Opinion
Docket No. 133485.
Decided March 5, 1991, at 9:35 A.M.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, John L. Livesay, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the people.
John A. Lydick, for the defendant on appeal.
Before: DANHOF, C.J., and CYNAR and SAWYER, JJ.
ON REMAND
Following a bench trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and was sentenced to a term of ten to fifteen years' imprisonment. On appeal, we affirmed. People v Garrison, 166 Mich. App. 557; 420 N.W.2d 851 (1988). However, by order of our Supreme Court, that judgment has been vacated, and this case has been remanded to us for reconsideration in light of People v Beckley, 434 Mich. 691; 456 N.W.2d 391 (1990) (companion case of People v Badour) with regard to whether expert witness testimony impermissibly vouched for the credibility of the child victim. 436 Mich. 865 (1990). After reconsideration, we find that we must reverse.
In Beckley, supra, a plurality decision, a majority of the Supreme Court agreed that, in a case involving sexual abuse of a child, an expert witness may testify that the behavior of the victim is consistent with that of child sexual abuse victims generally, However, the expert may not testify with regard to whether the victim's allegations are truthful or whether sexual abuse in fact occurred.
In this case, the testimony of the prosecution's expert, Mari Gilbert, unfortunately went beyond relating the victim's use of anatomically correct dolls with her experience with other child victims of sexual abuse. Her testimony pointedly suggested that the victim had in fact been sexually abused. We find the following testimony to be pertinent to our holding on this issue:
Q. [ Prosecutor] Is the removal of the clothing from the doll by the child consistent with something that has happened to them?A. [ Ms. Gilbert] Yes, sir.
Q. Is the action that [the child victim] made in this case where she took the male child and placed the penis against the mouth of the girl child and move the male child up and down significant to you?A. Yes, sir, it is.
Q. Why is that significant.
A. It demonstrates what, and also, you know, it corroborates what [the child victim] was stating. It demonstrates what had occurred to her.
Q. Miss Gilbert, based upon your experience, was [the child victim's] reaction to the dolls significant in this case?A. Yes, sir.
Q. What was significant to you based upon your experience?
A. Based on my experience, her reaction to the dolls demonstrated that she had indeed been sexually abused. [Emphasis added.]
Consequently, pursuant to Beckley, supra, defendant's conviction is reversed, and this case is remanded for a new trial. We do not retain jurisdiction.