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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v WALTER EDWARD HARRINGTON, Defendant-Appellant.

UNPUBLISHED February 21, 2006

No. 258401 Antrim Circuit Court LC No. 03-003686-FC

Before: Meter, P.J., Whitbeck, C.J., and Schuette, J. PER CURIAM. Defendant Walter Harrington appeals as of right his jury trial convictions for two counts of first-degree criminal sexual conduct1 (CSC), and three counts of second-degree CSC.2 The trial court sentenced Harrington to 15 to 40 years in prison on the first-degree CSC convictions and 10 to 15 years in prison on the second-degree CSC convictions. We affirm. I. Basic Facts And Procedural History The complainant in this case is Harrington's daughter, and one of the second-degree CSC convictions involves Harrington's son, on an alternative aiding and abetting theory. Both children testified that, while their mother was at work during the night, Harrington taught them about sex using magazines, books, and movies. The complainant explained that Harrington used his forefinger and middle finger to rub her vagina, and she described touching and rubbing Harrington's penis with her hands. She also recalled an incident where Harrington held a mirror to her vagina and "pull[ed] it open a little bit so that [she] could see the inside." The complainant further testified that Harrington licked her vagina, and she remembered licking Harrington's penis or touching it with her mouth, as well as him placing his penis inside her mouth. The complainant rubbed her brother's penis at Harrington's direction, and her brother touched her vagina at Harrington's direction as well.

1 2

MCL 750.520b(1)(a) (victim under the age of thirteen). MCL 750.520c(1)(a) (victim under the age of thirteen).

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During an interview with a Michigan State trooper, Harrington explained that he was trying to teach his children about sex using movies and books. Harrington admitted that he touched the complainant's vaginal area and let the children touch his penis. He also acknowledged that he allowed the complainant to touch his son's penis and permitted his son to touch the complainant's vaginal area. He similarly did not deny that the complainant had touched his penis with her mouth. Defense counsel prepared his case believing that the complainant never received a medical examination. During voir dire, defense counsel questioned prospective jurors about the importance of a medical examination in a sexual assault case. He also theorized that the lack of such an examination affected the complainant's credibility during his opening statement. During the second day of trial, the prosecutor learned that the complainant had received a medical examination. Harrington moved for a mistrial, which motion the trial court denied because of double jeopardy concerns and lack of manifest necessity. II. Harrington's Motion For Mistrial A. Standard Of Review This Court reviews a trial court's denial of a motion for mistrial for an abuse of discretion.3 An abuse of discretion occurs "when an unprejudiced person, considering the facts on which the trial court acted, would conclude that there was no justification or excuse for the ruling."4 B. Medical Examination 1. Voir Dire And Defense Counsel's Opening Statement During voir dire, defense counsel asked prospective jurors whether they would be concerned if a sexual assault victim did not receive a medical examination. Responses varied, and it does not appear as if counsel's questions or the prospective jurors' answers affected jury selection one way or another. During his opening statement, defense counsel attacked Harrington's "so-called confession," challenging the interrogation techniques used and accusing the trooper of lying. Counsel vigorously attacked the credibility of Harrington's son and the complainant, accusing them of lying, being manipulated, and claiming that the complainant kept changing her story. Counsel challenged the credibility of nearly every prosecution witness and discussed the burden of proof and reasonable doubt. He made one short statement, consisting of six sentences, about the lack of a medical examination. Defense counsel basically stated that the lack of a medical examination showed that the police did not believe the complainant's allegations, which is essentially another method of challenging the complainant's credibility.

3 4

People v Lett, 466 Mich 206, 218; 644 NW2d 743 (2002). People v Patmore, 264 Mich App 139, 149; 693 NW2d 385 (2004).

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2. Manifest Necessity Harrington was prepared to consent to a mistrial, stipulate that manifest necessity existed and waive any double jeopardy claims. After a continuance, the prosecutor ultimately stated that he would not oppose a mistrial. However, a trial court has considerable deference in its decision regarding the existence of manifest necessity in deciding whether to declare a mistrial.5 "`Although there is no specific test for what constitutes "manifest necessity,"'" it generally exists when there are "`sufficiently compelling circumstances that would otherwise deprive the defendant of a fair trial or make its completion impossible.'"6 After reviewing defense counsel's voir dire questions and opening statement, we conclude that his theory about the lack of medical examination was minor. Further, no evidence of the medical examination or report was ever introduced into evidence. As far as the jury knew, no such examination ever occurred. Harrington has failed to show that the discovery of the report of the medical examination deprived him of a fair trial. It was one of many theories raised in defense, and a minor theory at best. 3. Double Jeopardy Both the United States and Michigan constitutions contain a Double Jeopardy Clause that prohibits a defendant from being twice placed in jeopardy for the same offense.7 However, a defendant waives his right to double jeopardy protections if he requests or consents to a mistrial, or if it is granted for manifest necessity.8 Harrington relies on People v Kimble,9 arguing that the trial court's denial of his motion for mistrial constitutes an abuse of discretion because it made a mistake of law regarding the application of double jeopardy. However, we distinguish Kimble because it involved the plain error doctrine and an error that seriously affected the "integrity or public reputation of judicial proceedings."10 Harrington also relies on People v Lukity11 for the same principle. However, Lukity involved the admission of evidence that was inadmissible as a matter of law, rather than a motion for mistrial.12 Although Harrington is correct that the trial court relied in part on a mistake of law regarding double jeopardy principles, it also concluded

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People v Hicks, 201 Mich App 197, 200-201; 506 NW2d 269 (1993), rev'd in part on other grounds 447 Mich 819 (1994). People v Tracey, 221 Mich App 321, 326; 561 NW2d 133 (1997), quoting People v Rutherford, 208 Mich App 198, 202; 526 NW2d 620 (1994).
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US Const, Am V; Const 1963, art 1,

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