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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JACK STANLEY SCHUBACH, Defendant-Appellant.

UNPUBLISHED January 11, 2000

No. 210554 Huron Circuit Court LC No. 97-003937 FH

Before: Bandstra, C.J., and Jansen and Whitbeck, JJ. PER CURIAM. Following a bench trial, defendant was found guilty of second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), and sentenced to 120 days in jail, to commence on completion of this appeal or violation of bond provisions. Defendant appeals as of right. We reverse and remand for a new trial. Defendant argues that the trial court abused its discretion by admitting hearsay testimony under the excited utterance exception for the stated reason that the declarant was more comfortable when she made the statements at issue. The decision whether to admit evidence is within the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion, People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998), and a decision on a close evidentiary question ordinarily cannot be an abuse of discretion, People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995), quoting People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982). We conclude that the trial court abused its discretion in that it applied the wrong legal test and that, applying the correct legal analysis, the contested hearsay testimony should not have been admitted. In this case, the complainant's grandmother gave the following account of her conversation with the complainant several hours after the complainant arrived home: After [the complainant] told me she needed to see the

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