Lay witness testimony that the victim was cognitively impaired; MRE 701; People v Cole; Expert testimony; MRE 702; Harmless error; Ineffective assistance of counsel; Sufficiency of the evidence that the victim was “mentally incapable” to support a CSC III conviction under MCL 750.520d(1)(c); MCL 750.520a; People v Breck

The court held that the trial court did not err in allowing victim-YB’s mother (B) to express a lay opinion that YB was cognitively impaired, and while it erred in permitting a forensic interviewer (S) to testify to the same, this was harmless given the properly admitted evidence about YB’s mental capacity. Defense counsel was not ineffective for failing to raise a futile objection, and the court held that the evidence that YB was mentally incapable was sufficient to support defendant’s CSC III conviction under MCL 750.520d(1)(c). It found that B “was qualified to opine regarding YB’s cognitive abilities. Lay witnesses have long been permitted to offer opinions regarding a person’s sanity.” Her testimony was rationally based on her perception – YB had lived with B for approximately 38 years. She “was familiar with YB’s school experiences and the challenges that YB faced in performing normal activities of daily life.” Additionally, her “testimony was not objectionable simply because it embraced ‘an ultimate issue to be decided by the trier of fact.’” But in admitting S’s “testimony under MRE 701, the trial court blurred the distinction between the specialized knowledge of an expert, and the rational perceptions of a lay witness. [S’s] opinions constituted expert testimony in disguise” and were improperly admitted given the failure to lay a proper foundation and the trial court’s failure “to exercise its gatekeeping powers.” However, the error was harmless given B’s extensive testimony about “YB’s cognitive disability, and because YB testified at length, the jury had an opportunity to make its own assessment. YB had been in special education throughout her schooling, did not drive, had a guardian, and had never before failed to come home after work. Her supervisor” at work testified that YB was hired “decades ago as part of an employment program for children with mental disabilities. She described YB as capable of very simple tasks and that she required specific instructions and repetition.” As to the sufficiency of the evidence, there was direct evidence that YB “was unable to understand the physical act and appreciate the act’s nonphysical factors.” Although she said “she understood what was happening, the rest of her testimony, what she said and how she said it, was sufficient for a rational jury to infer that YB was unable to appraise the nature of her conduct.” Affirmed.