People of Michigan v. Ernesto Evaristo Uribe ( 2019 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 3, 2019
Plaintiff-Appellee,
v No. 338586
Eaton Circuit Court
ERNESTO EVARISTO URIBE, LC No. 13-020404-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.
PER CURIAM.
Defendant appeals by right his convictions, following a jury trial, of four counts of
criminal sexual conduct in the first degree (CSC I) (victim under 13), MCL 750.520b(1)(a). The
trial court sentenced defendant, under MCL 750.520b(2)(b),1 to concurrent terms of 50 to 75
years’ imprisonment for each offense. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant’s convictions arise from separate acts of sexual penetration of his
stepdaughter, VG, that first occurred when she was 5 years old and continued until she was 9
years old. Defendant was charged in January 2014. In March 2014, the trial court granted
defendant’s motion to suppress the testimony of his biological daughter, JU, concerning her
disclosure of sexual abuse by defendant occurring in 2011. The prosecution applied to this Court
for leave to appeal; this Court granted leave to appeal and reversed the trial court’s suppression
of JU’s testimony. See People v Uribe, 310 Mich. App. 467, 475; 872 NW2d 511 (2015), vacated
by 499 Mich. 921 (2016). In 2016, our Supreme Court vacated this Court’s judgment, but
nonetheless reached the same result and concluded that the trial court had erred by excluding
JU’s testimony. See People v Uribe, 499 Mich. 921, 974; 878 NW2d 474 (2016).
1
MCL 750.520b(2)(b) provides that an offender 17 years of age or older who is convicted of
CSC I against an individual less than 13 years of age may be sentenced to imprisonment for life
or any term of years, but not less than 25 years.
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Meanwhile, on June 18, 2015, after this Court’s decision on the prosecution’s appeal, the
trial court held a hearing on several motions filed by defendant. During the motion hearing, the
parties discussed an open plea offer by the prosecution under which it would agree to dismiss the
four counts of CSC I in return for defendant’s plea of guilty to three counts of criminal sexual
conduct in the second degree (CSC II), MCL 750.520c(1)(a), and would further agree to a
sentence of 5 years’ imprisonment. The parties then engaged in a discussion of the sentencing
guidelines range applicable to the CSC I offenses with which defendant was charged, as
compared with the sentencing guidelines range applicable to the CSC II offenses that were the
subject of the plea offer. The prosecution stated that the former guidelines range was 135 to 225
months’ imprisonment, while the latter guidelines range was either 36 to 71 months’ or 43 to 86
months’ imprisonment, depending on how many points were assessed for offense variables. The
prosecution stated that it would like to “leave the offer open until July 17th at this point.” No
one mentioned the 25-year mandatory minimum sentence for a CSC I conviction at this hearing.
Defendant did not accept the plea offer.
Before trial, the prosecution filed a motion in limine to preclude defendant from
introducing evidence that VG’s biological father had been convicted of attempted sexual assault.
At the hearing on the prosecution’s motion, the trial court heard testimony from VG’s mother
that the conviction arose from acts that occurred when VG’s father was 18 years of age and
involved consensual sex with a girl who said she was 16 years of age but “ended up being
younger than that.” She also testified that VG’s father had never stayed overnight with her and
VG during any of the time periods in which VG testified the abuse against her had occurred.
The trial court granted the prosecution’s motion.
At trial, VG testified to four instances in which defendant had penetrated her anus with
his penis. VG testified that after the first incident, defendant told her not to tell anyone or he
would kill her father. VG believed him, because she had witnessed part of a fight between
defendant and her father that had resulted in injuries to her father’s face and his earrings being
ripped out.
VG first disclosed defendant’s abuse to two of her friends in 2012, when she was 13
years old. In September 2012, she disclosed defendant’s abuse to her mother, who contacted the
Lansing Police Department. VG’s case was assigned to Detective Vicki Dahlke. Detective
Dahlke interviewed VG and testified at trial that she had no evidence at the time of the interview
that would have led her to explore the possibility that VG might have been abused by a
perpetrator other than defendant. Detective Dahlke referred VG to Dr. Stephen Guertin at
Sparrow Hospital for examination.
Dr. Guertin was qualified as an expert in the areas of child sexual abuse, child abuse, and
pediatric care. He testified that he examined VG in October 2012. Her physical examination
revealed no “strictly abnormal” findings. Although there was an area of stretched skin at the top
of VG’s anus, Dr. Guertin testified that this condition could have resulted from numerous causes,
including constipation or the passing of large stools. Dr. Guertin testified that he obtained a
description of the sexual abuse from VG, and that this history was useful in numerous respects,
including in determining what sexually transmitted diseases to check for, whether the child was
safe, and whether the child needed mental health treatment. Dr. Guertin further testified to VG’s
description of defendant’s abuse, which was consistent with VG’s testimony at trial.
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On cross-examination, defense counsel pointed out to Dr. Guertin that he had not
diagnosed VG as a victim of sexual abuse. Dr. Guertin stated that he felt that “the report, pretty
much, speaks for itself in that regard. But if you’re asking me do I consider to—her to be a
victim, I do.” On recross-examination, defense counsel again returned to this line of questioning
and repeatedly asked Dr. Guertin about the lack of a diagnosis. Dr. Guertin replied that in his
opinion there was “no question” that VG had been sexually abused, that he had “held that
opinion since” the interview, that his report “supports that she was sexually abused,” and that
“based on her history” he believed that she had been sexually abused.
Following Dr. Guertin’s testimony and outside the presence of the jury, the trial court
noted that Dr. Guertin appeared to have testified that a sexual assault had occurred and had
improperly vouched for the veracity of VG’s testimony. Defense counsel moved for a mistrial,
arguing that a curative instruction would not remedy the effect of Dr. Guertin’s testimony on the
jury. The trial court denied the motion, concluding that a limiting instruction was sufficient.
The trial court instructed the jury that the report Dr. Guertin had referenced was not in evidence
because it was inadmissible under the Michigan Rules of Evidence and that the jury should not
consider any statements made by Dr. Guertin concerning his report. The trial court also
instructed the jury that Dr. Guertin was not permitted to opine that a sexual assault had occurred,
that it was striking Dr. Guertin’s testimony to that effect, that the jury was not to consider Dr.
Guertin’s opinion regarding whether a sexual assault had occurred, and that a determination
whether a sexual assault had occurred was “your decision and only your decision to make.”
Dr. James A. Henry testified as an expert in child trauma and the behavior of sexually
abused children. He testified that it was common for children to delay disclosure of sexual abuse
and to initially make the disclosure to a friend rather than an authority figure.
JU testified regarding an incident that had occurred in the summer of 2011. She testified
that she had been sleeping in a bed with her stepmother and defendant when defendant placed his
hand under her pants and underwear and touched her genital area and buttocks. Defendant’s
parental rights to JU were terminated after she disclosed this incident.
Dr. David Luginbill, VG’s family physician, testified that he had treated VG since her
birth. He had treated her for attention deficit disorder and migraines, and treated urinary tract
infections in 2004 and 2010. Dr. Luginbill testified that he examined VG’s genitalia in 2004 and
2010 in the course of treating her urinary tract infections, but that generally examinations of the
vaginal/anal area were “deferred” unless the child had a specific complaint.
Defendant’s fiancée, Elizabeth Hall, testified on defendant’s behalf, stating that from
2008 until 2012, after defendant and VG’s mother had separated, defendant had biweekly
visitations with his two biological children (VG’s half-sisters). VG and her half-sisters lived
with their mother at various residences during that time. Hall testified that VG would ask
defendant if she could come along when defendant and Hall picked up her half-sisters for the
visitations.
Dr. Sharon Hobbs also testified on defendant’s behalf and was qualified as an expert in
clinical psychology, the behavior of children who have been sexually abused, and the treatment
and counseling of sexually abused children and teenagers. Dr. Hobbs opined that psychological
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evaluations were very important in cases of sexual abuse of children where the allegations could
not be corroborated with physical injuries. Dr. Hobbs testified regarding the types of behaviors a
child might exhibit after being sexually abused, and discussed psychological defenses such as
displacement, disassociation, and transference.
The jury convicted defendant as described. After defendant was sentenced, he appealed
to this Court. Among other issues raised on appeal, he requested that this Court remand for a
Ginther2 hearing regarding whether his trial counsel had been ineffective for failing to inform
him of the 25-year mandatory minimum sentence for a CSC I conviction at the time he was
considering the prosecution’s plea offer. This Court granted his motion to remand.3
At the Ginther hearing, defendant’s trial counsel, attorney Daniel Pawluk, testified to
having discussed the prosecution’s plea offer with defendant. Pawluk further testified to having
specifically discussed with defendant the 25-year mandatory minimum sentence for a CSC I
conviction. Pawluk also testified that, in a meeting held in May 2015, he discussed with
defendant the risks of rejecting the prosecution’s plea offer, including the risk of a mandatory
minimum sentence of 25 years for a CSC I conviction. Pawluk acknowledged that there
appeared to be an “inaccuracy” in the discussion between the court and the parties at the June 18,
2015 hearing concerning defendant’s potential minimum sentence. However, he testified that he
discussed the 25-year mandatory minimum sentence with defendant “several times” after the
June 18 hearing in the context of discussing the risks of rejecting the plea offer. Pawluk also
testified that he did not remember defendant ever being willing to take the plea offer and
remembered that defendant repeatedly stated that the prosecution had no evidence. According to
Pawluk, defendant did state on one occasion that he would entertain a plea offer of two years’
imprisonment.
Defendant testified that he was not aware of the 25-year mandatory minimum sentence
for CSC I convictions and that, had he been aware of the risk, he would have accepted the
prosecution’s plea offer of five years’ imprisonment. Defendant testified that he was innocent,
and that he told Pawluk that he was innocent. He specifically denied any sexual abuse of VG.
Pawluk’s investigator, Chad Lab, testified that he recalled Pawluk discussing the 25-year
mandatory minimum sentence with defendant, and defendant responding in a way that Lab
believed indicated he understood. Lab also testified that defendant “vehemently denied”
sexually abusing VG.
Following this Court’s remand for a Ginther hearing, defendant moved for a new trial
and for reinstatement of the plea offer. After the Ginther hearing, the trial court denied the
motion finding that defendant had been informed of the 25-year minimum sentence by the judge
at his arraignment, by his receipt of a copy of the information, and by Pawluk. The trial court
found Pawluk’s testimony credible and defendant’s testimony not credible. The trial court did
2
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
3
People v Uribe, unpublished order of the Court of Appeals, issued March 2, 2018 (Docket No.
338586).
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note that at the June 18, 2015 hearing defendant was informed that he could be sentenced to
nearly 19 years in prison. However, the trial court found that even if defendant was not aware of
the 25-year mandatory minimum sentence, he was not prejudiced because he had consistently
maintained his innocence and would not have accepted the plea offer.
This appeal followed. Defendant filed a supplemental brief on appeal addressing the trial
court’s denial of his motion following the Ginther hearing.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that Pawluk was ineffective for failing to inform him of the mandatory
minimum 25-year sentence he would receive if convicted of CSC I, and that the trial court
therefore erred by denying his motion for a new trial and for reinstatement of the prosecution’s
plea offer. We disagree.
Whether a defendant received ineffective assistance of trial counsel presents a
mixed question of fact and constitutional law. “A judge must first find the facts,
then must decide whether those facts establish a violation of the defendant’s
constitutional right to the effective assistance of counsel.” We review the trial
court’s factual findings for clear error. Clear error exists if the reviewing court is
left with a definite and firm conviction that the trial court made a mistake. We
review de novo questions of constitutional law. [People v Armstrong, 490 Mich.
281, 289; 806 NW2d 676 (2011) (footnotes omitted).]
A defendant has the burden of establishing the factual predicate of his claim. People v Hoag,
460 Mich. 1, 6; 594 NW2d 57 (1999). “[A] defendant is entitled to the effective assistance of
counsel in the plea-bargaining process.” People v Douglas, 496 Mich. 557, 591-592; 852 NW2d
587 (2014), citing Lafler v Cooper, 566 U.S. 156, 162; 132 S. Ct. 1376; 182 L. Ed. 2d 398 (2012).
To prove ineffective assistance of counsel in the plea-bargaining process, a defendant must
satisfy the “familiar two-pronged standard” of demonstrating that his counsel’s performance fell
below an objective standard of reasonableness and that there was a reasonable probability that
the defendant was prejudiced by that deficiency. Id. at 592 (citations omitted). In other words,
“the defendant must show the outcome of the plea process would have been different with
competent advice.” Id. (quotation marks and citation omitted).
Our Supreme Court has stated that where “the alleged prejudice resulting from counsel’s
ineffectiveness is that the defendant rejected a plea offer and stood trial,” a defendant must show
that (1) he would have accepted the plea were it not for his counsel’s ineffective advice, (2) the
prosecution would not have withdrawn it, (3) the court would have accepted its terms, and (4) the
conviction or sentence or both would have been less severe than the sentence that defendant
received after trial. Id. at 592.
Here, as noted, the trial court found that defendant was informed of the 25-year
mandatory minimum sentence by Pawluk and by the charging documents he received, as well as
by the court at his arraignment. Defendant argues that the trial court erred by determining that
Pawluk’s testimony was more credible than his, because the record of the June 18, 2015 hearing
reflects that Pawluk did not correct the prosecution’s and trial court’s erroneous comments
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regarding the possible sentences that defendant could receive if he went to trial. We disagree. It
is clear that there was some confusion between the prosecution and the trial court at that hearing
concerning the minimum sentence defendant might receive under the guidelines if he (1) went to
trial or (2) accepted the plea bargain. But Pawluk’s failure to correct the record at a single
hearing does not lead us to believe that the trial court clearly erred by crediting his testimony at
the Ginther hearing, which was clear and unequivocal. Pawluk testified that he discussed the
mandatory minimum sentence with defendant both before and after the June 18 hearing. The
trial court was in a superior position to judge the credibility of the witnesses before it, Shann v
Shann, 293 Mich. App. 302, 307; 809 NW2d 435 (2011), and we find no clear error in the trial
court’s finding that Pawluk’s testimony was credible. Armstrong, 490 Mich. at 289. Defendant
has failed to establish the factual predicate for his claim. Hoag, 460 Mich. at 6.
Defendant also argues that, even if Pawluk did inform him of the 25-year mandatory
minimum sentence, he was given “conflicting advice” as a result of the June 18 hearing. We
disagree that any such circumstance warrants relief. At the June 18 hearing, Pawluk stated that
he had only had a “brief opportunity” to review the plea offer and wanted additional time to
discuss the offer with his client. Pawluk testified that he did so, and that he specifically
discussed the 25-year mandatory minimum sentence with defendant after the hearing. Defendant
did not disprove this testimony, but rather admitted that it was possible that Pawluk’s testimony
was true and that he simply did not remember it, in the same way that defendant claimed not to
remember being informed of the mandatory minimum sentence at his arraignment or reading the
portions of the charging documents provided to him by his attorney that stated the mandatory
minimum sentence for a CSC I conviction. Defendant did not reject the plea offer at the June 18
hearing; therefore, even if he was given the wrong impression at the hearing of the risks of
rejecting the offer, Pawluk’s testimony supports the conclusion that the confusion was rectified
before the plea offer was rejected and that defendant was given sufficient advice to allow him to
make an informed and voluntary choice between going to trial and agreeing to a guilty plea. See
Douglas, 496 Mich. at 594 (quotation marks and citation omitted). Again, defendant has failed to
establish the factual predicate for his claim, Hoag, 460 Mich. at 6, and has not demonstrated clear
error, Armstrong, 490 Mich. at 289.
Further, we agree with the trial court that even if Pawluk’s performance was deficient,
defendant cannot demonstrate prejudice. Although defendant argues that the record shows that
he at one point expressed his willingness to consider a “two-year deal,” defendant also
steadfastly maintained his innocence throughout the case and even at the Ginther hearing. As the
trial court noted, there was no indication that defendant would have accepted a plea that required
him to admit to having sexually abused VG.4 And, as the trial court pointed out, even assuming
that defendant was never informed of the 25-year mandatory minimum sentence, he undisputedly
knew that he risked a minimum sentence of almost 19 years if he went to trial, yet he refused a
4
Although a reference was made at the Ginther hearing to the possibility of a no-contest plea,
there is no evidence that such a plea offer was ever even discussed, much less offered, or that the
trial court would have accepted such a plea and therefore refrained from questioning defendant
about his participation in the offenses. See MCR 6.302(D).
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plea deal with a substantially shorter period of incarceration. Defendant has not met his burden
of showing prejudice, even if he satisfied the first prong of the ineffective assistance analysis.
Douglas, 496 Mich. at 592. Defendant has therefore not shown that his trial counsel was
ineffective, and the trial court did not err by denying his motion for a new trial and for
reinstatement of the plea offer.
III. PROSECUTION’S MOTION TO PRECLUDE EVIDENCE OF VG’S FATHER’S PRIOR
CONVICTION
Defendant also argues that the trial court erred by granting the prosecution’s motion to
preclude defendant from introducing evidence that VG’s father had been convicted of a sex
offense and was required to register as a sex offender. We disagree. We review for an abuse of
discretion a trial court’s decision to admit or exclude evidence. People v Steele, 283 Mich. App.
472, 478; 769 NW2d 256 (2009). We review de novo whether a defendant was deprived of his
constitutional right to present a defense. People v Bosca, 310 Mich. App. 1, 47; 871 NW2d 307
(2015).
Evidence must be relevant to be admissible. MRE 402; People v Benton, 294 Mich. App.
191, 199; 817 NW2d 599 (2011). Relevant evidence is evidence that is helpful in shedding light
on any material point. MRE 401; People v Murphy (On Remand), 282 Mich. App. 571, 580; 766
NW2d 303 (2009). However, even relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading
the jury, undue delay, waste of time, or needless presentation of cumulative evidence. MRE 403;
People v Feezel, 486 Mich. 184, 198; 783 NW2d 67 (2010).
A defendant has a constitutional right to present a defense and to present evidence in
support of that defense. Bosca, 310 Mich. App. at 47. But this right is not unlimited. Id. A
defendant “must still comply with established rules of procedure and evidence designed to assure
both fairness and reliability in the ascertainment of guilt or innocence.” Id. (quotation marks and
citation omitted). “The Michigan Rules of Evidence do not infringe on a defendant’s right to
present a defense unless they are arbitrary or disproportionate to the purposes they are designed
to serve.” Id. (quotation marks and citations omitted).
Here, defendant argues that he was denied the right to present a complete defense by the
trial court’s refusal to permit him to present evidence of VG’s father’s conviction. We disagree.
VG’s father was convicted of attempted CSC III 21 years earlier, when he was 18 years old,
before VG was born. VG’s mother testified that the incident involved consensual sex with a girl
who had said she was 16 years old but who in fact was younger than that. There was no record
evidence that VG’s father had ever spent the night, or any significant time, in any of the homes
in which the abuse of VG occurred. Detective Dahlke testified that she never received any
evidence that led her to investigate any other perpetrators.
On these facts, the trial court did not abuse its discretion by prohibiting the admission of
the proffered evidence. Steele, 283 Mich. App. at 478. Defendant was not prohibited from
presenting a theory that VG’s father or another individual had committed the acts of which
defendant was accused; in fact, defendant presented expert testimony regarding the concepts of
transference and displacement, and testimony at trial established that VG had visitation with her
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father during the relevant time periods and that VG’s family doctor had noted in 2010 that she
disliked visiting her father. Defendant also elicited testimony about other adult men with
potential access to VG during the relevant time periods.
Defendant merely asserts that the evidence of VG’s father’s conviction for attempted
CSC III would have aided his defense. However, such evidence could only have aided his
defense if the jury were to believe that VG’s father was more likely than defendant to have
committed the crime by virtue of a past attempted CSC conviction. We are not convinced of the
relevance of this evidence in light of the specificity of VG’s testimony regarding where and
when the assaults occurred and VG’s mother’s testimony that VG’s father had never spent the
night at those locations. But even assuming that evidence of VG’s father’s conviction was
marginally relevant, we agree with the trial court that such relevance would be substantially
outweighed by the possibility of misleading the jury and confusing the issues. The trial court did
not elaborate on precisely how the evidence could mislead the jury, but, for example, admission
of this evidence may have encouraged the jury to view its task as identifying a sexual abuser
rather than determining whether defendant had committed the specific acts charged. Admission
of this evidence, without more, would also invite the jury to speculate about VG’s father’s guilt
based solely on his character as evidenced by his past conviction. Admission of character
evidence in order to prove conduct in conformity with that character is generally impermissible,
see MRE 404, MRE 608.5 We conclude that the trial court did not abuse its discretion by finding
that the risk of confusion and misleading the jury substantially outweighed any probative value
the evidence may have had. MRE 403; Steele, 283 Mich. App. at 478. Nor did the trial court’s
application of the Michigan Rules of Evidence deprive defendant of his right to present a
defense. Bosca, 310 Mich. at 47.
Additionally, even if the trial court did abuse its discretion by precluding the admission
of this evidence, we would find the error to be harmless in light of the overwhelming evidence
against defendant. See People v Snyder (After Remand), 301 Mich. App. 99, 111-112; 835 NW2d
608 (2013).
IV. DR. GUERTIN’S TESTIMONY
Defendant raises two issues with respect to Dr. Guertin’s expert testimony. Defendant
argues that the trial court erred by (1) admitting hearsay testimony from Dr. Guertin concerning
statements VG made during his examination of her, and (2) by not granting defendant’s motion
for a mistrial after Dr. Guertin improperly opined that VG had been sexually assaulted. Again,
we review for an abuse of discretion a trial court’s decision to admit or exclude evidence. Steele,
283 Mich. App. at 478. We review de novo preliminary questions of admissibility, such as the
interpretation of the rules of evidence. People v Jambor (On Remand), 273 Mich. App. 477, 481;
729 NW2d 569 (2007). We review for an abuse of discretion a trial court’s decision to deny a
5
MCL 768.27a allows the prosecution to offer evidence of a defendant’s commission of listed
sex offenses to be considered for any relevant purpose, but does not, by its plain language, allow
the admission of such evidence concerning witnesses or non-testifying parties.
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motion for a mistrial. People v Gonzales, 193 Mich. App. 263, 266; 483 NW2d 458 (1992). “A
mistrial should be granted only where the error complained of is so egregious that the prejudicial
effect can be removed in no other way.” Id.
A. ADMISSION OF HEARSAY TESTIMONY
Defendant first argues that the trial court should not have allowed Dr. Guertin to testify to
statements made by VG during her exam that corroborated her testimony at trial, because the
statements were inadmissible hearsay. We disagree.
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.
Hearsay is inadmissible unless subject to an exception. MRE 802. MRE 803(4) provides an
exception for the following types of hearsay statements:
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.
Defendant points out that this Court has recently declared statements by a complainant
made to Dr. Guertin during an exam to be inadmissible hearsay. See People v Shaw, 315 Mich
App 668, 674-676; 892 NW2d 15 (2016). Defendant argues that Shaw compels the same result
in the instant case. We disagree. While the factual situation in Shaw was similar in many ways,
inasmuch as it involved a complainant who was referred to Dr. Guertin by the police after
disclosing sexual abuse that had occurred years earlier, there are important differences that we
believe compel a different result in this case.
The Court in Shaw said the following about the inadmissibility of Dr. Guertin’s
statements:
We agree with defendant that MRE 803(4) does not apply under the
circumstances presented here. First, the examination by Guertin did not occur
until seven years after the last alleged instance of abuse, thereby minimizing the
likelihood that the complainant required treatment. Second, the complainant did
not seek out Guertin for gynecological services. Rather, she was specifically
referred to Guertin by the police in conjunction with the police investigation into
the allegations of abuse by defendant. And during the seven years since the last
alleged incident of abuse, she had seen a different physician, who was not called
as a witness, for gynecological care. Under these facts, the complainant’s
statements to Guertin were not admissible because they were not statements for
the purposes of medical treatment. [Shaw, 315 Mich. App. at 22.]
The complainant in Shaw was an adult at the time of the disclosure. Shaw, 315 Mich. App. at 671.
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Unlike the complainant in Shaw, VG was still a child when she was referred to Dr.
Guertin, a pediatrician. Dr. Guertin’s testimony about his employment does not indicate that he
ever treats adult patients in any capacity, but does diagnose and treat children. And Dr. Guertin
testified that the history he took from VG had numerous medical purposes, such as focusing the
testing for particular sexually transmitted diseases (of which VG may have been a “carrier” but
not subject to obvious symptoms), providing information on what parts of VG’s body should be
checked for latent injuries, and providing information on whether VG needed psychological care
and counseling. Like the complainant in Shaw, VG had seen a different physician in the years
since the abuse; however, in VG’s case, Dr. Luginbill was called to testify. His testimony did
not indicate that he had ever examined or tested VG for sexually transmitted diseases, or that he
had specifically examined her anus as an area of concern, although he did testify to a visual
examination of the outside of vaginal and anal areas done in conjunction with diagnosing and
treating her urinary tract infections in 2004 and 2010.
Unlike the adult complainant in Shaw, who could not have reasonably expected that a
pediatric specialist would provide her with medical treatment when discussing her past abuse,
VG could have possessed the “self-interested motivation to speak the truth to treating physicians
in order to receive medical care” that underlies the rationale for admission of statements under
MRE 803(4). People v Meeboer (After Remand), 439 Mich. 310, 322; 484 NW2d 621 (1992).
This is especially true considering that Dr. Luginbill had not historically provided the same type
of treatment. And the statements were reasonably necessary to the diagnosis and treatment of
VG. Id. As the Shaw Court acknowledged, “An injury need not be readily apparent. Moreover,
‘[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.’ ” Shaw, 315
Mich. App. at 674-675 (citation omitted), quoting People v Mahone, 294 Mich. App. 208, 215; 816
NW2d 436 (2011).
We conclude that enough differences exist between this case and Shaw that Shaw does
not compel us to reach a similar outcome. Rather, Dr. Guertin’s testimony shows that VG’s
“recitation of the totality of the circumstances of the assault” was properly admitted under
MRE 803(4), notwithstanding that they may also have been useful in the forensic investigation
of her allegations. Mahone, 294 Mich. App. at 215; see also Shaw, 315 Mich. App. at 693
(JANSEN, J., dissenting).
Further, even if Dr. Guertin’s testimony regarding VG’s statements was inadmissible,
these statements were cumulative to the clear and unambiguous testimony she gave at trial.
VG’s testimony alone was sufficient to convict defendant, see MCL 750.520h, and we are not
convinced that Dr. Guertin’s testimony was outcome determinative, especially in light of the trial
court’s curative instruction, discussed more fully below. See People v Burns, 494 Mich. 104,
110; 832 NW2d 738 (2013).
B. DENIAL OF MOTION FOR MISTRIAL
Defendant also argues that the trial court erred by denying his motion for a mistrial after
Dr. Guertin opined that VG had been sexually abused. We disagree. Defendant simply asserts
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that the trial court’s curative instruction did not alleviate the harm of Dr. Guertin’s admittedly
improper testimony. See People v Beckley, 434 Mich. 691, 727; 465 NW2d 391 (1990) (holding
that an expert may not offer a direct opinion on the question of whether sexual abuse occurred).
But generally “an unresponsive, volunteered answer to a proper question is not cause for
granting a mistrial.” Gonzales, 193 Mich. App. at 266. Further, although defendant argues to the
contrary, it appears from context that defense counsel did to some extent “open the door” to the
impermissible testimony by repeatedly questioning him about the lack of a diagnosis in his
report. Defense counsel’s questions “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.” Beckley, 434 Mich. at 731.
In any event, the trial court gave a lengthy curative instruction that was approved by both
parties. Curative instructions are generally presumed to cure the prejudicial effect of the
inadmissible statements because the jurors are presumed to follow these instructions unless there
is an “overwhelming probability” that the jury will be unable to do so. People v Dennis, 464
Mich. 567, 581; 628 NW2d 502 (2001). Defendant points out that Dr. Guertin’s opinion may
have had a stronger impact on the jury because of a lack of physical evidence supporting VG’s
allegations; however, defendant does not provide evidence to suggest an overwhelming
probability that the jury was unable to ignore the trial court’s instruction. We conclude that the
trial court did not abuse its discretion by denying defendant’s motion for a mistrial. Gonzales,
193 Mich. App. at 266.
Additionally, defendant argues that the trial court gave a limiting instruction regarding
the testimony of Drs. Henry and Hobbs, but not Dr. Guertin, and that this lack of a limiting
instruction regarding Dr. Guertin strengthened the prejudicial effect of Dr. Guertin’s improper
testimony. Defendant is factually incorrect. The jury was given the curative instruction
regarding Dr. Guertin on the third day of trial, and delivered its verdict on the fourth day of trial.
Before deliberations, the trial court instructed the jury that it could not consider the testimony of
Drs. Hobbs and Henry (who testified on the third day of trial, after the trial court had given its
instruction regarding Dr. Guertin) to show that VG was abused, that defendant abused her, or
that VG was telling the truth. The trial court then stated “Also in your books, ladies and
gentlemen, will be the two special limiting instructions that I gave you yesterday concerning Dr.
Guertin.” In other words, while the trial court did not repeat verbatim the curative instruction
that it had given the jury only the day before, the jury was provided with a written copy of that
instruction and the trial court reminded the jury of it directly before deliberations began. And
any objection by defense counsel to the trial court’s instructions at the close of proofs would
have been futile, or at best would have resulted in the trial court reading verbatim the same
instruction it provided in written form and had read to the jury the previous day. Defense
counsel was not ineffective for failing to make such an objection. People v Ackerman, 257 Mich
App 434, 455; 669 NW2d 818 (2003).
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V. SUFFICIENCY OF THE EVIDENCE/GREAT WEIGHT OF THE EVIDENCE
In his Standard 4 brief,6 defendant argues that his convictions were based on insufficient
evidence or were against the great weight of the evidence. We disagree. Both of defendant’s
arguments are based on the lack of physical evidence and defendant’s assertion that VG’s
testimony was not credible. When reviewing the sufficiency of the evidence, we will not
interfere with the jury’s role in determining the credibility of witnesses. People v Ortiz, 249
Mich. App. 297, 301; 642 NW2d 417 (2001). Rather, we view the evidence in the light most
favorable to the prosecution to determine if a reasonable juror could find the elements of the
crime proven beyond a reasonable doubt. Id. at 300.
A defendant is guilty of CSC–I, MCL 750.520b(1)(a), if he or she engaged
in sexual penetration with the victim and the victim was less than 13 years old.
People v Hack, 219 Mich. App. 299, 303; 556 NW2d 187 (1996). “Sexual
penetration” is defined by statute as “sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s
body . . . into the genital or anal openings of another person’s body. . . .”
MCL 750.520a(r). [People v Solloway, 316 Mich. App. 174, 181; 891 NW2d 255
(2016).]
“In criminal sexual conduct cases, a victim’s testimony may be sufficient to support a
defendant’s conviction and need not be corroborated.” Id. Here, as in Solloway, VG’s age was
not disputed, and she testified in great detail about the sexual assaults that had occurred. Given
this testimony, the evidence, viewed in the light most favorable to the prosecution, was sufficient
to support defendant’s convictions for CSC I. Id.
Nor was the jury verdict against the great weight of the evidence. “A verdict is against
the great weight of the evidence and a new trial should be granted when the evidence
preponderates heavily against the verdict and a serious miscarriage of justice would otherwise
result.” Id. at 182-183 (quotation marks and citation omitted). Questions regarding credibility
are not sufficient to reverse a jury verdict unless the witness’s testimony “contradicts
indisputable facts or laws, the testimony is patently incredible or defies physical realities, the
testimony is material and . . . so inherently implausible that it could not be believed by a
reasonable juror, or the testimony has been seriously impeached and the case is marked by
uncertainties and discrepancies.” Id. at 183 (quotation marks and citation omitted).
None of these factors is present here. Defendant points out that VG testified that she did
not remember if she cried when defendant penetrated her and that there was no bleeding, and that
Dr. Guertin found it “a little surprising” that she did not report painful defecation. VG’s mother
also did not recall VG being constipated or complaining of pain in her anal area. However, Dr.
Guertin testified that it was not a given that a child suffering the type of abuse alleged by VG
6
A supplemental appellate brief filed in propria persona by a criminal defendant under Supreme
Court Administrative Order 2004-6, Standard 4.
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would suffer painful defecation or have bleeding. Dr. Guertin did testify that VG told him that it
hurt when she was penetrated. Nothing about VG’s testimony is contradictory of indisputable
facts, patently incredible, or inherently implausible, nor was her testimony seriously impeached.
Id. Further, the fact that Dr. Guertin’s examination did not reveal indisputable evidence of
sexual assault does not render VG’s testimony patently incredible, inherently implausible, or
seriously impeached. Id. Defendant’s convictions were not against the great weight of the
evidence.
Affirmed.
/s/ Mark T. Boonstra
/s/ Kathleen Jansen
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