Admission of hearsay testimony under MRE 803A (tender years exception); Harmless error; People v Gursky; Prosecutorial misconduct; Use of a leading question in questioning a child witness; People v Johnson; Sentencing; Mandatory 25-year minimum under MCL 750.520b(2)(b); Cruel &/or unusual punishment; People v Benton; Whether MCL 750.520b(2)(b) violates the separation of powers doctrine; People v Murray

While the court found a statement by a victim (D) “plainly failed the test for admissibility under MRE 803A[,]” it held that the error was harmless – in light of the other evidence admitted at trial, admission of this hearsay was not outcome determinative. Defendant-Swider also was not entitled to relief based on the prosecution’s asking D one leading question, and he failed to show any error related to the use of a diagram during D’s testimony. As to his sentencing challenges, his claim that the mandatory minimum 25-year sentence for his CSC I convictions constituted cruel and/or unusual punishment was rejected in Benton, a binding decision. Likewise, Murray required rejection of his separation of powers argument. He was convicted of multiple counts of CSC I and II for sexually abusing a member of his family, D, and her childhood friend, E, when the two girls were around five to eight years old. The court first determined that the challenged testimony by D “about her disclosure to her aunt was merely a recitation of her own prior out-of-court statement. Although euphemistic in content, the statement that Swider ‘would do stuff to me’ was evidence offered for the truth of the matter asserted—that Swider sexually abused” D. Thus, it was inadmissible hearsay. But the court noted the statement “was vague and did not bolster the more specific allegations of abuse by the complainants. At most, the statement was cumulative to [D’s] extensive testimony about the repeated sexual acts perpetrated by Swider against her.” In addition, E “testified about ‘[c]ountless’ instances of abuse committed by Swider. Together, the complainants’ testimony, subject to cross-examination, minimized any prejudicial effect that admission of the hearsay statement had on Swider.” The court noted that D and E gave “highly corroborating accounts of the other person’s victimization—including both testifying that they were in the same room during some of the abuse. The prosecution also presented evidence of suspicious cards sent by Swider to [D] and her family after she disclosed her allegations of abuse, including one card sent to [D] that reminded her of his rule against snitching.” Affirmed.