                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 9, 2017
              Plaintiff-Appellant,

v                                                                  No. 337954
                                                                   Wayne Circuit Court
BERNARD YOUNG,                                                     LC No. 89-005069-01-FC

              Defendant-Appellee.


Before: BECKERING, P.J., and O’BRIEN and CAMERON, JJ.

PER CURIAM.

       In 1989, defendant was convicted, following a bench trial, of six counts of criminal
sexual conduct in the first degree (victim under 13 years of age) (CSC-I), MCL 750.520b(1)(a).
Defendant was sentenced to concurrent terms of 60 to 100 years’ imprisonment for each count.
The prosecution now appeals by leave granted the circuit court’s order granting defendant’s
motion for relief from judgment.1 We affirm.

        This case arises from the sexual abuse of two boys, AT and TT, who, at the time of the
sexual abuse, were six and five years old respectively. During trial, AT and TT’s mother
(mother) testified that when she was away at work, she entrusted AT, TT, and their younger half-
sister, LC, to the care of her live-in boyfriend, William Clark. Clark is LC’s biological father,
and AT and TT referred to Clark as “dad.” It was mother’s understanding that only Clark
babysat the children when she was away, but she later learned from her children that either
defendant, who lived across the street, or defendant’s brother, who was her next-door neighbor,
would occasionally watch the children.

        On one evening in the summer of 1988, mother discovered AT and TT engaging in oral
sex in their bedroom. Mother sought out resources for assistance, and ultimately, AT and TT
were admitted to Aurora Hospital in Detroit for treatment. In April 1989, the boys told their
therapist that defendant had sexually abused them from January 1988 to July 1988. Based on
those disclosures, the assigned assistant prosecuting attorney recommended an arrest warrant on


1
 People v Young, unpublished order of the Court of Appeals, entered May 18, 2017 (Docket No.
337954).


                                               -1-
April 16, 1989. The investigator’s report attached to the warrant stated that both boys claimed
defendant “inserted his penis into their anus and mouth.” The boys also claimed that defendant
“forced them to engaged [sic] in . . . sexual activities with each other” and were forced to “put
their penis into each other [sic] mouth and anus.”

        Before defendant’s trial, Detroit police began conducting a second investigation, this time
investigating Clark for sexually abusing AT and TT. On May 17, 1989, police investigators
interviewed AT and TT and both boys accused Clark of sexual abuse. TT told investigators that
Clark “sucked” TT’s “private parts” and said Clark “put his penis in my butt.” TT also said
Clark put his penis in TT’s mouth and that Clark did so on TT’s fifth birthday. TT further said
that Clark made AT “put his penis in [TT’s] butt” and TT’s mouth. AT’s answers were similar
to TT’s. However, AT added that defendant was never in the house when Clark sexually abused
them and Clark threatened them to not tell anyone. It is undisputed that the assistant prosecuting
attorney did not initiate criminal proceedings against Clark until after defendant’s sentence.

         On August 14, 1989, AT and TT testified at trial about the sexual abuse defendant
committed while babysitting them. AT and TT said that the abuse occurred when mother and
Clark were not present in their home. AT said that defendant “put his penis where I sit at.” AT
also explained that defendant told him to “suck” defendant’s penis, and defendant also “sucked”
AT’s penis. AT testified that defendant made AT “put it where [defendant] sit at.” Defendant
also reportedly forced AT and TT to engage in those same sexual acts on each other. TT
testified that defendant “messed with [TT’s] private parts and made TT “suck[ AT’s and
defendant’s] private.” TT also said that defendant “[p]ut his penis where I sit.”

        Defendant’s trial theory was that the children fabricated the sexual abuse allegations to
ensure they would no longer live with Clark, who had physically abused them. In support of this
theory, defendant elicited testimony from several witnesses that Clark used a belt to discipline
the children. Defendant also called his brother, Braxter Young, who testified that he was Clark’s
next-door neighbor and was friends with the family for approximately eight years. Young saw
the family nearly every day and would babysit the children on occasion. He denied ever seeing
defendant babysit the children and asserted that his brother did not visit their house since Clark
accused defendant of stealing something from the home. He also testified that his brother had
moved from their neighborhood before the alleged sexual abuse took place. Defendant provided
similar testimony on his own behalf, denying he sexually abused AT and TT, and claiming he
had not been to the children’s home since 1986 when Clark had accused him of theft.

        In 2016, defendant obtained Clark’s police file from a Freedom of Information Act
(FOIA) request. The records showed Clark was under investigation for sexually abusing AT and
TT while defendant’s prosecution was pending. Among the records obtained were AT’s and
TT’s witness statements accusing Clark of almost identical sexual conduct that the children had
accused defendant of committing just a month earlier. Indeed, AT and TT accused Clark of
sexual abuse during the same timeframe during which defendant’s abuse reportedly occurred.
The FOIA records further revealed that the assistant prosecutor and lead officer assigned to
prosecute defendant were the same prosecutor and officer reviewing and investigating Clark for
his sexual abuse of AT and TT. It is also noteworthy that the records show police requested the
assistant prosecutor to charge Clark for sexually assaulting AT and TT several months before
defendant’s trial, but for reasons that are unclear from the record, the assistant prosecutor did not

                                                -2-
issue the charges until November 9, 1989, approximately two months after defendant’s
sentencing. Clark was then charged with multiple counts of CSC-I and later accepted an offer
from the same assistant prosecuting attorney to a reduced charge of second-degree child abuse.
Clark was later sentenced to three years’ probation.

        Defendant filed his third motion for relief from judgment in 2016,2 providing affidavits
from AT and TT in which they recanted their 1989 testimony, swore that Clark actually abused
them, and claimed they lied at defendant’s trial because they were afraid of Clark. A few months
later, defendant received the documents from the FOIA request and filed a supplemental brief,
claiming that the prosecution intentionally suppressed the materials from Clark’s police
investigation, which constituted material evidence under Brady v Maryland, 373 US 83; 83 S Ct
1194; 10 L Ed 2d 215 (1963). Following a multi-day evidentiary hearing, the circuit court
concluded that the suppression of the records from the Clark investigation constituted a Brady
violation, and it granted defendant’s motion, vacated defendant’s convictions and sentences, and
granted a new trial.

       The prosecution contends that the circuit court erred when it granted defendant’s third
motion for relief from judgment. We disagree.

        “We review a trial court’s decision on a motion for relief from judgment for an abuse of
discretion and its findings of facts supporting its decision for clear error. A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes, or
makes an error of law.” People v Swain, 288 Mich App 609, 628-629; 794 NW2d 92 (2010)
(citations omitted). “[T]he interpretation of a court rule is a question of law and is reviewed de
novo.” People v Hawkins, 468 Mich 488, 497; 668 NW2d 602 (2003) (citations and quotation
marks omitted). “Similarly, [t]his Court reviews due process claims, such as allegations of a
Brady violation, de novo.” People v Dimambro, 318 Mich App 204, 212; 897 NW2d 233 (2016)
(citation and quotation marks omitted).

       The prosecution first claims that the circuit court erred when it ruled that defendant’s
third motion for relief from judgment was not barred by MCR 6.508(D)(2). The prosecution’s
contention is without merit.

         MCR 6.502(G)(2) provides, in relevant part, that “[a] defendant may file a second or
subsequent motion based on a retroactive change in law that occurred after the first motion for
relief from judgment or a claim of new evidence that was not discovered before the first such
motion.” MCR 6.508(D) states in part:

       (D) Entitlement to Relief. The defendant has the burden of establishing
       entitlement to the relief requested. The court may not grant relief to the defendant
       if the motion


2
  In defendant’s second motion for relief from judgment, filed in 2009, he claimed that the
prosecution withheld the fact that Clark was charged with CSC-I. Defendant claimed this
amounted to a Brady violation, but the circuit court denied the motion.


                                                 -3-
                                            * * *

       (2) alleges grounds for relief which were decided against the defendant in a prior
       appeal or proceeding under this subchapter, unless the defendant establishes that a
       retroactive change in the law has undermined the prior decision;

       (3) alleges grounds for relief, other than jurisdictional defects, which could have
       been raised on appeal from the conviction and sentence or in a prior motion under
       this subchapter, unless the defendant demonstrates

              (a) good cause for failure to raise such grounds on appeal or in the prior
              motion, and

              (b) actual prejudice from the alleged irregularities that support the claim
              for relief. As used in this subrule, “actual prejudice” means that,

                      (i) in a conviction following a trial, but for the alleged error, the
                      defendant would have had a reasonably likely chance of
                      acquittal[.]

         Defendant claimed in his second motion for relief from judgment that the prosecution’s
failure to disclose that Clark had been charged with sexually abusing AT, TT, and LC violated
defendant’s right to due process pursuant to Brady, which defendant supported by providing a
copy of Clark’s felony information and documentation relating to parental termination
proceedings that referenced Clark’s alleged sexual abuse of the children. Ultimately, the circuit
court denied defendant’s second motion for relief from judgment without explicitly addressing
defendant’s Brady claim. Defendant claimed in a supplemental brief to his third motion for
relief from judgment that the prosecution had violated his right to due process pursuant to Brady
based on newly discovered evidence, i.e., the police records relating to Clark’s sexual abuse.
Thus, the prosecution contends that this is the second occasion that defendant has raised a Brady
claim concerning Clark’s sexual abuse of AT and TT, and “[t]here is absolutely no meaningful
distinction between the two claims.” However, defendant’s current Brady claim is premised on
newly discovered evidence that was not available to defendant at the time he raised his initial
Brady claim—AT’s and TT’s witness statements from the May 17, 1989 police interview and
other records from Clark’s police investigation.

        The prosecution argues that there is nothing “materially different” between the evidence
defendant relied on for his second motion for relief from judgment and Clark’s police records
provided in the third motion, and for that reason, the circuit court erred when it granted
defendant’s motion. However, there is a substantial difference between the two. Defendant’s
second motion was premised on evidence that merely showed Clark was subsequently charged
with CSC-I after defendant’s trial and that documentation from child protective proceedings
indicated Clark may have sexually abused them when mother was not home. There was no
evidence that the government failed to disclose evidence of Clark’s similar sexual abuse before
defendant’s trial. As the circuit court properly concluded, defendant’s third motion was
premised on AT’s and TT’s witness statements taken in May 1989, approximately one month
after defendant had been charged and before defendant’s trial. Thus, defendant’s Brady claim

                                               -4-
concerns the specific pieces of evidence from Clark’s investigation that was not disclosed. AT’s
and TT’s witness statements, which specifically describe when and how Clark sexually abused
them, are entirely different from the general and vague post-trial evidence that defendant
provided in support of his second motion for relief from judgment.

        Next, the prosecution contends that People v Cress, 468 Mich 678; 664 NW2d 174
(2003), governs the substance of defendant’s claim. In Cress, the Michigan Supreme Court
reiterated:

       For a new trial to be granted on the basis of newly discovered evidence, a
       defendant must show that: (1) the evidence itself, not merely its materiality, was
       newly discovered; (2) the newly discovered evidence was not cumulative; (3) the
       party could not, using reasonable diligence, have discovered and produced the
       evidence at trial; and (4) the new evidence makes a different result probable on
       retrial. [Id. at 692 (citations and quotation marks omitted).]

The prosecution argues that the circuit court should have denied defendant’s third motion for
relief from judgment because defendant could have obtained Clark’s police records by exercising
reasonable diligence. However, the prosecution has not provided any legal authority in support
of its position that Cress, which concerns whether a defendant is entitled to a new trial based on
newly discovered evidence, governs defendant’s due process claim under Brady. “ ‘An appellant
may not merely announce his position and leave it to this Court to discover and rationalize the
basis for his claims, nor may he give only cursory treatment with little or no citation of
supporting authority.’ ” People v Henry, 315 Mich App 130, 148; 889 NW2d 1 (2016), quoting
People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Regardless, the Michigan
Supreme Court has previously rejected the adoption of a Brady test that incorporated a diligence
requirement. See People v Chenault, 495 Mich 142, 151-152, 154-155, 159; 845 NW2d 731
(2014) (rejecting a modified Brady test which included a requirement that the defendant “did not
possess the evidence nor could he have obtained it himself with any reasonable diligence,”
because it was not doctrinally supported and because it undermined the purpose of Brady).
Therefore, the prosecution’s contention is also unavailing on its merits.3

       The prosecution also claims that the circuit court erred when it concluded defendant had
demonstrated actual prejudice under MCR 6.508(D)(3)(b)(i)4 because defendant established a
Brady violation. We disagree.




3
  The prosecution does not challenge the circuit court’s finding that defendant had good cause
under MCR 6.508(D)(3)(a) for failing to raise a Brady claim based on Clark’s police records,
and therefore, we do not address the issue.
4
  MCR 6.508(D)(3)(b)(i) defines actual prejudice as “in a conviction following a trial, but for the
alleged error, the defendant would have had a reasonably likely chance of acquittal.”


                                                -5-
         “The Supreme Court of the United States held in Brady that ‘the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.’ ” Chenault, 495 Mich at 149, quoting Brady, 373 US at 87. “The essential
components of a Brady violation are as follows: ‘The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’
” Dimambro, 318 Mich App at 212-213, quoting Chenault, 495 Mich at 149-150 (citation and
quotation marks omitted). Stated differently, the controlling test for Brady is that: “(1) the
prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its
totality, is material.” Chenault, 495 Mich at 155.

       As explained by the Michigan Supreme Court:

       The contours of these three factors are fairly settled. The government is held
       responsible for evidence within its control, even evidence unknown to the
       prosecution, Kyles v Whitley, 514 US 419, 437; 115 S Ct 1555; 131 L Ed 2d 490
       (1995), without regard to the prosecution’s good or bad faith, United States v
       Agurs, 427 US 97, 110; 96 S Ct 2392; 49 L Ed 2d 342 (1976) (“If the suppression
       of evidence results in constitutional error, it is because of the character of the
       evidence, not the character of the prosecutor.”). Evidence is favorable to the
       defense when it is either exculpatory or impeaching. Giglio v United States, 405
       US 150, 154; 92 S Ct 763; 31 L Ed 2d 104 (1972) (“When the ‘reliability of a
       given witness may well be determinative of guilt or innocence,’ nondisclosure of
       evidence affecting credibility falls within this general rule [of Brady].”), quoting
       Napue v Illinois, 360 US 264, 269; 79 S Ct 1173; 3 L Ed 2d 1217 (1959). To
       establish materiality, a defendant must show that “there is a reasonable probability
       that, had the evidence been disclosed to the defense, the result of the proceeding
       would have been different. A ‘reasonable probability’ is a probability sufficient
       to undermine confidence in the outcome.” United States v Bagley, 473 US 667,
       682; 105 S Ct 3375; 87 L Ed 2d 481 (1985). This standard “does not require
       demonstration by a preponderance that disclosure of the suppressed evidence
       would have resulted ultimately in the defendant’s acquittal . . . .” Kyles, 514 US
       at 434; 115 S Ct 1555. The question is whether, in the absence of the suppressed
       evidence, the defendant “received a fair trial, understood as a trial resulting in a
       verdict worthy of confidence.” Id. In assessing the materiality of the evidence,
       courts are to consider the suppressed evidence collectively, rather than piecemeal.
       Id. at 436; 115 S Ct 1555. [Chenault, 495 Mich at 150-151 (alteration in
       original).]

       First, the prosecution argues that the circuit court erred when it found that the prosecution
suppressed the records from the Clark investigation. This argument fails.

       A Brady claim requires a finding that the prosecution actually suppressed the evidence in
question. “[T]he individual prosecutor [does have] a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including the police[.]”
Dimambro, 318 Mich App at 213, quoting Kyles, 514 US at 437 (alteration in original). “The

                                                -6-
prosecution’s failure to disclose exculpatory or material evidence in its possession constitutes a
due process violation regardless of whether a defendant requested the evidence.” People v
Henry (After Remand), 305 Mich App 127, 157; 854 NW2d 114 (2014), citing Brady, 373 US at
87.

         There is no dispute that the prosecution was, at some point, in possession of the Clark
file. The assistant prosecutor at the time was assigned to both cases that were ongoing. Even if
this was not the case, she was under a duty to learn of any favorable evidence that the police had
discovered. Dimambro, 318 Mich App at 213. Therefore, the prosecution cannot argue that it
did not know about the evidence. Instead, the prosecution argues that there simply was no proof
that it failed to disclose the witness statements to the defense. This argument fails. Defendant
has adamantly proclaimed in his briefing below and on appeal that he never received the Brady
material, and we detect no clear error in the circuit court’s finding that “the Brady material was
never disclosed to [defendant] before trial because there is no indication that the Brady material
was provided to him before trial.” As the circuit court explained, there was no indication that
defense counsel knew about the witness statements either before or during trial. A review of the
record shows that defense counsel did not file any pre-trial evidentiary motions seeking to admit
the children’s statements, the prosecution removed Clark from the witness list and defense
counsel did not object to the removal, defense counsel’s examination of AT and TT did not
suggest that defense counsel knew about the Clark investigation, and there was no mention of
possible sexual abuse during defense counsel’s opening or closing argument despite the fact that
evidence Clark was physically and sexually abusive was consistent with defendant’s theory of
the case. As the circuit court correctly reasoned, there was no evidence to suggest that defense
counsel received the records from the Clark investigation, and the trial court’s findings were not
clearly erroneous. Therefore, defendant has shown that the prosecution failed to disclose the
evidence, and the circuit court did not abuse its discretion concerning this element when it
granted defendant’s third motion for relief from judgment.

       The prosecution argues that even if the evidence was suppressed, the circuit court erred
because the records from the Clark investigation were not material to defendant’s case. This
argument fails.

       In Wood v Bartholomew, 516 US 1, 5-6, 8; 116 S Ct 7; 133 L Ed 2d 1 (1995), the United
States Supreme Court held that polygraph examinations of two state witnesses, which were
inadmissible as evidence under state law, were not “material” under Brady because those items
could not be introduced at trial and only supported weak suppositions regarding their potential
impact. Here, to determine materiality, the issue first turns on whether the evidence from Clark’s
police investigation could have been introduced at trial. This necessitates a review of
Michigan’s rape-shield statute.

       MCL 750.520j, known as the rape-shield statute, provides, in relevant part:

       (1) Evidence of specific instances of the victim’s sexual conduct, opinion
       evidence of the victim’s sexual conduct, and reputation evidence of the victim’s
       sexual conduct shall not be admitted under sections 520b to 520g unless and only
       to the extent that the judge finds that the following proposed evidence is material


                                               -7-
       to a fact at issue in the case and that its inflammatory or prejudicial nature does
       not outweigh its probative value:

       (a) Evidence of the victim’s past sexual conduct with the actor.

       (b) Evidence of specific instances of sexual activity showing the source or origin
       of semen, pregnancy, or disease. [MCL 750.520j(1)(a) and (1)(b).]

        Thus, “[t]he rape-shield statute ‘bars, with two narrow exceptions, evidence of all sexual
activity by the complainant not incident to the alleged rape.’ ” People v Duenaz, 306 Mich App
85, 91; 854 NW2d 531 (2014), quoting People v Adair, 452 Mich 473, 478; 550 NW2d 505
(1996) (citation and quotation marks omitted). The statute will not bar “testimony regarding
sexual subjects involving the complainant if such testimony falls outside the scope of the
statute.” People v Sharpe, 319 Mich App 153, ___; 899 NW2d 787, 793 (2017), quoting People
v Ivers, 459 Mich 320, 328; 587 NW2d 10 (1998) (quotation marks omitted). “Although consent
is not a relevant defense to a CSC charge involving an underage minor, Michigan courts have
applied the rape-shield statute in cases involving child victims.” Duenaz, 306 Mich App at 92
(citations omitted).

        We must first determine, as the circuit court did, whether AT’s and TT’s witness
statements made during the Clark investigation fall within the scope of the rape-shield statute.
This Court has held that the rape-shield statute “was enacted to prohibit inquiry into a victim’s
prior sexual encounters” when that evidence is “not incident to the alleged rape.” Duenaz, 306
Mich App at 91-92 (citation and quotation marks omitted). The circuit court correctly concluded
that the evidence from the Clark investigation would not be admissible to inquire into the boys’
prior or concurrent sexual encounters. Instead, the circuit court concluded it would be
admissible to prove Clark, rather than defendant, committed the sexual abuse. Moreover, the
rape-shield statute, while barring “specific instances of sexual conduct,” MCL 750.520j(1), does
not bar specific instances of sexual conduct “incident to the alleged rape.” Duenaz, 306 Mich
App at 91-92. If the statute barred all such instances, then evidence of the sexual abuse
underlying the charges would be inadmissible unless it fell within either of the two delineated
exceptions. The statute does not bar such evidence. The witness statements relating to the Clark
investigation are not only incident to the alleged rape, but arguably direct evidence of the rape at
issue in this case. Importantly, the sexual acts that the boys described concerning defendant and
Clark were, as the circuit court noted, nearly identical. The boys said that each of the two men
“put his penis where I sit at.” They also said that defendant and Clark performed oral sex on the
boys. Additionally, AT and TT said both men forced them to perform sexual acts on each other.
Furthermore, the boys allege the sexual abuse occurred during the exact same narrow timeframe
from January 1988 to July 1988, as referenced in defendant’s and Clark’s felony information.
When taken together, the circuit court concluded the Clark allegations would be admissible to
show that Clark, as opposed to defendant, sexually abused the children, not to inject the
children’s other sexual victimization into the trial. For that reason, the circuit court did not abuse
its discretion when it granted defendant’s motion because the undisclosed evidence was outside
the scope of the rape-shield statute and would have been admissible at trial.




                                                 -8-
       The prosecution also claims that even if the records from Clark’s investigation were
admissible, they are neither favorable to defendant nor material to his guilt. Again, the
prosecution’s argument is without merit.

        “To establish materiality, a defendant must show that ‘there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have
been different.’ ” Chenault, 495 Mich at 150 (citation omitted). The evidence need not
demonstrate that defendant would have ultimately been acquitted. Kyles, 514 US at 434.
Instead, “[t]he question is whether, in the absence of the suppressed evidence, the defendant
‘received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’ ”
Chenault, 495 Mich at 150-151 (citation omitted).

        The witness statements from Clark’s investigation could have been used to show that
Clark, rather than defendant, had sexually abused the children. Therefore, the evidence is
material, and the circuit court did not abuse its discretion when it granted the motion and
concluded defendant was denied a fair trial. The allegations that AT and TT made against Clark
were strikingly similar to their trial testimony against defendant. The boys described the same
sexual acts, claiming they were forced to perform oral sex on their abusers, to perform anal sex
on their abusers, and to engage in sexual acts with each other. AT told the investigator that Clark
threatened them not to say anything about the sexual abuse, and TT said he was abused when he
was five years old—the same age he claimed defendant abused him. Additionally, the boys used
the same terminology to explain the sexual acts against them. For instance, they said that both
men put their penises were they “sit at.” The evidence, when considered collectively, was
material to defendant’s defense.

         Of course, this evidence alone does not necessarily prove that Clark, rather than
defendant, was the sole sexual abuser. However, the circuit court acknowledged there was other
evidence at trial that would support a determination that the Clark investigation was material to
defendant’s case. For instance, Clark’s undisputed access to the boys, the mother’s belief that
only Clark babysat the children, and evidence that defendant reportedly moved from the
neighborhood before the abuse occurred, support an argument that Clark, rather than defendant,
sexually abused the children, and thus, was material to defendant’s case. Moreover, the trial
court’s findings of fact suggests the Clark allegations, if known, were material. The trial court
stated it did not make sense that the two boys would fabricate sexual abuse and “pick [defendant]
out of thin air as opposed to let’s say, [Clark].” With evidence that Clark had sexually abused
them and had threatened them to remain quiet, the trial court may very well have determined that
defendant was not guilty. Therefore, the circuit court did not err when it found the statements to
be material.

         In all, the documentation from Clark’s investigation was favorable to defendant, and
there is a reasonable probability that a different outcome would result if the evidence was
presented. With that said, we also note that AT and TT have both recanted their testimony,
signed affidavits claiming Clark sexually abused them, and now proclaim that defendant never
sexually abused them. While this new evidence is certainly favorable to defendant and material
to this case, it is not evidence we may consider when determining whether defendant received a
fair trial in 1989. However, even without this evidence, which the circuit court determined was
highly suspect, we conclude that the circuit court’s decision to grant defendant’s third motion for

                                                -9-
relief from judgment, vacate defendant’s conviction and sentence, and grant a new trial was not
outside the range of reasonable outcomes.

       Affirmed.



                                                          /s/ Jane M. Beckering
                                                          /s/ Colleen A. O'Brien
                                                          /s/ Thomas C. Cameron




                                             -10-
