              If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                   revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 7, 2019
                Plaintiff-Appellee,

v                                                                    No. 338351
                                                                     Macomb Circuit Court
LARRY JAMES BAILEY,                                                  LC No. 2016-002492-FH

                Defendant-Appellant.


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

PER CURIAM.

        A jury convicted defendant of assault with intent to commit criminal sexual conduct
involving penetration, MCL 750.520g(1), and second-degree criminal sexual conduct, MCL
750.520c(2)(b), with respect to his ex-girlfriend’s daughter. Defendant appeals, arguing that he
received ineffective assistance of counsel when his counsel introduced a transcript of the child’s
forensic interview into evidence. For the reasons stated below, we remand for a Ginther1
hearing.

                                       I. BACKGROUND

       Defendant and Sierra Johnson had an on-and-off again relationship from 2013 through
2015. It was a tumultuous relationship that included abuse and infidelity. During one of the
couple’s many breakups, defendant married another woman, but defendant and Johnson
subsequently reunited. The couple continued having problems, including arguments about
defendant divorcing his wife so that he and Johnson could marry. The couple’s final breakup
was on December 16, 2015.

       The instant allegations arose about six days later. Johnson’s then seven-year-old
daughter, LJ, was staying with her grandmother, Tanya Brill. Brill testified at trial that she asked


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).



                                                -1-
LJ why she had been acting differently. LJ eventually disclosed to her grandmother that she did
not like defendant because he was “a child molester.” LJ told her grandmother that defendant
sexually abused her. The police were notified, and LJ underwent a sexual assault examination at
the hospital. 2 She later participated in a forensic interview with the Macomb County Child
Advocacy Center (CARE House).

         Defendant was charged with sexually assaulting LJ in her home on two occasions
between June 1, 2014, and December 16, 2015, while he was babysitting her. At trial, LJ
testified that on one occasion, defendant sat next to her on the living room couch and touched her
vagina, over her clothing, with his hand. She testified that on another occasion, defendant told
her to go into her mother’s bedroom, take off her clothes, and not tell anyone. According to LJ,
defendant unsuccessfully attempted to penetrate her anus with his penis.

        In addition to LJ, the prosecution called Johnson, Brill, the sexual assault nurse examiner
(SANE), and the forensic interviewer as witnesses. In her testimony, Brill recounted what LJ
said when making her initial disclosure. Heather Solomon testified that she conducted a forensic
interview of LJ at CARE House on January 7, 2016. Solomon testified, without objection, that
LJ’s statements during the interview were “consistent with the allegations” Solomon was given
before the interview and that LJ specifically named defendant as her abuser.

        During cross-examination, counsel questioned Solomon about how the interview was
transcribed. In response to his questions, Solomon acknowledged the possibility that staff
members transcribing the interview made errors. Counsel then moved to admit the interview
transcript into evidence. The prosecutor objected on hearsay grounds, but then withdrew her
objection and the court admitted the transcript. Defense counsel continued to question Solomon
about the transcript and, in closing arguments, was critical of the way in which it was recorded.
The prosecutor encouraged the jury to read the transcript during deliberations, and the jury
requested the exhibits shortly after deliberations began.

        Defendant maintained his innocence throughout. The defense denied that defendant
assaulted LJ in any way, and argued that LJ falsely accused defendant as an act of retaliation
orchestrated by her mother, who was upset that defendant had left her and returned to his wife.

                                          II. ANALYSIS

        Defendant argues that defense counsel’s decision to introduce the forensic interview
transcript into evidence violated his constitutional right to effective assistance of counsel. We
conclude that remand for a Ginther hearing is warranted.

       To establish a claim of ineffective assistance of counsel, defendant must demonstrate that
defense counsel’s performance fell below an objective standard of professional reasonableness,
and that, in the absence of counsel’s unprofessional errors, there is a reasonable probability that



2
    The examination did not reveal any physical indication of sexual abuse.



                                                 -2-
the outcome of the proceedings would have been different. People v Grant, 470 Mich 477, 485-
486; 684 NW2d 686 (2004).

        Hearsay is an out-of-court statement that is “offered in evidence to prove the truth of the
matter asserted.” MRE 801(c). It is axiomatic that unless an exception applies, hearsay is
inadmissible. MRE 802; People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013). The
Michigan Rules of Evidence provide a specific hearsay exception, MRE 803A, allowing
admission of “a child’s statement regarding sexual assault in certain circumstances.” People v
Gursky, 486 Mich 596, 586; 786 NW2d 579 (2010). Notably, this exception is limited to only
the child’s first “corroborative statement about the incident . . . .” MRE 803A. Thus, in People v
Douglas, 496 Mich 557, 575; 852 NW2d 587 (2014), the Supreme Court held that a child’s
statements during a forensic interview, whether recounted by the interviewer or recorded by
video, were inadmissible when the child had previously disclosed the allegations. As the Court
stated, “To conclude otherwise would contravene MRE 803A’s express preference for first
corroborative statements, and the rationale underlying it,” which recognizes that “[a]s time goes
on, a child’s perceptions become more and more influenced by the reactions of the adults with
whom the child speaks.”3 Id. at 577 (quotation and citation omitted; alteration in original).

       In this case, both Solomon’s testimony and the transcript of the interview recounted out-
of-court hearsay statements by LJ. These statements, however, were not LJ’s first corroborative
statement—the first was her disclosure to Brill, her grandmother. Her statements during the
CARE House interview whether recounted by Solomon or contained in the transcript, do not fall
within MRE 803A and so are inadmissible hearsay.

        Whether or not counsel’s decision not to object to Solomon’s hearsay testimony and to
admit the transcript constituted ineffective assistance of counsel requires consideration of
counsel’s strategy and alternatives. While we generally defer to a counsel’s strategic decision, “a
court cannot insulate the review of counsel’s performance by calling it trial strategy; counsel’s
strategy must be sound, and the decisions as to it objectively reasonable.” People v Ackley, 497
Mich 381, 388-389; 870 NW2d 858 (2015) (quotation marks and citations omitted). The basis
for counsel’s decisions regarding Solomon’s testimony and the transcript of the interview are not
provided in the record and so we cannot evaluate whether or not those decisions constituted
reasonable professional judgment given the facts of the case and counsel’s strategy and options.
Accordingly, we remand the matter to the trial court for a Ginther hearing to determine whether
defense counsel’s failure to object to the hearsay testimony and his admission of the transcript
constituted ineffective assistance of counsel and, if so, whether exclusion of the hearsay would
have resulted in a reasonable probability of a different outcome at trial. Grant, 470 Mich at 486.




3
  Douglas also rejected admission of such statements under the residual exception to hearsay,
reasoning that “MRE 803(24)’s residual exception cannot be used to ‘swallow’ MRE 803A’s
categorical one in this fashion.” Douglas, 496 Mich at 577.




                                                -3-
Remanded for proceedings consistent with this opinion. We retain jurisdiction.

                                                   /s/ Jonathan Tukel
                                                   /s/ Douglas B. Shapiro
                                                   /s/ Michael F. Gadola




                                       -4-
                                 Court of Appeals, State of Michigan
                                                ORDER
                                                                            Jonathan Tukel
People of Michigan v Larry James Bailey                                        Presiding Judge

Docket No.    338351                                                        Douglas B. Shapiro

LC No.        2016-002492 FH                                                Michael F. Gadola
                                                                               Judges


               Pursuant to the opinion issued concurrently with this order, this case is REMANDED to
the trial court for an evidentiary hearing and decision whether defendant was denied the effective
assistance of counsel. People v Ginther, 390 Mich 436 (1993). This Court retains jurisdiction.

                Appellant is responsible for initiating the proceedings on remand. The parties shall
promptly file with this Court a copy of all papers filed on remand. Within 14 days after entry, appellant
shall file with this Court copies of all orders entered on remand. The transcript of all proceedings on
remand shall be prepared and filed within 21 days after completion of the proceedings.

              The trial court shall hear and decide the matter within 56 days of the date of this order
and shall make an appropriate determination on the record.



                                                          /s/ Jonathan Tukel




                                March 7, 2019
