The opinion
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 14, 2018
Plaintiff-Appellee,
v No. 334692
Ingham Circuit Court
KEVIN ROBERT SMITH, LC No. 15-001023-FC
Defendant-Appellant.
Before: CAMERON, P.J., and METER and BORRELLO, JJ.
PER CURIAM.
Defendant appeals as of right his convictions by a jury of criminal sexual conduct in the
first degree, MCL 750.520b (CSC-I), and second degree, MCL 750.520c (CSC-II). The trial
arose from allegations that he sexually assaulted his cousins, the twins DG and KG, when they
were children; the two convictions involved incidents with DG.1 The trial court sentenced
defendant to concurrent prison terms of 180 to 270 months for the CSC-I conviction and 71 to
180 months for the CSC-II conviction. We affirm.
I. ASSISTANCE OF COUNSEL
Defendant argues that he received ineffective assistance of counsel in several respects.
Whether a defendant received the effective assistance of counsel is a mixed question of fact and
law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). This Court reviews for
clear error the trial court’s findings of fact and reviews de novo questions of constitutional law.
Id. To establish ineffective assistance of counsel, a defendant must show: (1) that counsel’s
performance was below an objective standard of reasonableness and (2) that there is a reasonable
probability that, but for counsel’s error or errors, the result of the proceedings would have been
different. Id. at 51. This Court will not substitute its judgment for that of counsel regarding
matters of trial strategy. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).
1
The jury acquitted defendant concerning an alleged incident involving KG and could not reach
a verdict regarding a third alleged incident involving DG.
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A. FAILURE TO OBJECT
The gist of defendant’s initial ineffective-assistance claim is that the prosecutor used
improper testimony from Detective Annie Harrison, Dr. Stephen Guertin, and various other
witnesses to vouch for the credibility of the complainants’ accusations and that counsel should
have objected to the testimony. “It is generally improper for a witness to comment or provide an
opinion on the credibility of another witness, because credibility matters are to be determined by
the jury.” People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007). “An expert may not
vouch for the veracity of a victim.” Id.
1. ANNIE HARRISON
a. THE FORENSIC INTERVIEW
Defendant contends that Harrison improperly vouched for the complainants’ credibility
when “she told the jury that her ‘job is to thoroughly investigate and determine if [the case]
should or shouldn’t be forwarded to the prosecutor’s office for review.’ ” Defendant insists that
“[t]he jury had no choice but to conclude that Harrison’s ‘thorough investigation’ resulted in a
determination of [defendant’s] guilt, otherwise they would not be in court.” Defendant suggests
that Harrison’s “insistence that her interview technique is scientific and research-based and that
she had received extensive training” in how to conduct the forensic interview “exacerbated” the
prejudice stemming from the alleged vouching. This argument is meritless.
In Dobek, id., this Court observed that a detective “testified about his background and
experience, the manner in which to properly investigate and interview subjects in criminal sexual
conduct cases, his interview of the victim and her demeanor, and delayed disclosure in criminal
sexual conduct cases.” This Court had no problem with the detective’s testimony about these
subjects; it was the defendant’s cross-examination about deception issues that arguably crossed
the line. Id. Moreover, the Court in Dobek noted:
Given that [the detective] was called as a witness by the prosecutor and that a
criminal prosecution against defendant was pursued, the jurors surely understood
that [the detective] believed that the victim was telling the truth even without the
disputed testimony. [Id.]
That the detective who investigated the case and presented it to the prosecutor is testifying for
the prosecution at a trial concerning the subject of the investigation is a clear indication that the
detective believes in the validity of the charges. The detective is not barred from testifying; what
trial courts must do, however, is carefully ensure that detectives (or other witnesses) are not
allowed to act as human lie detectors and testify that, in their opinions, the complainant is being
truthful.
Harrison testified that she had received specialized training in conducting interviews in
child-sexual-abuse cases. She explained that the majority of cases she investigated involved
delayed disclosure, with the delay being “a few days or it could be a few weeks or years.” This
did not constitute vouching for the complainants’ credibility; the testimony said nothing about
the truth or falsity of the sisters’ statements. Harrison described the nature of a forensic
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interview of a sexual-abuse victim: “The goal for a forensic interview is to obtain a statement
from a child in an unbiased developmentally appropriate neutral way”; the State of Michigan had
developed the protocol for this type of interview “to help us as [everyday] professionals on the
do’s and don’ts of how to interview a child, what the best practice is.” Harrison further
explained that the goal of the interview was to avoid misunderstandings and to have the children
describe their story in their own words, without the interviewer being suggestive. Harrison noted
that one of the ways of ensuring that the interview elicited a statement of the subject’s own
recitation of events is for the interviewer to construct alternative hypotheses. Harrison explained
that this was important because “[t]here can’t be any misunderstandings. We need to make sure
that we are getting the allegations correct, that we’re looking to see what other possibilities are.
We want to minimize suggestibility.”
The questioning enabled Harrison to determine that the complainants were insisting that
defendant had actually committed intentional sexual assaults on them. Harrison’s unbiased
questioning might have enabled her to determine that the complainants were lying or mistaken—
for example, their accounts might have been internally inconsistent or inconsistent with known
facts or with the laws of sexual assault. That this evidence of lying or mistake did not
materialize does not mean that Harrison determined that what the complainants told her was true,
nor did she suggest to the jury that this was the case; instead, she specifically noted that it merely
meant she would continue her investigation rather than terminate the inquiry. Contrary to
defendant’s claim, Harrison was not permitted to offer testimony concerning her evaluation of
the complainants’ claims. When the prosecutor asked Harrison, “And were you able to eliminate
any of the hypotheses or come to any conclusions?” defense counsel objected and the prosecutor
withdrew the question. Considered in context, Harrison’s testimony indicated that she had
determined from the interview that the complainants’ statements did not represent
misunderstandings or outright lies, not that the statements were necessarily true. Moreover, as
previously noted, the jurors would already have assumed that Harrison believed the allegations
because she took them to the prosecutor, who in turn filed the charges that they were considering
at the trial. Id. We find no ineffective assistance with regard to this aspect of Harrison’s
testimony.
b. FURTHER INVESTIGATION
Defendant claims that Harrison’s statement that she interviewed 28 witnesses constituted
vouching because she found these witnesses by asking the sisters whom they told or who might
know about the incidents. This statement does not in any way constitute vouching; it merely
indicates that Harrison obtained and followed investigative leads. The statement does not detail
what the witnesses told Harrison or whether Harrison believed what the witnesses told her. In
short, there is nothing about this statement that vouches for the complainants.
Evidently to support this claim, defendant quotes a lengthy portion of Harrison’s
testimony that includes her descriptions of how she checked out some details of DG’s
statements. Defendant asserts that the lengthy quotation “is replete with both improper hearsay
and improper vouching” and that “[t]he amount of improper testimony by Harrison is astounding
. . . .” MRE 801(c) provides that “ ‘[h]earsay’ is a statement, other than the one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” To the extent that any of Harrison’s testimony referred to statements of DG,
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the statements were not submitted to prove their truth (e.g., that shirts were kept in a particular
closet), but to show that Harrison’s investigation of DG’s claims did not outright disprove those
claims, and thus required Harrison to continue her investigation. At any rate, most of the
testimony recited by defendant concerned proper and allowable visual observations by Harrison,
indicating how she attempted to determine if the claims should continue to be investigated.
Seeking and finding corroborating evidence is not equivalent to vouching for a witness’s
credibility. 2 Defendant’s claim regarding the content of the quoted passage is meritless.3
c. QUALIFICATION AS AN EXPERT
Defendant next contends that Harrison was allowed to offer expert opinions despite not
having been qualified as an expert. However, it is clear that had the prosecutor sought such
qualification, Harrison would have been qualified. MRE 702 provides that an individual can be
qualified as an expert “by knowledge, skill, experience, training, or education[.]” Based on her
testimony regarding her background and training, Harrison would qualify as an expert. Defense
counsel was not ineffective for failing to object.
d. SPECIFIC CASELAW
Defendant contends that Harrison’s testimony was improper based on People v Peterson,
450 Mich 349; 537 NW2d 857, amended 450 Mich 1212 (1995), and People v Shaw, 315 Mich
2
As discussed infra, unlike the investigator in People v Shaw, 315 Mich App 668, 676; 892
NW2d 15 (2016), Harrison did not state that she “was able to confirm the veracity of [the
complainant’s] statements . . . .”
3
The trial court concluded that even if Harrison made some improper statements, defendant
failed to demonstrate prejudice from her testimony because there was physical evidence
consistent with sexual abuse and there were family members who testified that they had
witnessed defendant behaving inappropriately with the complainants. Defendant contends that
the trial court erred in making these conclusions. Defendant states that there was “absolutely no
physical evidence showing sexual abuse” and that Dr. Guertin had found that “his physical
findings could have come from abuse or volitional sexual intercourse.” However, the fact that
the physical findings could have come from sexual abuse in fact supports the trial court’s
finding. Defendant next embarks on a lengthy examination of what certain witnesses had
described about defendant’s conduct. He emphasizes that most of the witnesses only became
concerned about defendant’s conduct when the complainants’ allegations came to light, or
alleged that they were concerned about his conduct at the time it occurred but did not bother to
report it to authorities or directly confront DG or KG about it. However, in the context of sexual
abuse by a family member, it may be that other family members are disinclined to think ill of the
perpetrator. Also, they might be disinclined to report inappropriate behavior because they do not
want to accuse a family member or cause problems within the family. That this is a valid
concern can be seen from what happened to the family relationships following the revelation of
DG’s and KG’s claims.
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App 668; 892 NW2d 15 (2016).4 The statements defendant finds objectionable in connection
with this caselaw involve Harrison’s testimony that the majority of the cases she investigates
involve delayed disclosure, that sexual-abuse victims frequently remember more details after
their initial interviews, and that it is normal for sexual-abuse victims to skim over specific facts.
Defendant claims that Harrison’s “lengthy recitation of the ‘truth seeking’ process” was
improper because “it invaded the purview of the jury and improperly vouched for the
complainants.” However, Harrison did not claim that DG’s or KG’s recitation of events was
truthful or even credible; she merely explained that, based on her experience, other sexual-abuse
victims behaved just like other crime victims: they sometimes made delayed disclosure of their
accusations, they remembered additional details as time went by, and they sometimes skimmed
over facts. In Peterson, 450 Mich at 373, the Court stated: “We hold that the prosecution may
present evidence, if relevant and helpful, to generally explain the common postincident behavior
of children who are victims of sexual abuse.” The complaints highlighted by defendant concern
a witness’s explanation of “common postincident behavior of children who [were allegedly]
victims of sexual abuse”; therefore, Harrison’s testimony was proper under Peterson. The
improper testimony in Peterson concerned experts’ testimony concerning statistics related to the
veracity of child-sexual-abuse victims. Id. at 375-376. The Court concluded: “Such references
to truthfulness as [sic] go beyond that which is allowed under MRE 702.” Id. at 376 (emphasis
added). Harrison’s testimony did not involve “references to truthfulness” and did not suggest
that correspondence between the complainants’ claims and what occurred in other sexual-abuse
cases established the veracity of the complainants’ assertions.5
In People v Shaw, 315 Mich App 668, 676; 892 NW2d 15 (2016), this Court found error
in testimony by the investigating officer that contained hearsay, and that also asserted she was
able to “confirm the veracity” of the events related by the complainant and “corroborate[]” what
4
We decline to address the nonbinding, unpublished case also cited by defendant.
5
Defendant acknowledges that this Court in Dobek held that police officers were allowed to
provide lay opinion testimony; specifically, with respect to the police officer in Dobek, this Court
ruled that (1) it could reasonably be argued that the officer’s testimony was acceptable lay
opinion testimony; and (2) assuming expert testimony was required, the officer “was more than
qualified to give expert opinion testimony on delayed disclosure to the extent of the testimony
actually presented.” Dobek, 274 Mich App at 78-79. The main thing that the officer testified to
was that “delayed disclosure is common and happens quite frequently with child victims.” Id. at
79. Harrison testified to the same conclusion based on her experience, and defendant now claims
that that was “vouching.” Defendant additionally asserts, however, that Harrison also “testified
to many psychological aspects for which she had no training,” such as the remembering of more
details after the initial interview and “skimming” over facts of the crime. Without explaining
why, defendant insists that “[t]here can be no doubt that this testimony was improper.” But
Harrison’s observations were not “psychological.” She was testifying to her own observations
from investigating many child-sexual-abuse cases. These observations are not unusual; indeed, it
is not unusual for witnesses to remember additional details or skim over some facts that are
subsequently developed more completely in a later interview or even at trial.
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the complainant told her. The Court stated that the officer had essentially informed the jury that
she had “concluded that the complainant was credible[.]” Id. This Court found no tactical
advantage for the defense attorney in not objecting and concluded that counsel’s failure to object
fell below an objective standard of reasonableness. Id. at 676-677.
While the prosecutor in the present case did ask Harrison about certain “ways to
corroborate statements” that Harrison followed, Harrison’s testimony did not go as far as the
investigator’s statements in Shaw, wherein the investigator stated that she “confirm[ed] the
veracity” of certain statements by comparing them with inadmissible hearsay. See id. at 676. In
addition, Harrison specifically testified that she did not conclude at the end of the interviews that
the complainants had been abused but instead concluded that further investigation was needed.
Moreover, defense counsel specifically elicited hearsay testimony from Harrison during cross-
examination by either including hearsay statements in his questions or by asking her to relate
what she had been told by the complainants or by other witnesses. This was in line with the
defense strategy of highlighting inconsistencies in the complainants’ stories. This case is
therefore unlike Shaw and we do not find Shaw to require reversal.6
2. DR. STEPHEN GUERTIN
Defendant contends that his trial attorney should have objected to the testimony of Dr.
Guertin because he provided inadmissible hearsay testimony when he recounted statements made
to him by KG and DG and testified about a diagnosis of sexual molestation.7
The prosecutor claims that MRE 803(4)—the medical diagnosis or treatment hearsay
exception—applies to the testimony about the complainants’ statements. MRE 803(4) excepts
the following:
Statements made for purposes of medical treatment or medical diagnosis in
connection with treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception of general character of the cause
or external source thereof insofar as reasonably necessary to such diagnosis and
treatment.
6
We also note that Shaw was issued on June 14, 2016, the very day of Harrison’s testimony, and
as such it would be difficult to hold counsel responsible for failing to object on the basis of
Shaw.
7
By using quotation marks, defendant suggests that Dr. Guertin’s examinations of KG and DG
were not “medical examinations.” However, defendant does not explain how a physical
examination of a woman’s vagina by a doctor following her claim of sexual abuse is not a
medical examination. Similarly, defendant sets off the words “medical history” with quotation
marks to suggest, again without explanation, that a doctor conducting an interview of an
individual who has presented for a physical examination concerning claims of sexual abuse is not
obtaining a medical history. In fact, Dr. Guertin testified that “[s]ince it’s a doctor doing it, it is
a medical history.”
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In People v Mahone, 294 Mich App 208, 214-215; 816 NW2d 436 (2011), this Court stated:
Statements made for the purpose of medical treatment are admissible pursuant to
MRE 803(4) if they were reasonably necessary for diagnosis and treatment and if
the declarant had a self-interested motivation to be truthful in order to receive
proper medical care. This is true irrespective of whether the declarant sustained
any immediately apparent physical injury. Particularly in cases of sexual assault,
in which the injuries might be latent, such as contracting sexually transmitted
diseases or psychological in nature, and thus not necessarily physically
manifested at all, a victim’s complete history and a recitation of the totality of the
circumstances of the assault are properly considered to be statements made for
medical treatment. Thus, statements the victim made to the nurse were all
properly admissible pursuant to MRE 803(4). [Citations omitted.]
The statements were admissible if one looks to Mahone. While the Court in Shaw, 315 Mich
App at 675, found MRE 803(4) inapplicable because the examination in that case occurred
“seven years after the last alleged instance of abuse,” because the complainant “was specifically
referred to Guertin[8] by the police,”9 and because “during the seven years since the last alleged
incident of abuse, she had seen a different physician . . . for gynecological care,” the Shaw
opinion was not issued until June 14, 2016, and Dr. Guertin provided his testimony on June 7,
2016. Accordingly, it did not fall below an objective standard of reasonableness for counsel to
fail to object on the basis of Shaw. At any rate, even assuming the availability and applicability
of Shaw and thus even assuming that counsel erred by failing to object to Dr. Guertin’s
testimony, we cannot find a basis for reversal.
At the commencement of cross-examination, the following detailed exchange occurred:
Q. [Defense counsel]: When you say the findings were consistent with
either one, either one what?
A. [Dr. Guertin]: It wasn’t either child. It was—you can clearly get these
injuries with a painful sexual molestation encounter that entailed bleeding,
especially if it was in the pre-pubertal period. You can also get these findings
from consensual sex, especially recurrent consensual sex.
Q. All right. Thank you, Doctor. Doctor, in the history that you obtained
with these two young ladies, is the sole source of the history from these girls
themselves?
A. Absolutely.
8
Shaw also involved testimony by Dr. Guertin.
9
There was evidence in the present case of a police referral to Dr. Guertin.
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Q. I mean, you don’t review any police reports or prior statements or
anything like that?
A. No. In fact, again, they are put to the side. I don’t think I, even in this
folder, I have such a thing.
Q. All right. And when you indicate in your conclusion that—I think in
one of their conclusions you indicated a strong history of sexual abuse?
A. Right. [KG] was a strong history. And with [DG] I said a clear
history.
Q. And that’s based on what they tell you?
A. It’s based on what they say, right. Level of detail. And the fact that—
Q. You don’t try to analyze whether what they’re saying is accurate, or
whether it’s inconsistent, you base that conclusion on what they had told you?
A. Right. I can’t tell you if they were telling me the truth.
Q. All right.
A. But they said certain things, things that they said could certainly cause
injury. And they had injury, so . . .
Q. And, of course, back to the first question I asked you: Those injuries,
as well, could be caused by volitional sexual—
A. They could. [Italics and underlining added.]
Defense counsel’s cross-examination placed Dr. Guertin’s testimony in context.
Although Dr. Guertin used words like “clearly” and “strong” to describe the history he obtained
from the complainants, he confirmed that he was using these terms to indicate the level of detail
they related.
Further, the trial court instructed the jury that although Dr. Guertin was an expert,
[Y]ou do not have to believe an expert’s opinion. Instead, you should decide
whether you believe it and how important you think it is.
When you decide whether you believe an expert’s opinion, think carefully
about the reasons and facts he gave for his opinion, and whether those facts are
true.
You should also think about the expert’s qualifications, and whether his
opinion makes sense when you think about the other evidence in the case.
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You heard Dr. Guertin render a conclusion that [DG] and [KG] were
sexually abused. That evidence cannot be used to show that the crimes charged
were committed, or that the Defendant committed them, nor can it be considered
an opinion by Doctor Guertin that [DG] and [KG] are telling the truth.
You, as jurors, are the sole judges of the facts and the credibility of the
witnesses. And you should base your decision on all the evidence presented in
the case.
You heard Doctor Guertin’s opinion about the behavior of sexually abused
children. You should consider that evidence only for the limited purpose of
deciding whether [DG] and/or [KG]’s acts and words after the alleged crime were
consistent with those of sexually abused children. The evidence cannot be used to
show that the crime charged here was committed, or that the Defendant
committed it, nor can it be considered an opinion by Doctor Guertin that [DG] or
[KG] are telling the truth. [Emphasis added.]
“Jurors are presumed to follow their instructions, and it is presumed that instructions cure most
errors.” Mahone, 294 Mich App at 212. It is apparent that in this case the jurors followed their
instructions because they acquitted defendant of the only charge based on [KG]’s testimony, and
they were unable to agree regarding a verdict for the final charge (the CSC-II charge related to
defendant’s allegedly forcing [DG] to touch his penis). Had the jurors unquestioningly accepted
Dr. Guertin’s testimony, they would have found defendant guilty of all four counts; instead, the
jurors followed their instructions and only convicted defendant on the two counts for which they
found sufficient evidence.
Given the clarification on cross-examination that Dr. Guertin’s testimony was based on
DG’s and KG’s statements, given the jury instructions, and given that DG and KG testified at
trial about the incidents in question, we cannot find that any error in the admission of Dr.
Guertin’s testimony affected the outcome of the trial.10
3. OTHER WITNESSES
Defendant claims that the complainants’ father and grandmother,11 as well as witnesses
RG, SF, AG, and SK, were all permitted to relate hearsay statements in light of trial counsel’s
10
Defendant takes issue with Dr. Guertin’s diagnosis of sexual abuse. But again, Dr. Guertin
specifically stated: “I can’t tell you if they were telling me the truth,” and admitted that if he
obtained an inaccurate history, that could result in a false diagnosis. In addition, Dr. Guertin’s
opinions properly were based in part on his physical examinations. See People v Smith, 425
Mich 98, 112; 387 NW2d 814 (1986). He explained that pre-pubertal penetration is more likely
to leave notches in the hymen than post-pubertal penetration.
11
For ease of reference, the complainants’ mother, father, and grandmother will be referred to in
this opinion as “Mother,” “Father,” and “Grandmother.”
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failure to object, and that this cumulative hearsay prejudiced defendant to the degree that, absent
the hearsay, the outcome of the trial would have been different.
a. FATHER
Father testified:
A. Correct. We have always talked about it [“things” Mother had made
him aware of]. She always has never been comfortable with the way that Kevin
has ever been around any girl that has been in our family that’s young. She has
made mention for 15, 20 years. She had never liked it. There was something
there. She said: I just can’t put my finger on it. I always thought to myself,
maybe you’re overreacting.
Mr. Hocking [Defense Counsel]: I am going to object. I don’t know that
his thoughts on the subject are relevant.
The Court: It’s his thoughts. I’ll overrule the objection. It’s his thoughts.
So I’ll allow the answer.
Q. (Mr. Kwasnik [Ass’t Prosecutor]): Go ahead [and] finish your answer.
What did you think?
A. It was just—that was what my knowledge of the situation was. It was
always the way my wife reacted to the things that she had seen, you know. I
worked a lot, so I wasn’t around as much as she was when we owned the store
and stuff like that.
So, yes, firsthand situations that I was not present at. I only know from
what she had told me due to general conversations at dinner or anything like that.
[Emphasis added.]
Defendant claims that Father’s statements as quoted above were hearsay because he
testified that Mother told him about a number of incidents involving [DG] and defendant. Even
assuming that this nonspecific testimony constituted inadmissible hearsay, we cannot find
anything outcome-determinative in it because the testimony essentially indicates that Mother had
no evidence from which to conclude that defendant had done something inappropriate; she
simply felt uncomfortable with defendant’s interactions. This admission supported defendant’s
claim of innocence, i.e., that the sexual-assault allegations were based on lies from [DG] and
[KG] and the resultant misunderstanding of the adults; in other words, he had not actually
sexually assaulted either complainant, but his general behavior with them had caused some of the
adults to feel uncomfortable. Moreover, on cross-examination, Father agreed that the allegations
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against defendant had “caught [him] off guard” because he never expected his cousin to molest
his children. This statement supported the defense.12
b. GRANDMOTHER
Defendant claims that Grandmother testified that Mother told her about an incident that
occurred between [DG] and defendant at a pond. Defendant does not specify the hearsay he
claims was related or explain how Grandmother’s testimony constituted impermissible vouching
for the credibility of [DG] or [KG]. Defendant cannot simply announce his position and leave it
to this Court to find and rationalize the basis for the claim. People v Kelly, 231 Mich App 627,
640-641; 588 NW2d 480 (1998). At any rate, after examining the cited transcript page, we find
that Grandmother was describing what she observed at the pond, i.e., that [DG] and defendant
were “sitting close together” and “needed to separate a little bit.” While she also related that
“[Mother] was concerned that they were sitting too close together,” this was simply a reiteration
of Grandmother’s own statement that she observed the two close together and that they needed to
separate. In addition, Grandmother testified that she “didn’t think anything was really going on.”
This comment actually assisted the defense by emphasizing that an adult did not see any criminal
conduct occurring. Defense counsel was not ineffective for failing to object to this exchange.
c. RG
Defendant claims that RG provided multiple hearsay statements. He states that RG
“testified that [Mother] sat her down at a party and explained that she felt that [defendant] had
acted inappropriately with the girls over several years.” This is a misreading of the cited
transcript page. RG actually testified that Mother “had mentioned some things that had bothered
her over the years that she had noticed [defendant] doing . . . .” This nonspecific testimony was
not particularly consequential and defense counsel was not ineffective for failing to object to it.
Defendant also claims that RG “testified that [Mother] was vocal about not liking [defendant].”
Defendant does not cite a transcript page for this allegation, and we refuse to do defendant’s
legwork for him. Id. Defendant next takes issue with the following exchange during RG’s
testimony:
A. . . . So it caught Jason’s attention. Jason brought it up to me and he
said, what was that about. I said, I have no idea what’s going on. This was a
different instance at the pond. So it was around the time that they were 13. I
think it [was] around the time that it may have stopped.
That was another instance in the pond someplace where Jason was really
uncomfortable with it. He said: I don’t like it. Don’t have a good feeling about it.
Something is wrong. He’s doing something and it’s just not right. He’s like:
Something needs to be done.
12
Defendant also claims that Father provided hearsay when he stated that he “wasn’t there on
some of the other circumstances.” Defendant does not explain, however, how this statement
constitutes hearsay when Father did not elaborate on anything another person told him.
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So he was getting a bad vibe off of it as well. I was like: I don’t know
what you want me to say, or who you want me to say it to. Do you want me to
say it to [Father]? Do you want me to say it to [Mother]? Do you want me to
approach the girls?
Q. What did you do?
A. I asked the girls about it. They were like: No, it’s fine . . . . We have
got it under control. Left it at that. So—
Q. You did have a conversation with the girls that you remember?
A. We touched on it a little bit. But neither one wanted to talk about it. So
I kind of just left it at that and let it be.
Contrary to defendant’s implication, it is not clear from the transcript whether RG also observed
the incident being referred to by “Jason,” but she did provide some hearsay when she discussed
Jason’s stating, “[h]e’s doing something and it’s just not right.” However, RG did not relate
anything that specifically described defendant’s conduct, and the concluding statement was that
DG and KG appeared to discount the importance of the incident. This supported the defense. It
indicated that nothing serious enough to merit a complaint had occurred. In these circumstances,
we find no ineffective assistance of counsel in the failure to object.
d. SF
Defendant claims that SF improperly testified about a social-media post from DG.
Defendant asserts that SF “testified that the post explained that [DG] had been sexually
assaulted.” Defendant does not set forth support for this claim. Here is what SF actually
testified to:
Q. When did you first become aware—you know [why] you’re here,
correct?
A. Yes.
Q. When did you first become aware that there was a potential problem?
A. I had just happened to have a break at work, and opened my Facebook.
And I see [DG] have [sic] a posting.
Q. Okay. So there was something about that posting that made you
watch?
A. She never said any names. But she kind of made an accusation about
something that had happened to her.
Q. It bothered you enough to do some follow-up; is that right?
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A. It bothered me enough to show my co-worker, am I seeing what I think
I am seeing.
Q. Then what did you do?
A. I texted her twin.
Q. You texted her twin?
A. I texted [KG] and asked if her sister was okay.
Q. All right. And did you do anything else?
A. Not that day. She texted her and was like, she is okay.
Q. All right.
A. Later I did text [KG] and said, is she okay. She said yeah.
While this testimony contains some hearsay, the nature of it is inconsequential. SF did
not relate what DG posted on her Facebook page other than to say that she made an accusation
about something that happened to her; SF did not explain what that accusation was. Contrary to
defendant’s claim, SF did not testify that [DG] made a social media post claiming sexual assault.
The testimony contains hearsay from KG stating that DG is “okay.” Defendant does not explain
how this hearsay was prejudicial. In fact, it supported the defense that nothing had happened,
and that DG and KG were making up their allegations, because even if the post on Facebook did
claim that DG was sexually assaulted, KG assured SF that DG was okay, which is inconsistent
with her having been assaulted. This testimony aided the defense in arguing that DG’s testimony
about being sexually abused was not credible. In cross-examining DG, counsel pointed out
inconsistencies in DG’s social-media postings. Counsel was not ineffective for failing to object
Defendant next claims that SF repeated hearsay in testifying about conversations she had
with DG at a party. Defendant fails to disclose that SF was twice instructed by the prosecutor to
confine her comments to what she observed and not to testify to what DG had said. Also,
defense counsel objected when SF began to describe what DG was upset about, and her
testimony on this point was cut off. SF then testified that she had conversations with DG, but she
did not in fact relate the content of the conversations.
Defendant claims that SF related hearsay statements in describing what transpired when
she entered the kitchen in Mother’s home, when Mother became extremely angry against
defendant. But Mother had already testified about this episode, so SF’s testimony did not
disclose anything new to the jury. Contrary to defendant’s assertion that “[t]his inappropriate
testimony served to substantiate the claim that [defendant] was guilty of these alleged crimes,”
this testimony did not substantiate anything other than Mother’s reaction to DG’s disclosures.
The jurors were well aware that the disclosures had been made because DG testified about them.
Defendant has failed to show any outcome-determinative prejudice based on counsel’s failure to
object.
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e. AG
Defendant next argues that AG provided hearsay testimony by stating that DG and KG
had told her about some of defendant’s actions. But AG, while providing a brief hearsay
statement in this regard, also clearly testified about personally seeing defendant do the same
things (trying to “grab” areas on the girls). In these circumstances, there was no prejudice
arising from the hearsay. Defendant also argues that AG provided hearsay testimony by stating
that the complainants told her about texting defendant to tell him to stop. But the prosecutor
himself immediately admonished AG to only testify about “things that you saw with your own
eyes.” Counsel was not ineffective for failing to raise an objection when the prosecutor himself
corrected the witness.
f. SK
Defendant next protests that DG’s boyfriend, SK, was allowed to testify without
objection that DG told him years before trial that defendant had sexually assaulted her when she
was younger. However, MRE 801(d)(1) states that a prior statement of a witness is not hearsay
if:
The declarant testifies at the trial court hearing and is subject to cross-examination
concerning the statement, and the statement is . . . (B) consistent with the
declarant’s testimony and is offered to rebut an express or implied charged against
the declarant of recent fabrication or improper influence or motive . . . .
SK’s testimony fit within this rule because defense counsel argued in opening statements that the
complainants recently fabricated these charges. Counsel was not ineffective for failing to object.
Contrary to defendant’s allegation, the circumstances and testimony in this case are
different from those at issue in Shaw, 315 Mich App at 673-674, and we find no basis to reverse
based on defense counsel’s failure to object to the various instances of alleged hearsay.
B. FAILURE TO PRESENT WITNESSES
1. ALTERNATIVE SOURCE OF INJURIES
Defendant argues that counsel should have presented evidence of an alternative source of
DG’s injuries, specifically, the testimony of two other men with whom [DG] had been sexually
active. This Court in People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012), stated:
Decisions regarding whether to call or question witnesses are presumed to
be matters of trial strategy. [T]he failure to call witnesses only constitutes
ineffective assistance of counsel if it deprives the defendant of a substantial
defense. Similarly, [t]he failure to make an adequate investigation is ineffective
assistance of counsel if it undermines confidence in the trial’s outcome. [People v
Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012) (quotation marks and
citations omitted).]
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MCL 750.520j(1) provides:
(1) Evidence of specific instances of the victim’s sexual conduct, opinion
evidence of the victim’s sexual conduct, and reputation evidence of the victim’s
sexual conduct shall not be admitted under [MCL 750.520b to MCL 750.520g]
unless and only to the extent that the judge finds that the following proposed
evidence is material to a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or
origin of semen, pregnancy, or disease.
Here, Dr. Guertin readily admitted that DG was sexually active and that her notched hymen
could have resulted from consensual sex. Given this testimony and the limits set forth in the
above statute, we find no ineffective assistance of counsel with respect to this issue.13
2. TESTIMONY OF BW
Defendant also claims that trial counsel was ineffective for failing to present the
testimony of BW, the complainants’ great-grandmother and defendant’s grandmother.
According to BW’s affidavit, DG’s claim that defendant assaulted her at BW’s house while BW
was asleep was false because defendant and DG were never at her house without Mother, Father,
or Grandmother being present.14
The prosecutor notes, as did the trial court, that RG testified that defendant was BW’s
favored grandchild. This fact, along with BW’s admission that she suffers from Alzheimer’s
disease, would have undercut Wade’s testimony. DG maintained that she was present at RW’s
house without Mother, Father, or Grandmother. In light of RW’s possible bias and her
Alzheimer’s disease, we cannot find any ineffective assistance of counsel with respect to the
failure to call BW as a witness to attempt to rebut this statement by DG.
13
In Shaw, 315 Mich App 668, 681 n 8; 892 NW2d 15 (2016), the Court concluded that two
brief references to the fact that the complainant had had consensual sex “were unlikely to
provide the jury a basis to conclude that the complainant was in a sexually active relationship
before Guertin’s examination.” Here, by contrast, there was not simply a reference to DG’s
having had consensual sex at some point; Dr. Guertin specifically acknowledged multiple times
that DG reported being “sexually active” to him and he explained that this sexual activity could
have resulted in the hymenal changes.
14
BW also provided a statement about her dog’s barking habit but defendant does not make an
issue of this in his appellate brief.
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We find no ineffective assistance of counsel with respect to any of defendant’s claims
and reject his claim of cumulative error.
II. ADMISSION OF DR. GUERTIN’S TESTIMONY
A. QUALIFICATION AS AN EXPERT
Defendant argues that Dr. Guertin should not have been qualified as an expert. However,
defense counsel explicitly stated that he had “[n]o objection” to Dr. Guertin’s being qualified as
“an expert in the field of sexual abuse against children.” Thus, defendant affirmatively waived
any objection to Dr. Guertin’s qualifications and may not now raise the issue on appeal. People
Kowalski, 489 Mich 488, 503-505; 803 NW2d 200 (2011); People v Carter, 462 Mich 206, 215;
612 NW2d 144 (2000).
B. AREA OF EXPERTISE
Defendant also argues that Dr. Guertin testified outside his area of expertise when he
addressed psychological and memory issues and examined the complainants as adults. We
review this unpreserved issue for plain error affecting substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999).
Because defendant did not challenge Dr. Guertin’s credentials as a child-sexual-abuse
expert, he has not established that testimony pertaining to such psychological and memory
issues, or pertaining to the physical makeup of adults sexually abused earlier in life, is outside
the expertise of a medical doctor qualified by training and experience with working with
sexually-abused children. MRE 702 specifically provides that “a witness [may be] qualified as
an expert by knowledge, skill, experience, training, or education . . . .” A pediatric doctor who
has spent a substantial portion of his time dealing with sexually abused children for over 30 years
could, by experience and training, be an expert concerning psychological and memory issues that
are routinely encountered when working with sexually abused children and concerning how
earlier sexual abuse could affect physical structures later in life. Defendant has simply failed to
demonstrate that this was not the case and thus has not demonstrated any clear or obvious error.
Id.
C. OTHER ALLEGATIONS
Defendant attacks the hypothetical that Dr. Guertin used at one point in his testimony
and claims it “mimicked the very facts of this case and allowed for more improper vouching.”
However, there is nothing in Dr. Guertin’s response that vouches for DG’s or KG’s statements.
And defendant ignores that Dr. Guertin explained that his only bases for evaluation were the
statements he obtained from the sisters and his physical examinations. He specifically stated: “I
can’t tell you if they were telling me the truth,” and admitted that if he obtained an inaccurate
history, that could result in a false diagnosis. He largely reiterated these precepts later in his
testimony. These caveats serve to countermand defendant’s argument that Dr. Guertin
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improperly opined regarding the ultimate issues in the case.15 Defendant claims that Dr. Guertin
improperly vouched for DG when he testified that sexually abused children remember things that
are vivid, and that DG accordingly remembered digital penetration because “[it] clearly made an
impression on her.” This remark was not, contrary to defendant’s assertion, “a pediatric medical
doctor[] pontificat[ing] about his opinions on an adult women’s memories and how they made
her feel.” It was the opinion of an expert in child sexual abuse concerning why a sexual-abuse
victim might remember certain details very clearly while not recalling other details.
Defendant contends that Dr. Guertin’s testimony about the results of the physical
examination was not necessary. He argues that “the medical evidence did nothing to help the
jury determine a fact in issue.” Defendant contends that this is so because Dr. Guertin was
unable to determine with certainty whether the sisters’ physical injuries were from sexual abuse
or consensual sexual intercourse, and therefore the testimony was irrelevant. However, this
ignores that one of the facts at issue was whether there was evidence to support a claim of
penetration, which is an element of the two counts charging CSC-I. MCL 750.520b. Therefore,
medical testimony that confirmed that there had been penetration was very relevant. That the
penetration could have been from consensual sex does not render the testimony irrelevant; it
affects the weight but not the admissibility of the testimony. Further, in light of its relevance to
an element of the charged offenses, we reject the argument that MRE 403 mandated exclusion of
the testimony.
III. LIFETIME ELECTRONIC MONITORING
Defendant contends that the imposition of lifetime electronic monitoring (LEM) on him
by the trial court constituted an unreasonable search and also constituted cruel or unusual
punishment. We review constitutional questions de novo. People v Benton, 294 Mich App 191,
195; 817 NW2d 599 (2011).
In People v Hallak, 310 Mich App 555, 577, 579; 873 NW2d 811 (2015), rev’d in part on
other grounds 499 Mich 879 (2016), this Court considered and rejected the defendant’s claims
that LEM is an unreasonable search and that it violates the constitutional prohibition against
cruel or unusual punishment. Defendant has failed to present any cogent argument in support of
his claim that we can distinguish Hallak to arrive at a different conclusion.
With regard to defendant’s claim that there is nothing in the record to support the
conclusion that defendant presents the kind of lifetime threat to society that the defendant in
Hallak presented, the trial court disagreed. The trial court stated:
Defendant also argues the facts of the present case are different because,
as opposed to the 13 victims in Hallak, there was only one victim in this case;
thus, lifetime electronic monitoring as applied to Defendant is unconstitutional.
The Court finds this claim to be equally without merit. In the case at bar,
15
In addition, as noted in footnote 10, Dr. Guertin’s opinions properly were based in part on his
physical examinations. See People v Smith, 425 Mich 98, 112; 387 NW2d 814 (1986).
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Defendant was accused of sexually abusing his two young cousins since they
were young children and continuing to do so into their teen years. There was also
evidence presented at trial that Defendant frequently preyed on other young
females who were either part of the family or close family friends. While
Defendant was only convicted of CSC 1st and 2nd against [DG], the evidence
presented at trial, of both charged and uncharged conduct, strongly indicated that
Defendant had a history of inappropriate sexual activity, for a number of years,
involving several victims. In addition, [DG] testified that the reason she decided
to come forward with the allegations was because she believed Defendant was
“going after” another little girl . . . who was six years old and autistic.
Defendant’s behavior was persistent and ongoing, and based on the testimony at
trial, he clearly demonstrated a strong interest in young girls to which he had
constant access. As a result, “when employing an as-applied standard” under the
specific facts of this case, lifetime electronic monitoring as part of Defendant’s
sentence was neither cruel, nor unusual.
The trial court’s recitation accurately reflects the evidence presented at trial and in fact
understates that evidence. DG, KG, and AG testified regarding defendant’s inappropriate sexual
conduct with them, and AA testified regarding defendant’s request for provocative photographs.
As the trial court noted, DG also related her concerns regarding defendant’s contact with a young
autistic girl. The LEM imposition was appropriate.
Affirmed.
/s/ Thomas C. Cameron
/s/ Patrick M. Meter
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