Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  May 27, 2015                                                                                         Robert P. Young, Jr.,
                                                                                                                 Chief Justice

                                                                                                       Stephen J. Markman
                                                                                                           Mary Beth Kelly
  150165                                                                                                    Brian K. Zahra
                                                                                                    Bridget M. McCormack
                                                                                                          David F. Viviano
                                                                                                      Richard H. Bernstein,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                                    Justices
            Plaintiff-Appellee,
  v                                                                 SC: 150165
                                                                    COA: 313814
                                                                    Wayne CC: 12-002077-FC
  JOHN DAVID MARSHALL,
           Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the August 5, 2014
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
  lieu of granting leave to appeal, we VACATE in part the judgment of the Court of
  Appeals. The Court of Appeals erred in holding that MRE 803(7) is not applicable under
  this set of facts, where defendant sought to introduce evidence that there were no
  recorded reports of an allegation of sexual assault. Because defendant sought to elicit
  testimony relating to the absence of a “matter . . . of a kind of which a memorandum,
  report, record, or data compilation [is] regularly made and preserved,” MRE 803(7),
  evidence that no report was ever made was admissible “to prove the nonoccurrence or
  nonexistence of the matter,” id. See United States v Gentry, 925 F2d 186, 188 (CA 7,
  1991) (analyzing the rule’s federal counterpart). The Court of Appeals further erred in
  holding that the testimony at issue was not relevant under MRE 401. As observed by the
  Court of Appeals concurring opinion, the evidence at issue was probative of the
  complainant’s credibility; specifically, the complainant’s claim that she had reported the
  abuse to her school teacher. We AFFIRM, however, the Court of Appeals holding that
  any error was harmless because defendant was permitted to argue that the absence of a
  report undermined the complainant’s credibility. In all other respects, leave to appeal is
  DENIED, because we are not persuaded that the remaining questions presented should be
  reviewed by this Court.




                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           May 27, 2015
           s0520
                                                                               Clerk
