People of Michigan v. Brian Lee Gillespie
328932
| Mich. Ct. App. | Dec 20, 2016Background
- Defendant Brian Gillespie was convicted by a jury of first-degree criminal sexual conduct (sexual penetration of a child under 13) based on the victim’s testimony and corroborating evidence.
- Victim (age 6 at time of abuse) testified to repeated oral and penile contact and vaginal penetration on more than ten occasions.
- Corroborating evidence: audiotaped statements the victim made to relatives, DNA (seminal fluid from defendant found on the victim’s blanket), and both defendant and victim tested positive for HSV-1 (genital herpes) with no other HSV-1–positive household contacts.
- Statutory mandatory minimum: because the victim was under 13 and defendant was over 17, a 25-year minimum term was required by MCL 750.520b(2)(b); defendant was sentenced to 25–38 years as a second-offense habitual offender.
- On appeal, defendant challenged (1) hearsay and opinion testimony from a forensic interviewer (tender-years testimony and an assertion the victim was not coached), (2) ineffective assistance for failure to object, (3) sufficiency of the evidence (challenge centered on alternate HSV-1 transmission and timing), and (4) offense-variable scoring and a Lockridge/Crosby remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of forensic interviewer’s testimony (tender-years/hearsay) | Testimony was admissible/corroborative and any error harmless given other proof | Testimony included hearsay not covered by MRE 803A and improper credibility opinion (coaching) | Assuming error, defendant failed plain-error prejudice showing; conviction stands |
| Ineffective assistance for failing to object to interviewer testimony | Counsel’s performance was not deficient or any failure harmless | Counsel should have objected; failure prejudiced defense | No prejudice shown; IAC fails (prejudice prong not met) |
| Sufficiency of evidence for CSC I (penetration/infection) | Evidence (victim testimony + DNA + HSV-1 link) adequately proved penetration and transmission | HSV-1 could have been acquired innocently and defendant’s positive test was later | Victim’s testimony alone sufficient for penetration; circumstantial evidence supports jury finding of transmission; conviction affirmed |
| Sentencing challenges: OV scoring and Lockridge/Crosby remand | Any scoring or constitutional error harmless because statute mandates 25-year minimum | Errors could affect sentence calculation and require remand | Moot as to minimum: statutory 25-year floor controls; Crosby remand not available (sentence after Lockridge); any OV errors harmless |
Key Cases Cited
- People v Carines, 460 Mich 750 (plain-error standard for unpreserved issues)
- People v Carbin, 463 Mich 590 (ineffective-assistance prejudice requirement)
- People v Reese, 491 Mich 127 (standard for reviewing sufficiency of evidence—view evidence in light most favorable to prosecutor)
- People v Hardiman, 466 Mich 417 (review deference to jury and inferences)
- People v Kanaan, 278 Mich App 594 (resolving conflicts in favor of prosecution)
- People v Wolfe, 440 Mich 508 (deference to jury on witness credibility)
- People v Lukity, 460 Mich 484 (harmless-error analysis for preserved errors)
- People v Lockridge, 498 Mich 358 (mandatory Guidelines issue and Crosby remand discussion)
- United States v Crosby, 397 F.3d 103 (Crosby remand framework referenced)