People v. Bundy
| Decision Date | 01 February 2022 |
| Docket Number | 349072 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TERRY LESTER BUNDY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Lenawee Circuit Court LC No. 18-018845-FC
Before: K. F. Kelly, P.J., and Stephens and Cameron, JJ.
Defendant appeals as of right his convictions after a jury trial of two counts of first-degree criminal sexual conduct (CSC-I).[1] The trial court sentenced defendant as a fourth-offense habitual offender to 50 to 90 years' imprisonment for each conviction. Finding no errors warranting reversal, we affirm.
Defendant was convicted of sexually assaulting AB, who was seven years old at the time of trial. AB had three other half-siblings. AB's mother led and encouraged AB to believe that defendant was her father. Thus, when AB's older sibling who was defendant's biological child, had weekend visitations with defendant, four-year-old AB accompanied her. At the time, defendant was living at a home with his mother and his mother's boyfriend. AB testified that during these visits, she would sleep in the same bed as defendant and her sibling would sleep in the living room.
On Saturday, August 6, 2017, after a visitation with the defendant, AB complained that her "coochy" hurt. Upon examination, AB's mother thought the genital area looked more "raw," akin to a skinned knee as opposed to appearing like a typical rash and applied some anti-rash ointment or cream to the area. She asked AB if anybody had touched her there and AB responded that defendant had touched her.
The redness and rawness on AB were essentially gone the following day when AB's mother took AB to the Hillsdale Hospital emergency room. After a long wait, the mother left Hillsdale and transported AB to another hospital in Coldwater. AB was seen by a physician who diagnosed her with a urinary tract infection and prescribed her antibiotics. Also while at one of the hospitals, with a nurse's assistance, AB's mother took a picture of AB's genital area with her cell phone.[2] The mother expected both a police officer and a Child Protective Services worker to meet them at the second hospital, but neither ever arrived.
The mother testified to the events that occurred from the time she retrieved AB from her visitation with the defendant up until the time of trial, including all medical examinations. At trial, AB was called to testify, but when asked about anything related to defendant and going to defendant's home, she asserted a lack of memory. The prosecutor moved to have AB declared "unavailable" and to have her prior testimony from the preliminary examination read into the record under MRE 804(a)(3) and MRE 804(b)(1). Despite defense counsel's objection, the trial court declared AB unavailable and allowed AB's preliminary examination testimony to be read into the record.
The transcript from the preliminary examination recorded AB's testimony that defendant had hurt her with his "bad spot." Specifically, she testified that defendant used his "bad spot" to hurt her "bad spot." AB identified the groin area as the location for both her and defendant's bad spots and mentioned that bad spots are used for "peeing." AB described what defendant's bad spot looked like and testified to multiple incidents of penetration.
The prosecution also called Dr. Carla Parkin-Joseph, a pediatrician at the University of Michigan where AB's mother brought AB to be evaluated on August 15, 2017, which was 10 days after defendant's visitation with AB. Parkin-Joseph conducted an examination of AB but found no bruising, no irritation, and no signs of trauma.[3] Parkin-Joseph reported that the internal examination of AB was "completely normal." Despite these findings, Parkin-Joseph testified that her medical diagnosis was that AB had been sexually abused. She stated that her diagnosis was based on the reports she received from AB's mother and her knowledge that it was not unusual for children to show no signs of trauma after being sexually abused. Parkin-Joseph also provided a statistic that 95% to 96% of children who have been "confirmed"[4]victims of sexual abuse have normal examinations. On cross-examination, Parkin-Joseph testified that if she put aside the mother's information and considered only her examination of AB, the best that could be said is that she could not exclude the possibility that a sexual assault had happened.
Detective Sergeant Nathan Horan from the Michigan State Police (MSP) testified regarding his interview of defendant. Horan testified that he "conduct[ed] interviews for [MSP's] biometrics and identification division." He explained that during defendant's interview, defendant initially denied any wrongdoing and maintained that he had no contact with AB's groin area except for two occasions when AB defecated in her pants and defendant had to clean up the area. Horan testified that he told defendant that he did not feel that defendant was being completely truthful. Subsequent to that statement, defendant admitted putting his hand down AB's underwear and touching her bare genitalia after she had fallen asleep to check to see if she had wet the bed. Horan stated that he asked defendant how long his finger had lingered on AB. Defendant eventually admitted that he should not have kept his finger there as long as he did, but denied any penetration. Defendant also acknowledged to Horan that keeping his finger on AB longer than he should have was a mistake and that he felt sick for doing it. Horan opined that the more he and the defendant talked, the more evasive defendant's responses were. Horan testified that when he directly asked the defendant what level of truthfulness he was demonstrating, defendant replied, "98 percent."
The jury convicted defendant of two counts of CSC-I (one count of penile penetration and one count of digital penetration), but acquitted him of four other counts of CSC-I (two counts of penile penetration and two counts of digital penetration). He was sentenced to 50 to 90 years' imprisonment for each conviction. This appeal followed.
Defendant first argues that the trial court erroneously ruled that AB was unavailable and allowed her preliminary examination testimony to be read into the record. We disagree.
This Court reviews a trial court's finding that a witness was unavailable for clear error. See People v Briseno, 211 Mich.App. 11, 14; 535 N.W.2d 559 (1995). A court clearly errs when a reviewing court is left with a definite and firm conviction that a mistake has been made. People v Allen, 295 Mich.App. 277, 281; 813 N.W.2d 806 (2011). This Court reviews preserved evidentiary issues for an abuse of discretion.[5]People v Aldrich, 246 Mich.App. 101, 113; 631 N.W.2d 67 (2001). A trial court abuses its discretion when it selects an outcome that falls outside the range of reasonable and principled outcomes. People v Unger, 278 Mich.App. 210, 217; 749 N.W.2d 272 (2008).
In this case, the prosecutor asked AB many questions related to the allegations involving defendant, but each time AB claimed a lack of memory:
On appeal, defendant focuses on questions not directly pertaining to AB's memory, such as whether AB wanted to talk about defendant or whether AB would be "sad" if the questioning continued. The defense argument focuses on People v Duncan, 494 Mich. 713; 835 N.W.2d 399 (2013). Duncan involved the mental-infirmity exception found under MRE 804(a)(4), and not the lack-of-memory aspect of unavailability in MRE 804(a)(3). In Duncan, the child witness responded that she did not know the difference between the truth and a lie. 494 Mich. at 727. The witness also was so distraught that she was in tears and wringing her hands during questioning, "rendering her unable to answer counsels' questions." Id. at 728. The concurring opinion went into detail about the efforts the trial court had made to ascertain if the...
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