PEOPLE OF MI V MICHAEL JOHN CRAWFORD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 21, 2009
Plaintiff-Appellee,
v
No. 283023
Wayne Circuit Court
LC No. 2007-215940-FH
MICHAEL JOHN CRAWFORD,
Defendant-Appellant.
Before: Bandstra, P.J., and Owens and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction for second-degree criminal sexual
conduct, MCL 750.520c(1)(a) (person under 13 years of age). He was sentenced, as a third
habitual offender, MCL 769.11, to 5 to 30 years in prison. We affirm.
Defendant first argues on appeal that the trial court abused its discretion in finding the
four-year-old victim, AC, competent to testify because it was obvious from her answers to the
judge’s questions that she did not have sufficient physical or mental capacity or sense of
obligation to testify truthfully and understandably. Defendant further argues that AC’s testimony
was not harmless because it bolstered the testimony of her therapist, Ruth Kusiak. We disagree.
A defendant must “object to the admission of the testimony of a child witness as
incompetent” in order to preserve the issue for appeal.” People v Cobb, 108 Mich App 573, 575;
310 NW2d 798 (1981); MRE 103(a)(1). Defendant did not object to AC’s testimony, and
furthermore, after the trial judge finished his voir dire of AC at the preliminary examination,
defense counsel stated: “I’m satisfied for the purposes of her being competent to testify.”
Defendant has therefore waived the issue. “Waiver is the intentional relinquishment or
abandonment of a known right. It differs from forfeiture, which . . . [is] the failure to make the
timely assertion of a right. One who waives his rights under a rule may not then seek appellate
review of a claimed deprivation of those rights, for his waiver has extinguished any error.”
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (internal citations omitted).
Defendant next argues on appeal that AC’s statement to Kusiak during therapy – that
defendant pulled down her pants and touched her “private places” – was not admissible under
MRE 803A because (1) it was not shown to be “spontaneous and without indication of
manufacture,” and (2) AC made the comments to Kusiak months after the Care House interview
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conducted by Amy Allen, chief forensic interviewer, and this delay was inexcusable because
neither Allen nor Kusiak offered any reason for it. We disagree.
MRE 803A provides in relevant 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.
If the declarant made more than one corroborative statement about the incident,
only the first is admissible under this rule. [People v Dunham, 220 Mich App
268, 271-272; 559 NW2d 360 (1996), quoting MRE 803A.]
In Dunham, the six-year-old victim made statements alleging sexual abuse by the
defendant to a mediator in a divorce proceeding, several months after the alleged incident. Id. at
272. “The mediator testified that the victim made the statements in response to the customary,
open-ended questions asked of all children of divorcing parents.” Id. This Court concluded that,
“[u]nder these circumstances, the trial court did not err in finding that the victim’s statements
were spontaneous. Further, the trial court did not abuse its discretion in ruling the eight- or ninemonth delay in reporting the sexual abuse was excusable on the basis of the victim’s wellgrounded fear of defendant.” Id.
In the case at bar, the length of delay was just under three months – much shorter than in
Dunham. Here, on November 15, 2006, AC initially disclosed to her mother, Sarah Joy Butler,
that, similarly to the soapy water going into the laundry tub, “my daddy’s got white stuff in his
pee pee.” Then, on approximately February 9, 2007, according to Kusiak, during a therapy
session AC said that “daddy pulled down her pants and touched her pee pee and she said no, no,
no and that they were at Nana’s house.”
As far as a justification for the delay, there was evidence that AC was afraid to be around
defendant, as was the case in Dunham, because she no longer wanted to visit him and refused to
get out of the car when emergency circumstances forced her mother to leave her with defendant
on one occasion. In addition, Allen agreed that often child victims are interviewed two or three
times before disclosing abuse, and they are more likely to tell someone who is not in the
immediate family. Regarding any indicia of manufacture and the spontaneity of the comments,
whereas in Dunham the child made the remarks in response to open-ended questions, in the case
bar, Kusiak had not asked AC any questions, but rather, AC was taking part in an exercise where
she had to label body parts on a “doughboy”-shaped figure. Kusiak explained that the exercise
was a type of therapy normally used with sexual abuse victims. It was not Kusiak’s role to
conduct any sort of interview. Finally, Kusiak agreed that the comments were spontaneous.
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Defendant further argues that case law interpreting MRE 803(2), the excited utterance
exception, should be used to analyze the appropriateness of AC’s statement to Kusiak.
Defendant cites no authority for this position. “It is not enough for appellant in his brief simply
to announce a position or assert an error and then leave it up to this Court to discover and
rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then
search for authority either to sustain or reject his position.” People v Kevorkian, 248 Mich App
373, 388; 639 NW2d 291 (2001), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388
(1959). Therefore, because Annie’s statement to Kusiak was spontaneous, without indication of
manufacture, and there was an excusable delay, it was not error for the trial court to admit it
under MRE 803A.
Defendant next argues on appeal that he was denied effective assistance of counsel. He
first asserts that counsel was ineffective for failing to object to AC’s testimony on the grounds
that she was incompetent to testify, because it was obvious from her answers to the judge’s
questions that she did not have the sufficient physical or mental capacity or sense of obligation to
testify truthfully and understandably. We disagree.
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law . . . This Court reviews a trial court’s factual findings for clear error
and reviews de novo questions of constitutional law.” People v Dendel, 481 Mich 114, 124; 748
NW2d 859, amended 481 Mich 1201 (2008). “[B]ecause the trial court did not hold an
evidentiary hearing, . . . review is limited to facts on the record.” People v Wilson, 242 Mich
App 350, 352; 619 NW2d 413 (2000).
“An accused’s right to counsel encompasses the right to the ‘effective’ assistance of
counsel.” People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007), citing US Const, Am
VI, Const 1963, art 1, § 20, and Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed
2d 674 (1984). Generally, to establish ineffective assistance of counsel, a defendant must show
that “(1) counsel’s performance was below an objective standard of reasonableness under
professional norms and (2) there is a reasonable probability that, if not for counsel’s errors, the
result would have been different and the result that did occur was fundamentally unfair or
unreliable.” People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007), citing Strickland,
supra at 694. “Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761
(2004).
It was not error for the trial court to find AC competent to testify, and therefore, trial
counsel did not render ineffective assistance by failing to object to her testimony. “The
determination of the competency of a witness is a matter within the discretion of the trial court.
Such determination will be reversed only for an abuse of discretion.” People v Breck, 230 Mich
App 450, 457; 584 NW2d 602 (1998). An abuse of discretion occurs when a trial court chooses
an outcome falling outside the range of principled outcomes. People v Babcock, 469 Mich 247,
269; 666 NW2d 231 (2003). Pursuant to MRE 601, “[u]nless the court finds after questioning a
person that the person does not have sufficient physical or mental capacity or sense of obligation
to testify truthfully and understandably, every person is competent to be a witness except as
otherwise provided in these rules.” People v Watson, 245 Mich App 572, 583; 629 NW2d 411
(2001). “The test of competency is thus whether the witness has the capacity and sense of
obligation to testify truthfully and understandably. Where the trial court examines a child
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witness and determines that the child is competent to testify, ‘a later showing of the child’s
inability to testify truthfully reflects on credibility, not competency.’” Id., quoting People v
Coddington, 188 Mich App 584, 597; 470 NW2d 478 (1991).
In Watson, the victim’s brother, AK, was seven years old and this Court found that the
record as a whole demonstrated that “AK knew the difference between telling the truth and
telling a lie and that he promised to tell the truth. Accordingly, the trial court did not abuse its
discretion in holding that AK was competent to testify.” Id. at 583. Similarly, in the case at bar,
AC was subjected to a thorough voir dire at the preliminary examination. For example, when the
prosecutor asked if it would be right or wrong to say that she, the prosecutor, was a boy, AC
stated that it would be “a wrong” because the prosecutor was a girl. AC said that she would give
“the right” answers when questioned by the prosecutor, defense counsel, and the trial judge.
At this point defense counsel did protest that the oath is worded in terms of telling the
truth, as opposed to saying what is right or wrong, after which the trial judge engaged AC in
further voir dire. AC then demonstrated that she knew the difference between telling a lie and
telling the truth when the trial judge pointed to his black dress shoes and asked AC what it would
mean if he stated that he was wearing tennis shoes. AC knew that this would be a lie because the
judge was not, in fact, wearing tennis shoes. AC said that she was going to tell the truth about
what happened, she would not lie, and she knew that telling the truth was important. The trial
judge then allowed AC to testify.
While AC’s trial testimony was often confusing and unfocused, as this Court further
explained in Watson, “any difficulty AK displayed in remembering specific events or in
testifying audibly relate to his credibility, not his competency. Indeed, this Court has upheld a
trial court’s determination of competency where a child witness’ testimony displayed confusion
and contradiction, or even a reluctance to answer some questions.” Id. at 584. Therefore, the
trial court did not abuse its discretion when it found AC competent to testify.
Finally, even if the trial court’s finding that AC was competent to testify were error,
defendant cannot show that the error was outcome-determinative. The confused and unfocused
nature of the testimony – in addition to the fact that AC told defense counsel that she was just
saying “yeah” for the sake of answering the questions – reflected negatively on her credibility.
In addition, the jury could still consider (1) Kusiak’s testimony that, during a therapy session,
AC described an incident of sexual touching by defendant, (2) Butler’s recounting of AC’s
comments in the laundry room, which indicated that defendant might have engaged in
inappropriate behavior, (3) Butler’s testimony that a person standing in the bathroom door could
not see the sink, which refuted defendant’s explanation that AC walked in on him in the
bathroom and saw him masturbating, (4) the fact that defendant changed his story several times
when asked to explain the comments AC made in the laundry room, and (5) defendant’s guilty
mind, shown by his statement during his interview with Detective Collins, wherein he insisted
that he never touched AC, even though he had not been accused, at that point, of doing so.
People v Cutchall, 200 Mich App 396, 402; 504 NW2d 666 (1993), disapproved in part on other
grounds, People v Edgett, 220 Mich App 686, 692; 560 NW2d 360 (1996). Therefore, even if
the trial court erred in finding AC competent to testify, the error was not outcome-determinative.
For these same reasons, any objection to AC’s testimony would have been futile, and
“[c]ounsel is not ineffective for failing to make a futile objection.” People v Thomas, 260 Mich
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App 450, 457; 678 NW2d 631 (2004). Moreover, trial counsel’s decision to impeach the witness
on cross-examination rather than challenge the competence of the witness to testify “is presumed
to be sound trial strategy.” People v Flowers, 222 Mich App 732, 737; 565 NW2d 12 (1997).
“[T]his Court neither substitutes its judgment for that of counsel regarding matters of trial
strategy, nor makes an assessment of counsel’s competence with the benefit of hindsight.”
People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004). That a chosen strategy
“ultimately failed does not constitute ineffective assistance of counsel.” Kevorkian, supra at
414-415.
Second, defendant asserts that he received ineffective assistance when trial counsel failed
to object to Kusiak’s testimony because AC’s statement to Kusiak was neither spontaneous nor
made immediately after the alleged incident, and there was no excuse for the delay. These
arguments are without merit. For the reasons stated above, it was not error, nor did it prejudice
defendant, to admit the statement under MRE 803A, and therefore, counsel is not ineffective for
failing to make a futile objection. Thomas, supra at 457.
Defendant further argues that trial counsel should have requested a limiting instruction
stating that Kusiak’s testimony could be considered only to the extent that it corroborated
testimony given by AC during the same proceeding but it could not be considered as substantive
evidence. As the prosecution points out, however, this argument is not a correct interpretation of
the rules of evidence. “Hearsay is defined as an out-of-court statement offered in evidence to
prove the truth of the matter asserted” and is inadmissible as substantive evidence at trial except
when offered under one of the exceptions to the hearsay rule as provided for in the Rules of
Evidence. People v Tanner, 222 Mich App 626, 629; 564 NW2d 197 (1997), citing MRE 801(c)
and MRE 802. As noted above, we agree with the trial court that the evidence was admissible
hearsay under MRE 803A. Once again, counsel was not required to advocate a meritless
position. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Therefore, because
the trial court did not err in finding AC competent to testify and admitting AC’s statement
through Kusiak’s testimony, trial counsel was not ineffective for failing to object.
Affirmed.
/s/ Richard A. Bandstra
/s/ Donald S. Owens
/s/ Pat M. Donofrio
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