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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v WILLIAM GEORGE SUTHERLAND, Defendant-Appellant.

UNPUBLISHED March 15, 2007

No. 266204 Calhoun Circuit Court LC No. 2005-001018-FH

Before: Fort Hood, P.J., and White and Borrello, JJ. PER CURIAM. Following a jury trial, defendant was convicted of three counts of third-degree criminal sexual conduct, MCL 750.520d(1)(a) (person 13 to 15 years of age), and one count of accosting a child for immoral purposes, MCL 750.145a. He was sentenced as an habitual offender, third offense, MCL 769.11, to 20 to 30 years' imprisonment for each of his third-degree criminal sexual conduct convictions, and to 43 to 96 months' imprisonment for his accosting for immoral purposes conviction. Defendant now appeals as of right. We affirm. Defendant befriended a group of special education high school students and was later accused of paying two of the female students for sex. The students all participated in a program called Student Transition, Reaching Independence, Direction, and Employment (STRIDE) at Battle Creek Central High School, which is an alternative curriculum program for students who are "cognitively mentally impaired." The students generally perform academically at a third or fourth grade level and have a level of mental development of children five or six years younger than their chronological age. The victim alleged that defendant arranged to have sex for money with her on three occasions when she was fourteen years of age. She testified that a male STRIDE student, Tyray Robinson, telephoned defendant and told him that she was willing to have sex with defendant for money when, in fact, she did not want to do so. Each time, defendant picked her up in his vehicle and drove her to his house. There, he performed various sex acts on her, including sexual intercourse, in exchange for money. The victim shared this money with Robinson. Defendant argues that the trial court's admission of evidence, pursuant to MRE 803(6), of school attendance records for the victim, Robinson, and another student witness violated MCL 600.2165 and necessarily constituted an abuse of discretion. We conclude that defendant is not -1-


entitled to assert the statutory student-teacher privilege created by MCL 600.2165 and, therefore, has no standing to challenge his conviction on the basis of a violation of the privilege. We review a trial court's decision whether to admit evidence for an abuse of discretion and will only reverse where there is a clear abuse of discretion. People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003). However, where, as here, defense counsel raised no objection to the admission of the evidence at the time of trial, this Court's review is limited to whether the admission of the evidence amounted to plain error affecting the defendant's substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). "[D]ecisions regarding the admission of evidence frequently involve preliminary questions of law, e.g., whether a rule of evidence or statute precludes admissibility of the evidence," which this Court reviews de novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). Whether evidence is barred by a statutory evidentiary privilege is a question of law that this Court reviews de novo. Baker v Oakwood Hosp Corp, 239 Mich App 461, 468; 608 NW2d 823 (2000). Likewise, whether a party has standing is reviewed de novo. Lee v Macomb County Bd of Comm'rs, 464 Mich 726, 734; 629 NW2d 900 (2001). "Although usually raised in the civil context, the question of standing pertains to criminal matters as well." People v Yeoman, 218 Mich App 406, 420; 544 NW2d 577 (1996). A criminal defendant must satisfy the two elements of standing: "first, that [the defendant] will devote himself to the sincere and vigorous advocacy of his position, and second, that [the defendant] has a legally protected interest at stake that differs from the interest of the citizenry at large." Id. For example, this Court has held that while a defendant has "an interest like no other" in the administration of his trial, he does not have standing to challenge a decision of the court unless he can satisfy the second prong of the test for standing. Id. at 421. Consequently, a criminal defendant lacks standing to challenge his conviction based on violations of a third party's right to claim a testimonial privilege at the defendant's trial. People v Wood, 447 Mich 80, 89; 523 NW2d 477 (1994); People v Gallon, 121 Mich App 183, 190; 328 NW2d 615 (1982); People v Poma, 96 Mich App 726, 730; 294 NW2d 221 (1980); People v St. Onge, 63 Mich App 16, 18; 233 NW2d 874 (1975). Here, MCL 600.2165 creates a testimonial privilege, which like all testimonial privileges may only be asserted by the owner of the privilege or persons "vested with the outside interest or relationship fostered by the particular privilege." McCormick, Evidence (4th ed),

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