Constitutionality of MCL 750.520d(1)(d); CSC, mens rea, & affinity; People v Russell; Medical-treatment exception to hearsay; MRE 803(4); People v Garland; Ineffective assistance; Prosecutorial error; People v Dobek

The court held that MCL 750.520d(1)(d) is not an unconstitutional strict-liability offense because CSC III is a general-intent crime requiring proof that defendant intentionally committed the proscribed sexual act, and that any evidentiary or prosecutorial errors did not warrant reversal. Defendant was convicted of CSC III for sexual penetration of his adult daughter after she testified she woke up to defendant having sex with her from behind while she was intoxicated and blacked out. DNA testing provided “very strong support” that defendant’s DNA was present on a swab from her labia majora and “very strong evidence” that he was her biological father. On appeal, defendant argued the affinity provision is unconstitutional because it lacks a mens rea requirement, but the court relied on Michigan precedent that CSC is a “general intent crime” and that “no intent is requisite other than that evidenced by the doing of the acts constituting the offense,” rejecting the claim that the statute imposes strict liability. The court next agreed that the forensic nurse examiner’s testimony repeating the complainant’s statement that she was assaulted by her “biological father” was inadmissible hearsay because identification of the assailant is not generally “reasonably necessary” for diagnosis and treatment under MRE 803(4) unless shown to be necessary and trustworthy. But it held that the error was harmless because identity was not disputed and the statement was cumulative of the complainant’s testimony, a witness’s testimony that she saw defendant having sex with the complainant, and the DNA evidence, and defendant admitted “[s]omething sexual did happen.” The court also rejected ineffective-assistance claims because even assuming counsel should have objected to the identification hearsay, defendant could not show a reasonable probability of a different outcome given the overwhelming evidence. Finally, it found no prosecutorial error where the “violent” comment about defendant was elicited during defense counsel’s own cross-examination and where the prosecution’s questioning about defendant’s prior statements of sexual interest in the complainant was relevant to the relationship context, and it held that counsel was not ineffective for declining to object to avoid highlighting nonresponsive testimony. Affirmed.