Opinion
357777
03-23-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOHN ROBERT SMITH, Defendant-Appellant.
UNPUBLISHED
Oakland Circuit Court LC No. 2016-257355-FC
Before: Gadola, P.J., and Borrello and Hood, JJ.
Per Curiam.
Defendant, John Robert Smith (Smith), appeals as of right his jury trial convictions for first-degree criminal sexual conduct (CSC-I), MCL 750.520b(2)(b) (sexual penetration of a person under 13 years old, by someone over 17 years old), and 10 counts of possession of child sexually abusive material (CSAM), MCL 750.145c(4)(a). The trial court sentenced Smith, as a fourth-offense habitual offender, MCL 769.12, to 30 to 75 years' imprisonment for his CSC-I conviction, and 10 to 15 years' imprisonment for each of the 10 counts of CSAM. The CSC-I sentence was to be served consecutively and preceding the CSAM sentences, which were concurrent with each other. The sentences on this case were consecutive to Smith's sentence for the parole violation arising out of the same conduct. We affirm.
We acknowledge (as does the prosecution) that, after sentencing, Smith timely requested an attorney on May 11, 2017. The request was filed with the Oakland County Clerk on May 12, 2017. Smith was not, however, appointed an attorney until July 9, 2021.
The prosecution also charged Smith with second-degree criminal sexual conduct (CSC-II), MCL 750.520c(2)(b). The jury found Smith guilty of CSC-I, and the lesser cognate charge, CSC-II, was dismissed.
I. BACKGROUND
This case arises out of Smith's sexual assault of the then-nine-year-old female victim in early November 2015. Smith was friends with the victim's mother and, over the span of several years, he befriended the victim's grandmother. On occasion, the grandmother let Smith temporarily stay in her home to help her mother, the victim's great-grandmother. At the time of the sexual assault, Smith was staying with the victim, her mother, her four siblings, and her great-grandmother at the home of the victim's grandmother.
The night of the assault, November 5, 2015, the victim woke up to Smith in her bedroom feeling her thigh and buttocks over her clothes. Smith then put his hand inside the victim's underwear and digitally penetrated her vagina. The victim squeezed her legs together and moved away, trying to get Smith to stop. Smith tried to put his hand back inside the victim's pajama pants, but the victim again squeezed her legs together and rolled over. Smith then left the victim's room and the victim cried herself to sleep.
The next morning, on November 6, 2015, the victim disclosed the abuse to her family. When the victim came downstairs, the victim's great-grandmother, who died by the time of Smith's trial, asked her "what was wrong" because she looked distraught. The victim told her great-grandmother that Smith had touched her "private part." The victim's grandmother, who was sleeping on the couch in the room at the time, woke up in the middle of the disclosure. The grandmother testified that after the victim disclosed the abuse to her and the great-grandmother, the grandmother took the victim for a walk to further discuss the victim's disclosure. Upon returning to the house, she woke up the victim's mother, who was sleeping after working a night shift, and told her what the victim said. The mother took the victim to the home of the victim's aunt. At the aunt's house, the victim told her aunt what happened, after which the aunt called the police.
On the morning of November 9, 2015, Smith reported to his parole agent, who arrested him for a parole violation for a failure to report for parole. Oakland County Sheriff's Office (OCSO) Detective Eric Tremonti took Smith from the parole office to the police station to be interviewed about the victim's allegations.
Law enforcement interrogated Smith four times over November 9, 2015, and November 10, 2015. The first interrogation was on November 9, 2015, at approximately 11:00 a.m. Before the interrogation, Detective Tremonti advised Smith of his rights under Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966).
The second interrogation was at approximately 3:15 p.m. that same day, with Tremonti and OCSO Detective Michael Miller. Before the interrogation, Tremonti asked Smith if he remembered his rights, and Smith indicated he did. This, the second interview, was after the victim met with a forensic interviewer. During the first and second interviews, Smith denied the allegations, expressed confusion about how the victim came up with them, and opined that she was manipulated. That evening, OCSO personnel booked Smith in jail.
The third interrogation was a polygraph examination and post-polygraph interrogation with OCSO Sergeant and polygraphist Joe Brian on November 10, 2015 at 9:00 a.m. Before the third interview, Sergeant Brian gave Smith an advice-of-rights form listing his Miranda rights. Smith initialed and signed the form, except the portion of the form providing language about his right to an attorney. While viewing the advice-of-rights, Smith asked if he should have a lawyer present, and Sergeant Brian indicated it was up to Smith. Smith then indicated he wanted to continue with the polygraph. Although Smith did not initial every item on the advice-of-rights form, the record indicates that Smith was advised of his rights and understood them. Sergeant Brian testified that Smith, during his third interview, admitted to digitally penetrating the victim's vagina.
After the post-polygraph interrogation, Sergeant Brian escorted Smith across the hall to a different room, where Detectives Tremonti and Miller interrogated Smith a fourth and final time at approximately 11:00 a.m. that same day. The fourth interrogation began immediately after the post-polygraph interview, and two hours after the advice of rights preceding the polygraph. During the fourth interview, during which Smith was not re-Mirandized, Smith admitted to touching the victim's vagina but denied penetration. Smith's first, second, and fourth interrogations were recorded; the third interrogation, the polygraph and post-polygraph interrogation with Sergeant Brian, was not.
The victim's grandmother informed the detectives of two concerning statements Smith made sometime before the abuse at issue. First, the grandmother recalled that, after Smith's friend overdosed and died, Smith got drunk and talked about liking "young boys and girls." Second, the victim's grandmother recalled a conversation she overheard Smith having on the telephone discussing setting up a child pornography website. After the police arrested Smith, the grandmother took Smith's laptop, hid it, and subsequently gave the laptop to the detectives.
Smith gave the detectives permission to search his laptop and cellular telephone, and provided them with passwords. Upon searching the desktop of Smith's laptop, Detective Miller found an image of CSAM. He then obtained a search warrant for the laptop and sent it for forensic analysis. OCSO Computer Crimes Unit Detective Jonathan Elges testified about his forensic investigation of Smith's laptop and cellular telephone. Elges found bookmarks to child pornography websites. He also found several images of CSAM saved on the laptop. There was no evidence that anyone but Smith had used the laptop.
The prosecution initially charged Smith with one count of CSC-I, one count of CSC-II, and one count of possession of CSAM. Following a preliminary examination, the district court bound over all three charges to the circuit court. Several months after the preliminary examination, Detective Elges completed his forensic investigation of Smith's laptop and he authored a report on his findings. This prompted the prosecution to file a second amended information adding nine additional counts of possession of CSAM. Smith requested that the circuit court remand to the district court for a preliminary examination on the additional CSAM counts, which the circuit court granted. On remand, the district court found sufficient facts to bind the matter over to the circuit court on the additional nine counts of possession of CSAM.
Before trial, Smith moved to suppress his statements during his interviews, and requested a hearing under People v Walker, 374 Mich. 331; 132 N.W.2d 87 (1965), arguing that the Miranda warnings he received were stale by the fourth interview. He also argued, alternatively, that his Miranda waiver was involuntary because, at the time, he was sleep deprived and was under the influence of Norco he had taken the day before turning himself in to his parole agent. Miller, Tremonti, and Brian testified that Smith's demeanor during the interviews was coherent and he showed no difficulty understanding or answering questions. Smith also testified that, while he was given the opportunity to sleep while in lockup, he did not.
The trial court denied Smith's motion, finding that Smith made his statements voluntarily, noting his age, education, "extensive experience with the police," and the fact that he never indicated he did not understand his rights. The court found that Smith was coherent during the recorded interviews and that the polygraph did not show signs that he was under the influence. Finally, the court concluded that Smith was adequately advised of his Miranda rights, relying on the full reading of his Miranda rights before the first interview, the reminder of those rights before the second interview, and the advice-of-rights form which he read and signed before the polygraph.
At trial, the victim described the incident, affirmatively testifying that Smith digitally penetrated her vagina. The victim's great-grandmother died before trial, but the victim's grandmother testified about the victim's disclosure. The victim's grandmother asserted, however, that she did not hear the full story. She also noted that the victim did not tell her Smith digitally penetrated her.
The victim's aunt also testified about the victim's statements, to which Smith objected. Smith argued that the victim's statements to her aunt were not spontaneous because her aunt questioned her about the incident, and, regardless, her aunt was not the first person she told about the assault. Smith, therefore, argued that the testimony of the victim's aunt was inadmissible under MRE 803A, or any other hearsay exception. The trial court determined "it could go either way, but given the fact that the child is under ten pursuant to the rule and given the foundational responses from [the victim's aunt], I'm going to allow it."
The jury found Smith guilty of CSC-I and all 10 counts of possession of CSAM. The trial court sentenced Smith. This appeal followed.
II. JOINDER AND INEFFECTIVE ASSISTANCE OF COUNSEL
Smith argues he was denied a fair trial by the improper joinder of the CSAM charges to his CSC-I trial, and that he received ineffective assistance of counsel when his attorney failed to object or move to sever the charges. We disagree.
"Whether joinder is appropriate is a mixed question of fact and law." People v Gaines, 306 Mich.App. 289, 304; 856 N.W.2d 222 (2014). We review a trial court's factual findings, such as those relevant to determining if offenses are "related," for clear error, id., and we review de novo the interpretation of a statute or court rule, which is a question of law, People v Kimble, 470 Mich. 305, 308-309; 684 N.W.2d 669 (2004).
Smith did not, however, raise the issue of joinder or severance during the proceedings below, so it is unpreserved. Unpreserved claims are reviewed for plain error affecting a defendant's substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). To avoid forfeiture under the plain-error standard, the defendant must show that (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error prejudiced substantial rights, i.e., the error affected the outcome of the proceedings. Id. at 763. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Carines, 460 Mich. at 763-764 (quotation marks, citation, and brackets omitted).
Smith also argues that the failure to raise the issue of joinder or severance was because he received the ineffective assistance of counsel. Smith did not, however, move for a new trial or a hearing pursuant to People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973), see People v Lopez, 305 Mich.App. 686, 693; 854 N.W.2d 205 (2014), nor did he move in this Court for remand for a Ginther hearing, see People v Abcumby-Blair, 335 Mich.App. 210, 227; 966 N.W.2d 437 (2020). Smith's ineffective assistance of counsel claim is, therefore, unpreserved, and our review is "limited to mistakes apparent on the appellate record." People v Foster, 319 Mich.App. 365, 390; 901 N.W.2d 127 (2017) (quotation marks, citations, and footnote omitted).
A. JOINDER
First, Smith argues that the CSC-I and CSAM charges against him were improperly joined, denying him a fair trial. We disagree. The prosecution properly joined the charges in the charging document, see MCR 6.120(A), and even if it had not, the CSC-I and CSAM charges were related under MCR 6.120(B). See People v Russo, 439 Mich. 584, 599-602; 487 N.W.2d 698 (1992) (discussing relationship between sexual abuse of children and child pornography).
MCR 6.120 provides the rules for joinder and severance of criminal charges. Under MCR 6.120(A), the prosecution may use a single bill of information to charge a single defendant with any two or more offenses. See MCR 6.120(A). MCR 6.120(B) also allows joinder of related offenses including those "that were not committed at the same time but nevertheless constitute a series of connected acts or acts constituting part of a single scheme or plan." People v Williams, 483 Mich. 226, 241; 769 N.W.2d 605 (2009) (quotation marks omitted). See also MCR 6.120(B)(1).
Here, even if the prosecution had not joined Smith's CSC-I and CSAM charges in a single information, the charges were properly joined because they were related. See MCR 6.120(B)(1)(b); Russo, 439 Mich. at 599-602. In Russo, our Supreme Court noted that child pornography plays a "central role in child molestation." Russo, 439 Mich. at 599 (discussing findings of study by United States Senate subcommittee of child pornography's role in the sexual abuse of children). Further, "the collection and retention of such items is a recurring pattern for some persons whose sexual gratification is obtained through and with children." Id. at 600.
Beyond the general principle that crimes involving sex acts against minors and crimes involving depictions of sex acts against minors are related, here, the CSC-I and CSAM charges specifically involved a "series of connected acts." See MCR 6.120(B)(1)(b). The victim reported that Smith touched her buttocks and digitally penetrated her vagina. After the victim reported these allegations to the police, investigators discovered child pornography on Smith's laptop. Smith possessed the laptop in the same house where the sex abuse occurred. The search of Smith's laptop occurred only as part of a follow-up investigation related to the victim's report of sexual abuse. Thus, Smith's sexual abuse of the victim led to the discovery of his possession of child sexually abusive material, which plays a "central role" in the abuse of children. Russo, 439 Mich. at 599. Accordingly, the offenses of CSC-I and CSAM are intrinsically related and the joinder of the charges did not deprive Smith of a fair trial. Because the charges against Smith were related based on a series of connected acts, there was no error in allowing the joinder of the charges under MCR 6.120(B)(1)(b).
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Smith also argues that defense counsel failed to provide effective assistance when he did not object to the joinder of the charges against Smith, and did not move to sever the charges. We disagree.
Under the United States and Michigan Constitutions, criminal defendants have the right to the assistance of counsel. U.S. Const, Am VI; Const 1963, art 1, § 20. See Foster, 319 Mich.App. at 390. "The right to counsel plays a crucial role in the Sixth Amendment's guarantee of a fair trial by ensuring that the defendant has access to the 'skill and knowledge' necessary to respond to the charges against him or her." Foster, 319 Mich.App. at 390-391, citing Strickland v Washington, 466 U.S. 668, 685; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). "The right to counsel also encompasses the right to the effective assistance of counsel." Foster, 319 Mich.App. at 391 (quotation marks and citation omitted).
Under Strickland, reversal of a conviction is required when counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment and the errors prejudiced the defendant. Accordingly, a defendant requesting reversal of an otherwise valid conviction bears the burden of proving that (1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel's unprofessional errors, the outcome of the proceedings would have been different. [Foster, 319 Mich.App. at 391 (cleaned up).]
"To prove the first prong, the defendant must overcome a strong presumption that counsel's assistance constituted sound trial strategy." Id. (quotation marks and bracket omitted). We do "not second-guess counsel on matters of trial strategy," nor do we "assess counsel's competence with the benefit of hindsight." Id. (quotation marks and citation omitted) "[C]ounsel is not ineffective for failing to make a futile motion." Id.
Because Smith's CSC-I and CSAM charges were appropriately joined, Smith's ineffective-assistance-of-counsel claim on that issue necessarily fails. See Foster, 319 Mich.App. at 391 ("[C]ounsel is not ineffective for failing to make a futile motion."). Smith's claim that defense counsel was ineffective for failing to seek severance of the charges fails for the same reason: any motion seeking to sever the charges would have been futile. The portion of the court rule regarding severance, MCR 6.120(C), incorporates the definition of "related" offenses as defined in MCR 6.120(B)(1) and analyzed earlier. Counsel was, therefore, not ineffective for failing to move to sever the charges when such a motion would have been futile. See Foster, 319 Mich.App. at 391.
III. MIRANDA WARNINGS
Smith also argues the trial court erred by failing to suppress his statements from his final recorded interview, because his Miranda warnings were stale by the time of his final interview and his waiver was involuntary. We disagree.
"We review a trial court's factual findings in a ruling on a motion to suppress for clear error. To the extent that a trial court's ruling on a motion to suppress involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo." People v Elliott, 494 Mich. 292, 300-301; 833 N.W.2d 284 (2013).
Although engaging in a de novo review of the entire record, this Court does not disturb a trial court's factual findings regarding a knowing and intelligent waiver of Miranda rights unless that ruling is found to be clearly erroneous. Credibility is crucial in determining a defendant's level of comprehension, and the trial judge is in the best position to make this assessment. [People v Daoud, 462 Mich. 621, 629; 614 N.W.2d 152 (2000) (cleaned up).]Miranda held that "the Fifth Amendment's prohibition against compelled self-incrimination requires that the accused be given a series of warnings before being subjected to 'custodial interrogation.'" Elliott, 494 Mich. at 301 (footnote and citations omitted). If the custodial interrogation is not preceded by an adequate warning, the prosecution may not introduce otherwise voluntary statements made during the custodial interrogation at the accused's criminal trial. Id.
"The Miranda rule is not in itself a constitutional right, but rather is only a procedural safeguard designed to protect an individual's Fifth Amendment privilege against self-incrimination." People v Godboldo, 158 Mich.App. 603, 605; 405 N.W.2d 114 (1986). "Thus, the only question is whether, viewing the totality of the circumstances, the defendant's statement was voluntary." Id. (quotation marks and citation omitted); see also People v Ray, 431 Mich. 260, 276-277; 430 N.W.2d 626 (1988). "[T]he failure to reread a defendant's Miranda rights prior to each interrogation does not render his subsequent statements inadmissible as evidence against him. Rather, a factual question is raised as to whether the statements were voluntary." Godboldo, 158 Mich.App. at 607. This extends to a failure to rewarn a defendant prior to a post-polygraph interrogation. Ray, 431 Mich. at 276-278.
Although Godboldo is not strictly binding pursuant to MCR 7.215(J)(1) because it was issued before November 1, 1990, as a published opinion, it nevertheless "has precedential effect under the rule of stare decisis" pursuant to MCR 7.215(C)(2). This also applies to other cases decided before November 1, 1990, referenced later in this opinion.
In Ray, our Supreme Court held that the admissibility of statements made during a post-polygraph interview, in which the defendant was not rewarned of his constitutional rights, was to be determined by looking at the totality of the circumstances to evaluate whether the waiver was knowing and voluntary. Ray, 431 Mich. at 276-278. There, the law enforcement polygraphist advised the defendant of his Miranda rights before his polygraph, but did not rewarn him before the post-polygraph interrogation that immediately followed the polygraph, albeit two hours after the initial warning. Id. at 276. Relying on Wyrick v Fields, 459 U.S. 42, 47; 103 S.Ct. 394; 74 L.Ed.2d 214 (1982), our Supreme Court concluded that the failure to rewarn prior to the post-polygraph interview did not operate as an automatic bar on admissibility, rather, the trial court must look to the totality of circumstances to determine if the waiver was voluntary. Ray, 431 Mich. at 277-278. See also Wyrick, 459 U.S. at 47.
The facts of this case are similar to those in Ray. Here, however, Smith received three warnings prior to the final interrogation. Detective Tremonti read Smith his full Miranda rights at the beginning of his first interrogation. Tremonti asked Smith if he remembered his Miranda rights at the beginning of his second interrogation, and Smith acknowledged that he did. And before his third interrogation, the polygraph, Sergeant Brian gave Smith an advice-of-rights form listing his rights. Smith represented that he read and understood his rights, and did not ask any questions when prompted by Sergeant Brian. The trial court, at Smith's Walker hearing, concluded that Smith's Miranda warnings were adequate, considering the totality of the circumstances. These circumstances included: (1) the three notices of his rights; (2) Smith's extensive history of interactions with law enforcement and the court system; (3) Smith's testimony at the Walker hearing that he generally understood his Miranda rights; and (4) Smith's failure to indicate at any point during his interviews that he did not understand his rights. It is also noteworthy that Sergeant Brian again advised Smith of his Miranda rights the morning of the polygraph. This was approximately two hours before the final interview, which produced the most inculpatory statements. Although the fourth interrogation occurred in a different room and with different officers, the room was across the hall from where Smith received his last Miranda warning and with officers that had interviewed him and advised him of his rights previously. The final interview also immediately followed the polygraph and post-polygraph interview, where Smith was warned two hours earlier. Considering these factors, the trial court did not clearly err when it denied Smith's motion to suppress on the basis of inadequate or stale Miranda warnings.
Smith further argues that his waiver of his Miranda rights was involuntary because he was under the influence of Norco and deprived of sleep and food. We disagree. As stated, whether a defendant's custodial statement is knowing, intelligent, and voluntary must be determined under the totality of the circumstances. People v Tierney, 266 Mich.App. 687, 707; 703 N.W.2d 204 (2005). "Whether a statement was voluntary is determined by examining police conduct, but the determination whether it was made knowingly and intelligently depends, in part, on the defendant's capacity." Id. (citation omitted). Intoxication from alcohol or other drugs can affect the validity of a waiver of Fifth Amendment rights, but it is not dispositive. Id. at 707; People v Leighty, 161 Mich.App. 565, 571; 411 N.W. 2d 778 (1987). Instead it is one of at least 11 factors that the trial court should consider. See Tierney, 266 Mich.App. at 708-709.
In determining voluntariness, the court should consider all the circumstances, including: "[1] the age of the accused; [2] his lack of education or his intelligence level; [3] the extent of his previous experience with the police; [4] the repeated and prolonged nature of the questioning; [5] the length of the detention of the accused before he gave the statement in question; [6] the lack of any advice to the accused of his constitutional rights; [7] whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; [8] whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; [9] whether the accused was deprived of food, sleep, or medical attention; [10] whether the accused was physically abused; and [11] whether the suspect was threatened with abuse." [Id. at 708, quoting People v Cipriano, 431 Mich. 315, 334; 429 N.W.2d 781 (1988)].
No single factor is determinative. Tierney, 266 Mich.App. at 708. "The ultimate test of admissibility is whether the totality of circumstances surrounding the making of the confession indicates that it was freely and voluntarily made." Cipriano, 431 Mich. at 334.
The totality of circumstances support the trial court's conclusion that Smith's waiver was voluntary. As the trial court noted, at no time during his interview process did Smith ever disclose his earlier Norco use. Although there is no evidence Detectives Tremonti or Miller asked Smith about his drug use, Sergeant Brian testified that Smith did not appear to be under the influence of any drugs at the time of the polygraph. Smith also acknowledged that he was provided with breakfast and the opportunity to sleep, but indicated he did not eat or sleep. There is, however, no indication that Smith disclosed his lack of sleep or failure to eat to his interviewers. Further, although Smith testified that he could not remember drinking any water at the police station, Detective Tremonti testified that individuals in lockup had access to a water fountain. And, at the start of the recording of Smith's first interview, Detective Tremonti is seen giving a cup of water to Smith. The recording shows Smith drinking from this cup.
Although Smith asserted that he could not remember much about any of his interviews, Tremonti, Miller, and Brian testified that Smith was coherent and responsive during his interviews, and did not appear to be under the influence of drugs or have any difficulties understanding his rights or the situation. Notably, when Detective Tremonti asked Smith whether he was familiar with his Miranda rights, Smith nodded his head affirmatively. The video evidence also supports the officers' assertions about Smith's demeanor. During the first two interviews, Smith is conversational, and does not display any difficulties comprehending or answering the detectives' questions. In the fourth interview, Smith is visibly distraught, but still does not appear to have any difficulty, besides reluctance, answering questions. Even assuming Smith was still under the influence of Norco by his fourth interview, despite testifying that he took the drugs two days earlier, his apparent cogency, prior experience with the police, age, and education supported the trial court's conclusion that the statements were voluntary. See Tierney, 266 Mich.App. at 708-709. Smith's assertion at the Walker hearing that he did not understand his rights does not change this.
IV. ADMISSIBILITY OF HEARSAY UNDER MRE 803A
Finally, Smith argues that the trial court violated his due-process rights by permitting the victim's aunt to testify about the victim's out-of-court statements. We agree that the trial court erred by admitting the aunt's statements under MRE 803A, but we conclude that the error was harmless.
"The decision whether to admit evidence is within the trial court's discretion, which will be reversed only where there is an abuse of discretion." People v Gursky, 486 Mich. 596, 606; 786 N.W.2d 579 (2010) (footnote and citation omitted). Decisions about "the admission of evidence frequently involve preliminary questions of law," however, including "whether a rule of evidence or statute precludes admitting of the evidence. This Court reviews questions of law de novo." Id. (footnote and citation omitted). "Accordingly, when such preliminary questions of law are at issue, it must be borne in mind that it is an abuse of discretion to admit evidence that is inadmissible as a matter of law." Id. (quotation marks, footnote, and citation omitted).
MRE 803A, commonly referred to as the "tender-years" exception, is a hearsay exception that provides:
A statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided:
(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without indication of manufacture;
(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; and
(4) the statement is introduced through the testimony of someone other than the declarant.
If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule.
A statement may not be admitted under this rule unless the proponent of the statement makes known to the adverse party the intent to offer the statement, and the particulars of the statement, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement.
This rule applies in criminal and delinquency proceedings only. [MRE 803A (emphasis added).]
Here, there is no dispute that the victim was under 10 years old at the time she made the statement, and Smith does not dispute whether the victim's statement to her aunt was timely made. See MRE 803A(1) and (3). It is also uncontested that the statement was offered by someone other than the victim (her aunt). See MRE 803A(4). The critical questions are: (1) whether the victim's statement to her aunt was spontaneous, MRE 803A(2); and (2) whether the victim's statement was inadmissible because it was not the first corroborating statement she made to someone, MRE 803A. The statements do not satisfy either of these two requirements.
First, it is uncontested that the victim's statement to the aunt was not the first corroborating statement she made to someone. See MRE 803A. It was the third. The victim first disclosed the abuse to her great-grandmother, and then her grandmother, after the grandmother woke up. The great-grandmother died before trial, but the grandmother testified. Although the victim's statement to the grandmother contained far less detail than the statement to the aunt, both covered the subject of Smith's sexual assault. The statement to the aunt was inadmissible under MRE 803A.
Second, the statements to the aunt were not spontaneous. See People v Douglas, 496 Mich. 557, 576-577; 852 N.W.2d 587 (2014); Gursky, 486 Mich. at 615. When evaluating whether a statement was spontaneously made, a trial court must review "the totality of the circumstances surrounding the statement . . . ." Gursky, 486 Mich. at 615. "MRE 803A generally requires the declarant-victim to initiate the subject of sexual abuse." Id. at 613 (emphasis in original).
In Gursky, our Supreme Court identified three general categories of spontaneous statements that may be admissible under MRE 803A. See Gursky, 486 Mich. at 609-613. The first category of spontaneous statements, and those "most recognizable," "are those that arise out of pure impulse-that is, they are made by the declarant without prompt, plan, or questioning." Id. at 609-610. The second category includes "[s]tatements that are made as a result of a prompt, plan, or questioning by a third party, yet are in some manner atypical, unexpected, or do not logically follow from the prompt . . . ." Id. at 610-611, citing State v Aaron L, 272 Conn 798, 816; 865 A.2d 1135 (2005) (referencing the Connecticut Supreme Court's holding that the victim's statement about the father's sexual assault was spontaneous because it did not "logically relate to the event that preceded it-her mother admonishing the victim that it was not nice to grope her breast."). The third category "that poses closer questions involves cases where statements are given as a result of open-ended and nonleading questions that include answers or information outside the scope of the questions themselves." Gursky, 486 Mich. at 611. See also id. at 612-613, citing State v DG, 157 N.J. 112, 122, 126-127; 723 A.2d 588 (1999) (noting that many statements falling in this third category are not spontaneous and discussing the New Jersey Supreme Court's conclusion that there was not a probability that victim's statement was trustworthy as required by New Jersey's applicable rule, because the "situation under which [the child] disclosed the sexual abuse was very stressful" and the child did not "spontaneously divulge information concerning the assault" to the adult, but only in response to questioning). This third category requires the most scrutiny. Gursky, 486 Mich. at 612.
Relying on the legal principles underpinning these three categories, the Gursky Court outlined the parameters of the "spontaneity" requirement under MRE 803A, when the child's statement is in response to prompts from an adult. Gursky, 486 Mich. at 614-615. The Court held that questioning by an adult does not automatically render a statement "nonspontaneous" and therefore inadmissible under MRE 803A. Id.at 614. Rather, "[o]pen-ended, nonleading questions that do not specifically suggest sexual abuse do not pose a problem with eliciting potentially false claims of sexual abuse." Id. "But where the initial questioning focuses on possible sexual abuse, the resultant answers are not spontaneous because they do not arise without external cause." Id. at 614-615.
Here, although there were spontaneous elements in the victim's statement to her aunt, they were insufficient to establish the general kind of spontaneity MRE 803A requires for three reasons. See id. at 617. First, in response to the defense's objection, the trial court did not specifically address "spontaneity" or how the totality of the circumstances permitted admission of this statement under MRE 803A. See Gursky, 486 Mich. at 615-616 (requiring the trial court to consider spontaneity under MRE 803A(2) and conduct separate analysis necessary to determine whether the statement meets the other independent requirements of MRE 803A). Second, although the aunt denied prompting the victim or asking leading questions, she acknowledged asking the victim what happened and "what somebody did to her." Considering that these initial questions followed the victim's descriptions that morning of sexual assault to her grandmother and great-grandmother, and the great-grandmother, grandmother, and mother responding by driving the victim to the aunt's home, they are not the innocuous open-ended prompts contemplated by Gursky's third category. Rather, a commonsense view of the totality of circumstances indicates that the aunt's initial ostensibly nonleading questions were prompts for the victim to retell the story she previously told to the great-grandmother and grandmother. See Gursky, 486 Mich. at 611. This leads to the third problem: separate from the questions, the situation in which the victim made the statement to the aunt was inherently stressful and not conducive to spontaneity. See Gursky, 486 Mich. at 612-613. Simply put, in that environment, bookended by the first disclosures and the call to the police, she was expected to say something to the aunt. For these reasons, the trial court should not have admitted the statement under MRE 803A.
The statements were not alternatively admissible under the residual hearsay exception, MRE 803(24). "As time goes on, a child's perceptions become more and more influenced by the reactions of the adults with whom the child speaks. It is for that reason that the tender-years rule prefers a child's first statement over later statements." People v Katt, 468 Mich. 272, 296; 662 N.W.2d 12 (2003). In application, however, this preference is not absolute. Our Supreme Court has acknowledged that the preference applies when there are two different statements offered under MRE 803A, in which case "MRE 803(24)'s residual exception cannot be used to 'swallow' MRE 803A's categorical one . . . ." Douglas, 496 Mich. at 577. Our Supreme Court has, however, also recognized a distinction between this circumstance and a situation in which, "while the child had previously disclosed the abuse to his mother, that first corroborative statement was not available or presented at trial[,]" in which case, the statement could be admitted under MRE 803(24). Douglas, 496 Mich. at 577, citing Katt, 468 Mich. at 295-296. Describing the use of MRE 803(24) in Katt, our Supreme Court that it is essentially "a best evidence requirement, which is a high bar and will effectively limit use of the residual exception to exceptional circumstances." Douglas, 496 Mich. at 577, quoting Katt, 468 Mich. at 293.
As stated, the victim's aunt was the third person the victim told about the abuse, after the great-grandmother and grandmother. But the victim's great-grandmother died before trial. The victim's grandmother admitted that she did not hear the victim's entire story, because she was sleeping for some of it, so she did not provide a complete narrative of what the victim told her. Although both of the victim's prior statements detailed sexual assault, the later statement to the aunt contained more detail, including about the penetrative sex acts.
Considering the plain language of MRE 803A, and its stated purpose, see Katt, 468 Mich. at 296, the trial testimony of the victim's grandmother necessarily precludes the testimony of the victim's aunt. Excluding the great-grandmother, the victim told her grandmother about the assault before speaking with the aunt, and the grandmother testified at trial about what the victim told her. Although the Katt Court allowed admission of a secondary statement under MRE 803A, this was because the first statement was not admitted. See Katt, 468 Mich. at 296. Because the victim's grandmother testified, Katt's reasoning for admitting a secondary statement under MRE 803(24) is inapplicable. Accordingly, the trial court erred in admitting the testimony of the victim's aunt.
In short, the trial court erroneously admitted the statements under MRE 803A. They were likewise inadmissible under the residual exception in MRE 803(24).
This error was, however, harmless. "A preserved error in the admission of evidence does not warrant 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." People v Burns, 494 Mich. 104, 110; 832 N.W.2d 738 (2013) (quotation marks, footnote, and citation omitted). "[T]he appropriate inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence." People v Lukity, 460 Mich. 484, 495; 596 N.W.2d 607 (1999) (quotation marks and citation omitted). The burden is on the defendant to prove the error "resulted in a miscarriage of justice." Id. "[E]ven where evidence is hearsay its admission is harmless error where the same facts are shown by other competent evidence." People v Lewis, 168 Mich.App. 255, 268; 423 N.W.2d 637 (1988).
Separate from the aunt's testimony regarding the victim's statement, there was overwhelming evidence of Smith's guilt. First, the same facts testified to by the victim's aunt were shown by other competent evidence, namely the victim's testimony. See Lewis, 168 Mich.App. at 268. At trial, the victim unequivocally testified that Smith digitally penetrated her vagina. Even absent the testimony of the victim's aunt regarding the victim's statements, there was overwhelming evidence of Smith's guilt supporting the jury's verdict. See People v Mateo, 453 Mich. 203, 220-221; 551 N.W.2d 891 (1996) ("If the evidence is overwhelming, the error is harmless") (citations omitted). This included Smith's own inculpatory statements. Smith has failed to establish that the testimony of the victim's aunt was outcome determinative. Accordingly, the trial court's error in admitting the testimony of the victim's aunt was harmless.
We affirm.