                            Court of Appeals, State of Michigan

                                            ORDER
                                                                         Cynthia Diane Stephens
People of MI v Lorinda Irene Swain                                        Presiding Judge

Docket No.    314564                                                     Joel P. Hoekstra

LC No.        2001-004547-FC                                             Patrick M. Meter
                                                                          Judges


              The Court orders that the December 11 , 20 14 opm10n is hereby VACATED, and
a new opinion is attached.




                       A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on




                               FEB O5 2015
                                     Date
                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 5, 2015
                 Plaintiff-Appellant,

v                                                                   No. 314564
                                                                    Calhoun Circuit Court
LORINDA IRENE SWAIN,                                                LC No. 2001-004547-FC

                 Defendant-Appellee.


Before: STEPHENS, P.J., and HOEKSTRA and METER, JJ.

PER CURIAM.

         In 2002, following a jury trial, defendant was convicted of four counts of first-degree
criminal sexual conduct, MCL 750.520b(1)(a), related to her sexual abuse of her adopted son,
Ronnie Swain. This Court affirmed defendant’s convictions on direct appeal in 2004. Defendant
has since filed several motions for relief from judgment. Most recently, after this Court reversed
the trial court’s grant of one of defendant’s successive motions, People v Swain, 288 Mich App
609; 794 NW2d 92 (2010), the trial court permitted defendant to supplement that motion and
conducted an evidentiary hearing. The trial court then granted defendant’s successive motion for
relief from judgment based on findings of newly discovered evidence involving a Brady1
violation, the interests of justice under MCL 770.1, and defendant’s actual innocence. The
prosecution now appeals by leave granted. We reverse.

          This Court reviews for an abuse of discretion a trial court’s decision to grant or deny a
motion for relief from judgment. Swain, 288 Mich App at 628. An abuse of discretion occurs
when a decision falls outside the range of reasonable and principled outcomes or when the trial
court makes an error of law. Id. at 628-629. A trial court’s factual findings related to a motion
for relief from judgment are reviewed for clear error. Id. at 628; MCR 2.613(C). Due process
claims, such as those involving allegations of a Brady violation, are reviewed de novo. People v
Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007).




1
    Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).



                                                -1-
        Motions for relief from judgment are governed by MCR 6.501 et seq. Swain, 288 Mich
App at 629. Under these provisions, a defendant bears the burden of establishing entitlement to
the requested relief. MCR 6.508(D). Pursuant to MCR 6.502(G)(1), a defendant is generally
entitled to only one such motion in regard to a conviction. Attempts to file successive motions
are governed by MCR 6.502(G), which prohibits a successive motion unless the motion is based
on either (1) “a retroactive change in law that occurred after the first motion for relief from
judgment” or (2) “a claim of new evidence that was not discovered before the first such motion.”
See MCR 6.502(G)(2). These are the only two exceptions to the general prohibition on
successive motions for relief from judgment. Swain, 288 Mich App at 635-636. If a defendant
fails to satisfy at least one of these exceptions, a trial court abuses its discretion by failing to
deny the motion. See id.

       Defendant alleges that she has presented the trial court with “new evidence” that was not
discovered before her previous motion for relief from judgment, thereby satisfying the newly-
discovered-evidence exception in MCR 6.502(G)(2). To determine whether evidence is newly
discovered, we apply the test articulated in People v Cress, 468 Mich 678, 692; 664 NW2d 174
(2003), which requires a defendant to establish 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. [Internal citations
       and quotation marks omitted.]

        To resolve the present dispute, it is initially necessary to identify what constitutes the
“newly discovered evidence” at issue. The prosecution maintains that the allegedly newly
discovered evidence is the identity of Dennis Book, defendant’s former live-in boyfriend, and his
knowledge of events in the trailer where some of the abuse occurred. If such a formulation of
the “evidence” is accepted, plainly defendant has not shown entitlement to relief on the basis of
newly discovered evidence. This is so because it is well-accepted in Michigan that evidence is
not newly discovered if, as in the present case, the defendant or defense counsel was aware of the
evidence at the time of trial. People v Rao, 491 Mich 271, 281; 815 NW2d 105 (2012). In
defendant’s case, it is uncontested that, at the time of trial, defendant and her trial counsel
(Edwin Hettinger) both knew of Book’s presence in the trailer during a portion of the relevant
period, and they knew that he would be aware that abuse had not occurred in his presence.
Defendant in fact referenced Book in her trial testimony, describing his presence in the home
during part of the relevant time, and Hettinger acknowledged at the evidentiary hearing that he
had been informed of Book’s presence in the home. Under these circumstances, defendant and
her attorney were most certainly aware at all pertinent times of Book’s ability to provide
testimony concurring the abuse or lack thereof and defendant has thus failed to show that the
evidence was newly discovered. See People v Terrell, 289 Mich App 553, 570; 797 NW2d 684
(2010).

        Moreover, as a related matter, the third consideration of Cress requires that defendant
demonstrate “reasonable diligence” in her effort to have discovered and produced the evidence at
trial. Cress, 468 Mich at 692. While defendant has indicated that, despite her knowledge of
Book, she could not call him as a witness because of his perceived hostility toward her and his

                                                -2-
unwillingness to speak with her, “a defendant’s awareness of the evidence at the time of trial
precludes a finding that the evidence is newly discovered, even if the evidence is claimed to have
been ‘unavailable’ at the time of trial.” Rao, 491 Mich at 282. In these circumstances, a
defendant “is charged with the burden of using reasonable diligence to make that evidence
available and produce it at trial.” Id. at 283 (emphasis in original). What constitutes reasonable
diligence will depend on the circumstances involved, bearing in mind that “the law affords a
defendant procedural avenues to secure and produce evidence and, under Cress, a defendant
must employ these avenues in a timely manner because evidence that is known to the defendant,
yet not produced until after trial, will not be considered grounds for a new trial.” Id. at 283-284.

       Applying these principles in this case, defendant plainly failed to exercise the required
reasonable diligence by not availing herself of the opportunity to subpoena Book to testify under
the penalties of perjury despite the fact that she knew he had information regarding the abuse.
See United States v Turns, 198 F3d 584, 588 (CA 6, 2000). Book in fact acknowledged at the
evidentiary hearing that, despite his hostility toward defendant, he would have testified favorably
to defendant if subpoenaed. Such a statement clearly demonstrates that if defendant had
exercised reasonable diligence, the evidence would have been presented at trial, thus further
belying any claim that Book’s testimony was newly discovered within the meaning of Cress.
That defendant ultimately opted, as a strategic decision, not to call Book because of his hostility
toward her does not render his information newly discovered. See People v Newhouse, 104
Mich App 380, 386; 304 NW2d 590 (1981).

       On appeal, in an effort to establish that the testimony she now wishes to present is newly
discovered, defendant has attempted to frame the “evidence” as the fact that, unbeknownst to
defendant, Book would have been a “favorable defense witness.” The trial court accepted
defendant’s framing of the issue, explaining that the new evidence consisted of the fact that

       Book told [Detective Guy] Picketts before the trial of this case information based
       on first-hand knowledge that the Defendant did not commit the crimes with which
       she was charged and ultimately convicted. Put another way, the evidence at issue
       is that Book was, at the time of the trial, a favorable defense witness. Picketts
       knew it, the Defendant did not.

We find this characterization of the “evidence” at issue unpersuasive and ultimately unhelpful to
defendant’s effort to establish entitlement to relief from judgment.

        Indeed, accepting the trial court’s factual conclusion that the conversation with Detective
Picketts occurred and that it was not made known to defendant until 2011, to the extent the
conversation itself can arguably be considered the specific “evidence” at issue, its discovery
would not entitle defendant to a new trial under Cress. This is so because the fact that a
conversation occurred between Detective Picketts and Book is, in itself, of no relevance to any
issue at trial and cannot be seen as making a different result probable on retrial. Cress, 468 Mich
at 692. That is, the fact that Book spoke to Detective Picketts on the telephone does not tend to
make it more or less probable that defendant abused the victim or that the victim fabricated the
allegations. MRE 401. What would be relevant is the substance of the conversation, i.e. Book’s
claim that he did not witness any abuse. However, his remarks in this regard during the
telephone conversation constitute out-of-court statements which, if offered for the truth of the

                                                -3-
matter asserted, would constitute hearsay. MRE 801(c). As defendant concedes on appeal,
given that the statements to Detective Picketts constitute hearsay, they would not be admissible.
MRE 802. Thus, by itself, the conversation would not make a different result probable on retrial.
Instead, the only way the conversation with Detective Picketts can be remotely conceived as
providing evidence that could potentially affect the outcome of the trial would be if the
“evidence” is Book’s personal knowledge of events in the trailer.2 However, because, as
discussed, defendant already knew of Book’s potential testimony, she cannot claim that the
information is newly discovered by virtue of learning about Book’s conversation with Detective
Picketts. As this Court has previously recognized, “[o]ne does not ‘discover’ evidence after trial
that one was aware of prior to trial. To hold otherwise stretches the meaning of the word
‘discover’ beyond its common understanding.” Terrell, 289 Mich App at 568 (internal citation
and quotation marks omitted; emphasis removed). In short, when defendant heard about Book’s
conversation with Detective Picketts, she learned nothing new that could potentially affect the
outcome of the trial and, consequently, she has not shown the existence of newly discovered
evidence entitling her to relief under Cress.

        To the extent defendant and the trial court have more generally characterized the
evidence as Book’s status at the time of trial as a “favorable defense witness,” Book’s
characterization as such is at odds that his undisputed hostility toward defendant at the time of
trial. Further, to the extent that, despite his hostility, Book can be characterized as “favorable”
because he possessed potentially favorable information, his status as a “favorable” witness was
not newly discovered because defendant knew all along that he possessed this information.
Moreover, his status as a “favorable defense witness” is also not “evidence” and thus not a basis
for a new trial under Cress. In this regard, both MCR 6.502(G)(2) and Cress reference newly
discovered “evidence.” As most basically defined, “evidence” is “[s]omething (including
testimony, documents and tangible objects) that tends to prove or disprove the existence of an
alleged fact. . . .” Black’s Law Dictionary (9th ed); see also MRE 401. The alleged facts in
defendant’s case related to allegations of sexual abuse, and material to such determination was,
of course, the credibility of those involved. See People v Grissom, 492 Mich 296, 321 n 41; 821



2
  Although we view the first and third factors as the most obvious indications that defendant has
failed to satisfy the standards discussed in Cress, Book’s testimony to the effect that he had not
witnessed abuse while living in the trailer would also have been cumulative of similar testimony
offered at trial by another of defendant’s former boyfriends who also lived in the trailer during
part of the relevant time. The victim’s brother—who also lived in the trailer—similarly stated
that he had not personally witnessed abuse. Defendant also testified and denied that abuse
occurred. There were thus several witnesses who lived in the trailer to testify that they had not
seen abuse in the home. Given that Book’s testimony would have been evidence of “the same
kind to the same point,” it strikes us as plainly cumulative. See People v Grissom, 492 Mich
296, 320 n 41; 821 NW2d 50 (2012) (internal citation and quotation marks omitted). Given the
cumulative nature of Book’s evidence, it cannot be seen as creating a reasonable probability of a
different outcome at retrial. See People v Carbin, 463 Mich 590, 603; 623 NW2d 884 (2001);
People v Purman, 216 Mich 430, 439; 185 NW 725 (1921).


                                                -4-
NW2d 50 (2012). It follows that what is “evidence” in this case is not Book’s abstract
favorability to one side or the other, or his usefulness to defendant as a strategic matter, but his
knowledge of events and the people involved. In other words, Book’s perceived status as a
“favorable defense witness” is, quite simply, not evidence. See Turns, 198 F3d at 588
(recognizing that “evidence” was not whether a witness would testify truthfully but what
information the witness had about the material facts of consequence at trial).

       In sum, we are persuaded that the “evidence” at issue consisted of Book’s personal
knowledge of events at the trailer and his observation of defendant’s behavior with her sons.
Because this evidence was plainly known to defendant, she cannot now argue that it was newly
discovered. See Rao, 491 Mich at 281. Given that defendant has not shown that the evidence
was newly discovered, and that she has not argued there was a retroactive change in the law, her
successive motion for relief from judgment was barred by MCR 6.502(G) and the trial court
abused its discretion in granting her motion. See Swain, 288 Mich App at 635-636.

        In contrast to this conclusion, defendant maintains that she is not required to establish
that the evidence in question was newly discovered within the meaning of Cress because her
underlying claim involves a Brady violation. Defendant has not provided this Court, however,
with any authority for the proposition that the standards for evaluating whether evidence is newly
discovered for purposes of MCR 6.502(G)(2) are inapplicable in cases involving constitutional
claims, nor are we aware of any such authority. Nevertheless, if we were to assess whether a
Brady violation occurred without first determining if defendant had presented newly discovered
evidence within the meaning of Cress, defendant would still have failed to satisfy her burden.

        Under Brady, due process requires the state to disclose evidence in its possession to the
defendant, provided that the evidence is favorable to the defense and material to the defendant’s
guilt or punishment. Smith v Cain, ___ US ___; 132 S Ct 627, 630; 181 L Ed 2d 571 (2012);
Schumacher, 276 Mich App at 176. However, evidence that is known to a defendant cannot
form the basis of a Brady violation. See Apanovitch v Houk, 466 F3d 460, 474 (CA 6, 2006)
(recognizing that Brady “only applies to evidence that was known to the prosecution, but
unknown to the defense, at the time of trial”). See also Henness v Bagley, 644 F3d 308, 325 (CA
6, 2011).

         Defendant readily concedes that she had firsthand knowledge of Book’s presence in the
trailer and thus whether she abused the victim in his presence. At trial, she referenced Book’s
presence in the trailer, asserting that he was present in the mornings, including during times
when she dressed the victim. Her trial counsel similarly conceded at the evidentiary hearing that,
before trial, defendant informed him of Book’s presence in the home. Given defendant’s
firsthand knowledge of Book’s presence in the trailer, she had available to her all the essential
facts permitting her to take advantage of any exculpatory information Book could have provided.
Defendant’s failure to avail herself of Book’s evidence by not calling him as a witness at trial,
despite the fact that she knew he had not witnessed any abuse, does not establish the existence of
a Brady violation.

      Moreover, to the extent defendant has insisted that Book’s evidence, while known to her,
was unavailable because of Book’s hostility toward her, this complaint also fails to establish a
Brady violation. Book’s reluctance to assist defendant at the time of trial, while perhaps

                                                -5-
unfortunate for defendant, does not demonstrate that she was ignorant of the information he
possessed or that the state somehow interfered with her access to this information. See Benge v
Johnson, 474 F3d 236, 244 (CA 6, 2007) (finding that a witness’s refusal to assist the defendant
was not the prosecution’s doing and thus no Brady violation had occurred). Ultimately,
defendant knew the essential facts of Book’s potential testimony and, consequently, she has not
shown a Brady violation.

       Defendant again protests the framing of what constitutes the “evidence” at issue,
maintaining that the focus should be on the telephone conversation, not Book’s actual knowledge
of events in the trailer. This view of the evidence does not, however, establish a Brady violation.
As discussed supra, the telephone conversation consisted of inadmissible hearsay, MRE 801(c);
MRE 802, a fact which defendant has conceded on appeal. Because the telephone conversation
was not admissible, defendant could not have made use of it at trial.

        Defendant argues, however, that the disclosure of the telephone conversation could have
led to the discovery of additional information, i.e., evidence regarding Book’s personal
knowledge of events in the trailer, that would have been admissible and that would have resulted
in a different outcome at trial. In this regard, defendant is correct that, where the undisclosed
information is inadmissible, a Brady violation may potentially still exist provided that the
defendant can demonstrate that the information “would lead to the discovery of additional,
admissible evidence that could have resulted in a different result at trial.” Henness, 644 F3d at
325. However, even if Book had been inclined to be helpful, defendant would not have obtained
“additional” information because the only information that the telephone conversation might
have led to was information already known to defendant, information which she chose not to
avail herself of when she decided not to call Book to the stand.3 As discussed, information that
is known to a defendant does not form the basis for a Brady claim. Overall, defendant has not
established the existence of a Brady violation. Because she has also failed to establish the
existence of newly discovered evidence, her successive motion for relief from judgment was
barred by MCR 6.502(G) and the trial court abused its discretion in granting her motion. Swain,
288 Mich App at 635-636.

         The trial court also granted defendant’s request for relief under MCL 770.1, which allows
a trial court to grant a new trial “for any cause for which by law a new trial may be granted, or




3
  Defendant has also suggested on appeal that things could have been different because she
would have undoubtedly subpoenaed Book, regardless of his hatred of her, if she had known of
the telephone conversation. This is not factually consistent, however, with Hettinger’s testimony
at the evidentiary hearing that, even if he had known of the telephone conversation, any decision
to call Book would have involved consideration of Book’s hostility toward defendant. Given
Book’s open and unchanged hostility toward defendant, and recognizing that it was this concern
for Book’s hostility that motivated the decision not to subpoena Book despite the fact that he was
known to possess favorable information, we cannot see that knowledge of the telephone
conversation would have been reasonably likely to affect the strategic decision not to call Book.


                                                -6-
when it appears to the court that justice has not been done, and on the terms or conditions as the
court directs.” In relying on this statutory provision, however, the trial court ignored the fact
that, in defendant’s case, the time for filing motions for a new trial under MCL 770.1 had long
since passed. See MCL 770.2(1). Because of this fact, defendant is now limited to the relief
available through MCR 6.500 et seq. See, generally, People v Kincade, 206 Mich App 477, 482;
522 NW2d 880 (1994). However, because defendant has not satisfied MCR 6.502(G)(2), she is
not entitled to relief. We note that defendant has not shown “good cause” for the delay in filing
her motion as required by MCL 770.2(4). On the contrary, some of the information on which the
trial court based the need for a new trial under MCL 770.1—the information from Book—has
been known to defendant since the time of trial.4 If such evidence constituted “good cause” for
relief, defendant should have raised it at trial or in a timely motion for a new trial. See People ex
rel Coon v Plymouth Plank Rd Co, 32 Mich 248, 249 (1875). Nor can we say that “justice has
not been done” in defendant’s case. The trial court’s reliance on MCL 770.1 to grant defendant
relief was an abuse of discretion.

        The trial court also granted defendant’s motion based on her freestanding claim of actual
innocence under the federal constitution within the meaning of Herrera v Collins, 506 US 390;
113 S Ct 853; 122 L Ed 2d 203 (1993). In Herrera, in the context of federal habeas review, and
although not going so far as to conclusively recognize that a cognizable actual innocence claim
exists under the federal constitution, the Court stated: “We may assume, for the sake of argument
in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’
made after trial would render the execution of a defendant unconstitutional, and warrant federal
habeas relief if there were no state avenue open to process such a claim.” Id. at 417. More
recently, the Supreme Court has reaffirmed that no standalone actual innocence claim has yet
been recognized, explaining: “We have not resolved whether a prisoner may be entitled to
habeas relief based on a freestanding claim of actual innocence.” McQuiggin v Perkins, ___ US
___; 133 S Ct 1924, 1931; 185 L Ed 2d 1019 (2013). In other words, contrary to defendant’s
arguments, it is not certain from the authorities on which she relies that there exists a
freestanding claim of actual innocence. Moreover, if such a right exists, it seems questionable
whether it would apply to defendant’s case because her case is not, in contrast to Herrera, a
capital case. See Wright v Stegall, 247 Fed App’x 709, 711 (CA 6, 2007). Further, Herrera also
suggested that, when available, the appropriate avenue for relief on actual innocence grounds
rests in an application for executive clemency. Herrera, 506 US at 414-417. Because such
avenues are available in Michigan, see Const 1963, art 5; § 14; MCL 791.243, it is not clear that
the type of actual innocence claim contemplated in Herrera would be properly brought before
the courts. All these things considered, we cannot say that defendant has shown the existence or
applicability of a federal freestanding actual innocence claim in this case.




4
  The trial court also discussed the testimony of Tanya Winterburn and William Risk. As
discussed infra, the evidence from these witnesses was not all that helpful to the defense, and this
Court has previously held that it did not warrant a new trial. Swain, 288 Mich App at 640.


                                                -7-
       At any rate, assuming that such a right exists and that it would be applicable to defendant,
we are not persuaded that defendant has satisfied the high standard that would be required to
merit relief. Herrera itself declined to precisely identify what standard would apply to the
evaluation of such a claim, explaining only that it “would necessarily be extraordinarily high.”
See Herrera, 506 US at 417. In Swain, 288 Mich App at 638, this Court described the standard
as requiring a defendant to demonstrate that it is more likely than not that no reasonable juror
would have found the defendant guilty.

        The victim testified to the particulars of the abuse and what occurred, explaining that
defendant performed oral sex on him on numerous occasions, both at the trailer and at the house
on Oak Grove. As the victim of sexual assault, it was not necessary that his testimony be
corroborated, MCL 750.520h, and, if believed, the victim’s testimony alone would be enough to
allow the jury to convict defendant. Nevertheless, there was corroboration for circumstantial
details in the victim’s version of events. For example, defendant herself acknowledged the
sleeping arrangements at her parents’ house, agreeing that she slept in a bed with the victim as he
had indicated at trial. She also admitted that she helped him dress in the mornings. Consistent
with the victim’s testimony, the victim’s brother testified that he waited outside for the bus alone
on a few occasions and that defendant treated him differently than the victim, affording the

victim special privileges and kissing the victim on the lips. Lending further credibility to the
victim’s version of events, the prosecution’s expert opined that the victim manifested behaviors
that were consistent with that of a child sexual abuse victim. Reviewing this same information
during a previous appeal in regard to defendant’s claimed actual innocence, we explained:

       Dr. Randall Haugen, an expert regarding the sexual abuse of children and a
       counselor of the victim, testified that the victim manifested behavior, such as
       sexually reactive behavior toward other children, compulsive masturbation, and a
       hoarding of women’s underwear, that was consistent with a child who had been
       sexually abused. Haugen also testified that the discovery of a child’s sexually
       inappropriate behavior can lead to a disclosure by the child of prior sexual abuse,
       and Haugen noted that the victim disclosed the abuse when he was confronted by
       his stepmother concerning his actions toward a young cousin. [Swain, 288 Mich
       App at 641-642.]

       In addition to the evidence supporting the victim’s version of events, there was evidence
that cast doubt on defendant’s credibility. Defendant made what would be viewed by a
reasonable juror as incriminating statements during her interview with Detective Picketts. Most
notably, without being informed of the precise nature of the allegations, defendant yelled: “I
never sucked my kid’s dick.” The statement would suggest to a reasonable juror that defendant
knew of the nature of the allegations without being told because she had in fact performed the
acts which she so vehemently denied. Defendant also answered questions inconsistently during
her conversations with Detective Picketts, first claiming that she had not dressed the victim and
then acknowledging that she continued to dress him when he was as old as eight or nine years of
age. Further, defendant stated to Detective Picketts that the victim was “special” to her and that
she had a closer relationship with the victim than with his brother. These remarks tended to
corroborate the disparate treatment described by both the victim and the brother, and it coincided
with the expert testimony of Dr. Haugen, who indicated that sexual abusers often foster a special

                                                -8-
relationship with their victims, grooming them through the use of gifts or the provision of special
privileges.5

        In contrast to this evidence supporting defendant’s guilt, defendant notes that there are
three witnesses who did not testify at trial whose testimony could now be used to discredit the
victim. Certainly, given that William Risk and Tanya Winterburn could testify that the brother
did not wait outside for the bus alone, it could potentially cast doubt on the credibility of the
victim and the brother. However, by equal measure, the inconsistency could also have been
resolved in favor of the victim’s and the brother’s testimony. For example, Winterburn and Risk
both acknowledged in their testimony that, for various reasons, there were times when they could
not be aware of whether the brother was outside alone. Moreover, at one of the evidentiary
hearings, the prosecution produced a neighbor who testified that the brother did wait outside
alone on multiple occasions, a fact which caught her attention because the boys were so often
together. Her testimony could be presented in support of the testimony of the victim and his
brother. At trial, defendant indicated that the boys typically waited inside the trailer for the bus
to arrive, meaning defendant’s own testimony would have been somewhat inconsistent with Risk
and Winterburn’s evidence. On the whole, the ancillary question of whether the brother waited
outside alone, or how often he waited outside alone, is a credibility question, and it is a question
a reasonable juror could easily resolve in favor of the testimony provided by the victim and his
brother at trial.

        Similarly, while Book testified that he did not see any abuse in the trailer, by his own
admission he was not in the house at all times and he lived with defendant for only part of the
time in which the abuse was alleged to have occurred. In other words, Book’s testimony, even if
believed, is not proof that abuse did not occur. Instead, the jury could reasonably believe the
victim in this regard, and would have been particularly likely to do so in light of the expert
testimony on child sexual abuse, defendant’s incriminating statements to Detective Picketts, and
her confession to Charles. Defendant also emphasizes that the victim and his brother have
recanted their testimony since trial, casting further doubt on her guilt. Undoubtedly, the fact that
they have recanted would have created an important issue of credibility for the jury. However,
the mere fact that they have recanted does not erase the evidentiary value of their trial testimony.
On the contrary, recantation testimony is traditionally regarded as “suspect and untrustworthy.”
People v Canter, 197 Mich App 550, 559; 496 NW2d 336 (1992). Further, the skepticism with
which such recantations are viewed is “only heightened when the recanting witness is a family
member and the witness may have feelings of guilt or may be influenced by family members
seeking to change the witness’s story.” United States v Coker, 23 Fed App’x 411, 412 (CA 6,
2001). On the whole, the evidence is such that defendant has not established “actual innocence.”




5
  Added to this evidence is the testimony of an inmate, Deborah Charles, who described
defendant confessing to her in prison. Consistent with the victim’s allegations, defendant
admitted to Charles that she had slept naked with the victim and that she had sexually abused the
victim while using drugs. She also told Charles that she found the victim more attractive than his
brother and, for this reason, she kissed the victim on the lips and the brother on the cheek.


                                                -9-
Even assuming there exists a cognizable freestanding actual innocence claim, the trial court
abused its discretion in granting relief on this basis.

       Reversed.

                                                        /s/ Joel P. Hoekstra
                                                        /s/ Patrick M. Meter




                                            -10-
