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142751 - People v Pullen (Richard)

The People of the State of Michigan,
Sylvia L. Linton
(Appeal from Ct of Appeals)
(Bay – Sheeran, J.)
Richard Kenneth Pullen,
Edward M. Czuprynski


​Richard Pullen was charged with two counts of second-degree criminal sexual conduct and one count of aggravated indecent exposure, based on sexual contact with his then-12-year-old granddaughter. The granddaughter alleged that Pullen touched her breasts with his hands, touched her genitals under her clothes, and masturbated when he knew she was watching.

Before the case went to trial, the prosecutor filed a notice of intent to use other acts evidence under MCL 768.27a. That statute states that, “in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.” The prosecutor provided the trial court with a 1989 police report concerning sex abuse allegations made by Pullen’s then 16-year-old daughter, who alleged that Pullen digitally penetrated her vagina and repeatedly touched her breasts, buttocks, and genital areas. She also stated that Pullen walked in on her when she was unclothed, and that he arranged to expose himself to her when he was bathing. Pullen allegedly admitted some of his daughter’s accusations, but no criminal charges were ever filed.

Pullen moved to exclude the evidence of the earlier sexual abuse, arguing that the evidence’s probative value was substantially outweighed by the danger of unfair prejudice to him. The trial judge agreed, finding that the evidence should be excluded under Michigan Rule of Evidence 403. MRE 403 provides that evidence, even if relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ….” The trial judge reasoned that he was required to perform the MRE 403 balancing test before admitting evidence under MCL 768.27a. As to the evidence that Pullen sexually abused his daughter, the prejudicial impact outweighed the probative value because the evidence involved more serious facts than those in the present case, the trial judge concluded: “Should this evidence be presented to the jury, it is highly probable that the jury would not be able to separate the two cases and would likely decide the case based on emotional impact rather than logical reasons. Thus, this evidence does not survive the balancing test of MRE 403 and is not admissible.” The trial court also ruled that it would be “fundamentally unfair and a violation of due process” to force Pullen to defend accusations from over 20 years ago for which criminal charges were never filed.

The prosecutor sought to overturn the trial court’s ruling, but the Court of Appeals affirmed the trial court in an unpublished per curiam opinion. The panel noted that a prior Court of Appeals panel had upheld the constitutionality of MCL 768.27a in People v Pattison, 276 Mich App 613 (2007). In Pattison, the Court of Appeals alsoheld that, even when evidence is admissible under MCL 768.27a, a trial court must weigh the probative value of the evidence against its prejudicial effect under MRE 403. In Pullen’s case, the Court of Appeals ruled, the trial court properly considered whether the evidence should be excluded under MRE 403 as unfairly prejudicial. The appellate court further held that Pullen’s case presented a “close” question, but that the trial court gave a reasoned explanation for its decision. Accordingly, the trial court did not abuse its discretion in deciding to exclude the evidence, the Court of Appeals concluded. The prosecutor appeals.