People v. Garrison

166 Mich. App. 557 (1988) 420 N.W.2d 851

PEOPLE
v.
GARRISON

Docket No. 93541.

Michigan Court of Appeals.

Decided February 17, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John L. Livesay, Prosecuting Attorney, and Tonatzin M. Alfaro Garcia, Assistant Attorney General, for the people.

Smith & Smith (by Mirt G. Smith), for defendant on appeal.

Before: CYNAR, P.J., and SAWYER and J.S. THORBURN,^[*] JJ.

PER CURIAM.

Defendant was convicted at a bench trial of criminal sexual conduct in the first degree.^[1] Defendant was sentenced to ten to fifteen years imprisonment. We affirm.

At the close of the people's case, defendant moved to strike all the testimony of the victim based on the court's noncompliance with MCL 600.2163; MSA 27A.2163, which states in relevant part:

Whenever a child under the age of 10 years is produced as a witness, the Court shall BY AN EXAMINATION MADE BY ITSELF publicly, or separate and apart, ascertain to its own satisfaction whether such child has sufficient intelligence and sense of obligation to tell the truth to be safely admitted to testify; .... [Emphasis added.]

Defense counsel argued that no inquiry had been made of the victim's competency by the court. The procedure was conducted by the prosecutor.

Rules of procedure, including rules of evidence, are determined by the Supreme Court. Const 1963, art 6, § 5. MRE 601 contains a presumption of the competency of every witness unless the court finds after questioning that the witness is incompetent. The purpose of MCL 600.2163; MSA 27A.2163 is to insure that a child under the age of ten years has sufficient intelligence and a sense of obligation to testify truthfully. Defendant admitted the competency of the victim but objected to the procedure used to establish this fact. In light of the purpose of the rule and the admission of the defendant, reversal of defendant's conviction would elevate form over substance. The procedure utilized in this case was not offensive to the maintenance of a sound judicial system.

Defendant's objection was not raised until the people had completed their case. The trial court then thoroughly expressed its satisfaction with the victim's competency. Its decision was based on the demeanor of the victim, her behavior on the stand, her responses to the prosecutor's questions, the testimony of District Judge Coyle, who established the victim's competency at the preliminary examination, and the victim's affirmative response to the court's personal directive that she tell the truth. When the court permitted the victim to testify, it had implicitly found her competent. See People v Kasben, 158 Mich. App. 252, 257; 404 NW2d 723 (1987). What error occurred was harmless beyond a reasonable doubt.

The people called Mari Gilbert as an expert witness. Through the use of anatomically correct dolls she was permitted to testify about the characteristics which indicate that a child has been sexually abused. Defendant contends that Mari Gilbert does not have the qualifications to be classified as an expert.

Whether an expert witness is qualified to testify is a decision within the sound discretion of the trial court. This Court will not reverse the trial court's determination unless there has been an abuse of discretion. People v Potter, 115 Mich. App. 125; 320 NW2d 313 (1982); People v Kearney, 72 Mich. App. 28; 248 NW2d 687 (1976); People v Boyd, 65 Mich. App. 11; 236 NW2d 744 (1975). Review of the record convinces us that the trial court did not abuse its discretion in admitting Mari Gilbert's expert testimony. As a children's protective services worker for the Michigan Department of Social Services for the past ten years, she has received special training in the area of child abuse and neglect. Her experience includes some 160 cases involving alleged child sexual abuse where anatomically correct dolls were used. The challenge to her qualifications as an expert witness was properly overruled.

Ms. Gilbert testified that the victim's use of the anatomically correct dolls corroborated the victim's allegations of sexual abuse. Defendant argues that the trial court erred in allowing this testimony because the opinion was given as though supported by scientific certainty.

Testimony as to a child's reaction to an anatomically correct doll may be admissible as a foundation for an expert witness' opinion that the child has been sexually abused even though their use does not rise to the level of a scientific test. In re Rhinesmith, 144 Mich. App. 475; 376 NW2d 139 (1985). Ms. Gilbert's testimony was presented simply as an opinion, not a conclusive scientific test. The trial court did not err by allowing testimony about the victim's reactions as a foundation for the expert's opinion that she had been sexually abused.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] MCL 750.520b(1)(a); MSA 28.788(2)(1)(a).