Background
Dennis Jay Clark was convicted by a Lenawee County jury of two counts of second-degree criminal sexual conduct, one count of third-degree criminal sexual conduct, assault with intent to commit second-degree criminal sexual conduct, and fourth-degree criminal sexual conduct. The complainant testified that Clark repeatedly subjected her to sexual contact from age 12 through age 15. She disclosed the abuse in a school essay, prompting reports to Children’s Protective Services and police.
Before trial, the circuit court admitted testimony from Clark’s two former stepdaughters about sexual assaults underlying his 1994 criminal-sexual-conduct convictions. Clark denied the current allegations. After the jury found him guilty, the court sentenced him as a fourth-offense habitual offender to concurrent minimum terms of 33 years for the CSC-II, CSC-III, and assault convictions and 32 months for CSC-IV.
On appeal, Clark challenged the admission of the prior-act evidence, argued that counsel was ineffective for failing to object to alleged police vouching, and contended that the circuit court inadequately justified its upward-departure sentences.
The Court’s Holding
The Court of Appeals affirmed the convictions. It held that the circuit court appropriately considered the relevant factors when admitting the prior sexual-assault evidence under MCL 768.27a and MRE 403. Although the earlier assaults occurred nearly 30 years before the charged conduct, Clark was incarcerated for 10 of those years, and the prior and current offenses involved victims of similar ages, repeated assaults, access to the victims in his home, and similar sexual conduct. The evidence’s probative value was not substantially outweighed by unfair prejudice.
The court also held that Officer David Low did not impermissibly vouch for the complainant. His testimony about how CPS referrals lead to police investigations described investigative procedures rather than endorsing the complainant’s credibility. Because an objection would have been futile, counsel was not ineffective for failing to make one.
The court nevertheless vacated Clark’s sentences and remanded for resentencing. His 33-year minimum terms exceeded the 25-year minimum applicable under the fourth-offense habitual-offender statute, but the circuit court neither acknowledged the upward departure nor explained why the departure and its extent were proportionate. The appellate court declined to supply its own rationale and directed the circuit court to provide adequate reasons if it again imposes a departure sentence.
Key Takeaways
- A lengthy gap between prior sexual offenses and charged conduct does not require exclusion under MCL 768.27a when the offenses are substantially similar and intervening incarceration limited the opportunity to reoffend.
- Police testimony explaining investigative procedures is not improper vouching when it does not express an opinion about a witness’s credibility or the defendant’s guilt.
- A sentencing court imposing an upward departure must explain why the departure is proportionate and justify its extent; general references to sentencing considerations are insufficient.
Why It Matters
The decision illustrates how Michigan courts apply MRE 403 to propensity evidence expressly permitted in child-sexual-abuse prosecutions. Strong factual similarities and periods when a defendant lacked an opportunity to reoffend may outweigh a substantial temporal gap.
It also reinforces that appellate courts will not infer a justification for a departure sentence from the record. Even when a lengthy sentence might be supportable, the sentencing judge must expressly connect the departure and its magnitude to the offense and the offender.