PEOPLE OF MI V DANIEL JAY LATIMER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 14, 1999
Plaintiff-Appellee,
v
No. 210457
Clinton Circuit Court
LC No. 96-006124 FC
DANIEL JAY LATIMER,
Defendant-Appellant.
Before: Bandstra, C.J., and Jansen and Whitbeck, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL
750.520b; MSA 28.788(2). He was thereafter sentenced to six to fifteen years’ imprisonment.
Defendant appeals as of right and we affirm.
I
Defendant first contends that the trial court abused its discretion by admitting hearsay statements
made by the child victim to her examining physicians concerning the circumstances of the sexual assault
and defendant’s identity as her assailant. The decision whether to admit evidence is reviewed for an
abuse of discretion. People v Lukity, 460 Mich 484, 488; ___ NW2d ___ (1999).
The child’s statements were admitted under MRE 803(4), which provides an exception to the
general rule excluding hearsay for:
Statements made for purposes of medical treatment or medical diagnosis in
connection with treatment and describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character of the cause or external source
thereof insofar as reasonably necessary to such diagnosis and treatment.
In People v Meeboer (After Remand), 439 Mich 310, 322; 484 NW2d 621 (1992), our Supreme
Court held that hearsay statements by a victim of sexual abuse could be admitted through the testimony
of an examining physician under MRE 803(4) provided that there was a sufficient showing of both the
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trustworthiness of the statement and the necessity of identifying the assailant in order to provide
adequate diagnosis and treatment. A totality of the circumstances test must be applied to determine if
the proposed statements of a child victim are inherently trustworthy. Id . at 322-324.
The following non-inclusive factors should be considered in determining the trustworthiness of
the statements: (1) the age and maturity of the declarant; (2) the manner in which the statements are
elicited; (3) the manner in which the statements are phrased; (4) use of terminology unexpected of a
child of similar age; (5) who initiated the examination; (6) the timing of the examination in relation to the
assault; (7) the timing of the examination in relation to the trial; (8) the type of examination; (9) the
relation of the declarant to the person identified; (10) the existence of or lack of motive to fabricate. Id.
at 324-325.
With regard to the first factor, the child was four years old at the time of the sexual assault. One
of the doctors testified that the child was mature enough to understand the questions that were being
asked, and a Department of Social Services caseworker stated that the child appeared to be a normal
or average child developmentally. Regarding the second factor, both doctors testified that they did not
use leading questions to elicit statements from the child. Regarding the third and fourth factors, the child
did not use any inappropriate terminology. One of the doctors testified that the child stated that she was
touched “there” and pointed at her genital area . According to the other doctor, the child indicated that
defendant had touched her inside her “private areas” and pointed to the area where defendant had put
his finger; this doctor added that she suggested the use of the term “privates” because the child did not
use any terms to refer to this area. Regarding the fifth factor, the examination was initiated by the child’s
mother because the child had wet herself and complained of pain when she urinated. Thus, the
examination was undertaken for the purpose of diagnosing the cause of the child’s urinary tract problem
and providing appropriate treatment. Regarding the sixth and seventh factors, both doctors indicated
that the injuries had been inflicted within, at most, forty-eight hours before their examinations. The
examinations occurred one and one-half years before trial. Further, regarding the eighth factor, this was
a medical examination rather than a psychological examination.
The ninth factor is the relation of the declarant to the person identified so as to determine
whether the declarant might have misidentified the assailant. The child identified her father (defendant)
as the individual who abused her, thus eliminating the chance of a misidentification. The final factor
concerns the existence of a motive to fabricate. There appears to be no motive on the child’s part to
fabricate her statements. Defendant attacks his former wife’s motives to have the child fabricate a false
accusation, but there was no evidence demonstrating that she told the child to make a false complaint of
sexual abuse and to blame defendant. In fact, the initial examining physician commented that the mother
was “shocked” and could not believe that the child indicated that she had been sexually abused by
defendant. These factors weigh in favor of the trustworthiness of the child’s statements.
Defendant also argues that the child’s statements were not trustworthy because she did not
testify and submit herself to cross-examination. Exceptions under MRE 803 apply even where the
declarant is available as a witness. In Idaho v Wright, 497 US 805; 110 S Ct 3139; 111 L Ed 2d 638
(1990), the United States Supreme Court found error in the contention that a child’s hearsay statements
are presumptively unreliable when the child is found incompetent to testify at trial. Thus, although the
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child did not testify in this case, that fact alone did not render her hearsay statements unreliable.
Moreover, defendant was given the opportunity to call the child as a witness and to attempt to qualify
her as competent to testify and he declined to do so; he will not now be permitted to complain about her
failure to testify.
Defendant further claims that because the victim did not testify, the statements do not
corroborate her testimony. However, the Court in Meeboer, supra at 325-326, did not indicate that
corroboration was supplied by a congruity between the hearsay statements and the child’s in-court
testimony. Instead, the Court found that corroboration in the form of physical evidence of the assault
and evidence that the person identified had the opportunity to commit the assault were considerations
that strengthened the reliability of the hearsay statements. In this case, both doctors found “fresh”
physical evidence in the form of redness, swelling, and lacerations inside the child’s vagina that they
stated were strongly indicative of sexual abuse. These findings corroborated the child’s description to
the doctors of what defendant had done to her. Additionally, the evidence showed that defendant had
the opportunity to commit the assault because he had been alone with the child the night before she
complained of painful urination. There was also substantial testimony concerning the child’s proclivity to
touch her genital area. Further, the initial examining physician testified that, in retrospect, the child’s
numerous prior urinary tract infections were “red flags” that suggested previous sexual abuse. Thus, the
physical evidence corroborated the child’s claim of sexual abuse and the testimonial evidence
demonstrated that defendant had the opportunity to commit the assault. This corroboration
strengthened the reliability of the child’s statements. Meeboer, supra at 325-326; People v
McElhaney, 215 Mich App 269, 282; 545 NW2d 18 (1996).
Defendant further argues that he was denied his right of confrontation by the admission of the
child’s statements because she did not testify. In Meeboer, supra at 324, the Court concluded that
“there is no risk . . . of violating the Confrontation Clause guarantees, because the admissibility of the
hearsay statements is analyzed under MRE 803(4), an established hearsay exception.” Because we
conclude that the child’s statements to the examining physicians were admissible under MRE 803(4),
and because that rule is an established hearsay exception, admission of the statements did not violate the
Confrontation Clause. US Const, Am VI.
Accordingly, we conclude that the child’s statements were properly admitted under MRE
803(4) and that admission of the statements did not violate the Confrontation Clause.
II
Defendant next contends that the trial court abused its discretion by denying his motion in limine
to preclude the prosecutor from presenting statements defendant made to two police officers in which
he admitted that he smoked marijuana on the night of the alleged sexual abuse. We find no abuse of
discretion and conclude that the trial court properly admitted defendant’s statements because they
provided a context for his assertion that he might have “blacked out.” People v Sholl, 453 Mich 730,
741; 556 NW2d 851 (1996). Additionally, there was no error requiring reversal because the trial court
twice admonished the jurors that they could not consider defendant’s admission of marijuana use as
evidence that he was guilty of the charged offense.
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III
Defendant next argues that the prosecutor improperly appealed to the jury’s sympathy for the
victim at closing argument. Defendant failed to object to the prosecutor’s argument and therefore has
not preserved this issue for appellate review. People v Stanaway, 446 Mich 643, 687; 521 NW2d
557 (1994). This Court reviews unpreserved claims of improper prosecutorial argument to determine if
a curative instruction could not have eliminated the prejudicial effect of the comment, or where failure to
consider the claim would result in a miscarriage of justice. Id . No miscarriage of justice resulted from
the prosecutor’s argument because any prejudicial effect could have been eliminated by an appropriate
curative instruction, People v Bahoda, 448 Mich 261, 285; 531 NW2d 659 (1995), and because
some of the comments were responsive to matters raised by the defense. People v Duncan, 402 Mich
1, 16-17; 260 NW2d 58 (1977) (Ryan, J.).
IV
Defendant lastly argues that the trial court abused its discretion when it limited the number of
cumulative witnesses he could present. The trial court has the duty to: (1) control the proceedings by
“limit[ing] the introduction of evidence . . . with a view to the expeditious and effective ascertainment of
the truth,” MCL 768.29; MSA 28.1052, (2) “exercise reasonable control over the mode and order of
interrogating witnesses . . . to . . . avoid needless consumption of time,” MRE 611(a), and (3) exclude
evidence where “its probative value is substantially outweighed . . . by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence,” MRE 403. The trial court did not
foreclose defendant from presenting the witnesses if they had something new to offer, but defendant
agreed that the proposed witnesses would only offer cumulative testimony. We therefore find no abuse
of discretion. People v Burgess, 153 Mich App 715, 719; 396 NW2d 814 (1986).
Affirmed.
/s/ Richard A. Bandstra
/s/ Kathleen Jansen
/s/ William C. Whitbeck
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