                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       October 23, 2018
               Plaintiff-Appellee,

v                                                                      No. 336755
                                                                       Chippewa Circuit Court
MICHAEL DOUGLAS CARRICK,                                               LC No. 15-001945-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and RIORDAN and CAMERON, JJ.

BECKERING, P. J. (concurring).

       I concur in the result. Although not outcome determinative, I mainly take issue with the
majority’s conclusion that Sergeant Brad Clegg’s testimony was admissible under MRE 701.

        Defendant contends that Sergeant Clegg’s testimony regarding the “behavior patterns of
typical sexual assault victims” was improper lay and expert opinion testimony under MRE 701
and 702, and that Sergeant Clegg improperly vouched for the victim’s credibility. Defendant did
not object to Sergeant Clegg’s testimony at trial. Unpreserved issues are reviewed under the
plain error standard. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To avoid
forfeiture under the plain error rule, three requirements must be met: (1) error must have
occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial
rights. The third requirement generally requires a showing that the error affected the outcome of
the lower court proceedings. Id.

                 Opinion testimony by lay witnesses is permissible when that testimony is “(a)
rationally based on the perception of the witness and (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.” MRE 701. In addition, the lay
opinion testimony must not be based in “scientific, technical, or other specialized knowledge”
within the scope of MRE 702. An “expert” is “a witness qualified as an expert by knowledge,
skill, experience, training, or education.” MRE 702. Expert testimony by a witness is
permissible when “the court determines that scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue,” and “(1) the
testimony is based on sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.” MRE 702.



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        This Court has held that a police officer may provide lay testimony regarding his
observations in a criminal matter and his “opinion formed as a result of those observations.”
People v Oliver, 170 Mich App 38, 50; 427 NW2d 898 (1988) (italics in original), modified and
remanded on other grounds 433 Mich 862 (1989). MRE 701 and 702, however, restrict this to
matters that do not involve specialized knowledge. Although Sergeant Clegg’s testimony was
not a “technical or scientific” analysis, it was based on his specialized knowledge of trauma and
sexual abuse victims and acquired through his training and experience as a police officer. See
People v Petri, 279 Mich App 407, 416; 760 NW2d 882 (2008); People v Dobek, 274 Mich App
58, 76-79; 732 NW2d 546 (2007). His testimony was not a “common sense” opinion but was
expressly qualified as arising from his training and experience. See, e.g., People v Ray, 191
Mich App 706, 708; 479 NW2d 1 (1991) (officer qualified as an expert gave his opinion
regarding the significance of the quantity and shape of crack cocaine found in defendant’s
possession). Additionally, contrary to the majority’s conclusion, Sergeant Clegg’s testimony
was not directly related to his own perceptions of the victim. Rather, he testified regarding the
tendencies of victims of trauma and sexual assault without stating that the victim exhibited those
tendencies. Sergeant Clegg’s testimony constituted expert testimony because it went beyond his
perceptions and common sense inferences drawn therefrom and was based on his training and
experience as a police officer. Had defense counsel objected to the testimony, it would have
been plain error for the trial court to admit the challenged testimony without requiring that
Sergeant Clegg be qualified as an expert.

        I do agree, however, with the majority’s conclusion that because the record demonstrates
that Sergeant Clegg would likely have qualified as an expert witness with respect to the post-
incident behavior of sexual assault victims, defendant’s alleged error was not outcome
determinative. See Petri, 279 Mich App at 416 (indicating that any error in admitting a
detective’s definition of “grooming” was harmless because the detective would have qualified as
an expert on the basis of his experience or training in child sexual abuse cases).



                                                            /s/ Jane M. Beckering




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