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157404 - People v Brandon James Harbison

The People of the State of Michigan,

 

Jonathan Blair

 

Plaintiff-Appellee,

 

v

(Appeal from Ct of Appeals)

 

 

(Allegan – Cronin, K.)

 

Brandon James Harbison,

 

Douglas Baker

 

Defendant-Appellant.

 

Summary

A jury convicted defendant of multiple felonies, including first- and second-degree criminal sexual conduct for the sexual abuse of his niece over a three-year period. He moved for a new trial, arguing (1) that defense trial counsel rendered ineffective assistance by failing to call the victim’s brother to testify, where the victim had testified that her brother was in the same room when some of the abuse occurred, and (2) that the admission of the testimony of Dr. N. Debra Simms, a child sexual abuse expert, that the victim sustained “[p]robable pediatric sexual abuse” was error requiring reversal under People v Peterson, 450 Mich 349 (1995). The trial court denied the motion, but the Court of Appeals remanded for an evidentiary hearing at which the victim’s brother testified that he did not see any abuse occur. The trial court rejected defendant’s claim regarding the expert witness, but granted a new trial on the basis that defense counsel was ineffective for failing to call the brother to testify where the victim’s credibility was a disputed issue. In an unpublished opinion, the Court of Appeals reversed the order granting a new trial and affirmed defendant’s convictions. Defendant appealed and the Supreme Court remanded to the Court of Appeals for reconsideration in light of Peterson, but denied leave to appeal in all other respects. 501 Mich 897 (2017). On remand, the Court of Appeals again affirmed defendant’s convictions, holding that the admission of Dr. Simms’ testimony, which was not objected to at trial, was not plain error. The Supreme Court has directed oral argument on defendant’s application for leave to appeal to address whether the prosecution’s admission of Dr. Simms’ expert testimony that the victim suffered “probable pediatric sexual abuse” violated Peterson, and, if so, whether this was plain error requiring reversal of the defendant’s convictions.  This case will be heard at the same session as People v Joshua Lee Thorpe (No. 156777).  ​