                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 14, 2017
               Plaintiff-Appellee,

v                                                                    No. 334953
                                                                     Wayne Circuit Court
JOSEPH SMITH,                                                        LC No. 16-001568-01-FC

               Defendant-Appellant.


Before: Before: GLEICHER, P.J., and GADOLA and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his bench trial conviction of one count of first-degree
criminal sexual conduct (CSC I), MCL 750.520b(1)(f) (personal injury). Defendant was
sentenced, as a fourth habitual offender, MCL 769.12, to 12 to 20 years’ imprisonment. We
affirm.

        This case arises out of the sexual assault of the victim by defendant on the evening of
June 8, 2005. According to the testimony of the victim, he attended a party at a friend’s house
that evening near the intersection of Lahser Road and Keeler Street in Detroit, where he
consumed alcohol and smoked marijuana. Around 10:00 p.m., the victim left his friend’s house
and began walking to a nearby bar where he expected to find a ride to his girlfriend’s house.
When he stopped at an intersection to search in his pockets for a lighter to light his cigarette,
defendant pulled up in his vehicle, rolled down the passenger-side window, and asked if the
victim had a spare cigarette. The victim responded that he would give defendant a cigarette if
defendant could provide a light. Defendant agreed to the exchange, and the victim got into the
vehicle where the two men continued conversing. Defendant told the victim that he was looking
for a female prostitute, and the victim told defendant that he had not seen any prostitutes in the
area. According to the victim, he then asked defendant if he was going in the direction of the bar
that the victim was trying to reach; defendant replied that he was not going that way, and began
to drive away with the victim still in the vehicle. The victim said that he needed to get out of the
vehicle, and defendant drove around the block and stopped the vehicle.

       As the victim began to exit the vehicle, defendant asked for a couple more cigarettes.
The victim testified that he recalled pulling the cigarettes out of the pack. The next thing he
remembered was waking up facedown in the passenger seat with a bump on his forehead. The
seat was completely reclined, defendant was on top of him, and defendant’s hand was on the

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back of the victim’s neck, holding him down while defendant penetrated the victim’s anus.
When the victim struggled, defendant repeatedly hit him on the back of the head. The victim
reached the door handle and opened the passenger-side door. When the cabin light illuminated
the interior of the vehicle and the door chime sounded, defendant released his grip on the
victim’s neck and the victim “rolled out” of the vehicle and crawled away, then stood up, pulled
his pants up, and ran to some nearby bushes where he hid.

         The victim then called his mother using his cell phone and asked her to pick him up and
take him to the hospital because “something really horrible” had happened. According to the
testimony of the victim’s mother, when she picked him up the victim was crying hysterically,
half sitting on the passenger’s seat and half on the floor of the vehicle. The victim would not tell
his mother what had happened and said it was “too awful.” At the hospital, the victim asked his
mother to wait in the car while he went into the emergency room. He told the security guard that
he had been raped, and was taken into an examining room. Dr. Robert Matthews, a physician at
the hospital, testified that a sexual assault examination was performed which resulted in DNA
evidence begin obtained. The doctor noted that the victim was not able to identify his alleged
assailant and that the medical records indicated that the victim was in moderate distress and was
“very emotional and tearful.” Although the victim complained of pain in his head, Dr. Matthews
did not note any signs of physical trauma, other than rectal bleeding, which may have come from
ruptured external hemorrhoids. The doctor testified that any trauma to the rectal area may have
caused the hemorrhoids to rupture and bleed. The victim testified that he was so embarrassed
that he did not wait for police, but instead left the hospital without being discharged, still in his
hospital gown, and that his mother drove him home.

         The evidence from the sexual assault examination was picked up by Detroit Police
officers later that night, but due to a backlog within the Detroit Police Department the evidence
was not processed until February 3, 2014. A DNA analyst at Bode Technology processed the
samples and testified that foreign DNA was detected from the rectal swab. The results were
thereafter analyzed by a forensic scientist with the Michigan State Police Biology Unit, who
testified that the foreign DNA found on the victim’s rectal swab matched defendant’s profile,
which already was on file in the Combined DNA Index System (CODIS). The DNA from the
victim’s rectal swab was again matched to defendant’s DNA obtained through a search warrant.

        At the conclusion of the testimony, the trial court found that, although it was unclear why
the victim entered defendant’s vehicle, the victim’s testimony was otherwise consistent: “[t]hat
there was forceful, sexual penetration of [the victim’s] anal opening” and that the DNA evidence
indicated “that [defendant] was involved in that.” The trial court further noted that the
examining physician had testified that the penetration had been forceful enough to rupture the
preexisting hemorrhoids and cause bleeding, and that was sufficient to satisfy the personal injury
element of the offense. Accordingly, the trial court found defendant guilty of CSC I.

                                I. EXCLUSION OF EVIDENCE

       On appeal, defendant first argues that the trial court committed error requiring reversal
when it limited defendant’s cross-examination of the victim regarding his alleged history of
mental illness. Defendant asserts that this limitation was improper because the testimony was


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relevant and admissible, and that the limitation denied defendant his constitutional right of
confrontation. We disagree.

       At trial, defendant argued that he should be permitted to question the victim about his
alleged history of mental illness, arguing that it was relevant to the victim’s state of mind and
observations. Defendant therefore preserved this issue for review. See People v Grant, 445
Mich 535, 546; 520 NW2d 123 (1994). This Court reviews the trial court’s exclusion of
evidence for an abuse of discretion. People v King, 297 Mich App 465, 472; 824 NW2d 258
(2012). “A trial court abuses its discretion when its decision falls outside the range of principled
outcomes.” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010) (citation omitted). We
review de novo a trial court’s ruling on a preliminary question of law regarding the admissibility
of evidence, but an error by the trial court in admitting or excluding evidence is not grounds for
reversal unless, “after an examination of the entire cause, it affirmatively appears that it is more
probable than not that the error was outcome determinative.” King, 297 Mich App at 472.

        However, defendant did not present this argument before the trial court as a violation of
his constitutional right of confrontation. Because an objection on one ground is insufficient to
preserve an appellate challenge based on a different ground, that part of defendant’s argument is
unpreserved. People v Bulmer, 256 Mich App 33, 35; 662 NW2d 117 (2003). This Court
reviews unpreserved constitutional questions for plain error affecting defendant’s substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Plain error is shown by
proving that “1) [the] error must have occurred, 2) the error was plain, i.e., clear and obvious, 3)
and the plain error affected substantial rights.” Id. at 763 (citation omitted). Generally, to show
that the error affected substantial rights, it must be proven “that the error affected the outcome of
the lower court proceedings.” Id. (citation omitted). “Reversal is warranted only when the plain,
forfeited error resulted in the conviction of an actually innocent defendant or when an error
“ ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings’
independent of the defendant’s innocence.” Id. (citation omitted).

        On appeal, defendant argues that the trial court abused its discretion by limiting
defendant’s cross-examination of the victim, because the victim’s alleged history of mental
illness was relevant to the victim’s credibility. Defendant contends that the victim’s testimony
about his alleged history of mental illness would have supported defendant’s claim that the
encounter was consensual sexual experimentation.

        Although a defendant has a constitutionally-guaranteed right to present a defense, the
accused must nonetheless comply with established rules of evidence. People v Yost, 278 Mich
App 341, 379; 749 NW2d 753 (2008). Under MRE 401, relevant evidence “means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Generally, inquiry into a witness’s credibility and bias is relevant. People v Layher,
464 Mich 756, 764; 631 NW2d 281 (2001). However, a trial court may prohibit a party from
cross-examining a witness on collateral matters bearing only on general credibility or on
irrelevant issues. People v Canter, 197 Mich App 550, 564; 496 NW2d 336 (1993). Where
nothing in the record indicates that the victim’s mental health had “any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or


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less probable than it would be without the evidence” a trial court does not abuse its discretion in
excluding the evidence. MRE 401; MRE 402.

        In this case, defense counsel at trial attempted to question the victim about his mental
health history as follows:

               Q. Okay. And were you on any medications?

               Ms. Brookings [Prosecutor]: Objection. Relevance.

               Mr. Bickerdt [Defense Counsel]: Well, Your Honor, his state of mind
       certainly would be relevant and—whether he’s under the influence or not, his
       observations—

               The Court: I’ll allow it.

               Q. Were you on any medications, sir?

               A. No, I wasn’t.

               Q. Sir, do you have any history of mental illness?

               A. Yes, I do.

               Ms. Brookings [Prosecutor]: Objection. Relevance.

               The Court: Sustained.

               A. Yes.

               The Court: I’ve sustained it.

               Ms. Brookings [Prosecutor]: Thank you, Judge. I’d ask that the answer be
       stricken.

               The Court: So ordered.

               Mr. Bickerdt [Defense Counsel]: Well, Your Honor, I would argue that
       it’s very relevant as to—again his state of mind and his observations and I would
       just ask the Court to take the testimony—but either way—

               The Court: All right.

        Defendant generally argues that the victim would have testified that he had some sort of
mental illness that would have made him more likely to falsely accuse defendant of sexual
assault. Defendant does not speculate what this illness might be, and makes no attempt to
articulate a theory of how the victim’s alleged mental illness tended to show that he was more
likely to falsely accuse defendant of sexual assault. Furthermore, defendant does not
demonstrate that during the relevant time-frame the victim exhibited a disposition to lie or

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hallucinate, or that he had an impaired ability to perceive and tell the truth. Although a history of
false accusations by a victim of sexual assault is relevant in CSC cases, defendant does not argue
that the victim had a history of false sexual assault accusations. See People v Hackett, 421 Mich
338, 348; 365 NW2d 120 (1985) (recognizing that the defendant is permitted to show that the
victim has made untrue accusations of sexual assault before). Therefore, defendant has not
shown that the evidence was relevant and therefore, admissible. Rather, nothing in the record
suggests that the victim’s allegations were the result of mental illness. Based on the facts of this
case, we do not find that the trial court’s ruling is outside the range of reasonable and principled
outcomes. We conclude that the trial court did not abuse its discretion by precluding the
introduction of evidence regarding the victim’s alleged history of mental illness. See, e.g.,
People v Oros, 320 Mich App 146, 164-165; ___ NW2d ___ (2017).

         Moreover, even when excluding evidence of a victim’s mental illness is error, such an
error does not require reversal unless “after an examination of the entire cause, it shall
affirmatively appear that it is more probable than not that the error was outcome determinative.”
See Carines, 460 Mich at 763. Here, the record demonstrates that it is unlikely that the exclusion
of the evidence affected the outcome of the lower court proceedings. Even with the trial court’s
limitation, defendant had the opportunity to adequately explore and develop the issue of the
victim’s ability to perceive and recall events. Therefore, defendant cannot show that it is more
probable than not that the trial court’s limitation affected the outcome of the trial. Accordingly,
the trial court did not abuse its discretion by limiting defendant’s cross-examination of the victim
regarding the victim’s alleged history of mental illness.

        Defendant’s unpreserved constitutional claim is also without merit. The Sixth
Amendment of the United States Constitution recognizes a defendant’s right “to be confronted
with the witnesses against him.” US Const, Am VI; see also Const 1963, art 1, § 20. The
Confrontation Clause secures “the right of cross-examination,” but “not without limit.” People v
Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993). “The scope of cross-examination is
within the discretion of the trial court.” Canter, 197 Mich App at 564. The trial court may
curtail cross-examination “with respect to collateral matters bearing only on general
credibility . . . as well as on irrelevant issues.” Id. (citations omitted).

       As discussed, defendant did not raise this constitutional challenge before the trial court
and that part of defendant’s argument therefore is unpreserved. King, 297 Mich App at 472.
Moreover, defendant has not shown that this evidence was relevant, and therefore, admissible.
Rather, it appears that defendant sought to introduce evidence of the victim’s alleged history of
mental illness to wage a general attack on his credibility. Therefore, the trial court did not
commit plain error by limiting defendant’s cross-examination of the victim regarding the
victim’s alleged history of mental illness. See Carines, 460 Mich at 763.

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant next argues on appeal that the prosecutor presented insufficient evidence to
establish that the victim suffered a “personal injury” or that defendant used force or coercion to
accomplish penetration. Again, we disagree.



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        Challenges to the sufficiency of the evidence are reviewed de novo. People v Solloway,
316 Mich App 174, 180; 891 NW2d 255 (2016) (citation omitted). Evidence should be viewed
in the light most favorable to the prosecution to determine whether a rational trier of fact could
find the defendant guilty beyond a reasonable doubt. People v Bailey, 310 Mich App 703, 713;
873 NW2d 855 (2015). “[C]ircumstantial evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the elements of a crime.” Id. (quotation marks and
citation omitted). “This Court will not interfere with the trier of fact’s determinations regarding
the weight of the evidence or the credibility of witnesses.” People v Stevens, 306 Mich App 620,
628; 858 NW2d 98 (2014) (citation omitted).

       In this case, sufficient evidence was presented for a rational trier of fact to have found
defendant guilty of CSC I, pursuant to MCL 750.520b(1)(f), which states, in pertinent part:

       (1) A person is guilty of criminal sexual conduct in the first degree if he or she
       engages in sexual penetration with another person and if any of the following
       circumstances exists:

                                             * * *

       (f) The actor causes personal injury to the victim and force or coercion is used to
       accomplish sexual penetration. . . .

        “Personal injury” under the statute “means bodily injury, disfigurement, mental anguish,
chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.” MCL
750.520a(n). Bodily injury, mental anguish, and the other conditions “are merely different ways
of defining the single element of personal injury” and “if the evidence of any one of the listed
definitions is sufficient, then the element of personal injury has been proven.” People v Asevedo,
217 Mich App 393, 397; 551 NW2d 478 (1996). To constitute bodily injury, the physical
injuries suffered “need not be permanent or substantial.” People v Mackle, 241 Mich App 583,
596; 617 NW2d 339 (2000).

       With respect to bodily injury, the victim testified that he had a bump on his forehead after
defendant knocked him unconscious, and that defendant “hammered” him on the back of the
head during the assault. Defendant argues that his conviction rests solely on the victim’s
unsubstantiated testimony that defendant caused him physical injury because, although the
victim sought medical treatment immediately after the sexual encounter, the medical records did
not yield any evidence of physical injury or trauma. This argument, however, ignores Dr.
Matthews’s testimony that the victim complained of a pain in his head, and presented with rectal
bleeding, which may have resulted from the trauma-induced rupture of external hemorrhoids.
Moreover, the prosecutor was not required to corroborate the victim’s testimony. MCL
750.520h. See also People v Newby, 66 Mich App 400, 405; 239 NW2d 387 (1976).

        Additionally, the evidence was sufficient to establish mental anguish. To prove mental
anguish, “the prosecution is required to produce evidence from which a rational trier of fact
could conclude, beyond a reasonable doubt, that the victim experienced extreme or excruciating
pain, distress, or suffering of the mind.” People v Petrella, 424 Mich 221, 259; 380 NW2d 11
(1986) (citation omitted). In determining the existence of “mental anguish,” a reviewing court

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may consider factors such as whether the victim was upset, crying, sobbing, or hysterical during
or after the assault; the need for psychiatric or psychological care or treatment; interference with
the victim’s ability to conduct a normal life, such as absence from the workplace; fear for the
victim’s life or safety; feelings of anger and humiliation; use of prescription medication to treat
anxiety, insomnia or other symptoms; evidence that the emotional or psychological effects of the
assault were long-lasting; and a lingering fear, anxiety, or apprehension about being in
vulnerable situations. Id. at 270-271.

        With respect to mental anguish, the victim testified that he was so ashamed that instead of
waiting for the police, he left the hospital, still in his hospital gown, without being discharged.
The victim’s mother testified that on the way to the hospital, the victim was “crying
hysterically,” half sitting on the passenger seat, and half slid onto the floor of the vehicle. When
the victim’s mother asked him what had happened, the victim told her it was “too awful” and that
he did not want to talk about it. At the hospital, Dr. Matthews noted that the victim was in
moderate distress, and the victim’s medical record further indicated that the victim was “very
emotional and tearful.” Viewing the evidence in a light most favorable to the prosecution, the
evidence was sufficient for a rational trier of fact to find that the victim suffered mental anguish
and therefore personal injury.

        Finally, defendant argues that there was insufficient evidence to support a finding that
defendant used force or coercion to accomplish the sexual act because the victim admitted that
he voluntarily entered defendant’s vehicle, and there was no supporting medical evidence of
physical injury or trauma. However, the victim testified that, during the assault, defendant’s
hand was on the back of the victim’s neck, holding the victim down, while defendant penetrated
the victim’s anus. When the victim tried to get up, defendant “hammered” the victim on the
back of the head, and it was only after some struggling that the victim opened the vehicle door
and escaped. The victim testified that he had a lump on his forehead and complained to Dr.
Matthews of a pain in his head. Viewing the evidence in the light most favorable to the
prosecution, the evidence was sufficient for a rational trier of fact to find that defendant used
force or coercion to accomplish the sexual penetration. Therefore, sufficient evidence was
presented for a rational trier of fact to have found defendant guilty of CSC I pursuant to MCL
750.520b(1)(f).

       Affirmed.



                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Michael F. Gadola
                                                             /s/ Colleen A. O'Brien




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