                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 18, 2016
              Plaintiff-Appellee,

v                                                                  No. 324435
                                                                   Emmet Circuit Court
SILVIO ANTONIO DUARTE-BORGE,                                       LC No. 14-003971-FC

              Defendant-Appellant.


Before: HOEKSTRA, P.J., and METER and M. J. KELLY, JJ.

PER CURIAM.

        Following a jury trial, defendant appeals as of right his convictions for two counts of
first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(a) (victim under 13 years of age)
and two counts of second-degree CSC, MCL 750.520c(1)(a) (victim under 13 years of age). The
trial court sentenced defendant to concurrent sentences of 25 to 37½ years in prison for each
first-degree CSC conviction and to 7 to 15 years in prison for each second-degree CSC
conviction. Because the trial court did not abuse its discretion by denying defendant’s motion
for an in camera inspection of the victim’s privileged mental health records and defendant was
not denied the effective assistance of counsel, we affirm.

                                           I. FACTS

       According to the evidence introduced at trial, the victim was born in 2000 and adopted by
Mark Huysken and his then-wife Diane Duarte. Diane and Mark divorced in 2006, after which
Diane married defendant. According to the victim’s testimony, defendant sexually abused the
victim numerous times in 2007 and 2008 in Mackinaw City. The abuse stopped for a time when
Diane and defendant moved to Petoskey, and resumed when they later moved to Portage in 2010.
According to the victim, the abuse stopped when she was about 13 years old.

        The victim first disclosed the abuse in December of 2013, when she told her stepmother,
Amy Huysken. Amy reported the matter to police, and the victim underwent a forensic
interview. During this first interview, the victim only described the abuse in Mackinaw City and
she denied that abuse had occurred in Portage. However, after later disclosing more details of
the abuse to Amy, the victim underwent a second forensic interview, at which time she reported
the abuse in Portage as well as additional details she did not include in her first interview. To
explain the victim’s delay in reporting the abuse as well as the inconsistencies in her forensic

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interviews, the prosecution presented expert testimony at trial from Barbara Cross, a mental
health therapist qualified as an expert in the delayed reporting of child sexual abuse. Although
Cross had not met or interviewed the victim, Cross testified that children commonly delay in the
reporting of sexual abuse and that their disclosures are often made piecemeal, with more details
emerging over time.

        At trial, defendant testified and he denied that any sexual abuse occurred. The defense
emphasized that there were no witnesses to the alleged abuse and no physical evidence to
support the victim’s allegations. Defendant also presented testimony from several family
members, including Diane, the victim’s older brother, the victim’s grandfather, and the victim’s
aunt, to support his claim that he was never alone with the victim in a workroom where most of
the abuse purportedly occurred in Mackinaw City. The defense also made numerous efforts to
undermine the victim’s credibility, including cross examination of the victim regarding the
inconsistencies between her two forensic interviews, evidence that the victim exhibited
behavioral problems, and evidence from various family members that the victim had a tendency
not to tell the truth.

       The jury convicted defendant of two counts of first-degree CSC and two counts of
second-degree CSC. The trial court sentenced defendant as noted above. Defendant now
appeals as of right.

             II. DISCOVERY OF PRIVILEGED MENTAL HEALTH RECORDS

        Before trial, defendant filed a motion seeking an in camera review of the victim’s mental
health records for the time between the first and second forensic interviews, which the trial court
denied. On appeal, defendant argues that the trial court abused its discretion by denying his
motion for in camera review of the victim’s privileged counseling records. In particular, given
the inconsistences between the victim’s two forensic interviews, defendant argues that there is a
reasonable probability that the victim’s mental health records might contain material information
relevant to his defense such as further inconsistencies in the victim’s story as well as a possible
explanation for why the victim’s story changed between her first and second forensic interview.
Under MCR 6.201(C)(2), defendant maintains that the trial court should have conducted an in
camera review of the records to determine whether they were discoverable.

       We review a trial court’s decision regarding a discovery request, including a request for
an in camera hearing, for an abuse of discretion. People v Phillips, 468 Mich 583, 587; 663
NW2d 463 (2003); People v Laws, 218 Mich App 447, 455; 554 NW2d 586 (1996). A trial
court abuses its discretion when its decision is outside the range of reasonable and principled
outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

        “There is no general constitutional right to discovery in a criminal case.” People v
Elston, 462 Mich 751, 765; 614 NW2d 595 (2000). Rather, the scope of discovery in a criminal
case in Michigan is governed by court rule and specifically constrained by the limitations set
forth in MCR 6.201. People v Greenfield (On Reconsideration), 271 Mich App 442, 447; 722
NW2d 254 (2006). Relevant to the present case, MCR 6.201(C)(1) states, in part, that “[t]here is
no right to discover information or evidence that is protected from disclosure by constitution,
statute, or privilege[.]” Communications to a psychologist made in connection with the

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psychological treatment of a patient are privileged, and thus not generally discoverable in a
criminal case in Michigan. See People v Carrier, 309 Mich App 92, 106; 867 NW2d 463
(2015); MCL 330.1750; MCR 6.201(C)(1).

        However, under MCR 6.201(C)(2), when a defendant requests discovery of privileged
information, privileged information must be inspected in camera by the trial court when “a
defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a
reasonable probability that records protected by privilege are likely to contain material
information necessary to the defense.” See also People v Stanaway, 446 Mich 643, 676-677; 521
NW2d 557 (1994). In other words, an in camera inspection should be utilized to determine
whether the evidence sought is discoverable, thereby “protecting the privacy interests of the
alleged victim, while safeguarding the defendant's right to a fair trial.” Id. at 680-681. “If the
court is satisfied, following an in camera inspection, that the records reveal evidence necessary to
the defense, the court shall direct that such evidence as is necessary to the defense be made
available to defense counsel.” MCR 6.201(C)(2)(b).

        In contrast, “disclosure should not occur when the record reflects that the party seeking
disclosure is on a fishing expedition to see what may turn up.” Stanaway, 446 Mich at 680
(quotation omitted). For this reason, an in camera hearing is not necessary if a defendant fails to
state “specific articulable facts that would indicate that the requested confidential
communications were necessary to a preparation of his defense.” Id. at 681-682. Consequently,
“a generalized assertion that the counseling records may contain evidence useful for
impeachment on cross-examination” will not entitle a defendant to an in camera hearing. Id. at
681. Likewise, a hearing is not necessary when a defendant seeking to unearth prior inconsistent
statements has not articulated “a good-faith basis for believing that such statements were ever
made or what the content might be and how it would favorably affect his case.” Id. This type of
request for a fishing expedition “falls short of the specific justification necessary to overcome the
privilege” and to necessitate an in camera hearing. Id. at 681-682.

        In this case, the trial court did not abuse its discretion by denying defendant’s request for
an in camera hearing because defendant did not demonstrate a good-faith belief, grounded in
articulable fact, that an in camera review of the victim’s counseling records was likely to uncover
material information necessary to his defense. MCR 6.201(C)(2). As in Stanaway, defendant
put forth generalized allegations that the victim’s counseling records may contain evidence that
could be used to impeach the victim’s credibility. But, defendant has not articulated a good-faith
basis for believing that the victim made additional inconsistent statements during therapy that
would favorably affect his case. Cf. Stanaway, 446 Mich at 681-682. At most, defendant notes
that there were inconsistencies between the victim’s two forensic interviews, and defendant
speculates that the victim’s therapy may somehow have been responsible for these
inconsistencies. However, defendant provides no good-faith reason for these speculations; i.e.,
defendant offers no tangible reason to suppose that contradictions in the victim’s second forensic
interview resulted from the victim’s therapy. Cf. People v Crear, 242 Mich App 158, 169; 618
NW2d 91 (2000), overruled in part on other grounds by People v Miller, 482 Mich 540; 759
NW2d 850 (2008). And, even if counseling led the victim to make the additional disclosures
documented in the second forensic interview, defendant fails to explain how this fact would
benefit his defense. See Stanaway, 446 Mich at 681-682. For example, there is simply no


                                                -3-
reason to suppose that there was anything improper in the methods used during the victim’s
therapy. Cf. Crear, 242 Mich App at 169.

        Moreover, given that defendant has articulated nothing more than a general desire to
uncover additional inconsistent statements for impeachment purposes, he has not shown that it is
reasonably probable that the victim’s statements during therapy are material to his defense.
Evidence is considered “material only if there is a reasonable probability that the trial result
would have been different, had the evidence been disclosed.” People v Fink, 456 Mich 449, 454;
574 NW2d 28 (1998). In the absence of the unspecified inconsistencies defendant hoped to
uncover in the victim’s therapy records, defendant was nonetheless able to attack the victim’s
credibility in several ways, not the least of which was confronting her with the inconsistency in
her forensic interviews. He also presented the testimony of family members that the victim was
not a truthful individual. Given the inconsistencies between the forensic interviews and the other
evidence available to impeach the victim’s credibility, defendant failed to show that any
unspecified inconsistent statements uttered by the victim in counseling were material to his
defense. See MCR 6.201(C)(2); Fink, 456 Mich at 458-459. In sum, the trial court did not abuse
its discretion when it denied defendant’s motion for in camera review of the victim’s counseling
records.

                        III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Next, defendant asserts that trial counsel rendered ineffective assistance. In particular,
defendant argues (1) that counsel should have investigated Cross’s testimony and called an
expert witness to refute Cross’s testimony regarding sexual abuse disclosures, (2) that counsel’s
motion for an in camera review of the victim’s mental health records should have included
information about the victim’s diagnosis of Reactive Attachment Disorder (RAD) and that
counsel should have presented evidence of RAD at trial, (3) that counsel performed ineffectively
by failing to investigate defendant’s cousin, Robert Cross, as a possible alternative perpetrator of
the abuse and by failing to present this theory to the jury, (4) that counsel failed to alert the trial
court that the jury’s foreman slept through “all” of the victim’s testimony, and (5) that the
cumulative effect of counsel’s failings deprived defendant of the effective assistance of counsel.

        Defendant failed to raise a claim of ineffective assistance of counsel in the trial court by
moving for a new trial or a Ginther1 hearing. Consequently, defendant's claims of ineffective
assistance are unpreserved, and our review is limited to mistakes apparent on the existing
record. People v Horn, 279 Mich App 31, 38; 755 NW2d 212 (2008). To establish a claim of
ineffective assistance, a defendant bears of the burden of establishing: “(1) that counsel's
representation fell below an objective standard of reasonableness, and (2) that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014)
(quotation marks and citations omitted). Trial counsel is responsible for preparing, investigating,
and presenting all substantial defenses, and a “substantial defense is one that might have made a


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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difference in the outcome of the trial.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68
(2009) (quotation omitted). However, ultimately, decisions regarding what evidence to present
and what witnesses to call are matters of trial strategy, and this Court will not second-guess
strategic decisions with the benefit of hindsight. Horn, 279 Mich App at 39. Indeed, “[e]ffective
assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). “Because the
defendant bears the burden of demonstrating both deficient performance and prejudice, the
defendant necessarily bears the burden of establishing the factual predicate for his claim.”
People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

         First, defendant argues that his counsel performed below an objective standard of
reasonableness by failing to investigate Cross and by failing to call a rebuttal expert witness.
This argument lacks merit because defendant has not established the factual predicate of his
claim. That is, there is nothing in the record to establish that counsel failed to investigate Cross’s
testimony or failed to investigate the possibility of calling an expert to testify on defendant’s
behalf. See People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003). The record
shows that counsel subjected Cross’s testimony to thorough cross-examination, and there is no
indication, with respect to Cross’s testimony, that counsel was ignorant “of valuable evidence
which would have substantially benefit the accused.” People v Caballero, 184 Mich App 636,
642; 459 NW2d 80 (1990). Further, the fact that counsel did not call an opposing expert witness
is presumed to be a strategic decision, which we will not second-guess. See Ackerman, 257
Mich App at 455. Indeed, on the existing record, there is no proof that an expert would have
testified favorably to defendant, meaning that defendant has not established the factual predicate
of his claim and has not established a reasonable probability that, but for counsel’s purported
error, the result of the proceedings would have been different. See id. at 455-456.

        We note that, in relation to his claim of ineffective assistance, defendant moved this
Court to remand for an evidentiary hearing, which this Court denied.2 In support of his position,
defendant attached documentary evidence to his motion for a remand and he attaches additional
materials to his brief on appeal. However, these materials were not part of the lower court
record, and they need not be considered. See MCR 7.210(A); Horn, 279 Mich App at 38; People
v Watkins, 247 Mich App 14, 31; 634 NW2d 370 (2001). Moreover, even considering this
evidence, at most, defendant’s appellate attorney vaguely states in an affidavit that she was able
to locate a potential expert, Dr. Katherine Okla, “to counter the prosecutor’s expert witness and
provide a legitimate explanation for why a child would lie.” However, there is no evidence to
establish this potential expert’s qualifications, and there is no affidavit from this expert to
establish her willingness to testify on defendant’s behalf or to establish the substance of her
potential testimony. See MCR 2.119(B)(1). In the absence of such evidence, defendant has not
established the factual predicate of his claim. See Ackerman, 257 Mich App at 455-456.




2
  People v Duarte-Borge, unpublished order of the Court of Appeals, entered April 24, 2015
(Docket No. 324435).


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        Second, defendant argues that his counsel failed to present evidence that the victim
suffered from RAD and failed to include reference to RAD in the request for an in camera
review of the victim’s mental health records. The lower court record contains no evidence that
the victim suffered from RAD, meaning that defendant has failed to establish the factual
predicate of his claim. See Carbin, 463 Mich at 600. Insofar as defendant presents an affidavit
from Diane on appeal, averring that the victim told Diane that she had been diagnosed with
RAD, these hearsay statements are not part of the lower court record and need not be considered.
See MCR 7.210(A); Watkins, 247 Mich App at 31. In any event, this scant hearsay evidence that
the victim suffered from RAD wholly fails to establish the importance of such evidence. That is,
defendant cannot show prejudice because he has neglected to present evidence to define RAD,
describe its symptoms, or to otherwise explain how a RAD diagnosis bolsters his case. See
Carbin, 463 Mich at 600.

         Third, defendant argues that his counsel was ineffective for failing to investigate an
alternative potential perpetrator, his cousin Robert. While defense counsel was required to
investigate all substantial defenses, Chapo, 283 Mich App at 371, the lower court record contains
no evidence that defendant relayed his claim that this other individual could be the perpetrator.
“[C]ounsel cannot be found ineffective for failing to pursue information that his client neglected
to tell him.” People v McGhee, 268 Mich App 600, 626; 709 NW2d 595 (2005). And, in any
event, defendant makes no offer of proof to substantiate the self-serving, threadbare assertion
that Robert may have sexually abused the victim. The victim unequivocally identified defendant
as the perpetrator, and, even considering the documents offered by defendant on appeal, there is
absolutely no indication that Robert ever had sexual contact with the victim. In other words, this
was not a substantial defense, and counsel was not ineffective for failing to pursue the far-flung
possibility that Robert sexually abused the victim. See Chapo, 283 Mich App at 371-372.
Indeed, it was eminently reasonable not to propose an alternate perpetrator given that the defense
strategy at trial was to paint the victim as a liar and to categorically deny that the abuse had
occurred in the first instance. Cf. id. at 372 (“Counsel's choice between weak defenses does not
suggest deficient performance or prejudice.”).

        Fourth, defendant argues that counsel was objectively unreasonable for failing to inform
the trial court that the jury foreman slept through the victim’s testimony. Defendant fails to
establish the predicate for this argument, as the record contains no evidence that the jury foreman
slept through any part of the victim’s two-day testimony. See Carbin, 463 Mich at 600.
Moreover, given that the juror purportedly slept through testimony from a prosecution witness,
“defense counsel could reasonably have made a strategic decision to assume that the juror's
missing that testimony would have helped the defense.” People v Dunigan, 299 Mich App 579,
586-587; 831 NW2d 243 (2013). Further, defendant has failed to show that the allegedly
sleeping juror affected the outcome of the proceeding. Cf. id. at 586.

       Lastly, defendant maintains that, even if no single mistake by counsel merits reversal, the
cumulative effect of counsel’s errors entitles him to a new trial. “The cumulative effect of
several minor errors may warrant reversal even where individual errors in the case would not
warrant reversal.” People v Knapp, 244 Mich App 361, 388; 624 NW2d 227 (2001). However,
without individual error, no cumulative error is shown and defendant is not entitled to reversal.
People v Dobek, 274 Mich App 58, 106; 732 NW2d 546 (2007).


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Affirmed.



                  /s/ Joel P. Hoekstra
                  /s/ Patrick M. Meter
                  /s/ Michael J. Kelly




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