                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 20, 2017
               Plaintiff-Appellee,

v                                                                   No. 329412
                                                                    Wayne Circuit Court
SEAN PHILIP DAILEY,                                                 LC No. 15-002595-01-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and MURRAY and M. J. KELLY, JJ.

PER CURIAM.

        A jury convicted defendant, Sean Dailey, of four counts of first-degree criminal sexual
conduct (CSC-I), MCL 750.520b(1)(a), and furnishing alcohol to a minor, MCL 436.1701. The
trial court sentenced Dailey to prison terms of 25 to 50 years for each CSC-I conviction, with
three of the sentences to be served consecutively to each other, and the fourth sentence to be
served concurrently with the sentences for the other counts. Dailey appeals as of right, and we
affirm.

                                        I. BASIC FACTS

        The complainant testified that Dailey, her father, had sexually assaulted her on multiple
occasions in January and February 2015. The complainant was twelve years old at the time. She
asserted that Dailey penetrated her vagina with his penis three times on January 19, 2015—two
times before she went to bed and once in the morning after she showered. She also testified that
he penetrated her vagina with his penis on Valentine’s weekend 2015. Further, she stated that
later in February 2015, while she was vacationing in Florida with Dailey, his girlfriend, and her
half-sisters (Dailey’s younger daughters), Dailey touched her vaginal area through her clothes.
She testified that after that incident she tried to avoid Dailey, and when she returned to Michigan
she disclosed the abuse to her mother and her maternal grandmother.

        The complainant was forensically interviewed at Kids Talk. She was also physically
examined by Dr. Mary Lu Angelilli. Dr. Angelilli testified that the physical examination did not
reveal any evidence of sexual abuse. However, she also testified that the physical findings were
consistent with the allegations of abuse because in most cases of sexual abuse there is no
physical evidence. On cross-examination, she opined that the complainant was sexually abused,
but clarified that her opinion was based on the history given by other persons and the written
report from the forensic interview, not on the physical findings.
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       At trial, pursuant to MCL 768.27a, the prosecutor also presented evidence that in 1999,
Dailey had sexually assaulted LS, who was only 14 years old at the time.

        Dailey testified on his own behalf. With regard to the 1999 sexual assault allegations, he
admitted that he engaged in sexual relations with LS. However, he testified that LS was his
girlfriend at the time and that she fabricated the allegations because she was upset that he broke
up with her. He admitted that he had been criminally charged with sexually assaulting LS and
that he had pleaded no contest to one count of fourth-degree criminal sexual conduct.

        Dailey denied sexually assaulting the complainant. He presented testimony suggesting
that the complainant fabricated the allegations to retaliate against him for disciplining her while
they were vacationing in Florida.

       The jury convicted Dailey as charged. This appeal follows.

                                 II. OTHER-ACTS EVIDENCE

                                  A. STANDARD OF REVIEW

        Dailey first argues that the trial court erred by allowing the prosecutor to present evidence
of his prior sexual assault of LS and evidence of the uncharged sexual misconduct against the
complainant in Florida. At a pretrial hearing, the trial court held that the evidence was
admissible pursuant to MCL 768.27a. We review for an abuse of discretion the trial court’s
decision to admit evidence. People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014). “The
trial court abuses its discretion when its decision falls outside the range of principled outcomes
or when it erroneously interprets or applies the law.” Id.

                                          B. ANALYSIS

        MCL 768.27a provides that “in a criminal case in which the defendant is accused of
committing a listed offense against a minor, evidence that the defendant committed another listed
offense against a minor is admissible and may be considered for its bearing on any matter to
which it is relevant. . . .” Although MRE 404(b) states that “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show action in conformity
therewith,” our Supreme Court has held that MCL 768.27a “establishes an exception to MRE
404(b) in cases involving a charge of sexual misconduct against a minor.” People v Watkins,
491 Mich 450, 471; 818 NW2d 296 (2012). Nevertheless, evidence admitted under MCL
768.27a is subject to exclusion under the balancing test in MRE 403. Id. at 481.

              [W]hen applying MRE 403 to evidence admissible under MCL 768.27a,
       courts must weigh the propensity inference in favor of the evidence’s probative
       value rather than its prejudicial effect. That is, other-acts evidence admissible
       under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial
       merely because it allows a jury to draw a propensity inference. . . . .

              This does not mean, however, that other-acts evidence admissible under
       MCL 768.27a may never be excluded under MRE 403 as overly prejudicial.
       There are several considerations that may lead a court to exclude such evidence.

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       These considerations include (1) the dissimilarity between the other acts and the
       charged crime, (2) the temporal proximity of the other acts to the charged crime,
       (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the
       lack of reliability of the evidence supporting the occurrence of the other acts, and
       (6) the lack of need for evidence beyond the complainant’s and the defendant’s
       testimony. This list of considerations is meant to be illustrative rather than
       exhaustive. [Id. at 487-488.]

        Dailey argues that the trial court should have excluded the evidence as overly prejudicial
under MRE 403. Dailey contends that the court’s application of MRE 403 “does not reflect any
detailed analysis.” He asserts that the 1999 sexual assault allegation is 16 years old and is not
similar to the current sexual assault allegations. He argues that in the 1999 incident, LS was 15
years old and he was 18 years old, whereas in this case the complainant was 12 years old and he
was 31 years old. Further, he was dating LS when he had sex with her and he did not ply her
with alcohol. In contrast, his daughter was not dating him and alcohol was allegedly used.
Likewise, he asserts that the allegation that he groped the complainant in Florida is also
dissimilar because alcohol was not used and the incident did not involve penetration.

         The record, however, reflects that the trial court carefully considered the probative value
of the other-acts evidence against the danger of unfair prejudice. In particular, although the
prosecutor argued that the assaults on LS and the complainant were similar because Dailey used
a knife to threaten LS and he put his hands around the complainant’s throat at one point, the trial
court held that the evidence about the use of the knife would be substantially more prejudicial
than probative and excluded it. The court, however, still concluded that the assaults were similar
and allowed LS to testify. We agree that there were similarities. LS was 14 years old when
Dailey assaulted her and the complainant was 12 years old when Dailey assaulted her. Further,
LS and the complainant were both subjected to multiple penetrations. LS testified that before
assaulting her, Dailey told her “it’s going to happen one way or another.” The complainant
testified that Dailey made a nearly verbatim threat, telling her, “It’s going to happen either way.”
Thus, although Dailey has directed us to dissimilarities between the two incidents, there are also
similarities. By commenting on the similarities between both complainants’ assaults, the trial
court found that the first factor in Watkins did not strongly favor exclusion of the evidence.
Further, in weighing the evidence, the court considered that the incidents occurred 16 years
apart, but did not conclude that the temporal proximity, i.e., the second Watkins factor, weighed
in favor of excluding the evidence in light of the similarities of the conduct. Dailey does not
argue on appeal that any of the other Watkins factors weigh in favor of exclusion of LS’s
testimony under MRE 403, and we conclude that they do not. Under these facts, the trial court
did not abuse its discretion when it admitted LS’s testimony into evidence under MCL 768.27a.

        The trial court also did not abuse its discretion in admitting evidence of Dailey’s Florida
sexual misconduct. The complainant’s testimony that Dailey touched her genitals through her
clothing was relevant to explain her motivation for disclosing Dailey’s abuse to her mother. This
evidence also was necessary to refute the defense theory that the complainant fabricated the
abuse allegations because Dailey supported his girlfriend in disciplining the complainant during
the trip. The jury was entitled to hear the complainant’s alternative explanation for why she
came forward with the accusations after returning from Florida. Moreover, Dailey does not
identify any factors that would cause the probative value of this evidence to be substantially

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outweighed by the danger of unfair prejudice. Accordingly, the trial court did not abuse its
discretion by admitting this evidence.

                                 III. MOTION FOR MISTRIAL

                                 A. STANDARD OF REVIEW

        Dailey next argues that the trial court erred in denying his motion for a mistrial based on
improper testimony by the prosecution’s expert witness, Dr. Angelilli. Dailey contends that Dr.
Angelilli improperly testified that the complainant’s accusations of sexual abuse were credible.
We review for an abuse of discretion the trial court’s decision denying a defendant’s motion for a
mistrial. People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010). “A trial court should
grant a mistrial only for an irregularity that is prejudicial to the rights of the defendant and
impairs his ability to get a fair trial.” Id. (citation and quotation marks omitted).

                                         B. ANALYSIS

       Dailey argues that an expert witness may not offer an opinion on the ultimate issue of
whether sexual abuse actually occurred. In support, he directs us to our Supreme Court’s
decisions in People v Beckley, 434 Mich 691; 456 NW2d 391 (1990) (opinion by BRICKLEY, J)
and People v Peterson, 450 Mich 349; 537 NW2d 857 (1995), amended on other grounds 450
Mich 1212 (1995). In Beckley the Court addressed experts who “testified regarding the
characteristics and patterns of behavior typically exhibited by sexually abused children.”
Beckley, 434 Mich at 697. Similarly, in Peterson, the Court addressed “expert syndrome
evidence” regarding “behaviors common in other abuse victims.” Peterson, 450 Mich at 370.
The Peterson Court modified the ruling in Beckley and held:

               In these consolidated cases, we are asked to revisit our decision in
       [Beckley], and determine the proper scope of expert testimony in childhood sexual
       abuse cases. The question that arises in such cases is how a trial court must limit
       the testimony of experts while crafting a fair and equitable solution to the
       credibility contests that inevitably arise. As a threshold matter, we reaffirm our
       holding in Beckley that (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, we clarify our
       decision in Beckley and now hold that (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.]

Dailey contends that Dr. Angelilli’s testimony violated this rule because she opined that the
complainant was an actual victim of sexual abuse. However, unlike the experts in Beckley and
Peterson who only testified about child sexual abuse victims in general, Dr. Angelilli testified as

                                                -4-
a physician who conducted an actual physical examination of the complainant. Accordingly, we
find that the issue in this case is not controlled by Beckley and Peterson.

         Instead, we turn to our Supreme Court’s decision in People v Smith, 425 Mich 98; 387
NW2d 814 (1986). In Smith, our Supreme Court addressed whether examining physicians could
testify that a complainant had been sexually assaulted. Id. at 101. The Court, citing MRE 704,
stated that “[i]t is . . . well-established that expert opinion testimony will not be excluded simply
because it concerns the ultimate issue.” Smith, 425 Mich at 106.1 Further, reflecting on prior
precedent, the Court indicated that an examining physician cannot give an opinion on whether a
complainant had been sexually assaulted if the “conclusion [is] nothing more than the doctor’s
opinion that the victim had told the truth.” Id. at 109. Such testimony is not permissible because
a “jury [is] in just as good a position to evaluate the victim’s testimony as” the doctor. Id.
However, an examining physician, if qualified by experience and training relative to treatment of
sexual assault victims, can give an opinion with respect to whether a complainant had been
sexually assaulted when the opinion is based on physical findings and the complainant’s medical
history. Id. at 110-112.2 See also People v Swartz, 171 Mich App 364, 376-378; 429 NW2d 905
(1988) (holding that an examining physician’s opinion testimony opining that the complainant
was sexually assaulted was admissible given that his opinion was based on objective facts
obtained from his physical examination of the complainant).

        In this case, Dr. Angelilli actually conducted a physical examination of the complainant,
so under Smith and Swartz, there was nothing improper regarding the prosecutor’s question about
whether Dr. Angelilli’s findings were consistent with the allegations of abuse. Nevertheless, on
cross-examination, Dr. Angelilli opined “that there was sexual abuse based upon what people
told her and the report of the forensic interview.” She did not base her opinion on the physical
findings, which, as she explained were consistent with the allegations of sexual abuse only in the
sense that most sexual assaults did not leave any physical signs of a sexual assault. Therefore,
her opinion testimony on cross examination was improper under Smith and Swartz.

        Nevertheless, although the testimony was improper, we do not agree that the trial court
abused its discretion when it denied Dailey’s motion for a mistrial based on the improper opinion
testimony. “A mistrial should be granted only where the error complained of is so egregious that
the prejudicial effect can be removed in no other way.” People v Gonzales, 193 Mich App 263,
266; 483 NW2d 458 (1992). Here, the improper testimony was first elicited on cross-
examination during the following exchange:

              Dailey’s lawyer. But in this case it’s possible that there was not ever
       penetration at all? It’s possible?


1
  MRE 704 provides that “[t]estimony 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 of
fact.”
2
  The Smith Court made clear that the complainant’s history must be more than the complainant
simply claiming that he or she was sexually assaulted. Smith, 425 Mich at 112 n 9.


                                                -5-
              Dr. Angelilli. I can’t—well, my opinion putting the whole evaluation
       together was that she was sexually abused, but it was not based on the
       examination of her hymen.

Dr. Angelilli’s testimony was unresponsive to the question, which did not call for whether she
had concluded that there was sexual abuse. Generally, an unresponsive, volunteered answer to a
proper question is not grounds for granting a mistrial. People v Haywood, 209 Mich App 217,
228; 530 NW2d 497 (1995). Moreover, Dr. Angelilli’s improper opinion testimony was not so
egregious that the prejudicial effect of the testimony could not be removed using means other
than a mistrial. Here, rather than granting a mistrial, the court indicated that it would, if
requested, give a curative instruction to the jury. A curative instruction is presumed to cure
prejudice caused by the admission of improper testimony. People v Mahone, 294 Mich App 208,
212; 816 NW2d 436 (2011). Both Dailey’s lawyer and the prosecutor indicated that they would
work together to craft a proposed jury instruction to limit any prejudice caused by any improper
opinion testimony.3 Thereafter, the court instructed the jury that it could not use Dr. Angelilli’s
testimony to conclude that the complainant was telling the truth because whether the
complainant was telling the truth was “for you to decide and no one else.” The court also
summarized the admissible portions of Dr. Angelilli’s opinion testimony, pointing out that she
had testified that the absence of physical evidence of abuse was consistent with both sexual
abuse and the absence of sexual abuse. Therefore, in this case, the prejudicial effect of the error
was removed by the court’s instructions. The trial court’s failure to declare a mistrial was within
the range of reasonable and principled outcomes and does not amount to an abuse of discretion.

                           IV. DEADLOCK JURY INSTRUCTIONS

                                 A. STANDARD OF REVIEW

        Dailey argues that the trial court erroneously responded to jury notes expressing that it
was deadlocked and improvidently required the jury to continue deliberations, with the result
being that the court improperly coerced the jury’s guilty verdict. Because Dailey did not object
below, his claims are unpreserved. See People v Metamora Water Serv, Inc, 276 Mich App 376,
382; 741 NW2d 61 (2007). Unpreserved claims are reviewed for plain error affecting substantial
rights. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). “Reversal is
warranted only when plain error resulted in the conviction of an actually innocent defendant or
seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id.
(citation omitted).



3
  The record reflects that the parties and the court could not recall with specificity whether Dr.
Angelilli had in fact given improper testimony in front of the jury or whether the improper
testimony was elicited while the jury was excused. Based on our review of the record, it is plain
that the jury heard improper testimony, that the improper testimony was elaborated upon outside
the presence of the jury, that the court cautioned the lawyers about what would constitute
improper testimony, and that the parties thereafter did not solicit additional improper testimony
in front of the jury.


                                                -6-
                                         B. ANALYSIS

        When a jury indicates that it is unable to reach a verdict, a trial court may give a
supplemental jury instruction and direct them to continue deliberations so long as the
supplemental instruction does not coerce a verdict. People v Sullivan, 392 Mich 324, 331-342;
220 NW2d 441 (1974). A supplemental instruction is impermissibly coercive if it would force a
juror to surrender an honest conviction. Id. To determine whether a given instruction is
impermissibly coercive, this Court considers whether the instruction has “an undue tendency of
coercion—e.g., could the instruction given cause a juror to abandon his conscientious dissent and
defer to the majority solely for the sake of reaching agreement?” People v Hardin, 421 Mich
296, 314; 365 NW2d 101 (1984). The instruction “must be examined in the factual context in
which it is given” to determine whether there was a coercive effect on the jury. Id. at 315.

        In this case, the jury cdeliberated for four days, during which they sent a number of notes
to the court. On the first day, the jury sent a note asking to reopen the proofs. Later that day,
they asked for transcripts and asked what would be a reasonable amount of time to deliberate.
The court instructed the jury that it would not reopen the proofs, that transcripts could be made
available but they should first rely on their collective memories and notes, and that there was no
set amount of time to deliberate. On the second day, the jury sent a note asking about the proper
protocol “if we are at an impasse and discussion is becoming loud and heated.” In the same note,
they asked to go to lunch. The court provided a supplemental instruction suggesting that the jury
make a list of the issues dividing or confusing them and explaining that it would then try and
help them with those issues. The jury never provided a list. Additionally, one juror sent a note
stating that he “strongly” felt that he could not continue. After questioning by the court, he
explained that he was concerned with a scheduled college examination, and the court stated that
it would contact the professor on the juror’s behalf. On the third day of deliberations, the jury
sent a note stating that it was “hung.” The court then read, for the first time, the deadlocked jury
instruction in full. Later, after there were reports that the jurors were yelling and screaming at
each other, the jury was sent home for the weekend. When they returned the following Monday,
they reached a verdict.

       Dailey argues that the trial court’s “refusal to accept the jury’s assessment that it was
hopelessly deadlocked clearly put enormous pressure on the jury, and especially upon the juror
with a scheduling conflict and the dissenting juror(s), who apparently had a reasonable doubt.”
The “impasse” note sent on the second day, however, was not a note indicating that the jury was
at an impasse or otherwise deadlocked. Rather, the note, which included a request for a lunch
break, suggested that the jurors were having difficulties with their deliberations, believed that
they might reach an impasse, and wanted to know the proper procedure to follow. The court
provided supplemental instructions suggesting that the jury make a list of issues that divided or
confused them and submit the list to the court so that the court could attempt to provide
additional assistance. The jury did not make such a list and submit it to the court. Instead, they
continued their deliberations until the next day. They then sent a note plainly stating that they
were deadlocked. In response to that note, the court read the deadlocked jury instruction in full,
without deviation.




                                                -7-
        Contrary to Dailey’s argument, the court was not required to accept the jury’s “hung
jury” declaration as a conclusive fact. The court properly gave the deadlocked jury instruction
for the purpose for which it was written, namely, to ask the jurors to reevaluate their positions,
subject to their duty to maintain their honest beliefs and not succumb to pressure to join the
majority. We do not agree that the trial court’s delivery of the instruction, which comported with
M Crim JI 3.12, was focused on pressuring dissenting jurors to change their vote. Dailey has not
demonstrated that the trial court committed a plain error affecting his substantial rights in giving
the deadlocked jury instruction when it did.

         We also reject Dailey’s argument that the trial court placed improper pressure on the
juror who was concerned about missing a college examination. There is no basis for inferring
anything about that juror other than what was stated on the record in his exchange with the court.
On the record before us, there is nothing to suggest that the juror was a dissenting juror pressured
to join the majority because of scheduling concerns.

       The trial court did not coerce the jury’s verdict by reading the deadlocked jury instruction
and requiring the jury to continue deliberations after it indicated it was deadlocked.

                              V. CONSECUTIVE SENTENCING

                    A. PRESERVATION AND STANDARD OF REVIEW

        Finally, Dailey challenges the trial court’s imposition of consecutive sentences for three
of his CSC-I convictions pursuant to MCL 750.520b(3). Issues concerning the interpretation and
application of a statute are reviewed de novo. People v Corbin, 312 Mich App 352, 361; 880
NW2d 2 (2015). Where discretionary consecutive sentencing is authorized, this Court reviews a
trial court’s decision to impose consecutive sentences for an abuse of discretion. People v St
John, 230 Mich App 644, 648; 585 NW2d 849 (1998).

                                         B. ANALYSIS

        When imposing consecutive sentences in this case, the trial court first noted that it had
discretion to impose a consecutive sentence in this case because counts I, II, and III “grew out of
a continuous time sequence and all had a connective relationship that was more than incidental.”
On appeal, Dailey concedes that the court had discretion to impose consecutive sentences in this
case because counts I, II, and III allegedly arose from the same transaction as required by MCL
750.520b(3). He nevertheless raises two arguments with regard to the court’s decision to impose
consecutive sentences.

        First, he asserts that his sentence is substantively unreasonable under the standard
announced in Gall v United States, 552 US 38; 128 S Ct 586; 169 L Ed 2d 445 (2007). Dailey’s
reliance on Gall is misplaced because we have expressly rejected the Gall standard for reviewing
the reasonableness of sentences in Michigan. See People v Steanhouse, 313 Mich App 1, 43-48;
880 NW2d 297 (2015).

       Second, he argues that the trial court erred because it failed to provide a basis for its
decision to impose consecutive sentences. In People v Norfleet, ___ Mich App ___; ___; ___
NW2d ___ (2016) (Docket No. 328968), slip op at 7, lv pending, this Court held that where a

                                                -8-
consecutive sentence is discretionary, “[t]he decision as to each consecutive sentence is its own
discretionary act and must be separately justified on the record.” Further, “[w]hile imposition of
more than one consecutive sentence may be justified in an extraordinary case, trial courts must
nevertheless articulate their rationale for the imposition of each such sentence so as to allow
appellate review.” Id. The trial court remarked that the complainant was “a hero” for reporting
the abuse in order to protect Dailey’s other younger daughters. The court opined that Dailey’s
prior record variable score for the sentencing guidelines did not adequately take into account
Dailey’s prior conviction of fourth-degree CSC for an offense against a minor, failure to comply
with his sex offender registry reporting duties, and his juvenile offenses of torturing an animal
and setting a fire in the woods. The court noted that the Legislature authorized consecutive
sentences for the purpose of “tak[ing] away security of concurrent sentences.” The court stated
that Dailey was a danger to the community and that the community likely needed to be protected
from Dailey for the rest of his life. The court added that consecutive sentencing was appropriate
in consideration of the Legislature’s purpose in allowing consecutive sentencing. In addition, the
court commented on the “connective relationship” of the three convictions for which consecutive
sentencing was authorized. We conclude that the trial court’s comments are sufficient to satisfy
the requirement in Norfleet that the sentencing court articulate its particular reasons for imposing
consecutive sentences. The trial court’s reasons, considered in conjunction with the
Legislature’s express authorization of consecutive sentences in this type of situation, were
sufficient to demonstrate an outcome within the range of reasonable and principled outcomes.
Accordingly, the trial court did not abuse its discretion by imposing consecutive sentences, nor
did it fail to provide a basis for its decision.

       Affirmed.

                                                             /s/ William B. Murphy
                                                             /s/ Christopher M. Murray
                                                             /s/ Michael J. Kelly




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