People of Michigan v. Eddie Brown ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
October 23, 2018
Plaintiff-Appellee, 9:00 a.m.
v No. 339318
Oakland Circuit Court
EDDIE BROWN, LC No. 2010-232531-FC
Defendant-Appellant.
Before: MURRAY, C.J., and BORRELLO and RONAYNE KRAUSE, JJ.
RONAYNE KRAUSE, J.
Defendant appeals as of right his jury convictions of three counts of first-degree criminal
sexual conduct (CSC-I), one under MCL 750.520b(1)(a) (sexual penetration of a victim less than
13 years of age) and two under MCL 750.520b(1)(b)(i) (sexual penetration of a victim at least 13
but less than 16 years of age and a member of the same household), and one count of second-
degree criminal sexual conduct (CSC-II), MCL 750.520b(1)(b)(i) (sexual contact with a victim at
least 13 but less than 16 years of age and a member of the same household). The trial court
sentenced defendant as both a second-offense habitual offender, MCL 769.11, and as a second
CSC-I offender against a minor under the age of 13 with respect to one count of CSC-I, MCL
750.520b(2)(c), and as a second CSC-I offender with respect to the other two counts of CSC-I,
MCL 750.520f, imposing sentences of life in prison for the CSC-I conviction under § 520(1)(a),
10 to 40 years in prison for each CSC-I conviction under § 520(1)(b)(i), and 5 to 22-1/2 years in
prison for the CSC-II conviction, to be served concurrently. We affirm.
I. FACTS AND EVIDENCE
Defendant sexually abused the victim when she was 12 and 13 years old and lived in the
same house as defendant. Defendant was the victim’s mother’s boyfriend, and he began living in
the victim’s home while her mother was pregnant with defendant’s child. The sexual abuse took
place multiple times over the course of approximately 5 months, beginning with odd,
inappropriate statements to the victim in January of 2010, and culminating in a final act of sexual
assault on or about May 5, 2010. Defendant initially made statements to the victim along the
lines of wishing she was her mother, defendant’s girlfriend, and other unsettling phrases. The
first instance of physical sexual assault took place in February when the victim was still 12 years
old. Defendant, under the guise of punishment for talking to boys, forced the victim to lift her
shirt and allow him to put her breasts into his mouth. He then ordered the victim to lie down on
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the bathroom floor and remove her pants. Defendant then performed cunnilingus on the victim.
Defendant’s first charge, CSC I penetration of a victim under the age of 13, and fourth charge,
CSC II, sexual contact on a victim under 13 and residing in the same household, arise from this
first assault. This was defendant’s second CSC I conviction for penetration of a victim under the
age of 13, invoking an automatic sentence of life.
Charges two and three, CSC I with a victim between the ages of 13 and 16 who resides
within the same household, involved anal and oral penetration of the victim after her 13th
birthday. Defendant forced the victim on at least one occasion to perform fellatio on him, again
under the guise of punishment. Defendant would show up in the victim’s room in the early
morning hours and often hover or sit on the edge of the bed until the victim woke. Defendant, on
at least one occasion, offered the victim a choice between performing oral sex on him and having
him perform oral sex on her. On or about May 5, 2010, the final assault took place in the early
morning hours. Defendant penetrated the victim anally, required the victim to pull down her
night shirt, and ejaculated onto her breast. Subsequently, the victim told her best friend at the
bus stop that morning that she didn’t feel well because defendant had kept her up all night and
that defendant had assaulted her again. She then borrowed her friend’s cell phone in order to
message another friend, a boy who lived down the street, that she had been assaulted again. Her
friend then told the victim’s aunt about the abuse while she was babysitting the victim and her
siblings that evening. The victim then told her aunt about the abuse herself. The aunt then went
inside and told her fiancé, the victim’s uncle, about the abuse.
The victim then disclosed to her aunt and uncle that defendant had staged and taken
several indecent photographs of her with his old cellphone. The victim helped her uncle to
locate the old phone used to take the photographs. Her uncle put the phone in his pocket, but
was unable to view the phone’s contents because it was locked by a password. A short time later
the victim’s mother and defendant returned home after an evening of running errands. The
victim’s mother had to return to the store, and the victim’s brother offered to ride with her.
Defendant, presumably having noticed the general mood and startled by the uncle’s behavior,
began to frantically search for the old phone. On the way home from the store the victim’s uncle
informed her mother of what the victim had told him and that he was in possession of the old
phone.
Driving back towards home, the two of them noticed defendant out looking for his phone.
The victim and her aunt left the house and were in the process of getting in the uncle’s car when
defendant approached and asked where the victim was going on a school night. Nothing was
said and the victim went to her uncle’s house for safety. Defendant repeatedly called the uncle’s
phone asking to speak with the victim. Defendant then left in the mother’s van, not informing
anyone of where he was going. The uncle returned to his sister’s, the victim’s mothers, house
and she unlocked the phone. The two of them verified the pictures existed. Late the next
evening or early on the day after, a police report was made.
At trial, the prosecution presented testimony from the victim regarding the charged
instances of sexual abuse, as well as her testimony that defendant took photographs of her with
his cell phone. The prosecution introduced four photographs of the victim that were recovered
from defendant’s phone. The prosecution additionally presented text messages from the victim
disclosing the abuse, as well as the testimony of witnesses who corroborated the circumstances
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surrounding the victim’s disclosure of the abuse. The prosecution further presented the
testimony of a sexual assault nurse examiner regarding her examination of the victim and the
victim’s statements. A jury found defendant guilty of the charged offenses.
II. ADMISSION OF PHOTOGRAPHS
Defendant argues that he was denied a fair trial by the admission of indecent photographs
depicting the 12-year-old victim’s vagina, breasts, and buttocks. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
“In order to preserve the issue of the improper admission of evidence for appeal, a party
generally must object at the time of admission.” People v Knox, 469 Mich 502, 508; 674 NW2d
366 (2004). At trial, defendant objected to the prosecution’s request to admit 11 photographs of
the victim from defendant’s phone, arguing that the photographs were more prejudicial than
probative because of their graphic nature, and the victim could testify regarding the photographs.
The trial court allowed the prosecution to introduce 4 of the proffered 11 photographs.
Accordingly, defendant’s evidentiary claim is preserved. However, because defendant did not
raise an objection on the ground that the admission of the photographs allegedly denied him a
fair trial, his constitutional claim is unpreserved. See People v Canter, 197 Mich App 550, 563;
496 NW2d 336 (1992).
“A trial court’s decision to admit evidence will not be disturbed absent an abuse of
discretion.” People v Denson, 500 Mich 385, 396; 902 NW2d 306 (2017). “An abuse of
discretion occurs when the trial court chooses an outcome falling outside the range of principled
outcomes.” People v McBurrows, 322 Mich App 404, 411; 913 NW2d 342 (2017) (citation and
quotation marks omitted). Unpreserved claims of constitutional error are reviewed for plain
error affecting a defendant’s substantial rights. People v Carines, 460 Mich 750, 764; 597
NW2d 130 (1999).
B. ANALYSIS
“Photographic evidence is generally admissible as long as it is relevant, MRE 401, and
not unduly prejudicial, MRE 403.” People v Gayheart, 285 Mich App 202, 227; 776 NW2d 330
(2009). “Exclusion is required under MRE 403 only when the danger of unfair prejudice
substantially outweighs the probative value of the evidence.” People v Head, ___ Mich App
___, ___; ___ NW2d ___ (2018) (Docket No. 334255), lv pending; slip op at 6. “Photographs
may be used to corroborate a witness’s testimony[.]” Head, ___ Mich App at ___; slip op at 7.
In ruling on the prosecution’s request to admit 11 of the 45 photographs of the victim
found on defendant’s phone, the trial court stated that several of the photographs were
“repulsive.” The court ruled that the prosecution could only use the photographs in which the
victim could identify defendant’s hands in the photos. The court refused to admit the other
photographs as cumulative and too prejudicial because testimony would be sufficient.
Accordingly, the court admitted only People’s Exhibits 12 through 15. In each photograph, the
victim identified herself or her vagina, as well as defendant’s hand. With regard to the first three
photographs, she testified that each was taken by defendant.
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Trial courts have a duty, at times an unpleasant one, to resolve questions of admissibility
of evidence in cases that run the gamut of antisocial behavior. Doing so sometimes requires the
consideration of evidence that a law-abiding member of society would find repulsive, indecent,
obscene, or would rather not acknowledge exists. Were this Court to hold that evidence could be
excluded for the mere reason that it was unpleasant to consider, evidence of the most probative
value might then be excluded from the most heinous of cases.
Generally, photographs that are merely calculated to arouse the sympathies or
prejudices of the jury should not be admitted. However, if a photograph is
otherwise admissible for a proper purpose, it is not rendered inadmissible merely
because it brings vividly to the jurors the details of a gruesome or shocking
accident or crime. [People v Howard, 226 Mich App 528, 549-550; 575 NW2d
16 (1997) (citations omitted).]
The sexual assault of a child is condemned so strongly by society that the mere
possession of photographic representations of such acts is a felony punished similarly to murder,
robbery, and other serious crimes. See MCL 750.145c. The photographs in this case are
shocking, indecent, and unsettling. However, they are illustrative of not only the acts depicted,
but of the propensities of the individual who took them, and they were not introduced merely to
shock or inflame the jurors. The photographs corroborated the victim’s testimony that defendant
took the photographs, given the victim’s ability to identify defendant’s hands, and that defendant
had a clear sexual interest in the victim. Head, ___ Mich App at ___; slip op at 7. They also
serve to corroborate the victim’s testimony in a more general sense, because they are the only
direct evidence confirming any part of the victim’s testimony. Id. Therefore, any prejudicial
taint is more than overcome by their probative value, regardless of how lurid and despicable the
photographs themselves may be.
Moreover, a holding that the opposite were true would require this Court to conclude that
the trial court had abused its discretion in allowing the photographs to be admitted. Given the
trial court’s careful consideration of the photographs, its decision to vastly limit the number that
could be admitted at trial, and its requirement that the victim be able to identify the defendant’s
hands in the admitted photographs, we instead conclude that the trial court acted well within its
discretion. Although the photographs were perhaps the most wrenching of the evidence against
defendant, they served merely to corroborate the testimony of the defendant. Id. Given our
holding that the photographs’ probative value far outweighs any prejudice, their admission at
trial was proper.
Because application of MRE 403 to any photographs that a party seeks to admit requires
a balancing act of factors, we emphasize that sexually explicit photographs used as evidence of a
sexual assault of a minor cannot be unfairly prejudicial per se. As our prior decisions have
indicated, and as the trial court did in this case, trial courts must weigh the prohibitive value
against the danger of any unfair prejudice that admission might cause. A decision on the
admissibility of photographs in such cases cannot be based solely on the graphic nature of the
photographs. See, e.g., Howard, 226 Mich App at 549-550; Head, ___ Mich App at ___; slip op
at 7.
III. QUALIFICATION OF EXPERT WITNESS
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Next, defendant argues that the trial court committed errors requiring reversal by
qualifying the prosecution’s witness, nurse Katrina Sadowski, as an expert in sexual abuse
trauma and by admitting her testimony when she was not certified by the state as a Sexual
Assault Nurse Examiner (SANE). We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
Defendant objected at trial to the qualification of Sadowski, but he did not object to her
testimony regarding the absence of injury in most sexual assault cases or the victim’s body
language. Therefore, defendant preserved his challenge to Sadowski’s qualification as an expert
generally, but he did not preserve his remaining challenges to her testimony. See Knox, 469
Mich at 508; Canter, 197 Mich App at 563. This Court reviews for an abuse of discretion a trial
court’s decision on an expert’s qualifications, as well as a trial court’s decision to admit or
exclude expert witness testimony. People v Dixon-Bey, 321 Mich App 490, 496; 909 NW2d 458
(2017). “Unpreserved claims of evidentiary error are reviewed for plain error affecting the
defendant’s substantial rights.” People v Benton, 294 Mich App 191, 202; 817 NW2d 599
(2011).
B. ANALYSIS
MRE 702 governs the admissibility of expert testimony and provides:
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
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.
At trial, Sadowski testified that she held an associate’s degree in nursing and a nursing
license, received sexual assault training through an online course, had worked at Haven since
2009, and had performed approximately 30 examinations as a sexual assault nurse examiner.
Sadowski had not yet received her state certification as a sexual assault nurse examiner because
she had not been available when the test was offered. She had never written any articles and
never previously testified in court, although neither is required in order to qualify as an expert
witness. After defendant objected to Sadowski’s qualifications as an expert in forensic nursing,
Sadowski further testified that the 30 examinations that she had performed were based on her
forensic nursing training, she had earned approximately 36 continuing education credits, and she
completed reports with each examination. The trial court qualified her as an expert in forensic
nursing.
Defendant’s primary argument is that the trial court abused its discretion by qualifying
Sadowski as an expert because she had not yet received certification from the state. However,
MRE 702 does not require that an expert be certified by the state in the area in which the expert
is qualified. Rather, an expert may be qualified based on “knowledge, skill, experience, training,
or education.” MRE 702. Sadowski, most importantly, was a certified nurse. The fact that she
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had yet to receive her SANE certification does not render her incompetent as a medical
professional. To require some form of certification in a specific subfield of a larger profession in
order to serve as an expert witness would cause not only absurd results, but mandate the creation
of new certifications any time a novel or rare issue were before a trial court.
To the extent that defendant challenges specific portions of Sadowski’s testimony on
grounds other than her general lack of qualification as an expert, his claims are without merit.
First, defendant challenges Sadowski’s testimony that genital injury is not present in most sexual
assault cases. Secondly, defendant challenges Sadowski’s testimony that, during her
examination of the victim, the victim was “shielding herself[,]” and “had her arms huddled
around herself[.]” Defendant points out that the prosecutor referred to this testimony in her
rebuttal argument. Defendant argues that Sadowski’s testimony improperly enhanced the
victim’s credibility by indicating that, even though there was no evidence of trauma, the victim’s
body language implied that the sexual assaults occurred. He further argues that Sadowski’s
testimony was beyond her expertise, substantially prejudicial, and without foundation.
With regard to Sadowski’s testimony regarding the lack of injury in most cases, this
testimony was properly admitted because it was based on Sadowski’s specialized knowledge and
assisted the jury in understanding the evidence in this case. See MRE 702; see also People v
McLaughlin, 258 Mich App 635, 657-658; 672 NW2d 860 (2003). The lack of the appearance
of injury in sexual assault cases is not a new or novel theory. Additionally, Sadowski’s
testimony regarding the victim’s body language was not based on Sadowski’s specialized
knowledge, but on her “perception of the witness.” This testimony was admissible lay testimony
under MRE 701, rather than as expert testimony. See McLaughlin, 258 Mich App at 657-658.
Accordingly, the admission of Sadowski’s testimony did not constitute plain error affecting
defendant’s substantial rights.
IV. PRESENTENCE INVESTIGATION REPORT
Finally, defendant argues that this Court should remand this matter to the trial court
because the cover sheet of his presentence investigation report (PSIR) contains inaccurate
information that must be corrected. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
“A challenge to the validity of information contained in the PSIR may be raised at
sentencing, in a proper motion for resentencing, or in a proper motion to remand.” People v
Lloyd, 284 Mich App 703, 705-706; 774 NW2d 347 (2009). At the sentencing hearing,
defendant objected to an error on page 6 of the PSIR, but he did not object to any alleged error
on the cover sheet. Defendant has not filed a motion for resentencing or a motion to remand.
Therefore, this issue is unpreserved. See id.; Canter, 197 Mich App at 563. Unpreserved claims
involving the accuracy of a PSIR are reviewed for plain error affecting defendant’s substantial
rights. People v McCrady, 244 Mich App 27, 32; 624 NW2d 761 (2000).
B. ANALYSIS
“A judge is entitled to rely on the information in the presentence report, which is
presumed to be accurate unless the defendant effectively challenges the accuracy of the factual
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information.” People v Grant, 455 Mich 221, 233-234; 565 NW2d 389 (1997) (citations
omitted). Moreover, “[t]he Department of Corrections relies on the information contained in the
PSIR to make critical decisions regarding a defendant’s status. Therefore, it is imperative that
the PSIR accurately reflect the sentencing judge’s determination regarding the information
contained in the report.” Lloyd, 284 Mich App at 705-706 (citations omitted).
Defendant claims that the cover sheet of his PSIR improperly lists his sentences for
Counts 2 and 3 as “LIFE.” Defendant is correct that the trial court did not sentence him to life
imprisonment on Counts 2 and 3, but rather to 10 to 40 years in prison for each count, as
reflected in the amended judgment of sentence. Nonetheless, defendant has not demonstrated an
error on the cover sheet of the PSIR. The PSIR is prepared before sentencing; therefore, it
cannot contain information regarding the sentence imposed by the court at the sentencing
hearing. See MCL 771.14. This is supported by the fact that the “Criminal History” section of
the PSIR leaves blank the sentences for defendant’s current offenses. Although the cover sheet
refers to the “Max” sentence, it apparently lists, and informed the trial court of, the maximum
sentence possible for each of defendant’s current convictions, which was life imprisonment for
Counts 1, 2, and 3. See MCL 750.520b(2). Accordingly, defendant fails to establish any plain
error on the cover sheet of the PSIR.
V. CONCLUSION
Affirmed.
/s/ Amy Ronayne Krause
/s/ Christopher M. Murray
/s/ Stephen L. Borrello
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