PEOPLE OF MI V BARBARA ANN JOHNSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 16, 2010
Plaintiff-Appellant,
V
No. 294242
Oakland Circuit Court
LC No. 2009-227287-FH
BARBARA ANN JOHNSON,
Defendant-Appellee.
Before: M. J. KELLY, P.J., and K. F. KELLY and BORRELLO, JJ.
PER CURIAM.
Plaintiff appeals by right the circuit court’s order granting defendant’s motion to quash
the information charging her with third-degree child abuse, MCL 750.136b(5) (knowing or
intentional physical harm to a child). We reverse and remand for further proceedings.1
I. BASIC FACTS
At the preliminary examination in the district court, defendant’s 15-year-old daughter
testified that she had falsely accused defendant of abuse. The victim testified that she had
inflicted bruises on her arms because she was angry with her mother and that a bruise on her
back resulted from figure skating. However, other evidence was introduced that the victim told
her school counselor that defendant hit her on the arms and back with a hair straightener and had
also told a school liaison officer and a protective services worker that her mother slapped her and
hit her on the left arm with a hair straightener while she was backed against a door. Apparently,
the victim had reported that the door’s handle caused bruising to her back. Shortly before the
preliminary examination, the victim repeated the allegations to the prosecutor. A cell phone
picture that the victim had taken of the bruise on her back was admitted into evidence. Two
other pictures, which the police had taken and showed bruising on the victim’s arm, were also
admitted.
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This appeal has been decided without oral argument pursuant to MCR 7.214(E).
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In binding defendant over for trial, the district court did not find the victim’s recantation
credible. On defendant’s motion to quash the information, the circuit court concluded that the
hearsay evidence was not as credible as the sworn testimony, that substantive evidence linking
the bruising to defendant was lacking, and that other explanations for the bruising existed.
Accordingly, the circuit court granted defendant’s motion to quash the information.
II. ANALYSIS
On appeal, the prosecution argues that the circuit court erred by granting defendant’s
motion to quash the information. We agree. When reviewing a district court’s decision to
bindover a defendant, we review its determination regarding the sufficiency of the evidence for
an abuse of discretion, while we review questions of law de novo. People v Flick, ___ Mich
___; ___ NW2d ___ (2010). We review the district court’s original exercise of discretion and
give no deference to the circuit court’s decision. People v Kim, 245 Mich App 609, 613 n 3; 630
NW2d 627 (2001). In other words, we apply the same standard of review to the issue as that
applied by the circuit court. Id.
A district court must bindover a defendant if the prosecution has “presented competent
evidence sufficient to support probable cause to find both that a felony was committed and that
defendant committed it.” People v Cervi, 270 Mich App 603, 616; 717 NW2d 356 (2006).
More specifically:
The prosecutor is not required to prove all elements of the offense charged at the
preliminary hearing, but must only produce evidence sufficient for a finding of
probable cause. “Probable cause to believe that the defendant committed the
crime is established by a reasonable ground of suspicion, supported by
circumstances sufficiently strong to warrant a cautious person in the belief that the
accused is guilty of the offense charged.” People v Woods, 200 Mich App 283,
288; 504 NW2d 24 (1993). “Circumstantial evidence and reasonable inferences
arising from the evidence may be sufficient to justify binding over a defendant.”
Id. [Cervi, 270 Mich App at 616.]
“Competent evidence that both supports and negates an inference that the defendant committed
the crime charged raises a factual question that the district court must leave to the jury.” People
v Northey, 231 Mich App 568, 575; 591 NW2d 227 (1998). The introduction of incompetent
evidence at the preliminary examination can be harmless error, where sufficient competent
evidence is presented to support a bindover. People v Fiedler, 194 Mich App 682, 695; 487
NW2d 831 (1992).
Here, we need not address whether the victim’s statement to the counselor or the
prosecutor amounted to incompetent evidence, because we conclude that the statement to the
liaison officer constituted sufficient competent evidence in support of the district court’s
bindover decision. See id. The victim’s statement to the liaison officer was admitted under
MCL 768.27c, which provides in pertinent part:
(1) Evidence of a statement by a declarant is admissible if all of the following
apply:
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(a) The statement purports to narrate, describe, or explain the infliction or threat
of physical injury upon the declarant.
(b) The action in which the evidence is offered under this section is an offense
involving domestic violence.
(c) The statement was made at or near the time of the infliction or threat of
physical injury. Evidence of a statement made more than 5 years before the filing
of the current action or proceeding is inadmissible under this section.
(d) The statement was made under circumstances that would indicate the
statement’s trustworthiness.
(e) The statement was made to a law enforcement officer.
(2) For the purpose of subsection (1)(d), circumstances relevant to the issue of
trustworthiness include, but are not limited to, all of the following:
(a) Whether the statement was made in contemplation of pending or anticipated
litigation in which the declarant was interested.
(b) Whether the declarant has a bias or motive for fabricating the statement, and
the extent of any bias or motive.
(c) Whether the statement is corroborated by evidence other than statements that
are admissible only under this section.
In making the statement to the liaison officer, the victim was describing an instance of
physical injury caused by domestic violence. The statement was made within 48 hours of the
incident. While there may have been some possibility that the victim was lying, her statements
nonetheless had earmarks of trustworthiness; there is no indication that she made the statement in
anticipation of litigation and it was corroborated by photographs. Given these facts, the
statement was admissible and competent evidence. MCL 768.27c.
Moreover, coupled with the photographs, the victim’s statement to the liaison officer
created probable cause to believe that defendant committed third-degree child abuse. This
evidence, in conjunction with the victim’s conflicting testimony at the preliminary examination,
resulted in competent evidence that both supported and negated an inference that defendant
committed the crime. Resolution of the issue is a factual question for a jury. See Northey, 231
Mich App at 575. Accordingly, the district court did not abuse its discretion in binding
defendant over for trial, and the circuit court erred in granting the motion to quash.
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Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Michael J. Kelly
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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