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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, FOR PUBLICATION June 30, 2016 9:10 a.m.

v No. 329924 Ingham Circuit Court LEWIS CLIFTON DAVIS-CHRISTIAN, LC No. 15-000243-FC

Defendant-Appellee.

Before: F ORT H OOD , P.J., and R ONAYNE K RAUSE and G ADOLA , JJ.

R ONAYNE K RAUSE , J.

Plaintiff appeals by delayed leave granted 1 the trial court’s interlocutory order granting defendant’s motion for an in camera review of the complainant’s counseling records. For the reasons discussed below, we reverse.

I. FACTS AND PROCEDURAL HISTORY

Resulting from several alleged instances of sexual contact bet ween defendant and complainant, defendant is charged with three counts of first-de gree criminal sexual conduct, MCL 750.520b(1)(a), one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a), and one count of accosting a chil d for immoral purposes, MCL 75 0.145a. Defendant alleged that during her forensic interview regarding these incidents, the co mplainant stated that defendant’s alleged assault of her happened like the “last time,” referring to a prior instance of sexual abuse perpetrated on the complainant by a non-party in 2011 2 . Defendant alleged that the victim attended counseling after the 2011 incident and moved to compel into discovery the counseling records, arguing that information within the records was likely to contain material necessary to his defense, including possible impeachment material. The tria l court granted defendant’s motion; plaintiff objected, argui ng that the counseling records were privileged communications

1 People v Davis-Christian , unpublished order of the Michig an Court of Appeals, entered January 19, 2016 (Docket No. 329924).

2 Defendant in the case of the p rior abuse entered a guilty plea to second-degree criminal sexual conduct.-2- and the complainant had not waived the privilege. Plaintiff fu rther argued that defendant had not shown that there existed a reasonable probability grounded in f act that the counseling records were likely to contain information necessary to prepare a defen se. Plaintiff agreed with the use of a protective order to turn over the police reports and corre sponding forensic interviews associated with the prior sexual abuse. With respect to the co unseling records, the trial court ruled that it would review them i n camera, as defendant’s freed om was at stake. Plaintiff filed an application for interlocutory ap peal, which this court granted; the trial court stayed implementation of the order pendi ng the outcome of this appeal.

II. ANALYSIS

A trial court’s decision to conduct or deny an in camera revie w of records in a criminal prosecution is reviewed for an abuse of discretion. People v Stanaway , 446 Mich 643, 680; 521 NW2d 557 (1994). “The trial court abuses its discretion when i ts decision falls outside the range of principled outcomes or when it erroneously interprets or app lies the law.” People v Lane , 308 Mich App 38, 51; 862 NW2d 446 (2014).

“Discovery should be granted whe re the information sought is n ecessary to a fair trial and a proper preparation of a defense.” People v Laws , 218 Mich App 447, 452; 554 NW2d 586 (1996). Nevertheless, defendants generally have no right to di scover privileged records absent certain special procedures, such as an in camera review of the privileged information conducted by the trial court. MCR 6.201(C)(1) and (2). In a criminal se xual conduct prosecution, an in camera review “promotes the state ’s interests in protecting the privacy rights of the alleged rape victim while at the same time safeguards the defendant’s right to a fair trial.” People v Hackett
, 421 Mich 338, 350; 365 NW2d 120 (1984).

Stanaway explained the proper procedure that a court must use to determ ine whether to grant an in camera review of privileged material:

[W]here a defendant can establi sh a reasonable probability that the privileged records are likely to contain material information necessary to his defense, an in camera review of those records must be conducted to ascertain w hether they contain evidence that is reasonably necessary, and therefore es sential, to the defense. Only when the trial court finds such evidence, should it be provided to the defendant. [ Stanaway , 446 Mich at 649-650.]

However, the Stanaway Court explained that “disclosure should not occur when the rec ord reflects that the party seeking disclosure is on ‘a fishing exp edition to see what may turn up.’” Id . at 680, quoting Bowman Dairy Co v United States , 341 US 214, 221; 71 S Ct 675; 95 L Ed 2d 879 (1951). A defendant “is fishing” for information when he o r she relies on generalized assertions and fails to state any “specific articulable fact” t hat indicates the privileged records are needed to prepare a defense. Id . at 681. The Michigan Supreme Court amended MCR 6.201(C) in 1996 to reflect the rule announced in Stanaway . MCR 6.201, staff comment to 1996 amendment.

MCR 6.201(C)(2) provides in part as follows:-3- If a defendant demonstrates a good-faith belief, grounded in a rticulable fact, that there is a reasonable probability that records prote cted by privilege are likely to contain material inform ation necessary to the defense , the trial court shall conduct an in camera inspection of the records.

(a) If the privilege is absolute, and the privilege holder ref uses to waive the privilege to permit an in camera inspection, the trial cour t shall suppress or strike the privilege holder’s testimony.

(b) If the court is satisfied, following an in camera inspecti on, that the records reveal evidence necessary to the defense, the court sha ll direct that such evidence as is necessary to the defense be made available to de fense counsel. If the privilege is absolute and the privilege holder refuses to w aive the privilege to permit disclosure, the trial court shall suppress or strike the privilege holder’s testimony.

The trial court in this case abused its discretion because it failed to apply the law as articulated in Stanaway and MCR 6.201(C)(2). In fact, the trial court explicitly disr egarded Stanaway and articulated its own standard:

[B]ut as to the counseling records, yeah, I’m going to review t hem . . . I don ’ t care what Stanaway says
, what you want to point to or don ’ t point to . I don’t know if this is relevant or not, but, quite frankly, the releva nce comes in with the freedom of defendant or his incarceration. That’s where the re levance is, because if there’s something in there that puts him behind bars or free s him, there’s the relevance, so I don’t talk to anybody. I’m not allowed to. I’ m going to read it and say yea or nay. It’s very simple. [Emphasis added.]

The trial court’s articulated standard would allow an in camer a review of most, if not all, of alleged sexual assault victims’ counseling records. However

, Stanaway rejected allowing for such sweeping discovery, keeping in mind the state’s interest i n protecting the victim’s privacy rights. Addressing defendant Stana way’s assertion that the rec ords were needed in an attempt to discover any prior inconsistent statement or rebuttal evidence, the Court responded, “[t]his is no more than a generalized assertio n that the counseling records m ay contain evidence useful for impeachment on cross-examination. This need might exist in every case involving an accusation of criminal sexual conduct. ” Stanaway , 446 Mich at 681 (emphasis added).

The parties do not dispute that the counseling records at issu e are privileged and that the need for an in camera review is controlled by Stanaway and MCR 6.201(C). Stanaway is a consolidated appeal involving tw o defendants, Stanley Caruso an d Brian Stanaway. 3 The parties rely on the circumstances and rulings of one of the defendants to the exclusion of the other; plaintiff turns to defendant Sta naway, while defendant turns to defendant Caruso.

3 See People v Caruso
, 444 Mich 876; 511 NW2d 677 (1993) and People v Stanaway , 444 Mich 876; 511 NW2d 677 (1993) (ordering that the cases be argued and submitted together).-4- The Supreme Court determined that Stanaway’s request for privi leged counseling records was properly denied because his request fell “short of the spec ific justification necessary to overcome the privilege.” Id. at 681-682. Stanaway asserted that he needed access to privil eged records to “unearth any prior inconsistent statements made by t he complainant or any other relevant rebuttal evidence.” Id . at 681. The Supreme Court determined that Stanaway was merely “fishing” because he failed to state any “specific artic ulable fact” to indicate that the requested information was necessa ry for him to prepare a defens e. Id

. Defendant asserts that this case is analogous to the Supreme C ourt’s ruling with respect to defendant Caruso. The Court de scribed the relevant facts re garding Caruso as follows:

Defendant Stanley Caruso is charged with second-degree crimina l sexual conduct . . . The allegation surfaced when the child wrote a n ote to her mother’s live-in boyfriend about the a lleged incident.

Before trial, defense counsel m oved to obtain the complainant’ s counseling records, asserting that there was good reason to bel ieve the complainant had been the victim of sexual abuse by her biologic al father. It was further suggested that this may not have been the first note wr itten to the live-in boyfriend of a sexual nature. It was believed by the defense t hat the child had written at least one prior note in which she suggested she want ed to have sex with him in the car. [ Id . at 654-655.]

Regarding Caruso, the Court held as follows:

Defendant Caruso may have demonstrated a realistic and substan tial possibility that the material he requested might contain inform ation necessary to his defense. The defendant argued in his motion for in camera discovery that the circumstances in which the accusation was made were relevant to the truth or falsity of the claim. The defense theory is that the claimant is a troubled, maladjusted child whose past trauma has caused her to make a fa lse accusation against her uncle. The defendant asserted a good-faith belief in his motion that the complainant suffered sexual abuse by her biological father before this allegation of abuse, the nonresolution of which produced a fals e accusation, and factual support for some sexuall y aggressive behavior, namely, writing a letter to her mother’s live-in boyfriend i nviting him to have sex with he r in his car. The in camera review ordered by the tria l judge may have been proper u nder the facts of this case. [ Id . at 682-683.]

In this case, and in light of her comment that the alleged abu se occurred as it had the “last time,” defendant argued that the complainant’s counseling recor ds likely contained material necessary to his defense. These allegations are merely general ized assertions that the record might contain useful evidence, i.e., they are of the sort that “might exist in every case involving an accusation of criminal sexual conduct.” Id . at 681. The complainant was merely associating the two incidents, not hinting or implying that anything about the prior incident would possibly undermine the present allegations. Defendant is attempting to use complainant’s statement as a-5- way to access privileged informa tion in order to “fish” for evi dence that may enhance his defense strategy.

Defendant analogizes Caruso’s theory of defense to his own. C aruso theorized that the complainant was a “troubled, maladjusted child whose past traum a has caused her to make a false accusati on . . . ” Id . at 682. In regards to Caruso, the Court believed evidence re lated to the complainant’s counseling might p rovide “factual support for som e sexually aggressive behavior” on the part of the complainant. Id . Similarly, defendant in the case now before us asserts that plaintiff provided statements fro m three witnesses attesting to various incidents where the complainant engaged in sexually aggressive behavior. However, defendant has not demonstrated that such information would be “ necessary to the defense.” MCR 6.201(C)(2). Unlike defendant Caruso, who articulated a need to ascertain a specific piece of evidence to prove a fact material to his defense, defendant’s ass ertion of need merely voices a h ope of corroborating evidence, untethered to any articulable facts. Defendant has access to t he police report and forensic interview associated with the 2011 case, although the trial cou rt has not yet made any rulings regarding the admissibility of that information. Coupled with the alleged witness statements, those documents give defendant the information necessary to pro perly prepare a defense. As long as defendant could make a sound argument without having to access claimant’s privileged counseling records, any informati on in the counseling records w ould not be material to his defense.

Defendant also asserts that he has “a good faith reason to bel ieve that, in [the complainant’s] prior sexual assault, she attributed her exposur e to pornography to the prior defendant,” which he argues is inconsistent with her alleged as sertion in the case at hand that defendant exposed her to pornography. However, what the compla inant testified to at the preliminary examination was that defendant showed her Internet pornography, not that defendant was the first person to show her pornography or that she had ne ver seen it before. So, the premise underlying this argument is invalid.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Amy Ronayne Krause /s/ Karen M. Fort Hood /s/ Michael F. Gadola