People of Michigan v. Abdulmasih Sabri Nehmou ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 21, 2023
Plaintiff-Appellant,
v No. 360209
Macomb Circuit Court
ABDULMASIH SABRI NEHMOU, LC No. 2021-001365-FC
Defendant-Appellee.
Before: BOONSTRA, P.J., and LETICA and FEENEY, JJ.
PER CURIAM.
The prosecution appeals as of right from the trial court’s order dismissing one count of
first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(c), and one count of first-degree
home invasion, MCL 750.110a(2), against defendant. Specifically, the prosecutor only submits
that the trial court erred in its ruling excluding evidence. We reverse the trial court’s underlying
evidentiary ruling.1
I. BASIC FACTS AND PROCEDURAL HISTORY
On January 5, 2021, defendant was allegedly recorded on a video camera entering the home
of the female complainant, RM, at 12:40 p.m. After defendant’s entry into the home, the sound of
a woman’s scream was heard. At 2:18 p.m., RM called 911 and reported that a man attempted to
rape her and that she had a video camera recording. When a patrol officer arrived at the residence,
he observed RM and her husband sitting on the couch. RM appeared “shaken up” as if she had
previously been crying. After RM was separated from her husband, she told the patrol officer that
“an unknown male went over to her, put his hand over her mouth, told her to be quiet, and
1
On appeal, the prosecutor’s statement of questions presented raises only one issue addressing the
trial court’s evidentiary decision. An issue not raised in the statement of questions presented is
not properly presented for appellate review and is considered waived. People v Fonville, 291 Mich
App 363, 383; 804 NW2d 878 (2011); MCR 7.212(C)(5). Because the prosecutor’s appeal does
not raise or even address the trial court’s rationale for the dismissal, we do not address it.
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penetrated her vagina with his fingers.” In light of the nature of the assault, the officer asked RM
if she wished to meet with a Sexual Assault Nurse Examiner (SANE), but RM appeared hesitant,
did not immediately agree, and explained that she had already showered and changed her clothing.
The officer contacted Warren Police Detective James Twardesky who instructed the officer to
transport RM to the police station.
Detective Twardesky spoke with RM at the police station. RM reported that an unknown
male forced his way into her home, slammed her into a closet door, placed his hand over her mouth,
and digitally penetrated her. After speaking with RM for 15 to 20 minutes, Detective Twardesky
explained the nature of a SANE and the purpose of a SANE examination. RM agreed to visit the
SANE. A patrol officer transported RM to Turning Point USA, an organization which provides
forensic examination services for CSC victims. Upon arrival, an advocate escorted RM into the
building. The transporting officer returned to the police station, leaving a card with RM in the
event that she needed additional transportation.
At approximately 6:30 p.m., SANE Christina Boyland conducted a forensic examination
of RM. SANE Boyland testified that while she initially communicated with the police concerning
RM’s examination referral, she subsequently spoke with RM over the phone. SANE Boyland
explained the nature of the SANE examination and obtained preliminary consent for RM to visit
the SANE facility. Upon RM’s arrival, SANE Boyland collected general medical history from
RM, conducted a head-to-toe physical assessment for potential injuries, performed a detailed
genital exam, and swabbed RM for potential DNA samples. After SANE Boyland obtained the
necessary specimens, she compiled a sexual assault evidence collection kit and eventually
provided the contents to the police, with RM’s consent. SANE Boyland subsequently authored a
10-page medical record or SANE report, which detailed her observations of RM and the results of
the examination.
During the pendency of the case, it was learned that RM knew defendant before the alleged
crimes occurred, although she denied a dating relationship with him. Additionally, an attorney,
acting on behalf of RM, sent correspondence to the prosecutor indicating that RM would invoke
her Fifth Amendment privilege against self-incrimination if called to testify. As the case
proceeded through district and circuit court, the parties disputed the admissibility of any testimony
pertaining to statements made by RM and the 10-page report of SANE Boyland under Crawford
v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), if RM failed to appear at trial.
The prosecutor represented that RM was fearful after having been contacted by defendant’s family
members. The prosecutor also posited that RM was entitled to immunity or did not need immunity.
Yet, the specific efforts taken to contact RM and any confirmation regarding whether RM recanted
her allegations were not delineated on the record.
The trial court conducted an evidentiary hearing to determine the admissibility of RM’s
statements to SANE Boyland. Specifically, it examined the totality of the circumstances
surrounding RM’s statements to determine if they were testimonial. The trial court acknowledged
that RM seemingly made statements to SANE Boyland for purposes of medical treatment and
diagnosis, but noted there was a concomitant motivation by SANE Boyland to collect evidence.
Ultimately, after discussing the circumstances surrounding the statements, the trial court concluded
the primary purpose of the SANE examination “was to establish past events potentially relevant
to a later prosecution rather than to provide medical assistance[.]” Accordingly, the trial court
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determined that the statements were testimonial in nature. Therefore, RM’s statements to SANE
Boyland were not admissible unless RM testified, thereby obviating any confrontation issue.
After the decision, the prosecutor represented that she would address the evidentiary ruling
with the appellate division to determine whether an interlocutory appeal would be taken. The trial
court noted that the trial date was scheduled to occur in four days, RM should be subpoenaed, and
the court would address any invocation of a privilege. After the trial court’s statement, the
prosecutor responded, “Of course, I subpoenaed her[;] there is a trial scheduled for Tuesday.”
On the scheduled trial date, the prosecution appeared without RM although RM was
identified on her witness list. It was represented that the police attempted to serve RM at her home
but were unsuccessful. Additionally, the prosecutor e-mailed a subpoena to RM’s attorney. RM’s
attorney had not spoken to RM. The prosecutor expressed that RM was in hiding because of her
fear of defendant. The prosecutor requested a brief adjournment to try to locate RM or to determine
a manner to proceed to trial without RM and SANE Boyland. Despite the earlier representation
that RM had been subpoenaed, it was explained that the prosecution did not generally subpoena
witnesses until trial commenced. The defense objected to any adjournment, citing defendant’s
period of incarceration, the prosecutor’s lack of effort to secure RM’s testimony, and the failure to
appropriately subpoena RM. The defense questioned why an adjournment or stay was warranted
when the prosecutor could dismiss and re-file charges. The prosecutor never indicated that she
was prepared to proceed to trial with the home invasion offense alone. Instead, the prosecutor
explained that she had researched the issue and believed that RM did not need immunity to testify.
Further, she noted that the proceedings were delayed by the defense challenge to the admission of
evidence. The prosecutor stated that the trial court “eviscerated” her case by excluding the
testimony of SANE Boyland, and she could not proceed.
The trial court noted that it questioned the admissibility of SANE Boyland’s testimony
months earlier and directed the parties to brief the issue. It determined that, despite identifying
RM on its witness list, there was little effort by the prosecution to secure her presence. The trial
court concluded that the prosecutor should have prepared for the contingency of witness
availability for over a year, but did not do so. The trial court dismissed the case without prejudice,
noting the prosecution’s representation that RM was in hiding for fear of defendant. From this
dismissal, the prosecutor appeals.
II. STANDARD OF REVIEW
“A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion.” People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). A court abuses its
discretion when its decision is “outside the range of principled outcomes.” People v Musser, 494
Mich 337, 348; 835 NW2d 319 (2013). “Preliminary issues of law, including the interpretation of
the rules of evidence and the effect of constitutional provisions, are reviewed de novo.” People v
Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). The constitutional question of whether
defendant was denied his constitutional right to confront the witnesses against him is reviewed de
novo. Benton, 294 Mich App at 195.
“A trial court’s decision on a motion to dismiss charges is also reviewed for an abuse of
discretion.” People v Meeker, 340 Mich App 559, 563; 986 NW2d 622 (2022). A trial court’s
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factual findings, following an evidentiary hearing, are reviewed for clear error. See People v
Hartwick, 498 Mich 192, 239; 870 NW2d (2015); People v Thorne, 322 Mich App 340, 347; 912
NW2d 560 (2017). Factual findings will be affirmed on appeal unless this Court is left with a
definite and firm conviction that a mistake was made. People v Wheeler, 336 Mich App 361, 365;
970 NW2d 438 (2021). The trial court’s application of the facts to the relevant law is reviewed de
novo. People v Roscoe, 303 Mich App 633, 647; 846 NW2d 402 (2014).
III. ANALYSIS
The prosecutor submits the trial court erred when it determined that the statements of RM
to SANE Boyland were testimonial in nature. We agree.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him[.]” US Const, Am VI; see also Const 1963, art 1, § 20. “The
Confrontation Clause of the Sixth Amendment bars the admission of testimonial hearsay unless
the declarant is unavailable and the defendant has had a prior opportunity for cross-examination.”
People v Payne, 285 Mich App 181, 197; 774 NW2d 714 (2009). “However, if the hearsay is
nontestimonial, the Confrontation Clause does not restrict state law from determining
admissibility.” People v Garland, 286 Mich App 1, 10; 777 NW2d 732 (2009).
Evidence is testimonial if it is “a solemn declaration or affirmation made for the purpose
of establishing or proving some fact.” People v Bruner, 501 Mich 220, 227; 912 NW2d 514 (2018)
(quotation marks and citation omitted). Statements are also testimonial if “the ‘primary purpose’
of the statements or the questioning that elicits them ‘is to establish or prove past events potentially
relevant to later criminal prosecution.’ ” Garland, 286 Mich App at 10, quoting Davis v
Washington, 547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006).
In People v Spangler, 285 Mich App 136, 138; 774 NW2d 702 (2009), this Court addressed
the admissibility of a statement made by the four-year-old complainant to a SANE. Specifically,
the complainant’s mother became concerned when the young complainant engaged in behaviors
atypical for his age. The complainant’s mother contacted the family physician who referred her
to the hospital to check for injuries. At the hospital, the complainant’s mother signed a permission
form authorizing a SANE forensic examination, including photographs. A SANE recorded that
the complainant divulged that the defendant committed acts of CSC. However, the record
contained no information regarding the intake process, the SANE assignment, the hospital’s
association with SANE, the training and certification of a SANE, and the relationship between a
SANE and law enforcement. Additionally, the circumstances surrounding the completion of the
statement form and the context of the complainant’s statement were not delineated. The defendant
challenged the admission of the complainant’s statement to the SANE, and the trial court granted
the motion in limine. However, the record available to the trial court was limited to oral argument
on the motion in limine to exclude the statement, the state police incident report, and a medical
forensic form. Id. at 138-140.
The Spangler Court determined that the underlying circumstances pertaining to a SANE
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examination must be evaluated, stating:
[I]n order to determine whether a sexual abuse victim’s statements to a SANE are
testimonial, the reviewing court must consider the totality of the circumstances of
the victim’s statements and decide whether the circumstances objectively indicated
that the statements would be available for use in a later prosecution or that the
primary purpose of the SANE’s questioning was to establish past events potentially
relevant to a later prosecution rather than to meet an ongoing emergency.
The Spangler Court then identified a nonexhaustive list of factors to be considered in evaluating
whether the statements of a victim of CSC to a SANE or similar examiner were testimonial:
. . . (1) the reason for the victim’s presentation to the SANE, e.g., to be checked
for injuries or for signs of abuse; (2) the length of time between the abuse and the
presentation; (3) what, if any, preliminary questions were asked of the victim or the
victim’s representative, or what preliminary conversations took place, before the
official interview or examination; (4) where the interview or examination took
place, e.g., a hospital emergency room, another location in the hospital, or an off-
site location; (5) the manner in which the interview or examination was conducted;
(6) whether the SANE conducted a medical examination and, if so, the extent of
the examination and whether the SANE provided or recommended any medical
treatment; (7) whether the SANE took photographs or collected any other evidence;
(8) whether the victim’s statements were offered spontaneously, or in response to
particular questions, and at what point during the interview or examination the
statements were made; (9) whether the SANE completed a forensic form during or
after the interview or examination; (10) whether the victim or the victim’s
representative signed release or authorization forms, or was privy to any portion of
the forensic form, before or during the interview or examination; (11) whether
individuals other than the victim and the SANE were involved in the interview or
examination and, if so, the level of their involvement; (12) if and when law
enforcement became involved in the case, how they became involved, and the level
of their involvement; and (13) how SANEs are used by the particular hospital or
facility where the interview or examination took place. [Id. at 155-156.]
In Spangler, this Court concluded that the trial court erred by solely rendering its admissibility
determination premised on the basis of the forensic form completed by the SANE. The trial court
record was insufficiently developed, and the totality of the circumstances was and could not be
addressed, warranting a remand for further proceedings. Id. at 156-157.
In Garland, the victim went to a bar with her sister, her friend Barb, and the defendant.
Garland, 286 Mich App at 3. The victim and her sister left the bar separately and accidentally
took Barb’s keys. Barb’s keys were left on their porch. The defendant drove Barb to the apartment
to retrieve the keys and then left Barb at her car. The victim was asleep when she woke up to find
the defendant sexually assaulting her. The victim denied consenting to any sexual activity or to
inviting the defendant to her apartment. Id. at 3-4.
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On appeal, the defendant alleged that the trial court erred by admitting the statements by
the victim to a nurse, contending that the statements were hearsay and violated his right of
confrontation. This Court determined that the victim’s statements to the nurse were admissible as
an exception to the hearsay rule governing statements for medical treatment, stating:
“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” are admissible as an exception to the hearsay rule. MRE 803(4);
People v Meeboer (After Remand), 439 Mich 310, 322; 484 NW2d 621 (1992). The
rationale supporting the admission of statements under this exception is the
existence of (1) the reasonable necessity of the statement to the diagnosis and
treatment of the patient, and (2) the declarant’s self-interested motivation to speak
the truth to treating physicians in order to receive proper medical care. Id.The victim’s statements to the nurse were reasonably necessary for her
treatment and diagnosis. The victim went to the hospital for medical care the
morning of the assault. She was directed to LACASA, a nonprofit organization in
Livingston County that provides free and confidential comprehensive services for
sexual assault survivors, for such medical care. The nurse was the first person to
take a history from the victim and examine the victim, which she did at 6:00 p.m.
on the day of the assault. The police investigation occurred after, and separate from,
the nurse’s taking of the history and examination. The nurse testified that the
patient’s history is very important because it tells her how to treat the patient and
how to proceed with the examination. Then, considering the victim’s history, the
nurse provides medical treatment to the victim.
Moreover, the victim had a self-interested motivation to speak the truth to
the nurse in order to obtain medical treatment. The victim in this case was over the
age of ten and thus there was a rebuttable presumption that she understood the need
to tell the truth to the nurse. People v Crump, 216 Mich App 210, 212; 549 NW2d
36 (1996); People v Van Tassel (On Remand), 197 Mich App 653, 662; 496 NW2d
388 (1992). The fact that the victim did not have any immediately apparent
physical injuries did not rebut this presumption. Often, the injuries inflicted on the
victim in a sexual assault, such as transmission of a sexually transmitted disease,
immune deficiency virus, or psychological trauma, are impossible to detect at first
but still require diagnosis and treatment. Meeboer, supra at 328-329. [Garland,
286 Mich App at 8-10.]
This Court also addressed the defendant’s challenge to the right to confront the witnesses
against him. After citing to the factors delineated in Spangler, the Garland Court determined that
the statements to the nurse were admissible, holding:
The admission of the victim’s statements to the nurse did not violate [the]
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defendant’s right to confront the witnesses against him because the statements were
nontestimonial.
* * *
Here, unlike in Spangler, where the factual record was not developed
enough to determine whether the victim’s statements were testimonial, we have a
factual record that sufficiently indicates that under the totality of the circumstances
of the complainant’s statements, an objective witness would reasonably believe that
the statements made to the nurse objectively indicated that the primary purpose of
the questions or the examination was to meet an ongoing emergency. Id. at 157.
For the same reasons that the victim’s statements to the nurse were
reasonably necessary for her treatment and diagnosis, we conclude that the victim’s
statements were nontestimonial. Although the nurse does collect evidence during
the course of the examination after taking a patient’s history and the nurse is
required to report the assault and turn over the evidence to law enforcement
officials, the nurse is not involved in the police officer’s interview of the victim
after the examination and is not personally involved in the officer’s investigation
of the crime. The victim in this case did not have any outwardly visible signs of
physical trauma; therefore, the nurse could not have treated her with antibiotics and
emergency birth control unless she knew her history. Thus, we hold that, on these
facts, the circumstances did not reasonably indicate to the victim that her statements
to the nurse would later be used in a prosecutorial manner against defendant.
People v Jambor (On Remand), 273 Mich App 477, 487; 729 NW2d 569 (2007).
[T]he Confrontation Clause did not bar admission of the victim’s statements
to the nurse[.] [Garland, 286 Mich App at 10-12.]
In this case, the trial court applied the witnesses’ testimony to the Spangler factors and
determined that the SANE “examination was to establish past events potentially relevant to a later
prosecution rather than to provide medical assistance or assistance otherwise.” However,
following a de novo application of the facts to the applicable law, we conclude that the trial court
erred in its determination. The SANE examination was performed in an office located in a
hospital’s medical office building. The space consisted of a waiting area, a location where the
client’s medical history was taken, a laboratory where medication was kept, and a physical
examination room. The examination room had all of the necessary equipment to perform a
gynecological evaluation and take necessary samples. SANE Boyland testified that the primary
purpose of the examination was to address the health and well-being of the patient. The meeting
with the patient was designed to take a history, diagnose, and formulate a treatment plan.
SANE Boyland testified that if a patient was referred for an examination, she called the
person who made the referral. In this case, Detective Twardesky spoke with RM at the police
station and explained the nature of a SANE and the purpose of a SANE examination. SANE
Boyland, however, then spoke directly to the patient, in this case RM, to ensure that the
examination was requested. SANE Boyland described the circumstances surrounding an
examination. She initially discussed the services to be provided, and the patient was advised of
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what the exam entailed. The patient was given the opportunity to ask any questions and initially
provided telephonic consent. Once the patient arrived at the office, the patient was interviewed by
an advocate2 to determine immediate needs and any crisis intervention. SANE Boyland then
discussed the medical examination, its components, the care provided, and answered any
questions. After the patient signed an informed consent form, the patient was advised that
participation in the criminal justice system was not required to receive medical treatment. Once
the examination started, the patient retained the right to stop it at any time. The patient was told
that the examination, the treatment, and any evidence collection was voluntary. The patient was
given important health information and advised that all services were performed for free.
SANE Boyland then testified regarding her examination of RM. After RM was advised
that she was not obligated to participate in any police investigation, she opted to submit to the
physical examination. After obtaining a medical history, SANE Boyland questioned RM
regarding her injuries. The SANE examiner then performed a general physical exam followed by
a head-to-toe evaluation documenting injuries through photographs or charting. SANE Boyland
testified that no one else was present for the exam and interview, and the police were not involved,
in any way, with the examination. SANE Boyland examined RM within six hours of the reported
assault and performed an external physical exam of her genitals. Although RM declined a
speculum exam, SANE Boyland was able to take blind samples.
Thus, within six hours of the alleged assault, RM arrived at a medical office building for
purposes of a medical examination to check for injuries or signs of abuse. The examination took
place in an office located in a hospital’s medical office building. An interview and examination
was conducted by SANE Boyland. Although photographs and evidence were collected, RM was
advised that she was not required to participate in the criminal justice process. Despite the
recommendation by the police to participate in the SANE, SANE Boyland testified that she
independently advised RM of the process and obtained her consent when the police were not
present. In light of the totality of these facts and circumstances, an objective witness would
reasonably believe that any statements were not made for the primary purpose of establishing past
events potentially relevant to a later prosecution instead of the necessity of addressing an ongoing
emergency. Spangler, 286 Mich App at 31. Because the statements were nontestimonial, they
were not barred by the Confrontation Clause.
In Garland, the victim sought treatment before being interviewed by the police. We
recognize that RM expressed hesitancy to consult with a SANE examiner and was driven to the
office building by the police. However, the police explained to RM the purpose of the examination
as well as the treatment she would receive. Further, after arriving at the SANE office and after the
police departed, SANE Boyland once again obtained RM’s consent to submit to the exam. SANE
Boyland advised RM that she was not required to cooperate with law enforcement by submitting
to the exam and obtaining medical treatment. We conclude that the police involvement at the
beginning of the investigation did not alter the purpose and scope of the examination. Although
defendant asserts that the police “cajoled” RM into participating in a SANE examination, the trial
court did not make a finding. Rather, Detective Twardesky expressed that a victim should be
2
An advocate did not testify at the evidentiary hearing.
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examined for injuries and disease transmission. Accordingly, the trial court erred in determining
that the evidence was testimonial and deemed the SANE examiner’s testimony inadmissible.
We reverse the trial court’s evidentiary ruling.
/s/ Mark T. Boonstra
/s/ Anica Letica
/s/ Kathleen A. Feeney
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