                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 10, 2017
               Plaintiff-Appellee,

v                                                                  No. 332450
                                                                   Kent Circuit Court
ANTHONY STEPHEN BOGGIANO,                                          LC No. 14-002363-FH

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and MURPHY and K. F KELLY, JJ.

PER CURIAM.

        Following a jury trial, defendant appeals as of right his convictions of two counts of
third-degree criminal sexual conduct, MCL 750.520d(1)(c). For the reasons stated in this
opinion, we affirm.

         According to the evidence introduced at trial, defendant sexually assaulted the victim
while she was sleeping in the early morning hours of December 27, 2013. Late the previous
night, the victim enjoyed a few drinks at a local bar with her roommate, some friends, and
defendant. When the bar closed, the group returned to the apartment that the victim shared with
her roommate. The victim went to bed alone and fully-clothed. She did not consent to any
sexual acts. However, she awoke around 5:00 or 5:30 a.m. to find herself naked from the waist
down and defendant kneeling over the top of her, between her legs, with his pants down. The
victim noticed her vagina was wet. The victim alerted her friends, and defendant left the
apartment. The same day, the victim reported the incident to the police and underwent an
examination by Alison Edidin, a sexual assault nurse examiner (SANE). Edidin observed an
abrasion on the victim’s perineum caused by something sharp, possibly a fingernail; and she
testified that her findings were “consistent with a sexual assault.” Forensic testing revealed the
presence of saliva in swabs collected from the victim’s vulvar and vaginal wall as well as low
levels of male DNA in the swabs from the victim’s vulvar, though the quantity of DNA was too
low to allow comparison to a possible donor.

         During a recorded interview with police, defendant fully admitted that he engaged in
sexual activity with the victim. He told police: “I had oral sex with her, and I fingered her.”
Initially, defendant claimed that the victim consented to having sex with him. He conceded that
the victim did not invite him to her room. Nevertheless, he told police that, when he entered the
bedroom, the victim was awake, and he and the victim had a conversation during which she said

                                               -1-
she was “cool” with “mess[ing] around.” According to defendant, everything seemed fine until
the victim “freaked out.” However, defendant soon changed his story and admitted that he
“made a mistake” on the night in question. He told police that the victim may not have been
fully conscious and that they did not have a conversation during which the victim consented.
The jury convicted defendant as noted above. Defendant now appeals as of right.

                             I. REDACTED POLICE INTERVIEW

        Defendant first argues that the trial court abused its discretion by admitting a redacted
recording of defendant’s interview with the police because the out-of-court statements made by
the police officers during the interview were irrelevant, prejudicial, and impermissibly vouched
for the victim’s credibility. We disagree.

        We review for an abuse of discretion a trial court’s decision to admit or exclude evidence.
People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). An abuse of discretion occurs when
the trial court chooses an outcome that is outside the range of principled outcomes. People v
Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010). If, as in this case, the claim of
evidentiary error is nonconstitutional and preserved, “then it is presumed not to be a ground for
reversal unless it affirmatively appears that, more probably than not, it was outcome
determinative—i.e., that it undermined the reliability of the verdict.” People v Jackson, 498
Mich 246, 257; 869 NW2d 253 (2015) (quotation marks and citation omitted).

        Defendant’s argument is premised on People v Musser, 494 Mich 337, 353; 835 NW2d
319 (2013), wherein the Michigan Supreme Court addressed the admissibility of “out-of-court
statements made in the context of an interrogation that comment on another person's credibility.”
In particular, recognizing that hearsay is generally inadmissible under MRE 802 and that
witnesses may not comment on another person’s credibility, the Court considered whether out-
of-court statements by police during an interview might be admissible if they are not offered for
the truth of the matter asserted, such as when the statements are offered to provide “context” for
a defendant’s relevant statements during the interrogation. Id. at 349-350. The Court declined to
adopt a brightline rule automatically excluding these police statements; but, at the same time, the
Court made clear that a mechanical assertion that the statement is necessary for “context” will
not merit admission. Id. at 353-354. Instead, based on the rules of evidence, the Court outlined
the following procedure for considering the admissibility of such statements:

       [W]here the proponent of the evidence offers an interrogator's out-of-court
       statements that comment on a person's credibility for the purpose of providing
       context to a defendant's statements, the interrogator's statements are only
       admissible to the extent that the proponent of the evidence establishes that the
       interrogator's statements are relevant to their proffered purpose. See MRE 401.
       Even if relevant, the interrogator's statements may be excluded under MRE 403
       and, upon request, must be restricted to their proper scope under MRE 105.
       Accordingly, to ensure a defendant's right to a fair trial, trial courts “must
       vigilantly weed out” otherwise inadmissible statements that are not necessary to
       accomplish their proffered purpose. [Musser, 494 Mich at 353-354 (citation
       omitted).]


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        In this case, following a motion by defendant, the trial court conducted a Musser analysis,
and ultimately the jury received only a redacted version of defendant’s conversation with police.
In particular, the trial court found that many of defendant’s statements and admissions during the
interview were relevant and admissible. See MRE 801(d)(2); People v Lundy, 467 Mich 254,
257; 650 NW2d 332 (2002). Having determined that defendant’s statements during the
interview were relevant, the trial court weeded through the 75-page transcript to determine
which, if any, of the police officers’ statements were admissible for the proper purpose of
providing context for defendant’s relevant statements. Proceeding page-by-page and line-by-
line, the trial court identified the statements to be redacted, reducing the portion played for the
jury to about 27-pages of transcript.1 Specifically, the trial court redacted police statements
relating to their opinions of the victim’s truthfulness and credibility as well as various statements
relating to their opinions of defendant’s truthfulness. More generally, the trial court also
excluded statements relating to the officers’ experience and which scenario they thought “makes
more sense.” The trial court also redacted statements in which the police related information
they had received about the victim and defendant in terms of their respective character. And, the
court redacted the officers’ statements regarding what might happen with the case in terms of
prosecution.

        With regard to statements not redacted, the trial court determined that the remaining
statements did not speak to the victim’s credibility and that the statements were admissible to
provide context because their probative value did not outweigh their prejudice effect. As
contemplated by Musser, the trial court also gave an instruction before the redacted recording
was played for the jury, informing the jury that only defendant’s statements were evidence and
that the detectives’ statements and questions, which were not evidence, were “only being played
to give context to the defendant’s statements.”

        Despite the trial court’s considerable editing of the interrogation and the court’s limiting
instruction, defendant argues on appeal that the trial court should have redacted additional
statements. In making this argument, defendant takes portions of the officers’ remarks out of
context and asserts that the remarks somehow constitute impermissible vouching for the victim’s
credibility. Contrary to defendant’s vouching claim, in the statements admitted by the trial court,
the police never once stated that the victim was truthful, never stated that she had not lied to
them, nor did they state that they believed her or that her story was credible. They offered no
opinion as to the veracity of the victim’s story. Instead, the various statements challenged by
defendant are instances in which the police presented defendant with the basic factual allegations
made by the victim and then asked for defendant’s version of events. In other words, the police
paraphrased the victim’s statements to extract more detail from defendant.2 The end result was a




1
 The prosecution and defense counsel stipulated to significant redactions, which the trial court
considered and approved; and the trial court also considered additional redactions requested by
defendant, some of which the trial court granted.
2
  For instance, the police confronted defendant with the victim statements to the effect that she
did not “respond” to defendant, that defendant “did things to her that she was not consenting to,”


                                                -3-
sequence of interrogation that gradually fostered defendant’s revelation of what actually
happened. See Musser, 494 Mich at 356 n 14. Without the officers’ statements and questions,
the evolution of defendant’s story and the progression of his statements would have been
unclear. Id. Thus, the trial court did not abuse its discretion by admitting the remaining
statements challenged by defendant to provide context.

        Overall, defendant’s contention that the trial court abused its discretion lacks merit. The
trial court reasonably applied the principles set forth in Musser to the recorded interview and
redacted the irrelevant and unfairly prejudicial statements, leaving only the portions that
contextualized defendant’s statements for the jury’s consideration. The trial court also provided
an appropriate limiting instruction, alleviating the risk that the jury would consider the officers’
statements and questions for an improper purpose. Defendant has not shown any error in the
admission of the redacted interrogation, and he is not entitled to relief on this basis.3

                                   II. EXPERT TESTIMONY

       Defendant next argues that the prosecutor committed misconduct by improperly eliciting
expert opinion testimony from Edidin regarding the ultimate issue in this case, i.e., whether a
sexual assault occurred. He contends that Edidin’s testimony prejudiced defendant because it
vouched for the victim’s credibility and bolstered her allegation that she was sexually assaulted.
Further, defendant argues that the trial court’s instruction to the jury to disregard Edidin’s
testimony failed to cure the taint of the improper opinion testimony. We disagree.

        The test for prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “Prosecutors are
typically afforded great latitude regarding their arguments and conduct at trial.” People v Unger,
278 Mich App 210, 236; 749 NW2d 272 (2008). A prosecutor may not knowingly offer
inadmissible evidence or testimony. See People v Dyer, 425 Mich 572, 576; 390 NW2d 645
(1986). However, “prosecutorial misconduct cannot be predicated on good-faith efforts to admit
evidence.” People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). Curative
instructions are sufficient to cure the prejudicial effect of most prosecutorial errors, and “jurors
are presumed to follow their instructions.” Unger, 278 Mich App at 235.

        Credibility is a question for the jury; and, for this reason, an expert may not offer an
opinion on a defendant’s guilt or a witness’s truthfulness. Musser, 494 Mich at 349. In sexual
assault cases in particular, an expert may not testify that a sexual assault occurred, an expert may

that she did not have “any conversation” with defendant in the bedroom, and that she woke-up
and found defendant had “pulled [her] pants down and was touching [her.]”
3
  Moreover, we note that, even assuming some error, defendant has not affirmatively shown that
it is more probable than not that the error affected the outcome of the proceedings. Jackson, 498
Mich at 257. Unlike in Musser, 494 Mich at 364, which hinged on the jury’s assessment of
credibility insofar as the defendant denied the alleged improper sexual conduct, in this case
defendant admitted performing sexual acts on the victim and he conceded that there was no
conversation during which she consented to these acts. Given his admissions, any error in
redaction of the interrogation cannot be said to have affected the outcome.


                                                -4-
not vouch for the victim’s credibility, and an expert may not testify that a particular defendant is
guilty. See People v Peterson, 450 Mich 349, 352-353; 537 NW2d 857 (1995); People v
McGillen #2, 392 Mich 278, 285-286; 220 NW2d 689 (1974). However, medical professionals,
including a sexual assault nurse examiner, may testify based on their examination of the victim
that the victim’s injuries are consistent with sexual assault. People v McLaughlin, 258 Mich App
635, 657; 672 NW2d 860 (2003); People v Hunter, 141 Mich App 225, 233; 367 NW2d 70
(1985).

       In this case, after Edidin testified that she found an observable abrasion on the victim’s
perineum, the prosecution elicited the following testimony:

       Q. What was your opinion as to this as a nurse examiner? Do you feel there was
       a sexual assault?

       A. Yes.

       Defense counsel: Objection. . . .

       Prosecution: She’s an expert. She can give her opinion.

       Defense counsel: Not regarding whether or not an assault occurred, your honor.
       May counsel approach the bench?

       Trial court: No. I’ve heard the question. I’ve heard the answer. The objection is
       overruled. Goes to weight; not admissibility. You may inquire with regard to
       why she has this opinion.

       Defense counsel: May counsel approach?

       Trial court: But of course.

       [A bench conference was held off the record.]

       Trial court: I’ll ask the jury to disregard the answer. I’ll ask the prosecution to
       restate the question, and you may proceed.

       Q. Based on your examination with her and what you saw of her and her body,
       was it consistent with a sexual assault?

       A. Yes.

        Considering this exchange, the prosecutor’s first question was improper because it
elicited opinion testimony from the SANE on the issue whether a sexual assault occurred. See
Peterson, 450 Mich at 352-353. However, defense counsel objected to Edidin’s response. And,
although the trial court initially overruled defense counsel’s objection, the trial court
subsequently ruled in defendant’s favor and instructed the jurors to disregard Edidin’s answer to
the prosecution’s question. We see no reason to conclude that the jury was unable to follow the
court’s instructions in this case, and the instructions alleviated any prejudice from Edidin’s

                                                -5-
improper testimony. See People v Dennis, 464 Mich 567, 581; 628 NW2d 502 (2001). Thus,
defendant has already received the relief to which he was entitled. People v Miller (After
Remand), 211 Mich App 30, 43; 535 NW2d 518 (1995).

       Insofar as the prosecutor rephrased the question, there was nothing improper in seeking
the nurse examiner’s opinion of whether her physical findings during the examination were
“consistent” with sexual assault. See McLaughlin, 258 Mich App at 657; Hunter, 141 Mich App
at 233. Edidin did not state that she believed the victim, she did not assert that a sexual assault
occurred, and she did not testify that defendant was guilty. See Peterson, 450 Mich at 352-353.
Defendant is not entitled to relief based on the prosecutor’s good-faith introduction of admissible
evidence. Noble, 238 Mich App at 660.

                                         III. MRE 803(4)

        Defendant also contends that the trial court erred by allowing Edidin to testify regarding
what the victim told her about the sexual assault. Defendant claims that Edidin’s testimony was
inadmissible hearsay that vouched for the victim’s credibility. Defendant failed to object to this
part of Edidin’s testimony at trial, meaning that our review if for plain error affecting defendant’s
substantial rights. People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003). Defendant has
not shown plain error in Edidin’s recounting of the victim’s statements made for the purpose of
medical treatment and diagnosis.

        MRE 801 defines hearsay as “a statement, other than the one made by the declarant while
testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Hearsay is inadmissible unless it fits within some exception to the hearsay rule. MRE 802.
“Statements made for the purpose of medical treatment are admissible pursuant to MRE 803(4) if
they were reasonably necessary for diagnosis and treatment and if the declarant had a self-
interested motivation to be truthful in order to receive proper medical care.” People v Mahone,
294 Mich App 208, 214-215; 816 NW2d 436 (2011). “Particularly in cases of sexual assault, in
which the injuries might be latent, such as contracting sexually transmitted diseases or
psychological in nature, and thus not necessarily physically manifested at all, a victim’s
complete history and a recitation of the totality of the circumstances of the assault are properly
considered to be statements made for medical treatment.” Id.

       In this case, Edidin testified that she met the victim on the day of the sexual assault.
Consistent with her standard practice when conducting sexual assault examinations, Edidin asked
the victim about her medical history and what happened to her. Edidin then conducted a
physical exam. In the context of Edidin’s examination, the victim’s recitation of the assault is
properly considered a statement made for medical treatment.4 Id. Thus, the victim’s statements


4
  Defendant emphasizes on appeal that the victim went to the police before she was examined by
Edidin. While initiation of an examination after a police investigation is underway may suggest
that the examination was not intended for purposes of medical treatment, People v Shaw, 315
Mich App 668, 675; 892 NW2d 15 (2016), this is just one of many factors related to evaluating
the trustworthiness of a declarant’s statement, People v Meeboer (After Remand), 439 Mich 310,


                                                -6-
to Edidin were admissible under MRE 803(4). While defendant claims Edidin somehow
vouched for the victim, Edidin did not testify that the victim’s story was true. She simply
provided a description of what she heard and what she observed. Defendant has not shown error.
Further, given the overwhelming evidence of his guilt, including his own admissions, defendant
has failed to establish that Edidin’s recounting of the victim’s statements affected defendant’s
substantial rights. Coy, 258 Mich App at 12.

                   IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

       Defendant next argues that he was deprived of a fair trial because his trial counsel
provided him ineffective assistance of counsel by failing to object to inadmissible testimony by
Edidin and Detective Case Weston. We disagree.

        Because a Ginther5 hearing has not been held, our review is limited to mistakes apparent
on the record. People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). To prevail on
a claim of ineffective of counsel, a defendant must show that “(1) counsel’s performance fell
below an objective standard of reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been different.” People v
Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “Failing to advance a meritless
argument or raise a futile objection does not constitute ineffective assistance of counsel.” People
v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

        With regard to Edidin’s testimony, defendant first argues that counsel was ineffective for
failing to object to her testimony recounting the victim’s statements made during the sexual
assault examination. However, as we have discussed, the victim’s statements were admissible
under MRE 803(4). Any objection by counsel would have been futile, and counsel is not
ineffective for failing to make a futile objection. Ericksen, 288 Mich App at 201. Related to
Edidin, defendant also contends that counsel should have objected to her improper testimony to
the effect that a sexual assault occurred. However, the record shows that defense counsel did
object to Edidin’s testimony and in fact succeeded in obtaining relief for defendant insofar as the
trial court instructed the jury to disregard Edidin’s improper testimony. Defendant has not
shown that counsel’s performance was unreasonable in this respect. To the extent defense
counsel did not renew his objection when the prosecutor rephrased her question to ask whether
Edidin’s examination findings were “consistent” with sexual assault, any such objection would
have been futile because, as we have discussed, it was not improper for Edidin to testify, based
on her examination of the victim, that the victim’s injuries are consistent with sexual assault.
See McLaughlin, 258 Mich App at 657; Hunter, 141 Mich App at 233. Again, counsel was not
ineffective for failing to pursue a meritless argument. Ericksen, 288 Mich App at 201.
325; 484 NW2d 621 (1992). And, we do not find this factor dispositive in this case given the
temporal proximity between the assault and the examination, which indicates that the victim had
a legitimate interest in obtaining medical treatment at that time. See id.; cf. Shaw, 315 Mich App
at 675 (finding the victim’s statements to a doctor were not admissible under MRE 803(4) when
police referred the victim for examination 7 years after the occurrence of the alleged sexual
abuse).
5
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -7-
        Turning to Detective Weston, defendant argues on appeal that counsel performed
unreasonably by allowing Weston to testify during cross-examination that, in the course of
interviews with the police, the victim “maintained the same story she told us initially
throughout.”6 Assuming for the sake of argument that Weston’s fleeting statement was
inadmissible and that counsel performed unreasonably by prompting such testimony, defendant
has not shown outcome determinative error in light of the overwhelming evidence of his guilt,
including his admission that he performed oral sex on the victim and digitally penetrated her
without her consent. Accordingly, defendant’s claims of ineffective assistance are without merit.
See Trakhtenberg, 493 Mich at 51.

                V. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

         Lastly, defendant argues that his first appellate attorney (who was also his trial attorney)
provided ineffective assistance on appeal. In particular, after defendant filed his claim of appeal
and after his attorney filed a brief, defendant obtained a new appellate attorney, who received
leave from this Court to file a supplemental brief. Defendant’s new attorney identified additional
issues, which we have addressed above, including the claim that trial counsel was ineffective.
Defendant’s new attorney also claims that defendant’s prior appellate counsel was ineffective for
failing to raise these additional issues in defendant’s initial brief on appeal. We disagree.

        “The test for ineffective assistance of appellate counsel is the same as that for trial
counsel.” People v Pratt, 254 Mich App 425, 430; 656 NW2d 866 (2002). Under this test,
while defendant’s first appellate attorney did not raise all of the arguments advanced by his
second attorney, his first “appellate counsel's decision to winnow out weaker arguments and
focus on those more likely to prevail is not evidence of ineffective assistance.” Id. Moreover,
defendant cannot show prejudice. Given that defendant’s second attorney raised the issues in
question—and that we have considered those issues and found them to be without merit—the
failure by defendant’s first attorney to raise these matters was “insignificant” and certainly did
not affect the outcome of the proceedings. See id. Defendant is not entitled to relief based on
the performance of his first appellate attorney.




6
   Aside from his ineffective assistance of counsel claim, defendant challenges Weston’s
testimony on appeal as an evidentiary matter, claiming that his comment amounted to vouching
for the victim and that the trial court erred by allowing this vouching testimony. However, this
testimony was given during defense counsel’s cross-examination of Weston, and defendant
cannot “assign error on appeal to something his own counsel deemed proper at trial.” People v
Green, 228 Mich App 684, 691; 580 NW2d 444 (1998). Thus, defendant’s evidentiary challenge
is without merit.


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Affirmed.



                  /s/ Joel P. Hoekstra
                  /s/ William B. Murphy
                  /s/ Kirsten Frank Kelly




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