People of Michigan v. Ronald Joseph Hinman

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

October 29, 2020

Plaintiff-Appellee,

v No. 347204

Genesee Circuit Court

RONALD JOSEPH HINMAN, LC No. 16-040468-FC

Defendant-Appellant.

Before: STEPHENS, P.J., and SAWYER and BECKERING, JJ.

PER CURIAM.

Defendant appeals as of right his jury convictions of two counts of first-degree criminal

sexual conduct (CSC-I), MCL 750.520b(1)(a) (victim under the age of 13), and two counts of

third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (victim between 13 and 16

years of age). The trial court sentenced defendant as a fourth-offense habitual offender, MCL

769.12, to 25 to 50 years’ imprisonment for each conviction, with the CSC-I sentences to be served

consecutively to the CSC-III sentences. We affirm defendant’s convictions and sentences, but

remand for modification of defendant’s judgment of sentence to specify that the CSC-I sentences

are to be served consecutively to each other, but concurrently with the CSC-III sentences.

Defendant’s CSC-I convictions arise from two acts of digital penetration against 12-year-

old AJ on July 10, 2016. The offenses allegedly occurred at AJ’s home when defendant, whom

AJ considered to be an uncle, visited her home for a family party. According to AJ, while playing

in a pool, defendant touched her underneath her bathing suit and digitally penetrated her vagina,

and he again digitally penetrated her in her bedroom after she went inside her house to change her

clothing. Defendant’s CSC-III convictions arise from a sexual assault against 13-year-old AC in

2008. According to AC, while she was staying at the home of defendant’s mother, defendant

sexually assaulted her while she was sleeping on a couch by penetrating her vagina with his finger

and with his penis.

Defendant denied any inappropriate sexual touching of AJ, but admitted that he may have

accidently touched her in the pool while wrestling with a group of other children in the pool.

Defendant also denied any sexual activity with AC and claimed that he could not have done so

because he was in jail at the time that incident was alleged to have occurred.

-1-

Defendant appeals as of right, raising issues in a brief filed by appointed appellate counsel

and in a pro se brief, filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard

4 (“Standard 4 brief”).

I. COUNSEL’S ISSUES

A. MRE 803(4)

Defendant first argues that he was denied a fair trial by the admission of hearsay statements

from AJ and AJ’s mother to Amy Mawhorter, a sexual assault nurse examiner (SANE), who

examined AJ the day after defendant’s alleged sexual abuse. Because defendant did not object to

Mawhorter’s testimony regarding AJ’s and the mother’s statements, this issue is unpreserved. We

review unpreserved claims of evidentiary error for plain error affecting defendant’s substantial

rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). To qualify as a plain

error, the error must be “clear or obvious.” People v Jones, 468 Mich 345, 355-356; 662 NW2d

376 (2003); Carines, 460 Mich at 763. A clear or obvious error is “one that is not ‘subject to

reasonable dispute.’ ” People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018) (citation

omitted). An error affects substantial rights if it is prejudicial, i.e., if it affects the outcome of the

proceedings. Carines, 460 Mich at 763.

Defendant also argues that defense counsel was ineffective for failing to object to

Mawhorter’s testimony. Because defendant did not raise an ineffective-assistance claim in the

trial court, our review of that issue is limited to mistakes apparent from the record. People v

Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). To establish ineffective assistance of

counsel, defendant must show that counsel’s performance fell below an objective standard of

reasonableness, and that the representation so prejudiced defendant that he was denied the right to

a fair trial. People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). Defendant must

overcome the presumption that the challenged action might be considered sound trial strategy.

People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). To establish prejudice,

defendant must show a reasonable probability that, but for counsel’s error, the result of the

proceeding would have been different. People v Johnson, 451 Mich 115, 124; 545 NW2d 637

(1996).

Defendant argues that AJ’s statements during the examination were hearsay and were not

admissible under MRE 803(4), the hearsay exception for statements made for the purpose of

medical diagnosis or treatment, because the examination was intended primarily for investigative

purposes, not for the purpose of medical diagnosis or treatment. We disagree.

Hearsay is defined as “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.”

MRE 801(c); People v Dendel (On Second Remand), 289 Mich App 445, 452; 797 NW2d 645

(2010). Hearsay generally is inadmissible, MRE 802, unless it falls under one of the exceptions

in the Michigan Rules of Evidence. MRE 803(4) provides:

The following are not excluded by the hearsay rule, even though the

declarant is available as a witness:

* * *

-2-

(4) Statements Made for Purposes of Medical Treatment or Medical

Diagnosis in Connection With Treatment. 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

or general character of the cause or external source thereof insofar as reasonably

necessary to such diagnosis and treatment.

In People v Mahone, 294 Mich App 208, 214-215; 816 NW2d 436 (2011), this Court

rejected the defendant’s argument that statements made to a nurse performing a rape-kit

examination are not admissible under MRE 803(4), stating:

Defendant also argues that statements the victim made to the nurse who

conducted a rape examination should not have been admitted. 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. People v Garland, 286 Mich App 1, 8-10; 777 NW2d

732 (2009). 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. Id. at 9-10; People v

McElhaney, 215 Mich App 269, 282-283; 545 NW2d 18 (1996). Thus, statements

the victim made to the nurse were all properly admissible pursuant to MRE 803(4).

Defendant argues that AJ’s statements during the examination were not admissible under

MRE 803(4) because the examination had an investigative purpose. The fact that an examination

is initiated in part to investigate a sexual assault is not dispositive. People v Duenaz, 306 Mich

App 85, 96; 854 NW2d 531 (2014). The relevant inquiry is whether the declarant’s statements

were reasonably necessary for medical diagnosis or treatment. Mahone, 294 Mich App at 214-

215. In Mahone, this Court explained that “[p]articularly 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.” Id. at 215.

In this case, Mawhorter described examining AJ for physical injuries and to determine what

medical treatment might be necessary. Mawhorter explained that when examining a patient, she

needs to ask the patient what happened to determine what type of examination to conduct and to

determine what treatment or procedures might be necessary. When she examined AJ, no physical

injuries were apparent, but AJ complained of pain in her pelvic area. Mawhorter found some

redness or irritation to tissue above the clitoris. Although the examination was conducted after

AJ’s mother contacted the police to report a sexual assault, the record discloses that a purpose of

Mawhorter’s examination was to diagnose a possible injury, and to determine whether AJ required

treatment and what treatment was appropriate. Because AJ’s statements were reasonably

necessary for medical diagnosis or treatment, the statements were admissible under MRE 803(4).

-3-

Defendant argues that the statements by AJ’s mother during the examination were not

admissible under MRE 803(4) because the mother was not the patient being examined. We

disagree. The record indicates that while AJ was the patient being examined, and her mother

encouraged her to talk to the nurse, the mother sometimes intervened when AJ was reluctant to

speak. MRE 803(4) provides that “[s]tatements made for purposes of medical treatment or medical

diagnosis in connection with treatment and describing medical history” are exceptions to the

hearsay rule and admissible. The focus of the rule is on the purpose for which a statement is made.

Nothing in the rule requires that a statement be made by the person who is receiving the medical

treatment. Thus, as this Court observed in People v Yost, 278 Mich App 341, 362 n 2; 749 NW2d

753 (2008), “MRE 803(4) is not limited to statements made by the person being diagnosed or

treated.” Because the mother’s statements were made in the context of assisting Mawhorter’s

medical diagnosis and treatment, they too qualified for admission under MRE 803(4).

Defendant complains that the mother’s statement included a statement from an aunt who

described seeing defendant in the hallway with a telephone. Defendant argues that the aunt’s

statement should have been excluded because it was double hearsay. Hearsay within hearsay is

not admissible unless each level of the evidence satisfies an exception to the hearsay rule. People

v Hawkins, 114 Mich App 714, 719; 319 NW2d 644 (1982); MRE 805. Although multiple levels

of hearsay may be admissible under MRE 803(4), Yost, 278 Mich App at 362 n 2, the aunt’s

statement to AJ’s mother was not made for the purpose of medical diagnosis or treatment. Thus,

the aunt’s statement does not qualify for admission under MRE 803(4). To the extent that the

aunt’s statement may be considered inadmissible hearsay, the erroneous introduction of that

statement did not affect defendant’s substantial rights because the statement merely indicated that

the aunt saw defendant in the hallway with his phone. The aunt’s statement did not indicate that

defendant had been with AJ or in her room, and defendant admitted going inside the house after

AJ went inside to use the bathroom. There is no reasonable basis for concluding that the aunt’s

limited statement affected the outcome of defendant’s trial. Carines, 460 Mich at 763.

Defendant also argues that the admission of AJ’s and the mother’s statements violated his

right of confrontation, US Const, Am VI; Const 1963, art 1, § 20. The Confrontation Clause bars

the admission of testimonial hearsay if the declarant is unavailable for trial, unless the defendant

had a prior opportunity to cross-examine the declarant. See Garland, 286 Mich App at 10. In this

case, the two declarants, AJ and her mother, as well as Mawhorter, all testified at trial and

defendant had an opportunity to confront them. Further, statements made to a SANE nurse are not

testimonial where the primary purpose of the nurse’s questions and examination is to meet an

ongoing emergency. Id. at 11; see also People v Spangler, 285 Mich App 136, 154; 774 NW2d

702 (2009) (“to determine whether a sexual abuse victim’s statements to a SANE are testimonial,

the reviewing court must consider the totality of the circumstances of the victim’s statements and

decide whether the circumstances objectively indicated that the statements would be available for

use in a later prosecution or that the primary purpose of the SANE’s questioning was to establish

past events potentially relevant to a later prosecution rather than to meet an ongoing emergency.”).

Where, as in this case, a victim’s statements to a SANE nurse are reasonably necessary for medical

diagnosis and treatment, they qualify as nontestimonial. Garland, 286 Mich App at 11.

Accordingly, there was no Confrontation Clause violation.

We also reject defendant’s related ineffective-assistance arguments. Because AJ’s and her

mother’s statements were admissible under MRE 803(4) and did not violate the Confrontation

Clause, any objection would have been futile. Counsel is not ineffective for failing to make a futile

-4-

objection. People v Chambers, 277 Mich App 1, 11; 742 NW2d 610 (2007). To the extent that

counsel could have objected to the aunt’s statement, as related by AJ’s mother, on the basis that it

was inadmissible double hearsay, because that limited statement merely described seeing

defendant using a phone in the hallway of the house and defendant admitted going inside the house

to use the bathroom, defendant was not prejudiced by counsel’s failure to object.

B. MRE 803(2)

Defendant also argues that the trial court erred by allowing AJ’s mother to testify what AJ

told her on the night of the charged offenses. The trial court admitted AJ’s statements to her

mother under the excited utterance exception to the hearsay rule, MRE 803(2). We review a trial

court’s decision to admit evidence for an abuse of discretion. Duenaz, 306 Mich App at 90. An

abuse of discretion occurs when a trial court’s decision falls outside the range of principled

outcomes. Id.

Defendant argues that AJ’s statements to her mother were not admissible as excited

utterances because too much time had passed and AJ made the statements after her grandmother

had called AJ’s mother and asked her to talk to AJ. We disagree.

MRE 803(2) provides that an exited utterance is “[a] statement relating to a startling event

or condition made while the declarant was under the stress of excitement caused by the event or

condition.” The requirements for admitting a statement as an excited utterance are “1) that there

be a startling event, and 2) that the resulting statement be made while under the excitement caused

by the event.” People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998). “[I]t is the lack of

capacity to fabricate, not the lack of time to fabricate, that is the focus of the excited utterance rule.

The question is not strictly one of time, but of the possibility for conscious reflection.” Id. at 551.

Although the passage of time is a relevant consideration, “there is no express time limit for excited

utterances.” Id. Admissibility depends not necessarily on how much time has elapsed since the

startling event, but rather whether the declarant was still under the stress of excitement resulting

from that event. “The trial court’s determination whether the declarant was still under the stress

of the event is given wide discretion.” Id. at 552. The exception thus applies when fabrication

under the circumstances is unlikely, not necessarily impossible.

In this case, AJ’s grandmother testified that AJ called her on the night of the incident and

was upset and crying so much that it took her about 20 minutes before she could begin to say what

happened to her. Thereafter, the grandmother called AJ’s mother and told her to talk to AJ.

According to AJ’s mother, she immediately went to speak to AJ, who was still “bawling her eyes

out,” and then AJ told her what had happened earlier that day. The testimony indicated that AJ’s

statements to her mother were made on the same day that she was allegedly sexually assaulted,

which qualifies as a startling event. The testimony that AJ was “bawling her eyes out” when she

made the statements indicates that she was still experiencing the emotional impact of the event

when she made the statements. Accordingly, the trial court did not abuse its discretion by

admitting AJ’s statements to her mother under the excited utterance exception to the hearsay rule.

C. JURY VOIR DIRE

Next, defendant argues that the prosecutor engaged in misconduct when she questioned a

potential juror during voir dire regarding her experience working with victims of sexual assault,

-5-

including whether the juror believed that a victim’s delay in reporting a sexual assault may make

that person less believable. Because there was no objection to the prosecutor’s questioning of the

juror, this issue is unpreserved. Therefore, we review this issue for plain error affecting

defendant’s substantial rights. People v Abraham, 256 Mich App 265, 274-275; 662 NW2d 836

(2003).

During voir dire, Juror Number 121 informed the prosecutor that she worked with sexual

assault victims, including children, and therefore did not know if she could be a fair juror in this

case. In follow-up questions, the prosecutor asked the juror whether she felt a person would be

less believable if the person delayed reporting a sexual assault. The juror responded that she did

not believe that was true because sexual assault is difficult for some people to talk about and it is

common that people do not report abuse. The prosecutor also asked the rest of the venire if they

felt the same way. Defendant argues that the prosecutor’s questioning of Juror Number 121 was

improper because the prosecutor in effect was offering expert testimony through the juror, without

following MRE 702. We disagree.

The test for prosecutorial misconduct is whether the defendant was denied a fair trial.

People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). As this Court explained in

People v Lane, 308 Mich App 38, 62-63; 862 NW2d 446 (2014):

A prosecutor has committed misconduct if the prosecutor abandoned his or

her responsibility to seek justice and, in doing so, denied the defendant a fair and

impartial trial. A prosecutor can deny a defendant his or her right to a fair trial by

making improper remarks that “so infect[ ] the trial with unfairness as to make the

resulting conviction a denial of due process.” We must evaluate instances of

prosecutorial misconduct on a case-by-case basis, reviewing the prosecutor’s

comments in context and in light of the defendant’s arguments.

A criminal defendant has a constitutional right to be tried by an impartial jury and jurors

are presumed to be impartial unless the contrary is shown. People v Miller, 482 Mich 540, 547,

550; 759 NW2d 850 (2008). The purpose of voir dire is to elicit enough information for

development of a rational basis for excluding any individuals who may not be impartial.

Therefore, potential jurors are questioned in an effort to uncover any bias they may have that

prevents them from fairly deciding the case. People v Tyburski, 445 Mich 606, 618; 518 NW2d

441 (1994). “It is imperative, in securing the rights of the parties to an impartial jury, for the court

to allow the elicitation of enough information so that the court itself can make an independent

determination of a juror’s ability to be impartial.” Id. at 620.

In People v Bailey, 310 Mich App 703, 721-722; 873 NW2d 855 (2015), this Court

declined to reverse when the prosecutor asked prospective jurors about why a victim may not

report sexual abuse. This Court held that the questioning did not constitute plain error without

further analyzing whether it was appropriate to explore that area during voir dire. With regard to

a prosecutor’s argument about delays in reporting by sexual abuse victims, this Court noted that

jurors are permitted to view evidence in light of their common knowledge or experience. Id. at

722.

In this case, the challenged line of questioning occurred in the context of attempting to

determine whether Juror Number 121 could be a fair and impartial juror. The juror had already

-6-

expressed concerns about whether she could be fair and impartial in this type of case, given her

experience with sexual assault victims, including children. The prosecutor’s questions, including

the questions about delayed reporting, which would be an issue for the charges involving AC, were

within the proper scope of voir dire. Accordingly, defendant has not established that the

prosecutor’s questioning of Juror Number 121 was plain error.

In his Standard 4 brief, defendant also argues that trial counsel was ineffective for not

objecting to the prosecutor’s questions during voir dire. Because the prosecutor’s questions to

Juror Number 121 were directed at determining whether she could be fair and impartial, and thus

within the proper scope of voir dire, any objection by defense counsel would have been futile.

Counsel is not ineffective for failing to make a futile objection. Chambers, 277 Mich App at 11.

D. OPINION TESTIMONY

Defendant next argues that the prosecutor improperly presented the opinion testimony of

AJ’s grandmother regarding whether she believed AJ made the allegations against defendant to

get the grandmother’s attention. Defendant also argues that it was improper to allow the

grandmother to testify regarding AJ’s allegations when the grandmother could not recall the exact

words that AJ used to describe what defendant did to her. Because defendant did not object to the

challenged testimony at trial, these claims are unpreserved. Therefore, we review these claims for

plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763-764.

As defendant correctly observes, 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

decided by the jury. People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007). In this case,

the grandmother was not asked to offer a blanket opinion regarding whether she believed AJ’s

allegations were credible. Rather, she was asked whether she believed AJ made the allegations in

an effort to get the grandmother’s attention, a subject that defense counsel had explored on cross-

examination. Not only was the grandmother’s testimony responsive to defense counsel’s cross-

examination, her opinion was relevant because only the grandmother was in a position to testify

regarding how much attention AJ typically sought from the grandmother, and whether the

grandmother gave AJ more or less attention than usual because of AJ’s allegations. These were

proper subjects to explore in light of defense counsel’s cross-examination, which suggested that

AJ may have made the allegations to her grandmother as a way of gaining her grandmother’s

attention. Considering the responsive nature of the testimony, defendant has not shown that it

qualifies as plain error.

Defendant also has not shown that the grandmother’s inability to recall AJ’s exact words

when describing the alleged sexual abuse by defendant rendered her testimony improper. The

grandmother testified that she recalled the substance of what AJ said to her. The grandmother was

not offering an “opinion” of the conversation. Further, the grandmother’s testimony explaining

the substance of what AJ revealed did not involve any commentary on whether she believed AJ’s

allegations were credible. Again therefore, defendant has not shown that this testimony constituted

plain error.

-7-

E. PROSECUTOR’S CONDUCT

Defendant argues that the prosecutor improperly shifted the burden of proof through the

following remarks during closing argument:

[The Prosecutor]: I want to talk very briefly about the testimony of the

defendant. You heard in the beginning of course, we know that the defendant does

not have to do anything. The defense doesn’t have to do anything. They have no

burden at all. Nothing, and you remember the defense attorney talking about he

could clip his nails and that would be fine. He can. He could do that if he wanted.

But when they choose to put on a case, it is fair to say they put on their best

case. What they had was this. They had Ron and nothing more, and Ron again

doesn’t have a burden . . .

[Defense Counsel]: Judge, I’m objecting because she is shifting the burden

here.

[The Prosecutor]: I am not shifting the burden. I have very clearly stated

that I don’t have to—I have the whole burden, but I am allowed to comment on the

evidence as it came in.

THE COURT: Overruled.

[The Prosecutor]: Thank you, Your Honor.

This is what they put forward and I agree, as he just said, that doesn’t shift

the burden. The burden is all mine, but Mr. Hinman felt that he needed to take the

stand and tell his side of it and his side of it made no sense whatsoever.

Claims of prosecutorial misconduct are decided case by case and the challenged conduct

must be viewed in context. McElhaney, 215 Mich App at 283. The test for prosecutorial

misconduct is whether the defendant was denied a fair trial. Bahoda, 448 Mich at 266-267. It is

well-established that a prosecutor may not imply in closing argument that the defendant must prove

something or present a reasonable explanation for damaging evidence because such argument

tends to shift the burden of proof. People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712

(2010). However, once a defendant testifies, it is not improper for the prosecutor to comment on

the weaknesses of the defense’s case or theory. People v Fields, 450 Mich 94, 115; 538 NW2d

356 (1995); People v Watson, 245 Mich App 572, 592-593; 629 NW2d 411 (2001). As explained

in Fields, 450 Mich at 115-116:

In sum, prosecutorial comment that infringes on a defendant’s right not to

testify may constitute error. However, where a defendant testifies at trial or

advances, either explicitly or implicitly, an alternate theory of the case that, if true,

would exonerate the defendant, comment on the validity of the alternate theory

cannot be said to shift the burden of proving innocence to the defendant. Although

a defendant has no burden to produce any evidence, once the defendant advances

evidence or a theory, argument on the inferences created does not shift the burden

of proof.

-8-

Thus, the Court of Appeals has correctly concluded that the prosecutor may

comment on the weakness of defendant’s alibi and may observe that the evidence

against the defendant is “uncontroverted” or “undisputed,” even if defendant is the

only one who could have contradicted the evidence, or has failed to call

corroborating witnesses, or proved what it said it would in its opening statement,

and that the defendant has failed to “take advantage of available opportunities to

pursue matters relevant to his alibi defense.”

The nature and type of comment allowed is dictated by the defense asserted,

and the defendant’s decision regarding whether to testify. When a defense makes

an issue legally relevant, the prosecutor is not prohibited from commenting on the

improbability of the defendant’s theory or evidence. [Citations and footnotes

omitted.]

In this case, the prosecutor was commenting on the strength of the defense’s evidence,

pointing out that it consisted entirely of defendant’s own testimony, and the prosecutor thereafter

discussed various problems or weaknesses with that testimony. The prosecutor repeatedly

qualified her remarks by reminding the jury that defendant did not have any burden of proof and

that the burden was on the prosecution to prove defendant’s guilt. Viewed in context, the

prosecutor’s comments did not shift the burden of proof.

F. CUMULATIVE ERROR

Defendant argues that he is entitled to a new trial on the basis of the cumulative effect of

the multiple errors in this case. Even if a single error standing alone does not justify reversal, the

cumulative effect of several errors can support reversal if the cumulative effect of the errors

undermines confidence in the reliability of the verdict. People v LeBlanc, 465 Mich 575, 591; 640

NW2d 246 (2002). The test is whether the cumulative effect of multiple errors deprived the

defendant of a fair and impartial trial. People v Taylor, 185 Mich App 1, 10; 460 NW2d 582

(1990). Absent the establishment of more than one error, there can be no improper cumulative

effect. People v Mayhew, 236 Mich App 112, 128; 600 NW2d 370 (1999). In this case, our

analysis of defendant’s claims fails to show that his trial was infected by multiple errors.

Accordingly, there can be no cumulative effect. Therefore, defendant is not entitled to relief on

this basis.

G. CONSECUTIVE SENTENCING

The trial court agreed that it was appropriate to exercise its discretion to impose

consecutive sentences in this case. The court ordered defendant’s two CSC-I sentences to be

served concurrently with each other, but consecutive to defendant’s two CSC-III sentences, which

were to be served concurrently with each other. Defendant argues that the trial court erred by

ordering his CSC-III sentences to be served consecutively to his CSC-I sentences. Because

defendant did not object when the prosecutor argued at sentencing that the trial court had the

authority to order the CSC-I sentences to be served consecutively to the CSC-III sentences, this

issue is unpreserved. Thus, defendant is not entitled to appellate relief unless he can establish a

plain error affecting his substantial rights. Carines, 460 Mich at 763-764.

-9-

We agree that the trial court plainly erred by ordering the two CSC-I sentences and the two

CSC-III sentences to be served consecutively to each other. Rather, the court was only authorized

to order the CSC-I sentences to be served consecutively to each other. In this state, concurrent

sentencing is the norm. A consecutive sentence may be imposed only if specifically authorized by

statute. People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012). The statutory authority

for the imposition of consecutive sentences in this matter is MCL 750.520b(3), which provides:

The court may order a term of imprisonment imposed under this section to

be served consecutively to any term of imprisonment imposed for any other

criminal offense arising from the same transaction.

Defendant’s CSC-III convictions did not arise from the same transaction as the offenses

that led to defendant’s CSC-I convictions. Indeed, the CSC-III offenses were committed

approximately eight years before defendant committed the CSC-I offenses. Accordingly, MCL

750.520b(3) did not allow the trial court to order the CSC-III sentences to be served consecutively

to the CSC-I sentences. As plaintiff concedes, it was plain error to order those sentences to be

served consecutively. Instead, the only option for consecutive sentencing was to order the

sentences for the two CSC-I convictions involving AJ to be served consecutively if those

convictions arose from the same transaction.

In Bailey, 310 Mich App at 723-725, this Court addressed what constitutes “arising from

the same transaction” for purposes of MCL 750.520b(3) and stated:

The statutory language clearly limits this authority to cases in which the

multiple offenses arose from the “same transaction,” and the relevant caselaw is

consistent with that legislative determination. In Ryan, 295 Mich App at 393, we

held that two acts of CSC-I occurred in the same transaction when, while the

victim’s stepmother was at a wedding, the defendant (the victim’s father), “called

[her] into his bedroom and demanded that she remove all of her clothing” and “put

his penis in her vagina and thereafter placed his penis in her mouth, leading to

ejaculation.” In People v Brown, 495 Mich 962, 963 (2014), the Supreme Court

vacated the trial court’s order that defendant serve each of his seven sentences for

CSC-I consecutively, directing that only three of the sentences could be imposed

consecutively as arising from the same transaction. In Brown, the defendant was

charged with, and convicted of, seven counts of CSC-I against his granddaughter,

and the trial court imposed a consecutive sentence for each one. See People v

Brown, unpublished opinion per curiam of the Court of Appeals, issued July 30,

2013 (Docket No. 308510), p 3, vacated and remanded 495 Mich 962 (2014). The

Supreme Court reversed, stating that it had reviewed the record and that “at most”

only three of the seven sentences could be imposed consecutively. Brown, 495

Mich at 962-963 (emphasis omitted). While we do not have access to the trial court

record in that case, the prosecution’s brief to this Court in Brown detailed a total of

seven criminal penetrations perpetrated by the defendant, against the same victim,

over approximately 10 days during three separate incidents. Three of the

penetrations occurred in the course of a single ongoing assault, thus allowing the

sentences for the second and third penetrations of that transaction to each be

imposed consecutively to the sentence for the first and to each other. During a

separate transaction, two penetrations occurred, allowing the sentence for the

-10-

second to be imposed consecutively to the sentence for the first. In that seven-

assault case, therefore, three sentences could each be imposed consecutively to the

other four sentences and to each other. While we cannot be certain that this was

the basis for the Supreme Court’s decision, we can be certain that the Court

concluded that four of the penetrations within that 10-day period were not part of

the “same transaction,” even though they were close in time and demonstrated

ongoing child sexual abuse of the same victim. It is also consistent with Ryan’s

reliance on People v Nutt, 469 Mich 565, 578 n 15; 677 NW2d 1 (2004), for the

principle that “[i]t is not an unfrequent occurrence, that the same individual, at the

same time, and in the same transaction, commits two or more distinct crimes . . . .”

(Quotation marks and citation omitted.)

In sum, we hold that an ongoing course of sexually abusive conduct

involving episodes of assault does not in and of itself render the crimes part of the

same transaction. For multiple penetrations to be considered as part of the same

transaction, they must be part of a “continuous time sequence,” not merely part of

a continuous course of conduct. Brown, 495 Mich at 963; Ryan, 295 Mich App at

402-403. [Footnotes omitted.]

In this case, the record demonstrates that defendant’s two CSC-I convictions arose from

the same transaction. Both offenses involved the same victim, occurred on the same day, and were

committed during a family party as part of a continuous time sequence. AJ described defendant

sexually penetrating her when she was in the pool with defendant. After AJ left the pool to get

away from defendant, she went inside the house to change from her bathing suit into other clothing.

Defendant entered her bedroom and committed the second act of CSC-I while AJ was in her

bedroom. While the record does not indicate how much time elapsed between the two incidents,

and AJ was not sure if she sat outside first before going inside to change her clothing, the testimony

established a continuous sequence of events connecting both incidents. Accordingly, the facts

supported the imposition of consecutive sentences under MCL 750.520b(3) for the two CSC-I

convictions.

In sum, although consecutive sentencing was authorized under MCL 750.520b(3), the trial

court erred when it ordered the sentences for the two CSC-I convictions (Counts I and II) to be

served consecutively to the sentences for the two CSC-III convictions (Counts III and IV). Instead,

the trial court should have ordered the sentences for Count I and II to be served consecutively with

each other, but concurrently with the sentences for Counts III and IV. This result does not change

the amount of time defendant is required to serve, because the court imposed the same sentences

for all four convictions and defendant still must serve two consecutive terms of 25 to 50 years, to

be served concurrently with the remaining terms of 25 to 50 years. Accordingly, resentencing is

not required. Instead, we remand for modification of defendant’s judgment of sentence to specify

that the two CSC-I sentences are to be served consecutively, but concurrently with defendant’s

sentences for CSC-III.

-11-

II. DEFENDANT’S STANDARD 4 BRIEF

A. AMENDMENT OF THE INFORMATION

Defendant argues that the prosecutor improperly amended the information to change the

date of the offenses involving AC from September 2008 to 2008 generally. Because defendant

did not object to the amendment of the information, this issue is unpreserved. Therefore, we

review the issue for plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763-

764.

The information is required to specify “[t]he time of the offense as near as may be.” MCL

767.45(1)(b). If a defendant moves for a specific time in order to meet the charge, it is within the

trial court’s discretion to determine “when and to what extent specificity will be required.” People

v Naugle, 152 Mich App 227, 233; 393 NW2d 592 (1986). Factors to consider include “(1) the

nature of the crime charged; (2) the victim’s ability to specify a date; (3) the prosecutor’s efforts

to pinpoint a date; and (4) the prejudice to the defendant in preparing a defense.” Id. In Naugle,

this Court stated that “[w]here the facts demonstrate that the prosecutor has stated the date and

time of the offense to the best of his or her knowledge after undertaking a reasonably thorough

investigation, we would be disinclined to hold that an information or bill of particulars was

deficient for failure to pinpoint a specific date.” Id. at 234. This Court rejected the defendant’s

argument that he was entitled to relief because of inconsistencies regarding the date of the charged

offense, stating

Defendant next asserts that the prosecution failed to establish the dates of

these offenses beyond a reasonable doubt. However, time is not an element of a

sexual assault offense. People v McConnell, 122 Mich App 208, 212; 332 NW2d

408 (1982), rev’d on other grounds, 420 Mich 852 (1984). Moreover, defendant’s

argument is primarily based on inconsistencies in complainant’s testimony with

respect to the dates. We note that complainant’s testimony as to dates was

corroborated by other witnesses. In any event, we believe that any inconsistencies

have affected the weight the jury chose to accord her testimony, but would not

necessarily have negated its substance. We are not prepared to assume the jury’s

role of weighing the evidence or of assessing complainant’s credibility. [Naugle,

152 Mich App at 235-236.]

In this case, defendant was similarly charged with sexual assault and the date of the alleged

assaults was not an element of the offenses. Because of the passage of time—approximately 10

years by the time of trial—AC was unable to specify a specific date of the offenses. The

prosecution was able to narrow the time period to sometime in 2008, and argued that the offenses

likely were committed after defendant’s release from jail in November 2008. Defendant never

moved for a specific time period in order to meet the charges nor argued that he was unable to

respond to the charges without further information regarding the date of the alleged offenses.

Considering these factors, defendant has not established that it was plain error to amend the

information to specify generally that the offenses involving AC were committed in 2008. Any

inconsistencies regarding dates in the testimony at trial affected only the weight of the testimony.

Therefore, defendant is not entitled to relief with respect to this unpreserved issue.

-12-

B. PROSECUTORIAL MISCONDUCT

Defendant next raises several claims of misconduct by the prosecutor during closing

argument and opening statement. Only defendant’s challenge to the remarks during opening

statement was preserved with an appropriate objection at trial. We review that preserved claim to

determine if the prosecutor’s remarks denied defendant a fair trial. Abraham, 256 Mich App at

272. Defendant’s unpreserved claims are reviewed for plain error affecting defendant’s substantial

rights. Id. at 274-275.

A prosecutor is afforded great latitude during closing argument. A prosecutor may not

make a statement of fact that is unsupported by the evidence, but she is permitted to argue the

evidence and reasonable inferences arising from the evidence in support of her theory of the case.

Bahoda, 448 Mich at 282; People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003).

A prosecutor is not required to phrase his or her arguments in the blandest of terms, but may use

“hard language” when the evidence supports it. Bahoda, 448 Mich at 282; People v Ullah, 216

Mich App 669, 678; 550 NW2d 568 (1996). It is improper for a prosecutor to express personal

knowledge or a personal belief regarding the credibility of a witness, or to vouch for the credibility

of a witness by implying some special knowledge about the witness’s truthfulness. Bahoda, 448

Mich at 276; People v Meissner, 294 Mich App 438, 456; 812 NW2d 37 (2011); People v Thomas,

260 Mich App 450, 455; 678 NW2d 631 (2004). However, a prosecutor may comment on a

witness’s credibility and argue from the evidence that a witness is credible. Id.

Defendant argues that the prosecutor improperly commented on AJ’s forensic interview

during closing argument. Although evidence was introduced that AJ participated in a forensic

interview, the contents of that interview were not introduced. During closing argument, the

prosecutor remarked that AJ had been questioned about the allegations several times and

consistently gave the same account of defendant’s conduct each time. On appeal, defendant

challenges the prosecutor’s remark that “[AJ] told grandma, told mom, told an officer, told a SANE

nurse and then ultimately came here and told twice, once at a prelim and once here, and the Weiss

interview in between, the forensic interview which we can’t share with you, but that girl all those

times said the same thing.” Defendant argues that this remark suggested that AJ’s statements

during her forensic interview were also consistent with her other statements, which was improper

because her forensic interview statements were never introduced at trial.

We agree that because the substance of AJ’s forensic interview was not introduced at trial,

it would have been improper for the prosecutor to argue that AJ’s statements during her forensic

interview were consistent with her other accounts of defendant’s conduct. However, the

prosecutor’s remarks did not clearly make that assertion. The prosecutor noted that AJ had given

accounts of defendant’s conduct on several occasions, including to her grandmother, her mother,

a police officer, a SANE nurse, and at trial and at the preliminary examination. These were all

matters of evidence at trial. The prosecutor also noted that in between these events, AJ also

attended a forensic interview. This was also a matter of evidence, it having been mentioned by

Detective Williams and by AJ on cross-examination by defense counsel. In her closing remarks,

apart from mentioning that AJ underwent a forensic interview, the prosecutor never revealed the

substance of AJ’s statements during that interview. In fact, the prosecutor specifically told the

jury that AJ’s statements during that interview could not be shared. To the extent that the

prosecutor’s comments could have been interpreted as implying that AJ’s statements during the

forensic interview were also consistent with her other statements, an appropriate instruction on

-13-

timely objection could have cured any perceived prejudice. See People v Williams, 265 Mich App

68, 70-71; 692 NW2d 722 (2005) (this Court will not reverse if the prejudicial effect of the

prosecutor’s conduct could have been cured by a timely instruction from the trial court), aff’d 475

Mich 101 (2006). Indeed, even without an objection, the trial court instructed the jury that it was

only to consider the properly admitted evidence, and that the attorney’s statements are not

evidence. These instructions, together with the prosecutor’s statement informing the jury that the

contents of AJ’s forensic interview could not be shared, should have been sufficient to protect

defendant’s substantial rights. Therefore, defendant is not entitled to appellate relief with respect

to this issue.

Further, because the challenged remarks did not involve a clear attempt to inform the jury

of the contents of AJ’s forensic interview, and the prosecutor specifically informed the jury that

the contents of that interview could not be shared, defense counsel’s failure to object to the remarks

was not objectively unreasonable. Moreover, given the trial court’s instruction that the attorneys’

statements are not evidence, defendant was not prejudiced by counsel’s failure to object.

Therefore, defendant’s related ineffective-assistance claim also cannot succeed.

Defendant also challenges the following remarks by the prosecutor during closing

argument:

And when she tells, she is still hysterical, she is still crying, and she’s telling

what happened to her grandma, and then she’s telling the same thing to her mother.

Then she’s telling that to an officer and a SANE nurse, and when she gets to that

SANE nurse, what does the nurse find that’s important? She’s got redness under

her clitoral hood and there’s no explanation for that other than somebody was

touching her there. There’s an injury that can be seen by the SANE nurse, and she

sees it, and she notes it, and it’s consistent with what this girl said happened to her.

Defendant argues that these remarks were improper because there was no evidence connecting the

redness observed by Mawhorter to the digital penetration described by AJ. We disagree. AJ told

Mawhorter that defendant digitally penetrated her vagina. Mawhorter described her findings in

her examination of AJ as follows:

Q. Okay, and you also do a physical examination to look for injury, correct?

A. Correct.

Q. And was there anything noted in this case?

A. I’m going to refer back to the report. One of the initial areas that there

was pain was just above the pelvic area. She just said she had some tenderness

when we asked her about that and it was no increase with palpation. No marks

there, and then referring to this, there was some slight redness or irritation area to

the clitoral hood.

Mawhorter agreed that the redness on the clitoral hood was evidence of trauma.

While defendant is correct that Mawhorter never testified that the redness she found was

caused by digital penetration, it was reasonable for the prosecutor to make that connection. That

-14-

is, the prosecutor could reasonably infer that the testimony regarding the trauma to the clitoral

hood was consistent with AJ’s description of defendant’s acts of digital penetration. Accordingly,

the prosecutor’s remarks were not improper. Further, because the prosecutor’s remarks were

supported by the evidence and reasonable inferences arising therefrom, defense counsel was not

ineffective for failing to object to the remarks. Any objection would have been futile. Chambers,

277 Mich App at 11.

Defendant also argues that the prosecutor made argumentative and inflammatory remarks

during opening statement. Defendant challenges the following portion of the prosecutor’s opening

statement:

When my youngest son who is 12 was probably about five or six, he went

through a phase where he was incredibly scared of monsters. They were

everywhere. They were in his closet. They were under his bed and every single

day we had to go through a ritual of getting out a blue flashlight. I don’t know how

we put it together, but we got a blue flashlight, and we need a vanilla spray, and we

need all of these things to check in all of those places to make sure that he was safe

to go to bed, and if we didn’t do it, if we skipped a step, he would toddle out and

tell us that we hadn’t done the master spray, or we hadn’t shown the blue light and

we had to start over.

As a parent, you do everything in your power to keep your kids safe, even

these things like this that are like blue flashlights and monster spray, and what do

you do as a parent when the threat isn’t just a monster—

[Defense Counsel]: Judge, I object. This is argument.

[The Prosecutor]: Your Honor, I have one sentence before I will continue.

THE COURT: I’ll overrule the objection.

[The Prosecutor]: Thank you, Your Honor. What do you do as a parent

when the threat is real? And that’s what this case is about. This case is about a real

threat in a real set of households and the common thread in those households is that

Uncle Ron has access to children.

Opening statement is the appropriate time to state the facts that the prosecutor believes will

be proven at trial. People v Ericksen, 288 Mich App 192, 200; 793 NW2d 120 (2010); People v

Moss, 70 Mich App 18, 32; 245 NW2d 389 (1976). It is apparent that the prosecutor’s story about

her son did not involve facts the prosecutor intended to introduce at trial. Contrary to what

defendant asserts, however, the remarks were not calculated to inflame the jury’s passions or to

cause the jury to be unfairly biased against defendant. They were intended only to help the jury

understand the prosecution’s theory of the case. Even if the remarks exceeded the permissible

scope of opening statement, they did not deprive defendant of a fair trial.

C. EXPERT TESTIMONY

Defendant argues that the prosecutor committed misconduct by questioning Mawhorter

about her collection of DNA samples, and the trial court erred by overruling defense counsel’s

-15-

objection to the testimony, because Mawhorter was not qualified to offer expert testimony

regarding DNA evidence. We review the trial court’s decision to allow the testimony for an abuse

of discretion. Duenaz, 306 Mich App at 90.

At trial, Mawhorter testified that during her examination of AJ, she swabbed different areas

to collect samples for DNA testing. Defendant challenges the following testimony offered by

Mawhorter on redirect examination by the prosecutor:

Q. The swabs that you talked about were the only ones that were indicated

in this case?

A. Correct.

Q. Okay, and if there was something else indicated, you would have taken

that swab too?

A. Correct.

Q. And based on your education and experience, is it—if you can answer

and, if you can’t, that’s all right, but is it—are there things that are harder to get

DNA from than other things?

[Defense Counsel]: Judge, I’m going to have to object to that. That’s a

question for an expert.

[The Prosecutor]: I can qualify her as an expert if you want to.

[Defense Counsel]: Not in DNA, you can’t.

[The Prosecutor]: Based on her education and experience, does she know

from her training as a SANE nurse if there are better percentage [sic]. That’s all

I’m asking, based on her training and experience.

THE COURT: I’ll overrule the objection.

[The Prosecutor]: Okay. Thank you.

Q. So, you can answer the question. I’ll give it to you again. This—the

indication in this case was that it was a digital penetration.

A. Yes.

Q. Based on your education and training and nothing else, is that a high

percentage shot to find some DNA or not?

A. I don’t know the exact percentage, what it would be. I know that we

have had problems and difficulties getting DNA collected from patients that we’ve

worked with.

-16-

Q. With the digital penetration?

A. With any penetration.

Q. Okay, so it’s not like a magic bullet. You don’t always get it.

A. No.

Q. Okay, and the answer was no. You shook your head, but—

A. No. Sorry.

Under MRE 702, a witness who possesses specialized knowledge that will assist the trier

of fact in understanding the evidence may be qualified as an expert on the basis of knowledge,

skill, experience, training, or education. Although Mawhorter was not qualified to testify as an

expert in the area of DNA analysis or testing, her testimony did not cover those subjects, but

instead concerned her collection of DNA samples and her knowledge of the likelihood of

recovering DNA through swabbing. Mawhorter explained that her work as a SANE nurse included

collecting DNA evidence, that she had experience collecting samples for DNA testing, and

although she was unable to offer a specific percentage, she knew from her education and

experience that it is often difficult to collect DNA in cases involving digital penetration. Given

Mawhorter’s testimony, the trial court did not abuse its discretion by allowing her limited

testimony related to the collection of DNA samples and the difficulties of collecting DNA during

examinations. Further, because this testimony was admissible, there is no merit to defendant’s

related claim of prosecutorial misconduct, which may not be based on good-faith efforts to

introduce evidence. People v Noble, 238 Mich App 647, 660-661; 608 NW2d 123 (1999).

We affirm defendant’s convictions and sentences, but remand for modification of

defendant’s judgment of sentence to specify that the CSC-I sentences are to be served

consecutively to each other, but concurrently with the CSC-III sentences. We do not retain

jurisdiction.

/s/ Cynthia Diane Stephens

/s/ David H. Sawyer

/s/ Jane M. Beckering

-17-