Opinion

CORRIGAN, J.

The Court of Appeals erroneously concluded that evidence of an unusual number of prior fires—each associated with property owned or controlled by defendant—was inadmissible in this arson case in which defendant was accused of intentionally starting a fire in his home. Because the evidence was not offered to prove defendant's bad character or his propensity to act in conformity with a bad character, the trial court correctly concluded that MRE 404(b)(1) did not preclude admission of the evidence. Further, the trial court did not abuse its discretion by concluding that the evidence was sufficiently probative to outweigh any danger of unfair prejudice under MRE 403. The Court of Appeals, like the dissent in this Court, incorrectly concluded that the lack of direct evidence that defendant intentionally set the past fires precluded or weighed against admission. To the contrary, as precedent of this Court has clearly established, defendant's apparent lack of direct culpability weighed in favor of admission because it minimized impermissible negative inferences about his character. Indeed, the evidence was noncharacter evidence admissible under the theory of logical relevance known as the doctrine of chances. Accordingly, we reverse the May 5, 2009 opinion of the Court of Appeals,1 reinstate defendant's convictions, and remand to the Court of Appeals for that Court to consider defendant's remaining arguments on appeal.

I. FACTS AND PROCEEDINGS

Defendant admitted that he was the only person present at his home just before it caught fire on the afternoon of November 13, 2006. He left the premises to visit his brother shortly before the fire was reported by neighbors. After the fire, defendant filed an insurance claim seeking compensation for the damage to his home. The investigating police detective and a fire investigator for defendant's insurer both concluded that the fire had been intentionally set and originated from a love seat in the living room. Accordingly, the prosecution charged defendant with arson of a dwelling house, MCL 750.72, and burning insured property, MCL 750.75. Defendant claimed that the fire was an accident likely caused by faulty electrical wiring.

At trial, the prosecution showed that defendant had fallen behind on his mortgage payments and utility bills before the fire occurred. The prosecution also showed that defendant had been associated with four previous home or vehicle fires— each of which also involved insurance claims and arguably benefitted defendant in some way—in the 12 years preceding the charged fire. Specifically, defendant's home caught fire in the spring of 2006, apparently as the result of a blanket being left on a kerosene heater. Defendant filed an insurance claim for the resulting smoke damage. In 2003, a van driven by defendant but owned by his employer caught fire. The prosecution argued that defendant had a motive to damage this van. The employer had recently transferred a newer van, previously issued to defendant, to another employee; it then issued the van that later caught fire, which was an older model, to defendant. After the older van burned, the employer was forced to replace it. In 2001, defendant's own van caught fire and the fire spread to his mobile home. Defendant received an insurance payment for that van. Finally, in 1994, defendant's truck caught fire, for which he submitted an insurance claim. Although none of these fires was established to have resulted from arson,2 the prosecution argued that the pattern was probative to rebut defendant's claim that he had not intentionally set the November 2006 fire.

The jury indeed concluded from all the evidence that defendant intentionally set the November 2006 fire. It convicted him, as charged, of arson of a dwelling house and burning insured property. The trial court sentenced defendant to concurrent prison terms of 3 to 20 years and 1 to 10 years.

The Court of Appeals reversed, concluding that the trial court improperly admitted the evidence of previous fires under MRE 404(b)(1). The appeals panel concluded that this evidence was irrelevant, inadmissible, and improperly prejudicial. Accordingly, it remanded for a new trial.

The prosecution applied in this Court for leave to appeal the Court of Appeals decision. We granted leave and directed the parties to address

II. STANDARD OF REVIEW

A trial court's discretionary decisions concerning whether to admit or exclude evidence "will not be disturbed absent an abuse of that discretion."4 When the decision involves a preliminary question of law however, such as whether a rule of evidence precludes admission, we review the question de novo.5

III. MRE 404(b)(1)

MRE 404(b)(1) provides:

To admit evidence under MRE 404(b),6 the prosecutor must first establish that the evidence is logically relevant to a material fact in the case, as required by MRE 401 and MRE 402, and is not simply evidence of the defendant's character or relevant to his propensity to act in conformance with his character.7 The prosecution thus bears an initial burden to show that the proffered evidence is relevant to a proper purpose under the nonexclusive list in MRE 404(b)(1) or is otherwise probative of a fact other than the defendant's character or criminal propensity.8 Evidence relevant to a noncharacter purpose is admissible under MRE 404(b) even if it also reflects on a defendant's character. Evidence is inadmissible under this rule only if it is relevant solely to the defendant's character or criminal propensity.9 Stated another way, the rule is not exclusionary, but is inclusionary, because it provides a nonexhaustive list of reasons to properly admit evidence that may nonetheless also give rise to an inference about the defendant's character.10 Any undue prejudice that arises because the evidence also unavoidably reflects the defendant's character is then considered under the MRE 403 balancing test, which permits the court to exclude relevant evidence if its "probative value is substantially outweighed by the danger of unfair prejudice...." MRE 403.11 Finally, upon request, the trial court may provide a limiting instruction to the jury under MRE 105 to specify that the jury may consider the evidence only for proper, noncharacter purposes.12

IV. THE DOCTRINE OF CHANCES

The doctrine of chances—also known as the "doctrine of objective improbability"—is a "`theory of logical relevance [that] does not depend on a character inference.'"13 Under this theory, as the number of incidents of an out-of-the-ordinary event increases in relation to a particular defendant, the objective probability increases that the charged act and/or the prior occurrences were not the result of natural causes. The doctrine is commonly discussed in cases addressing MRE 404(b) because the doctrine describes a logical link, based on objective probabilities, between evidence of past acts or incidents that may be connected with a defendant and proper, noncharacter inferences that may be drawn from these events on the basis of their frequency. If a type of event linked to the defendant occurs with unusual frequency, evidence of the occurrences may be probative, for example, of his criminal intent or of the absence of mistake or accident because it is objectively improbable that such events occur so often in relation to the same person due to mere happenstance. To illustrate, United States v. York14 provides a classic description of the doctrine when used to negate innocent intent:

The seminal English case employing the doctrine, Rex v. Smith,16 acknowledged that evidence of past alleged accidents may be admitted to show "whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence [sic] which would otherwise be open to the accused."17 Rex v. Smith infamously involved a defendant accused of drowning his wife in the bath.18 The Court of Criminal Appeal concluded that the trial court properly admitted evidence that two other wives of the defendant were each similarly found dead in their baths from apparent accidental drowning.19 Consistent with the modern rule, the court acknowledged that the prosecution generally may not

Thus, the evidence that several of the defendant's wives had drowned in their baths was properly admitted "for the purpose of shewing [sic] the design of the [defendant]."21 The court also observed that the judge was appropriately "careful to point out to the jury the use they could properly make of the evidence."22

The doctrine of chances is often similarly employed in cases alleging arson to argue that the fire at issue was not an accident, but was intentionally caused by the defendant. Indeed, arguably the doctrine is epitomized in arson cases in which apparently accidental fires befall property linked to the defendant with uncommon frequency. As explained by Professor Edward Imwinkelried:

V. APPLICATION TO THIS CASE

The fires here were admissible precisely because they constituted a series of similar incidents—fires involving homes and vehicles owned or controlled by defendant—the frequency of which23 objectively suggested that one or more of the fires was not caused by accident. The Court of Appeals principally erred by incorrectly assuming that evidence of the past fires could only be admitted if the prosecutor proved that defendant intentionally set them or that they shared other special qualities or additional significant indices of similarity. Defendant and the dissent similarly err by concluding that, in the words of the dissent, Crawford, supra, established, as a general rule, that past incidents must be "sufficiently similar to the charged offense to warrant admission," and that "Crawford makes it clear that similarity is a key factor in determining the applicability of the doctrine of chances." These blanket conclusions are incorrect.

To the contrary, application of the doctrine of chances "varies with the issue for which it is offered."24 As with all arguments involving prior acts or events, the "method of analysis to be employed depends on the purpose of the offer and its logical relevance."25 The acts or events need not bear striking similarity to the offense charged if the theory of relevance does not itself center on similarity. As the VanderVliet Court explained:

Crawford, in which the Court stressed similarity, did not involve a series of purported accidents as here. Rather, there the prosecution offered evidence of a past drug-related conviction centrally to prove the defendant's mens rea or knowledge that drugs were concealed in the dashboard of his car.27 Thus, the specific holding of Crawford is largely inapposite. The same holds true for the cases on which the Court of Appeals here relied in concluding that the prior fires were too dissimilar to be admitted: Sabin, supra, and People v. Golochowicz, 413 Mich. 298, 319 N.W.2d 518 (1982). Both these cases involved theories of relevance explicitly rooted in similarities between the past events and the crime charged. In Sabin, the prosecution "stressed the similarities between the charged incident [of the defendant's sexual abuse of his daughter] and the [past sexual] abuse of [his] stepdaughter" in seeking admission of the past abuse.28 This Court concluded that the past abuse was admissible only under the theory that the defendant employed a similar plan, scheme, or system in doing an act.29 This theory of relevance requires that "the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system."30 Golochowicz, in turn, was a murder case in which the prosecution sought to admit evidence of a prior, similar assault in order to advance a "modus operandi theory to prove identity."31 Golochowicz thus established a test for admission under such a theory that required substantial evidence that the defendant committed the prior act and some "special quality" of the act that tended to prove the defendant's identity.32

Here, to the contrary, the prosecution did not move to admit evidence of the past fires only on the basis of theories of logical relevance requiring a high degree of similarity to the charged fire. As we emphasized in VanderVliet while advancing a more flexible test than the one described in Golochowicz: "the Golochowicz approach to modus operandi cases to show identity is not a `conceptual template' to `mechanically test' all misconduct evidence barring use of other permissible theories of logical relevance."33 Rather, "[w]here the proponents' theory is not that the acts are so similar that they circumstantially indicate that they are the work of the accused, similarity between charged and uncharged conduct is not required."34 Different theories of relevance require different degrees of similarity between past acts and the charged offense to warrant admission. Thus, the "level of similarity required when disproving innocent intent is less than when proving modus operandi."35 "When other acts are offered to show innocent intent, logical relevance dictates only that the charged crime and the proffered other acts `are of the same general category.'"36 Past events—such as fires in relation to an arson case—that suggest the absence of accident are offered on the basis of a theory of logical relevance that is a subset of innocent intent theories.37 As such, the past events need only be of the same general category as the charged offense. Professor Imwinkelried explained, in the context of arson cases:

Accordingly, here the Court of Appeals erred by basing its analysis on its conclusion that the past fires were not highly similar to the charged fire due largely to the lack of definitive proof that defendant intentionally set the past fires. Because defendant owned or controlled all the burned property,39 the unusual number of past fires was classically relevant to defendant's claim that the November 2006 fire was an accident; the frequency of past fires so closely associated with defendant logically suggested a lack of coincidence. The defense theory in a case in part governs what evidence is logically relevant.40 Indeed, as was the case in York, supra,41 the "fact that [the] defense included innocent explanations" for acts surrounding his allegedly illegal activity actually "underscore[d] the relevance" of the prior acts evidence.42 In response to the defendant's arguments that the prior acts were not sufficiently similar, the York Court opined that he was "looking at trees rather than the forest"; "when evidence is offered to prove intent, the degree of similarity is relevant only insofar as the acts are sufficiently alike to support an inference of criminal intent.... The prior acts need not be duplicates of the one for which the defendant is now being tried."43

In sum, the past fires were logically relevant to the objective probability that the November 2006 fire was intentionally set. Thus, the fires were admissible to negate defendant's claim that the fire was a mere accident.44

Although defendant and the dissent emphasize that he offered innocent explanations for the past fires and other evidence tending to show that he had no motive to burn particular property, his innocent explanations do not control the admissibility analysis. For example, he claimed that the fire involving his employer's van also destroyed defendant's personally owned work tools. He also established that, although he turned on the kerosene heater involved in the spring 2006 house fire, his housemate admitted leaving the fire-causing blanket on the heater. He stressed that the 2001 fire involving his insured van spread to his mobile home, which was not insured. Further, he presented evidence that, after the 1994 fire that damaged his truck,45 he nonetheless was required to keep making payments on the damaged truck despite obtaining the insurance proceeds. With regard to the November 2006 fire, defendant also presented an expert who opined that the fire began behind the love seat thus implying that an electrical fault might have caused it; defendant also showed that the prosecution had not appointed an expert to test this wiring.46

But these explanations do not render evidence of the past fires inadmissible. Rather, the very function of the doctrine of chances is to permit the introduction of events that might appear accidental in isolation, but that suggest human design when viewed in aggregate. Because the prosecution's noncharacter theory for admission was sound, the evidence was admissible.47 Further, a jury may generally decide whether a defendant's claim of innocence—here his claim that all five fires were accidental—is more credible or likely than the prosecution's claim of guilt. The jury is the sole judge of the facts; its role includes listening to testimony, weighing evidence, and making credibility determinations.48 Indeed, "a basic premise of our judicial system [is that] providing more, rather than less, information will generally assist the jury in discovering the truth."49 The weight to be given to admitted evidence is left to a properly instructed jury's common sense and judgment.50 On this point, I respectfully suggest that the dissent usurps the jury's role by concluding that the previous fires were inadmissible because defendant received "little, if any, insurance money" or on the basis of the dissent's rejection of the argument that defendant benefitted from the past fires. It is for the jury to decide whether defendant benefitted from the fires or might have anticipated benefitting without accurately predicting their ultimate impact on his property or finances.

The trial court could also take into account defendant's claims of innocence with regard to the fires in deciding whether evidence of the past fires was more probative than unduly prejudicial under MRE 403. But the court did not abuse its discretion in nonetheless admitting the evidence under this rule. The trial court is in the best position to make MRE 403 determinations on the basis of "a contemporaneous assessment of the presentation, credibility, and effect of testimony...."51 Accordingly, we review its decisions admitting or excluding evidence under a deferential standard and will reverse only if we identify "a clear abuse of discretion."52

No such abuse occurred here. As explained above, first, the prior fires were highly, objectively relevant to defendant's claim that all five fires, including the November 2006 fire, were mere accidents. Second, the amount of "unfair prejudice," MRE 403, was minimal. "Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury."53 Thus, MRE 403 "does not prohibit prejudicial evidence; only evidence that is unfairly so."54 Here, there was minimal unfair prejudice—such as improper character implications—because any prejudice arose properly from the objective frequency of fires associated with property owned or controlled by defendant.55

Indeed, defendant's insistence—echoed by the Court of Appeals and the dissent— that there was no proof he intentionally caused the past fires actually weighs in favor of admission because, absent proof of past criminal intent associated with the evidence, the evidence does not create the traditional intermediate inference about character or criminal propensities associated with established, past criminal acts or convictions. Thus, the evidence stands in stark contrast to the proffered evidence in Crawford, supra, where the Court opined that the danger of unfair prejudice is prevalent when the jury "learns that a defendant has previously committed the same crime as that for which he is on trial" because the jury may therefore presume that he is likely to commit the same crime again because he is "a bad person, a convicted criminal...."56

Indeed, the dissent's approach here threatens to contradict this Court's critical observation that MRE 404(b)(1) is "inclusionary rather than exclusionary"; "[t]here is no policy of general exclusion relating to other acts evidence."57 Justices of this Court have long been concerned that a misunderstanding of MRE 404(b)(1) would erode the rule's proper application in this manner. Notably, in her Crawford dissent, Justice BOYLE— joined by Justices WEAVER and TAYLOR— concluded that the majority used an erroneous exclusionary approach when it barred evidence that appears significantly more unfairly prejudicial than the evidence here (because the evidence in Crawford revealed that the defendant actually committed a crime in the past). She expressed concern that, "[p]rotestations to the contrary," the Crawford majority went too far and effectively utilized the incorrect exclusionary approach.58

Finally, the trial court correctly instructed the jury to consider the evidence only for proper, noncharacter purposes pursuant to MRE 105. A limiting instruction generally "suffice[s] to enable the jury to compartmentalize evidence and consider it only for its proper purpose...."59

VI. CONCLUSION

The trial court properly admitted evidence of the past fires, which were logically relevant particularly to rebut defendant's claim that the November 2006 fire was a mere accident. The Court of Appeals erroneously held that a high degree of similarity between past acts or events and the crime charged is necessary in order for evidence of the past events to be admissible. To the contrary, precedent examining MRE 404(b) and the doctrine of chances clearly establishes that unusually frequent events—and particularly purported accidents—associated with the defendant and falling into the same general category of incidents are admissible to disprove lack of accident or innocent intent with regard to the charged event. Such evidence is particularly useful in arson cases where unusually frequent individual fires, which could appear to be accidents when viewed in isolation, may constitute the most probative objective evidence that the defendant intentionally set the fire underlying the arson charge.

For these reasons, we reverse the Court of Appeals opinion, affirm the trial court's evidentiary ruling, and reinstate defendant's convictions. This case is remanded to the Court of Appeals' for consideration of defendant's remaining arguments on appeal.

We do not retain jurisdiction.

WEAVER, YOUNG, and MARKMAN, JJ., concurred with CORRIGAN, J.

MARILYN J. KELLY, C.J. (dissenting).

Defendant was accused of setting fire to his house and charged with arson of a dwelling house and burning insured property. The question presented is whether evidence of four fires with which defendant had had some connection in the preceding 12 years was properly admitted at trial under the doctrine of chances to prove lack of accident.

I believe that the doctrine does not apply in this case because of the dissimilarities between the previous fires and the charged fire. Furthermore, even if the previous fires were relevant, any probative value they have is substantially outweighed by the danger of unfair prejudice. Hence, the evidence is inadmissible under MRE 403. For those reasons, I respectfully dissent.

FACTS AND PROCEDURAL HISTORY

After a seven-day trial, a jury convicted defendant of arson of a dwelling house, MCL 750.72, and burning insured property, MCL 750.75. The convictions arose from a fire at defendant's house on the afternoon of November 13, 2006. At the time of the fire, defendant was at his brother's house nearby. However, he had recently been at his own house and was the only person there that afternoon.

Michigan State Police Detective Sergeant Michael Waite, an expert in the cause and origin of fires, investigated and concluded that the fire originated from a love seat in the living room. Testing failed to reveal the presence of an accelerant. But Waite believed that charring on the front part of the love seat and the speed with which the fire spread were consistent with the use of an accelerant. After ruling out possible accidental causes of the fire, Waite concluded that it was started by an intentional act.

During trial, the prosecution presented evidence that defendant and his family were having financial difficulties at the time of the fire. They were in arrears on their mortgage payments and several utility bills. The prosecution also presented evidence of previous fires involving property that defendant had at one time owned or possessed. It is this evidence that is at issue here.

The first fire occurred in 1994, 12 years earlier. Defendant's Ford Ranger caught fire while he and friends were ice fishing. The truck was insured under defendant's father's name, but defendant was paying for it. Defendant continued to make payments on the truck loan afterwards because the insurance coverage did not extend to the entire amount owing on the vehicle.

The second fire took place in 2001. At that time, defendant owned an older van that had many mechanical problems. The van caught on fire and the fire spread to defendant's mobile home. The fire chief for Bruce Township determined that the fire started under the hood of the van. There was only a small insurance payment for the damages to the van, and the damage to defendant's home was not covered by insurance. The fire chief found nothing suspicious about the fire.

Another fire occurred when, in 2003, a van owned by defendant's employer caught on fire. The fire was determined to have started in the engine compartment. Defendant received no insurance proceeds because he did not own the van. He lost all his personal tools used for his employment.

The last fire occurred in 2006 at defendant's residence. It allegedly started when one of defendant's roommates left a blanket on top of a kerosene heater. The fire department was not called, and the fire caused only smoke damage. Defendant received insurance benefits for this fire.1

The prosecutor sought to introduce evidence of the 2006 fire at defendant's home, the 2001 vehicle fire that spread to defendant's mobile home, and the 1994 truck fire. The purpose was to demonstrate a pattern of behavior, motive, scheme, plan, and system in causing the fires.

The trial court ruled that the evidence could be admitted under MRE 404(b)(1) for these purposes, as well as to prove lack of accident. Under the same rule, it also allowed the prosecutor to introduce evidence of the fire involving defendant's employer's vehicle. In addition, the court allowed the jury to consider the evidence for other purposes. It instructed the jury that the evidence might be considered to determine whether defendant (1) had a reason to commit the charged crime, (2) specifically intended to burn his residence, (3) acted purposefully and not by accident or mistake, or because he misjudged the situation and, (4) had a plan, system, or characteristic scheme that he used before or after. Thus, the court allowed consideration of the other fires as proof of motive, intent, absence of mistake or accident, a scheme, plan, or system in doing an act, and identity.

Defendant was convicted as charged. He was sentenced to concurrent prison terms of 3 to 20 years for the arson of a dwelling house conviction and 1 to 10 years for the burning of insured property conviction.

On appeal, the Court of Appeals held that the trial court abused its discretion by admitting the other acts evidence of the four fires with which defendant was associated.2 It agreed with defendant that the prosecutor had not established its relevance. The Court of Appeals considered and rejected each of the prosecutor's proffered bases for admission of the evidence under MRE 404(b)(1). It also found that evidence of the other fires was inadmissible under MRE 403 because they were minimally probative and the danger of unfair prejudice substantially outweighed their probative value. After determining that the error in admitting the evidence was outcome determinative, it reversed the convictions and remanded the case for a new trial.

On the prosecution's application, this Court granted leave to appeal and directed the parties to address "whether evidence provided under the `doctrine of chances' may be used to establish that a fire did not have a natural or accidental cause, and whether more than the mere occurrence of other fires involving the defendant's property is necessary for admission of such evidence."3

MRE 404(b)—THE ADMISSION OF OTHER ACTS EVIDENCE

The decision to admit or exclude evidence is within the trial court's discretion and will not be disturbed absent an abuse of that discretion. An abuse occurs if the trial court chooses an outcome falling outside the range of principled outcomes.4 Preliminary questions of law, such as whether a rule of evidence precludes admissibility, are reviewed de novo.5

The admission of evidence under MRE 404(b) involves a preliminary question of law. It is a codification of the fundamental principle that courts and juries try cases, not persons; thus, in reaching its verdict, a jury may consider only evidence of the events in question, not the defendant's prior acts.6 A jury should not convict a defendant inferentially on the basis of his or her bad character. Rather, it should determine whether he or she is guilty of the crime charged.7

MRE 404(b)(1) permits the admission of evidence of other crimes, wrongs, or acts if (1) offered for a proper purpose, (2) relevant to an issue or fact of consequence at trial, and (3) sufficiently probative to outweigh the danger of unfair prejudice under MRE 403.8 The prosecution must "weave a logical thread linking the prior act" to a proper, noncharacter purpose.9

The prosecutor argues that, in this case, evidence of the previous fires is admissible under what is known as the "doctrine of chances." Accordingly, a discussion of that doctrine is warranted.

THE DOCTRINE OF CHANCES

The doctrine of chances is used to establish the relevancy of certain types of past acts evidence and to avoid the prohibition against character evidence.10 Basically, it states that, when someone suffers a specific type of accident with extraordinary frequency, it is objectively probable that one or more of the incidents were not accidents. A treatise describes it as follows:

The doctrine of chances has been traced to the 1915 English case of Rex v. Smith.12 The defendant, Smith, married three women between 1912 and 1914. After each marriage, he purchased an insurance policy on the life of his new wife and convinced her to sign a will making him her beneficiary. Each of the three women was later found dead in her bath by drowning. At Smith's trial, the prosecution was allowed to introduce evidence of all three deaths over the defendant's objection that the evidence was nothing more than evidence of his bad character.

The appellate court held that the evidence had been properly admitted. In affirming the conviction, it "focused on the objective improbability of so many similar accidents befalling Smith. Either Smith was one of the unluckiest persons alive, or one or some of the deaths in question were the product of an actus reus."13

The seminal American case that accepted the doctrine of chances as a noncharacter basis for admitting other acts evidence is the 1973 case of the United States Court of Appeals for the Fourth Circuit of United States v. Woods.14 The defendant in Woods was convicted of first-degree murder and numerous other assaultive charges relating to the death of her eight-month old pre-adoptive foster son. He began suffering from breathing difficulties and cyanosis shortly after going to live with the defendant. On appeal, she argued that the government had improperly used evidence of other acts involving her care of her other nine children.15

To prove that the child's death was neither accidental nor from natural causes the prosecution introduced the testimony of a forensic pathologist. It then produced evidence that, during the previous 24 years, the defendant had custody of or access to nine other children among whom there were at least 20 episodes of cyanosis.

Another case, United States v. York, explains clearly how the doctrine of chances can be applied to negate innocent intent:

These cases stand for the proposition that evidence of other bad acts can be admissible when its logical relevance is not necessarily linked to an impermissible character inference. Thus, the proponent of other acts evidence does not necessarily ask "the trier of fact to infer the defendant's conduct . . . from the defendant's personal, subjective character."18 Instead, the proponent may properly ask the trier of fact "whether the uncharged incidents are so numerous that it is objectively improbable that so many accidents would befall the accused."19

This Court addressed the doctrine of chances in People v. Crawford, recognizing that the doctrine is "widely accepted."20 The defendant in Crawford was convicted of possession with intent to distribute cocaine. The prosecution was allowed to introduce evidence of a previous conviction of the same type. On appeal, this Court stated that "the prosecutor must `make persuasive showings that each uncharged incident is similar to the charged offense and that the accused has been involved in such incidents more frequently than the typical person,'" and that "the applicability of the doctrine of chances depends on the similarity between the defendant's prior conviction and the crime for which he stands charged."21

In Crawford, the prior conviction was for the sale of cocaine to an undercover police officer.22 The defendant's pending charges stemmed from an incident where the police stopped the defendant for a routine traffic violation and discovered cocaine in his vehicle.23 Although both his earlier conviction and the act charged involved narcotics, this Court found the two offenses insufficiently similar to warrant admission of the similar acts evidence:

A majority of this Court also touched on the doctrine of chances in People v. VanderVliet.25 There, the defendant had been charged with second-degree criminal sexual conduct for incidents involving clients of the company where he worked as a case manager. The defendant denied any sexual contact with one victim and claimed his contact with the second victim was accidental. A third victim was discovered during the investigation.

The prosecution sought to introduce testimony of all three victims. The trial court held that the acts involving the other victims were not admissible in either of the pending cases. The Court of Appeals affirmed. A majority of this Court reversed the decision and held that the testimony of the first victim was relevant to show that the touching of the second victim was not accidental or inadvertent. A majority of this Court stated that

APPLICABILITY OF THE DOCTRINE OF CHANCES TO THE PRESENT CASE

Crawford is instructive here. Under Crawford, the prosecution must make persuasive showings that (1) the past incidents are sufficiently similar to the charged offense to warrant admission, and (2) the accused has been involved in such incidents more frequently than the typical person.27 The prosecutor has failed to meet the similarity prong in this case.

Defendant's involvement in four fires in the span of 12 years is more frequent than the typical person experiences. Therefore, the prosecution has satisfied the second prong of Crawford for admitting the evidence under the doctrine of chances.

However, the prosecutor has failed to persuasively show a sufficient factual nexus between the prior fires and the charged offense. Crawford makes it clear that similarity is a key factor in determining the applicability of the doctrine of chances. All four fires in this case involved property that defendant either owned or possessed. However, three of them involved unexplained vehicle fires, one of which concerned his employer's vehicle. The fourth fire caused smoke damage to defendant's dwelling and was admittedly caused by the defendant's roommate when he left a blanket on a kerosene heater.

The prosecution repeatedly stated in its closing argument that it did not have to prove the origin or the cause of the fires. Instead, it simply asserted that there were fires and defendant was somehow connected to them. There was no proof that defendant caused any of the prior fires. None was considered suspicious, and defendant received little, if any, insurance money. And, in one case, defendant had to continue paying for the vehicle that the fire destroyed. Finally, the prosecution conceded that engine fires are not unusual and, in the case of defendant's employer's van, that defendant was not charged with maintaining the vehicle.

The prosecution has not shown sufficient similarity between the prior fires and the charged fire. No evidence was offered to show the cause of the vehicle fires. Likewise, no evidence was presented linking the fires, such as a common type of accelerant. The charged fire was a house fire and was allegedly started by the use of an accelerant on the living room love seat. Furthermore, it is worth noting that sometime before the charged fire, defendant substantially reduced the insurance coverage on his house.

The decision whether to apply the doctrine of chances is made on a case-by-case basis considering the particular facts of the case. This Court noted in Crawford that if the defendant's "prior crime involved the concealment of drugs in the dashboard of his car (as the charged crime did), that evidence would likely be admissible under the doctrine of chances because of the stark similarity of the two crimes."28

Likewise, in the present case, if the past fires were similar, whether in time, location, or other characteristics, they would likely have been admissible. I am hesitant to adopt a bright-line rule as to what constitutes a sufficient nexus between the past and the charged crimes. The specific facts and circumstances of a particular case must govern whether the evidence should be admitted. However, I reject the prosecutor's suggestion that this Court adopt a liberal application of the doctrine of chances lest it weaken the prohibition against character evidence, especially when used to prove actus reus.29

I strongly disagree with the majority's position that the past fires were admissible to negate defendant's claim that the fire was a mere accident. First, the majority claims that the other acts must be only of "the same general category." This is contrary both to Crawford, as discussed earlier, and to Rex v. Smith, the case that gave birth to the doctrine. Similarity was essential in Rex v. Smith: the defendant's previous two wives were found drowned in the bathtub, just as was Smith's present wife.30 Also, in Woods: nine children under the defendant's care suffered at least 20 episodes of cyanosis, and seven of these children died. The defendant was on trial for the murder of her eight-year-old son who died the same way.31 A showing of similarity should be essential in the case on appeal, as well.

To allow prior acts evidence under the doctrine of chances whenever someone has the misfortune of being connected to an event of "the same general category" eviscerates the concept that "in our system of jurisprudence we try cases, rather than persons. . . ."32 Furthermore, a majority of this Court in VanderVliet cautioned that using unlikely coincidence to prove actus reus "requires a more rigorous enforcement of relevancy because it more closely approaches the forbidden inference of character to conduct."33

Because the evidence of the past fires in this case was not admissible under MRE 404(b), I would hold that the trial court abused its discretion in admitting it. It was impermissible character evidence.

MRE 403

Even if the evidence of the previous fires were relevant, I would exclude it under MRE 403 because the danger of unfair prejudice substantially outweighed its probative value. People v. Oliphant discusses the framework for evaluating evidence under MRE 403:

Evidence is unfairly prejudicial if a danger exists that the jury will give marginally probative evidence undue or preemptive weight.35 Under Oliphant and Crawford, whether the charged act is similar to the uncharged act is important when determining the probative value of the uncharged act. In this case, the probative value of the uncharged acts is slight given the dissimilarities between them and the charged fire.

The potential prejudice of introducing the other fires in this case was great. In fact, as long as it was not carefully examined, it was the best evidence that the prosecution had against defendant. The only substantive evidence against him was the fire investigators' testimony and a possible motive established by his need for money. When presenting her case, the prosecutor came back repeatedly to the previous fires. It is likely that the jury drew the unsubstantiated inference that defendant had the propensity to start fires.

In Crawford, this Court made a similar determination regarding the defendant's prior drug conviction stating:

This Court added that "the specter of impermissible character evidence is likely to have significantly overshadowed any legitimate probative value."37 The evidence at issue in Crawford was a prior conviction, which is arguably more prejudicial than the prior fires in this case because the prior drug offense was attributable to the defendant. In this case, it was only implied that defendant committed the prior fires. However, I believe similar logic applies.

Moreover, the fact sought to be proved in this case, a lack of accident, could have been argued through other, less prejudicial evidence.38 Specifically, the prosecution put three experts on the stand. Two stated that, in their opinion, the fire was arson. One reasoned that the burn patterns ruled out accidental causes. In fact, the prosecution concedes that "there was substantial evidence that the instant fire was an incendiary fire, set by some human agency."39 In addition, the prosecution presented circumstantial evidence that defendant was associated with the fire, showing that he was the last person to leave the house and was in arrears on mortgage payments.

Therefore, the prosecution could have attempted to make its case for an intentional act without using past acts evidence that involved harmful collateral effects.40 Given that the prior fires were dissimilar to the charged fire, the evidence about them was unnecessary to prove lack of accident, and its probative value was minimal.

However, because "[t]he distinction between a verboten character theory and a permissible chances theory is a thin line which a lay juror could easily lose sight of,"41 I think that the prejudicial effect was high. There was little evidence connecting defendant to the fires, and the repeated references to the other fires likely greatly enhanced the danger of unfair prejudice.42

Finally, although the trial court gave a limiting instruction to the jury, because of the slight probative value of the evidence, the instruction was likely ineffective. As one critic of the doctrine has noted "such a limiting instruction does more to satisfy legal scholasticism than to direct the minds of real jurors" because "[t]o the ordinary human mind, . . . the division between the prescribed and the proscribed uses [of the uncharged misconduct evidence] may be a bit difficult to perceive."43

Thus, the evidence of the other fires was inadmissible under MRE 403.

HARMLESS ERROR

I agree with the Court of Appeals that the improper introduction of the evidence was not harmless. The evidence against defendant was not overwhelming and the prosecution relied substantially on the prior fires to argue the charged fire must have been intentional.44 The prosecution argued in closing that defendant had a "pattern" of fires and that the prior fires were important to show his knowledge of fires and his intent. As a result, I agree with the Court of Appeals that the prosecution "relied substantially on the number of prior fires to argue that the charged fire must have been intentionally set by defendant."45 Because of this, there was a high chance that the evidence of the other fires affected the outcome.

CONCLUSION

The evidence of past fires that was introduced at trial was improper character evidence and it was therefore not relevant. I would not carve out an exception to admit the evidence under the doctrine of chances given the dissimilarities between the past fires and the charged fire. The past-fires evidence was also inadmissible under MRE 403 because the danger of unfair prejudice substantially outweighed whatever probative value it had. The error in admitting the evidence of the past fires was not harmless.

Accordingly, the Court of Appeals properly remanded this case for a new trial.

MICHAEL F. CAVANAGH and HATHAWAY, JJ., concurred with MARILYN J. KELLY, C.J.