People v. Shaw

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

June 14, 2016

Plaintiff-Appellee, 9:00 a.m.

v No. 313786

Ingham Circuit Court

BARRY DAVIS SHAW, LC No. 12-000206-FC

Defendant-Appellant.

Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

SHAPIRO, J.

In August 2011, when the complainant was 23 years old, she reported to the Lansing

Police Department that defendant, her stepfather, had sexually molested her on multiple

occasions between the ages of 8 and 16. Following a jury trial, defendant was convicted of nine

counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, and acquitted on an

additional count of CSC-I. Defendant filed a motion for new trial on the grounds of ineffective

assistance of counsel. After a ten-day Ginther1 hearing, the trial court denied the motion for new

trial. Defendant now appeals from his conviction and the denial of his motion for new trial. We

conclude that defendant did not receive effective assistance of counsel at trial and that there is a

reasonable probability that, but for counsel’s error, the result of the proceedings would have been

different. Accordingly, we reverse and remand for a new trial.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that defense counsel was ineffective for a number of reasons.

Because a Ginther hearing was held, the issue is preserved. See People v Johnson, 144 Mich

App 125, 129; 373 NW2d 263 (1985). A defendant’s ineffective assistance of counsel claim “is

a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640

NW2d 246 (2002). When reviewing an ineffective assistance of counsel claim, this Court

reviews for clear error the trial court’s findings of fact and reviews de novo questions of law. Id.

The trial court’s findings are clearly erroneous if this Court is definitely and firmly convinced

that it made a mistake. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012).

1

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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The right to counsel guaranteed by the United States and Michigan Constitutions, US

Const, Am VI; Const 1963, art 1, § 20, is the right to the effective assistance of counsel. United

States v Cronic, 466 US 648, 654-655; 104 S Ct 2039; 80 L Ed 2d 657 (1984); People v Pubrat,

451 Mich 589, 594; 548 NW2d 595 (1996). To establish ineffective assistance of counsel, a

defendant must show: (1) that counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms; and (2) that there is a reasonable probability

that, but for counsel’s error, the result of the proceedings would have been different. Strickland

v Washington, 466 US 668, 687-688, 694; 104 S Ct 2039; 80 L Ed 2d 674 (1984); People v

Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007).

A. FAILURE TO OBJECT TO HEARSAY

Defendant argues that his counsel’s performance fell below reasonable professional

norms because, among other reasons, his attorney failed to object to hearsay testimony offered

by five different witnesses, each of whom recounted statements made to them by the

complainant in which she told them that defendant had sexually abused her years earlier.

Defendant further argues that this hearsay testimony was of particular significance as it served to

bolster the complainant’s credibility in a case that turned on credibility.

MRE 801 defines hearsay as “a statement, other than the one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Unless an exception exists, hearsay is inadmissible. MRE 802. “In a trial where the evidence

essentially presents a one-on-one credibility contest between the victim and the defendant,

hearsay evidence may tip the scales against the defendant, which means that the error is more

harmful.” People v Gursky, 486 Mich 596, 620-621; 786 NW2d 579 (2010).

Three of the challenged witnesses were members of the complainant’s family, one was

Dr. Steven Guertin, a pediatrician, who was admitted as an expert in child sexual abuse, and the

last was Lansing Police Detective Elizabeth Reust. We address each in turn.

1. STATEMENTS TO FAMILY MEMBERS

The prosecution called three relatives of complainant—two cousins and her sister. Her

cousin Elizabeth testified that, while at their grandmother’s house, while upset and crying, the

complainant told her that defendant had sexually touched her. Her cousin Laura testified that in

2011 or 2012 while on a family canoe outing, the complainant, crying and intoxicated, told her

that defendant had abused her when she was younger and specifically recounted one incident.

The complainant’s sister, Brooke, testified that later in the canoe trip she, the complainant, and

Laura took a walk together. During the walk Laura told Brooke that the complainant had said to

her that defendant had been “molesting her ever since she was little.” Brooke testified that the

complainant then began to cry and recounted a specific incident in which defendant raped her in

the living room while the rest of the family was out in the yard. The prosecution concedes and

we agree that no exception to the hearsay rule applies to any of these statements, so admitting

testimony recounting them was plain error and the failure to object constituted ineffective

assistance of counsel. Given that the statements were clearly hearsay and defense counsel

conceded he had no strategic reasons for failing to object, we conclude that defense counsel’s

performance fell below an objective standard of reasonableness. Frazier, 478 Mich at 243.

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2. TESTIMONY OF DR. GUERTIN

Dr. Guertin conducted a forensic physical examination of the complainant seven years

after the last alleged instance of abuse. Without objection, he recounted in detail the

complainant’s statements to him about the abuse. On appeal, defendant argues that the

statements were inadmissible hearsay and counsel should have objected. The prosecution

responds that such an objection would have been futile because the statements were admissible

pursuant to MRE 803(4) because they were made for the purposes of medical treatment or

diagnosis.

“Statements made for the purpose of medical treatment are admissible pursuant to MRE

803(4) if they were reasonably necessary for diagnosis and treatment and if the declarant had a

self-interested motivation to be truthful in order to receive proper medical care.” People v

Mahone, 294 Mich App 208, 214-215; 816 NW2d 436 (2011). The “rationale for MRE 803(4) is

the existence of (1) the self-interested motivation to speak the truth to treating physicians in

order to receive proper medical care, and (2) the reasonable necessity of the statement to the

diagnosis and treatment of the patient.” People v Meeboer (After Remand), 439 Mich 310, 322;

484 NW2d 621 (1992). An injury need not be readily apparent. Mahone, 294 Mich App at 215.

Moreover, “[p]articularly in cases of sexual assault, in which the injuries might be latent, such as

contracting sexually transmitted diseases or psychological in nature, and thus not necessarily

physically manifested at all, a victim’s complete history and a recitation of the totality of the

circumstances of the assault are properly considered to be statements made for medical

treatment.” Id.

We agree with defendant that MRE 803(4) does not apply under the circumstances

presented here. First, the examination by Dr. Guertin did not occur until seven years after the

last alleged instance of abuse, thereby minimizing the likelihood that she required treatment.

Second, the complainant did not seek out Dr. Guertin for gynecological services. Rather, she

was specifically referred to Dr. Guertin by the police in conjunction with the police investigation

into the allegations of abuse by defendant.2 And during the seven years since the last alleged

incident of abuse, she had seen a different physician, who was not called as a witness, for

gynecological care. Under these facts, the complainant’s statements to Dr. Guertin were not

admissible because they were not statements for the purposes of medical treatment. See People v

Kosters, 175 Mich App 748, 751; 438 NW2d 651 (1989) (holding that a nurse’s testimony about

the victim’s statements was inadmissible because the statements were not reasonably necessary

to medical diagnosis and treatment). Based on defense counsel’s testimony at the Ginther

hearing, the prosecution argues that allowing the admission of hearsay statements by Dr. Guertin

was strategic because he hoped to point out variations of fact in the complainant’s statements.

However, a review of Dr. Guertin’s report, which was available to counsel prior to trial, readily

reveals the absence of any significant inconsistencies, certainly none that could justify allowing a

medical professional to offer extensive and highly damaging hearsay testimony. Accordingly,

2

Indeed, Dr. Guertin’s written report was directed to the prosecutor, not to the complainant as

his patient or to any other physician.

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defense counsel’s performance fell below an objective standard of reasonableness when he failed

to object to Dr. Guertin’s hearsay testimony. Frazier, 478 Mich at 243.

3. TESTIMONY OF DETECTIVE REUST

The primary investigating officer was Detective Reust. Her testimony also contained

numerous hearsay statements for which no exceptions were applicable. First, she, like other

witnesses recounted the out-of-court statements made to her by the complainant, including

detailed descriptions of the alleged abuse. And, in an example of hearsay within hearsay, i.e.,

double hearsay, she testified to the statements of Dr. Guertin that described in detail the

complainant’s statements to him.

Detective Reust also testified extensively about how she “confirmed” numerous

“background” facts that the complainant reported to her. She recounted statements made by the

complainant regarding other events and then testified that before filing the charges, she was able

to confirm the veracity of those statements by comparing them to out-of-court statements made

to her by others and/or by reference to various out-of-court documents. She testified that by

doing so she “corroborated” what the complainant had said. In other words, Detective Reust

concluded that the complainant was credible and so advised the jury. For the same reasons

discussed in reference to the testimony of Dr. Guertin, we find no basis for defense counsel to

have reasonably concluded that he could obtain a tactical advantage by allowing the inadmissible

hearsay testimony in order to ferret out inconsistencies.3 Accordingly, defense counsel’s

performance fell below an objective standard of reasonableness when he did not object to the

hearsay testimony from Detective Reust. Frazier, 478 Mich at 243.

4. EFFECT ON TRIAL

Having concluded that defense counsel’s performance fell below an objective standard of

reasonableness with regard to the hearsay statements by the complainant’s family members, by

Dr. Guertin, and by Detective Reust, we turn now to whether, but for those errors, there is a

reasonable probability that the outcome of the trial would have been different.

Given the time that had passed since the alleged abuse stopped, the lack of any witnesses

to the charged crimes, and the lack of any significant circumstantial proofs, this case turned

largely on the complainant’s credibility. Because defense counsel did not object to the hearsay

statements, the jury heard the complainant’s version of events more than five times. And in the

case of Dr. Guertin and Detective Reust the hearsay was offered with what amounted to an

official stamp of approval. In closing argument, the prosecutor reminded the jury that the

testimony of the complainant’s reports was “consistent” with the testimony the complainant gave

during trial. And Detective Reust’s testimony that she corroborated a large number of incidental

3

The inconsistencies addressed by defense counsel in closing argument were very minor, such as

where the complainant said defendant worked and whether in a particular incident more than 10

years earlier she recalled defendant was wearing traditional underwear or thong-style underwear.

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details related to her by the complainant by consulting out-of-court sources was clearly intended

to bolster the complainant’s credibility through references to hearsay.

Moreover, Dr. Guertin testified that, based on the complainant’s medical history, he

believed her allegations. He also stated that, based on the complainant’s medical history, i.e., her

hearsay statements, he believed that his physical findings were consistent with someone who had

suffered child sexual abuse. His belief based on hearsay was critical because the medical

findings themselves were ambiguous at best.4 He testified that the hymenal “injuries” he

observed upon examination of the complainant could be caused by consensual penile-vaginal

intercourse and that such injuries could be seen in up to 80% of teenagers who had recurrent

consensual intercourse.5 Further, he testified that the complainant’s chronic anal fissure could

have been caused by consensual intercourse or by diarrhea or constipation. The minimal

probative value of the physical findings further supports our conclusion regarding the significant

prejudicial effect of the hearsay in this case.

Given the frequency, extent, and force of the hearsay testimony, we conclude that had

defense counsel objected to its admission, there is a reasonable probability that the outcome of

this case would have been different. Accordingly, defendant has satisfied both prongs of the

Strickland test.

B. FAILURE TO PRESENT EVIDENCE OF AN ALTERNATIVE SOURCE OF INJURY

Defendant also argues that he was denied effective assistance of counsel due to defense

counsel’s failure to discover and present testimony that the complainant was sexually active with

Brad August, a boyfriend she lived with for some time beginning when she was 19 years old.

Specifically, defendant argues that defense counsel failed to investigate and present testimony

that the complainant and August engaged in consensual vaginal and anal sex. Defendant argues

that this testimony would have explained why Dr. Guertin found extensive hymenal changes and

the chronic anal fissure. Without this testimony, the jury was left to conclude that those injuries

must have resulted from defendant having abused the complainant when she was a child.6

At the Ginther hearing, appellate counsel called August as a witness to testify that while a

couple, he and the complainant had engaged in consensual vaginal and anal sex.7 Defense

4

It is unclear on what basis Dr. Guertin, a pediatrician, could offer testimony as to what hymenal

changes would be expected in a sexually active adult woman.

5

As noted below, it was undisputed that prior to Dr. Guertin’s examination, the complainant had

been sexual active with her boyfriend.

6

The failure to reasonably investigate can constitute ineffective assistance of counsel. People v

Trakhtenberg, 493 Mich 38, 52-53; 826 NW2d 136 (2012).

7

That August would have so testified was stated as an offer of proof by appellate counsel at the

Ginther hearing because the trial court would not permit August to testify at the Ginther hearing

regarding any sexual activities with the complainant. The court stated that such testimony, even

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counsel testified that although he called August as a witness at trial, he did not ask questions

about the complainant’s sexual activity with him because he believed it to be barred by the rape

shield law. The trial court agreed, ruling that defense counsel’s failure to present this testimony

was not of consequence because it would have been barred by the rape shield law. Both counsel

and the court were mistaken.

The rape shield law, MCL 750.520j, provides:

(1) Evidence of specific instances of the victim’s sexual conduct, opinion

evidence of the victim’s sexual conduct, and reputation evidence of the victim’s

sexual conduct shall not be admitted under sections 520b to 520g unless and only

to the extent that the judge finds that the following proposed evidence is material

to a fact at issue in the case and that its inflammatory or prejudicial nature does

not outweigh its probative value:

(a) Evidence of the victim’s past sexual conduct with the actor.

(b) Evidence of specific instances of sexual activity showing the source or

origin of semen, pregnancy, or disease.

The rape-shield law does not prohibit defense counsel from introducing “specific instances of

sexual activity . . . to show the origin of a physical condition when evidence of that condition is

offered by the prosecution to prove one of the elements of the crime charged provided the

inflammatory or prejudicial nature of the rebuttal evidence does not outweigh its probative

value.” People v Mikula, 84 Mich App 108, 115; 269 NW2d 195 (1978); see also People v

Haley, 153 Mich App 400, 405-406; 395 NW2d 60 (1986) (holding that “once the prosecution

introduced medical evidence to establish penetration, evidence of alternative sources of

penetration became highly relevant to material issues in dispute”). Accordingly, evidence of an

alternative explanation for the hymenal changes and source for the chronic anal fissure would

have been admissible under the exception to the rape shield statute and defense counsel’s failure

to ask the boyfriend about these issues fell below an objective standard of reasonableness.

It is difficult to determine, with confidence, whether August’s testimony on these matters

would have had a significant effect on the trial given that he was not permitted to offer the

testimony at the Ginther hearing and so there is an inadequate record. However, assuming what

appellate counsel proffered was accurate, the testimony would likely have been very significant

given that without it there was no likely explanation, other than defendant’s guilt, to explain the

extensive hymenal changes and the chronic anal fissure. Dr. Guertin essentially testified that the

hymenal changes were consistent with those of either a sexually active adult woman or an

abused child. The fact that the complainant was sexually active and living with her boyfriend at

age 19, well before Dr. Guertin’s examination, was therefore highly relevant. The same is true

as an offer of proof, is barred by the rape shield statute. The trial court’s refusal to allow the

testimony for purposes of the Ginther hearing was erroneous because such testimony is

permitted as an offer of proof where the applicability of the rape shield statute is at issue. See

People v Hackett, 421 Mich 338, 350; 365 NW2d 120 (1984).

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as to proffered testimony regarding consensual anal sex because the complainant testified that

she had not had anal sex other than defendant’s forcible penetration. Based on that unchallenged

testimony, it is difficult to see why the jury would question the prosecution’s closing argument

that that “the physical findings absolutely match with what [the complainant] says happened to

her . . . . That’s not a coincidence. That’s because it actually happened.”8

We conclude that trial counsel’s failure to present this testimony at trial constituted

ineffective assistance and that its admission would have resulted in a reasonable probability of a

different result.9

II. IMPEACHMENT TESTIMONY

Defendant also argues that the trial court erred when it admitted, over objection, hearsay

testimony from Officer Kasha Osborn.10 We agree.

The complainant’s brother, who was interviewed by the police, was asked on direct

examination whether he recalled a fight between his mother and defendant that occurred when he

was 12 or 13; he denied memory of the incident and stated that he did not remember telling the

police about it. Over a defense objection, Officer Osborn testified that the complainant’s brother

told her about an incident that occurred at the family’s house when he was 12 or 13. She

testified that the complainant’s brother told her that defendant came downstairs in a state of

partial undress acting very angry towards the complainant and saying she was “in trouble.” She

also recounted that the complainant’s brother told her that in the same incident, defendant

became “heated” and grabbed the complainant’s mother by the neck and threatened to kill her.

The complainant’s brother’s testimony had little, if any, probative value. It amounted to

background evidence regarding the layout of the house, the nature of household disciplinary

8

The prosecution argues that defense counsel’s failure to present August’s testimony was

harmless because Dr. Guertin stated that the complainant “had adult consensual sex” and the

complainant testified that she had sexual relations with the boyfriend she was dating at the time

of trial. These two brief references, however, were unlikely to provide the jury a basis to

conclude that the complainant was in a sexually active relationship before Dr. Guertin’s

examination. Moreover, they demonstrate the prosecution’s recognition that the rape shield

statute did not apply.

9

Given our resolution of defendant’s arguments pertaining to the failure to object to hearsay and

the failure to investigate and present evidence regarding an alternative source for the extensive

hymenal changes and the chronic anal fissure, we find it unnecessary to address defendant’s

remaining allegations of ineffective assistance of counsel.

10

We review a trial court’s evidentiary decisions for an abuse of discretion. People v Unger,

278 Mich App at 210, 216; 749 NW2d 272 (2008). We review unpreserved issues for plain error

affecting defendant’s substantial rights. People v King, 297 Mich App 465, 472; 824 NW2d 258

(2012).

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methods, school and bus schedules, his football practice, the existence of a swimming pool, the

name of a neighbor, confirmation that defendant had a speedo, and the fact that he learned about

the allegations of abuse after a canoeing trip. The complainant’s brother did not witness any of

the abuse, nor did the prosecution suggest that he did. At the same time, the complainant’s

brother did not provide exculpatory testimony, nor did the defense suggest that he did. A review

of the complainant’s brother’s testimony leaves little doubt that the prosecution’s purpose in

calling him as a witness was to have him describe the incident later described by Officer Osborn.

Immediately after the complainant’s brother’s testimony denying both the incident and

the statement to the police, Officer Osborn was called to testify and, as described above, she

recounted the story that the complainant’s brother allegedly told her. Defense counsel objected

on grounds of hearsay. On appeal, defendant also argues that admission of Officer Osborn’s

testimony also violated MRE 404(b) and MRE 403.

The trial court held that the statement was not hearsay because it was a prior inconsistent

statement by the complainant’s brother that was being offered for impeachment purposes.

“When a witness claims not to remember making a prior inconsistent statement, he may be

impeached by extrinsic evidence of that statement.” People v Jenkins, 450 Mich 249, 256; 537

NW2d 828 (1995). However, “[t]he purpose of extrinsic impeachment evidence is to prove that

a witness made a prior inconsistent statement—not to prove the contents of the statement.” Id.

“Testimony of ‘the impeaching witness presenting extrinsic proof should state the time, place,

circumstances of the statement and the subject matter of the statement but not its content.’ ” Id.

at 257 n 20, quoting 28 Graham, Federal Practice & Procedure (interim ed), § 6583, pp 191-192.

In People v Stanaway, 446 Mich 643, 692-693; 521 NW2d 557 (1994), the Supreme

Court held that there are limitations on the use of extrinsic evidence of a witness’s prior

inconsistent statements. In that case the witness testified that he had never made any statements

that implicated the defendant in sexually abusing the victim. Id. at 689. The prosecutor then had

the investigating officer testify that the witness had told him that the defendant had once stated

that he had “screwed a young girl” and would be in trouble if caught. Id. at 690. The Court

reasoned:

The substance of the statement, purportedly used to impeach the credibility of the

witness, went to the central issue of the case. Whether the witness could be

believed in general was only relevant with respect to whether that specific

statement was made. This evidence served the improper purpose of proving the

truth of the matter asserted. MRE 801.

While the prosecutor could have presented defendant’s alleged admission

by way of the nephew’s statement, he could not have delivered it by way of the

officer’s testimony because the statement would be impermissible hearsay.

Likewise, a prosecutor may not use an elicited denial as a springboard for

introducing substantive evidence under the guise of rebutting the denial. Here,

the prosecutor used the elicited denial as a means of introducing a highly

prejudicial ‘admission’ that otherwise would have been inadmissible hearsay.

The testimony of [the officer] was that [the witness] said that [the defendant] said

that he had sex with a young girl. This would have been clearly inadmissible

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without [the witness’s] denial. It is less reliable in the face of the denial. Absent

any remaining testimony from the witness for which his credibility was relevant

to this case, the impeachment should have been disallowed. [Id. at 692-693

(citations omitted; emphasis added).]

In People v Kilbourn, 454 Mich 677, 682; 563 NW2d 669 (1997), this Court summarized the

rule in Stanaway, stating: “A prosecutor cannot use a statement that directly tends to inculpate

the defendant under the guise of impeachment when there is no other testimony from the witness

for which his credibility is relevant to the case.” Further, “impeachment should be disallowed

when (1) the substance of the statement purportedly used to impeach the credibility of the

witness is relevant to the central issue of the case, and (2) there is no other testimony from the

witness for which his credibility was relevant to the case.” Id. at 683.

There is nothing to suggest that the content of the complainant’s brother’s alleged

statement to Officer Osborn was needed to impeach his testimony that he did not make such a

statement. Moreover, there was no other testimony from him that made his credibility relevant

to the case. As in Stanaway, the prosecutor improperly used “an elicited denial as a springboard

for introducing substantive evidence under the guise of rebutting the denial” and so “[a]bsent any

remaining testimony from the witness for which his credibility was relevant to this case, the

impeachment should have been disallowed.” Stanaway, 446 Mich at 693.

The effect of this improperly admitted hearsay was heightened by the fact that the trial

court failed to instruct the jury that Officer Osborn’s testimony was for impeachment purposes

only. In both Stanaway and Jenkins, our Supreme Court reversed convictions where improper

hearsay was admitted on the grounds of impeachment despite the fact that the juries had received

proper cautionary instructions. Id. at 690-692, 695; Jenkins, 450 Mich at 263. In Jenkins, the

Court stated:

We must be mindful of the fact that prior un-sworn statements of a witness

are mere hearsay and are, as such, generally inadmissible as affirmative proof.

The introduction of such testimony even where limited to impeachment,

necessarily increases the possibility that a defendant may be convicted on the

basis of unsworn evidence, for despite proper instructions to the jury, it is often

difficult for them to distinguish between impeachment and substantive evidence.

[Id. at 261-262 (quotation omitted).]

In Stanaway, the trial court gave two such curative instructions: one immediately after the

statement was admitted and the other during the final jury instructions. Stanaway, 446 Mich at

690-692. In the instant case, the jury was essentially permitted to consider the hearsay testimony

as substantive evidence. The failure to give such a limiting instruction was plain error and

defense counsel’s failure to request it was below the standard of effective representation.

The trial court also failed to provide a prior bad acts limiting instruction despite the

potential for prejudice in testimony that described defendant grabbing the complainant’s mother

by the neck and threatening to kill her. This testimony did not provide evidence of “motive,

opportunity, intent, preparation, scheme, plan or system” as to the charged crime, nor any other

basis for admission under MRE 404(b). It was, however, classic “bad man” evidence that

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provided defendant had a character for violence. As the Supreme Court instructed in People v

VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993) amended 445 Mich 1205 (1994): “[t]he

evidence must be relevant to an issue other than propensity under Rule 404(b), to ‘protect[]

against the introduction of extrinsic act evidence when that evidence is offered solely to prove

character.’ ” (quotation omitted; emphasis and brackets in original). “To admit evidence under

MRE 404(b), 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.”

People v Jackson, 498 Mich 246, 259, 869 NW2d 253 (2015) (quotation omitted; emphasis in

original). The failure to give such a limiting instruction was plain error and defense counsel’s

failure to request it was below the standard of effective representation.11

It can be fairly argued that in the context of an otherwise proper trial, the erroneous

admission of this particular testimony might very well have been harmless error. However,

given the extent to which the jury heard other improperly admitted evidence it is difficult to

single out a particular error and conclude that it was harmless.

III. CONCLUSION

During this trial, defense counsel failed to object to the improper admission of multiple

hearsay statements in which the complainant was the declarant. As conceded by the prosecution

on appeal, the hearsay offered by three family members did not fall within any hearsay

exception. The testimony of the police officer similarly contained inadmissible hearsay

statements made by the complainant as well as double hearsay regarding what the complainant

told Dr. Guertin. Further, Dr. Guertin’s own testimony about the declarant’s statements was

hearsay and did not fall within the exception in MRE 803(4). Finally, the officer’s testimony

providing corroboration of the complainant’s credibility through reliance on often unidentified

out-of-court statements and out-of-court documents was hearsay. In addition to failing to object

to the hearsay, defense counsel also failed to discover and/or present the admissible evidence of

alternative sources of the complainant’s injuries. The quantity of improperly admitted testimony

was so extensive, and its content so significant, that there is a reasonable probability that, but for

counsel’s errors the outcome of the trial would have been different.

We also conclude that the trial court abused its discretion when it allowed a police officer

to testify over objection to the content of a statement the complainant’s brother allegedly made to

11

Defendant argues that one of his CSC-I convictions was supported by insufficient evidence

because the complainant did not testify how old she was during the incident. However, when

viewed in context it is clear that the prosecutor’s questions about the complainant’s age in the

seventh grade were setting the timeframe for the subsequent questions about the time the

complainant was allegedly abused after being grounded. Accordingly, because there is sufficient

evidence to support defendant’s conviction, we need not vacate defendant’s conviction, People v

Mitchell, 301 Mich App 282, 294; 835 NW2d 615 (2013), and on retrial the prosecutor can bring

this charge again.

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the police. The testimony introduced substantive evidence under the guise of rebutting the

brother’s denial. Further, the content of the statement violated MRE 404(b) and MRE 403.

Reversed and remanded for a new trial. We do not retain jurisdiction.

/s/ Douglas B. Shapiro

/s/ Elizabeth L. Gleicher

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