People of Michigan v. Joshua Lee Thorpe

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Bridget M. McCormack Stephen J. Markman
Brian K. Zahra
Chief Justice Pro Tem:
Richard H. Bernstein
David F. Viviano Elizabeth T. Clement
Megan K. Cavanagh
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
PEOPLE v THORPE
PEOPLE v HARBISON
Docket Nos. 156777 and 157404. Argued on application for leave to appeal April 11,
2019. Decided July 11, 2019.
In Docket No. 156777, Joshua L. Thorpe was convicted following a jury trial in the
Allegan Circuit Court, Margaret Zuzich Bakker, J., of three counts of second-degree criminal
sexual conduct (CSC-II), MCL 750.520c(1)(a). At trial, the jury heard testimony from Thomas
Cottrell, the prosecution’s expert witness who was qualified as an expert in the area of child
sexual abuse and disclosure. Cottrell neither examined the alleged child victim nor was provided
specific information about the case; rather, Cottrell was called to offer an expert opinion based
on his education, experience, and long-term involvement with children and child sexual abuse.
Cottrell testified to the broad range of reactions of children who are abused, the cost/benefit
analysis children make in deciding whether to disclose abuse, and some of the reasons children
may delay disclosure. The prosecution asked Cottrell to provide a percentage of the number of
children who lie about sexual abuse. Defense counsel objected, but the court overruled the
objection. Cottrell then testified that children only lie about sexual abuse 2% to 4% of the time.
The jury convicted Thorpe. Thorpe appealed, and the Court of Appeals, HOEKSTRA, P.J., and
MURPHY and K. F. KELLY, JJ., affirmed the convictions in an unpublished per curiam opinion
issued on August 10, 2017 (Docket No. 332694). Thorpe moved for reconsideration, which the
Court of Appeals denied. Thorpe then sought leave to appeal in the Supreme Court, and the
Supreme Court ordered and heard oral argument on whether to grant the application or take other
action. 503 Mich. 869 (2018).
In Docket No. 157404, Brandon J. Harbison was convicted following a jury trial in the
Allegan Circuit Court, Kevin W. Cronin, J., of two counts of first-degree criminal sexual conduct
(CSC-I), MCL 750.520b(1)(b); attempted CSC-I, MCL 750.520b(1)(b); two counts of CSC-II,
MCL 750.520c(1)(a); and one count of accosting a child aged less than 16 years old for immoral
purposes, MCL 750.145a. At trial, the prosecution presented testimony from Dr. N. Debra
Simms, a pediatrician and an expert in the field of child sexual abuse diagnostics. Dr. Simms
examined the alleged child victim, noted nonspecific findings, cited a pediatrics journal article,
and diagnosed the child with “probable pediatric sexual abuse.” The jury convicted Harbison.
Harbison filed an appeal as of right and a motion to remand for an evidentiary hearing. The
Court of Appeals, while retaining jurisdiction, granted the motion to remand. Following the
hearing, the trial court granted a new trial. However, the Court of Appeals, MURPHY, P.J., and
METER, J. (RONAYNE KRAUSE, J., concurring in the result), reversed the trial court’s grant of a
new trial and affirmed Harbison’s convictions in an unpublished per curiam opinion issued on
January 26, 2017 (Docket No. 326105). Harbison sought leave to appeal in the Supreme Court,
and the Supreme Court, in lieu of granting leave to appeal, vacated the part of the Court of
Appeals judgment concerning the testimony of Dr. Simms and remanded the case to the Court of
Appeals for reconsideration in light of People v Peterson, 450 Mich. 349 (1995). 501 Mich. 897
(2017). On remand, in an unpublished per curiam opinion issued on January 23, 2018, the Court
of Appeals, MURPHY, P.J., and METER and RONAYNE KRAUSE, JJ., again affirmed Harbison’s
convictions, holding that it could not find a clear error with regard to Dr. Simms’s testimony.
Harbison again sought leave to appeal in the Supreme Court, and the Supreme Court ordered and
heard oral argument on whether to grant the application or take other action. 501 Mich. 1074
(2018).
In a unanimous opinion by Justice ZAHRA, the Supreme Court, in lieu of granting leave to
appeal, held:
Expert witnesses may not testify that children overwhelmingly do not lie when reporting
sexual abuse because such testimony improperly vouches for the complainant’s veracity, and
examining physicians cannot testify that a complainant has been sexually assaulted or has been
diagnosed with sexual abuse without physical evidence that corroborates the complainant’s
account of sexual assault or abuse because such testimony vouches for the complainant’s
veracity and improperly interferes with the role of the jury.
1. Preserved, nonconstitutional errors are subject to harmless-error review under MCL
769.26, which states that no judgment or verdict shall be set aside or reversed or a new trial be
granted by any court of this state in any criminal case, on the ground of misdirection of the jury,
or the improper admission or rejection of evidence, or for error as to any matter of pleading or
procedure, unless in the opinion of the court, after an examination of the entire cause, it shall
affirmatively appear that the error complained of has resulted in a miscarriage of justice. If the
issue is preserved, then the effect of the error is evaluated by assessing it in the context of the
untainted evidence to determine whether it is more probable than not that a different outcome
would have resulted without the error. If the issue is not preserved, then the defendant must
show a plain error that affected substantial rights. In Docket No. 156777, defense counsel’s
objection to Cottrell’s expert testimony that children only lie about sexual abuse 2% to 4% of the
time was sufficient to preserve Thorpe’s nonconstitutional claim that Cottrell’s testimony should
not have been admitted. Defense counsel did not open the door to Cottrell’s testimony regarding
the rate of false reports in child sexual abuse cases simply by asking him on cross-examination
whether children lie or manipulate. Accordingly, Thorpe’s claim was preserved, and Thorpe had
the burden of establishing a miscarriage of justice under a “more probable than not” standard to
establish error requiring reversal. In Docket No. 157404, defense counsel did not object to Dr.
Simms’s expert testimony that the child suffered “probable pediatric sexual abuse.”
Accordingly, Harbison’s claim was reviewed under the plain-error standard.
2. In People v Smith, 425 Mich. 98 (1986), the Supreme Court held that an examining
physician, if qualified by experience and training relative to treatment of sexual assault
complainants, can opine with respect to whether a complainant had been sexually assaulted when
the opinion is based on physical findings and the complainant’s medical history. Four years
later, the lead opinion in People v Beckley, 434 Mich. 691 (1990) (opinion by BRICKLEY, J.),
observed that evidence of behavioral patterns of sexually abused children may be admissible for
the narrow purpose of rebutting an inference that a complainant’s postincident behavior was
inconsistent with that of an actual victim of sexual abuse, incest, or rape. Five years later, in
People v Peterson, 450 Mich. 349 (1995), the Supreme Court found a majority to clarify the
plurality decision in Beckley and held that an expert may testify in the prosecution’s case-in-chief
regarding typical and relevant symptoms of child sexual abuse for the sole purpose of explaining
a victim’s specific behavior that might be incorrectly construed by the jury as inconsistent with
that of an actual abuse victim. Peterson further held that an expert may testify with regard to the
consistencies between the behavior of the particular victim and other victims of child sexual
abuse to rebut an attack on the victim’s credibility. However, the Supreme Court held that the
experts in Peterson improperly vouched for the veracity of the child victim by testifying that
children lie about sexual abuse at a rate of about 2%. Applying that framework, in Docket No.
156777, not only did Cottrell opine that only 2% to 4% of children lie about sexual abuse, but he
also identified only two specific scenarios in his experience when children might lie, neither of
which applied in this case. As a result, although he did not actually say it, one could reasonably
conclude on the basis of Cottrell’s testimony that there was a 0% chance the child had lied about
sexual abuse. Furthermore, the prosecution’s closing argument on rebuttal highlighted this
improper evidence at a pivotal juncture at trial. Thorpe’s trial was a true credibility contest
because there was no physical evidence, there were no witnesses to the alleged assaults, and
there were no inculpatory statements. Because the trial turned on the jury’s assessment of the
child’s credibility, the improperly admitted testimony wherein Cottrell vouched for the child’s
credibility likely affected the jury’s ultimate decision. Under these circumstances, Thorpe
showed that it was more probable than not that a different outcome would have resulted without
the expert’s improper testimony. In Docket No. 157404, Dr. Simms’s opinion that the child
suffered “probable pediatric sexual abuse” was contrary to the Supreme Court’s unanimous
decision in Smith. Dr. Simms candidly acknowledged that her examination of the child showed
no physical evidence of an assault; her conclusion that the child suffered “probable pediatric
sexual abuse” was based solely on her own opinion that the child’s account of the assaults was
“clear, consistent, detailed and descriptive.” That testimony fell within Smith’s holding that an
examining physician cannot give an opinion on whether a complainant had been sexually
assaulted if the conclusion is nothing more than the doctor’s opinion that the victim had told the
truth. Furthermore, this error was plain. The decision in Smith was unanimous and has never
been called into question. The test in Smith is a very straightforward bright-line test that trial
courts can readily observe, and other than in this case, every other Court of Appeals panel that
has considered an examining physician’s diagnosis of “probable pediatric sexual abuse” has
acknowledged that the admission of this testimony is error. Finally, Dr. Simms’s testimony that
the child suffered “probable pediatric sexual abuse” affected defendant’s substantial rights.
Regardless of whether “probable pediatric sexual abuse” is a term of art that can be used as a
diagnosis with or without physical findings, Dr. Simms’s testimony had the clear effect of
improperly vouching for the child’s credibility. Harbison’s case was also largely a credibility
contest with the only evidence against Harbison being the child’s uncorroborated testimony;
accordingly, given the lack of compelling testimony that formed the basis for the verdict and the
plainly erroneous testimony that the child suffered “probable pediatric sexual abuse,” the plain
error affected Harbison’s substantial rights. This error also invaded the province of the jury to
determine the only issue in the case, and Dr. Simms reinforced this plain error by claiming that
her diagnosis was based on a “national [consensus]” of pediatricians when even a cursory review
of the pediatrics journal article on which she relied revealed that the authors did not intend for
pediatricians to rely on the article to make a diagnosis of “probable pediatric sexual abuse” at
trial. This improperly admitted testimony very likely bolstered the child’s credibility and
affected the verdict and integrity of Harbison’s trial.
Docket No. 156777 reversed and remanded to the Allegan Circuit Court for a new trial;
Docket No. 157404 reversed and remanded to the Allegan Circuit Court for a new trial.
©2019 State of Michigan
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Bridget M. McCormack Stephen J. Markman
Brian K. Zahra
Chief Justice Pro Tem: Richard H. Bernstein
David F. Viviano Elizabeth T. Clement
Megan K. Cavanagh
FILED July 11, 2019
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 156777
JOSHUA LEE THORPE,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 157404
BRANDON JAMES HARBISON,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
ZAHRA, J.
In these consolidated cases, we address the propriety and scope of expert testimony
in cases alleging child sexual abuse. In Thorpe, we address the admissibility of testimony
from an expert in the area of child sexual abuse and disclosure about the rate of false reports
of sexual abuse by children to rebut testimony elicited on cross-examination that children
can lie and manipulate. In Harbison, we address the admissibility of expert testimony from
an examining physician that “diagnosed” the complainant with “probable pediatric sexual
abuse” despite not having made any physical findings of sexual abuse to support that
conclusion. In Thorpe, we hold that expert witnesses may not testify that children
overwhelmingly do not lie when reporting sexual abuse because such testimony improperly
vouches for the complainant’s veracity. And because Thorpe has established that this
testimony more likely than not affected the outcome of the case, we reverse the judgment
of the Court of Appeals and remand to the Allegan Circuit Court for a new trial. In
Harbison, we hold that examining physicians cannot testify that a complainant has been
sexually assaulted or has been diagnosed with sexual abuse without physical evidence that
corroborates the complainant’s account of sexual assault or abuse because such testimony
vouches for the complainant’s veracity and improperly interferes with the role of the jury.
Because we conclude that this error was plain, affected Harbison’s substantial rights, and
seriously affected the integrity of his trial, we reverse the judgment of the Court of Appeals
and remand to the Allegan Circuit Court for a new trial.1
1
Given our disposition of these cases, we need not reach the remaining issues raised in
defendants’ applications.
2
I. PEOPLE v THORPE
In 2006, defendant Joshua Thorpe began a relationship with Chelsie. She had a
three-year-old daughter, BG, from a previous relationship. BG viewed Thorpe as a father
figure and would refer to him as “dad.”
In August 2007, Thorpe and Chelsie had a daughter together. For the next few
years, Thorpe and Chelsie raised both girls with each parent working outside the home and
sharing responsibilities for watching the children. In 2008, Thorpe’s mother, Kimberly,
helped take care of both girls after Chelsie went back to school. Kimberly also ran a
daycare, and she had a daughter of her own, AS (Thorpe’s half-sister), who was close in
age and good friends with BG.
In 2010, Thorpe and Chelsie ended their relationship, but Thorpe continued
parenting both BG and his daughter. The girls also continued attending the daycare run by
Kimberly. Thorpe moved into a new residence down the street from his mother and within
walking distance of the girls’ elementary school. Although there was no formal custody
agreement, Thorpe took care of the girls three days a week when he was not working
(Saturday afternoon through Tuesday morning).
In 2012, Chelsie completed her schooling and entered into a relationship with a new
boyfriend. Chelsie considered moving to Kalamazoo with him. This caused some conflict
between Chelsie and Thorpe. For instance, on July 4, 2012, Chelsie took both girls to see
fireworks with her new boyfriend but without Thorpe. According to Thorpe, this led to an
argument between Chelsie and Thorpe. Additionally, Thorpe claims that he did not have
any parenting time with the girls for the rest of the summer. Thorpe asserts that he did not
see either of the girls until August 27, 2012, when he took his daughter out for her birthday.
3
Thorpe claims that on that day he told Chelsie that he no longer wanted to have parenting
time with BG. According to Kimberly, she had advised Thorpe that he should focus on his
biological daughter.
Chelsie became pregnant around this same time. Kimberly—who continued
watching over BG and Thorpe’s daughter at daycare—began to notice that BG had
tantrums and outbursts, including when BG would leave the daycare to go home with her
mom. Sometime in the fall of 2012, Chelsie arranged for six weeks of counseling sessions
for BG. According to Chelsie, she speculated at the time that BG was upset about her
pregnancy.
Thorpe stopped seeing BG altogether in late September or early October 2012, but
there are conflicting accounts about who made this decision. Thorpe and Kimberly contend
that it was Thorpe’s decision. According to both Chelsie and BG, however, it was BG who
decided that she no longer wanted to visit Thorpe. At that time, BG did not report any
inappropriate touching by Thorpe. Kimberly continued to care for both girls, and she
occasionally saw BG around Thorpe when he would pick up his daughter from daycare.
According to Kimberly, she never got the sense that BG was repulsed by or afraid of
Thorpe.
In April 2013, BG told AS (Kimberly’s daughter and Thorpe’s half-sister) that
Thorpe had touched her inappropriately months earlier. AS reported this information to
Kimberly. Kimberly talked with BG, who allegedly informed her of a single incident of
inappropriate contact. Kimberly, in turn, informed Chelsie. According to Kimberly, she
did not believe the allegation, but she believed that she had a duty to communicate the
allegation to Chelsie. Chelsie then notified the authorities. When questioned by
4
authorities, BG reported that Thorpe had touched her inappropriately on multiple
occassions. The prosecution charged Thorpe with three counts of second-degree criminal
sexual conduct (CSC-II).2
At trial, BG testified that Thorpe sexually assaulted her three separate times on two
dates in August 2012 when she and Thorpe’s daughter had stayed the night at Thorpe’s
residence. According to BG, the first two incidents occurred while she was watching Dora
the Explorer in the same bed as Thorpe’s daughter, who had fallen asleep. Thorpe entered
the room, laid down next to BG, and rubbed her vagina with his hand under her pajamas
but over her underwear.3 The second incident occurred several minutes later when Thorpe
again repeated the same behavior. Neither incident involved penetration. Both times BG
told Thorpe to stop, and he did. BG testified that her dog, Jake, was in the room during
both incidents.4 The next morning Thorpe told her not to tell anyone about the two
incidents.5
The third incident occurred about a week later when BG again stayed at Thorpe’s
residence with his daughter. According to BG, Thorpe entered the room while his daughter
was sleeping, pulled BG’s wrist behind her body, and placed her hand on his unclothed
2
MCL 750.520c(1)(a) (victim under the age of 13).
3
BG did not previously mention the act of rubbing to authorities. During the preliminary
examination, she asserted that Thorpe touched her under her pajamas and under her
underwear.
4
Although an offer of proof was not made at trial, Kimberly asserts that she would have
testified that the dog had died several months earlier around Christmas 2011.
5
During the preliminary examination, BG asserted that Thorpe did not say anything the
next morning.
5
penis. BG asserted that she tried to pull her arm away and kicked his leg. Thorpe let go
of her wrist at that point.
During the trial, the jury heard testimony from Chelsie, BG, Kimberly, Thorpe, and
an investigator who interviewed BG. The jury also heard testimony from the prosecutor’s
expert witness, Thomas Cottrell. Cottrell, who has a master’s degree in social work and is
the vice president of counseling services at the YWCA Counseling Center, was qualified
as an expert in the area of child sexual abuse and disclosure. Cottrell neither examined BG
nor was provided specific information about the case. The prosecutor called him to offer
an expert opinion based on his education, experience, and long-term involvement with
children and child sexual abuse. Cottrell testified to the broad range of reactions of children
who are abused, the cost/benefit analysis children make in deciding whether to disclose
abuse, and some of the reasons children may delay disclosure.
On cross-examination, the following exchange took place between defense counsel
and Cottrell:
Q. And that goes along with—well, let me ask you this, kids can lie,
true?
A. Anyone who has ever worked with a child or has had a child knows
that they can lie, yes.
Q. And they can manipulate.
A. They can do that, yes.
On redirect, the following exchange took place:
Q. In your training and experience of all of the times that you’ve
handled child sexual abuse cases, what, in your experience, if you can say, is
the percentage of children who actually do lie?
A. About the sexual assault itself?
6
Q. About the sexual assault itself.
Defense counsel objected at this point and asked if there were statistics to support
Cottrell’s anticipated answer. The trial court ultimately overruled the objection by
concluding that defense counsel had brought up the issue of children lying on cross-
examination and, thus, opened the door to the prosecutor’s line of questioning on redirect.
Cottrell proceeded to answer the prosecutor’s last question as follows:
A. Yes. I can only speak to our experience at the organization. There
is literature out there that is extremely variable in its—in it’s [sic]
identification of fabricated disclosures. I can tell you within our population,
we run into it probably two to four percent of the cases that we get hav[ing]
children alleging abuse when—sexual abuse when abuse did not actually
occur. But I will say that in those cases, there is clear motivation for them to
do that. When children lie, they lie with a purpose. They are usually trying
to get something positive to happen to them or escape some kind of pain. . . .
The whole process of investigating and being questioned and being brought
into therapy are not pleasant experiences for children by any stretch of the
imagination. So lying to bring that on to them is a relatively rare occurrence
because there is no gain for children in having the spotlight put on them.
Cottrell then identified two scenarios in which children are likely to lie about sexual
abuse: (1) when there is an abused sibling and the other child wants to be a part of whatever
the sibling is doing, including therapy, and (2) when there is domestic violence against the
other parent and the child lies about sexual abuse in order to bring attention to that situation.
The prosecutor again questioned:
Q. In your experience, you said it’s rare; is that correct?
A. And it’s extremely rare.
On re-cross, defense counsel proceeded with the following line of
questioning:
Q. These percentages are when it’s discovered, when it’s figured out,
fair?
7
A. Correct. Yes.
Q. It’s very possible that there are other cases out there that were
fabricated and false that were never discovered.
A. Well, we don’t know what we don’t know, obviously.
Before jury deliberations, the trial court provided the jury with the following
instruction regarding Cottrell’s testimony:
You have heard Thomas Cottrell’s opinion about the behavior of
sexually abused children.
You should consider that evidence only for the limited purpose of
deciding whether [BG]’s acts and words after the alleged crime were
consistent with those of sexually abused children.
That evidence cannot be used to show that the crime charged here was
committed or that the defendant committed it. Nor can it be considered an
opinion by Thomas Cottrell that [BG] is telling the truth.
The jury convicted Thorpe as charged. The trial court sentenced him to concurrent
prison terms of 71 months to 15 years of imprisonment for each count. Because BG was
under 13 years old and Thorpe was over 17 years old, Thorpe was also sentenced to lifetime
electronic monitoring under MCL 750.520n(1). A judgment of sentence was entered on
March 22, 2016.
With the assistance of appointed appellate counsel, Thorpe appealed of right. The
Court of Appeals affirmed the convictions in an unpublished per curiam opinion, finding
no error warranting reversal.6 Thorpe moved for reconsideration, which the Court of
Appeals denied.
6
People v Thorpe, unpublished per curiam opinion of the Court of Appeals, issued August
10, 2017 (Docket No. 332694).
8
Thorpe sought leave to appeal in this Court. We directed the Clerk of this Court to
schedule oral argument on whether to grant the application or take other action, ordering
the parties to address the following issues: “(1) whether the trial court abused its discretion
by allowing expert testimony on redirect about the rate of false reports of sexual abuse by
children, see [People v Peterson7], in order to rebut testimony elicited on cross examination
that children can lie and manipulate; and, if so, (2) whether the error was harmless.”8
II. PEOPLE v HARBISON
Beginning in January 2010, nearly 18-year-old defendant Brandon Harbison would
occasionally babysit his nearly 9-year-old niece, TH. He did so through December 2012,
around which time TH was removed from her home and placed in foster care. The
prosecution characterized TH’s childhood as “a life of turmoil” with a seriously drug-
addicted mother and a dysfunctional home.
While watching a movie with her foster-care mother about a family struggling to
stay together, TH “out of nowhere” started sobbing and began to describe “really bad”
things that Harbison had done to her. The foster mother stopped her and called their
caseworker before TH could give any details. After TH disclosed instances of sexual abuse
to the authorities and a pediatrician, the prosecution charged Harbison with two counts of
7
People v Peterson, 450 Mich. 349; 537 NW2d 857 (1995).
8
People v Thorpe, 503 Mich. 869, 869 (2018).
9
first-degree criminal sexual conduct (CSC-I),9 attempted CSC-I,10 two counts of CSC-II,11
and one count of accosting a child aged less than 16 years old for immoral purposes.12
At trial, TH testified that Harbison touched her in inappropriate places, including
her vagina, sometimes with his hand and sometimes with his mouth. This first happened
at her grandmother’s house and then at her mother’s house. She testified that at her
grandmother’s house, her older brother was also in the room but that she and Harbison
were alone at her mother’s house. TH described Harbison performing oral sex on her “[t]oo
many times to remember,” masturbating and ejaculating onto her backside, making her
watch pornography, and attempting vaginal and anal penetration. TH also testified that
Harbison would put his private part in her mouth and that this happened “[a] lot.” On
cross-examination by defense counsel, TH estimated that Harbison had sexually abused
her on more than 30 occasions. The last time one of these incidents occurred, Harbison
told her that it was going to stop because he and his girlfriend were having a little girl.
TH’s biological mother testified that Harbison, who was her brother, lived with her
and her children for a time and also babysat for her. She testified that she was using
methamphetamine at the time and that he was too. After she read the police report in this
matter, she asked TH if it was true, and TH said “yes.”
9
MCL 750.520b(1)(b) (fellatio with a victim less than 13 and cunnilingus with a victim
less than 13).
10
MCL 750.520b(1)(b) (attempted anal penetration of a victim less than 13).
11
MCL 750.520c(1)(a) (sexual contact with a victim less than 13).
12
MCL 750.145a.
10
The prosecution presented testimony from Dr. N. Debra Simms, a pediatrician and
an expert in the field of child sexual abuse diagnostics, in its case-in-chief. Dr. Simms
examined TH and diagnosed her with “probable pediatric sexual abuse.”
Dr. Simms testified:
Q. So all that information that you described all came from [TH].
A. Well it came from [TH] and sometimes from the foster mom.
Q. The information that you said that [TH] told you that she was
touched by [Harbison], that he—all of that information that you just recently
described, that was all from [TH]?
A. Yes ma’am, that was in my taking a history from [TH] prior to the
physical examination.
* * *
Q. What did your physical examination consist of after you got the
original history from [TH]?
A. My physical exam included a head to toe generalized physical
examination. It included looking at all of the parts of her body, doing the
vital signs, and then it included using the culpascope and looking at the
genital and anal area.
Q. Okay. And based upon what [TH] had told you, would you have
expected to find any injury or anything—any physical findings as a result of
your exam?
A. No. When she described the genital to genital contact and I asked
about any symptoms or sensation during that, she described that it felt
uncomfortable but she did not allege any bleeding.
Q. Okay.
A. Without a history of bleeding it is unlikely that we will see any kind
of scarring, although scarring is unusual to this area, but I did not expect to
see any findings of healed trauma without that history.
Q. And did you find any physical findings?
11
A. Well she has normal female genital anatomy. The structures looked
normal. In looking at her hymenal tissues she was what we call sexual
maturity rating 3, so you’re born at 1 and she was progressing puberty wise
along a stage of development. She had not yet started her periods and she
had enough sexual maturity that that could have happen [sic] at any time. In
looking at the hymenal tissues they showed what we call an estrogenized
effect, so you could see that she had gone—started going through puberty
and had pubertal changes. At the 5:00 position on the hymen there was a
very small notch, that’s a non-specific finding. So in total her physical exam
did not show any acute or remote indications of trauma, just the notch which
is a non-specific exam.
Q. And what’s a non-specific finding? What does that mean?
A. A non-specific finding is a finding that we can see for many
different reasons and is not specific to any type of trauma to the genital
tissues. You can have small notches that occur from events like time events
such as the bicycle accident or something of that nature. You can get small
notches from children that use tampons. You can get small notches that are
actually developmental in nature. So when you have a very shallow very
small notch that is less than 50% of the width of the hymenal rim, those are
considered non-specific findings.
* * *
Q. Did you have a diagnosis based on your exam and history?
A. Yes, ma’am.
Q. What was that?
A. Probable pediatric sexual abuse.
Q. And you said that even if there was no other than what you
described [sic], her physical exam was normal?
A. Yes, ma’am.
Q. Was her normal physical exam inconsistent with her description of
the sexual penetrations that she suffered?
A. No, ma’am. Her disclosure was that there had been contact by—
contact by her uncle’s mouth to her genital area. You would not expect
residual of trauma from that. There was contact by her mouth to his penis,
once again you wouldn’t expect any kind of physical examination finding
12
from that. She described that there was touching. Children, we diaper them,
we change them, we bathe them, we touch them all the time. To examine
these children I have to touch them. I have to spread apart these layers and I
don’t cause any trauma. And then she described genital to genital contact
which did not have any bleeding associated with it. So the fact that her
physical examination shows non-specific findings with this notch and
generally normal genital structures does not negate her history of what
occurred to her body.
Q. How many attempted penile/anal or genital contact[s] [do not]
leave any marks on the body? Do you have a percentage?
A. I personally have had lots of experience in which there has been
genital to genital contact and in which there is a normal or a non-specific
exam. In our published literature there is a paper, the title of it it’s normal to
be normal [sic], they took 236 children in which there was a substantiation
or conviction in which there was a higher standard than just we think that
these children may be abused and so they looked at these 236 children and
of those 236 children more than two-thirds of girls with substantiated abuse
had normal or non-specific findings. So it’s normal to be normal. When you
talk about what the nature of child sexual abuse is the majority of time it’s
licking, kissing, touching, rubbing, and we would not expect to see scarring
or residual trauma from those events.
The trial court also questioned Dr. Simms:
Q. Alright. You described your conclusion as probable pediatric
sexual abuse.
A. Yes, sir.
Q. Would you explain to the jury why you consider probable as
opposed to maybe possible?
A. In an attempt to allow pediatricians that do child abuse evaluations
to communicate with one another effectively, what I may look at and say this
is concerning, and someone else may say it’s suspicious, and someone else
may say it’s this or it’s that, what happened is there became a national
cocensus [sic] that we need to look at all of the evaluations and we need to
be on the same page. We need to look at how is it that we are evaluating
these patients and how are we coming to a conclusion. And, what occurred
is that instead of using various and sundry words to describe the outcomes of
these evaluations, an attempt was made to standardize this by saying if there
is no disclosure of abuse and it is a normal exam with no concerning
13
situations, this means that there are no medical indications of abuse at this
time, and that is a negative evaluation. If—other criteria exists [sic] but it’s
what we would consider a lower form of history. As a pediatrician I cannot
always diagnose based solely upon the medical testing such as you
referenced or from seeing something on the physical examination. If you
come in to see me and you have a headache, I cannot see your headache, but
based upon your history of where you tell me it hurts, when it hurts, how it
hurts, how it feels, when it comes, when it goes, how often it comes, taking
a comprehensive history, I can diagnose stress headache, cluster headache,
migraine headache, etcetera, based upon the history. So in child sexual abuse
we take the history that the child gives us and based upon how clear,
consistent, detailed or descriptive it may be, if that is present with or without
physical examination findings, that is probable pediatric sexual abuse. If the
child makes a statement but the statement is limited because the child may
have a developmental disability, they may be young, they may not be able to
really tell me what has happened to their body, then that can be possible
pediatric sexual abuse. They’re making a statement but for some reason
they’re not able to be clear, consistent, detailed and descriptive like with the
headache analogy. To get a diagnosis of definite pediatric sexual abuse we
have very high tough standards. You have to be pregnant, you have to have
a sexually transmitted disease that does not come from anything other than
direct sexual contact. There has to be a video, a picture or an eyewitness to
you being abused. Or, you have to have physical examination findings that
have no other explanation than penetrating trauma to the intervaginal area.
That’s a really tough standard. So that’s our definite. Then clear, consistent,
detailed and descriptive history is probable, and then we have the other 2
categories for less than that.
Q. You refer to a [“we”] have this standard. Who is the [“we”]?
A. The [“we”] are the individuals that do pediatric sexual abuse
evaluation nationwide, nationwide. We have this standard. So when I’m
communicating with Dr. Chris Greely down at Children’s Hospital in Texas,
when I say I have this then he knows that [is] the criteria that I’m using. So
for individuals that do this on a regular basis, there’s no rule to it because as
a physician you can choose to do what you want to do, but it’s basically a
practice standard for those of us that are professionals in this field.
Defense counsel called three witnesses on Harbison’s behalf. The first was
Harbison’s probation officer, who testified that Harbison was in jail during a three-month
period covered by the information. The second was Harbison’s mother, who was also TH’s
14
grandmother. She testified that Harbison quit school in the eighth grade, did not have a
driver’s license, and that he was never left alone with TH at her house. She testified that
TH only came to her house once in a while and was not there very often. On cross-
examination, she admitted that Harbison did babysit for TH’s mother, and she admitted
that she didn’t know if any other adults were present during those times. The third witness
was Harbison’s live-in girlfriend, with whom he had three children by the time of trial. She
testified that she and Harbison were always together, that he almost never went anywhere
without her, and that she knew he was never alone with TH when he babysat for TH’s
mother, because she (his girlfriend) went with him on all those occasions and stayed with
him no matter which room he went into, including the bathroom, where they would talk.
After approximately six hours of deliberation over two days, during which the jury
asked that TH’s testimony be replayed, Harbison was found guilty as charged on all counts.
The trial court subsequently denied Harbison’s motion for a new trial.
Harbison filed an appeal as of right along with a motion to remand for an evidentiary
hearing on his claims that he was denied the effective assistance of counsel. Specifically,
Harbison argued that his trial counsel failed to timely convey to him a plea offer and failed
to present evidence that TH had previously made prior false accusations of sexual abuse.
Harbison also argued that he was denied a fair trial because of Dr. Simms’s testimony that
TH had been sexually abused.
15
The Court of Appeals, while retaining jurisdiction, granted Harbison’s motion to
remand, directing the trial court to conduct a Ginther13 hearing on Harbison’s claims of
ineffective assistance of counsel and to rule again on his motion for a new trial.14
Following a lengthy hearing, the trial court granted a new trial on the ground that trial
counsel was ineffective in failing to investigate and present testimony from TH’s brother.
The brother testified at the evidentiary hearing that he never witnessed Harbison try to have
sexual contact with TH, contrary to TH’s testimony at trial that her brother was present in
the room at their grandmother’s house when Harbison had sexual contact with her.
But the Court of Appeals reversed the trial court’s grant of a new trial and affirmed
Harbison’s convictions in an unpublished per curiam opinion.15 Judge KRAUSE concurred
in the result only but did not provide an explanation. The panel concluded that defense
counsel was not ineffective because TH’s brother had credibility problems and, therefore,
his testimony would not likely have made a difference at trial.16 Regarding Dr. Simms’s
diagnosis of “probable pediatric sexual abuse,” the panel held that the admission of this
testimony was not plain error because “it appears that Dr. Simms was simply leaning
13
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
14
People v Harbison, unpublished order of the Court of Appeals, entered April 25, 2016
(Docket No. 326105).
15
People v Harbison, unpublished per curiam opinion of the Court of Appeals, issued
January 26, 2017 (Docket No. 326105).
16
Id. at 5-6.
16
toward taking [TH] at her word.”17 Under these circumstances, the panel held that this was
not a clear and obvious error and that even if it was, the panel could not find the requisite
prejudice because “the testimony, read as a whole, made clear that the physician was
simply relying on [TH]’s word, and [TH] herself testified at trial.”18
Harbison sought leave to appeal in this Court. This Court, in lieu of granting leave
to appeal, vacated “that part of the Court of Appeals judgment concerning the testimony of
Dr. N. Debra Simms” and remanded “to that court for reconsideration in light of People v
Peterson, 450 Mich. 349 (1995).”19 Leave to appeal was denied in all other respects.
On remand, the Court of Appeals held that it “cannot find a clear or obvious
error . . . with regard to Dr. Simms’s testimony, even when viewed through the lens of
Peterson.”20 Specifically, the panel held:
Dr. Simms never directly opined on the ultimate question in this case—i.e.,
whether the victim was abused by defendant—she merely stated a medical
diagnosis based on established diagnostic criteria, all of which were
explained to the jury. Moreover, she never stated that she personally, or as
an expert, found the victim’s account of the abuse to be credible. Rather, she
indicated that the victim had provided a history that was “clear, consistent,
detailed or descriptive[.]” (Emphasis added.) Viewed in context, the
testimony did not clearly run afoul of Peterson’s admonishment that an
17
Id. at 7.
18
Id.
19
People v Harbison, 501 Mich. 897, 897 (2017).
20
People v Harbison (On Remand), unpublished per curiam opinion of the Court of
Appeals, issued January 23, 2018 (Docket No. 326105), p 9.
17
expert may not vouch for the veracity of the victim or testify that the sexual
abuse occurred or that the defendant is guilty.[21]
Harbison again sought leave to appeal in this Court. We directed the Clerk of this
Court to schedule oral argument on whether to grant the application or take other action,
ordering the parties to address the following issues: “whether the prosecution’s admission
of Dr. N. Debra Simms’s expert testimony that the victim suffered ‘probable pediatric
sexual abuse’ violated this Court’s decision in [Peterson], and, if so, whether this was plain
error requiring reversal of [Harbison’s] convictions.”22
III. DETERMINATION OF APPLICABLE STANDARDS OF REVIEW
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion.23 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.’ ”24
A decision on a close evidentiary question ordinarily cannot be an abuse of discretion.25
21
Id. at 8.
22
People v Harbison, 501 Mich. 1074, 1074 (2018).
23
People v Starr, 457 Mich. 490, 494; 577 NW2d 673 (1998).
24
People v Douglas, 496 Mich. 557, 565; 852 NW2d 587 (2014), quoting People v Musser,
494 Mich. 337, 348; 835 NW2d 319 (2013).
25
People v Sabin (After Remand), 463 Mich. 43, 67; 614 NW2d 888 (2000).
18
To preserve an evidentiary issue for review, a party opposing the admission of
evidence must object at trial and specify the same ground for objection that it asserts on
appeal.26
Preserved nonconstitutional errors are subject to harmless-error review under MCL
769.26, which states:
No judgment or verdict shall be set aside or reversed or a new trial be
granted by any court of this state in any criminal case, on the ground of
misdirection of the jury, or the improper admission or rejection of evidence,
or for error as to any matter of pleading or procedure, unless in the opinion
of the court, after an examination of the entire cause, it shall affirmatively
appear that the error complained of has resulted in a miscarriage of justice.[27]
In sum, if the issue is preserved, the defendant has the burden of establishing a
miscarriage of justice under a “more probable than not” standard.28 If the constitutional or
nonconstitutional error is not preserved, the defendant must show a plain error that affected
substantial rights.29 The reviewing court should reverse only when the defendant is actually
innocent or the error seriously affected the fairness, integrity, or public reputation of
judicial proceedings.30
26
MRE 103(a)(1).
27
Emphasis added.
28
People v Lukity, 460 Mich. 484, 495; 596 NW2d 607 (1999).
29
People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999).
30
Id. at 763-764.
19
In Harbison, defense counsel did not object to Dr. Simms’s testimony that TH
suffered “probable pediatric sexual abuse.” Accordingly, we review Harbison’s claim
under the plain-error standard.
In Thorpe, defense counsel objected to Cottrell’s testimony that children only lie
about sexual abuse 2% to 4% of the time.31 The trial court overruled the objection,
concluding that defense counsel had raised the issue of children lying on cross-examination
and, thus, opened the door to the prosecution’s line of questioning on redirect examination.
We conclude that defense counsel’s objection was sufficient to preserve Thorpe’s
nonconstitutional claim that Cottrell’s expert testimony should not have been admitted.32
“Opening the door is one thing. But what comes through the door is another.”33 “[T]he
test of whether rebuttal evidence was properly admitted is . . . whether the evidence is
31
Immediately following the prosecutor’s improper question on redirect, defense counsel
stated: “I am going to object, unless there are statistics. If we have a summary or some sort
of report statistics in it.”
32
Defense counsel’s objection largely tracks this Court’s opinion in Peterson, in which this
Court highlighted both relevancy and reliability concerns with expert testimony about the
rate of false reports of sexual abuse by children. Peterson, 450 Mich. at 376. And here,
even Cottrell acknowledged that there was literature on the topic of fabricated disclosures
but that such literature was “extremely variable.” Yet Cottrell did not base his opinion on
the literature or any other scientific source. Cottrell based his testimony entirely on his
experience working with people who were self-reported victims of sexual assault. Mental
health professionals “are not . . . experts at discerning truth. [They] are trained to accept
facts provided by their patients, not to act as judges of patients’ credibility.” People v
Beckley, 434 Mich. 691, 728; 456 NW2d 391 (1990) (opinion by BRICKLEY, J.) (quotation
marks and citation omitted).
33
United States v Winston, 447 F2d 1236, 1240 (CA DC, 1971) (quotation marks and
citation omitted).
20
properly responsive to evidence introduced or a theory developed by the defendant.”34
Defense counsel did not open the door to Cottrell’s testimony regarding the rate of false
reports in child sexual abuse cases simply by asking him on cross-examination whether
children lie or manipulate. Counsel did not ask Cottrell about the frequency with which
children lie, whether children make false allegations of sexual abuse, or whether he has
had any experience with false accusations in his own practice. We agree with Thorpe that
defense counsel’s questions to Cottrell—“let me ask you this, kids can lie, true?” and
“[a]nd they can manipulate[?]”—were discrete, straightforward, and uncontroversial
questions of fact. To maintain that these basic questions invited the prosecution to elicit
expert testimony from Cottrell that children lie about sexual abuse 2% to 4% of the time
would essentially require defense counsel to read tea leaves before asking any questions.
We therefore conclude that Thorpe’s claim is preserved and that he has the burden of
establishing a miscarriage of justice under a “more probable than not” standard to establish
error requiring reversal.
IV. LEGAL BACKGROUND
Three cases decided by this Court control the analysis of the instant cases. In People
v Smith,35 we addressed “whether the trial courts erred so as to require reversal in allowing
the examining physicians to testify that the complainants had been sexually assaulted.”36
34
People v Figgures, 451 Mich. 390, 399; 547 NW2d 673 (1996).
35
People v Smith, 425 Mich. 98; 387 NW2d 814 (1986).
36
Id. at 101.
21
Citing MRE 704, we stated that “[i]t is . . . well-established that expert opinion testimony
will not be excluded simply because it concerns the ultimate issue[.]”37 Yet, we
acknowledged that an examining physician cannot give an opinion on whether a
complainant had been sexually assaulted if the “conclusion [is] nothing more than the
doctor’s opinion that the victim had told the truth.”38 An examining physician’s opinion is
objectionable when it is solely based “on what the victim . . . told” the physician.39 Such
testimony is not permissible because a “jury [is] in just as good a position to evaluate the
victim’s testimony as” the doctor.40 Nonetheless, an examining physician, if qualified by
experience and training relative to treatment of sexual assault complainants, can opine with
respect to whether a complainant had been sexually assaulted when the opinion is based on
physical findings and the complainant’s medical history.41
Smith only addressed the expert testimony of the examining physician; Smith
declined to address expert psychiatric testimony or evidence of rape trauma syndrome:
Our decision today is made in the context of the particular cases before
us, i.e., both cases concerned admissibility of the doctors’ opinions which
were based on examination of the alleged victims shortly after the incidents.
We express no opinion on, e.g., the admissibility of expert psychiatric
37
Id. at 106.
38
Id. at 109.
39
Id.
40
Id.
41
Id. at 110-112.
22
testimony or rape trauma syndrome evidence, noting only that the rules of
evidence should guide any decision on admissibility of expert testimony.[42]
Some four years later, however, we addressed that question in this Court’s plurality
opinion in People v Beckley.43 In the lead opinion authored by Justice BRICKLEY, joined
by Justices GRIFFIN and LEVIN, the Court acknowledged that “ ‘syndrome’ evidence as it
relates to child abuse cases is a relatively new development in the law and novel to our
Court . . . .”44 As one article explains:
Prosecution of offenders for child sexual abuse is often difficult
because of the sparsity of witnesses to these crimes. As such, expert
testimony is sometimes used at trial to explain some of the commonly
misunderstood behaviors exhibited by children who have been victims of
sexual abuse, such as delayed reporting and recantation. In the behavioral
science field, there exists a syndrome labeled the child sexual abuse
accommodation syndrome (CSAAS).[45]
The lead opinion noted, however, that this evidence is problematic:
[T]he evidence has a very limited use and should be admitted cautiously
because of the danger of permitting an inference that as a result of certain
behavior sexual abuse in fact occurred, when evidence of the syndrome is
not a conclusive finding of abuse. Although syndrome evidence may be
appropriate as a tool for purposes of treatment, we would hold that it is
unreliable as an indicator of sexual abuse.[46]
42
Id. at 115 n 13.
43
People v Beckley, 434 Mich. 691; 456 NW2d 391 (1990) (opinion by BRICKLEY, J.).
44
Id. at 706.
45
85 ALR5th 595, 595.
46
Beckley, 434 Mich. at 724 (opinion by BRICKLEY, J.).
23
The lead opinion looked to foreign jurisdictions and recognized a clear divide on
the use of such evidence. On one hand, some courts have allowed the use of the syndrome
evidence generally and even have allowed the expert to opine that he found the victim’s
account “ ‘believable.’ ”47 On the other hand, the lead opinion recognized that some courts
take an “approach where testimony is allowed only on specific behavioral instances to
which the defendant has opened the door in an attempt to discredit the victim’s testimony.
This . . . approach permits syndrome testimony only with respect to the specific
characteristics that the defendant has attacked.”48
The lead opinion also recognized “a middle ground [that] allows the expert to testify
in general terms as to any and all behavior patterns that are seemingly inconsistent with
crime victims generally.”49 After reviewing this caselaw, the lead opinion observed that
evidence of behavioral patterns of sexually abused children may be admissible “for the
narrow purpose of rebutting an inference that a complainant’s postincident behavior was
inconsistent with that of an actual victim of sexual abuse, incest or rape.”50
47
Id. at 708, quoting State v Kim, 64 Haw. 598, 601; 645 P2d 1330 (1982).
48
Beckley, 434 Mich. at 708-709 (opinion by BRICKLEY, J.). See, e.g., People v Bowker,
203 Cal App 3d 385; 249 Cal Rptr 886 (1988).
49
Beckley, 434 Mich. at 710 (opinion by BRICKLEY, J.), citing State v Hall, 406 NW2d 503
(Minn, 1987).
50
Beckley, 434 Mich. at 710 (opinion by BRICKLEY, J.) (quotation marks and citation
omitted). Justice BOYLE, joined by Chief Justice RILEY, concurred and wrote separately
to express concern that “the rationale employed in the lead opinion may create restrictions
on the use of expert testimony in child sexual abuse cases that unnecessarily limit an
expert’s ability to assist the factfinder.” Id. at 734 (opinion by BOYLE, J.). Basically,
Justice BOYLE agreed with the “numerous jurisdictions [that] allow the use of expert
24
Five years later, the Court found a majority to “clarify [the plurality] decision in
Beckley” and held:
(1) an expert may testify in the prosecution’s case in chief regarding typical
and relevant symptoms of child sexual abuse for the sole purpose of
explaining a victim’s specific behavior that might be incorrectly construed
by the jury as inconsistent with that of an actual abuse victim, and (2) an
expert may testify with regard to the consistencies between the behavior of
the particular victim and other victims of child sexual abuse to rebut an attack
on the victim’s credibility.[51]
Applying this framework, the Court identified the errors associated with the experts’
testimony in Peterson. “First, the experts . . . improperly vouched for the veracity of the
child victim” by “testify[ing] that children lie about sexual abuse at a rate of about two
percent.”52
Second, the experts in Peterson were allowed to make numerous
references to the consistencies between the victim’s behavior and the
behavior of typical victims of child sexual abuse. The experts, in various
testimony to assist the jury in evaluating credibility, without reference to rehabilitation or
rebuttal.” Id. at 736-737. Justice ARCHER, joined by Justice CAVANAGH, concurred in part
and dissented in part. Justice ARCHER disagreed that an expert should be permitted to refer
to the complainant in a particular case. He would have limited the expert’s testimony to a
discussion of the specific postincident behavioral traits at issue, without reference to a
complainant or the specific facts of a case. Id. at 744-745 (ARCHER, J., concurring in part
and dissenting in part). Justice ARCHER opined that “[u]nder the rule the lead opinion
would adopt today, the danger is too great that the trier of fact will improperly infer that an
expert testifying on the basis of syndrome evidence is, in effect, concluding that the
particular complainant before the court has been abused.” Id. at 747.
51
Peterson, 450 Mich. at 352-353.
52
Id. at 375-376.
25
ways, testified regarding the dysfunctional family that each had observed and
about some of the bizarre behavior exhibited by the victim.[53]
The Court concluded that “[b]ecause the defendant never argued that the victim’s
behavior was inconsistent with that of a typical victim of child sexual abuse, such testimony
is error.”54
V. APPLICATION
A. THORPE
We conclude that Thorpe has shown that it is more probable than not that a different
outcome would have resulted without Cottrell’s testimony that children lie about sexual
abuse 2% to 4% of the time. In Peterson, this Court observed that nearly identical
testimony allowed “the experts in that case [to] improperly vouch[] for the veracity of the
child victim.”55 Here, not only did Cottrell opine that only 2% to 4% of children lie about
sexual abuse, but he also identified only two specific scenarios in his experience when
children might lie, neither of which applies in this case. As a result, although he did not
actually say it, one might reasonably conclude on the basis of Cottrell’s testimony that
there was a 0% chance BG had lied about sexual abuse. In so doing, Cottrell for all intents
and purposes vouched for BG’s credibility. Furthermore, the prosecution’s closing
argument on rebuttal highlighted this improper evidence at a pivotal juncture at trial:
53
Id. at 376.
54
Id. at 376-377.
55
Peterson, 450 Mich. at 375-376. Peterson also stated that “[s]uch references to
truthfulness . . . go beyond that which is allowed under MRE 702.” Id. at 376. Although
we have no sound basis to dispute the Court’s statement, we need not reach this
unpreserved issue.
26
The defense attorney asked you, why would [BG] lie? It’s a very good
question. You need to think about that, because she did not. Mr. Cottrell did
say that it’s very rare for children to lie. His percentage was less than two to
four percent of all of those cases that his agency sees.
But he said one of the reasons they don’t [lie] is because there is no
gain for the victim. What [did BG] get out of this? She didn’t get [sic]
attorney. She had to go to a forensic interview. She had to testify at a prelim,
she had to testify here at trial. There is no gain for any of that. She had to
talk about this a lot, about what happened to her.
Thorpe’s trial was a true credibility contest. There was no physical evidence, there
were no witnesses to the alleged assaults, and there were no inculpatory statements. The
prosecution’s case consisted of BG’s allegations, testimony by her mother regarding BG’s
disclosure of the alleged abuse and behavior throughout the summer and fall of 2012, and
Cottrell’s expert testimony. Thorpe testified in his own defense and denied the allegations.
Additionally, Kimberly testified about other reasons for BG’s behavior during the summer
and fall of 2012; namely, that her mother had started a new relationship and become
pregnant and that Thorpe had decided to no longer have parenting time with BG. Because
the trial turned on the jury’s assessment of BG’s credibility, the improperly admitted
testimony wherein Cottrell vouched for BG’s credibility likely affected the jury’s ultimate
decision. Under these circumstances, we conclude that Thorpe has shown that it is more
probable than not that a different outcome would have resulted without Cottrell’s improper
testimony.
B. HARBISON
We conclude that Harbison has established a plain error that affected his substantial
rights. Dr. Simms’s expert opinion that TH suffered “probable pediatric sexual abuse” is
contrary to this Court’s unanimous decision in Smith. In Smith, the examining physician
27
“testified that although he found no physical evidence of an assault, in his opinion [the]
complainant had been sexually assaulted. This opinion was based on the complainant’s
emotional state, described by [the expert] as ‘agitated, extremely nervous’ and ‘shaking,’
and her ‘history as she described it . . . .’ ”56 This Court readily concluded that the expert
testimony was improperly admitted. This Court observed that the expert’s “opinion that
the complainant had been sexually assaulted was based, not on any findings within the
realm of his medical capabilities or expertise as an obstetrician/gynecologist, but, rather,
on the emotional state of, and the history given by, the complainant.”57
In Harbison, Dr. Simms candidly acknowledged that her examination of TH showed
no physical evidence of an assault. Her conclusion that TH suffered “probable pediatric
sexual abuse” was based solely on her own opinion that TH’s account of the assaults was
56
Smith, 425 Mich. at 102-103.
57
Id. at 112. In contrast, in Smith’s companion case, People v Mays, the examining
physician testified that “his examination revealed a red mark on [the victim’s] face and she
had some small abrasions at the entrance of her vagina.” Id. at 104. The prosecution asked:
“Q. [Prosecuting Attorney]: All right. Using your background, your
education, your experience, her demeanor, her clothing, her attitude, and
what you saw in your examination, all of the things that you know about this
person, using all of your experience, did you form an opinion as to whether
or not there was sexual penetration against her will?” [Id. (alteration in
original).]
The expert answered, “ ‘My opinion was that she had been penetrated against her will.’ ”
Id. at 105. The Court found that the admissibility of the expert’s testimony presented a
“closer question.” Id. at 113. The Court concluded that the expert provided some objective
evidence (abrasions at the entrance of the complainant’s vagina) that was not consistent
with consensual relations and held that given the victim’s emotional state and the expert’s
experience in treating similar patients, the testimony was admissible.
28
“clear, consistent, detailed and descriptive.” This testimony clearly falls within Smith’s
holding that an examining physician cannot give an opinion on whether a complainant had
been sexually assaulted if the “conclusion [is] nothing more than the doctor’s opinion that
the victim had told the truth.”58 An examining physician’s opinion is objectionable when
it is solely based “on what the victim . . . told” the physician.59 Such testimony is not
permissible because a “jury [is] in just as good a position to evaluate the victim’s testimony
as” the doctor.60
We also conclude that this error was plain, i.e., obvious. Our decision in Smith was
unanimous and has never been called into question. Smith provides a very straightforward
bright-line test that trial courts can readily observe. Other than the instant case, every Court
of Appeals panel that has considered an examining physician’s diagnosis of “probable
pediatric sexual abuse” has acknowledged that the admission of this testimony is error.61
58
Smith, 425 Mich. at 109.
59
Id.
60
Id.
61
People v Jackson, unpublished per curiam opinion of the Court of Appeals, issued April
29, 2010 (Docket No. 283092), p 2; People v Gresham, unpublished per curiam opinion of
the Court of Appeals, issued December 7, 2010 (Docket No. 293580), pp 2-3; People v
Spayde, unpublished per curiam opinion of the Court of Appeals, issued September 29,
2011 (Docket No. 294300), pp 3-4; People v Gillen, unpublished per curiam opinion of the
Court of Appeals, issued May 15, 2012 (Docket No. 304350), p 3; People v Chevis,
unpublished per curiam opinion of the Court of Appeals, issued October 8, 2013 (Docket
No. 304358), p 8; People v Bentz, unpublished per curiam opinion of the Court of Appeals,
issued December 29, 2016 (Docket No. 329016), p 3.
29
We also conclude that Dr. Simms’s testimony that TH suffered “probable pediatric
sexual abuse” affected defendant’s substantial rights. Smith focused on the lack of
reliability of an expert opinion given the lack of physical findings and the superfluous
nature of an expert’s testimony in cases in which the “jury was in just as good a position
to evaluate the victim’s testimony . . . .”62 But we believe the most prejudicial aspect of
Dr. Simms’s testimony was that she clearly vouched for TH’s credibility. This Court has
previously drawn a distinction between expert testimony that a particular child was abused
and testimony about the common characteristics of abused children:
Therefore, any testimony about the truthfulness of this victim’s
allegations against the defendant would be improper because its underlying
purpose would be to enhance the credibility of the witness. To hold
otherwise would allow the expert to be seen not only as possessing
specialized knowledge in terms of behavioral characteristics generally
associated with the class of victims, but to possess some specialized
knowledge for discerning the truth.[63]
As we recognized in Beckley and embraced in Peterson:
The use of expert testimony in the prosecution of criminal sexual
conduct cases is not an ordinary situation. Given the nature of the offense
and the terrible consequences of a miscalculation—the consequences when
an individual, on many occasions a family member, is falsely accused of one
of society’s most heinous offenses, or, conversely, when one who commits
such a crime would go unpunished and a possible reoccurrence of the act
would go unprevented—appropriate safeguards are necessary. To a jury
recognizing the awesome dilemma of whom to believe, an expert will often
62
Smith, 425 Mich. at 109.
63
Beckley, 434 Mich. at 727-728, 729 (opinion by BRICKLEY, J.).
30
represent the only seemingly objective source, offering it a much sought-
after hook on which to hang its hat.[64]
In Harbison, the Court of Appeals found no error in Dr. Simms’s testimony,
reasoning that Dr. Simms did not opine on whether the complainant was abused by
Harbison but only diagnosed the complainant with “probable pediatric sexual abuse.” We
disagree. Regardless of whether “probable pediatric sexual abuse” is a term of art that can
be used as a diagnosis with or without physical findings, we conclude that Dr. Simms’s
testimony had the clear impact of improperly vouching for TH’s credibility.
And much like Thorpe, the instant case is largely a credibility contest. The only
evidence against Harbison was TH’s uncorroborated testimony. To bolster its case, the
prosecution presented testimony from a pediatrician who is board-certified in child abuse
pediatrics; who is currently a medical director at the Safe Harbor Children’s Advocacy
Center; who has examined, in her estimate, thousands of children that have been sexually
abused; and who has testified as an expert witnesses in 32 counties. Given the lack of
compelling testimony that forms the basis for the verdict and the plainly erroneous
testimony that TH suffered “probable pediatric sexual abuse,” we conclude that the plain
error affected Harbison’s substantial rights.
We also conclude that this error is far more pernicious than a mere evidentiary error.
Rather, this error strikes at the heart of several important principles underlying our rules of
evidence. Dr. Simms’s testimony that TH suffered “probable pediatric sexual abuse” based
solely on TH’s statements about her history not only had the effect of vouching for TH’s
64
Id. at 721-722.
31
credibility, but it also invaded the province of the jury to determine the only issue in the
case. Then, Dr. Simms reinforced this plain error by claiming that her diagnosis was based
on a “national [consensus]” of pediatricians when even a cursory review of the article on
which she relies reveals that the authors did not intend for pediatricians to rely on the article
to make a diagnosis of “probable pediatric sexual abuse” at trial.65 This improperly
65
Moreover, to the extent that Dr. Simms relied on the article Examination Findings in
Legally Confirmed Child Sexual Abuse: It’s Normal to be Normal to conclude that TH
suffered “probable pediatric sexual abuse,” that reliance was seriously misplaced. Adams,
Harper, Knudson & Revilla, Examination Findings in Legally Confirmed Child Sexual
Abuse: It’s Normal to be Normal, 94 Pediatrics 310 (1994). Relying on this article to testify
at trial concerning whether a complainant suffered “probable pediatric sexual abuse”
actually undermines the integrity of the study by proving the very premise that it accepts
as true, i.e., that legally confirmed convictions are a valid measure of the truth. The article
admits as much by acknowledging that “since the examiner testified in court in 34 of the
cases in which the perpetrator was convicted following a jury trial, it is possible that
testimony concerning medical findings contributed to the conviction.” Id. at 315 (emphasis
added). Given that the article notes that it “is possible that testimony concerning medical
findings contributed to the conviction,” it seems likely that testimony concerning a
“diagnosis” would further contribute to the conviction, especially, as in this case, when
there are no physical findings to be found. Id. In many respects, relying on the article in
this manner is akin to offering into evidence conviction rates to establish that those charged
with crimes will “probably” be convicted.
We conclude that the article is clearly directed toward making a “diagnosis” on the
basis of “ ‘proof’ before proceeding with criminal charges” and does not support a
“diagnosis” of pediatric sexual abuse at trial. Id. at 317 (emphasis added). The article only
once refers to the term “diagnosis” and only does so by placing the term in scare quotes,
which are “used to express esp. skepticism or derision concerning the use of the enclosed
word or phrase.” Merriam-Webster’s Collegiate Dictionary (11th ed). In other words, the
term “diagnosis” is not being used in its traditional sense. This makes sense, as even Dr.
Simms herself explained that the purpose of the “diagnosis” was “to allow pediatricians
that do child abuse evaluations to communicate with one another effectively . . . .”
Rather, the article is directed at pediatricians who must make referrals of possible
sexual abuse and to inform prosecutors that the absence of medical “findings” does not
mean that the complainant did not suffer sexual abuse. This reading of the article not only
32
admitted testimony very likely bolstered TH’s credibility and affected the verdict. We
conclude that the gravity of this significant error seriously affected the integrity of
Harbison’s trial.
VI. CONCLUSION
In Thorpe, we reverse the judgment of the Court of Appeals and remand to the
Allegan Circuit Court for a new trial. In Harbison, we reverse the judgment of the Court
of Appeals and remand to the Allegan Circuit Court for a new trial.
Brian K. Zahra
Bridget M. McCormack
Stephen J. Markman
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
makes sense but is consistent with Michigan law and likely the law of every other state.
Indeed, the Michigan Legislature set a very low bar for triggering a report of sexual abuse,
requiring a report if one only “has reasonable cause to suspect child abuse or child
neglect . . . .” MCL 722.623(1)(a). And even if, as Dr. Simms testified and the Court of
Appeals highlighted, “probable pediatric sexual abuse” is “a term of art used by
‘individuals that do pediatric sexual abuse evaluation nationwide,’ ” there is good reason
why a search of the caselaw of every other state reveals no matches for the phrase “probable
pediatric sexual abuse” yet a search of our own caselaw reveals the phrase used in several
unpublished Court of Appeals opinions.
33