Evidentiary error claim based on the exclusion of evidence; MRE 103(a)(2); Testimony from a child abuse & neglect adjudication hearing; MRE 804(b)(1); Relevance; MRE 401 & 402; In camera review of counseling records; People v Davis-Christian; MCR 6.201(C)(2); Waiver of claim a juror improperly interpreted defendant’s choice not to testify as a sign of guilt

The court rejected defendant’s evidentiary error claims and held that “the trial court acted within its discretion to deny” his request for an in camera review of counseling records. It further found that he waived his claim that at least one juror improperly interpreted his decision not to testify as a sign of guilt. Thus, the court affirmed his CSC I and II convictions. Two girls (NH and MH) were involved. Defendant argued the trial court erred in excluding evidence that they “made prior false accusations of rape or other sexual misconduct against his son, WC.” He submitted testimony from an individual (I) who provided counseling to the victims and WC in 2016. But I “did not testify that NH or MH accused WC of sexual assault. Further, the trial court specifically ruled that, contrary to defendant’s similar claims in a child protective proceeding involving himself and WC, there was no evidence that NH or MH accused WC of sexual assault or any similar wrongdoing. Therefore, [I’s] testimony contained no evidence of prior false claims of sexual assault, and” was irrelevant in this criminal case. The court also rejected his contention that the trial court erred in not admitting I’s “testimony from the child abuse and neglect adjudication hearing under MRE 804(b)(1).” The court noted the record showed “that at the 2018 neglect proceedings involving WC and defendant, the parties had an opportunity to cross-examine [I] at length about her observations during counseling with NH, MH, and WC. This may be enough to satisfy the hearsay exception under MRE 804(b)(1), but that does not make [I’s] testimony relevant, which is always a requirement for admissibility.” The court determined “the trial court correctly ruled that [I’s] testimony was not relevant to any fact at issue in defendant’s case because he failed to show any nexus between [I’s] observation regarding NH’s demeanor in her mother’s presence in an unrelated counseling session and accusations of repeated sexual molestation by defendant. And, notably, the jury convicted defendant regarding the sexual assault of MH, not NH.” As to his request for review of I’s counseling records, the court concluded he “failed to show that viewing the records would be anything more than a fishing expedition.”