                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 23, 2018
                Plaintiff-Appellee/Cross-Appellant,

v                                                                  No. 326105
                                                                   Allegan Circuit Court
BRANDON JAMES HARBISON,                                            LC No. 13-018686-FC

                Defendant-Appellant/Cross-
                Appellee.


                                          ON REMAND

Before: MURPHY, P.J., and METER and RONAYNE KRAUSE, JJ.

PER CURIAM.

        A jury convicted defendant of two counts of first-degree criminal sexual conduct, MCL
750.520b(1)(a); attempted first-degree criminal sexual conduct, MCL 750.92 & MCL
750.520b(1)(a); two counts of second-degree criminal sexual conduct, MCL 750.520c(1)(a); and
accosting a minor for immoral purposes, MCL 750.145a. Defendant filed a claim of appeal in
this Court. Following our decision in People v Harbison, unpublished opinion per curiam of the
Court of Appeals, issued January 26, 2017 (Docket No. 326105) (Harbison I),1 in which we
affirmed defendant’s convictions,2 defendant sought leave to appeal in the Michigan Supreme
Court. On October 13, 2017, in lieu of granting leave to appeal, the Supreme Court vacated the
portion of Harbison I “concerning the testimony of Dr. N. Debra Simms” and remanded the
matter to this Court “for reconsideration in light of People v Peterson, 450 Mich 349; 537 NW2d
857[, amended 450 Mich 1212] (1995).” People v Harbison, 501 Mich 897; 901 NW2d 895
(2017) (Harbison II). In all other respects, the Supreme Court denied leave to appeal, reasoning
that it was “not persuaded that the remaining questions presented should be reviewed by th[e]
Court.” Id. After reconsidering the issue of Simms’s testimony, we again find that it provides
no basis for reversing defendant’s convictions.


1
    Judge Ronayne Krause concurred in result only.
2
  The trial court had granted defendant a new trial based on ineffective assistance of counsel; we
reversed that decision. Harbison I, unpub op at 1.


                                               -1-
        This case involves the sexual abuse of a grade-school-aged girl by her uncle. Several
days after the victim first reported the abuse to her foster mother, Dr. Simms examined and
interviewed the victim. Dr. Simms testified that she is board-certified in both pediatrics and “the
sub-specialty of child abuse pediatrics.” She was qualified, without objection, “as an expert in
pediatrics with expertise in the field of child sexual abuse diagnostics and treatment.” The
prosecutor questioned Dr. Simms about her diagnosis, in pertinent part, as follows:

               Q. So all that information that you described all came from [the victim].

               A. Well it came from [the victim] and sometimes from the foster mom.

              Q. The information that you said that [the victim] told you that she was
       touched by [defendant], that he--all of that information that you just recently
       described, that was all from [the victim]?

              A. Yes ma’am, that was in my taking a history from [the victim] prior to
       the physical examination.

                                             * * *

               Q. What did your physical examination consist of after you got the
       original history from [the victim]?

               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 [the victim] 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?

               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

                                                -2-
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 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.



                                       -3-
              Q. How many attempted penile/anal or genital contact does 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 nonspecific 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 questioned Dr. Simms further:

                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 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

                                                -4-
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 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.

In Harbison I, unpub op at 6-7, we analyzed the issue of Simms’s testimony as follows:

        Defendant also argues that he was denied a fair trial when Dr. N. Debra
Simms, the physician who examined the victim at the Safe Harbor Children’s
Advocacy Center, testified that she diagnosed the victim with probable pediatric
sexual abuse. Because defendant did not object to Dr. Simms’s testimony at a
time when the trial court had an opportunity to correct the alleged error, the claim
of error is unpreserved. People v Pipes, 475 Mich 267, 277; 715 NW2d 290
(2006). We review unpreserved claims of evidentiary error for plain error
affecting the defendant’s substantial rights. People v Benton, 294 Mich App 191,
202; 817 NW2d 599 (2011). Plain error, which is error that is clear or obvious,
affects a defendant’s substantial rights when it affects the outcome of the lower
court proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

        “Testimony in the form of an opinion or inference otherwise admissible is
not objectionable because it embraces an ultimate issue to be decided by the trier
or fact.” MRE 704. However, such testimony must be helpful. People v Smith,
425 Mich 98, 107; 387 NW2d 814 (1986). A physician who examines a sexual
abuse victim may be a proper witness, but if the physician’s opinion that sexual
abuse occurred is based solely on what the victim told the physician, absent the
physician being qualified as an expert in assessing credibility, the opinion will be
deemed to be unhelpful. Id. at 107, 109, 113.



                                        -5-
                  Although Dr. Simms’s diagnosis of probable pediatric sexual abuse was
         based solely on the victim’s statements, her testimony was not plainly erroneous.
         Benton, 294 Mich App at 202. When questioned about the diagnosis, Dr. Simms
         testified that there was a national consensus about diagnosing child sexual abuse.
         She explained that she will give a diagnosis of probable pediatric sexual abuse if
         the child gives a clear, consistent, detailed, or descriptive history, regardless of
         whether there are physical findings of abuse. Dr. Simms also explained when she
         will give a diagnosis of possible pediatric sexual abuse or definite pediatric sexual
         abuse. Dr. Simms never testified whether she found the victim credible or
         whether she definitively believed that the victim was sexually abused; rather, it
         appears that Dr. Simms was simply leaning toward taking the victim at her word.
         Under these circumstances, Dr. Simms’s testimony that she diagnosed the victim
         with probable pediatric sexual abuse did not constitute a clear and obvious error.
         Carines, 460 Mich at 763. In addition, even if we were to conclude that a plain
         error occurred, we cannot find the requisite prejudice requiring reversal, id.,
         because the testimony, read as a whole, made clear that the physician was simply
         relying on the victim’s word, and the victim herself testified at trial.

        After reanalyzing Dr. Simms’s testimony in light of Peterson, we again find no plain
error. In Peterson, 450 Mich at 352, the Michigan Supreme Court revisited its prior plurality
decision in People v Beckley, 434 Mich 691; 456 NW2d 391 (1990), seeking to “determine the
proper scope of expert testimony in childhood sexual abuse cases.” The Peterson Court revisited
the issue of when so-called “syndrome” evidence of child sexual abuse is admissible. Peterson,
450 Mich at 362-363. Although the Peterson Court did “not endorse or adopt the use of the term
‘syndrome,’ ” it explained in a footnote that

         [c]hild sexual abuse accommodation syndrome (CSAAS) is a term that has
         become [commonplace] in other jurisdictions. It is used to describe the different
         reactions observed in child victims of sexual abuse. The term originated in an
         article published by Dr. Roland Summit entitled The child sexual abuse
         accommodation syndrome, 7 Child Abuse & Neglect 177 (1983). The article
         described five common characteristics observed in child victims of sexual abuse:
         (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed,
         conflicted, and unconvincing disclosure, and (5) retraction. [Peterson, 450 Mich
         at 362-363, 371 n 11.]

The Peterson Court noted that to be admissible pursuant to MRE 702,3 expert testimony must
first be legally relevant under MRE 402. Peterson, 450 Mich at 363. Just as evidence of



3
    MRE 702 provides:
                 If the court determines that scientific, technical, or other specialized
         knowledge will assist the trier of fact to understand the evidence or to determine a
         fact in issue, a witness qualified as an expert by knowledge, skill, experience,
         training, or education may testify thereto in the form of an opinion or otherwise if


                                                 -6-
“battered woman syndrome” is only admissible under certain circumstances, see generally
People v Christel, 449 Mich 578; 537 NW2d 194 (1995), the Peterson Court decided that
“syndrome” evidence of child sexual abuse is only admissible under certain conditions and for
limited purposes, Peterson, 450 Mich at 370, 373-374. The Court stated that

       “[t]he 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 represent the only seemingly
       objective source, offering it a much sought-after hook on which to hang its hat.”
       [Id. at 374, quoting Beckley, 434 Mich at 721-722 (opinion of BRICKLEY, J.)
       (emphasis added by Peterson).]

The Peterson Court held, in pertinent part:

       (1) an expert may not testify that the sexual abuse occurred, (2) an expert may not
       vouch for the veracity of a victim, and (3) an expert may not testify whether the
       defendant is guilty. However, . . . (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. [Peterson, 450 Mich at 352-353.]

With regard to rebutting an attack on the victim’s credibility, the Court stated:

       Because the pertinent inquiry is not the timing of the admission, but rather the
       reason for the use of the evidence, the admission of expert testimony is not
       confined to the rebuttal stage of proofs and thus may be introduced, as limited by
       [Peterson], in the prosecution’s case in chief. When the credibility of the
       particular victim is attacked by a defendant, we think it is proper to allow an
       explanation by a qualified expert regarding the consistencies between the
       behavior of that victim and other victims of child sexual abuse. [Id. at 375.]




       (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.



                                                 -7-
        In the present case, defendant has argued, both in this Court and when seeking leave to
appeal in the Supreme Court, that Dr. Simms, by way of her testimony regarding the diagnosis of
“probable pediatric sexual abuse,” improperly opined on the “ultimate issue” of whether the
alleged sexual abuse actually occurred.

         While Dr. Simms testified that she diagnosed the victim with “probable pediatric sexual
abuse,” the context is vital. Dr. Simms later clarified that “probable pediatric sexual abuse” is a
term of art used by “individuals that do pediatric sexual abuse evaluation nationwide[.]” She
testified at considerable length that the phrase is merely part of a method intended to allow
pediatricians “to communicate with one another effectively” about diagnostic criteria. She also
explained those diagnostic criteria to the jury. Specifically, she explained (1) that a diagnosis of
probable pediatric sexual abuse can be made “with or without physical examination findings” of
abuse, “based upon how clear, consistent, detailed or descriptive” the child’s vocalized “history”
of the abuse is; (2) that there are three other possible diagnoses; (3) that the least conclusive
diagnosis, “a negative evaluation,” is made when the patient’s examination reveals no evidence
of abuse and the patient fails to report any abuse; (4) that the next diagnosis would be “possible”
pediatric sexual abuse, which is warranted when the patient reports abuse “but for some reason
they’re not able to be clear, consistent, detailed and descriptive,” for example “because the child
may have a developmental disability, they may be young, [or] they may not be able to really
[describe] what has happened to their body;” (5) that the next-level diagnosis is the one reached
in this case, “probable” pediatric sexual abuse; and (6) that the fourth level of diagnosis,
“definite” pediatric sexual abuse, involves the satisfaction of “a really tough standard” requiring
corroborating physical, documentary, or eyewitness evidence.

        In other words, 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 expert may not vouch for the veracity of the victim or testify
that the sexual abuse occurred or that the defendant is guilty. Id. at 352. As noted, the Peterson
Court stated that an expert may testify “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 may explain how
the victim’s behavior comported with other victims of child sexual abuse, in order to rebut an
attack on the victim’s credibility. Id. at 352-353. The Court, when setting forth these parameters
for allowable expert testimony, was concerned with experts who testify about typical behavioral
symptoms of child sexual abuse, see id. at 373, 376, 380, but Dr. Simms simply did not do that.4
And Dr. Simms did not testify about the typical veracity rate of children when disclosing sexual


4
  Dr. Simms did testify that it is typical for child victims of sexual abuse to have no evident
physical trauma to their bodies, but she did not testify that the victim’s behavior was typical of
abuse victims.


                                                -8-
abuse. Cf. id. at 376. We simply cannot find a clear or obvious error, see Carines, 460 Mich at
763, with regard to Dr. Simms’s testimony, even when viewed through the lens of Peterson.

       We once again affirm defendant’s convictions.



                                                          /s/ William B. Murphy
                                                          /s/ Patrick M. Meter
                                                          /s/ Amy Ronayne Krause




                                              -9-
