                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 15, 2015
               Plaintiff-Appellee,

v                                                                   No. 322616
                                                                    Genesee Circuit Court
BRANDON JACOB MILLAY,                                               LC No. 13-033113-FC

               Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals his convictions, following a jury trial, of two counts of second-degree
criminal sexual conduct, victim under 13 years of age (CSC II), MCL 750.520c(1)(a), one count
of first-degree criminal sexual conduct, victim under 13 years of age (CSC I), MCL
750.520b(1)(a), and one count of aggravated indecent exposure, MCL 750.335a(2)(b). The trial
court sentenced defendant as a fourth habitual offender, MCL 769.12 to serve concurrent terms
of 228 to 500 months for one CSC II conviction, 228 to 400 months for the second CSC II
conviction, 360 months to 600 years for the CSC I conviction, and 46 to 180 months for the
aggravated indecent exposure conviction. Defendant appeals as of right and we affirm.

        Defendant first argues that his trial counsel provided ineffective assistance in failing to
object to admission of a police interview with defendant that was not recorded, and by failing to
request an instruction to the jury regarding the unrecorded interview. This issue was not raised
below. Claims of ineffective assistance of counsel that are unpreserved are limited to review for
errors apparent on the record. People v Unger (On Remand), 278 Mich App 210, 253; 749
NW2d 272 (2008). The constitutional question whether an attorney’s ineffective assistance
deprived a defendant of his Sixth Amendment1 right to counsel is reviewed de novo. Id. at 242.
Whether the statute regarding recording of interviews was in effect or required an instruction
would be preliminary questions of law subject to de novo review. People v Dobek, 274 Mich
App 58, 93; 732 NW2d 546 (2007).




1
    US Const, Am VI.


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        According to MCL 763.8(2), a law enforcement official must record interviews of those
who are interviewed while in custodial detention for their involvement in major felonies. There
was no dispute that law enforcement interviewed defendant on May 17, 2013, while he was in
custodial detention, regarding his involvement in a major felony. Thus, if the statute was
operational, law enforcement would have been required to record the interview and if it did not
do so, the jury would had to have been informed that the requirement for taping was not met and
it could therefore consider the failure to record the interview in evaluating the evidence. MCL
763.9.

        However, the statute was not operational at the time defendant was interviewed by police.
The statute became effective on March 28, 2013, prior to the interview, but the clear language of
the statute provided that law enforcement officials were not required to comply with MCL
763.8(2) until a later time, depending on the ability of law enforcement to comply with the
recording requirements. Specifically, if the law enforcement agency had equipment that met the
standard, it was not required to comply with the statute until 60 days after the standards were set,
and if the law enforcement agency did not have the equipment, it had until 60 days after
receiving equipment that met the commission’s standards. MCL 763.11(4). Additionally, the
statute gave a law enforcement agency 120 days to implement the recording requirements once it
acquired recording equipment that complied with the standards or once it received funds for
compliant recording equipment. MCL 763.11(4).

        There was no evidence on the record regarding the date that the commission published
the standards. Regardless, because police interviewed defendant within two months of the
effective date of the statute, it could not have been required to comply with the statute even if the
standards were adopted the day that the statute became effective. Counsel cannot be deemed
ineffective for failing to make a futile objection, In re Archer, 277 Mich App 71, 84; 744 NW2d
1 (2007), or for failing to request an instruction that was not warranted.

        Next, defendant argues that the trial court erred in admitting defendant’s statement to
police that he penetrated complainant with his finger because, he maintains, there was no
corroborating evidence since complainant denied that defendant penetrated her body with his
finger. The general rule is that the corpus delicti of a crime must be established by evidence
other than a confession or admission of the accused. People v Hamp, 110 Mich App 92, 96; 312
NW2d 175 (1981); People v McMahan, 451 Mich 543, 548; 548 NW2d 199 (1996). This Court
reviews a lower court’s decision regarding the corpus delicti requirement for an abuse of
discretion. People v Burns, 250 Mich App 436, 438; 647 NW2d 515 (2002). The trial court
does not abuse its discretion when it chooses an outcome within the range of reasonable and
principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

       The corpus delicti rule requires that a preponderance of direct or circumstantial evidence,
independent of a defendant’s inculpatory statement, establish the occurrence of a specific injury
and criminal agency as the source of the injury before such statements may be admitted as
evidence. Burns, 250 Mich App at 438; People v Cotton, 191 Mich App 377, 394; 478 NW2d
681 (1991), citing People v Williams, 422 Mich 381, 391-392; 373 NW2d 567 (1985). The
corpus delicti rule is designed to prevent the use of a defendant’s confession to convict him of a
crime that did not occur. People v Konrad, 449 Mich 263, 269; 536 NW2d 517 (1995).
However, the rule does not require “independent proof of each and every element of the

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particular grade” of crime charged as a condition to admit a defendant’s confession. Williams,
422 Mich at 391. Rather, plaintiff was required to demonstrate that complainant was sexually
assaulted and that a criminal act was the source of the assault. People v Hayden, 205 Mich App
412, 413-414; 522 NW2d 336 (1994); Cotton, 191 Mich App at 394; Williams, 422 Mich at 391-
392. The purpose of the corpus delicti rule—preventing confessions to a crime that never
occurred—is fulfilled by establishing that a criminal sexual assault occurred and that the
defendant was involved before hearing the defendant’s statement. Cotton, 191 Mich App at 387;
Williams, 422 Mich at 391. Once the corpus delicti is established, a defendant’s incriminating
statement “may be used to elevate the crime to one of a higher degree or to establish aggravating
circumstances.” Cotton, 191 Mich App at 389; Williams, 422 Mich at 391-392.

        Here, complainant testified that defendant sexually assaulted her three times a week for
four years. Although complainant said that the touching was not on the inside of her “private
part” she described the touching as feeling like a rock both inside and outside of her “private
parts,” and, most significantly, complainant recalled defendant inserting a finger into her “butt.”

Thus, plaintiff demonstrated that complainant was sexually assaulted and that defendant’s
criminal behavior was the cause of the sexual assault. This was sufficient to establish the corpus
delicti standard and allow consideration of defendant’s statement to police. The trial court did
not abuse its discretion in denying defendant’s motion to suppress the statement to police based
on the corpus delicti requirement.

        Lastly, defendant argues that the trial court erred in admitting hearsay testimony by a
nurse, Deborah Freeman, who related complainant’s statements that she had been sexually
assaulted by defendant. A trial court’s decision on an evidentiary issue will be reversed on
appeal only when there has been a clear abuse of discretion. People v Holtzman, 234 Mich App
166, 190; 593 NW2d 617 (1999).

        Hearsay is generally not admissible unless it meets the requirements of one of the hearsay
exceptions set forth in the Michigan Rules of Evidence. MRE 802; People v Stamper, 480 Mich
1, 3; 742 NW2d 607 (2007). However, statements made for the purpose of medical treatment
and diagnosis are admissible as an exception to the hearsay rule as provided in MRE 803(4).
“Under MRE 803(4), the declarant must have the self-interested motivation to speak the truth to
treating physicians in order to receive proper medical care, and the statement must be reasonably
necessary to the diagnosis and treatment of the patient.” People v McElhaney, 215 Mich App
269, 280; 545 NW2d 18 (1996), citing People v Meeboer (After Remand), 439 Mich 310, 322;
484 NW2d 621 (1992). The following questions are considered in order to evaluate whether a
statement should be admitted: “(1) Is the content of the statement of the qualified nature, i.e., one
of medical history, or of past or present symptoms, pain, or sensations, or of the inception or
general character of the cause or external source thereof? (2) Did the declarant make the
statement for the purpose of medical treatment or medical diagnosis in connection with medical
treatment? (3) Does the information meet the objective medical test of being reasonably
necessary to medical diagnosis and treatment?” People v Kosters, 175 Mich App 748, 770; 438
NW2d 651 (1989).

        Freeman noted that complainant presented to the emergency room as a possible sexual
assault case and for vaginal discharge. Freeman was the nurse in the emergency department

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responsible for a nursing assessment, for determining what treatments complainant required, and
for relating the findings to the emergency room physician. Freeman stated that she questioned
complainant for the purposes of medical diagnosis and treatment, and that complainant told her
that it burned and felt funny when she urinated. Freeman reported that complainant said
defendant had been touching her privates for four years and gestured that he used his fingers.
Freeman asked complainant to provide a urine sample for analysis, and assisted a physician in
examining complainant’s genitals.

        Complainant’s statements to Freeman were made in the course of investigating and
examining the primary complaints that precipitated complainant’s visit to the emergency room,
concerns about genital discharge and reports of sexual abuse. During the examination, Freeman
discovered further symptoms and investigated possible causes. Complainant’s inculpatory
statement about defendant provided information on a possible cause of her injury and a condition
that required treatment intervention. Cases of sexual assault can include injuries that are not
readily apparent, like sexually transmitted diseases or emotional injury, and “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.” People v Mahone, 294 Mich App 208, 214-215;
816 NW2d 436 (2011), citing People v Garland, 286 Mich App 1, 8–10; 777 NW2d 732 (2009);
McElhaney, 215 Mich App at 282–283. Freeman provided treatment that corresponded with
information gained during her examination. Thus, the trial court properly determined that
Freeman’s testimony about complainant’s statement satisfied an exception to the hearsay rule
according to MRE 803(4).

         Defendant also argues that the eight-year-old complainant’s statements to Freeman
should not have been admitted because they were not reliable. In Meeboer, 439 Mich at 323, the
Court stated that “further analysis of the circumstances surrounding the examination of a child is
necessary to determine whether the child understood the need to be truthful to the physician.”
The court listed the following factors for consideration in making a determination regarding the
reliability of the statement of a child:

       (1) the age and maturity of the declarant, (2) the manner in which the statements
       are elicited (leading questions may undermine the trustworthiness of a statement),
       (3) the manner in which the statements are phrased (childlike terminology may be
       evidence of genuineness), (4) use of terminology unexpected of a child of similar
       age, (5) who initiated the examination (prosecutorial initiation may indicate that
       the examination was not intended for purposes of medical diagnosis and
       treatment), (6) the timing of the examination in relation to the assault (the child is
       still suffering pain and distress), (7) the timing of the examination in relation to
       the trial (involving the purpose of the examination), (8) the type of examination
       (statements made in the course of treatment for psychological disorders may not
       be as reliable), (9) the relation of the declarant to the person identified (evidence
       that the child did not mistake the identity), and (10) the existence of or lack of
       motive to fabricate. [Id. at 324-325.]

The Court also included other factors that could demonstrate the reliability of a statement made
for the purpose of receiving medical care, such as: corroborating physical evidence of the assault,


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evidence that the person identified as the assailant had the opportunity to commit the assault, and
the resulting diagnosis and treatment. Id. at 325-326.

       Defendant argues that the trial court should have considered that the complainant’s
mother spanked her the day prior to the emergency room visit in order to encourage her to
disclose the abuse, and that the mother was present at the emergency room. However, the
complainant’s mother stated that she spanked complainant to encourage her to talk about why
she was suddenly wetting her pants at school on four consecutive days and to explain why she
had blood in her underwear. There was no evidence that the complainant’s mother encouraged
complainant to say she was molested. On the contrary, Freeman described the complainant’s
mother as uncharacteristically frustrated that she was at the hospital and noticed that she was not
comforting complainant. Additionally, Freeman removed the complainant’s mother from the
room before examining her.

        Complainant was initially reserved and Freeman built rapport by talking about a common
school interest, the cardinal code, which included being reliable and truthful. Freeman stated
that she let complainant guide the conversation but asked if someone touched her. Freeman
stated that complainant began crying when she disclosed the abuse. Further, complainant
exhibited physical symptoms that may have been consistent with sexual abuse such as wetting
her pants, vaginal discharge, urinary pain, and swollen labia minora. The hospital performed
urinalysis to rule out infection.

        Although complainant could not recall when the abuse last occurred, it was brought out
that the abuse was discussed in a meeting of the complainant’s family members prior to
presenting at the emergency room. There was no evidence of inconsistent statements or a motive
to fabricate allegations. Thus, the circumstances indicate that the statement was a reliable report
of the complainant’s medical condition for which she was seeking treatment. The trial court did
not abuse its discretion in admitting the testimony as an exception to the hearsay rule.

       Affirmed.



                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ David H. Sawyer
                                                            /s/ William B. Murphy




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