                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   January 19, 2017
                Plaintiff-Appellee,                                9:10 a.m.

v                                                                  No. 319227
                                                                   Oakland Circuit Court
GHASSAN SALIM SARDY,                                               LC No. 2013-244734-FH

                Defendant-Appellant.


                                         ON REMAND

Before: MURPHY, P.J., and STEPHENS and GADOLA, JJ.

MURPHY, P.J.

        Defendant was convicted in a jury trial of child sexually abusive activity (CSAA), MCL
750.145c, using a computer to commit a crime, MCL 752.796, and two counts of second-degree
criminal sexual conduct (CSC II), MCL 750.520c. Defendant’s daughter was the victim of these
crimes. Defendant was sentenced to concurrent prison terms of 71 months to 20 years for the
CSAA and computer-crime convictions and 71 months to 15 years’ imprisonment for the CSC II
convictions. When defendant’s appeal was originally before us, we affirmed his convictions, but
remanded the case for a Crosby1 proceeding pursuant to People v Lockridge, 498 Mich 358; 870
NW2d 502 (2015), relative to sentencing. People v Sardy, 313 Mich App 679, 688-689, 733;
884 NW2d 808 (2015). On defendant’s application for leave to appeal to our Supreme Court, the
Court, in lieu of granting leave, vacated Part II of our opinion with respect to the Confrontation
Clause analysis, but denied leave in all other respects. People v Sardy, __ Mich __, issued
November 4, 2016 (Docket No. 153222). The Supreme Court directed us to reconsider “(1)
whether the complainant was unavailable for Confrontation Clause purposes, see Crawford v
Washington, 541 US 36, 59 n 9; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and United States v
Owens, 484 US 554, 559-560; 108 S Ct 838; 98 L Ed 2d 951 (1988); and (2) whether the
defendant’s confrontation rights were violated at trial by the trial court’s limitation on cross-
examination of the complainant, compare Owens, supra, with Delaware v Van Arsdall, 475 US
673, 679; 106 S Ct 1431; 89 L Ed 2d 674 (1986).” Id. On remand, we again affirm defendant’s



1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).

                                               -1-
CSAA and computer-crime convictions; however, we vacate his two CSC II convictions and
remand for resentencing.

        The CSAA and computer-crime offenses were effectively established by two videos,
introduced by a detective who was qualified as an expert in computer forensic examinations,
depicting the young victim “grinding” on a couch in a manner that was characterized as
masturbation. Defendant had filmed the videos using his iPhone 4, and the videos had also been
stored on defendant’s Apple iMac and an external hard drive. With respect to the two CSC II
offenses, the prosecution relied on the victim’s testimony “regarding a couple of instances in
which, while both were clothed, defendant pressed his penis against the child’s genital area[.]”
Sardy, 313 Mich App at 690. This testimony was elicited from the victim at defendant’s
preliminary examination, and the trial court had admitted the victim’s preliminary examination
testimony at the trial upon finding that she was unavailable due to lack of memory after the
victim had taken the stand and provided some testimony on foundational and peripheral matters
but then could not recall matters pertaining to the two acts of CSC II. The trial court allowed
defendant to cross-examine the victim at trial, but limited the cross-examination to the subject-
matter of the direct examination, essentially precluding exploration by defendant of the CSC II
accusations made by the victim and her current lack of recall or memory.

        In his appeal to us, defendant had argued that the trial court violated his constitutional
right to confront the state’s witnesses when it allowed the victim’s preliminary examination
testimony to be admitted as substantive evidence at trial. Defendant maintained “that the victim
was not ‘unavailable’ as required to admit the evidence, that the victim’s testimony at the
preliminary examination was unsworn and thus unusable, given that she had not been placed
under oath before testifying, and that the preliminary examination did not provide defendant a
full and fair opportunity for cross-examination.” Sardy, 313 Mich App at 691. In Part II of our
opinion, now vacated in its entirety, we ruled that the victim had been unavailable for purposes
of the Confrontation Clause, that defendant had a full and fair opportunity for cross-examination
at the preliminary examination, and that the failure to place the victim under oath at the
preliminary examination did not warrant reversal. Id. at 691-711. We note that defendant did
not argue to us that his confrontation rights were infringed when the trial court limited his cross-
examination of the victim at trial; therefore, we did not address that issue. Defendant also did
not raise that issue in his application for leave to appeal filed with our Supreme Court. Instead,
the Supreme Court, acting sua sponte, has presented that issue to us for review.2

        The Supreme Court, providing pinpoint citations of three United States Supreme Court
opinions, has directed us to examine whether the victim was unavailable for purposes of the
Confrontation Clause and whether the trial court violated defendant’s confrontation rights by
limiting the cross-examination of the victim at trial. We hold that the victim was “available” in
relationship to the Confrontation Clause and that the trial court erred by not allowing defendant


2
  The Supreme Court’s order remanded the case to us for reconsideration of the two issues set
forth in the order; however, as indicated, the second issue concerning cross-examination of the
victim at trial was not considered by us in the first instance, as it was never argued. We do note
that defendant had preserved the issue at trial.

                                                -2-
to cross-examine the victim regarding her memory loss and the alleged conduct giving rise to the
two CSC II charges.

        In Crawford, 541 US at 59 n 9, the United States Supreme Court noted that when a
declarant appears at trial for cross-examination, the Confrontation Clause does not place any
constraints on the use of prior testimonial statements, and that the Clause does not bar the
admission of statements “so long as the declarant is present at trial to defend or explain it.” The
language in this footnote has been construed “to mean that even a witness with no memory of the
events in question is nevertheless present and available for cross-examination” for Confrontation
Clause purposes. State v Toohey, 816 NW2d 120, 128 (SD, 2012), citing State v Biggs, 333
SW3d 472, 477-478 (Mo, 2011); State v Holliday, 745 NW2d 556, 567-568 (Minn, 2008); State
v Legere, 157 NH 746, 754-755; 958 A2d 969 (2008); State v Pierre, 277 Conn 42, 80-83; 890
A2d 474 (2006); State v Gorman, 854 A2d 1164, 1177 (Me, 2004). Here, the declarant, the
victim, was present at trial and could have been cross examined regarding the CSC II offenses
and her memory loss. In Owens, 484 US at 559-560, the United States Supreme Court ruled:

       The Confrontation Clause guarantees only an opportunity for effective cross-
       examination, not cross-examination that is effective in whatever way, and to
       whatever extent, the defense might wish. . . . [T]hat opportunity is not denied
       when a witness testifies as to his current belief but is unable to recollect the
       reason for that belief. It is sufficient that the defendant has the opportunity to
       bring out such matters as the witness' bias, his lack of care and attentiveness, his
       poor eyesight, and even . . . the very fact that he has a bad memory. If the ability
       to inquire into these matters suffices to establish the constitutionally requisite
       opportunity for cross-examination when a witness testifies as to his current belief,
       the basis for which he cannot recall, we see no reason why it should not suffice
       when the witness' past belief is introduced and he is unable to recollect the reason
       for that past belief. In both cases the foundation for the belief (current or past)
       cannot effectively be elicited, but other means of impugning the belief are
       available. Indeed, if there is any difference in persuasive impact between the
       statement “I believe this to be the man who assaulted me, but can't remember
       why” and the statement “I don't know whether this is the man who assaulted me,
       but I told the police I believed so earlier,” the former would seem, if anything,
       more damaging and hence give rise to a greater need for memory-testing, if that is
       to be considered essential to an opportunity for effective cross-examination. We
       conclude with respect to this latter example, as we did . . . with respect to the
       former, that it is not. The weapons available to impugn the witness' statement
       when memory loss is asserted will of course not always achieve success, but
       successful cross-examination is not the constitutional guarantee. They are,
       however, realistic weapons, as is demonstrated by defense counsel's summation in
       this very case, which emphasized [the victim’s] memory loss and argued that his
       identification of respondent was the result of the suggestions of people who
       visited him in the hospital. [Citations, quotation marks, and alteration brackets
       omitted.]

       Owens indicates that a declarant who appears at trial but claims memory loss is
“available” for purposes of the Confrontation Clause, even though our hearsay rules provide that
                                                -3-
a declarant is unavailable when the declarant “has a lack of memory of the subject matter of the
declarant’s statement[,]” MRE 804(a)(3).3 See Toohey, 816 NW2d at 128 n 2 (noting that under
the South Dakota rule of evidence comparable to MRE 804(a), lack of memory renders a witness
unavailable, yet, under Owens, “memory loss may not render a witness ‘unavailable’ in the
constitutional sense”). On the strength of Crawford and Owens, we hold that the victim was
available for purposes of the Confrontation Clause.

        With respect to the use of the victim’s preliminary examination testimony at trial,
Crawford, as indicated earlier, observed that when a declarant appears at trial and testifies on
cross-examination, the Confrontation Clause does not place constraints on or bar the use of prior
testimonial statements. Crawford, 541 US at 59 n 9. Although defendant was able to cross-
examine the victim at the preliminary examination, defendant was not given the opportunity to
cross-examine her at trial relative to the CSC II charges, at which point the victim was claiming
a lack of any memory of the sexual assaults. The jury was not presented with cross-examination
testimony that the substance of the claims made by the victim at the time of the preliminary
examination was now no longer recalled or remembered by the victim. Defendant was thus
deprived of the opportunity to potentially undermine entirely the charges of CSC II by the trial
court’s limitation of the victim’s cross-examination at trial. See Owens, 484 US at 559-560. We
therefore hold, relative to the second question posed in the Supreme Court’s remand order, that
there was indeed a Confrontation Clause violation. And under these circumstances, we cannot
conclude that the Confrontation Clause infringement was harmless beyond a reasonable doubt.
See People v Shepherd, 472 Mich 343, 348; 697 NW2d 144 (2005). Accordingly, we must
vacate the two CSC II convictions.4 However, in regard to the CSAA and computer-crime
convictions, they are once again affirmed, given that defendant’s inability to cross-examine the
victim at trial did not have any pertinent bearing on those crimes, which were established by the
videos and the testimony of others. And to the extent that cross-examination of the victim may
have had any relevancy to the CSAA and computer-crime offenses, we deem any Confrontation
Clause violation harmless beyond a reasonable doubt.

       Finally, although we had remanded the case originally for a Crosby proceeding under
Lockridge, we now remand for resentencing on the CSAA and computer-crime convictions
under the advisory guidelines and the principles established in Lockridge, as there exists a


3
  In our original opinion, we had relied on MRE 804(a)(3) and People v Garland, 286 Mich App
1, 7; 777 NW2d 732 (2009), which indicated that the provisions concerning “unavailability” in
MRE 804(a) could be employed to determine unavailability for purposes of the Confrontation
Clause. We note that defendant had simply argued that the victim was available because she had
feigned lack of memory and was instead refusing to testify; defendant did not argue to us that a
declarant who takes the stand and claims lack of memory is “available” for purposes of the
Confrontation Clause.
4
  We note that the remand order also made reference to Van Arsdall, 475 US at 679, but the
discussion on page 679 of that opinion simply acknowledged that a trial court has wide latitude
to impose reasonable limits on cross-examination. Here, the trial court’s limit was not
reasonable, barring any and all cross-examination on the CSC II charges.

                                               -4-
possibility that the vacation of the CSC II convictions may affect the scoring of the sentencing
variables and the exercise of the court’s sentencing discretion.

        Affirmed with respect to defendant’s CSAA and computer-crime convictions, vacated in
regard to defendant’s two CSC II convictions, and remanded for resentencing. We do not retain
jurisdiction.



                                                           /s/ William B. Murphy
                                                           /s/ Cynthia Diane Stephens
                                                           /s/ Michael F. Gadola




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