CSC I; CSC II; Ineffective assistance of counsel; Medical-treatment hearsay exception; MRE 803(4); Vouching; Penile piercing evidence; Motive to fabricate; Ginther hearing request; OV 11; MCL 777.41(1)(b); Criminal sexual penetration; Consecutive sentencing; MCL 750.520b(3); Same transaction; People v Bailey

The court held that defendant failed to establish ineffective assistance of counsel, but resentencing was required because OV 11 was improperly scored and the trial court improperly imposed consecutive sentences. He was convicted of multiple CSC I and CSC II counts. The court first held that counsel was not ineffective for failing to object to the medical report because the victim’s statements were made for “medical treatment,” and an objection would have been futile. It also held that the report did not vouch for the victim because it referred only to “suspected” child sexual abuse and did not determine whether the victim was truthful. The court next held that counsel was not ineffective for failing to present additional evidence about defendant’s penile piercing because the victim never testified she visually examined his genitalia, and the proposed affidavits did not show a reasonable probability of a different outcome. It further held that counsel reasonably pursued a fabrication theory tied to the mother’s divorce and custody dispute, rather than questioning the victim about minor disagreements in a way that “could easily create the appearance of bullying the witness[.]” But the court held that the trial court erred by scoring OV 11 at 25 points for counts five, six, and seven because the record did not show that criminal sexual penetration arose out of those CSC II sentencing offenses. The court also held that consecutive sentencing was improper because the paired offenses occurred at different times and were “not part of the same transaction.” Affirmed in part, vacated in part, and remanded.