People of Michigan v. Robert Lee Parney ( 2021 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 2, 2021
Plaintiff-Appellee,
v No. 353354
Ottawa Circuit Court
ROBERT LEE PARNEY, LC No. 19-043045-FC
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and BECKERING and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his convictions by a jury of first-degree criminal sexual
conduct (CSC-I), MCL 750.520b(1)(b) (sexual penetration with a blood relative or household
member between the ages of 13 and 16); CSC-I, MCL 750.520b(2)(b) (sexual penetration of a
person less than 13 years of age by a person 17 years of age or older); second-degree criminal
sexual conduct (CSC-II), MCL 750.530c(1)(b) (sexual contact with a blood relative or household
member between the ages of 13 and 16); and CSC-II, MCL 750.520c(2)(b) (sexual contact of a
person less than 13 years of age by a person 17 years of age or older). The trial court sentenced
defendant to concurrent sentences of 210 to 480 months’ imprisonment, 300 to 900 months’
imprisonment, 120 to 180 months’ imprisonment, and 120 to 180 months’ imprisonment,
respectively. We affirm.
I. BACKGROUND AND TRIAL
Defendant sexually assaulted the victim, his cousin, who turned fourteen years old a few
days before trial, on multiple occasions when the victim was twelve and thirteen years old. The
victim testified that she knew defendant as “Uncle Bob,” and in 2018, he moved into the house in
which the victim was living with her mother, her stepsister, and her stepfather. The victim initially
regarded the situation as “awkward,” in part because she did not previously know defendant. Their
relationship was initially “a bit distant,” but they became closer when defendant took up buying
the victim gifts and taking her out to get breakfast in exchange for defendant touching the victim’s
vaginal area. The victim testified that defendant told her not to tell anyone else and that “adults
would believe [him] over [her].” On one occasion, before the victim’s thirteenth birthday,
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defendant entered her bedroom, climbed into her bed, and got behind her. He then put his hand
into her pants and inserted his fingers into her vagina. After he assaulted her, he said, “I swear, if
this—if anyone finds thing—out about this, no one will believe you. And I’d probably kill myself
before—and hurt you.” The victim testified that this abuse continued after her thirteenth birthday
and that defendant would use his tongue on her vaginal area, would watch her get dressed in the
morning, and would frequently “cuddle” her in bed.
After the victim disclosed the abuse, Children’s Protective Services (CPS) visited her home
and referred her to the Children’s Advocacy Center (CAC) of Ottawa County. CAC referred the
victim to Dr. Yvonne Mallon, a pediatrician, for a medical forensic examination. Dr. Mallon was
qualified as an expert in child abuse pediatrics with no objection. She testified that her procedure
was to meet with children alone and ask them open-ended questions to obtain a medical history
before conducting a physical examination, and she explained that both “medical history and
physical examination is all important in diagnosis and treatment.” Dr. Mallon testified that the
victim was “very open” and told her the following during the pre-examination interview:
She stated that three months prior to the examination that a person came into her
room at night and—while she was sleeping, and she woke up to him putting her—
his hands up her shirt, underneath her shirt, and touching her breast. She then stated
to me that this person pulled down her pants and her underwear and touched her
privates, which is what she referred to as her female genitalia; he touched her
privates with his hands, and then he licked her privates with his mouth.
Dr. Mallon also testified that the victim said “that she tried to slap his head to stop it.” Dr. Mallon
explained that the physical examination only revealed “a non-specific finding,” which she
considered normal under the circumstances. On cross-examination, Dr. Mallon agreed that her
findings could “neither confirm nor rule out” whether the victim had actually suffered any sexual
abuse. Dr. Mallon did not offer any diagnosis, and she emphasized that she “can’t say if [the
victim] made it up or not.” Pursuant to an earlier evidentiary ruling1 by the trial court, Dr. Mallon
did not state that the victim had identified defendant as “the person” who had assaulted her.
During opening statement, defense counsel told the jury, among other things, that
defendant would testify that he moved into the house to help the victim’s mother pay the rent and
for other household expenses, and the situation appeared to be “going very well until he started
telling [the victim’s mother] that he was going to call Protective Services because it – that place
was filthy” and lacked heat. Defense counsel also urged the jury to pay close attention to the
recording of the police interview with defendant, which was in fact played for the jury. Defense
counsel also emphasized that the timing of the victim’s disclosure was suspicious and the victim’s
descriptions of what occurred were inconsistent with each other and with the evidence. On the
1
Before trial, the prosecution moved to admit Dr. Mallon’s testimony pursuant to MRE 803(4).
After holding a hearing, the trial court ruled that the victim’s statements describing the nature of
the assault to Dr. Mallon were admissible as having been made for, and reasonably necessary to,
the victim’s diagnosis and treatment. However, the trial court also ruled that the “the victim’s
statement identifying defendant as her assailant was not necessary to her diagnosis or treatment,”
so that part of the victim’s statement to Dr. Mallon would not be admissible.
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last day of trial, after the prosecution rested, defense counsel explained to the trial court, outside
the jury’s presence, that he had “discussed this matter with my client; he’s elected not to testify
today.” Defendant was placed under oath, and both the trial court and defense counsel explained
to defendant that he had an absolute right to testify. Defendant confirmed that it was his own
choice not to testify. The prosecution initially objected that because defendant did not testify, the
defense had failed to present a witness referenced during opening statement. The prosecution
requested, and was granted, an opportunity to research whether a limiting instruction would be
appropriate.2 However, after performing the requested research, the prosecution abandoned that
objection.
A jury found defendant guilty as described earlier, and this appeal followed.
II. ADMISSION OF DR. MALLON’S TESTIMONY
Defendant first argues that he was denied a fair trial when the trial court erred by
improperly admitting Dr. Mallon’s testimony pursuant to MRE 803(4). We disagree.
A. STANDARD OF REVIEW AND PRINCIPLES OF LAW
The trial court ruled that Dr. Mallon’s testimony was admissible at a pretrial hearing, over
defendant’s objections and argument. “We review preserved claims of evidentiary error for an
abuse of discretion.” People v Bergman, 312 Mich App 471, 482; 879 NW2d 278 (2015). “The
decision to admit evidence is within the trial court’s discretion and will not be disturbed unless
that decision falls outside the range of principled outcomes.” People v Thorpe, 504 Mich 230,
252; 934 NW2d 693 (2019). “[A] preserved, nonconstitutional error is not a ground for reversal
unless after an examination of the entire cause, it shall affirmatively appear that it is more probable
than not that the error was outcome determinative.” People v Lukity, 460 Mich 484, 496; 596
NW2d 607 (1999) (quotation marks and citation omitted). “A decision on a close evidentiary
question ordinarily cannot be an abuse of discretion.” Thorpe, 504 Mich at 252. Conversely, it is
necessarily “an abuse of discretion to admit evidence that is inadmissible as a matter of law.”
Lukity, 460 Mich at 488. Nevertheless, even if evidence is erroneously admitted, reversal will not
be warranted if the erroneously-admitted evidence was harmless. Id. at 491-497.
Hearsay 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.” MRE 801(c). In
general, hearsay is inadmissible. MRE 802. However, the Michigan Rules of Evidence provide
exceptions that allow hearsay to be admissible. Relevant to this case, MRE 803(4) provides that
statements made for the following purposes are admissible even if they would otherwise be
excluded by MRE 802:
2
This was presumably a reference to the general principle that, if a prosecutor promises during
opening statement to produce evidence that is ultimately not presented, reversal may be warranted
if the prosecutor’s promise had been made in bad faith. See People v Wolverton, 227 Mich App
72, 75-77; 574 NW2d 703 (1997).
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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
considered the applicability of MRE 803(4) in the context of sexual assault examinations, and it
explained:
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. [Citations omitted.]
B. ANALYSIS
As discussed, Dr. Mallon explained that taking a medical history from a victim was an
important and standard part of her examination process. Furthermore, she explained that after the
physical examination, she would either tell the child that injuries or abnormalities had been found,
or she would “reaffirm to them that their body is okay and normal.” Dr. Mallon also performed a
swab of the victim to test for disease because the victim disclosed the assault to her. Therefore,
the victim’s statements were reasonably necessary for diagnosis and treatment of her injuries that
were latent and not physically observable. See Mahone, 294 Mich App at 214-215. The victim’s
recitation of the totality of the circumstances of the assault, with the omission of any identification
by the victim of the perpetrator, were properly considered to be statements made for medical
treatment. See id.
Defendant relies on People v Shaw, 315 Mich App 668; 892 NW2d 15 (2016), for the
proposition that MRE 803(4) does not permit an examiner’s testimony about the complainant’s
statements when the complainant had only visited the examiner pursuant to a police investigation.
In Shaw, 315 Mich App at 671, the victim, who was then 23 years old, reported that her stepfather
had sexually assaulted her on multiple occasions when she had been between the ages of 8 and 16.
After reporting the sexual assault to the police, the victim was referred to Dr. Stephen Guertin for
a forensic physical examination. Id. at 674-675. Dr. Guertin testified at trial and recounted the
victim’s statements to him about the abuse. Id. The defense counsel did not object to Dr. Guertin’s
testimony and defendant appealed, arguing that he received ineffective assistance of counsel
because Dr. Guertin’s testimony was inadmissible hearsay and that MRE 803(4) did not apply. Id.
at 674. This Court held that MRE 803(4) did not apply under those circumstances because the
victim was not examined by Dr. Guertin until seven years after the last alleged instance of abuse,
the victim did not seek Dr. Guertin out for gynecological services but was rather referred to
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Dr. Guertin by the police in conjunction with an investigation, and the victim had already visited
another gynecologist for treatment in the seven years between the last alleged instance of abuse
and her visit to Dr. Guertin. Id. at 675-676.
However, Shaw is distinguishable from the present case. The Shaw Court did not rule that
MRE 803(4) was not applicable on the sole basis that the victim had visited Dr. Guertin in
connection with a police investigation; it also considered that the victim had visited other
gynecologists for medical treatment and she did not visit Dr. Guertin until seven years after the
last reported incident. Although the victim in this case was referred to Dr. Mallon after a
consultation with CAC, she visited Dr. Mallon within three months after the last reported assault
and there was no evidence to conclude that the victim had seen other treating physicians for a
medical diagnosis related to the sexual assault.
Furthermore, “[t]he 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.” Id.
at 674 (quotation marks and citation omitted). Factors that may be part of a trustworthiness
analysis include:
(1) the age and maturity of the declarant, (2) the manner in which 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, 439 Mich 310, 324-325, 484 NW2d 621 (1992), (citations
omitted).]
The victim was 13 years old when Dr. Mallon examined her and was capable of
understanding the importance of disclosing her incident truthfully in order to receive proper
medical care; Dr. Mallon testified that she asked the victim open-ended questions; the victim had
phrased her statements to Dr. Mallon with terminology like “privates,” which was consistent with
the terminology of a child of a similar age; and, even though defendant states that the victim had
a reason to lie, no motive was presented to establish that the victim was fabricating her statements
to Dr. Mallon. “Although the prosecution initiated the examination and it may have been at least
in part to investigate an alleged sexual assault, this factor is not dispositive.” People v Duenaz,
306 Mich App 85, 96; 854 NW2d 531 (2014).
The factors and circumstances in this case support the admission of the victim’s statements
to Dr. Mallon under MRE 803(4). The trial court also considered all of these factors and
circumstances. Therefore, trial court’s decision to admit Dr. Mallon’s testimony did not fall
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outside the range of principled outcomes, and the trial court did not abuse its discretion. See
Thorpe, 504 Mich at 252. In addition, we note that Dr. Mallon never purported to offer any kind
of diagnosis, let alone a diagnosis based solely upon the victim’s statements. Rather, Dr, Mallon
emphasized that she did not know whether the victim was being truthful, it was not her role to
make such an assessment, and no such assessment could be made from her physical findings. Cf.,
People v Del Cid (On Remand), 331 Mich App 532, 542-551; 953 NW2d 440 (2020). Even if Dr.
Mallon’s testimony had been improperly admitted, we are not persuaded that it is “more probable
than not” that her testimony affected the outcome of the proceedings. See Lukity, 460 Mich at
495-497.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he received ineffective assistance of counsel when defense
counsel promised, during opening statement, that defendant would testify, even though defendant
never later testified. We disagree.
A. STANDARD OF REVIEW AND PRINCIPLES OF LAW
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). We
review the trial court’s factual findings for clear error, and we review questions of law de novo.
Id. “Clear error exists if the reviewing court is left with a definite and firm conviction that a
mistake has been made.” People v Harris, 261 Mich App 44, 51; 680 NW2d 17 (2004).
“Defendant failed to preserve this issue by moving in the trial court for a new trial or an evidentiary
hearing,” People v Head, 323 Mich App 526, 538-539; 917 NW2d 752 (2018), or “by filing in this
Court a motion for remand to the trial court for a [People v] Ginther[, 390 Mich 436; 212 NW2d
922 (1973)] hearing,” People v Abcumby-Blair, ___ Mich App ___, ___; ___ NW2d ___ (2020)
(Docket No. 347369), slip op at p 8. “This Court reviews an unpreserved ineffective-assistance-
of-counsel claim for errors apparent on the record.” People v Hieu Van Hoang, 328 Mich App 45,
63; 935 NW2d 396 (2019).
To establish that defense counsel was ineffective, defendant must demonstrate that
“(1) counsel’s performance was below an objective standard of reasonableness under prevailing
professional norms and (2) there is a reasonable probability that, but for counsel’s error, the result
of the proceedings would have been different.” People v Lockett, 295 Mich App 165, 187; 814
NW2d 295 (2012); see also Strickland v Washington, 466 US 668, 689-696; 104 S Ct 2052; 80 L
Ed 2d 674 (1984). “In examining whether defense counsel’s performance fell below an objective
standard of reasonableness, a 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). “[A] court must determine whether the strategic choices were made after less
than complete investigation, and any choice is reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. (quotation marks and citation
omitted). A defendant may meet the burden of showing that a different result would have been
reasonably probable, but for defense counsel’s error, “even if the errors of counsel cannot be shown
by a preponderance of the evidence to have determined the outcome.” Strickland, 466 US at 694.
“Where there is relatively little evidence to support a guilty verdict to begin with (e.g., the
uncorroborated testimony of a single witness), the magnitude of errors necessary for a finding of
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prejudice will be less than where there is greater evidence of guilt.” Trakhtenberg, 493 Mich at 56
(quotation marks and citations omitted).
B. ANALYSIS
Defendant relies on United States ex rel Hampton v Leibach, 347 F3d 219, 259-260 (CA 7,
2003); McAleese v Mazurkiewicz, 1 F3d 159, 166-167 (CA 3, 1993); and Anderson v Butler, 858
F2d 16 (CA 1, 1988), for the proposition that defense counsel may perform deficiently by
promising in an opening statement more than they deliver at trial.3 “[W]hen the failure to present
the promised testimony cannot be chalked up to unforeseeable events, the attorney’s broken
promise may be unreasonable, for little is more damaging than to fail to produce important
evidence that had been promised in an opening.” US ex rel Hampton, 347 F3d at 257. This has
been held to be especially true when it concerns defendant’s own testimony:
When a jury is promised that it will hear the defendant’s story from the defendant’s
own lips, and the defendant then reneges, common sense suggests that the course
of trial may be profoundly altered. A broken promise of this magnitude taints both
the lawyer who vouchsafed it and the client on whose behalf it was made. [Ouber
v Guarino, 293 F3d 19, 28 (CA 1, 2002).]
However, “only the most inexcusable [missteps] will support a finding that counsel’s performance
was so substandard as to compromise a defendant’s . . . right to proficient legal representation.”
Id. at 27.
Defendant contends that there were no unforeseen circumstances that would have
reasonably justified defense counsel’s failure to fulfill the promise he made in his opening
statement. We question the reasonableness of that assertion. The strong inference from the record
is that defendant was expected to testify when defense counsel made his opening statement, and
defendant made the unilateral decision not to testify at the end of the prosecution’s case. As was
explained to defendant, it was his right, and his right alone, to choose whether to testify. Defense
counsel could not have forced defendant to testify. It is therefore questionable that the discrepancy
between defense counsel’s seemingly-reasonable expectations during opening statement and
defendant’s actual lack of testimony can be considered a “broken promise” entirely attributable to
defense counsel. In stark contrast to the situation in this case, in Ouber, the petitioner’s attorney
advised the petitioner not to testify after having repeatedly “vow[ed] that the jurors would hear
what happened from the petitioner herself.” Ouber, 293 F3d at 27.
The question is therefore whether defense counsel provided ineffective assistance by
predicting, during opening statement that defendant would testify. Arguably, counsel could not
3
“While the decisions of lower federal courts and other state courts are not binding on this Court,
they may be considered as persuasive authority.” People v Walker (On Remand), 328 Mich App
429, 444-445; 938 NW2d 31 (2019) (quotation marks and citation omitted); see also Abela v Gen
Motors Corp, 469 Mich 603, 606; 677 NW2d 325 (2004) (“Although state courts are bound by the
decisions of the United States Supreme Court construing federal law, there is no similar obligation
with respect to decisions of the lower federal courts.”).
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technically promise that defendant would testify, because only defendant could decide whether he
would testify, and he retained the right to make that decision through the end of the trial. However,
again, the record strongly implies that it was reasonable at the time for defense counsel to have
expected that his predictions about the testimony would prove accurate. Defendant has not, for
example, provided evidence that defense counsel was aware that defendant had formed an intent
not to testify at the outset of the trial, or that defendant was uncertain. As discussed, counsel is
presumed to have pursued a sound trial strategy, which, under the circumstances, would entail
counsel having told the jury that defendant would testify because, at the time, defendant did
actually intend to testify. Decisions made by trial attorneys must be assessed for their
reasonableness at the time, not with the benefit of hindsight. Strickland, 466 US at 690-691.
Defendant has not overcome the presumption that defense counsel engaged in sound trial strategy
at the time. See Trakhtenberg, 493 Mich at 52.
Even assuming that defense counsel’s promise that defendant would testify was objectively
unreasonable, defendant fails to articulate whether there was a reasonable probability that the result
of the proceeding would have been different had defense counsel not made the promise. See
Lockett, 295 Mich App at 187. In Thompson v Rapelje, 839 F3d 481, 485 (CA 6, 2016), the United
States Court of Appeals for the Sixth Circuit held that the defendant was not prejudiced even
though defense counsel’s actions could have amounted to ineffective assistance, because the jury
was shown a video recording of the defendant’s police interview, in which the defendant denied
the acts that made up his charged crime. Likewise here, even though defendant chose not to testify,
the jury was still able to hear defendant’s version of events, to some extent, from an interview that
defendant had with Ottawa County Sheriff’s Office Detective David Dewitt that was played for
the jury and during which defendant said that the victim was “confused,” she lied about things that
she did, and she was frequently caught stealing. The jury also heard defendant tell Detective
Dewitt that the only touching he did with the victim was when he hugged her. Additionally, the
CPS investigator testified that defendant told her that he denied the sexual abuse of the victim.
Even though defense counsel did not address, in the closing arguments, that defendant did
not testify at trial, the trial court instructed the jury that “[e]very [d]efendant has the absolute right
not to testify. When you decide this case, you must not consider the fact that the defendant did not
testify. It must not affect your verdict in any way.”
Defendant contends that he was prejudiced by defense counsel’s ineffective assistance
because the trial was largely a credibility contest and the promise to hear testimony from him
undermined his credibility when he did not testify. However, the jury heard testimony from the
victim regarding the sexual assaults and threats that defendant subjected her to; from the victim’s
sister that corroborated the victim’s testimony regarding defendant being on the bed and couch
with the victim; from the victim’s mother who testified that she witnessed defendant in the victim’s
bedroom with the victim; from the CPS investigator who testified that she was called to investigate
a case of child sexual abuse and that defendant denied all accusations to her; and from Detective
Dewitt who introduced the recording of his interview with defendant. Defendant did not offer any
argument to demonstrate that the alleged prejudice from defense counsel’s promise outweighed
the great evidence of guilt in this case. See Trakhtenberg, 493 Mich at 56. Additionally, defendant
offered no indication that defense counsel following through on his promise and having defendant
testify would have aided his case given that, if he had testified, he would have been subject to
potentially damaging cross-examination. Finally, the trial court properly instructed the jury that it
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must not consider the fact that defendant did not testify. “Jurors are presumed to follow their
instructions, and instructions are presumed to cure most errors.” People v Abraham, 256 Mich
App 265, 279; 662 NW2d 836 (2003).
Therefore, there are no errors apparent on the record that suggest that defendant received
ineffective assistance of counsel.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Jane M. Beckering
/s/ Mark T. Boonstra
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