                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 13, 2017
               Plaintiff-Appellee,

v                                                                    No. 330446
                                                                     Wayne Circuit Court
RYAN DOUGLAS WHITSON,                                                LC No. 15-004163-01-FC

               Defendant-Appellant.


Before: O’CONNELL, P.J., and GLEICHER and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by right his conviction, following a jury trial, of three counts of first-
degree criminal sexual conduct (CSC-I), MCL 750.520b (multiple variables), and two counts of
third-degree criminal sexual conduct (CSC-III), MCL 750.520d (multiple variables). The trial
court sentenced him to 26 to 50 years’ imprisonment for each of the CSC-I convictions, and to 5
to 15 years’ imprisonment for each of the CSC-III convictions.1 We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This case arises from a series of sexual assaults committed by defendant against his
daughters, MW and RW, over several years. Both girls testified that defendant’s assaults began
when they were approximately nine years old, at which time the family was living in Toledo,
Ohio. Both girls reported that defendant forced them to engage in vaginal intercourse and
fellatio and that defendant’s sexual assaults continued after the family moved to Taylor,
Michigan in 2011. Neither MW nor RW was aware of the assaults on the other until MW
confronted defendant on October 5, 2014. As a result of MW’s disclosure, RW came forward
and stated that defendant had also molested her for several years.



1
  Although the judgment of sentence does not reflect a statutory sentence enhancement, it
appears that defendant was sentenced as a second habitual offender under MCL 769.10. The
felony information included a habitual offender notice and the sentencing guidelines range
identified by the prosecution on the record was the range applicable to that of a second habitual
offender with defendant’s prior record and offense variable scores.


                                                -1-
        Before trial, the prosecution endorsed NS as a witness for trial. The prosecution intended
to call NS to testify that she had engaged in a sexual relationship with defendant when she was
14 years old. NS was subpoenaed but did not appear for trial. Defense counsel did not object to
NS’s absence.

       Dr. Dena Nazer, a pediatrician at Children’s Hospital of Michigan and Kids Talk
Children’s Advocacy Center, testified that she had performed examinations, including genital
examinations, on MW and RW in November 2014 to look for signs of injury or sexually
transmitted infections. Dr. Nazer testified that RW’s examination results were “normal,” and
described MW’s examination results as follows:

       [S]he had something that we called an indeterminate finding or a finding that
       there’s no consensus on. What that means simply is that it’s a finding that
       supports her disclosure so it’s not a finding that we would consider normal. It’s
       not considered not normal on its own but if a child gives a disclosure that sexual
       abuse happens or happened then it would support their disclosure.

Dr. Nazer stated that a “supportive finding” is not considered either normal or abnormal in the
absence of an allegation of sexual abuse.

        Before defense counsel began to cross-examine MW, the prosecution informed the trial
court that it objected to any efforts by defendant to elicit testimony concerning MW’s sexual
activity with other partners. Defense counsel initially argued that evidence of MW’s sexual
activity should be admissible in light of Dr. Nazer’s testimony regarding the results of her genital
examination; however, counsel later conceded that the exceptions found in the rape-shield
statute, MCL 750.520j, did not apply to such evidence. The trial court held that the testimony
was precluded by the rape-shield statute.

       Defendant was convicted and sentenced as described above. This appeal followed.

                                     II. MISSING WITNESS

       Defendant argues that he was prejudiced by the prosecution’s introduction of evidence
regarding defendant’s past relationship with NS despite the fact that it failed to produce NS, an
endorsed witness, at trial. According to defendant, the trial court erred by failing to sua sponte
hold an evidentiary hearing to determine whether the prosecution had satisfied its duty under
MCL 767.40a(3), and further erred by failing to grant defendant a mistrial as a result of NS’s
absence, or to issue a missing witness instruction to the jury. We disagree.

        To preserve a challenge to the prosecution’s failure to produce a witness at trial, the
defendant must move for a post-trial evidentiary hearing or a new trial. People v Dixon, 217
Mich App 400, 409; 552 NW2d 663 (1996). Additionally, a party claiming error arising from
the trial court’s failure to properly instruct the jury “must object or request a given jury
instruction to preserve the error for review.” People v Sabin (On Second Remand), 242 Mich
App 656, 657; 620 NW2d 19 (2000). Defendant did not raise this issue in the trial court by
moving for a post-trial evidentiary hearing or a new trial, and did not object to the trial court’s
instruction to the jury concerning the missing witness or request that an additional instruction be

                                                -2-
given. Consequently, this issue is unpreserved and reviewed for plain error affecting substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Even where plain error is
apparent from the record, the error only warrants reversal when it results in the conviction of an
innocent defendant or “seriously affect[ed] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted). When a party fails to request or object to a
specific jury instruction, relief is only warranted “when necessary to avoid manifest injustice.”
Sabin (On Second Remand), 242 Mich App at 657.

        If the prosecution endorses a witness under MCL 767.40a(3), it is required to exercise
due diligence to secure that witness’s presence at trial. People v Duenaz, 306 Mich App 85, 104;
854 NW2d 531 (2014). The prosecution’s failure to produce an endorsed witness may be
excused upon a showing of due diligence. People v Eccles, 260 Mich App 379, 388; 677 NW2d
76 (2004). If the trial court determines that the prosecution failed to satisfy its duty in this
regard, it may be appropriate to instruct the jury that “it may infer that the missing witness’s
testimony would have been unfavorable to the prosecution’s case.” Id. See also People v Perez,
469 Mich 415, 420-421; 670 NW2d 655 (2003) (finding that a missing witness jury instruction in
response to a violation of MCL 767.40a is sometimes, although not always, appropriate and that
the propriety of such an instruction depends on the facts of the case).

         It is undisputed that the prosecution endorsed NS in its witness list and intended to call
NS as a witness regarding her sexual relationship with defendant when she was 14 years old.
Christina Meach, MW and RW’s mother, testified regarding defendant’s relationship with NS,
and police officer Kenneth May testified about a Toledo police report that referred to defendant’s
relationship with NS. The prosecution was therefore obliged to exercise due diligence to secure
NS’s presence at defendant’s trial. Eccles, 260 Mich App at 388. The reason for NS’s absence
is not apparent from the record, nor is the extent of the prosecution’s efforts to secure her
presence. In regard to these efforts, Officer May testified that he spoke with NS on several
occasions and that she was subpoenaed to appear. It is unclear at what point the prosecution
became aware that NS would not comply with the subpoena. The only testimony concerning
NS’s failure to appear was the following exchange between the prosecution and Officer May on
the last day of defendant’s three-day trial:

               Q. . . . Was she subpoenaed to be here?

               A. She was.

               Q. Okay. Did she appear?

               A. I have not seen her.

               Q. Okay, have you been able to contact her?

               A. No, I have not.

       As an initial matter, it is not clear from the record that the prosecution failed to exercise
due diligence to secure NS’s presence or deliberately misled the trial court. Defendant’s
suggestion that the prosecution introduced evidence concerning NS while knowing that she

                                                -3-
would not testify at trial is completely unsupported by the record. We will not presume that an
attorney violated his or her duty of candor to the tribunal in the absence of evidence to the
contrary. See People v Dunbar, 463 Mich 606, 617 n 3; 625 NW2d 1 (2001), overruled in part
on other grounds by People v Jackson, 483 Mich 271; 769 NW2d 630 (2009).

        More importantly, even if the record supported the conclusion that the prosecution failed
to exercise due diligence to produce NS at trial, such a finding would not result in undue
prejudice under the circumstances of this case. Contrary to defendant’s assertion on appeal, the
trial court did, in fact, issue a missing witness instruction to the jury, instructing the jury that the
prosecution was responsible for producing NS and that it could infer from NS’s absence that her
testimony would have been unfavorable to the prosecution. “Jurors are presumed to follow their
instructions, and instructions are presumed to cure most errors.” People v Abraham, 256 Mich
App 265, 279; 662 NW2d 836 (2003). Thus, by giving an appropriate jury instruction, the trial
court minimized any prejudice that resulted from NS’s nonappearance. And while defendant
argues that he was prejudiced by his inability to cross-examine NS, he has not explained why the
missing witness instruction was an inadequate remedy in this case. Therefore, defendant has
failed to demonstrate that his substantial rights were affected.

                       III. APPLICATION OF RAPE-SHIELD STATUTE

         Defendant also argues that the trial court erred by finding that he was precluded by the
rape-shield statute, MCL 750.520j, from inquiring into MW’s sexual activities with others.
Defendant argues that the trial court should not have excluded that evidence because Dr. Nazer
testified that her physical examination of MW’s genital region resulted in an “indeterminate
finding” that could be supportive of sexual abuse. Consequently, evidence regarding other
sexual activities was admissible as rebuttal evidence to provide an alternative explanation for Dr.
Nazer’s findings. We conclude without deciding the issue that any error that arose from the
exclusion of this evidence was harmless.

        We review a trial court’s rulings regarding the admissibility of evidence for an abuse of
discretion. People v McLaughlin, 258 Mich App 635, 649; 672 NW2d 860 (2003). “A trial
court abuses its discretion when it chooses an outcome that is outside the range of reasonable and
principled outcomes.” People v Green, 313 Mich App 526, 531; 884 NW2d 838 (2015), quoting
People v Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007). A preserved error in the
admission or exclusion of evidence only warrants reversal when it appears “more probable than
not that the alleged error affected the outcome of the trial in light of the weight of the properly
admitted evidence.” McLaughlin, 258 Mich App at 650.

       MCL 750.520j provides that “[e]vidence of specific instances of the victim’s sexual
conduct . . . shall not be admitted” in CSC cases, subject to two statutory exceptions. Duenaz,
306 Mich App at 91. One of those exceptions is found in MCL 750.520j(1)(b), i.e. that
“[e]vidence of specific instances of sexual activity showing the source or origin of semen,
pregnancy, or disease,” may be admitted if it is material to a fact at issue and its inflammatory or
prejudicial effect does not outweigh its probative value. Duenaz, 306 Mich App at 91. A
defendant who wishes to introduce evidence under this exception is required to file a written
motion and offer of proof within 10 days after the arraignment on the information.
MCL 750.520j(2); McLaughlin, 258 Mich App at 653. Here, defendant failed to provide such

                                                  -4-
notice. Although not dispositive as to the admissibility of the evidence, defendant’s failure to
provide advance notice weighed in favor of exclusion. McLaughlin, 258 Mich App at 654.

        Although the statutory language refers only to evidence concerning “semen, pregnancy,
or disease,” this Court has held that specific instances of sexual activity can also be introduced
“to show the origin of a physical condition when evidence of that condition is offered by the
prosecution to prove one of the elements of the crime charged provided the inflammatory or
prejudicial nature of the rebuttal evidence does not outweigh its probative value.” People v
Shaw, 315 Mich App 668, ___; ___ NW2d ___ (2016); slip op at 6 (emphasis added). In Shaw,
a physician testified that he discovered “extensive hymenal changes” and a “chronic anal fissure”
during his examination of the complainant. Id. at ___; slip op at 5-6. A majority of the Court
determined that defense trial counsel had rendered ineffective assistance in failing to present
testimony of the complainant’s boyfriend, and that his testimony would have been admissible to
provide an alternative explanation for the hymenal changes and anal fissure described by the
physician. Id. at ___; slip op at 6.

       In reaching this conclusion, the Court in Shaw cited to People v Mikula, 84 Mich App
108; 269 NW2d 195 (1978), and People v Haley, 153 Mich App 400; 395 NW2d 60 (1986). In
Mikula, the majority opinion offered the following rationale:

       Defendant argues that the intent of [MCL 750.520(j)(1)(b)] is to permit an
       accused to introduce specific instances of the complainant's sexual activity to
       show the origin of a physical condition offered as circumstantial evidence of
       defendant's guilt.[ ] The prosecution contends that the specific physical condition
       here involved is not included in the statute and the proffered evidence was,
       therefore, properly excluded. We are persuaded that the defendant's interpretation
       of the statute is correct.

               It is well settled that where the prosecution substantiates its case by
       demonstrating a physical condition of the complainant from which the jury might
       infer the occurrence of a sexual act, the defendant must be permitted to meet that
       evidence with proof of the complainant's prior sexual activity tending to show that
       another person might have been responsible for her condition. . . . The question
       in this case is whether the Legislature intended to retain that rule only for the
       conditions expressly included in the statute to the exclusion of other physical
       conditions. We think not. We are persuaded that there is no rational distinction
       between the evidence expressly allowed under the statute and that offered in this
       case.

              Certainly proof of the origin of the condition found in this case has no
       more potential for harassment of a complainant than proof of the origin of one of
       the conditions expressly included in the statute. Moreover, the prosecution
       offered the evidence of the condition found in this case for the same purpose for
       which evidence of a condition included in the statute would be introduced, I. e. to
       prove the guilt of the accused. The introduction of evidence of the origin of the
       condition to rebut the inference of guilt is equally important to the defense


                                               -5-
       whether the condition be one of those included in the statute or another condition
       similarly probative of one of the elements of the crime.

               We conclude, therefore, that the Legislature intended that evidence of
       specific instances of sexual activity is admissible to show the origin of a physical
       condition when evidence of that condition is offered by the prosecution to prove
       one of the elements of the crime charged provided the inflammatory or prejudicial
       nature of the rebuttal evidence does not outweigh its probative value. [Mikula, 84
       Mich App at 113-114 (citations and footnote omitted).]

       Shaw’s endorsement of Mikula has now made it precedential. MCR 7.215(J)(1). Yet,
because the holding in Mikula on its face appears not to be consistent with the text of
MCL 750.520j(1)(b), we will dig a bit deeper into the rationale that we believe may underlie its
conclusion.

        The majority in Shaw cited secondarily to Haley, noting that Haley held that “once the
prosecution introduced medical evidence to establish penetration, evidence of alternative sources
of penetration became highly relevant to material issues in dispute.” Haley, 153 Mich App at
405-406. The Court in Haley further concluded that the “admission of evidence which merely
explained complainant’s detailed and accurate sexual knowledge was no longer sufficient to
protect defendant's constitutional rights of confrontation and cross-examination since
penetration, rather than knowledge, was the relevant issue.” Haley cited to People v Hackett,
421 Mich 338; 365 NW2d 120 (1984), in which our Supreme Court rejected constitutional
challenges to the admission of evidence of the complainants’ prior sexual conduct, but
nonetheless noted that “in certain limited situations, such evidence may not only be relevant, but
its admission may be required to preserve a defendant’s constitutional right to confrontation.”
Id. at 348.

         The Court in Hackett noted that “[t]he [rape-shield] statute and its parallel provisions in
the Michigan Rules of Evidence, MRE 404(a)(3), constitute a policy determination, that sexual
conduct or reputation as evidence of character and for impeachment, while perhaps logically
relevant, is not legally relevant.” Id. at 346 (emphasis added). Further, however, “[i]t is equally
clear that while the extent of cross-examination is within the discretion of the trial court there is a
dimension of the Confrontation Clause that guarantees to defendant a reasonable opportunity to
test the truth of a witness’ testimony.” Id. at 347.

        Placing the rape-shield statute in context, the Court explained that it was designed to
insulate a complainant from character and general credibility challenges, but that those
protections do not necessarily preclude the admission of evidence regarding other sexual conduct
where relevant to issues presented in a case. Moreover, where relevant to such issues, admission
of the evidence might be required in order to protect the defendant’s constitutional right to
confrontation:

               By enacting a general exclusionary rule, the Legislature recognized that in
       the vast majority of cases, evidence of a rape victim’s prior sexual conduct with
       others, and sexual reputation, when offered to prove that the conduct at issue was
       consensual or for general impeachment is inadmissible. People v. Arenda, [416

                                                 -6-
       Mich. 1, 10, 330 N.W.2d 814 (1982)]. The first purpose is simply a variation of
       character evidence as circumstantial evidence of conduct. The second is a
       collateral matter bearing only on general credibility as to which it has been held
       that cross-examination may be denied . . . . The fact that the Legislature has
       determined that evidence of sexual conduct is not admissible as character
       evidence to prove consensual conduct or for general impeachment purposes is not
       however a declaration that evidence of sexual conduct is never admissible. We
       recognize that in certain limited situations, such evidence may not only be
       relevant, but its admission may be required to preserve a defendant's
       constitutional right to confrontation. For example, where the defendant proffers
       evidence of a complainant’s prior sexual conduct for the narrow purpose of
       showing the complaining witness’ bias, this would almost always be material and
       should be admitted. . . . Moreover in certain circumstances, evidence of a
       complainant’s sexual conduct may also be probative of a complainant’s ulterior
       motive for making a false charge. . . . Additionally, the defendant should be
       permitted to show that the complainant has made false accusations of rape in the
       past. [Hackett, 421 Mich at 347-348 (citations omitted).]

       We therefore conclude that the proscriptions of the rape-shield statute are implicated
when evidence of other sexual conduct is offered for purposes of challenging a complainant’s
character or general credibility, but are not necessarily implicated when the evidence is otherwise
admissible for a proper purpose, and that the underpinnings of that admissibility lie in the
confrontation clause. See also People v Sharpe, ___ Mich App ___; ___ NW2d ___ (2017)
(Docket Nos. 332879, 333872), slip op at 8 (“It is axiomatic that evidence that is inadmissible
for one purpose may nonetheless be admissible for another purpose.”). Rather, the court must
then balance the probative value and prejudicial effect of the evidence.2 We note that “[t]he
standard for excluding evidence on the basis of prejudice is more stringent under MCL 750.520j
than under MRE 403,” because the probative value of evidence of other sexual conduct must
only be “outweighed” by its prejudicial and inflammatory effect on the jury, rather than
“substantially outweighed” as in MRE 403. See id., slip op at 5, citing People v Adair, 452 Mich
473, 481; 550 NW2d 505 (1996). We further note that, in providing examples of situations
where such evidence would be admissible, the Supreme Court in Hackett did not expressly
reference admissibility for purposes of providing an alternative explanation for a physical
condition. However, the Court in Hackett did not list its examples in an all-inclusive fashion.
Instead, the Court left the determination of admissibility to the discretion of the trial court:

                The determination of admissibility is entrusted to the sound discretion of
       the trial court. In exercising its discretion, the trial court should be mindful of the
       significant legislative purposes underlying the rape-shield statute and should


2
  The Court in Hackett described the task associated with determining whether evidence of other
sexual conduct infringes on a defendant’s right of confrontation as one of “[b]alancing the
potential prejudicial nature of this evidence, in view of the legislative purposes behind the rape-
shield law, against the . . . probative value of the evidence.”


                                                -7-
       always favor exclusion of evidence of a complainant’s sexual conduct where its
       exclusion would not unconstitutionally abridge the defendant’s right to
       confrontation. [Hackett, 421 Mich at 349.]

       The Court further outlined the procedure to be followed in the trial court for assessing the
admissibility of such evidence:

              The procedure to be employed by the trial court in evaluating the
       admissibility of evidence of the complainant’s prior sexual conduct is found in the
       rape-shield statute’s provision for in camera hearings. [Id., 421 Mich at 349,
       quoting MCL 750.520j(2) (“The court may order an in camera hearing to
       determine whether the proposed evidence is admissible under subsection (1).”).]

Further:

               Whether we construe this provision to permit the extension of in camera
       hearings to include consideration of evidence outside the scope of subsection (1)
       where a defendant’s confrontation right has been implicated,[ ] or whether we
       ground the broadened scope of such hearings on this Court’s constitutional
       authority to establish rules of practice and procedure,[ ] we conclude that the
       hearing procedure will best accomplish the required balancing. A hearing held
       outside the presence of the jury to determine admissibility promotes the state’s
       interests in protecting the privacy rights of the alleged rape victim while at the
       same time safeguards the defendant’s right to a fair trial. Furthermore, this
       procedure establishes a record of the evidence for appellate review of the trial
       court's ruling.

               The defendant is obligated initially to make an offer of proof as to the
       proposed evidence and to demonstrate its relevance to the purpose for which it is
       sought to be admitted. Unless there is a sufficient showing of relevancy in the
       defendant’s offer of proof, the trial court will deny the motion. If there is a
       sufficient offer of proof as to a defendant’s constitutional right to confrontation,
       as distinct simply from use of sexual conduct as evidence of character or for
       impeachment, the trial court shall order an in camera evidentiary hearing to
       determine the admissibility of such evidence in light of the constitutional inquiry
       previously stated. At this hearing, the trial court has, as always, the responsibility
       to restrict the scope of cross-examination to prevent questions which would
       harass, annoy or humiliate sexual assault victims and to guard against mere
       fishing expeditions. . . . Moreover, the trial court continues to possess the
       discretionary power to exclude relevant evidence offered for any purpose where
       its probative value is substantially outweighed by the risks of unfair prejudice,
       confusion of issues or misleading the jury. . . . We again emphasize that in ruling
       on the admissibility of the proffered evidence, the trial court should rule against
       the admission of evidence of a complainant's prior sexual conduct with third
       persons unless that ruling would unduly infringe on the defendant's constitutional
       right to confrontation. [Id., 421 Mich at 349-351 (citations omitted).]


                                                -8-
        It appears from the record that the trial court, in exercising its discretion to preclude the
proffered evidence, did not follow the procedure outlined by the Court in Hackett. This does not
mean that the trial court necessarily erred by excluding the evidence. However, it does not
appear that the trial court or the parties addressed the issue in terms of the confrontation clause or
followed the procedure outlined in Hackett for offers of proof and in camera hearings. We are
therefore unable on the current record to determine whether the trial court abused its discretion in
excluding the evidence.

        Nonetheless, we conclude that any error in excluding the evidence in this case was
harmless. The probative value of the excluded evidence was not as significant as that at issue in
Shaw. The Shaw Court opined that the complainant’s ongoing sexual relationship at the time of
her physical examination was highly relevant because the physician “essentially testified that the
hymenal changes were consistent with those of either a sexually active adult woman or an
abused child.” Id. Thus, without evidence of the complainant’s sexual relationship with her
boyfriend, “there was no likely explanation, other than [the] defendant’s guilt,” to explain the
physical condition reported by the physician. Id. By contrast, Dr. Nazer’s testimony regarding
the implications of her findings was far less definitive. Dr. Nazer reached an “indeterminate
finding” regarding the condition of MW’s hymen, and explained that while such a finding is
“supportive” of the complainant’s disclosure, it is not considered abnormal in the absence of
allegations of sexual abuse. The natural implication of Dr. Nazer’s testimony is that the results
of MW’s medical examination were inconclusive regarding whether MW had engaged in any
sexual activity that would have compromised the condition of her hymen—regardless of whether
that activity occurred with defendant or others.

        Moreover, it is improbable that the outcome of the trial would have been different if
defendant had been allowed to introduce evidence that MW was sexually active with others
before she was examined by Dr. Nazer. Although MW did not describe the sexual encounters
that occurred in Taylor in great detail, she unequivocally testified that defendant engaged in
vaginal intercourse with her at their house. She also stated that when they left the house
together, defendant would drive to isolated locations and make her put his penis in her mouth.
The testimony of a complainant in a CSC prosecution need not be corroborated. MCL 750.520h;
People v Brantley, 296 Mich App 546, 551; 823 NW2d 290 (2012). Moreover, the jury also
convicted defendant of the CSC-I charges stemming from RW’s accusations, regardless of the
fact that Dr. Nazer reported that RW’s examination results were normal. Thus it does not appear
that the jury placed disproportionate weight on Dr. Nazer’s indeterminate finding or the lack of
evidence of other sexual activity by MW.

       Affirmed.



                                                              /s/ Peter D. O’Connell
                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Mark T. Boonstra




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