MRE 404(B) Interpretation

In assessing the admissibility of bad acts evidence, the trial court must analyze the proposed MRE 404(b) evidence to determine: (1) if the evidence is relevant to an issue other than propensity; (2) if the evidence is relevant, and then the court must; (3) balance the evidence under MRE 403 to determine if the danger of unfair prejudice substantially outweighs the probative value. People v. VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), mod 445 Mich 1205; 520 NW2d 338 (1994). First, the evidence was relevant to an issue other than propensity. In her opening statement, defense counsel asserted that defendant complained that "too many people were in the office when he was counting the money. That the safe was left open on occasion, and in fact, money, on occasion, was put in a file cabinet instead of a safe." Defense counsel also stated that "this loss could be due to misfortune, it could be to accident, but that doesn't make it a criminal case, it doesn't make it a crime. We've all lost things in the past." Thus, the evidence that defendant had engaged in improper billing practices for previous partners and employers was offered for a proper purpose--to address defendant's assertion that the lost money may have been an accident. Second, the evidence was relevant. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401; Crawford, supra, 458 Mich 387. Thus, evidence is relevant if two components are present: materiality and probative value. Id. at 388. Third, the danger of unfair prejudice does not substantially outweigh the probative value of the MRE 404(b) evidence. Unfair prejudice encompasses two concepts: "'the idea of prejudice denotes a situation in which there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury'" "'the idea of unfairness embodies the further proposition that it would be inequitable to allow the proponent of the evidence to use it.'" Mills, supra, 450 Mich 75-76 (quoting Sclafani v. Peter S Cusimano, Inc, 130 Mich App 728, 735-736; 344 NW2d 347 (1983)). The relevancy of the MRE 404(b) evidence was not substantially outweighed by the danger of unfair prejudice. First, the MRE 404(b) evidence could not have been given undue or preemptive weight by the jury because the trial court gave the jury a comprehensive instruction regarding the permissible and impermissible uses of the evidence. Second, it was not inequitable to allow plaintiff to use the MRE 404(b) evidence because the evidence was used to rebut defendant's theory that the paperwork and money could have been misplaced or lost because of sloppy administrative procedures. Therefore, the danger of unfair prejudice does not substantially outweigh the probative value of the MRE 404(b) evidence.