                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 21, 2016
               Plaintiff-Appellee,

v                                                                   No. 324389
                                                                    Berrien Circuit Court
DAVID WALLACE HREHA,                                                LC No. 2013-016446-FC

               Defendant-Appellant.


Before: SAAD, P.J., and BORRELLO and GADOLA, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of three counts of second-degree
criminal sexual conduct, MCL 50.520c(1)(a), and two counts of first-degree criminal sexual
conduct, MCL 750.520b(1)(a). The victims of defendant’s criminal sexual conduct were KH,
WE, and MJ. These boys, each under the age of 13, were neighbors to defendant and often
worked for defendant by cleaning his yard. For the reasons below, we affirm.

                                     I. EVIDENTIARY ISSUES

                         A. PRIOR INCIDENTS OF SEXUAL ABUSE

       On appeal, defendant first argues that the trial court erred by excluding evidence of an
incident in which WE was sexually abused by a cousin. We review a trial court’s evidentiary
decisions for an abuse of discretion. People v Unger, 278 Mich App 210, 216; 749 NW2d 272
(2008). A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes. Id. at 217. “Preliminary questions of law, such as whether a rule of
evidence, constitutional provision, or statute precludes the admission of the evidence, are
reviewed de novo.” People v Jones, 270 Mich App 208, 211; 714 NW2d 362 (2006).

        The rape-shield statute, MCL 750.520j, is a general exclusionary rule; it bars, with two
narrow exceptions, all evidence of a victim’s sexual activity not incident to the alleged sexual
assault. People v Adair, 452 Mich 473, 478; 550 NW2d 505 (1996). However, in limited
circumstances, admission of evidence of a victim’s sexual activity may nonetheless be required
to preserve a defendant’s constitutional rights, including the right of confrontation. People v
Hackett, 421 Mich 338, 348; 365 NW2d 120 (1984). A defendant may introduce evidence of a
prior incident of sexual abuse of a victim to show that the victim’s age-inappropriate sexual
knowledge was not learned from the defendant. People v Morse, 231 Mich App 424, 436; 586

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NW2d 555 (1998). For evidence of a prior incident to be admissible, however, the facts
underlying the incident must be “significantly similar” to the allegations in the present case. Id.
at 437. If the facts of the prior incident are not “significantly similar,” the exclusion of evidence
regarding the prior incident does not violate a defendant’s right of confrontation and right to
present a defense. People v Duenaz, 306 Mich App 85, 90-93; 854 NW2d 531 (2014).

        The incident between WE and his cousin did not embody all the sexual acts that WE
claimed defendant committed against him. In the prior incident, the cousin penetrated WE’s
anus with his penis. In this case, WE testified that defendant’s penis penetrated his anus, but WE
also testified that defendant touched WE’s penis with his hands and that defendant put WE’s
penis in his mouth and sucked it. The prior incident did not account for many sexual details
unique to the charged conduct, so the previous incident could not fully explain the knowledge
displayed by WE. See Morse, 231 Mich App at 434. Additionally, WE was 11 years old at trial,
and we cannot disagree with the trial court’s statement that it would be speculation to conclude
that WE’s sexual knowledge was inappropriate for his age. See Duenaz, 306 Mich App at 93.
Further, defendant must show that the prior incident resulted in the conviction of another person.
Morse, 231 Mich App at 437. Although WE’s cousin was charged in the prior incident, he was
never convicted because the court dismissed the charges after finding him incompetent to stand
trial. Under these circumstances, the trial court’s decision to exclude evidence of the incident
between WE and his cousin fell within the range of reasonable and principled outcomes.

                    B. CHILD’S STATEMENT ABOUT SEXUAL ABUSE

       Defendant next argues that the trial court erred when it allowed MJ’s mother to testify
about a statement that MJ made while they were making a trip to Walmart with WE. According
to defendant, evidence of MJ’s statement was not admissible under MRE 803A because it was
not spontaneous. We review the trial court’s decision for an abuse of discretion. Unger, 278
Mich App at 216.

        “ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Hearsay is not admissible unless it falls within an exception to the hearsay rule. MRE 802;
People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). MRE 803A codified the common-
law “tender years” exception to the hearsay rule. People v Douglas, 496 Mich 557, 573; 852
NW2d 587 (2014). Under MRE 803A, “[a] statement describing an incident that included a
sexual act performed with or on the declarant by the defendant or an accomplice is admissible to
the extent that it corroborates testimony given by the declarant during the same proceeding,
provided,” in part, “the statement is shown to have been spontaneous and without indication of
manufacture.”1 “The question of spontaneity, at its essence, asks whether the statement is the
creation of the child or another.” Gursky, 486 Mich at 613.



1
   There are several other requirements for the admission of a hearsay statement under MRE
803A. We do not address those requirements, however, because defendant only challenges the
trial court’s conclusion that MJ’s statement to his mother was spontaneous.


                                                -2-
        MJ’s statement to his mother that defendant touched his privates was the result of
questioning by MJ’s mother. In Gursky, 486 Mich at 614, our Supreme Court addressed the
admissibility of a child’s statement that was the result of questioning, and held that “the mere
fact that questioning occurred is not incompatible with a ruling that the child produced a
spontaneous statement.” However, for the statement to be admissible, “the child must broach the
subject of sexual abuse, and any questioning or prompts from adults must be nonleading or open-
ended in order for the statement to be considered the creation of the child.” Id. Our Supreme
Court further explained the following:

               To be clear, we do not hold that any questioning by an adult automatically
       renders a statement “nonspontaneous” and thus inadmissible under MRE 803A.
       Open-ended, nonleading questions that do not specifically suggest sexual abuse
       do not pose a problem with eliciting potentially false claims of sexual abuse. But
       where the initial questioning focuses on possible sexual abuse, the resultant
       answers are not spontaneous because they do not arise without external cause.
       When questioning is involved, trial courts must look specifically at the questions
       posed in order to determine whether the questioning shaped, prompted, suggested,
       or otherwise implied the answers. [Id. at 614-615 (footnote omitted).]

This approach requires courts to review the totality of the circumstances surrounding the
statement in order to determine whether the statement was spontaneous. Id. at 615.

        MJ broached the subject of sexual abuse. In response to WE’s question whether he could
go to defendant’s house, MJ unexpectedly said that defendant was a sex offender. Although
MJ’s statement that defendant was a sex offender did not specifically indicate that defendant had
sexually abused MJ, it implied that defendant had engaged in some type of improper sexual
conduct. MJ’s mother then asked MJ questions, including what he meant, how he knew that
defendant was a sex offender, and whether anything happened to him. These questions were
nonleading and open-ended; they did not suggest sexual abuse. In response to these questions,
MJ put his head down and said no. It was only when MJ’s mother asked him a second time if
anything happened, after indicating that he could tell her anything and would not be in trouble,
that MJ said that defendant had touched his privates. Under these circumstances, in which MJ
broached the subject of sexual abuse, but then denied that anything happened with defendant
until his mother asked him additional nonleading and open-ended questions, it may be
considered a close question whether MJ’s statement that defendant touched his privates was
spontaneous. A trial court’s decision on a close evidentiary question ordinarily cannot be an
abuse of discretion. People v Cameron, 291 Mich App 599, 608; 806 NW2d 371 (2011).
Accordingly, we conclude that the trial court’s decision that MJ’s statement was spontaneous fell
within the range of reasonable and principled outcomes and the trial court did not abuse its
discretion by admitting the testimony.

                          C. AVAILABILITY OF CHILD WITNESS

       Next, defendant argues that the trial court erred by finding that MJ was unavailable as a
witness under MRE 804(a)(3) and by admitting MJ’s preliminary examination testimony into
evidence. We agree. We review a trial court’s evidentiary decisions for an abuse of discretion,
but review a trial court’s factual findings regarding the unavailability of a witness under

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MRE 804(a) for clear error. People v Sardy, ___ Mich App ___, ___; ___ NW2d ___ (2015)
(Docket No. 319227); slip op at 4. “A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with a definite and firm conviction that a
mistake has been made.” People v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d 746
(2006).

       MRE 804(b) sets forth numerous exceptions to the hearsay rule that apply when a
declarant is unavailable as a witness, People v Duncan, 494 Mich 713, 724; 835 NW2d 399
(2013), and one of the exceptions is for former testimony. MRE 804(b)(1). MRE 804(a) defines
when a declarant is unavailable as a witness, which includes when a declarant “has a lack of
memory of the subject matter of the declarant’s statement.” MRE 04(a)(3). In Sardy, ___ Mich
App at ___; slip op at 5, this Court concluded that a trial court did not err by finding that a victim
was unavailable under MRE 804(a)(3) when the victim, upon being asked about the defendant’s
conduct that was the basis for the charges, said that she could not remember what happened.

        In this case, however, the trial court clearly erred by finding that MJ was unavailable as a
witness. To have been unavailable under MRE 804(a)(3), MJ must have had “a lack of memory
of the subject matter of the declarant’s statement.” (Emphasis added.) The subject matter of
MJ’s former statement was the incident in which defendant inappropriately touched MJ in the
building behind defendant’s house. At trial, MJ did not indicate that he lacked memory
regarding this incident. Rather, MJ testified that he was watching television while sitting on
defendant’s lap in the building when defendant used his hands to touch MJ’s penis over his
clothes. Because MJ did not lack memory regarding the incident, we are left with a definite and
firm conviction that the trial court made a mistake by finding that MJ was unavailable under
MRE 804(a)(3). Consequently, the trial court abused its discretion by admitting MJ’s
preliminary examination testimony under MRE 804(b)(1).

        “[A] preserved, nonconstitutional error is not a ground for reversal unless after an
examination of the entire cause, it shall affirmatively appear that it is more probable than not that
the error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607
(1999) (quotation marks omitted). MJ’s testimony at the preliminary examination was
cumulative of his trial testimony, except that at the preliminary examination, MJ testified that
defendant’s hand went into his pants and touched his penis. Regardless of whether defendant
touched MJ’s penis or the clothes over it, he could be convicted of second-degree criminal sexual
conduct under MCL 750.520c. “Sexual contact” for purposes of MCL 750.520c “includes the
intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the
clothing covering the immediate area of the victim’s or actor’s intimate parts . . . .”
MCL 750.520a(q). Although MJ’s preliminary examination testimony may have bolstered his
credibility, despite containing an inconsistency, because it showed that MJ previously testified
that defendant touched his penis, other evidence also bolstered MJ’s credibility. Specifically,
MJ’s mother testified that MJ told her defendant touched his privates, and the testimony of KH
and WE showed defendant’s propensity and character to commit the charged crime. See
MCL 768.27a; People v Watkins, 491 Mich 450, 491-492; 818 NW2d 296 (2012). Under these
circumstances, defendant has not shown that it appears more probable than not that the erroneous
admission of MJ’s preliminary examination testimony was outcome determinative.



                                                 -4-
        Defendant also claims that the trial court erred when it allowed the prosecution on
rebuttal to ask WE about his preliminary examination testimony. We decline to address this
issue. All the legal authority that defendant cites in his argument concerns MRE 804(a)(3), but it
is clear from a review of the record that the trial court did not rely on MRE 804 as the basis for
allowing WE to testify about his preliminary examination testimony. Rather, the trial court
allowed WE to testify about his preliminary examination testimony because it concluded that,
after defendant tried to impeach WE with a prior inconsistent statement, the prosecution was
entitled to show that WE’s prior statement was not inconsistent with his trial testimony.
Defendant does not address the trial court’s stated reason for allowing WE to testify about his
preliminary examination testimony, so he has abandoned this argument. See People v Kelly, 231
Mich App 627, 640-641; 588 NW2d 480 (1998) (“An appellant may not merely announce his
position and leave it to this Court to discover and rationalize the basis for his claims, nor may he
give only cursory treatment with little or no citation of supporting authority.”).

                                    D. EXPERT TESTIMONY

        Next, defendant argues that error occurred when Barbara Welke, the prosecution’s expert
in forensic interviewing and disclosures of sexually abused children, testified that the behaviors
and actions of KH, WE, and MJ during their interviews at the Children’s Assessment Center
(CAC) were consistent with those of sexually abused children and that it was not odd for
sexually abused children to want to spend time with their abusers. We review this unpreserved
claim of evidentiary error for plain error affecting defendant’s substantial rights. People v
Benton, 294 Mich App 191, 202; 817 NW2d 599 (2011).

        In People v Peterson, 450 Mich 349; 537 NW2d 857, amended 450 Mich 1212 (1995),
our Supreme Court clarified the permissible scope of expert testimony in child sexual abuse
cases. “An expert may testify regarding typical 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 abuse victim or to rebut an attack on the victim’s credibility.” Id.
at 373. The prosecution may present expert testimony to explain common postincident behavior
of sexually abused children. Id. “This expert testimony, however, may be introduced only if the
facts as they develop would raise a question in the minds of the jury regarding the specific
behavior. The behavior must be of such a nature that it may potentially be perceived as that
which would be inconsistent with a victim of child sexual abus” Id. at 373 n 12. Generally,
“[u]nless a defendant raises the issue of the particular child victim’s postincident behavior or
attacks the child’s credibility, an expert may not testify that the particular child victim’s behavior
is consistent with that of a sexually abused child.” Id. at 373-374 (footnote omitted). “The
credibility of the victim is attacked when the defendant highlights behaviors exhibited by the
victim . . . and alludes that the victim is incredible because of [those] behaviors.” Id. at 374 n 13.

        Welke’s testimony that the behaviors and actions of KH, WE, and MJ during their CAC
interviews were consistent with those of sexually abused children constitutes plain error. See
Benton, 294 Mich App at 202. There is no indication that the jurors would potentially perceive
the victims’ behaviors during the interviews as being inconsistent with a child abuse victim.
Also, defendant did not attack the victims’ credibility by alluding that they were incredible
because of their behaviors and actions during the interviews. Accordingly, the testimony did not
fall within the permissible scope of expert testimony in a child sexual abuse case, and Welke was

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prohibited from testifying that the victims’ behaviors and actions were consistent with those of
child sexual abuse victims. See Peterson, 450 Mich at 373-374.

        However, this error did not affect defendant’s substantial rights. See Benton, 294 Mich
App at 202. Welke’s improper opinion was never repeated during trial, and neither the
prosecution nor defendant ever argued that the victims’ behaviors at their CAC interviews
rendered them credible or incredible. Further, the trial court instructed the jury that it could not
consider Welke’s expert testimony as an opinion regarding whether KH, WE, or MJ were telling
the truth. A jury is presumed to follow its instructions. People v Graves, 458 Mich 476, 486;
581 NW2d 229 (1998). Under these circumstances, Welke’s improper opinion did not affect the
outcome of the proceedings. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

         Welke’s testimony that it was not odd for sexually abused children to want to spend time
with their abusers2 was not, however, plainly erroneous. See Benton, 294 Mich App at 202. KH
testified, as did members of his family, that he went back to defendant’s house on a regular basis
after the evening of the fish dinner, which was when he alleged that defendant touched his penis.
We conclude that KH’s behavior of returning to defendant’s house would raise a question in the
minds of the jury regarding that behavior and could potentially be perceived as inconsistent with
the behavior of a sexually abused child. See Peterson, 450 Mich at 373 n 12. Because this
testimony could be easily misconstrued and allow the jury to draw an incorrect inference, it was
not plainly erroneous for Welke to testify that it was “not at all odd” for sexually abused children
to willingly spend time with their abusers.3

                            II. CUMULATIVE EFFECT OF ERROR

       Defendant next argues that he was denied a fair trial by the cumulative effect of errors.
We review a claim regarding the cumulative effect of errors to determine if the combination of
alleged errors denied the defendant a fair trial. People v Knapp, 244 Mich App 361, 387; 624
NW2d 227 (2001). The cumulative effect of several errors may warrant reversal even if


2
  Welke explained that 95 percent of all child sexual abuse is committed by perpetrators known
to the victims and, thus, an abuser is often someone for whom a victim has positive feelings.
3
  Although defendant did not specifically argue that the victims’ postincident behavior was
inconsistent with that of sexual abuse victims, we conclude that raising such an argument was
not necessary to permit this portion of Welke’s testimony at trial. In Peterson, 450 Mich at 358,
a defendant avoided raising any questions “that would have brought into issue [the victim’s]
behavior that the jury would arguably consider to be inconsistent with the behavior of an abused
person.” Nonetheless, our Supreme Court concluded that “where there are common
misperceptions regarding the behavior of the victim on which a jury may draw an incorrect
inference . . .the prosecutor may present limited expert testimony dealing solely with the
misperception.” Id. at 379. Therefore, despite the fact that the defendant did not raise the issue
of the particular child victim’s postincident behavior or directly attack the child’s credibility, the
Court held that “[b]ecause the child’s testimony could be easily misconstrue . . . expert testimony
was proper to rebut possible inferences by the jurors.” Id. at 379-380.


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individual errors would not warrant reversal. Id. at 388. Only actual errors are aggregated to
determine their cumulative effect. People v Bahoda, 448 Mich 261, 292 n 64; 531 NW2d 659
(1995). The errors must be of consequence. Knapp, 244 Mich App at 388. “ ‘[C]umulative
error,’ properly understood, actually refers to cumulative unfair prejudice, and is properly
considered in connection with issues of harmless error.” People v LeBlanc, 465 Mich 575, 591 n
12; 640 NW2d 246 (2002).

         Defendant has shown two actual errors: (1) the erroneous admission of MJ’s preliminary
examination testimony and (2) Welke’s improper opinion that the behaviors and actions of KH,
WE, and MJ at their CAC interviews were consistent with those of sexually abused children. It
was defendant’s theory that KH, WE, and MJ were not credible. The two errors did not
significantly hinder defendant’s ability to argue that the three victims were incredible. He could
still argue that their postincident behavior, such as KH’s conduct in returning to defendant’s
house two or three times a week after the fish dinner, their prior inconsistent statements at their
CAC interviews and at the preliminary examination, and the inconsistencies between their
testimony and the testimony of others rendered them incredible. Additionally, for reasons
already provided, any prejudice that defendant suffered from Welke’s improper opinion was
minimal. The prejudicial impact of the erroneous admission of MJ’s preliminary examination
testimony may have been greater because it was a prior statement in which MJ testified that
defendant touched his penis, which could have bolstered MJ’s credibility. Regardless, the jury
heard another prior statement of MJ through the testimony of MJ’s mother. Moreover, KH, WE,
and MJ each testified that defendant touched their penises and WE testified regarding other acts
of sexual misconduct by defendant, and their testimony could be used to show defendant’s
propensity and character to commit the charged crimes. MCL 768.27a; Watkins, 491 Mich at
491-492. Under these circumstances, the combined prejudicial effect of the two errors was not
so consequential as to affect the jury’s credibility determinations and deny defendant a fair trial.
We reject defendant’s claim regarding the cumulative effect of the errors.

                          III. DEFENDANT’S STANDARD 4 BRIEF

        In his Standard 4 brief, defendant argues that he was denied numerous constitutional
rights when the trial court prohibited him from introducing evidence showing a direct
contradiction of KH’s allegations and evidence that would place considerable doubt on WE’s
allegations. Because defense counsel never attempted to introduce any of the evidence that
defendant claims the trial court prohibited him from introducing, we view defendant’s arguments
as claims of ineffective assistance of counsel. To establish a claim of ineffective assistance, a
defendant must show that counsel’s performance fell below an objective standard of
reasonableness and that, but for counsel’s deficient performance, there is a reasonable probability
that the result of the proceedings would have been different. People v Uphaus (On Remand),
278 Mich App 174, 185; 748 NW2d 899 (2008). Because defendant did not move for a new trial
or an evidentiary hearing below, our review is limited to mistakes apparent on the record.
People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012).

        A defendant has the burden of establishing the factual predicate for a claim of ineffective
assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). The factual
predicate of defendant’s first claim is that an October 2013 case report and an April 2014 letter
reported that KH denied that any touching occurred. However, our review is limited to errors

                                                -7-
apparent on the record. Heft, 299 Mich App at 80. Neither the case report nor the letter
referenced by defendant is included in the lower court record. Accordingly, defendant has not
established the factual predicate for his claim. Additionally, defendant does not cite any
authority in support of his argument, so it is unclear whether he is claiming that the October 2013
case report and the April 2014 letter should have been submitted for the truth of KH’s denials or
only as extrinsic evidence of prior inconsistent statements to test the credibility of KH’s
testimony. See People v Jenkins, 450 Mich 249, 256; 537 NW2d 828 (1995); People v Steele,
283 Mich App 472, 487; 769 NW2d 256 (2009). Because “[a]n appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
claims, nor may he give only cursory treatment with little or no citation of supporting authority,”
Kelly, 231 Mich App at 640-641, defendant has abandoned this ineffective assistance claim.

         Next, to establish a claim of ineffective assistance of counsel, a defendant must overcome
the strong presumption that counsel’s performance was sound trial strategy. People v Dixon, 263
Mich App 393, 396; 688 NW2d 308 (2004). Decisions regarding what evidence to present are
presumed to be matters of trial strategy. Id. at 398. According to defendant, he suffered from
numerous physical problems, including, most pertinently, erectile dysfunction, and evidence of
this physical problem would have cast doubt on WE’s allegation of penetration. The prosecution
filed a motion for release of defendant’s medical records, which indicated that defendant had
been given a prescription for erectile dysfunction. As a result of the motion, the trial court
ordered that all of defendant’s medical records from the Battle Creek Veteran’s Hospital,
including records of any prescriptions that were filled, be released to the prosecution and that any
medical providers who were subpoenaed shall testify regarding defendant’s medical records. It
is unknown what testimony a medical provider would give regarding defendant’s erectile
dysfunction and filled prescriptions that may have remedied that ailment. Under these
circumstances, defendant has failed to overcome the strong presumption that defense counsel’s
decision not to present evidence of defendant’s physical problems was anything other than sound
trial strategy. See id. at 396. Defendant was not denied the effective assistance of counsel.4

       Affirmed.



                                                             /s/ Henry William Saad
                                                             /s/ Stephen L. Borrello
                                                             /s/ Michael F. Gadola




4
  We reject defendant’s argument that the cumulative effect of the errors identified in his
Standard 4 brief denied him a fair trial. Absent the establishment of deficiencies in counsel’s
performance, there can be no cumulative effect of deficiencies meriting reversal. See Dobek,
274 Mich App at 106.


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