People v. Kosters

Weaver, P.J.

Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). For each count defendant received concurrent sentences of seven to thirty-five years in prison. He appeals as of right. We affirm._

*751Defendant was charged with the sexual abuse of his two children. His daughter was not yet two years old at the time of the alleged abuse, and his son was five. In addition to the testimony of defense witnesses, evidence at trial included the testimony of defendant’s five-year-old son, Patricia McNees, a licensed practical nurse who interviewed the son before he was examined by a physician, Dr. Francis Banfield, the children’s pediatrician, Dr. David Hickok, a medical expert in the area of child abuse, Margaret Kosters, defendant’s ex-wife, and police involved in the investigation. Defendant testified in his own behalf.

i

On appeal, defendant asserts that the trial court improperly admitted hearsay statements which his son made to Nurse McNees. We agree that this testimony should have been excluded under MRE 803(4), since the statements were not reasonably necessary to medical diagnosis and treatment. See People v Wilkins, 134 Mich App 39, 43; 349 NW2d 815 (1984), lv den 422 Mich 862 (1985). However, the error was harmless because the remaining evidence against defendant was overwhelming.

Defendant’s five-year-old son gave direct testimony against his father. Even though the child’s testimony was at times inconsistent, it was credible and the jury believed it. In fact, in this particular case of multiple incidents of abuse over a period of time, the child’s very inconsistency lends credibility to his testimony, since it tends to show that the boy was relying on his child’s memory and was not delivering prelearned and adult-inculcated testimony.

The boy’s testimony was explicit. The child testified that he saw his father put his finger into his *752little sister’s vagina, that while all three were in the bathroom defendant touched both the girl’s and the boy’s "privates” (groin and buttock area), and that defendant touched him with a nail in the genital area. It cannot reasonably be maintained that an adult touching a child’s genitals with a nail is normally within the range of the imagination or experience of a five-year-old child. Young children like this five-year-old child do not often see, if ever, such things on television or read about them in books.

In addition to the child’s direct testimony, there was also the testimony of defendant’s ex-wife and the examining physician. The fact of sexual abuse was clearly shown as to both children. The examining physician testified to his findings of vaginal penetrations and injuries to defendant’s daughter and of repeated anal penetrations to both children.

Further, the circumstantial evidence against defendant was strong. It is well established that circumstantial evidence and reasonable inferences arising therefrom are sufficient to constitute satisfactory proof of the elements of a criminal offense. People v Frank Johnson, 146 Mich App 429, 434; 381 NW2d 740 (1985), lv den 425 Mich 855 (1986).

The circumstantial evidence presented at trial indicated the unlikelihood that sexual injuries to the two children could have occurred while in their mother’s custody because there had been no males in the house other than the maternal grandfather and, during the period in question, the children had not been out of the mother’s presence except twice with a babysitter for only an hour. Moreover, defendant had the opportunity to commit the acts, particularly on three occasions, after which the mother observed a vaginal irritation on the daughter. Defendant told police that he had been alone with his daughter on one of these *753occasions, and he also made statements both to police and to a friend tending to indicate his guilt.

In light of the direct and circumstantial evidence against defendant, the error of admitting the hearsay testimony of Nurse McNees was harmless beyond a reasonable doubt, since no juror would have voted for acquittal. People v Christensen, 64 Mich App 23, 32-33; 235 NW2d 50 (1975), lv den 397 Mich 839 (1976).

ii

Defendant also argues that the trial court improperly admitted expert testimony comparing pubic hairs taken from defendant with those allegedly found in the diaper of defendant’s daughter following defendant’s visitation. We disagree with this contention. The pubic hair evidence did not need to be excluded because it tended to connect defendant with the crime and was admissible under MRE 401. See People v Horton, 99 Mich App 40, 49-51; 297 NW2d 857 (1980), vacated on other grounds 410 Mich 865 (1980), on remand 107 Mich App 739; 310 NW2d 34 (1981), lv den 418 Mich 942 (1984); People v Goree, 132 Mich App 693, 701; 349 NW2d 220 (1984); People v Furman, 158 Mich App 302, 327-328; 404 NW2d 246 (1987), lv den 429 Mich 851 (1987).

The instant case is clearly distinguishable from People v Nichols, 341 Mich 311; 67 NW2d 230 (1954). Nichols was a paternity case. Here, the pubic hairs were found immediately after defendant’s visitation of June 18, 1986 — which defendant admitted was one during which he had been alone with his daughter, and following which the mother observed a vaginal irritation on the child. Hence, unlike the situation in Nichols, the evidence showing that the pubic hairs could have *754come from defendant was relevant and admissible because of its tendency to make the existence of other important facts more probable or less probable than it would be without the evidence. MRE 401.

hi

We also reject defendant’s contention that it was error requiring reversal for a prosecution witness to state on cross-examination that defendant had taken a polygraph in conjunction with a previous sexual abuse charge.

In responding to defense counsel’s request that she tell the jury when she had been advised by the Ottawa County Sheriffs Department that, in their opinion, the son had not been sexually abused by defendant, defendant’s ex-wife replied: "When Elroy took the lie-detector test.” Upon defense counsel’s objection and the trial court’s instruction, defendant’s ex-wife rephrased her answer. The trial court offered a curative instruction, but defendant declined it when the court refused to advise the jury that he had passed the lie-detector test.

The results of a polygraph (lie-detector) test are not admissible as evidence in Michigan. People v Frechette, 380 Mich 64, 68; 155 NW2d 830 (1968). However, a brief, inadvertent reference to a polygraph is harmless. People v Tyrer, 19 Mich App 48, 51; 172 NW2d 53 (1969), app dis 385 Mich 484; 189 NW2d 226 (1971). The mere mention of a polygraph by a witness is not grounds for mistrial. People v Paffhousen, 20 Mich App 346, 351; 174 NW2d 69 (1969), lv den 383 Mich 825 (1970).

The answer of defendant’s ex-wife was responsive to a poorly phrased question. Because the jury knew that the police did not charge defendant *755following the earlier allegations, it is not reasonable to assume that the jury could have believed defendant did not pass the test. The matter was not mentioned again, either by the witness or by counsel. The reference to defendant’s polygraph was brief and inadvertent and was therefore harmless. Tyrer, supra. No reversal is required because defendant shows no prejudice. See People v Alvin Johnson, 396 Mich 424, 436-437; 240 NW2d 729 (1976), reh den 396 Mich 992 (1976), cert den 429 US 951; 97 S Ct 370; 50 L Ed 2d 319 (1976).

iv

Defendant further contends that there occurred prosecutorial misconduct requiring reversal when the prosecutor questioned defendant as to his sexual orientation and preference. We are unpersuaded by this argument.

In Michigan, a witness may be cross-examined on any matter relevant to an issue in the case. MRE 611(b), MRE 401. Since there is no known connection between child abuse and the sexual orientation of those who sexually abuse children, the prosecutor’s questions appear to have been irrelevant and the trial court correctly terminated this line of questioning.

The trial court should also have instructed the jury to disregard the answers. See People v Stinson, 113 Mich App 719, 726-727; 318 NW2d 513 (1982), lv den 417 Mich 957 (1983). However, failure to so instruct the jury was not error requiring reversal because (1) defense counsel never asked for a curative instruction and (2) defense counsel on redirect examination elicited the same answers to the same questions to which he had objected on cross-examination. Defense counsel’s omission to request a curative instruction waived any error in *756the trial court’s failure to give such instruction. Because defendant shows no prejudice, reversal is not required. People v Robinson, 386 Mich 551, 562-563; 194 NW2d 709 (1972).

v

We also reject defendant’s argument that the trial court abused its discretion in allowing the prosecutor to examine defendant’s five-year-old son by leading questions. It was within the trial judge’s discretion to allow the prosecutor a fair amount of leeway in asking questions of young children called in his case in chief. People v Hicks, 2 Mich App 461, 466; 140 NW2d 572 (1966). Our review of this matter shows that the prosecutor’s direct examination was no more leading than necessary given the age of the witness and his uneasiness. The prosecutor’s questions were only leading to the extent necessary to develop the witness’s testimony in light of his age. MRE 611(c).

VI

Defendant’s final argument is that the cumulative effect of the trial court’s errors was to deprive defendant of a fair trial. We disagree.

The trial court’s error of allowing the hearsay testimony of Nurse McNees was harmless, as was the brief and inadvertent mention of defendant’s having taken a polygraph. Regarding the court’s failure to give a curative instruction following improper prosecutorial questioning as to defendant’s sexual orientation, defense counsel waived objection by failing to request a curative instruction and by proceeding with the same line of questioning himself.

These three errors taken together cannot be said *757cumulatively to have denied defendant a fair trial. See People v Smith, 158 Mich App 220, 225; 405 NW2d 156 (1987), lv den 428 Mich 903 (1987). In light of the five-year-old son’s credible direct testimony, the examining physician’s uncontroverted evidence of actual sexual abuse, and numerous pieces of circumstantial evidence including but not determined by the pubic hairs, the evidence against defendant was so overwhelming that no reasonable juror would have voted for acquittal.

Affirmed.

McDonald, J., concurred.