                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 16, 2017
               Plaintiff-Appellee,

v                                                                  No. 330086
                                                                   Kalamazoo Circuit Court
VICTOR DEVON FITZPATRICK,                                          LC No. 2015-000668-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ.

PER CURIAM.

         Defendant appeals by right his convictions for two counts of first-degree criminal sexual
assault (CSC), MCL 750.520b(1)(b), and two counts of second-degree CSC, MCL
750.520c(1)(b). The trial court sentenced defendant to 330 months to 50 years’ imprisonment
for first-degree CSC and 15 to 30 years’ imprisonment for second-degree CSC. We affirm.

        On April 4, 2015, defendant was out late drinking in Kalamazoo, Michigan, with his
cousin Makella Potts, and her friend. At some point that night, defendant went to Makella’s
house with Makella to go to sleep. Makella decided to go back out and left defendant on the
couch in her living room. Their aunt, Carla Potts, was spending the night at Makella’s on a
separate couch in the living room. The victim, defendant’s 14-year-old cousin was also staying
in Makella’s house that night. Before defendant came back for the night, the victim watched
television until 1 a.m. with Carla, and then went to bed with her nieces in a first-floor bedroom.

        At some point during the night, the victim awoke to defendant rubbing his penis against
her butt. The victim told defendant to stop, but he did not say anything and continued to rub
against the victim for another couple of minutes. When defendant stopped, he rolled the victim
onto her back, got on top of her, and took off her pants. Defendant then removed his pants and
put his penis in the victim’s mouth and moved it up and down. After defendant removed his
penis from the victim’s mouth, he put it into her vagina. Defendant then pushed the victim’s bra
down and began licking her breasts while his penis was still in her vagina. This continued until
there was a knock on the door, at which point defendant stopped, put on his clothes, and left.

        The next day, the victim told Makella what happened. The victim was eventually taken
to the YWCA, where a nurse performed a physical examination. As part of the exam, the nurse
collected the victim’s medical history, including the reason for the victim’s visit to the YWCA

                                               -1-
that day. Over defendant’s objection, the nurse testified at trial that the victim told her that while
the victim was asleep, a man came behind her and rubbed his penis on her butt, then got on top
of her and put his penis in her mouth, then in her vagina. The nurse testified that this continued
until the man heard a knock on the door, at which point he left. After hearing the victim’s story,
the nurse performed a physical examination of the victim and found a ¾-inch abrasion to the
victim’s genital area on the posterior fourchette, which was consistent with the events that the
victim described. Samples were taken from the areas that the victim told the nurse that her
assailant had touched, but no saliva or semen was found in any of the samples.

        Also at defendant’s trial, the prosecution introduced evidence of a sexual assault from
2006 in which defendant was accused of sexually assaulting his 18-year-old stepcousin. In that
instance, the victim was sleeping on a couch at Makella’s apartment. Defendant came into
Makella’s apartment after the victim had already fallen asleep, took the victim’s pants off, and
put his penis into her vagina. When the victim woke up, defendant stopped. The victim quickly
put her pants back on and went to Makella’s room to call the police, at which point defendant
fled.

       On appeal, defendant first argues that the trial court erred by admitting the nurse’s
testimony regarding the victim’s statement because it was inadmissible hearsay. We disagree.
“This Court reviews a trial court’s evidentiary ruling for an abuse of discretion.” People v
Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). “A trial court abuses its discretion
when its decision falls outside the range of reasonable and principled outcomes.” People v
Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013).

         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). “If,
however, the proponent of the evidence offers the statement for a purpose other than to prove the
truth of the matter asserted, then the statement, by definition, is not hearsay.” People v Musser,
494 Mich 337, 350; 835 NW2d 319 (2013). If a statement is hearsay, it “is generally prohibited
and may only be admitted at trial if provided for in an exception to the hearsay rule.” People v
Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). “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).

        In this case, the nurse’s testimony was arguably not hearsay because it was not offered to
prove the truth of the victim’s statement. The nurse testified that she collected information from
the victim in order to address the victim’s medical needs, which included understanding why the
victim was visiting the nurse on that occasion. The nurse did not identify defendant by name,
but rather described the events that the victim said caused her injuries. At no point did the nurse
indicate that these events were true, only that the injuries she identified on the victim were
consistent with the victim’s description of these events. Therefore, the nurse’s testimony was
arguably not hearsay.

       Even if the statement were hearsay, it was admissible under MRE 803(4). The nurse
explained that collecting a medical history, including the reason that the patient was visiting the

                                                 -2-
nurse on a particular occasion, was a routine part of the nurse’s examination process. In the
victim’s case, she described to the nurse a sexual assault during which a man put his penis inside
her vagina, causing pain. The victim complained of continuing discomfort in her genital region.
Based on the victim’s statements, the nurse conducted a physical exam and was able to identify a
¾-inch abrasion to the victim’s genital area. Therefore, the sexual assault that the victim
described to the nurse was “reasonably necessary for diagnosis and treatment” because it
determined the type of examination and course of treatment that was most appropriate. Mahone,
294 Mich App at 214-215. Defendant argues that the purpose of the victim’s examination was to
collect evidence, not for medical treatment. However, the fact that the nurse collected evidence
of a sexual assault during her examination of the victim “is not dispositive.” People v Duenaz,
306 Mich App 85, 96; 854 NW2d 531 (2014). The victim went to the nurse complaining of
genital discomfort, and the nurse diagnosed an abrasion to the victim’s genital area. This
supports the conclusion that the victim went to the nurse for a medical diagnosis. Further, by
telling the nurse the truth, the victim ensured that the nurse was able to properly address any
potential medical injuries that the victim may have suffered. Therefore, she had a
“self-interested motivation to be truthful in order to receive proper medical care.” Mahone, 294
Mich App at 214-215. Accordingly, the trial court properly admitted the nurse’s testimony
regarding the victim’s statement describing her sexual assault under MRE 803(4).

        Defendant next argues that the trial court erred by admitting defendant’s other-acts
evidence. We disagree. Defendant did not object to the admission of the 2006 sexual assault,
but rather left its admission to the discretion of the trial court. Therefore, defendant waived his
right to appeal this issue, People v Fetterley, 229 Mich App 511, 520; 583 NW2d 199 (1998),
and his waiver extinguished any error, People v Carter, 462 Mich 206, 215; 612 NW2d 144
(2000). Yet, even addressing the merits of defendant’s argument, his claim fails. If defendant
had not waived this issue, his failure to object left the issue unpreserved. People v Aldrich, 246
Mich App 101, 113; 631 NW2d 67 (2001). “We review unpreserved evidentiary error, including
alleged constitutional error, for plain error.” People v Coy, 258 Mich App 1, 12; 669 NW2d 831
(2003).

       MRE 404(b)(1) states that “evidence of other crimes, wrongs, or acts” is not admissible
“to prove the character of a person in order to show action in conformity therewith,” but is
admissible for “purposes, such as proof of . . . scheme [or] plan.” MRE 404(b)(1). To determine
whether other acts evidence is admissible, courts in Michigan follow the VanderVliet1 approach,
which requires the following:

         First, the prosecutor must offer the “prior bad acts” evidence under something
         other than a character or propensity theory. Second, the evidence must be
         relevant under MRE 402, as enforced through MRE 104(b). Third, the probative
         value of the evidence must not be substantially outweighed by unfair prejudice
         under MRE 403. Finally, the trial court, upon request, may provide a limiting



1
    People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).


                                                -3-
       instruction under MRE 105. [People v Knox, 469 Mich 502, 509; 674 NW2d 366
       (2004) (citation and quotation marks omitted).]


        Defendant first argues that the 2006 evidence was improperly admitted because its sole
purpose was to show defendant’s character. This argument is without merit. “Where the only
relevance of the proposed evidence is to show the defendant’s character or the defendant’s
propensity to commit the crime, the evidence must be excluded.” Id. However, this “rule is
inclusionary, because it provides a nonexhaustive list of reasons to properly admit evidence that
may nonetheless also give rise to an inference about the defendant’s character.” People v
Mardlin, 487 Mich 609, 615-616; 790 NW2d 607 (2010). Here, the prosecution offered the
2006 victim’s testimony of the previous incident in which defendant put his penis in the victim’s
vagina while she was sleeping to show a common scheme or plan on behalf of defendant to
sexually assault young teenage girls. On its face, this is a proper purpose under MRE 404(b)(1).

       “[E]vidence of similar misconduct is logically relevant to show that the charged act
occurred where the uncharged misconduct and the charged offense are sufficiently similar to
support an inference that they are manifestations of a common plan, scheme, or system.” People
v Sabin (After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000). “While there [may be] some
dissimilarities between the charged acts and the other bad acts, a high degree of similarity is not
required, nor are distinctive or unusual features required to be present in both the charged and the
uncharged acts.” People v Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009).

        Both in the current case and the 2006 assault, defendant was involved in a sexual assault
of a young relative while the relative was staying as a guest at defendant’s cousin’s home. In
both instances, defendant approached the victim while she was sleeping and removed her
clothes. Although there were clear differences in the two assaults, such as the victim in the 2006
incident was on a couch and not a bedroom, and defendant stopped assaulting the 2006 victim
when she woke up, the cases were sufficiently similar to establish a common scheme or plan.
See Steele, 283 Mich App at 480.

        Defendant does not contest the relevance of the evidence, but rather argues that the trial
court erred in admitting evidence of the 2006 assault because it was unfairly prejudicial. Under
MRE 403, relevant “evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
MRE 403 “does not prohibit prejudicial evidence; only evidence that is unfairly so.” People v
Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998). This is because evidence offered against
a party is “by its very nature . . . prejudicial, otherwise there would be no point in presenting it.”
People v Fisher, 449 Mich 441, 451; 537 NW2d 577 (1995). When weighing “probative value
against prejudicial value,” this Court balances several factors, including, among other
considerations, “the potential for confusing or misleading the jury.” People v Blackston, 481
Mich 451, 462; 751 NW2d 408 (2008).

       Defendant argues that evidence of the 2006 assault unfairly bolstered the victim’s
testimony because it painted defendant as a bad man to the jury, tempted the jury to convict
defendant of the 2006 assault rather than the assault at issue in the case, and tempted the jury to

                                                 -4-
find that defendant committed the crime in this case because he had a propensity to commit
crimes. These arguments are without merit. “A carefully constructed limiting instruction
rendered by the trial court would be sufficient to counterbalance any potential for prejudice
spawned by the other acts evidence.” People v Martzke, 251 Mich App 282, 295; 651 NW2d
490 (2002). Jurors are presumed to follow the trial court’s instructions. People v Unger, 278
Mich App 210, 235; 749 NW2d 272 (2008).

        The trial court’s limiting instructions specifically addressed defendant’s concerns.
Specifically, the trial court instructed the jury that it could not use this evidence to “decide that it
shows that the Defendant is a bad person,” that it “must not convict the Defendant here because
you think he is guilty of other bad conduct,” and that the jury could use this evidence “only to
consider” whether defendant had a common plan or scheme, not “that he [was] likely to commit
crimes.” The trial court’s instructions counterbalanced any potential for prejudice that the
evidence of defendant’s 2006 assault may have had. See Martzke, 251 Mich App at 295.
Accordingly, defendant failed to establish that the evidence of his 2006 sexual assault was
unfairly prejudicial, and the trial court did not plainly err by admitting it.

        Defendant also argues that defense counsel was ineffective at trial because he failed to
object to the admission of evidence of the 2006 sexual assault. However, the trial court did not
err by admitting evidence of defendant’s 2006 sexual assault. As such, any objection that
defense counsel could have made to its admission at trial would have been meritless. Defense
counsel cannot be found ineffective “for failing to raise meritless or futile objections.” People v
Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015). Accordingly, defense counsel was not
ineffective.

       Affirmed.



                                                               /s/ William B. Murphy
                                                               /s/ David H. Sawyer
                                                               /s/ Brock A. Swartzle




                                                  -5-
