop
enabling the complainant’s mother. No charges were brought in the prior case. Instead, a forensic
examination occurred and, apparently, there was not enough evidence to proceed to trial. The trial
court denied admission of the evidence, focusing solely on whether the proffered testimony was
hearsay or was speculation on the part of the proposed witness. The court did not, however,
properly evaluate whether the evidence would be admissible under MRE 404(b) as evidence of a
common plan or scheme on the part of the complainant’s mother to induce the complainant to
initiate sexual-abuse allegations against men that she wanted out of her life.
Because remand for a new trial is necessary based upon the admission of unfairly
prejudicial character evidence, we direct that, on remand, if brought in a proper motion, the trial
court shall again consider the admissibility of the evidence of a prior accusation of sexual abuse.
Specifically, the trial court shall consider whether the evidence is admissible under MRE 404(b).
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Reversed and remanded for a new trial. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
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