The opinion
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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 11, 2021
Plaintiff-Appellee,
v No. 350734
Allegan Circuit Court
ANDREW WUIS JOHNSON, LC No. 18-021747-FC
Defendant-Appellant.
Before: REDFORD, P.J., and SAWYER and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his conviction by jury of second-degree criminal sexual
conduct (CSC-II), MCL 750.520c(2)(b). The trial court sentenced defendant to 19 to 180 months’
imprisonment. We affirm.
I. BACKGROUND
One evening around Thanksgiving 2017, while the victim’s mother was out, after milking
the cows, defendant, the victim’s stepfather, sat on the couch next to her, slid his hand under her
shorts, and then “poked” her vagina. The victim did not disclose the incident to anyone until
approximately five months later, right after she returned from a spring break trip with her
biological father. Her father dropped her off at defendant’s home and that evening she asked her
mother to come to her bedroom so that she could speak to her. She told her mother that defendant
had touched her inappropriately under her clothes. Her mother took her to stay at her grandparent’s
that night. The next day, the victim told her father what happened and he took her to the police
station where Detective Craig Gardiner learned about the allegation and scheduled a forensic
interview for the victim at Safe Harbor with Alicia Deitrich. About two weeks later, the victim
attended a medical examination conducted by Dr. Yvonne Mallon.
The prosecution charged defendant with CSC-I and later amended that complaint to add a
CSC-II charge. At trial, the victim described for the jury what defendant did the night of the
incident. She explained that she did not tell anyone about the incident right away and continued
to live in her mother’s home because she felt scared and did not know what to do. Defendant
testified and denied that the incident occurred because he worked late every evening and rarely
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had an opportunity to be alone with the victim. Deitrich testified regarding the forensic interview,
and the Children’s Protective Services caseworker who investigated the victim’s allegations also
testified. Thomas Cottrell and Dr. Mallon testified as expert witnesses on behalf of the
prosecution, and Dr. Kathryn Jacobs testified as an expert witness on behalf of the defense.
Additionally, defense counsel presented several witnesses who testified about defendant’s honest
and trustworthy character. At the end of the four-day trial, the jury convicted defendant of CSC-
II. The jury found defendant not guilty of CSC-I. Defendant moved for a new trial, claiming that
Dr. Mallon had impermissibly vouched for the victim’s credibility, but the trial court denied
defendant’s motion. Defendant now appeals.
II. STANDARDS OF REVIEW
We review for an abuse of discretion the trial court’s admission of evidence. People v
Duenaz, 306 Mich App 85, 94; 854 NW2d 531 (2014). We also review for an abuse of discretion
a trial court’s decision to grant or deny a motion for a new trial. People v Johnson, 502 Mich 541,
564; 918 NW2d 676 (2018). A trial “court abuses its discretion when it chooses an outcome that
is outside the range of reasonable and principled outcomes.” People v Waclawski, 286 Mich App
634, 645; 780 NW2d 321 (2009) (citation omitted). “To preserve an evidentiary issue for review,
a party opposing the admission of evidence must object at trial and specify the same ground for
objection that it asserts on appeal.” People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67
(2001), citing MRE 103(a)(1). We review unpreserved evidentiary issues for plain error affecting
the defendant’s substantial rights. In People v Carines, 460 Mich 750, 763-764, 774; 597 NW2d
130 (1999) (quotation marks, alteration, and citations omitted) our Supreme Court clarified the
appropriate standard of review:
To avoid forfeiture under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights. The third requirement generally requires a
showing of prejudice, i.e., that the error affected the outcome of the lower court
proceedings. It is the defendant rather than the Government who bears the burden
of persuasion with respect to prejudice. Finally, once a defendant satisfies these
three requirements, an appellate court must exercise its discretion in deciding
whether to reverse. Reversal is warranted only when the plain, forfeited error
resulted in the conviction of an actually innocent defendant or when an error
seriously affected the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence.
III. ANALYSIS
A. ADMISSION OF DR. MALLON’S EXPERT TESTIMONY
Defendant first argues that Dr. Mallon improperly vouched for the credibility of the victim
entitling him to a new trial. We disagree.
Under MRE 702, expert witness testimony is permitted,
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
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fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
MRE 704 provides that “[t]estimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of
fact.” “[I]t is improper for a witness or an expert to comment or provide an opinion on the
credibility of another person while testifying at trial.” People v Musser, 494 Mich 337, 349; 835
NW2d 319 (2013) (citation omitted). Jurors, not expert witnesses, make credibility
determinations. Id. at 348-349; People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007).
A physician or medical expert may not opine whether a complainant was sexually assaulted
when the expert’s opinion is based on the expert’s assessment of the complainant’s truthfulness or
when the expert’s opinion is based only on what the complainant told the medical expert. People
v Thorpe, 504 Mich 230, 255; 934 NW2d 693 (2019). “Nonetheless, an examining physician, if
qualified by experience and training relative to treatment of sexual assault complainants, can opine
with respect to whether a complainant had been sexually assaulted when the opinion is based on
physical findings and the complainant’s medical history.” Id. Although an expert may not testify
that sexual abuse occurred and may not vouch for the veracity of a victim or whether the defendant
is guilty,
(1) an expert may testify in the prosecution’s case in chief regarding typical and
relevant symptoms of child sexual abuse for the sole purpose of explaining a
victim’s specific behavior that might be incorrectly construed by the jury as
inconsistent with that of an actual abuse victim, and (2) an expert may testify with
regard to the consistencies between the behavior of the particular victim and other
victims of child sexual abuse to rebut an attack on the victim’s credibility. [People
v Peterson, 450 Mich 349, 352-353; 537 NW2d 857 (1995), amended 450 Mich
121 (1995).]
In Peterson, our Supreme Court held
[T]he prosecution may present evidence, if relevant and helpful, to generally
explain the common postincident behavior of children who are victims of sexual
abuse. The prosecution may, in commenting on the evidence adduced at trial, argue
the reasonable inferences drawn from the expert’s testimony and compare the
expert testimony to the facts of the case. Unless a defendant raises the issue of the
particular child victim’s postincident behavior or attacks the child’s credibility, an
expert may not testify that the particular child victim’s behavior is consistent with
that of a sexually abused child. Such testimony would be improper because it
comes too close to testifying that the particular child is a victim of sexual abuse.
[Id. at 373-374.]
In Thorpe, our Supreme Court reiterated that “an examining physician cannot give an
opinion on whether a complainant had been sexually assaulted if the conclusion [is] nothing more
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than the doctor’s opinion that the victim had told the truth.” Thorpe, 504 Mich at 255 (quotation
marks and citation omitted; alteration in original). “Nonetheless, an examining physician, if
qualified by experience and training relative to treatment of sexual assault complainants, can opine
with respect to whether a complainant had been sexually assaulted when the opinion is based on
physical findings and the complainant’s medical history.” Id. (citation omitted).
Defendant challenges Dr. Mallon’s testimony because she testified that she diagnosed the
victim with suspected pediatric sexual abuse even though her examination of the victim yielded
no physical findings. The prosecution never asked Dr. Mallon regarding the victim’s diagnosis or
for an opinion whether the victim had been abused. The record, however, reveals that defense
counsel elicited Dr. Mallon’s testimony regarding the diagnosis. Further, during closing argument,
defense counsel, not the prosecution, reemphasized Dr. Mallon’s diagnosis.
In People v Beckley, 434 Mich 691, 731-732; 456 NW2d 391 (1990), our Supreme Court
considered a very similar trial occurrence and explained:
This is an example of a line of questioning which, on direct examination,
would be inappropriate. However, it was defense counsel who opened the door to
this line of questioning and who elicited this response from the testifying expert.
Defendant’s question was direct, and he left open the possibility that the expert
would respond negatively and in a manner that could be construed as an expert
conclusion with regard to the truthfulness of the victim’s allegations. On direct
examination, similar testimony crosses the line of acceptability, yet in this case
reversal is not required in view of the fact that the response was brought out by
defendant. Defendant cannot now complain that the expert’s testimony served to
vouch for the complainant’s credibility when he allowed and in fact drew out the
response. To hold otherwise would allow defendant an appellate parachute to
escape conviction because of damaging testimony that turns the tide toward the
believability of the complainant’s allegations.
Therefore, because defendant elicited the testimony in this case about which he now complains,
he is not entitled to reversal of his conviction. Further, the trial court did not abuse its discretion
by denying defendant’s motion for a new trial in which defendant argued this same issue.
Defendant also challenges Dr. Mallon’s testimony regarding the normalcy of child sexual
abuse victims having normal physical examinations, on the ground that such testimony improperly
vouched for the victim. In People v Del Cid (On Remand), 331 Mich App 532, ___; ___ NW2d
___ (2020) (Docket No. 342402); slip op at 9 n 6, this Court explained:
To be clear, when there are no physical findings, a physician may not testify
that the complainant suffered “possible pediatric sexual abuse” or other phrases
indicating a conclusion as to the likelihood that such abuse actually occurred. At
the same time, however, a medical expert may offer the opinion that a lack of
physical findings does not affirmatively establish that no abuse occurred.”
In this case, close analysis of Dr. Mallon’s testimony does not support defendant’s
contention that she vouched for the victim. On direct examination Dr. Mallon testified that she
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found no physical injury based upon the victim’s physical examination. On cross-examination,
Dr. Mallon explained that she did not expect physical findings based upon the victim’s description
of the incident and because of the extended length of time since the incident. Dr. Mallon stated
that sometimes she did find physical findings when examining children who alleged that they had
been sexually abused. Defense counsel asked her, “And what percentage of the cases you examine
do you find no physical findings such as this?” Dr. Mallon responded that probably 75% to 80%
of the children that she examined had no physical findings and clarified that even most of her
examinations involving digital or penal penetration allegations were normal. Nevertheless, she
still performed physical examinations because sometimes she did find injuries that needed to be
evaluated and treated. After defense counsel asserted that Dr. Mallon found no physical findings
and inquired whether she diagnosed suspected sexual abuse, Dr. Mallon responded affirmatively
and agreed with defense counsel’s conclusion that she based her diagnosis on the victim’s
statements. The record establishes that defense counsel elicited Dr. Mallon’s testimony about
which defendant now takes issue. Therefore, defendant’s challenges to Dr. Mallon’s testimony
fail and he is not entitled to a new trial. We are also not persuaded that Thorpe requires a different
conclusion because defendant cannot obtain relief on the basis of testimony that defense counsel
elicited from the expert witness that the prosecution specifically avoided. Beckley, 434 Mich
at 731-732.
Defendant argues further that his counsel provided him ineffective assistance by asking Dr.
Mallon about the victim’s diagnosis. Defendant did not raise this issue before the trial court and
failed to move for a new trial or evidentiary hearing on the ground that his counsel provided
ineffective assistance. When a defendant fails to move “for a new trial or an evidentiary hearing,
this Court’s review is limited to mistakes apparent from the record.” People v Heft, 299 Mich App
69, 80; 829 NW2d 266 (2012). The defendant has the burden of establishing that his counsel
denied him effective assistance. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). The
defendant must “show (1) that trial counsel’s performance was objectively deficient, and (2) that
the deficiencies prejudiced the defendant.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249
(2018). For the first requirement, the defendant “must overcome the strong presumption that
counsel’s performance was born from a sound trial strategy.” People v Trakhtenberg, 493 Mich
38, 52; 826 NW2d 136 (2012). The defendant must show that defense counsel’s actions were not
a “result of reasonable professional judgment.” Strickland v Washington, 466 US 668, 690; 104 S
Ct 2052; 80 L Ed 2d 674 (1984). “Decisions regarding what evidence to present, whether to call
witnesses, and how to question witnesses are presumed to be matters of trial strategy, as is a
decision concerning what evidence to highlight during closing argument.” People v Horn, 279
Mich App 31, 39; 755 NW2d 212 (2008) (citations omitted). This Court must not “substitute [its]
judgment for that of counsel on matters of trial strategy” or “use the benefit of hindsight when
assessing counsel’s competence.” People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272
(2008) (citation omitted). For the second requirement, the defendant “must show that, but for
counsel’s deficient performance, a different result would have been reasonably probable.” People
v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011).
In this case, close analysis of defense counsel’s cross-examination of Dr. Mallon and
defense counsel’s closing argument indicate that defense counsel strategically defended defendant
by attacking Dr. Mallon’s credibility and diagnostic conclusions by emphasizing that the victim’s
examination yielded no physical evidence whatsoever. Defense counsel argued that Dr. Mallon’s
conclusions were based only on the victim’s statements and nothing more. Defense counsel’s
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emphasis on the lack of physical evidence and inability to confirm that actual sexual abuse
occurred served to cast doubt upon the victim’s allegations against defendant. Although defendant
now questions defense counsel’s strategy, we “will not substitute our judgment for that of counsel
on matters of trial strategy” or “use the benefit of hindsight when assessing counsel’s competence.”
Unger, 278 Mich App at 242-243. Defendant has failed to overcome the strong presumption that
defense counsel engaged in strategic action directed to persuade the jury to reasonably doubt
defendant’s guilt of the charged offenses. Id. at 243. Even assuming that defense counsel
performed deficiently, we are not persuaded that but for defense counsel’s alleged errors, the result
of defendant’s trial would have been different. Id. The jury heard the victim’s testimony,
defendant’s testimony, the testimonies of witnesses regarding how the victim’s allegations were
not corroborated, and also testimonies from witnesses about defendant’s character for truthfulness.
The record indicates that the jury decided which witnesses to believe and what facts occurred. The
jury convicted defendant of CSC-II despite the prosecution’s efforts to convince them to convict
defendant of CSC-I. The record does not indicate that a different result would have been
reasonably probable.
Defendant argues next that the trial court abused its discretion by permitting Dr. Mallon to
testify at trial regarding statements the victim made to her during the physical examination. We
disagree.
MRE 801(c) defines hearsay 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 802 provides that hearsay is inadmissible unless permitted under the evidence rules.
MRE 803 provides specific exceptions to that general rule. Under MRE 803(4), “[s]tatements
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.”
“The rationale for MRE 803(4) is the existence of (1) the self-interested motivation to
speak the truth to treating physicians in order to receive proper medical care, and (2) the reasonable
necessity of the statement to the diagnosis and treatment of the patient.” People v Shaw, 315 Mich
App 668, 674; 892 NW2d 15 (2016) (quotation marks and citation omitted). “This is true
irrespective of whether the declarant sustained any immediately apparent physical injury.” People
v Mahone, 294 Mich App 208, 215; 816 NW2d 436 (2011). Additionally,
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.]
“Further, when the patient is over ten years old, as here, a rebuttable presumption of truthfulness
arises.” People v Crump, 216 Mich App 210, 212; 549 NW2d 36 (1996) (citation omitted).
Factors related to trustworthiness guarantees surrounding the actual making of the
statement include: (1) the age and maturity of the declarant, (2) the manner in which
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the statements are elicited (leading questions may undermine the trustworthiness of
a statement), (3) the manner in which the statements are phrased (childlike
terminology may be evidence of genuineness), (4) use of terminology unexpected
of a child of similar age, (5) who initiated the examination (prosecutorial initiation
may indicate that the examination was not intended for purposes of medical
diagnosis and treatment), (6) the timing of the examination in relation to the assault
(the child is still suffering pain and distress), (7) the timing of the examination in
relation to the trial (involving the purpose of the examination), (8) the type of
examination (statements made in the course of treatment for psychological
disorders may not be as reliable), (9) the relation of the declarant to the person
identified (evidence that the child did not mistake the identity), and (10) the
existence of or lack of motive to fabricate. [People v Meeboer (After Remand), 439
Mich 310, 324-325; 484 NW2d 621 (1992) (citations omitted).]
In Meeboer, our Supreme Court clarified that in cases of suspected or alleged child abuse, a trial
court should consider the totality of the circumstances to determine the trustworthiness of a child’s
statement and whether the child understood the importance of telling the treating physician the
truth. Id. at 325-326.
Regarding the reasonable necessity of the statements, information regarding the declarant’s
physical and psychological injuries can be reasonably necessary for medical diagnosis and
treatment of the declarant’s trauma. Id. at 328-329. Medical diagnosis and treatment of a victim
involve treatment of her medical, physical, developmental, and psychological well-being. Id.
at 329. Questions and discussion regarding the identity of the perpetrator may be reasonably
necessary as it relates to the diagnosis and treatment of diseases, pregnancy, and the psychological
impact of the abuse. Id. at 328-329. Disclosing the identity of the perpetrator itself can be a
portion of the injury that a victim experiences from a sexual assault. Id. at 329.
In this case, the victim’s statements were admissible under MRE 803(4) because the record
does not support defendant’s contention that Dr. Mallon was “an agent or arm of the police,” or
that the examination was done at the request of the prosecution or law enforcement. The forensic
interview was clearly part of law enforcement’s investigation into this case. The victim’s medical
examination, however, did not have the same law enforcement connection. Unlike the forensic
interview, the record does not indicate that Detective Gardiner referred the victim to or attended
the medical examination. See Shaw, 315 Mich at 675. See also Duenaz, 306 Mich App at 96. Dr.
Mallon explained at trial that she worked for the Helen DeVos Children’s Hospital and that Safe
Harbor sent her referrals for examinations when it had “concerns of child abuse or suspected child
abuse” after performing a forensic interview. Dr. Mallon also explained that she independently
conducted her own interview and gathered her own medical history of the children. Further, she
testified that she asked open-ended questions to build rapport and gather information from the
patient to determine the scope of physical examination and medical testing.
Dr. Mallon’s testimony establishes that the victim’s statements were for the purpose of
medical treatment or diagnosis provided in the child’s own terms. Dr. Mallon explained that she
started all her examinations by getting the child’s medical history to determine the child’s concern
and what she needed to do during the physical examination. The child’s medical history also
helped Dr. Mallon determine whether she needed to do any laboratory testing for sexually
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transmitted diseases. After obtaining the child’s medical history, Dr. Mallon conduct a full
physical examination of the patient for injuries and to determine the necessity of further testing.
Dr. Mallon explained that she followed this protocol with the victim in this case. Dr. Mallon also
testified that medical diagnosis and treatment served the primary purpose of the examination in
this case.
The record does not indicate that the victim saw any other physician before seeing Dr.
Mallon regarding the alleged sexual abuse. See Shaw, 315 Mich at 67. Further, the statements
that Dr. Mallon repeated at trial regarding the medical history she obtained from the victim at the
time of the examination were simply repetitive of the statements of the incident that the victim
testified about at trial. See Crump, 216 Mich App at 212. Therefore, the trial court did not abuse
its discretion by permitting Dr. Mallon to testify regarding the victim’s statements during the
examination as permitted under MRE 803(4).
B. ADMISSION OF COTTRELL’S EXPERT TESTIMONY
Defendant argues next that Cottrell’s testimony regarding delayed reporting improperly
bolstered the credibility of the victim. We disagree.
In Peterson, 450 Mich at 352-353, our Supreme Court clarified that an expert witness may
testify about the following:
(1) an expert may testify in the prosecution’s case in chief regarding typical and
relevant symptoms of child sexual abuse for the sole purpose of explaining a
victim’s specific behavior that might be incorrectly construed by the jury as
inconsistent with that of an actual abuse victim, and (2) an expert may testify with
regard to the consistencies between the behavior of the particular victim and other
victims of child sexual abuse to rebut an attack on the victim’s credibility.
In this case, Cottrell provided testimony that was “relevant and helpful, to generally explain
the common postincident behavior of children who are victims of sexual abuse.” Id. at 373.
Cottrell testified generally about child victim disclosure of sexual abuse, how they decide to
disclose, how they may act in the meantime, to whom they disclose, and how they may describe
the sexual abuse in different situations. See id. at 379. Such testimony assisted the jury in this
case because the victim disclosed the abuse approximately five months after it occurred and, in the
meantime, she continued to live with defendant and her mother.
Cottrell did not testify regarding the victim’s behavior in this case and whether the victim’s
behavior was “consistent with that of a sexually abused child.” Id. 450 at 374. Cottrell admitted
that he had no specific knowledge of the facts surrounding this case, and he simply provided a
general overview of what child sexual abuse victims may or may not do. He did not know what
testimony he provided applied to the victim. He only provided general background information
on child sexual abuse and delayed disclosure so that the jury could evaluate the testimonies of the
other witnesses including the victim. See id. at 380. Cottrell did not impermissibly bolster the
credibility of the victim. Therefore, the trial court did not abuse its discretion by permitting Cottrell
to testify in this case.
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C. LIMITATION OF DR. JACOBS’ EXPERT TESTIMONY
Defendant also argues that the trial court abused its discretion by refusing to permit Dr.
Jacobs to testify regarding the forensic interview protocol used in the victim’s forensic interview.
We disagree.
Defendant sought to introduce Dr. Jacobs’ opinion testimony regarding the forensic
interview of the victim conducted in this case. The trial court declined to permit such testimony
because, among other things, Dr. Jacobs’ testimony would involve inadmissible hearsay including
statements of the victim and the interviewer during the forensic interview. Defendant intended for
Dr. Jacobs to testify how the forensic interview was not properly conducted and explain why. The
trial court concluded that to do so she would have to discuss the specific questions asked and
answered during the interview. The trial court ruled that an expert witness could testify regarding
forensic interview protocols but not regarding the actual forensic interview performed in this case.
The trial court expressed concern that testimony regarding whether the actual forensic interview
had been performed properly would improperly involve testimony regarding the credibility of the
victim which was solely for the jury to decide. Therefore, the trial court limited Dr. Jacobs’
testimony precluding her from testifying regarding the victim’s specific forensic interview. The
trial court qualified Dr. Jacobs as a clinical psychologist, but she was not qualified as an expert in
forensic interviewing because she had never participated in the training and had never performed
any forensic interviewing “pursuant to the training.” She could, however, testify regarding “other
areas of expertise.”
The record reflects that Dr. Jacobs testified generally about forensic interview protocols
and the importance of obtaining accurate and complete information from children. Dr. Jacobs
testified that children needed “to learn how to keep track of what they know from where. Whether
it was something they guessed or dreamt about or saw on a TV show or on the news” and the
forensic interview protocol was “developed to try and get the best information from kids without
screwing up by adding or changing or misperceiving or influencing, even unintentionally, what
comes out of the child’s mouth.” Dr. Jacobs testified that children enhanced their stories and
interviewers could elicit false or inaccurate information by asking the wrong questions. Dr. Jacobs
explained that she did not testify as a clinician but focused her testimony on her “experience in
reading journals and attending conferences and completing [her] dissertation and consulting with
other professions. And reading the research on forensic interviewing and testifying about it and
presenting it.”
The record indicates that the trial court gave Dr. Jacobs significant latitude. The trial court
merely limited her from improperly introducing hearsay and rendering an opinion regarding the
veracity of the victim’s statements during the forensic interview. Defendant points to no authority
that supports his argument that the excluded testimony should have been admitted and he has failed
to reference any hearsay exception that would permit its introduction. We find no merit to
defendant’s argument that the trial court erred in this regard.
D. DENIAL OF DEFENDANT’S MOTION FOR NEW TRIAL
Defendant reiterates his arguments respecting the trial court’s errors in permitting Dr.
Mallon to testify in relation to his claim that the trial court erred by not granting him a new trial.
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For the reasons set forth previously in this opinion, the trial court did not abuse its discretion by
permitting Dr. Mallon to testify as an expert in this case regarding matters within her expertise and
her conduction of the physical examination of the victim in this case. The grounds that defendant
asserts entitling him to a new trial lack merit. Accordingly, defendant could not establish
entitlement to a new trial and the trial court did not abuse its discretion by denying his motion.
Affirmed.
/s/ James Robert Redford
/s/ David H. Sawyer
/s/ Mark T. Boonstra
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