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140800 - People v Novak (George)

The People of the State of Michigan,
Sylvia L. Linton
(Appeal from Ct of Appeal)
(Bay – Caprathe, W.)
George Thomas Novak,
Valerie R. Newman


​George Novak’s nine-year-old granddaughter testified at trial that he touched her breasts and, while clothed, touched his genital area to her “back butt.” The trial court permitted the prosecutor to present testimony from others whom Novak had allegedly sexually abused, including Novak’s adopted daughter, the girl’s mother. The trial court also ruled that the prosecutor could admit into evidence a pornographic story that Novak wrote graphically depicting sexual acts among teen-aged siblings, their father, and their cousin. The trial court reasoned that this evidence was admissible under MRE 404(b)(1), which states that “[e]vidence 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.”

The jury convicted Novak of one count of first-degree criminal sexual conduct, and one count of second-degree criminal sexual conduct. In sentencing Novak, the trial court departed upward from the recommended sentencing guidelines, imposing 20 to 40 years for the first-degree criminal sexual conduct conviction, concurrent to a 10 to 22 years plus six-months for the second-degree criminal sexual conduct conviction. The trial court agreed with the prosecutor that an upward sentencing departure was supported by two substantial and compelling reasons: Novak’s sexual abuse of his adopted daughter, and his creation of the pornographic story.

Novak appealed, and the Court of Appeals affirmed his convictions and sentences in a split unpublished per curiam opinion. The majority agreed with the trial court that the pornographic story was admissible, concluding that it was “certainly probative of defendant’s interest in sex with minors.” The majority rejected Novak’s argument that the story was inadmissible under MRE 404(b)(1), reasoning that the manual did not describe any other crime or prior act at all, and so did not fall under MRE 404(b)(1)’s general exclusionary rule. Novak’s story amounted to a party admission and was therefore admissible under MRE 801(d)(2)(A), said the majority; the evidence’s probative value was not substantially outweighed by the danger of undue prejudice under MRE 403. With regard to sentencing, the Court of Appeals majority held that the trial court did not abuse its discretion when it concluded that Novak’s past abuse of his daughter, and the sex manual, were substantial and compelling reasons supporting an upward departure from the sentencing guidelines. The six-year departure, the panel held, was “more proportionate to [Novak’s] actual offenses than that which would have been available within the guidelines range . . . .”

The dissenting Court of Appeals judge would have reversed Novak’s convictions. The substance of the pornographic story had no relevance to whether Novak sexually abused his granddaughter, the dissent said; rather, the story was improperly admitted to establish that Novak had the “proclivity and desire to engage in incestuous relationships.” The trial court should have excluded the story as character evidence; in the alternative, the evidence should have been excluded under MRE 403, due to the “high likelihood” that the story “would transgress most jurors’ norms of decency and morality,” the dissent reasoned. The danger of unfair prejudice “far outweighed” whatever marginal probative value the story may have possessed, the judge said. The dissenting judge also concluded that the trial court’s stated reasons for departing from the sentencing guidelines were not substantial and compelling, and that the trial court failed to explain the sentencing departure. At a minimum, the dissenting judge determined, the trial court should resentence Novak. Novak appeals.