PEOPLE OF MI V KENNETH LEE STRONG
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 14, 2001
Plaintiff-Appellee,
v
No. 224294
Missaukee Circuit Court
LC No. 99-101464-FC
KENNETH LEE STRONG, JR.,
Defendant-Appellant.
Before: Wilder, P.J., and Griffin and Smolenski, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted as charged of first-degree criminal sexual
conduct (CSC I), MCL 750.520b(1)(a), and sentenced as a second habitual offender to a term of
fourteen to thirty years’ imprisonment. Defendant appeals as of right. We affirm.
Defendant first argues that the trial court erroneously admitted hearsay testimony
regarding statements the victim made to a friend. We review a trial court’s decision to admit
evidence for an abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998).
An unsworn, out-of-court statement offered to establish the truth of its contents cannot be
admitted except as provided in the Michigan Rules of Evidence. MRE 801; MRE 802; People v
Poole, 444 Mich 151, 159; 506 NW2d 505 (1993). MRE 803A provides an exception for
statements made by children under the age of ten who initially disclose to third parties that they
were victims of sexual abuse. Therefore, the victim’s hearsay testimony in the present case was
admissible, as long as it satisfied the following criteria:
(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. [MRE 803A.]
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Defendant does not dispute that the victim’s statement met the first and fourth factors
because the victim was six years old when she made the statement and because her statement
was introduced through another’s testimony. MRE 803A. However, defendant argues that the
statement does not satisfy the spontaneity or immediacy requirements.
Defendant contends the statement was not spontaneous because it was not made under
the stress of excitement from a startling event. Defendant erroneously relies on the spontaneity
standard of the excited utterance hearsay exception. MRE 803(2). By contrast, the spontaneity
factor of MRE 803A requires only that the declarant was not prompted or coached to give the
statement. MRE 803A; see also People v Dunham, 220 Mich App 268, 272; 559 NW2d 360
(1996). The trial court determined that the victim’s statement met this standard of spontaneity,
and we find no error in that determination.
Defendant also asserts that the statement failed to satisfy the immediacy factor because
the victim made the statement some eight or nine months after the assault occurred, and
defendant argues that the delay was not justified. Again, defendant erroneously relies on the
excited utterance standard for immediacy, under which delays of even a few hours may render a
statement inadmissible. People v Hackney, 183 Mich App 516, 522; 455 NW2d 358 (1990). By
contrast, MRE 803A requires that the victim’s statement be made immediately or after an
excusable delay. In Dunham, supra at 272, this Court approved the admission of similar
evidence under MRE 803A, despite an eight or nine month delay, because the victim feared the
defendant. The trial court in the present case likewise found that the victim was justified in
fearing defendant and that this fear excused her delay in making the statement. We find no error
in the court’s ruling. Consequently, the trial court did not abuse its discretion in admitting the
evidence.
Defendant next argues that the trial court erroneously denied his motion for a mistrial
after a prosecution witness revealed that defendant had been in jail, contrary to the court’s
instructions. We review a trial court’s decision to deny a motion for mistrial for an abuse of
discretion. People v Dennis, 464 Mich 567, 572; 628 NW2d 502 (2001).
Before trial, and at the prosecutor’s request, the trial court ordered the attorneys to
instruct their witnesses not to reveal that defendant had been in jail. Nonetheless, in response to
direct examination regarding when defendant had been at the house where the assault occurred,
defendant’s girlfriend mentioned that defendant had been in jail. Defendant contends that this
testimony was prejudicial because the charge was not mentioned, allowing the jury to speculate
about why he was in jail and to conclude that he was a “bad man” who had likely committed the
charged offense.
As a general rule, unresponsive testimony by a prosecution witness does not justify a
mistrial unless the prosecutor knew in advance that the witness would give the unresponsive
testimony or the prosecutor conspired with or encouraged the witness to give that testimony.
Hackney, supra at 531. See also People v Griffin, 235 Mich App 27, 36-37; 597 NW2d 176
(1999). The witness’ testimony here was unresponsive because the prosecutor was clearly
attempting to elicit the date when defendant returned to the house, not his whereabouts during his
absence. Moreover, because the prosecutor had instructed the witness not to reveal that
defendant had been jailed, the prosecutor could not have known ahead of time that the witness
would give that testimony. Finally, the evidence established that the witness mentioned the
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defendant’s incarceration only because she was nervous, not because the prosecutor conspired
with or encouraged the witness to reveal this information.
We also note that defendant failed to request a curative instruction. An unresponsive,
volunteered answer to a proper question is not cause for granting a mistrial. This is especially
true where the defendant has rejected the opportunity to have the jury charged with a cautionary
instruction. People v Lumsden, 168 Mich App 286, 298-299; 423 NW2d 645 (1988). The trial
court specifically stated that it would provide an instruction if defendant requested one, and
defendant declined this invitation. Therefore, the trial court did not abuse its discretion in
denying defendant’s motion for a mistrial.
Defendant next contends that the trial court erroneously denied defendant’s motion to
compel the prosecutor to provide a more specific date for when the assault occurred. A trial
court has discretion when deciding whether to require the prosecution to provide more specificity
of the time at or occasion on which an offense occurred, and we will reverse that decision only if
we find an abuse of that discretion. People v Naugle, 152 Mich App 227, 233; 393 NW2d 592
(1986).
The Legislature has required that an information state the time of the offense “as near as
may be.” MCL 767.45(1)(b). Further, the statute states that a variance as to time is not fatal
unless time is of the essence to the offense. MCL 767.45(1)(b). Time is not of the essence in a
CSC case, at least when a child victim is involved. People v Taylor, 185 Mich App 1, 7-8; 460
NW2d 582 (1990). However, MCL 767.51 also provides that a court “may on motion require
the prosecution to state the time or identify the occasion as nearly as the circumstances will
permit, to enable the accused to meet the charge.” This Court has delineated four factors that a
trial court should consider when making that determination: (1) the nature of the crime charged;
(2) the victim’s ability to specify a date; (3) the prosecutor’s efforts to pinpoint a date; and (4)
the prejudice to the defendant in preparing a defense. Naugle, supra at 233-234. Defendant
contends that the two-month time frame given in the information inhibited his efforts to establish
an alibi defense. However, time is not of the essence in a CSC case involving a child victim.
Taylor, supra at 7-8. Even accepting that defendant was prejudiced, this is but one factor to be
weighed. Naugle, supra at 233-234. On the facts of this case, the other three factors weighed
against requiring more specificity. Therefore, the trial court did not abuse its discretion in
denying defendant’s motion.
Finally, defendant asserts that the trial court erroneously excluded evidence crucial to his
alibi defense. Defendant’s argument arises from a ruling barring hearsay testimony about
defendant’s statements to a state police trooper during the investigation of this case. However,
defendant waived this argument for appeal by approving of and acquiescing in the trial court’s
ruling. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000). Defendant’s waiver
extinguishes any trial court error and bars our review. Id.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Richard Allen Griffin
/s/ Michael R. Smolenski
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