People v. Katt, Docket No. 225632.

• Decision Date: 25 January 2002
• Docket Number: Docket No. 225632.
• Citation: 248 Mich. App. 282,639 N.W.2d 815
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lynn KATT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

639 N.W.2d 815

248 Mich. App. 282

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lynn KATT, Defendant-Appellant.

Docket No. 225632.

Court of Appeals of Michigan.

Submitted October 10, 2001, at Grand Rapids.

Decided November 13, 2001, at 9:05 a.m.

Released for Publication January 25, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, James Cherry, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by P.E. Bennett), for the defendant on appeal.

Before GAGE, P.J., and JANSEN and O'CONNELL, JJ.

O'CONNELL, J.

Defendant appeals as of right from his convictions, following a jury trial, of three counts of first-degree criminal sexual conduct (CSC I), M.C.L. § 750.520b(1)(a) (sexual penetration with victim under thirteen years of age). The trial court subsequently sentenced defendant as an habitual offender, second offense, M.C.L. § 769.10, to three consecutive sentences of life imprisonment. We affirm defendant's convictions, but remand for correction of the judgment of sentence.

Defendant's convictions arise out of the sexual assaults of seven-year-old D.D. and his five-year-old sister A.D. in the autumn of 1998.¹ Defendant boarded in a home shared by the children, their mother, her ex-husband, and another individual. On appeal, defendant first challenges the trial court's admission of hearsay evidence under MRE 803(24), commonly referred to as the "residual" or "catchall" exception to the hearsay rule. People v. Welch, 226 Mich.App. 461, 466, 574 N.W.2d 682 (1997). Specifically, defendant contends that D.D.'s statement to a Family Independence Agency (FIA) child protective services investigator on October 27, 1998, was not admissible under MRE 803(24).

Before trial, the prosecutor moved to admit the testimony of Angela Bowman, a child protective services specialist with the FIA. During the motion hearing, Bowman testified that she visited D.D. at his elementary school on October 27, 1998, after the FIA received an anonymous phone call² alleging that the children's mother was physically abusing them. After inquiring of D.D. about the allegations of physical abuse and examining him for physical signs of abuse, Bowman determined that there was insufficient evidence to support the anonymous caller's allegations. However, Bowman testified that during their conversation, when she asked D.D. to name the members of his household, he named defendant as a relative and spontaneously told her that "Uncle Terry"³ was doing "nasty stuff" to him, and that "Uncle Terry was going to go to jail." Bowman further testified that after asking D.D. what he meant by nasty stuff, he was initially guarded, but then made the following statement.

[D.D.] stated that Terry would come into his room, which [D.D] shared with his sister [A.D.] and dis—totally disrobed [sic], and take off his clothes, which would be a shirt, an underwear— some underwear or pajamas bottoms, if he were wearing them, and get on top of [D.D.]. And I ask—I asked him to describe now, at the time, because I wasn't prepared for this interview, I didn't have any anatomically correct dolls or anything, so I ask him to show—to demonstrate to the best of his ability what he was describing. And he took his hand on top of the table. He says, Uncle Terry got on top of him and was going— doing this. And I said, well, what is that? He said, [defendant] was going up and down.... And he described that... Terry would get in his bed and get on top of him and go up and down.

D.D. also pointed to his genital area and told Bowman that "Terry put his mouth on [D.D.'s] ding-ding." D.D. further put his finger in his mouth and pulled it in and out to mimic the action. D.D. also indicated to Bowman that "Terry would put his mouth on [D.D.'s] tits" and that "Terry puts Terry's tongue in [D.D.'s] mouth." During the conversation, D.D. also told Bowman about defendant's actions involving his younger sister, A.D.

[H]e described that Terry would— what Terry did to him, that he also did to [A.D.], that he witnessed Terry putting his mouth on ... [A.D.'s] couchie, I believe he called it, and witnessed that Terry's tongue was in Ter—[A.D.'s] couchie. He stated that he witnessed Terry putting his finger in [A.D.'s] butt and taking his finger out and sucking his finger. He stated that Terry would make him—make [D.D.] put his mouth on Terry's ding-ding. And again I asked, where is Terry's ding-ding, and again he pointed to his genital area. He stated that Terry would also take

[A.D.'s] clothes off when he would come into the room and get into bed with [A.D.].

D.D. also told Bowman that he witnessed defendant telling A.D. to "suck his dick." D.D., seven years old at the time of the alleged assaults and the giving of the statement, told Bowman that these incidents occurred "a hundred times" and that he would try to ward off defendant's advances by kicking him. According to Bowman, D.D.'s statements were clear and consistent. Specifically, she testified that after D.D. disclosed each sexual incident, she asked him to "tell [her] again." Consequently, during the course of their discussion, D.D. repeated the details of the sexual incidents to Bowman "at least three times." Finally, Bowman testified that she has extensive experience and training in interviewing children⁴ believed to be the victims of sexual abuse and that she avoided asking any leading questions or coaxing D.D. during the interview.

During the hearing on the prosecutor's motion to admit this evidence, the prosecutor conceded that D.D.'s statement to Bowman was not admissible under the tender years exception to the hearsay rule, MRE 803A,⁵ because it was not D.D.'s first corroborative statement concerning the abuse.⁶ In response, defendant argued that because the statement was inadmissible under MRE 803A, that exception "covered the field" and therefore the trial court could not admit the evidence pursuant to MRE 803(24). Rejecting this argument, the trial court concluded as a matter of law that the evidence was admissible under MRE 803(24) even where it did not meet the requirements of the tender years exception. It is this legal determination that defendant initially challenges on appeal.

We review for an abuse of discretion a trial court's decision regarding the admission of evidence. People v. Watson, 245 Mich.App. 572, 575, 629 N.W.2d 411 (2001). "An abuse of discretion exists if an unprejudiced person would find no justification for the ruling made." Id., citing People v. Rice (On Remand), 235 Mich. App. 429, 439, 597 N.W.2d 843 (1999). However, where a trial court's evidentiary decision involves preliminary questions of law, we review de novo such questions. People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999). Further, a trial court's decision on a close evidentiary decision does not amount to an abuse of discretion. People v. Sabin (After Remand), 463 Mich. 43, 67, 614 N.W.2d 888 (2000).

MRE 803 provides in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(24) Other Exceptions. A statement not specifically covered by one of the foregoing⁷ exceptions [to the hearsay rule] but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

The thrust of defendant's argument on appeal is that a statement that fails to meet the requirements of an established hearsay exception should not be considered for admission under the residual exception. This argument has been characterized by federal courts as the "nearmiss" theory, "which maintains that a hearsay statement that is close to, but that does not fit precisely into, a recognized hearsay exception is not admissible under [the residual hearsay exception.]" United States v. Deeb, 13 F.3d 1532, 1536 (C.A.11, 1994). As noted, MRE 803(24) provides that a statement not specifically covered by another hearsay exception may nonetheless be admitted under the residual hearsay exception if it possesses equivalent circumstantial guarantees of trustworthiness. According to defendant, D.D.'s statement to Bowman regarding the sexual abuse is "specifically covered" by MRE 803A and thus inadmissible under the residual exception.

Although this Court has considered the residual hearsay exception in Welch, supra, and more recently in People v. Smith, 243 Mich.App. 657, 625 N.W.2d 46 (2000), and People v. Lee, 243 Mich.App. 163, 622 N.W.2d 71 (2000), neither this Court nor our Supreme Court has ruled on the issue whether a hearsay statement is admissible under the residual exception where it does not meet the requirements of an established hearsay exception. However, because the language of MRE 803(24) mirrors that of its federal counterpart, FRE 807,⁸ we may properly turn to relevant federal precedent to guide us in this inquiry. Welch, supra at 466, 574 N.W.2d 682; Lee, supra at 171, 622 N.W.2d 71.

A review of the controlling federal precedent on this issue leads us to conclude that defendant's narrow interpretation of MRE 803(24) should be rejected. For example, in United States v. Laster, 258 F.3d 525 (C.A.6, 2001), the United States Court of Appeals for the Sixth Circuit recently followed the lead of the majority of federal circuits in holding that where a statement does not satisfy the strictures of an established exception to the rule against hearsay, it may properly be considered for admission under the residual exception.

Although some courts have held that if proffered evidence fails to meet the requirements of

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