STATE OF MICHIGAN COURT OF APPEALS

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1 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, UNPUBLISHED July 6, 2010 v No Wayne Circuit Court ROBERT WILLIAM DUNCAN, LC No Defendant-Appellee. Before: METER, P.J., and MURRAY and BECKERING, JJ. PER CURIAM. Following a jury trial, defendant was convicted of three counts of third-degree criminal sexual conduct (CSC), MCL d(1)(a) (penetration with a person at least 13 years old, but less than 16). Prior to sentencing, defendant moved for a new trial. The trial court granted defendant s motion on the basis of the erroneous and repeated admission of hearsay evidence and evidence regarding defendant s prior criminal record, defense counsel s failure to object to the evidence, and a post-trial affidavit submitted by a witness. The prosecution appeals by delayed leave granted the trial court s order granting defendant a new trial. We affirm. I. FACTUAL BACKGROUND Defendant s convictions stem from two sexual encounters he allegedly had with a friend of his teenage daughters, Melissa Duncan and Sarah Duncan, in At the time of the offenses, the victim was 14 years old and defendant was 38 years old. The victim spent a lot of time at defendant s house, as she was a close friend of his daughters and lived nearby. In regard to the first alleged encounter, the victim testified that when she was at defendant s house on homecoming weekend, he kissed her. He said that if she wanted more, she should follow him upstairs. The victim wanted more and followed him upstairs. They entered a bedroom. Defendant locked the door and turned off the lights. They took off their clothes and had vaginal intercourse on the floor. They stopped when they heard defendant s fiancé s vehicle pull into the driveway. The second alleged encounter occurred a few months later. According to the victim, she was at her house participating in a gift exchange with her sister and defendant s daughters. One of his daughters relayed a message to the victim that defendant wanted her to come over to his house. The victim went to defendant s house and found him lying in bed in his basement bedroom. She got into bed with him and they both took off their clothes. Defendant -1-

2 then performed cunnilingus on the victim. After he was finished, the victim performed fellatio. She testified that she was a willing participant in the sexual activity. Defendant testified that he never had any sexual contact with the victim. On homecoming weekend, the victim came over to defendant s house, explained that she was having problems at home, and asked defendant whether he and his fiancé would adopt her. According to defendant, the victim did not come to his house on the day of the alleged second encounter. Following his jury trial convictions, defendant moved for judgment notwithstanding the verdict or a new trial. The trial court granted defendant a new trial. The prosecution now appeals by delayed leave granted. II. DEFENDANT S MOTION FOR A NEW TRIAL We review a trial court s decision to grant or deny a motion for a new trial for an abuse of discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). A mere difference in judicial opinion does not establish an abuse of discretion. Id. An abuse of discretion occurs when the outcome chosen by the trial court is not within the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). In this case, the trial court granted defendant s motion for a new trial pursuant to MCR MCR 6.431(B) provides that [o]n the defendant s motion, the court may order a new trial on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice. The trial court held that the cumulative effect of the admission of hearsay evidence, the admission of evidence regarding defendant s prior criminal record, defense counsel s failure to object to the evidence, and the discovery of new evidence denied defendant what otherwise would have been a fair trial and call[ed] into question the integrity and public reputation of [the court s] judicial proceedings. At trial, defense counsel objected only twice to the complained-of evidence. Preserved claims of evidentiary error are reviewed for an abuse of discretion, and reversal is only warranted if after reviewing the entire record, it affirmatively appears that it is more probable than not that the error was outcome determinative. People v Lukity, 460 Mich 484, 488, ; 596 NW2d 607 (1999). Unpreserved claims are reviewed for plain error affecting substantial rights, i.e., that the error affected the outcome of the... proceedings, and [r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant s innocence. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (quotation marks and citation omitted). A. HEARSAY EVIDENCE The trial court granted defendant a new trial, in part, because of the erroneous admission of hearsay evidence at trial. In moving for a new trial, defendant listed ten instances when impermissible hearsay evidence was admitted. We agree that nine of the statements highlighted by defendant constituted impermissible hearsay. -2-

3 Hearsay is 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. MRE 801(c). Hearsay is not admissible except as provided by the rules of evidence. MRE 802. The victim testified that she told Melissa that the rumors of a sexual affair between herself and defendant were true. She later testified that she telephoned defendant and told him that she had confirmed the rumors of their affair to Melissa. The victim s testimony invoked her prior out-of-court statements, which were consistent with her trial testimony, and was offered to prove that those statements were true. Indeed, jurors would be more likely to believe the victim s testimony that an affair occurred if they knew the victim told others she and defendant were having an affair. A witness s prior statement that is consistent with the witness s trial testimony is inadmissible hearsay where the prior statement is used to prove the truth of the matter asserted. People v Malone, 445 Mich 369, ; 518 NW2d 418 (1994), citing People v Hallaway, 389 Mich 265, ; 205 NW2d 451 (1973) (BRENNAN, J.) (stating that [w]here the prior extra-judicial statement of a witness agrees with his testimony, the out-of-court remark is self-serving, and is not generally permitted under any established exception to the hearsay rule ). In most cases, such statements are simply irrelevant bolstering. Id. at 388. Under MRE 801(d)(1), a prior consistent statement is not hearsay if it is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or is a statement of identification made after perceiving the person. MRE 801(d)(1)(B), (C). Here, however, there was no charge of recent fabrication or improper influence or motive, nor were the victim s statements ones of identification. Contrary to the prosecution s assertion on appeal, the statements were offered to prove the truth of the matter asserted. Accordingly, the trial court erred in admitting the statements. The trial court also erred in admitting certain testimony of Charlotte Sopo, defendant s ex-wife and the mother of Sarah and Melissa. Sopo testified that she told the victim s mother that there was something going on between the victim and defendant, and, more particularly, that they had sex. Sopo s testimony invoked a prior consistent statement and was offered to prove the truth of the matter asserted, i.e., that there was something of a sexual nature going on between the victim and defendant. This was inadmissible hearsay. See MRE 801(c); Malone, 445 Mich at Next, the victim testified that she told the participants of the gift exchange that she was leaving to go to defendant s house. This hearsay was admissible under MRE 803(3) as a then existing mental, emotional, or physical condition. MRE 803(3) provides an exception to the hearsay rule where the statement pertains to the declarant s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health). A victim s declarations about her intent to go somewhere or do something is generally admissible under MRE 803(3). People v Furman, 158 Mich App 302, ; 404 NW2d 246 (1987). Here, the challenged statement expressed the victim s intent and plan to go to defendant s house. Thus, the trial court did not err in admitting this testimony. On the other hand, the victim s testimony that, during the gift exchange, Sarah told her that defendant was on the telephone and wanted her to go to his house is not admissible under MRE 803(3). The victim was not testifying as to her own intent or plan; rather she testified regarding Sarah s out-of-court statement, which was offered to prove the truth of the matter asserted. See MRE 801(c). The -3-

4 prosecution provides no rationale for the admission of the statement, and we must conclude that it was admitted in error. Melissa testified that she confronted the victim about the rumors of her having a sexual affair with defendant, and that the victim admitted the rumors were true. Melissa s testimony constitutes hearsay because it invoked an out-of-court statement by the victim, which was offered to prove the truth of the matter asserted, i.e., that the victim and defendant engaged in a sexual affair. See id. As indicated, jurors would be more likely to believe the prosecution s theory that an affair occurred if they knew the victim told others she and defendant were having an affair. There is no merit to the prosecution s argument that the testimony was admissible as a present sense impression under MRE 803(1). A present sense impression is defined as [a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. MRE 803(1). The victim s statement to Melissa was not made while the victim was perceiving an event or condition, or immediately thereafter. The trial court erred in admitting Melissa s testimony. The trial court further erred in admitting the hearsay testimony of Stacy Vespremi, the victim s assistant principal. Vespremi sat in on a discussion between Sarah, Melissa, and a detective investigating the offenses. During that discussion, the detective questioned Sarah and Melissa about a group meeting that the girls had with defendant, defendant s mother, the victim, and the victim s sister concerning the affair. At trial, the prosecutor asked Vespremi what the participants of that group meeting decided in regard to disclosing the affair. According to Vespremi, Melissa told the detective that she was instructed by people at the group meeting not to discuss the affair. Melissa s statement to the detective, which Vespremi repeated at trial, was an out-of-court statement offered to prove the truth of the matter asserted, see MRE 801(c), and constituted inadmissible hearsay. The prosecution again argues that the statement was admissible as a present sense impression under MRE 803(1). But Melissa s statement was not made while she was perceiving the event in question the group meeting with defendant and others or immediately thereafter. Melissa made the statement several months after the group meeting, during the investigation. Vespremi s testimony regarding Melissa s statement to the detective was admitted in error. The victim s mother testified that approximately one week after homecoming, she observed the victim wearing sweats that were not her own and were very, very big. The victim s mother testified that she asked the victim whose sweats she was wearing, and the victim said they were defendant s sweats. The prosecution argues that the victim s statement to her mother was not hearsay because it was not introduced to prove that the victim was wearing defendant s sweats, but rather, to show that the victim made such a statement. We are unconvinced that the testimony was introduced for a reason other than to prove the truth of the matter asserted. See MRE 801(c). A reasonable juror could have concluded that there was something improper about the relationship between defendant and the victim if the victim was wearing defendant s clothing. At a minimum, the fact that the victim was wearing his clothing one week after their first sexual encounter allegedly occurred makes the existence of an affair more likely than it would be otherwise. The victim s statement was improperly admitted. Finally, the prosecution concedes on appeal that the following statements constituted inadmissible hearsay: the victim s sister s testimony that the victim told her that she was at defendant s house on the night of the gift exchange, and the victim s sister s testimony that -4-

5 defendant s mother stated to defendant, you really messed up this time, in regard to the affair. We agree that these hearsay statements were admitted in error. Defense counsel raised a late objection to the first statement, and the trial court failed to rule on the objection. Defense counsel also objected to the second statement. The trial court sustained the objection, but failed to instruct the jury to disregard the testimony or explain to the jury the meaning of the term sustained. B. EVIDENCE OF PRIOR CRIMINAL RECORD In granting defendant a new trial, the trial court also held that the evidence concerning his prior criminal record was improperly admitted. We disagree with the trial court. Evidence regarding defendant s prior record was repeatedly admitted at trial. On two separate occasions, the victim testified that defendant told her that they needed to keep their sexual relationship a secret because if he were convicted of a criminal offense because of their relationship, it would be his third felony conviction and he would go to jail for life. The victim s sister testified that defendant had prior felony convictions, and he told her that if this [word of the affair] ever got out he would go to jail. Defense counsel did not object to any of the testimony. Later, defense counsel elicited testimony from defendant that he had a prior felony record for drug possession. The prosecution s argument that the evidence was admissible as res gestae evidence is without merit. Under the res gestae principle, evidence of a prior bad act, such as a conviction, is admissible where that act is so blended or connected with the charged offense that proof of one incidentally involves the other or explains the circumstances of the charged offense. People v Robinson, 128 Mich App 338, 340; 340 NW2d 303 (1983). Defendant s prior convictions for drug possession are not so blended or connected with the charged CSC offenses that proof of one incidentally involves the other. Prior convictions or not, anyone convicted of third-degree CSC is subject to incarceration. See MCL d(2). Therefore, anyone facing third-degree CSC charges would have a motive to silence the victim. Defendant s prior record does not rise to the level of res gestae evidence. Equally unpersuasive is the prosecution s argument that the evidence was admissible as threats to the victim. Defendant s remarks concerning his prior record do not constitute threats. Defendant merely expressed what he believed would happen to him if he were convicted of CSC, not that any harm would come to the victim. Additionally, we note that defendant s prior record was not admissible for impeachment purposes because his prior drug crimes do not contain an element of dishonesty, false statement, or theft as required by MRE 609(a)(1) and (2); nor was the evidence admissible to prove his character, as that is prohibited by MRE 404(b). We find, however, that the evidence regarding defendant s statements concerning his prior record was admissible under MRE 801(d)(2). After the trial in this case, this Court issued People v Schaw, Mich App ; NW2d ; 2010 WL (Docket No , issued April 20, 2010). In Schaw, this Court found that the defendant s audio-recorded statements to the victim that he was a felon and had spent time in prison were part of a concerted effort to manipulate the victim so that she would recant her earlier statements and change her -5-

6 anticipated trial testimony. 1 Id. at 4. This Court held that the defendant s statements were relevant because they showed consciousness of guilt, id., citing MRE 402 and People v Mock, 108 Mich App 384, 389; 310 NW2d 390 (1981), and were admissible as admissions under MRE 801(d)(2), id. The evidence was not more prejudicial than probative under MRE 403 because the statements were highly probative of consciousness of guilt and the jury was informed that the defendant s prior conviction was different in nature than the charges for which he was on trial. Id. at 4-5. Here, defendant informed the victim and the victim s sister about his prior record and the anticipated heightened criminal consequences in an attempt to silence them regarding the alleged sexual affair. Like the statements in Schaw, defendant s statements regarding his prior record showed consciousness of guilt and were admissible as admissions under MRE 801(d)(2). The jury was informed that defendant s prior record resulted from offenses different in nature than the charged offenses. Therefore, we must conclude that the evidence was properly admitted. C. INEFFECTIVE ASSISTANCE OF COUNSEL The trial court concluded, as do we, that defense counsel was ineffective for failing to object to the repeated, erroneous admission of hearsay evidence at trial. A claim of ineffective assistance of counsel should be raised by a motion for new trial or an evidentiary hearing pursuant to People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002). Defendant raised his ineffective assistance claim in his motion for a new trial, but because no evidentiary hearing was held on the claim, our review is limited to mistakes apparent on the record. A trial court s findings of fact, if any, are reviewed for clear error, and the ultimate constitutional issue arising from an ineffective assistance claim is reviewed de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). To establish ineffective assistance of counsel, defendant must show that his trial counsel s performance was so deficient that it fell below an objective standard of reasonableness and denied him a fair trial. People v Henry, 239 Mich App 140, ; 607 NW2d 767 (1999). Furthermore, defendant must show that, but for counsel s error, it is likely that the proceeding s outcome would have been different. Id. at 146. Effective assistance of counsel is presumed; therefore, defendant must overcome the presumption that counsel s performance constituted sound trial strategy. Id. As indicated, hearsay evidence was repeatedly and erroneously admitted at trial. Defense counsel objected only twice. On one occasion, defense counsel raised a late objection and the trial court made no ruling on the objection. On the second occasion, defense counsel timely objected and the trial court sustained the objection, but the court failed to explain to the jury the meaning of the term sustained and counsel did not request such an explanation. Although this 1 At one point, the defendant told the victim, [l]ook... I don t need to go to prison for this because if I go they re going to keep me there for a long time because I m already a convicted felon. I ve already been there once. Id. at 4, n

7 Court will not second-guess counsel regarding matters of trial strategy, People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999), we agree with defendant and the trial court that there was no tactical reason that would justify defense counsel s failure to object to the remainder of the improper evidence. The evidence only served to undermine defendant s credibility and to bolster the victim s credibility. For the reasons discussed below, defense counsel s failure to object coupled with the other errors at trial served to deny defendant a fair trial. D. NEWLY DISCOVERED EVIDENCE In support of his motion for a new trial, defendant presented an affidavit from Sopo, in which she stated that she is a recovering alcoholic who was drinking heavily during the events to which she testified, that at the time of her testimony, she could not recall many details of the events, and that she felt pressured to testify as she did because the prosecutor threatened to have her children removed if she did not provide testimony consistent with the prosecution s case. The trial court concluded that the affidavit, while troubling in certain respects, is not alone, enough to warrant a new trial. The people are correct that the affidavit is not a classic recantation, rather it is a rant. She [Sopo] artfully stops short of stating she lied at trial. The court further concluded that although the prosecutorial misconduct alleged by Sopo was insufficient, in and of itself, to warrant a new trial, and that Sopo s affidavit could not be viewed as a recantation meriting review, her interactions with the police and people are legitimate areas of cross exam inquiry which may shed light on her credibility. We agree with the trial court s analysis. For a new trial to be granted on the basis of newly discovered evidence, a defendant must show that: (1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial. Cress, 468 Mich at 692 (quotation marks and citations omitted). On appeal, the prosecution contests only the fourth prong of the newly discovered evidence test, arguing that defendant cannot establish Sopo s affidavit makes a different result probable on retrial. See id. We agree with the prosecution and the trial court that because Sopo did not explicitly state that her trial testimony was untrue, her affidavit cannot be considered a recantation subject to review as such. Nonetheless, the affidavit does create legitimate questions regarding Sopo s credibility as a witness and the reliability of her trial testimony. Sopo s memory of the details of the events to which she testified and her conversations with the prosecution before trial are certainly areas to be explored on cross-examination, and may shed light on her credibility. E. CUMULATIVE EFFECT In granting defendant a new trial, the trial court held that the cumulative effect of the repeated, erroneous admission of hearsay evidence and evidence regarding defendant s prior criminal record, defense counsel s failure to object to the evidence, and Sopo s affidavit warranted a new trial under MCR We find that the admission of the hearsay evidence and defense counsel s failure to object to its admission warranted a new trial. -7-

8 As indicated, reversal is only warranted on the basis of preserved, evidentiary error if after reviewing the entire record, it affirmatively appears that it is more probable than not that the error was outcome determinative. Lukity, 460 Mich at 488, When the error is unpreserved, [r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant s innocence. Carines, 460 Mich at 763. For a new trial to be granted on the basis of newly discovered evidence, a defendant must show that... the new evidence makes a different result probable on retrial. Cress, 468 Mich at 692. In addition, the cumulative effect of several minor errors may warrant reversal where the individual errors would not. People v Ackerman, 257 Mich App 434, 454; 669 NW2d 818 (2003). [I]n order to reverse on the basis of cumulative error, the effect of the errors must [be] seriously prejudicial in order to warrant a finding that defendant was denied a fair trial. Id. (quotation marks and citation omitted). This case was, in essence, a credibility contest between the victim and defendant. There were no eye-witnesses to the alleged offenses, nor was there any physical evidence establishing that the offenses actually occurred. Both the victim and defendant testified at trial, and their testimonies were diametrically opposed. In regard to the alleged encounter during homecoming weekend, the victim testified that she and defendant engaged in vaginal intercourse in an upstairs bedroom of defendant s house. In regard to the second alleged encounter, the victim testified that she was participating in a gift exchange at her house when defendant telephoned and requested that she come to his house. The victim went to defendant s house and found him lying in bed in his basement bedroom. Defendant performed cunnilingus on the victim, and she performed fellatio. Defendant, on the other hand, testified that on homecoming weekend, the victim came over to his house, explained that she was having problems at home, and asked defendant whether he and his fiancé would adopt her. They had no sexual contact. According to defendant, the victim never came to his house on the day of the alleged second encounter. Defendant s daughter, Christine Sturgill, testified that she was at defendant s house the entire day and never saw the victim, and that she would have seen and heard the victim had she entered the house and gone into the basement. The hearsay evidence admitted at trial, including that the victim told several people the rumors of a sexual affair between herself and defendant were true, that Sopo reported the rumors to the victim s mother, that Sarah told the victim that defendant wanted her to go to his house during the gift exchange, that Sarah and Melissa were instructed not to discuss the affair, that the victim told her mother she was wearing defendant s sweats, that the victim told her sister she was at defendant s house the day of the gift exchange, and that defendant s mother told him, you really messed up this time, in regard to the affair, was erroneously admitted and only served to bolster the victim s credibility and her version of the events, and to damage defendant s credibility. Defense counsel objected only twice to the admission of this improper evidence, and the jury was not instructed to disregard any of the evidence, even the evidence counsel actually objected to. Defense counsel could not have had any strategic reason for allowing the evidence to be admitted. Additionally, Sopo s affidavit suggests that her trial testimony may have been less than credible an issue that could be further explored on cross-examination. As the trial court concluded, [i]t is likely the cumulative effect of these improprieties created an arena where defendant was convicted due to rumor, innuendo and unreliable -8-

9 testimony rather than factual reliable evidence, and that defendant was denied a fair trial. Given that this case comes down, in large part, to a credibility contest between the victim and defendant, and considering the amount of improper hearsay evidence admitted without objection and that served to bolster the victim s credibility and version of the events, we cannot conclude that the trial court abused its discretion in ordering a new trial. See Cress, 468 Mich at 691. Affirmed. /s/ Patrick M. Meter /s/ Jane M. Beckering -9-

10 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, UNPUBLISHED July 6, 2010 v No Wayne Circuit Court ROBERT WILLIAM DUNCAN, LC No Defendant-Appellee. Before: METER, P.J., and MURRAY and BECKERING, JJ. MURRAY, J. (dissenting). Delayed leave to appeal was granted in this case for us to decide whether the trial court abused its discretion in granting defendant a new trial. Although we are dealing with both preserved and unpreserved non-constitutional evidentiary error, the ultimate issue is whether any errors were outcome determinative. See People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003) and People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). After review of the trial record I cannot conclude that any error (if any) in the admission of the hearsay evidence and references to defendant s criminal past was more probably than not outcome determinative. I would therefore reverse. The critical issue is whether the improper hearsay admissions and references to defendant s felony record 1 warranted the granting of a new trial. A trial court may order a new trial on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice. MCR 6.431(B). In order for defendant to prevail under either the appellate reversal prong or the miscarriage of justice prong, he must show that it is more probable than not that the evidentiary error (whether it was preserved or unpreserved) was outcome determinative. People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003); Lukity, 460 Mich at However, the Legislature has also commanded that no verdict shall be overturned on the basis of the improper admission of evidence unless, after 1 As seen in all three opinions issued in this case, there was no error in the admission of testimony regarding defendant s prior felonies. -1-

11 examining the entire case, it affirmatively appears that the errors resulted in a miscarriage of justice. MCL The Lukity Court explained how this is to be determined: The object of this inquiry is to determine if it affirmatively appears that the error asserted undermine[s] the reliability of the verdict. [People v Mateo, 453 Mich 203, 211; 551 NW2d 891 (1996).] In other words, the effect of the error is evaluated by assessing it in the context of the untainted evidence to determine whether it is more probable than not that a different outcome would have resulted without the error. Therefore, the bottom line is that 26 presumes that a preserved, nonconstitutional error is not a ground for reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative. [Lukity, 460 Mich at (footnote omitted).] In granting a new trial the trial court relied upon two errors that it found constituted ineffective assistance of counsel, and then concluded that the cumulative effect of those errors warranted a new trial. 2 Specifically, the court found that defense counsel was constitutionally ineffective in failing to object to several general references that defendant had prior felonies. The court concluded that the evidence was inadmissible and damaged defendant in this credibility contest. The court also found that defense counsel should have objected to several instances of hearsay evidence. Those failures in combination, the trial court concluded, resulted in a trial that call[ed] into question the integrity and public reputation of this Court s judicial proceedings. In People v Petri, 279 Mich App 407, ; 760 NW2d 882 (2008), we set forth the stringent standard 3 for deciding ineffective assistance of counsel arguments: Effective assistance of counsel is presumed and defendant bears the burden of proving otherwise. [People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002).] To succeed on a claim of ineffective assistance of counsel, the defendant must show that, but for an error by counsel, the result of the 2 The majority asserts that the trial court also based its decision on the discovery of new evidence, but both it and the trial court held that the information in the Sobo affidavit was not newly discovered. Additionally, the trial court made no findings about Sobo s credibility during trial, and only concluded that her affidavit made her testimony potentially questionable. 3 In deciding this issue, the trial court cited to People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), People v Breakfield, 63 Mich App 692; 234 NW2d 758 (1975), and People v Lotter, 103 Mich App 386; 302 NW2d 879 (1981). However, the Garcia test was rendered obsolete back in 1994, see People v Carbin, 463 Mich 590, 597 n 6; 623 NW2d 884 (2001), and since both Lotter and Breakfield relied on either Garcia or the now-outdated cases that Garcia relied upon, the tests they utilized are likewise obsolete. People v Kevorkian, 248 Mich App 373, 427 n 129, ; 639 NW2d 291 (2001). -2-

12 proceedings would have been different, and that the proceedings were fundamentally unfair or unreliable. People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). The defendant bears a heavy burden on these points. People v Carbin, 463 Mich 590, 599; 623 NW2d 884 (2001). Defendant must overcome a strong presumption that counsel s performance constituted sound trial strategy. People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003). This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel s competence with the benefit of hindsight. People v Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001). And, because no evidentiary hearing was held on this issue, we are limited to mistakes apparent on the record. People v Rockey, 237 Mich App 74, 77; 601 NW2d 887 (1999). Although there is certainly no per se rule that an attorney engages in constitutionally deficient performance by failing to object to non-responsive hearsay, I will assume that trial counsel did not live up to the required standard in failing to object to the challenged hearsay testimony or the references to defendant s prior felonies. Nonetheless, the otherwise properly admitted evidence establishes that the errors of counsel did not result in the conviction of an actually innocent defendant, nor did it otherwise impugn the fairness and integrity of the proceedings. Here, in carving out the improper evidence that should have been excluded, the jury still would have heard detailed testimony from the victim that she and defendant had sex on two occasions. The victim s testimony regarding the details of the sexual encounters was clear and consistent, and as the trial court recognized, was sufficient for a jury to convict defendant of the charged offenses. 4 It is important to remember that a jury may convict based only on the uncorroborated evidence of a CSC victim, People v Lemmon, 456 Mich 625, 643 n 22; 576 NW2d 129 (1998); MCL h, and the jury was so instructed in this case. 5 Although defendant denied any 4 The elements of third-degree CSC that defendant was charged with violating are that the individual engages in sexual penetration with another person who is at least 13 years of age and under 16 years of age. MCL d(1)(a). Sexual penetration means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person s body or of any object into the genital or anal openings of another person s body.... MCL a(r). 5 The majority makes several references to the fact that the trial court did not instruct the jury on what it means to sustain an objection. However, there are no Michigan criminal jury instructions covering this issue, nor is there any case law requiring such an instruction. In light of this, defense counsel could not be faulted, nor could the trial be tainted, by not providing an instruction that does not exist and which is not required. However, during the testimony of the victim s sister, Courtney, and in response to one of ten hearsay objections made during her testimony alone, the trial court indicated to the witness (and the jury) that there can be no (continued ) -3-

13 sexual contact with the victim, determinations of credibility rest with the trier of fact, not this Court. People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). Not only was there sufficient evidence about the actual crime, but evidence from other witnesses existed to support the victim s testimony about what occurred before, during and after the crimes. Additionally, there was evidence (to which no objection was lodged in the trial court nor in our Court) showing defendant expressing a sexual interest in the victim. In other words, without the tainted evidence the jury was still presented with a complete story, with an opposite version (at least as to whether the crimes occurred) from defendant. There is no doubt that some of the inadmissible evidence supported the victim s credibility in that it buttressed what she said happened, or conversely could have damaged defendant. However, because of the nature and circumstances of its admission, the evidence did not reach a level such that a new trial is should be granted. For example, several hearsay statements made by the victim 6 were simply a repetition of what she had already testified to in open court. People v Meeboer, 181 Mich App 365; ; 449 NW2d 124 (1989) aff d 439 Mich 310 (1992); People v Anderson, 79 Mich App 174, 176; 261 NW2d 55 (1977). Additionally, Courtney s testimony that the victim informed her at the gift exchange party that she had just returned from defendant s house was duplicative of the victim s admissible testimony that she told her friends at that party that she was leaving and going to defendant s house, MRE 803(3), as well as that of Courtney who also attended the party and saw the victim leave and come back, Anderson, 79 Mich App at 176. Finally, although Courtney testified that defendant s mother initially stated to defendant at a meeting, you really messed up this time, Courtney almost immediately testified that defendant s mother did not know what was going on and appeared calm before they sat down to discuss the issue. More importantly, an objection to this testimony was sustained. 7 See n 3, supra. As noted by the majority, the general references to defendant s prior felonies were not admitted in error. See People v Schaw, Mich App ; NW2d (Docket No , issued April 20, 2010). However, even if those references did erroneously get before the jury, they were minimized by defense counsel s questioning of defendant, where he indicated that the ( continued) testimony about what other people said unless the court specifically allowed it. 6 Specifically, the victim testified that (1) she told Melissa Duncan (defendant s daughter) that the rumors of an affair between the victim and defendant were true and (2) that she called defendant and told him she told Melissa that the rumor was true. A third statement at issue was Melissa s testimony that the victim informed her that the rumor was true. Thus, three of the eight hearsay statements found to be inadmissible related to the same conversation topic, i.e., the victim confirming to Melissa that the rumored affair was true. 7 The majority states that defense counsel only objected twice, but really he only objected to two of the contested hearsay statements. It is important to recognize that this is not a case where defense counsel sat by silently as the trial progressed. Indeed, as an example of defense counsel s performance, he objected ten times on hearsay grounds during Courtney s testimony alone, nine of which were sustained. -4-

14 convictions were for drug offenses. Thus, even if the jurors were improperly aware that defendant had prior convictions, defense counsel made sure they knew that the prior convictions were not related to any sexually criminal behavior. In the final analysis, the overall impact of this evidence did not, in my view, render this case unfair 8 or result in outcome determinative error. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). The contested evidence that was admitted without objection simply did not impugn the entire trial such that it would call into question the integrity of the judicial process. There was more than ample untainted evidence supporting defendant s convictions. In reaching this conclusion, I recognize the difficulty faced by an appellate court in deciding whether evidentiary errors actually constitute outcome determinative error, as we are reviewing a cold record. Nevertheless, it is our appellate function to make this determination. And, with all due respect to my colleagues, I am convinced that the trial court abused its discretion in granting a new trial. 9 /s/ Christopher M. Murray 8 As the trial court correctly noted, a defendant is entitled to a fair trial, not a perfect one. People v Miller, 482 Mich 540, ; 759 NW2d 850 (2008). Of course, drawing the line as to what is a fair trial can be a difficult task. 9 I agree with the trial court and majority that the Sobo affidavit did not constitute new evidence, as it did not recant her prior testimony and the basis of the affidavit was certainly discoverable before trial. Cress, 468 Mich at