People v. Foreman , 179 Mich. App. 678 ( 1989 )

179 Mich. App. 678 (1989) 446 N.W.2d 534

PEOPLE
v.
FOREMAN
PEOPLE
v.
KIRKPATRICK

Docket Nos. 113354, 113355, 113356.

Michigan Court of Appeals.

Decided August 21, 1989.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Nathan T. Fairchild, Prosecuting Attorney, and Thomas C. Johnson, Assistant Attorney General, for the people.

State Appellate Defender (by Peter Jon Van Hoek), for Jon Foreman.

Patricia S. Slomski, for Wendy Kay Kirkpatrick.

Before: GRIBBS, P.J., and SAWYER and MURPHY, JJ.

ON REMAND

GRIBBS, P.J.

This consolidated matter has been remanded to us by the Michigan Supreme Court for reconsideration in light of People v Straight, 430 Mich. 418; 424 NW2d 257 (1988). We affirm.

Defendant Jon Foreman was convicted by a jury of four counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and three counts of second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), involving his five-year-old daughter and his six-year-old son. Foreman was sentenced to concurrent prison terms of twenty to forty years for each count of CSC I and ten to fifteen years for each count of CSC II.

Foreman's girlfriend, defendant Wendy Kay Kirkpatrick, was convicted by a jury of three counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. Kirkpatrick was sentenced to concurrent prison terms of twenty to forty years for each CSC I conviction and ten to fifteen years for each CSC II conviction.

Defendants appealed their convictions as of right and we affirmed. People v Foreman, 161 Mich. App. 14; 410 NW2d 289 (1987). We concluded, inter alia, that the trial court did not err by admitting, as excited utterances, out-of-court statements of the children about the sexual abuse to corroborate testimony at trial.

In People v Straight, supra, our Supreme Court considered whether a child's statements, made approximately one month after the alleged sexual assault, as related by her parents, were admissible under MRE 803(2):

We hold that these statements were not admissible as excited utterances under MRE 803(2). Further, in light of the substantive use of this evidence by the prosecuting attorney, it cannot be concluded that this evidence was merely corroborative. Admitting this testimony for substantive use was error. [Straight, 430 Mich. 420.]

Having reviewed Straight, we now believe that the children's statements in this case, made approximately one month after the last visitation with defendants, were inadmissible under MRE 803(2). Nevertheless, we believe the error was harmless because the hearsay statements were cumulative to the children's in-court testimony in this case which was credible and convincing beyond a reasonable doubt. MCR 2.613(A); MCL 769.26; MSA 28.1096.

We described the children's testimony in our earlier opinion:

The testimony of the boy, age seven at the time of trial, showed numerous instances of sexual abuse. On a number of occasions, with Jon Foreman present, he was forced to perform oral sex on Wendy Kirkpatrick. He was made to suck her vagina, rectum, and breasts. He was also forced to perform oral sex on his father, as well as Tammy Kirkpatrick, Wendy's sister. On one occasion, Foreman stuck a wire up the boy's rectum.

The boy, using anatomically correct dolls, testified that he was forced to perform sexual intercourse as well as sodomy with Wendy Kirkpatrick. He was also forced to have anal intercourse with his sister. Wendy would also put her fingers in his rectum. The boy testified that he was repeatedly threatened with harm by both defendants if he did not want to perform these sexual acts or if he told anyone what they were doing. He said that Foreman threatened to kill his mother and aunt as well as him if he told anyone.

The girl, age six at the time of trial, also testified. She, using anatomically correct dolls, testified as to the sexual abuse inflicted upon her. She testified that Jon Foreman attempted to penetrate her rectum with his penis. Foreman repeatedly threatened to murder her if she told anyone. She was also forced to perform sexual acts with defendant Kirkpatrick and have anal intercourse with her brother. Kirkpatrick also put her fingers in the girl's vagina and rectum. She further testified that she observed her brother engage in sexual acts with Wendy and Jon Foreman. She testified that Jon Foreman put a wire in her vagina and rectum. [Foreman, 161 Mich. App. 18-19.]

In addition, the boy testified that he was forced to watch while defendants engaged in sexual relations. Foreman, 161 Mich. App. 26.

The children's testimony as to the criminal sexual relations in this case was detailed and convincing. We find it highly improbable that six- and seven-year-old children, in a courtroom setting subject to cross-examination, could lie convincingly about experiencing oral sex, sodomy and intercourse. "It cannot reasonably be maintained that an adult touching a child's genitals with a [wire] is normally within the range of experience of a ... child." People v Kosters, 175 Mich. App. 748, 752; 438 NW2d 651 (1989).

We are convinced that admission of the challenged testimony was harmless error because the facts in this case were shown by other competent testimony. People v Kregger, 335 Mich. 457; 56 NW2d 349 (1953); People v Hunt, 170 Mich. App. 1, 13; 427 NW2d 907 (1988); People v Hoerl, 88 Mich. App. 693, 702; 278 NW2d 721 (1979); People v Christensen, 64 Mich. App. 23, 32-33; 235 NW2d 50 (1975), lv den 397 Mich. 839 (1976); People v Vargas, 50 Mich. App. 738, 742; 213 NW2d 848 (1973), lv den 392 Mich. 815 (1974); People v Harrison, 49 Mich. App. 546, 551; 212 NW2d 278 (1973), lv den 392 Mich. 779 (1974); People v Dykes, 37 Mich. App. 555, 558; 195 NW2d 14 (1972).

We have again reviewed defendants' remaining issues and find them to be without merit for the reasons set out in our previous opinion.

Affirmed.