Admission of “hearsay” evidence; MRE 801(c); The “excited utterance” hearsay exception (MRE 803(2)); People v. Smith; People v. Straight; People v. Layher; “Prior consistent statement”; People v. Jones; Denial of a motion for a directed verdict; MCR 6.419(A); People v. Szalma; People v. Lemmon; Sufficiency of the evidence to establish that defendant was 17 years of age or older for purposes of the mandatory 25-year minimum enhancement in MCL 750.520b(2)(b); Ineffective assistance of counsel; Strickland v. Washington; People v. Trakhtenberg; People v. Reinhardt; Strategic judgments; Wiggins v. Smith; People v. Heft; Decisions on whether to retain expert witnesses as matters of trial strategy; People v. Ackerman; Principle that the failure to call witnesses constitutes ineffective assistance only if it deprives a defendant of “a substantial defense”; People v. Dixon; People v. Marshall; Failure to investigate the victim’s therapist’s records; Discovery; People v. Stanaway; People v. Phillips; MCR 6.201(C)(1); Evidence protected by privilege; People v. Fink; Failure to make a meritless motion; People v. Ericksen; Principle that counsel’s performance is not measured with the benefit of hindsight; People v. Payne

The court held that the trial court did not abuse its discretion in admitting the victim’s (AF) statement to her mother (SF) as an excited utterance, and did not deny the defendant his due process rights by denying his motion for a directed verdict on the CSC I charges. His ineffective assistance of counsel claims also failed. Thus, it affirmed his CSC I conviction. AF was his 11-year-old stepdaughter at the time of the crime. The court concluded that “AF waking up to discover that defendant had sexually abused her and that SF discovered the abuse was a startling event.” Further, “AF made the statement while still under the excitement caused by the startling event. SF testified that just before AF’s statement, AF was crying and seemed ‘disoriented’ and ‘shaky.’ SF’s testimony about AF’s demeanor and the two minutes that had passed between when SF walked into the bedroom and when AF made the statement” showed that AF “made the statement while still overwhelmed by the stress caused by the event.” Nothing in the record suggested that “AF had an opportunity for conscious reflection during the short interval between the event and her statement, such that AF was no longer overwhelmed, or had the capacity to fabricate her statement. Similarly, the statement was clearly related to the circumstances of the startling occasion.” As to the motion for a directed verdict, because “the prosecutor presented sufficient evidence of both essential elements that could have persuaded a rational trier of fact to conclude beyond a reasonable doubt that defendant committed the crime, his motion for a directed verdict was properly denied.” Further, there was “sufficient circumstantial evidence of his age for a rational trier of fact to conclude beyond a reasonable doubt that he was 17 years of age or older” for purposes of the mandatory 25-year minimum enhancement in MCL 750.520b(2)(b). Finally, defense counsel’s failure to investigate AF’s therapy records and to retain an expert “on the effect of repeated and suggestive questioning on children and the subsequent impact on the child’s credibility did not fall below an objective standard” of reasonableness.