### Court of Appeals, State of Michigan

ORDER

People of MI v Lorinda Irene Swain

Docket No

. 314564

LC No. 2001-004547-FC Cynthia Diane Stephens Presiding Judge

Joel P. Hoekstra

Patrick M. Meter

Judges

The Court orders that the December 11

, 20 14 opm10n is h ereby VACATED

, and

a new opinion is attached.

A true copy entered and certified by Jerome W. Zimme r Jr.

, Ch i ef Cle rk

, on



# FEB O 5 2015

Dat e-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED February 5, 2015

v No. 314564 Calhoun Circuit Court LORINDA IRENE SWAIN, LC No. 2001-004547-FC

Defendant-Appellee.

Before: S TEPHENS , P.J., and H OEKSTRA and M ETER , JJ.

P ER C URIAM

. In 2002, following a jury trial, defendant was convicted of fo ur counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a), related to her sex ual abuse of her adopted son, Ronnie Swain. This Court affirm ed defendant’s convictions on d irect appeal in 2004. Defendant has since filed several motions for relief from judgment. Most recently, after this Court reversed the trial court’s grant of one of defendant’s successive motion s, People v Swain , 288 Mich App 609; 794 NW2d 92 (2010), the trial court permitted defendant to supplement that motion and conducted an evidentiary hearing. The trial court then granted defendant’s successive motion for relief from judgment based on fi ndings of newly discovered evid ence involving a Brady 1 violation, the interests of j ustice under MCL 770.1, and defend ant’s actual innocence. The prosecution now appeals by leav e granted. We reverse.

This Court reviews for an abuse of discretion a trial court’ s decision to grant or deny a motion for relief from judgment. Swain , 288 Mich App at 628. An abuse of discretion occurs when a decision falls outside the range of reasonable and princ ipled outcomes or when the trial court makes an error of law. Id . at 628-629. A trial court’s factual findings related to a motion for relief from judgment are reviewed for clear error. Id . at 628; MCR 2.613(C). Due process claims, such as those involving allegations of a Brady violation, are reviewed de novo. People v Schumacher , 276 Mich App 165, 176; 740 NW2d 534 (2007).

1 Brady v Maryland , 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).-2- Motions for relief from judgment are governed by MCR 6.501 et seq

. Swain , 288 Mich App at 629. Under these provisions, a defendant bears the burd en of establishing entitlement to the requested relief. MCR 6.508( D). Pursuant to MCR 6.502(G)( 1), a defendant is generally entitled to only one such motion in regard to a conviction. At tempts to file successive motions are governed by MCR 6.502(G), which prohibits a successive moti on unless the motion is based on either (1) “a retroactive change in law that occurred after the first motion for relief from judgment” or (2) “a claim of new evidence that was not discover ed before the first such motion.” See MCR 6.502(G)(2). These are the only two exceptions to the general prohibition on successive motions for relief from judgment. Swain , 288 Mich App at 635-636. If a defendant fails to satisfy at least one of these exceptions, a trial cour t abuses its discretion by failing to deny the motion. See id.

Defendant alleges that she has p resented the trial court with “new evidence” that was not discovered before her previous motion for relief from judgment, thereby satisfying the newlydiscovered-evidence exception in MCR 6.502(G)(2). To determine whether evidence is newly discovered, we apply the test articulated in People v Cress , 468 Mich 678, 692; 664 NW2d 174 (2003), which requires a defe ndant to establish that:

(1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was no t cumulative; (3) the party cou ld not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial. [Internal citations and quotation marks omitted.]

To resolve the present dispute, it is initially necessary to i dentify what constitutes the “newly discovered evidence” at issue. The prosecution maintain s that the allegedly newly discovered evidence is the ident ity of Dennis Book, defendant’s former live-in boyfriend, and his knowledge of events in the trailer where some of the abuse occu rred. If such a formulation of the “evidence” is accepted, plai nly defendant has not shown ent itlement to relief on the basis of newly discovered evidence. This is so because it is well-accep ted in Michigan that evidence is not newly discovered if, as in the present case, the defendant or defense counsel w as aware of the evidence at the time of trial. People v Rao , 491 Mich 271, 281; 815 NW2d 105 (2012). In defendant’s case, it is unconteste d that, at the time of trial, defendant and her trial counsel (Edwin Hettinger) both knew of B ook’s presence in the trailer d uring a portion of the relevant period, and they knew that he would be aware that abuse had notoccurred in his presence. Defendant in fact referenced Book in her trial testimony, descr ibing his presence in the home during part of the relevant time, and Hettinger acknowledged at the evidentiary hearing that he had been informed of Book’s presence in the home. Under these circumstances, defendant and her attorney were most certainly aware at all pertinent times o f Book’s ability to provide testimony concurring the abuse or lack thereof and defendant ha s thus failed to show that the evidence was newly discovered. See People v Terrell , 289 Mich App 553, 570; 797 NW2d 684 (2010).

Moreover, as a related matter, the third consideration of Cress requires that defendant demonstrate “reasonable diligenc e” in her effort to have discov ered and produced the evidence at trial. Cress , 468 Mich at 692. While defendant has indicated that, despite her knowledge of Book, she could not call him as a witness because of his percei ved hostility toward her and his-3- unwillingness to speak with her, “a defendant’s awareness of th e evidence at the time of trial precludes a finding that the evi dence is newly discovered, even if the evidence is claimed to have been ‘unavailable’ at the time of trial.” Rao , 491 Mich at 282. In these circumstances, a defendant “is charged with the burden of using reasonable diligence to make that evidence available and produce it at trial.” Id . at 283 (emphasis in original). What constitutes reasonable diligence will depend on the circumstances involved, bearing in mind that “the law affords a defendant procedural avenues to secure and produce evidence and , under Cress, a defendant must employ these avenues in a timely manner because evidence t hat is known to the defendant, yet not produced until after tri al, will not be considered grounds for a new trial.” Id

. at 283-284.

Applying these principles in this case, defendant plainly faile d to exercise the required reasonable diligence by not availing herself of the opportunityto subpoena Book to testify under the penalties of perjury despite the fact that she knew he had information regarding the abuse. See United States v Turns , 198 F3d 584, 588 (CA 6, 2000). Book in fact acknowledged at the evidentiary hearing that, desp ite his hostility toward defendan t, he would have testified favorably to defendant if subpoenaed. Such a statement clearly demonstrates that if defendant had exercised reasonable diligence, the evidence would have been pr esented at trial, thus further belying any claim that Book’s te stimony was newly discovered wi thin the meaning of Cress

. That defendant ultimately opted, as a strategic decision, not t o call Book because of his hostility toward her does not render his information newly discovered. S ee People v Newhouse , 104 Mich App 380, 386; 304 NW2d 590 (1981).

On appeal, in an effort to establish that the testimony she no w wishes to present is newly discovered, defendant has attempted to frame the “evidence” as the fact that, unbeknownst to defendant, Book would have been a “favorable defense witness.” The trial court accepted defendant’s framing of the issue, e xplaining that the new evide nce consisted of t he fact that

Book told [Detective Guy] Picketts before the trial of this cas e information based on first-hand knowledge that the Defendant did not commit the c rimes with which she was charged and ultimately convicted. Put another way, the evidence at issue is that Book was, at the time of the trial, a favorable defense witness. Picketts knew it, the Defendant did not.

We find this characterization of the “evidence” at issue unpers uasive and ultimately unhelpful to defendant’s effort to establish e ntitlement to relief from judg ment.

Indeed, accepting the trial court’s factual conclusion that the conversation with Detective Picketts occurred and that it was not made known to defendant until 2011, to the extent the conversation itself can arguably be considered the specific “ev idence” at issue, its discovery would not entitle defendant to a new trial under Cress . This is so because the fact that a conversation occurred between Det ective Picketts and Book is, i n itself, of no relevance to any issue at trial and cannot be seenas making a different result probable on retrial. Cress , 468 Mich at 692. That is, the fact that Book spoke to Detective Pickett s on the telephone does not tend to make it more or less probable that defendant abused the victim or that the victim fabricated the allegations. MRE 401. What would be relevant is the substance of the conversation, i.e. Book’s claim that he did not witness any abuse. However, his remarks in this regard during the telephone conversation constitute out-of-court statements which , if offered for the truth of the-4- matter asserted, would constitute hearsay. MRE 801(c). As def endant concedes on appeal, given that the statements to Detective Picketts constitute hear say, they would not be admissible. MRE 802. Thus, by itself, the conv ersation would not make a di fferent result prob able on retrial. Instead, the only way the conversation with Detective Picketts can be remotely conceived as providing evidence that could pot entially affect the outcome of the trial would be if the “evidence” is Book’s personal knowledge of events in the traile r. 2 However, because, as discussed, defendant already knew of Book’s potential testimony , she cannot claim that the information is newly discovered by virtue of learning about Boo k’s conversation with Detective Picketts. As this Court has pr eviously recognized, “[o]ne does not ‘discover’ evidence after trial that one was aware of prior to trial. To hold otherwise stretc hes the meaning of the word ‘discover’ beyond its common understanding.” Terrell , 289 Mich App at 568 (internal citation and quotation marks omitted; emphasis removed). In short, whendefendant heard about Book’s conversation with Detective Picke tts, she learned nothing new t hat could potentially affect the outcome of the trial and, consequently, she has not shown the e xistence of newly discovered evidence entitling he r to relief under Cress

. To the extent defendant and the trial court have more generall y characterized the evidence as Book’s status at the time of trial as a “favorable defense witness,” Book’s characterization as such is at odds that his undisputed hostili ty toward defendant at the time of trial. Further, to the extent that, despite his hostility, Boo k can be characterized as “favorable” because he possessed potentially favorable information, his sta tus as a “favorable” witness was not newly discovered because defendant knew all along that he p ossessed this information. Moreover, his status as a “favorable defense witness” is also n ot “evidence” and thus not a basis for a new trial under Cress . In this regard, both MCR 6.502(G)(2) and Cress reference newly discovered “evidence.” As most basically defined, “evidence” i s “[s]omething (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact. . . .” Black’s Law Dictionary (9th ed); see also MRE 401. The alleged facts in defendant’s case related to allegations of sexual abuse, and ma terial to such determination was, of course, the credibility of those involved. See People v Grissom , 492 Mich 296, 321 n 41; 821

2 Although we view the first and third factors as the most obvio us indications that defendant has failed to satisfy the standards discussed in Cress , Book’s testimony to the effect that he had not witnessed abuse while living in t he trailer would also have bee n cumulative of similar testimony offered at trial by another of defendant’s former boyfriends wh o also lived in the trailer during part of the relevant time. The victim’s brother—who also lived in the trailer—similarly stated that he had not personally witnessed abuse. Defendant also tes tified and denied that abuse occurred. There were thus several witnesses who lived in the t railer to testify that they had not seen abuse in the home. Given that Book’s testimony would have been evidence of “the same kind to the same point,” it strikes us as plainly cumulative. See People v Grissom , 492 Mich 296, 320 n 41; 821 NW2d 50 (2012) (internal citation and quotat ion marks omitted). Given the cumulative nature of Book’s evidence, it cannot be seen as crea ting a reasonable probability of a different outcome at retrial. See People v Carbin , 463 Mich 590, 603; 623 NW2d 884 (2001); People v Purman , 216 Mich 430, 439; 185 NW 725 (1921).-5- NW2d 50 (2012). It follows that what is “evidence” in this cas e is not Book’s abstract favorability to one side or the other, or his usefulness to def endant as a strategic matter, but his knowledge of events and the people involved. In other words, B ook’s perceived status as a “favorable defense witness” is, quite simply, not evidence. Se e Turns , 198 F3d at 588 (recognizing that “evidence” was not whether a witness would te stify truthfully but what information the witness had about the material facts of consequ ence at trial).

In sum, we are persuaded that the “evidence” at issue consisted of Book’s personal knowledge of events at the trailer and his observation of defen dant’s behavior with her sons. Because this evidence was plainly known to defendant, she canno t now argue that it was newly discovered. See Rao , 491 Mich at 281. Given that defendant has not shown that the evidence was newly discovered, and that she has not argued there was a r etroactive change in the law, her successive motion for relief from judgment was barred by MCR 6. 502(G) and the trial court abused its discretion in g ranting her motion. See Swain , 288 Mich App at 635-636.

In contrast to this conclusion, defendant maintains that she is not required to establish that the evidence in question was newly discovered within the m eaning of Cress because her underlying claim involves a Brady violation. Defendant has not provided this Court, however, with any authority for the proposi tion that the standards for e valuating whether evidence is newly discovered for purposes of MCR 6.5 02(G)(2) are inapplicable in cases involving constitutional claims, nor are we aware of any such authority. Nevertheless, if we were to assess whether a Brady violation occurred without first determining if defendant had presented newly discovered evidence within the meaning of Cress , defendant would still have fa iled to satisf y her burden.

Under Brady, due process requires the state to disclose evidence in its pos session to the defendant, provided that the evide nce is favorable to the defen se and material to the defendant’s guilt or punishment. Smith v Cain , ___ US ___; 132 S Ct 627, 630; 181 L Ed 2d 571 (2012); Schumacher , 276 Mich App at 176. However, evidence that is known to a de fendant cannot form the basis of a Brady violation. See Apanovitch v Houk , 466 F3d 460, 474 (CA 6, 2006) (recognizing that Brady “only applies to evidence that was known to the prosecution, b ut unknown to the defense, at the time of trial”). See also Henness v Bagley , 644 F3d 308, 325 (CA 6, 2011).

Defendant readily concedes that she had firsthand knowledge of Book’s presence in the trailer and thus whether she a bused the victim i n his presence. At trial, she referenced Book’s presence in the trailer, asserting that he was present in the m ornings, including during times when she dressed the victim. Her trial counsel si milarly conce ded at the evidentiary hearing that, before trial, defendant informed him of Book’s presence in the home. Given defendant’s firsthand knowledge of Book’s pr esence in the trailer, she had available to her all the essential facts permitting her to take advantage of any exculpatory infor mation Book could have provided. Defendant’s failure to avail herself of Book’s evidence by not calling him as a witness at trial, despite the fact that she knew he had not witnessed any abuse, does not establish the existence of

a Brady violation.

Moreover, to the extent defendant has insisted that Book’s evi dence, while known to her, was unavailable because of Book’s hostility toward her, this co mplaint also fails to establish a Brady violation. Book’s reluctance to assist defendant at the time of trial, while perhaps-6- unfortunate for defendant, does not demonstrate that she was ig norant of the information he possessed or that the state somehow interfered with her access to this information. See Benge v Johnson , 474 F3d 236, 244 (CA 6, 2007) (finding that a witness’s refus al to assist the defendant was not the prosecution’s doing and thus no Brady violation had occurred). Ultimately, defendant knew the essential facts of Book’s potential testimony and, consequently, she has not shown a Brady violation.

Defendant again protests the framing of what constitutes the “ evidence” at issue, maintaining that the focus s hould be on the telephone conversat ion, not Book’s actual knowledge of events in the trailer. This view of the evidence does not, however, establish a Brady violation. As discussed supra , the telephone conversation consisted of inadmissible hearsay, MRE 801(c); MRE 802, a fact which defendant has conceded on appeal. Becaus e the telephone conversation was not admissible, defendant coul d not have made use of it at trial.

Defendant argues, however, that the disclosure of the telephone conversation could have led to the discovery of additional information, i.e., evidence regarding Book’s personal knowledge of events in the trailer, that would have been admiss ible and that would have resulted in a different outcome at trial. In this regard, defendant is correct that, where the undisclosed information is inadmissible, a Brady violation may potentially still exist provided that the defendant can demonstrate that the information “would lead to the discovery of additional, admissible evidence that could have resulted in a different res ult at trial.” Henness , 644 F3d at 325. However, even if Book had been inclined to be helpful, de fendant would not have obtained “additional” information because the only information that the telephone conversation might have led to was information already known to defendant, informa tion which she chose not to avail herself of when she decided not to call Book to the stand

. 3 As discussed, information that is known to a defendant does not form the basis for a Brady claim. Overall, defendant has not established the existence of a Brady violation. Because she has also failed to establish the existence of newly discovered evidence, her successive motion f or relief from judgment was barred by MCR 6.502(G) and the trial court abused its discretio n in granting her motion. Swain
, 288 Mich App at 635-636.

The trial court also granted def endant’s request for relief und er MCL 770.1, which allows a trial court to grant a new trial “for any cause for which by law a new trial may be granted, or

3 Defendant has also suggested on appeal that things could have been different because she would have undoubtedly subpoenaed Book, regardless of his hatre d of her, if she had known of the telephone conversation. This is not factually consistent, however, with Hettinger’s testimony at the evidentiary hearing that, even if he had known of the te lephone conversation, any decision to call Book would have involved consideration of Book’s hostil ity toward defendant. Given Book’s open and unchanged hostility toward defendant, and recog nizing that it was this concern for Book’s hostility that motivat ed the decision not to subpoen a Book despite the fact that he was known to possess favorable information, we cannot see that know ledge of the telephone conversation would have been reaso nably likely to affect the strategic decision not to call Book.-7- when it appears to the court that justice has not been done, an d on the terms or conditions as the court directs.” In relying on this statutory provision, howeve r, the trial court ignored the fact that, in defendant’s case, the time for filing motions for a ne w trial under MCL 770.1 had long since passed. See MCL 770.2(1). Because of this fact, defenda nt is now limited to the relief available through MCR 6.500 et seq . See, generally, People v Kincade , 206 Mich App 477, 482; 522 NW2d 880 (1994). However, because defendant has not satisf ied MCR 6.502(G)(2), she is not entitled to relief. We note that defendant has not shown “ good cause” for the delay in filing her motion as required by MCL 770.2(4). On the contrary, some of the information on which the trial court based the need for a new trial under MCL 770.1—the information from Book—has been known to defendant since the time of trial. 4 If such evidence constituted “good cause” for relief, defendant should have rai sed it at trial or in a timely motion for a new trial. See People ex rel Coon v Plymouth Plank Rd Co , 32 Mich 248, 249 (1875). Nor can we say that “justice has not been done” in defendant’s case. The trial court’s reliance on MCL 770.1 to grant defendant relief was an abuse of discretion.

The trial court also granted defendant’s motion based on her fr eestanding claim of actual innocence under the federal cons titution within the meaning of Herrera v Collins , 506 US 390; 113 S Ct 853; 122 L Ed 2d 203 (1993). In Herrera , in the context of federal habeas review, and although not going so far as to c onclusively recognize that a c ognizable actual innocence claim exists under the federal cons titution, the Court stated: “We ma y assume, for the sake of argument in deciding this case, that in a capital case a truly persuasiv e demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unco nstitutional, and warrant federal habeas relief if there were no state avenue open to process suc h a claim.” Id . at 417. More recently, the Supreme Court has reaffirmed that no standalone a ctual innocence claim has yet been recognized, explaining: “We have not resolved whether a pr isoner may be entitled to habeas relief based on a freestanding claim of actual innocence .” McQuiggin v Perkins , ___ US ___; 133 S Ct 1924, 1931; 185 L Ed 2d 1019 (2013). In other wo rds, contrary to defendant’s arguments, it is not certain from the authorities on which she relies that there exists a freestanding claim of actual innocence. Moreover, if such a ri ght exists, it seems questionable whether it would apply to defendant’s case because her case is not, in contrast to Herrera , a capital case. See Wright v Stegall , 247 Fed App’x 709, 711 (CA 6, 2007). Further, Herrera also suggested that, when available, the appropriate avenue for reli ef on actual innocence grounds rests in an application for executive clemency. Herrera , 506 US at 414-417. Because such avenues are available in Michigan, see Const 1963, art 5; § 14; MCL 791.243, it is not clear that the type of actual innocence claim contemplated in Herrera would be properly brought before the courts. All these things considered, we cannot say that de fendant has shown the existence or applicability of a fed eral freestanding actual innocence claim in this case.

4 The trial court also discussed the testimony of Tanya Winterburn and William Risk. As discussed infra , the evidence from these witnes ses was not all that helpful to the defense, and this Court has previously held that it did not warrant a new trial. Swain , 288 Mich App at 640.-8- At any rate, assuming that such a r ight exists and that it woul d be applicable to defendant, we are not persuaded that defendant has satisfied the high stan dard that would be required to merit relief. Herrera itself declined to precisely identify what standard would appl y to the evaluation of such a claim, expl aining only that it “would nece ssarily be extraordinarily high.” See Herrera , 506 US at 417. In Swain , 288 Mich App at 638, this Court described the standard as requiring a defendant to demonstrate that it is more likely than not that no reasonable juror would have found the defendant guilty.

The victim testified to the particulars of the abuse and what occurred, explaining that defendant performed oral sex on him on numerous occasions, both at the trailer and at the house on Oak Grove. As the victim of sexual assault, it was not nece ssary that his testimony be corroborated, MCL 750.520h, and, if believed, the victim’s test imony alone would be enough to allow the jury to convict defenda nt. Nevertheless, there was c orroboration for circumstantial details in the victim’s version of events. For example, defend ant herself acknowledged the sleeping arrangements at her p arents’ house, agreeing that she slept in a bed with the victim as he had indicated at trial. She also admitted that she helped him dress in the mornings. Consistent with the victim’s testimony, the victim’s brother testified that he waited outside for the bus alone on a few occasions and that defendant treated him differently t han the victim, affording the

victim special privileges and kissing the victim on the lips. Lending further credibility to the victim’s version of events, the p rosecution’s expert opined tha t the victim manifested behaviors that were consistent with that of a child sexual abuse victim. Reviewing this same information during a previous appeal in regar d to defendant’s claimed actua l innocence, we explained:

Dr. Randall Haugen, an expert regarding the sexual abuse of chi ldren and a counselor of the victim, testified that the victim manifested b ehavior, such as sexually reactive behavior towar d other children, compulsive ma sturbation, and a hoarding of women’s underwear, that was consistent with a child who had been sexually abused. Haugen also testified that the discovery of achild’s sexually inappropriate behavior can lead t o a disclosure by the child of prior sexual abuse, and Haugen noted that the victim disclosed the abuse when he wa s confronted by his stepmother concerning his actions toward a young cousin. [ Swain , 288 Mich App at 641-642.]

In addition to the evidence supporting the victim’s version of events, there was evidence that cast doubt on defendant’s credibility. Defendant made wha t would be viewed by a reasonable juror as incriminating statements during her intervi ew with Detective Picketts. Most notably, without being informed of the precise nature of the al legations, defendant yelled: “I never sucked my kid’s dick.” The statement would suggest to a reasonable juror that defendant knew of the nature of the allegations without being told becaus e she had in fact performed the acts which she so vehemently denied. Defendant also answered q uestions inconsistently during her conversations with Detective Picketts, first claiming that she had not dressed the victim and then acknowledging that she continued to dress him when he was as old as eight or nine years of age. Further, defendant stated to Detective Picketts that the victim was “special” to her and that she had a closer relationship with the victim than with his bro ther. These remarks tended to corroborate the disparate treatment described by both the victi m and the brother, and it coincided with the expert testimony of Dr. Haugen, who indicated that sex ual abusers often foster a special-9- relationship with their victims, grooming them through the use of gifts or the provision of special privileges. 5

In contrast to this evidence supporting defendant’s guilt, def endant notes that there are three witnesses who did not tes tify at trial whose testimony co uld now be used to discredit the victim. Certainly, given that William Risk and Tanya Winterbur n could testify that the brother did not wait outside for the bus alone, it could potentially ca st doubt on the credibility of the victim and the brother. However, by equal measure, the inconsi stency could also have been resolved in favor of the victim’s and the brother’s testimony. For example, Winterburn and Risk both acknowledged in their testi mony that, for various reasons, there were times when they could not be aware of whether the broth er was outside alone. Moreove r, at one of the evidentiary hearings, the prosecution produ ced a neighbor who testified tha t the brother did wait outside alone on multiple occasions, a fact which caught her attention because the boys were so often together. Her testimony could be presented in support of the t estimony of the victim and his brother. At trial, defendant i ndicated that the boys typicallywaited inside the trailer for the bus to arrive, meaning defendant’s own testimony would have been so mewhat inconsistent with Risk and Winterburn’s evidence. On the whole, the ancillary questio n of whether the brother waited outside alone, or how often he waited outside alone, is a credi bility question, and it is a question a reasonable juror could easily resolve in favor of the testimo ny provided by the victim and his brother at trial.

Similarly, while Book testified that he did not see any abuse in the trailer, by his own admission he was not in the house at all times and he lived wit h defendant for only part of the time in which the abuse was alleged to have occurred. In other words, Book’s testimony, even if believed, is not proof that abuse did not occur. Instead, the jury could reasonably believe the victim in this regard, and would have been particularly likely to do so in light of the expert testimony on child sexual abuse, defendant’s incriminating stat ements to Detective Picketts, and her confession to Charles. Def endant also emphasizes that the victim and his brother have recanted their testimony since trial, casting further doubt on her guilt. Undoubtedly, the fact that they have recanted would have c reated an important issue of cre dibility for the jury. However, the mere fact that they have recanted does not erase the eviden tiary value of their trial testimony. On the contrary, recantation test imony is traditionally regarde d as “suspect and untrustworthy.” People v Canter , 197 Mich App 550, 559; 496 NW2d 336 (1992). Further, the ske pticism with which such recantations are viewed is “only heightened when the recanting witness is a family member and the witness may have feelings of guilt or may be inf luenced by family members seeking to change the witness’s story.” United States v Coker , 23 Fed App’x 411, 412 (CA 6, 2001). On the whole, the evidence is such that defendant has n ot established “actual innocence.”

5 Added to this evidence is the testimony of an inmate, Deborah Charles, who described defendant confessing to her in prison. Consistent with the vic tim’s allegations, defendant admitted to Charles that she had slept naked with the victim an d that she had sexually abused the victim while using drugs. She als o told Charles that she found the victim more attractive than his brother and, for this reason, s he kissed the victim on the lips and the brother on the cheek.-10- Even assuming there exists a c ognizable freestanding actual inn ocence claim, the trial court abused its discretion in grant ing relief on this basis.

Reversed.

/s/ Joel P. Hoekstra /s/ Patrick M. Meter