Prior consistent out-of-court statements; Waiver; Whether challenged statements were hearsay; Applicability of MRE 801(d)(1)(B); Ineffective assistance of counsel; Failure to raise a futile objection; Other acts evidence; MCL 768.27a; Separation-of-powers doctrine; People v Watkins; Whether evidence should have been excluded under MRE 403

The court held that testimony defendant challenged was not hearsay and that defense counsel was not ineffective for failing to raise a futile hearsay objection. His separation-of-powers challenge to MCL 768.27a was rejected by the Michigan Supreme Court in Watkins, and the court found that the evidence at issue was properly not excluded under MRE 403. Thus, it affirmed his CSC I, II, and III convictions. He argued that the trial court erred in “allowing the prosecution to introduce prior consistent statements made by” the victim (JM), “improperly bolstering JM’s trial testimony. He asserted those statements consisted of JM’s testimony in the family court about the letter recanting his allegations and what he told ‘investigators.’” The court noted as to the family court testimony, “defense counsel’s affirmative approval of the testimony waived any objection to it on appeal.” Further, the testimony on redirect examination that defendant referenced was “not hearsay. The prosecutor did not elicit an out-of-court assertion made by JM on how, when, and where he had been sexually assaulted in order to prove that he had been sexually assaulted in a given manner, at a particular age, and in a specific location. JM was asked to affirm what he did not say, that is, that he never failed to omit from his accounts that he had been sexually penetrated, orally or anally, and that defendant had him masturbate him. Defendant opened the door to this rehabilitative testimony through his cross-examination, much of which was directed at discrediting JM by pointing out inconsistencies in his accounts of the sexual abuse, including regarding what he had told others about the number of times the particular acts occurred, where and when the sexual contact and sexual penetration first happened, and whether defendant had ejaculated.” MRE 801(d)(1)(B) did not apply and defendant “failed to establish error, plain or otherwise.” As to MRE 403, the trial court did not abuse its discretion in allowing the admission of evidence about sexual abuse in another state. That disclosure “came long after the abuse started, but those two events do not evidence a lack of temporal proximity. Rather, the evidence chronicles a steady history of sexual abuse and a gradual progression of the range of abuse committed by defendant.” The court noted that other “events did occur over the years of abuse, including the family moving multiple times during a nearly 10-year time frame, but those events do not constitute intervening acts.”