New trial denied forman convicted of sex assault
A Macomb County judge on Wednesday denied a new trial for a man convicted of sexually assaulting a minor female relative.
Attorney Wade Fink, representing David Allen Hill, contended Hill didn’t receive a fair trial because his then-defense attorney was unaware he could try to “impeach” the victim’s testimony with her testimony at a prior trial.
But Judge Edward Servitto of Macomb County Circuit Court denied the request, saying although the attorney could have tried to discredit the victim’s testimony at a prior trial, his failure to do so didnot rise to the level that it would warrant a reversal of the convictions.
Hill, now 39, was convicted in June 2019 of two counts of second-degree criminal sexual conduct and two counts of fourthdegree criminal sexual conduct for incidents when he lived in Utica, following a trial in Macomb Circuit Court.
In that same trial, he was acquitted of one count of attempted sexual assault, and the jury could not reach a decision on the most serious count, firstdegree criminal sexual conduct, which includes penetration would have carried a mandatoryminimum term of 25 years in prison due to the victim’s age.
He was sentenced to 4½ to 15 years in prison.
The victim testified at the trial Hill engaged in vaginal and oral sex with her, attempted to sodomize her and forced her to engage in sexual contact with herself when she was a minor. The girl said all of the incidents occurred in three bedrooms in a Utica home within an approximately four-year period when she was about age 9 to 12.
Hill denied the incidents, and contended that the victim may have construed two non-sexual interactions as sexual.
In a separate but related case, Hill in November 2017 was acquitted by a jury of first-degree criminal sexual conduct on accusations by the same accuser following a twoday jury trial in front of Judge Nick Holowka of Lapeer County Circuit Court. In that trial, the Macomb County incidents were learned by the jury for prosecutions to try to demonstrate a pattern of behavior.
Servitto before the Macomb trial told attorneys the outcome of the prior trial could not be mentioned but her testimony could be referred to without revealing the outcome.
But Hill’s trial attorney, Tim Kohler, didn’t raise her prior testimony while cross- examining the woman because he believed he couldn’t mention the trial, according to attorneys.
Fink argued that Kohler pointing out potential inconsistencies in the girl’s two testimonies stand via cross-examination could have turned the jury to acquit Hill on all charges. He also noted the “razor-thin margin” of convictions of Hill, noting he was acquitted of multiple charges at the two trials.
However, the judge noted Kohler extensively cross-examined the witness and that the error was not impactful enough to warrant a new trial. Kohl’s questioning of the victim resulted in 70 to 80 pages of the trial transcript, attorneys said.
Assistant Macomb Prosecutor Emil Semaan, in arguing against a new trial, said any inconsistencies were minor and not enough to overturn the convictions.
The case is also on appeal at the Michigan Court of Appeals.