                             STATE OF MICHIGAN

                               COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 1, 2016
              Plaintiff-Appellee,

v                                                                    No. 326199
                                                                     Wayne Circuit Court
EMMANUEL JEROME BEVERLY,                                             LC No. 14-007348-FC

              Defendant-Appellant.


Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.

SHAPIRO, J. (concurring).

       I agree with Judge SERVITTO’S analysis of the standard of review and that the issue concerning
the preliminary examination testimony was forfeited, not waived. However, I agree with Judge
GADOLA’S analysis that reversal is not required.

       In People v Cain, 498 Mich 108, 116–117; 869 NW2d 829 (2015), the Michigan Supreme
Court held:

                Appellate courts may grant relief for unpreserved errors if the proponent of the
       error can satisfy the “plain error” standard, which has four parts (the “Carines prongs”).
       The first three Carines prongs require establishing that (1) an error occurred, (2) the
       error was “plain”—i.e., clear or obvious, and (3) the error affected substantial rights—
       i.e., the outcome of the lower court proceedings was affected. [People v] Carines, 460
       Mich [750,] 763[; 597 NW2d 130 (1999)]. If the first three elements are satisfied, the
       fourth Carines prong calls upon an appellate court to “exercise its discretion in deciding
       whether to reverse,” and (4) relief is warranted only when the court determines that the
       plain, forfeited error resulted in the conviction of an actually innocent defendant or “ ‘
       “seriously affect[ed] the fairness, integrity or public reputation of [the] judicial
       proceedings”. . . .’ ” Id. (citation omitted; first alteration in original). While “[m]eeting
       all four prongs is difficult, ‘as it should be,’ ” Puckett [v United States], 556 US [129,]
       135[; 129 S Ct 1423; 173 L Ed 2d 266 (2009)], the plain-error test affords defendants
       sufficient protection because, as [People v] Vaughn, 491 Mich [642,] 655 n 42[; 821
       NW2d 288 (2012)], explained:

              [A]pplication of a plain-error analysis to unpreserved structural error does
              not deny that error “close consideration,” . . . especially because the plain-
              error analysis . . . requires reviewing courts to consider carefully whether
                                                   -1-
               any forfeited error either resulted in the conviction of an actually innocent
               defendant or seriously affected the fairness, integrity, or public reputation
               of judicial proceedings. [Citations omitted.]

        In this case the first three factors are clearly present. As to the fourth, however, after a review
of the entire record, I do not think we are at risk of allowing an innocent defendant’s conviction to
stand. There was significant other evidence of guilt, namely: (a) the excited utterances made by the
complainant to his older sister after the incident; (b) the statements made to the emergency room
doctor for purposes of medical treatment; (c) the evidence of anal injury—both a tear and a
neurological change; and (d) defendant’s two prior criminal sexual conduct convictions.1 Moreover,
defendant offered no evidence. He is obviously not required to do so, but this leaves the balance of the
prosecution’s evidence unrebutted. And while there are reasons to be concerned about the “fairness,
integrity and public reputation” of the judicial proceedings, Carines, 460 Mich at 763, I do not believe
they are sufficiently high in this case to justify reversal as the witness was subject to cross-
examination, the full preliminary examination testimony was read to the jury, and the failure to
administer the oath appears to have been wholly unintentional and unrecognized by defense counsel,
the prosecutor, and the judge at each proceeding.



                                                              /s/ Douglas B. Shapiro




1
 The prosecution presented evidence that, when defendant was a juvenile, he was convicted of fourth-
degree criminal sexual conduct involving a five-year-old boy, MCL 750.520e, and was convicted of
gross indecency between males, MCL 750.338, which also involved a five-year-old boy. The
prosecution filed a timely notice of intent to use other acts of misconduct pursuant to MCL 768.27a,
and proof of the convictions was admitted without objection at trial. MCL 768.27a provides that “in a
criminal case in which the defendant is accused of committing a listed offense against a minor,
evidence that the defendant committed another listed offense against a minor is admissible and may be
considered for its bearing on any matter to which it is relevant.” Accordingly, the convictions were
substantively admissible.

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