New trial based on newly discovered evidence; People v Cress; Whether the evidence made a different result probable on retrial; Distinguishing People v Rogers

The court rejected the prosecution’s claim that “the trial court erred by granting a new trial because the newly discovered evidence did not make a different outcome probable on retrial.” Defendant-Milstead was convicted of seven counts of CSC I involving the minor daughter of his then-girlfriend. The parties did “not dispute that the first three Cress factors are satisfied.” Thus, the pertinent question was “whether the consideration of complainant’s recanting statements to Dr. [S, a psychiatrist] and her stepmother, complainant’s purportedly false contentions regarding the sexual incidents at school, complainant’s journal entries, and the contents of complainant’s The Right Door medical and mental health records, would make a different result more probable on retrial.” Unlike Rogers, in this “case, to date, there is no direct evidence that complainant retracted her allegations that she was sexually penetrated by Milstead.” The court found that “when evaluated under the fourth Cress factor—whether the newly discovered evidence would likely produce a different result on retrial—the trial court did not abuse its discretion in concluding that this standard was satisfied. Although complainant provided extensive testimony at trial describing the alleged sexual abuse, there were no other eyewitness to the assaults, and the physical evidence was inconclusive. As a result, Milstead’s convictions rested largely on complainant’s credibility.” The court concluded that ultimately, “because the case turned almost entirely on complainant’s credibility, the trial court reasonably concluded that the newly discovered evidence, if presented at retrial, would likely produce a different result, thereby satisfying the fourth Cress factor.” The trial “court properly determined that the recording depicting the pressure complainant’s stepmother placed on complainant to assert that the sexual abuse occurred—considered alongside complainant’s recanting statements to multiple individuals that the underlying assaults did not transpire, and her concerning journal entries—could lead to a different outcome on retrial.” Thus, the court found that “the trial court did not abuse its discretion in granting” the motion for a new trial. Affirmed.