PEOPLE OF MI V FERNANDO JOSE GONZALES SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 26, 2000
Plaintiff-Appellee,
v
No. 206778
St. Clair Circuit Court
LC No. 97-001136-FC
FERNANDO JOSE GONZALES SMITH,
Defendant-Appellant.
Before: Kelly, P.J., and White and Wilder, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of first-degree criminal sexual conduct,
MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). The trial court sentenced defendant to four to ten
years’ imprisonment for the conviction. Defendant appeals as of right. We affirm.
Defendant argues that the trial court erred in admitting into evidence statements the
complainant made to her brother regarding the sexual assault. We disagree. Because defendant
failed to object to the testimony at trial, we review this claim only for manifest injustice. People
v Griffin, 235 Mich App 27, 44; 597 NW2d 176 (1999); People v Ramsdell, 230 Mich App 386,
404; 585 NW2d 1 (1998); MCL 769.26; MSA 28.1096.
At defendant’s preliminary examination, the complainant’s older brother, Scott, testified
that the complainant approached him on Sunday, a few days after the incident, and asked to talk
to him privately. Scott described the complainant as “frightened” and “upset.” Scott testified
that the complainant told him that when she slept over at her mother’s boyfriend’s residence a
few days ago, defendant pulled down her pants and licked between her legs. The district court
admitted this testimony under MRE 803A, the tender years exception, and bound defendant over
for trial. At trial, Scott again testified to what the complainant told him concerning the incident.
Defendant did not object to the testimony at trial. In its findings of fact, the trial court found both
the complainant and Scott to be extremely credible witnesses and noted that the complainant’s
statement to Scott was made “approximately within 24 hours, or shortly thereafter the
occurrence, and it tracks extremely well with the testimony under oath that I heard from [the
complainant] herself.”
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Hearsay is defined as “a statement, other than 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 generally inadmissible, unless there is an applicable exception under which the
statement may be admitted. MRE 802. There is no question that Scott’s testimony relating what
the complainant told him about the incident constituted hearsay. Therefore, the dispositive
inquiry is whether that testimony falls within any of the recognized hearsay exceptions. We
conclude that the challenged testimony was properly admitted under the modified tender years
hearsay exception set forth in MRE 803A.1
MRE 803A provides in pertinent part:
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.
In this case, the complainant was nine years old when she uttered the statement to Scott
describing the sexual conduct committed by defendant. Further, the evidence was undisputed
that the complainant approached Scott and initiated the conversation with him during which she
made the hearsay statement at issue. There was no evidence that the complainant fabricated the
allegation, nor was there any evidence that Scott coerced the complainant to talk or influenced
her to accuse defendant of sexual misconduct. To the contrary, the evidence established that
Scott had no idea what the complainant was going to say when she approached him, and that the
statement was entirely spontaneous. Therefore, we find that the first two elements were satisfied.
With respect to the third element, the record reveals that the complainant made the
statement to Scott on Sunday, between twenty-four and thirty-six hours after the incident
occurred.2 A delay in making the declaration may be excusable under certain circumstances.
People v Dunham, 220 Mich App 268, 272; 559 NW2d 360 (1996) (several day delay in
1
MRE 803A became effective March 1, 1991, and codified the Michigan common law hearsay
exception known as the tender years rule.
2
The record was unclear whether the sexual assault occurred late Friday night or early Saturday
morning.
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reporting sexual abuse by the defendant father was excusable because of complainant’s fear of
reprisal by the defendant); People v Hammons, 210 Mich App 554; 534 NW2d 183 (1995)
(eight- or nine- month delay in reporting sexual abuse was excusable on basis of victim’s wellgrounded fear of the defendant). The evidence showed that the complainant’s delay in reporting
the incident was caused by a combination of fear and stress. The complainant refused to return to
the room in which defendant was located after the incident and decided instead to spend the rest
of the night in the room where her mother was sleeping. The complainant also testified that she
waited to report what happened because she was “scared.” Under the circumstances, we find it
was entirely excusable for a nine-year-old girl, who was sexually assaulted in the middle of the
night by an individual staying in the same house as her, to wait between twenty-four and thirtysix hours to report the shocking and traumatic experience to her brother. See Dunham, supra;
Hammons, supra.
Finally, the hearsay statement was introduced at trial through the testimony of Scott, the
first person to whom the complainant related the statement, and was entirely corroborated by the
complainant’s own testimony.3 Accordingly, we conclude that the statement was properly
admitted pursuant to MRE 803A.4
In a related argument, defendant contends that he received ineffective assistance of
counsel at trial by defense counsel’s failure to object to the hearsay testimony elicited from the
complainant’s brother. We disagree.
Defendant failed to move for a new trial or an evidentiary hearing, and thus, our review of
this claim is limited to any mistakes apparent on the record. People v Pickens, 446 Mich 298,
303; 521 NW2d 797 (1994); People v Nantelle, 215 Mich App 77, 87; 544 NW2d 667 (1996).
The decision whether to object to testimony of a particular witness is generally considered a
matter of trial strategy. People v Bahoda, 448 Mich 261, 287 n 54; 531 NW2d 659 (1995);
People v Ullah, 216 Mich App 669, 685; 550 NW2d 568 (1996). As noted above, we do not find
that the admission of the hearsay testimony was improper, thus, an objection at trial was not
warranted. Counsel is not required to make a futile or meritless objection. People v Snider, 239
Mich 393, 425; 608 NW2d 502 (2000). Rather, counsel’s decision not to lodge a hearsay
objection to the testimony at trial, after his objection to the testimony at the preliminary
examination was overruled, was a matter of sound trial strategy. Bahoda, supra. Because
defendant has failed to show that defense counsel’s performance fell below an objective standard
of reasonableness, or that but for the alleged error, there was a reasonable likelihood that he
3
The complainant testified that she was sleeping on a couch in the living room of her mother’s
boyfriend’s house when she was awakened by defendant licking her private parts with his tongue.
Defendant was the boyfriend’s roommate at the time of this incident. The complainant testified
that she did not immediately tell her mother about the incident because she was scared. She
testified that she told her brother about the incident the following day, and she was upset when
she told him.
4
In light of our conclusion that the trial court properly admitted the statement pursuant to MRE
803A, it is unnecessary for us to address defendant’s argument that the evidence was
inadmissible under MRE 803(2), the excited utterance exception to the hearsay rule.
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would have been acquitted, People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1995),
his ineffective assistance of counsel claim must fail.
Affirmed.
/s/ Michael J. Kelly
/s/ Helene N. White
/s/ Kurtis T. Wilder
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