Motion for new trial denied to Sears man charged with CSC
BIG RAPIDS — A Sears man convicted in December of second-degree criminal sexual conduct was denied a new trial after filing a motion for appeal.
Leon Dale Buning, 28, of Sears, was sentenced to 38 months to 15 years in prison on Jan. 13. Soon after, on Jan. 30, he filed an appeal.
Buning filed motions for a new trial, as well as a request for a Ginther Hearing/motion to correct judgment of sentence. A hearing was held Aug. 8 in Mecosta County’s 49th Circuit Court to address those issues.
In asking for a new trial, Buning argued the jury’s verdict finding him guilty was against the great weight of evidence because the only evidence against him was “the unreliable and contradictory testimony of the alleged victim.”
Circuit Court Judge Scott Hill-Kennedy denied the motion for a new trial, stating it is the jury’s job to weigh the credibility of victim’s testimony.
“While the court acknowledges the defendant points out inconsistencies among the victim’s trial testimony, preliminary examination testimony and statements to police, it notes that the jury, in its role as trier of fact, may weigh the credibility of the witnesses and accept or reject all or part of the testimony of a witness in making its determination,” Hill-Kennedy writes in his decision.
Further, Buning did not point to any evidence which contradicts indisputable physical facts or law, defies physical realities and is too implausible to be believed by a reasonable juror, or seriously impeached testimony causing large discrepancies and uncertainties in the case.
Buning also asked for a new trial based on ineffective assistance of counsel, but again was denied. The court found there was no factual dispute that Buning’s attorney, Fred Johnson Jr., was effective.
Additional testimony gained from Johnson during the hearing was treated as part of the Ginther Hearing, an evidentiary hearing on a defendant’s motion for new trial claiming ineffective assistance of counsel, which Buning had requested.
While Buning was upset that Johnson did not try to impeach the victim-witness because of the inconsistent testimony, Johnson testified it was part of strategy during trial.
He testified he was concerned with the effects on the jury of impeaching the victim-witness over minor issues in circumstances under which she may not have been remembered and been consistent due to age, stress, emotion, or the passage of time.
He also testified he worried about coming across as a bully, which could have gained the jury’s sympathies.
After reviewing the record, the court did correct the judgment of sentence for Buning, updating the record to reflect Buning was acquitted of three counts of first-degree criminal sexual conduct.