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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 28, 2015

v No. 320095
Tuscola Circuit Court JAMIE CHRISTOPHER ARNETT, LC No. 13-012824-FC

Defendant-Appellant.

Before: H OEKSTRA , P.J., and M ARKEY and D ONOFRIO , JJ.

H OEKSTRA

, P.J., (concurring)

.

I concur with the majority in affirming defendant’s conviction . I write separately to more fully explain why I agree that d efendant is not entitled to a n ew trial based on trial counsel’s failure to object to the vouchi ng testimony presented by the pr osecution.

On appeal, defendant maintains t hat his trial counsel provided ineffective assistance by failing to object to vouching te stimony from three witnesses, a ll of whom indicated that they

believed the victim to be telli ng the truth. Specifically, the victim’s mother and grandmother stated that they believed the victim. Most troublingly, Amber Spencer, a witness qualified as an expert in the area of forensic i nterviewing, testified without objection, based on her “training and experience,” that in her opini on the victim told the truth abou t the abuse.

Because it is the province of the jury to determine the truthf ulness of a witness, “it is improper for a witness or an expert to comment or provide an op inion on the credibility of another person while testifying at trial.” People v Musser , 494 Mich 337, 349; 835 NW2d 319 (2013). Vouching testimony from an expert in cases involving c riminal sexual c onduct has been recognized as particularly troublesome. See People v Peterson , 450 Mich 349, 352; 537 NW2d 857 (1995), amended 450 Mich 1212 (1995) (“[A]n expert may not vouch for the veraci ty of a victim.”).

The use of expert testimony in the prosecution of criminal sexu al conduct cases is not an ordinary situation. Given the nature of the offense and the terrible consequences of a miscalculation-the consequences when an indiv idual, on many occasions a family member, is falsely accused of one of society 's most heinous offenses, or, conversely, when one who commits such a crime wou ld go unpunished and a possible reoccurrence of the act would go unpr eventedappropriate safeguards are necessary. To a jury recognizing the awesome-2- dilemma of whom to believe, an expert will often represent the only seemingly objective source, offering it a much s ought-after hook on which to hang its hat. [ Id. at 374 (quotation omitted; emphasis in original).]

Given that vouching testimony is plainly inadmissible, it foll ows that counsel’s performance may be considered to fall below an objective standa rd of reasonableness when counsel fails to object to the admission of such testimony and there is no apparent strategy for failing to object. See People v Douglas , 496 Mich 557, 586; 852 NW2d 587 (2014). In cases where “the prosecution’s case hi nged wholly on the credibility” of the victim’s allegations, given the influential nature of expert testimony on credibility, fail ure to object to vouching testimony may also establish that there is a reasonable probability that the outcome of the trial would have

been different. See id. at 586-587. In Douglas , for example, the offense alleged was the

defendant’s sexual abuse of his three-year-old daughter, and de fense counsel failed to object to vouching testimony from three witn esses, one of whom, like Spen cer in the present case, offered an expert opinion of the victim’s credibility. The Court in Douglas found no sound trial strategy for failing to object to this testimony and therefore concluded that counsel’s performance fell below an objective standard of reasonableness. Id. at 586. The Court also determined that counsel’s deficiencies prejudice d defendant. In doing so, the Court reasoned that the victim’s credibility was central to the prosecution’s case and the Court emphasized that there was a “lack of evidence beyond her allegati ons,” including no physical evid ence whatsoever and no thirdparty witnesses to t he alleged abuse. Id. at 567, 580, 587-588.

In this case, regarding counsel’s performance, it is difficult to conceive of a sound trial strategy for failing to object. The prosecution proposes on ap peal that counsel’s decision not to object to vouching testimony may have been a reasonable strateg ic decision designed not to highlight the testimony in question. 1 While arguably this might excuse counsel’s failure to object to vouching by the victim’s mother and grandmother, whos e testimony might have reasonably been viewed as less in fluential, it does not provide a sound basis for counsel’s failure to object to Spencer’s expert opinion of the victim’s credibili ty which was plainly inadmissible and highly prejudicial to defendant’s position. Cf. id. at 586-587. Accordingly, I agree with the majority that defendant’s counsel’s performance fell below an o bjective standard of

reasonableness.

Nonetheless, because there is evidence in this case beyond the victim’s allegations, the case can be distinguished from Douglas , and defendant has not made the requisite showing of prejudice necessary to establish the ineffective assistance of counsel. In particular, in contrast to Douglas , there is some physical evidence in this case supporting the v ictim’s allegations of sexual abuse. Namely, a sexual assault nurse examiner who exam ined the victim observed

lacerations on the victim’s labia minora. The nurse examiner e xplained that such lacerations are

1 In its brief, the prosecution also suggests that counsel’s dec ision not to object to vouching testimony was reasonable because “the testimony stated nothing the average juror did not already presume—that the witnesses testifying for the prosecution, and witnesses related to [the victim], believed her.” This reasoning was rejected in Douglas , 496 Mich at 587 n 11.-3- not common in a child the victim’s age and that, though not con clusive, the lacerations were consistent with the victim’s report of penetration. Further, t he victim reported that some of the

assaults occurred in the bedroom that defendant shared with the victim’s mother and that defendant would lock the door to the bedroom during the assault s. One of the victim’s brothers

testified that on numerous occasions the victim and defendant w ere in the bedroom with the door

locked for about 10 minutes at a time. Police confirmed that t he bedroom door had a lock. Given this evidence supporting the victim’s allegations, the pr esent case was not a “pure credibility contest,” and it is not reasonably probable that th e vouching testimony, while improper, affected the outcome of the trial. See Douglas , 496 Mich at 580, 587-588.

/s/ Joel P. Hoekstra