Admission of preliminary exam testimony; MRE 804(b)(1); “Unavailable” witness; MRE 804(a)(3); Lack of memory; Right of confrontation; Foundation for admission of a photo; MRE 901; The “best-evidence rule”; Whether testimony implied the use of a polygraph; Ineffective assistance of counsel; Failure to object; Prejudice; Expert testimony; Distinguishing People v Smith & People v Harbison; Hearsay; MRE 703; Whether error was outcome-determinative; Prosecutorial misconduct; Sentencing; Scoring of OVs 3 & 4; MCL 777.33(1)(d) & 777.34(1)(a)

The court held that the trial court did not err in ruling the child victim (AB) was unavailable due to lack of memory and in admitting her preliminary exam testimony, and that defendant was not denied his right of confrontation. It also rejected his challenge to the foundation for admission of a photo, and claim that a police witness’s testimony implied he had failed a polygraph. It found he was not entitled to relief based on his ineffective assistance of counsel claims, and that there was no plain error in the admission of a doctor’s expert testimony. His prosecutorial misconduct claim also failed, and the court upheld the scoring of 10 points each for OVs 3 and 4. He was convicted of CSC I and sentenced as a fourth-offense habitual offender to 50 to 90 years. As to the admission of AB’s preliminary exam testimony, she “was seven years old at the time of trial and was asked to recall events that happened one to two years” earlier. When she “repeatedly answered that she could not remember, the prosecutor did not give up, but pressed the child by reminding the child that she promised to tell the truth. The prosecutor asked AB not only about the actual events for which defendant was charged but about surrounding events aimed at triggering the child’s memory. The fact that these multiple attempts failed led to the request to declare the witness unavailable. Contrary to defendant’s position on appeal,” nothing in the evidentiary rule or any legal authority that he identified required “the trial court to make an independent inquiry of a witness before declaring that she is unavailable on account of a lack of memory.” Further, the record did not suggest that additional “questioning or actions by the trial court might have enabled AB to recall those events for which she lacked memory.” Thus, it did not clearly err in determining that she had a lack of memory as to the subject matter of her prior statement, or abuse its discretion in admitting her preliminary exam testimony. As to the foundation for admission of a photo of AB’s genital area, defendant’s only objection was that absent a digital date stamp on the photo, “there was no way to tell when it actually was taken.” However, he conceded that MRE 901 “does not require anything more than a witness’s testimony to establish the requisite foundation, and AB’s mother fulfilled that requirement.” Affirmed.