PEOPLE OF MI V RONNIE GABREAL SIMS SR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 22, 1999
Plaintiff-Appellee,
v
No. 208812
Detroit Recorder’s Court
LC No. 97-001933
RONNIE GABREAL SIMS, SR.,
Defendant-Appellant.
Before: Zahra, P.J., Saad and Collins, JJ.
PER CURIAM.
Following a bench trial, the court convicted defendant of first-degree child abuse, MCL
750.136; MSA 28.331, and sentenced him to three to fifteen years’ imprisonment. Defendant appeals
as of right from his conviction, and we affirm.
Defendant argues that the trial court improperly considered inadmissible hearsay testimony when
it considered evidence that the nine-month-old baby screamed every time he saw defendant.
Defendant’s argument lacks merit because the child’s screaming was not hearsay. Hearsay is “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). MRE 801(a) further defines a
statement as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by
the person as an assertion.” Here, the child’s screaming was not a “statement” because the seven
month child obviously did not intend to make an assertion. Similarly, in People v Davis, 139 Mich App
811; 363 NW2d 35 (1984), the Court found that a child’s conduct of bursting into tears after being
asked about the defendant’s actions was not a statement pursuant to MRE 801(a) because the child’s
crying was “so patently involuntary that it cannot by any stretch of the imagination be treated as a verbal
assertion by the victim within the scope of MRE 801(a)(2).” Id., 813. If an older child’s crying in
reaction to a question is a non-assertive, involuntary reaction, then the screaming nine-month-old child
must also be deemed a non-assertive, involuntary reaction.
Defendant claims that the case at bar is distinguishable from Davis because the lower court
specifically considered the child’s out-of-court conduct as an assertion of fact both in its findings of fact
and at sentencing. We find no merit to this distinction. The child’s screaming was not hearsay, and the
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trial court therefore was not precluded from considering it as evidence, regardless of how the trial court
characterized the evidence.
Because the trial court did not consider hearsay evidence, there also is no merit to defendant’s
argument that the trial court’s reliance on the inadmissible hearsay denied him due process of law
because he was not allowed to cross examine the child at trial. See People v Jones (On Rehearing
After Remand), 228 Mich App 191; 579 NW2d 82 (1998), stating “[w]hen a declarant does not
intend to communicate anything . . . his sincerity is not in question and the need for cross-examination is
sharply diminished.” Id., 218 (quoting United States v Long, 284 US App DC 405, 412-413; 905
F2d 1572 (1990).
Affirmed.
/s/ Brian K. Zahra
/s/ Henry William Saad
/s/ Jeffrey G. Collins
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