People v. Basinger

Per Curiam. Following a jury trial, defendant was convicted of two counts of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3) (counts i and n), and one count of first-degree criminal sexual conduct, MCL 750.520b(1)(b); MSA 28.788(2)(1)(b)(count hi). Defendant subsequently filed a motion to dismiss counts i and n and for a new trial on count m. The trial court granted defendant’s motion to dismiss counts i and 11 on the ground that the statute of limitations as construed in People v Russo, 185 Mich App 422; 463 *605 NW2d 138 (1990), afFd in part and rev’d in part 439 Mich 584; 487 NW2d 698 (1992), barred prosecution of these counts. The court denied defendant’s motion for a new trial on count m. Defendant was subsequently sentenced to a prison term of twenty to thirty years for the first-degree esc conviction. Defendant appeals as of right. This case involves allegations of sexual abuse that occurred in 1979 and 1980 (counts i and n), and 1983 and 1984 (count hi). Defendant first argues that his trial counsel was ineffective for failing to bring a pretrial motion to dismiss counts i and n under Russo, supra, which was decided three weeks before trial in this matter. Defendant contends that as a result of counsel’s failure, inadmissible and prejudicial similar acts evidence was presented to the jury. Defendant also contends that, because this evidence was presented to the jury, the trial court should have granted his motion for a new trial. Although we do not find that counsel was ineffective in failing to raise the issue in a pretrial motion, 1 we conclude that the trial court erred in denying defendant’s motion for a new trial. At the commencement of trial in this case, the parties, as well as the trial court, were apparently unaware of this Court’s decision in Russo, supra. Consequently, because defendant was charged with three separate acts of sexual abuse, evidence regarding each separate incident was presented to the jury. Had defendant only been charged with the one incident not barred by Russo, evidence regarding the two previous uncharged incidents would have been admissible as other acts evidence if the standard announced in People v Vander-Vliet, 444 Mich 52, 55; 508 NW2d 114 (1993), was *606 satisfied. Under that standard, the evidence must be offered for a proper purpose under MRE 404(b); it must be relevant under MRE 402 as enforced through MRE 104(b); the probative value of the evidence must not be substantially outweighed by unfair prejudice; and the trial court may, upon request, provide a limiting instruction to the jury. If evidence is admissible for one purpose, but not others, the trial court must give a limiting instruction upon request. MRE 105; People v Wackerle, 156 Mich App 717, 723; 402 NW2d 81 (1986). In this case, because of the posture of defendant’s trial, defense counsel did not have a reason to request a limiting instruction. Assuming, without deciding, that the evidence was admissible under MRE 404(b), we find that the absence of an opportunity to request a limiting instruction denied defendant a fair trial. Hence, the trial court abused its discretion in denying defendant’s motion for a new trial. People v Jehnsen, 183 Mich App 305, 311; 454 NW2d 250 (1990). In light of our conclusion that defendant is entitled to a new trial, we need not address the remainder of defendant’s issues. Reversed and remanded for a new trial. Footnotes [1] The opinion in Russo was released on September 11, 1990. Defendant’s trial commenced on October 5, 1990.