                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 29, 2016
               Plaintiff-Appellee,

v                                                                    No. 329016
                                                                     Mason Circuit Court
BENJAMIN MICHAEL BENTZ,                                              LC No. 15-002928-FC

               Defendant-Appellant.


Before: BORRELLO, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

       Defendant appeals as of right his conviction of four counts of first-degree criminal sexual
conduct (CSC), MCL 750.520b(1)(a) (victim was under 13 years of age), and one count of
second-degree CSC, MCL 750.520c(1)(a) (victim was under 13 years of age). The trial court
sentenced defendant to 25 to 75 years’ imprisonment for each count of first-degree CSC, to run
concurrently with one another. The trial court also sentenced defendant to a consecutive term of
seven to 15 years’ imprisonment for second-degree CSC. We affirm.

        Defendant’s convictions arose from incidents that occurred between June 2012 and
October 2013 involving the then eight- and nine-year-old victim. At trial, the victim testified to
four incidents wherein defendant put his penis in her anus and to one incident wherein defendant
put his finger in her vagina. According to the victim, defendant threatened her to ensure that she
kept the incidents a secret. Approximately a year after the final incident, the victim disclosed the
incidents to her mother.

        Doctor Debra Simms, a physician at DeVos Children’s Hospital, testified as to her
physical examination of the victim. She reported that her diagnosis was “probable pediatric
sexual abuse” because, although the victim’s physical examination was normal, the victim
reported a “clear, consistent, detailed, [and] descriptive” history of sexual abuse to her medical
assistants. On cross-examination, defense counsel elicited testimony from Dr. Simms
acknowledging that it was possible, based on the victim’s physical examination, that the victim
was not abused. Similarly, Dr. Simms also testified, in response to defense counsel, that it was
possible for children to lie about allegations of sexual abuse.

       Defendant argues that he received ineffective assistance of counsel because defense
counsel failed to object to Dr. Simms’s testimony. We disagree.

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       A defendant may preserve his claim of ineffective assistance of counsel by moving in this
Court to remand to properly preserve the issue for appellate review. See People v Ginther, 390
Mich 436, 444-445; 212 NW2d 922 (1973). Defendant did so, but his motion to remand was
denied. Therefore, our review “is limited to mistakes apparent on the record.” People v Payne,
285 Mich App 181, 188; 774 NW2d 714 (2009).

       To demonstrate ineffective assistance of counsel, a defendant must (1) “show that
counsel’s performance was deficient,” and (2) “show that the deficient performance prejudiced
the defense.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001), quoting Strickland v
Washington, 466 US 668, 688; 104 S Ct 2052; 80 L Ed 2d 674 (1984) (quotation marks omitted).
In proving deficient performance, defense counsel’s actions are measured against an objective
standard of reasonableness, Payne, 285 Mich App at 189, and defendant must overcome “a
strong presumption of effective counsel when it comes to issues of trial strategy,” People v
Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). Refraining from raising objections “can
often be consistent with sound trial strategy.” People v Unger, 278 Mich App 210, 242-243; 749
NW2d 272 (2008). Additionally, defense counsel is not required to raise futile objections.
People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). If defendant shows that
defense counsel’s performance fell below an objective standard of reasonableness, defendant
must then “show the existence of a reasonable probability” that, but for this deficient
performance, “the result of the proceeding would have been different.” Carbin, 463 Mich at
600.

       MRE 702 provides:

       If the court determines that scientific, technical, or other specialized knowledge
       will assist the trier of fact to understand the evidence or to determine a fact in
       issue, a witness qualified as an expert by knowledge, skill, experience, training, or
       education may testify thereto in the form of an opinion or otherwise if (1) the
       testimony is based on sufficient facts or data, (2) the testimony is the product of
       reliable principles and methods, and (3) the witness has applied the principles and
       methods reliably to the facts of the case.

However, an expert may not comment on the truthfulness of other witnesses because credibility
is determined by the jury. People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007). In the
context of expert witnesses in CSC cases, a physician who has examined a victim impermissibly
vouches for a victim’s veracity where the expert’s opinion is based “not on any findings within
the realm of his medical capabilities or expertise,” but instead on the “emotional state of, and the
history given by, the complainant.” People v Smith, 425 Mich 98, 112-113; 387 NW2d 814
(1986).

        In the present case, Dr. Simms testified that her diagnosis of the victim was “probable
pediatric sexual abuse” based on the victim’s “clear, consistent, detailed, [and] descriptive”
history of the incidents. Dr. Simms confirmed that the victim’s physical exam was normal, but
that this finding was consistent with the amount of time between the examination and the final
incident. Dr. Simms’s testimony that the victim suffered probable pediatric sexual abuse
constituted improper vouching of the victim’s credibility because her testimony was based on
factors indicating the reliability of the victim’s statements, not information from the physical

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exam. See Smith, 425 Mich at 112-113. However, defendant must overcome “a strong
presumption” that defense counsel was effective and chose to refrain from objecting to the
testimony as a matter of trial strategy. Odom, 276 Mich App at 415. Instead of objecting to Dr.
Simms’s testimony, defense counsel elicited testimony from Dr. Simms on cross-examination
acknowledging that it was possible, based solely on the victim’s physical examination, that the
victim was not abused. Further, defense counsel also elicited testimony from Dr. Simms stating
that it was possible generally for children to lie about allegations of abuse. It is conceivable that
defense counsel’s choice to emphasize the lack of physical evidence on cross-examination rather
than object initially to the testimony was a matter of trial strategy and, therefore, was not
deficient performance. Unger, 278 Mich App at 242-243.

        Defendant also argues that defense counsel was deficient for failing to object to Dr.
Simms’s testimony concerning Audrey’s statements to her medical assistants, as it consists of
inadmissible hearsay. 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). Hearsay is inadmissible unless it falls under a hearsay exception set forth in the
Michigan Rules of Evidence. MRE 802. MRE 803(4) provides that the following statements are
admissible at trial, regardless of their hearsay nature:

       (4) Statements made for purposes of medical treatment or medical diagnosis in
       connection with treatment. Statements made for purposes of medical treatment or
       medical diagnosis in connection with treatment and describing medical history, or
       past or present symptoms, pain, or sensations, or the inception or general
       character of the cause or external source thereof insofar as reasonably necessary
       to such diagnosis and treatment.

The rationales supporting the admission of hearsay under MRE 803(4) “are the existence of: (1)
the self-interested motivation to speak the truth to treating physicians in order to receive proper
medical care, and (2) the reasonable necessity of the statement to the diagnosis and treatment of
the patient.” People v Meeboer (After Remand), 439 Mich 310, 322; 484 NW2d 621 (1992).
Identification of the perpetrator is necessary to the adequate treatment of a CSC victim. Id.
Further, where a CSC victim is over ten years old, a rebuttable presumption exists that the victim
“understands the need to tell the truth to medical personnel.” People v Van Tassel (On Remand),
197 Mich App 653, 662; 496 NW2d 388 (1992).

        The victim’s statements to Dr. Simms’s medical assistants fall under MRE 803(4)’s
hearsay exception. The victim was ten years old at the time of her physical examination by Dr.
Simms, and, as such, is entitled to a presumption that she understood the need to be truthful to
medical personnel. Van Tassel, 197 Mich App at 662. The victim’s lack of physical injuries did
not rebut this presumption. People v Garland, 286 Mich App 1, 9-10; 777 NW2d 732 (2009).
The victim’s statements merely describe the incidents, which could have led to medical
consequences, and are therefore within the parameters of MRE 803(4). People v Crump, 216
Mich App 210, 212; 549 NW2d 36 (1996). Additionally, the victim’s identification of defendant
as her abuser was medically necessary to her examination. Meeboer, 439 Mich at 322.

      Further, the fact that Dr. Simms testified as to statements made by the victim to her
medical assistants and not Dr. Simms herself does not make the statements inadmissible hearsay.

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MRE 803(4) is not limited to statements made by the patient, so long as the statements are
reliable. People v Yost, 278 Mich App 341, 362 n 2; 749 NW2d 753 (2008). The victim’s
statements were reliable and fell under the MRE 803(4) exception.               Similarly, the
communication of information from the medical assistants to Dr. Simms was “for the purposes
of medical treatment” and “reasonably necessary to such diagnosis.” MRE 803(4). Therefore,
defense counsel’s failure to object to Dr. Simms’s testimony regarding the victim’s statements
does not constitute ineffective assistance of counsel because the evidence was properly
admissible. Snider, 239 Mich App at 425.

        Additionally, defendant cannot demonstrate a reasonable probability that, had defense
counsel successfully objected to Dr. Simms’s testimony, the outcome of the proceeding would
have been different. Carbin, 463 Mich at 600. The victim’s statements to Dr. Simms were
consistent with the victim’s testimony at trial, which was subject to cross-examination by
defense counsel. The victim’s testimony itself established that defendant engaged in sexual
penetration and sexual contact with a person under 13 years old, as required by MCL
750.520b(1)(a) and MCL 750.520(c)(1)(a). MCL 750.520h. The victim’s testimony was
consistent and detailed, and no directly contradicting testimony or evidence was introduced at
trial. Dr. Simms’s additional repetition of the victim’s statements is merely cumulative and is
unlikely to have altered the outcome of the proceeding. Van Tassel, 197 Mich App at 664.
Additionally, the jury was instructed at trial to “think carefully about the reasons and facts [Dr.
Simms] gave for her opinion,” bringing further attention to the fact that Dr. Simms’s diagnosis
was based on the victim’s statements alone. Therefore, defendant has failed to prove that, had
defense counsel objected to Dr. Simms’s testimony, there is a reasonable probability the outcome
of the trial would have been different. Carbin, 463 Mich at 600.

       Defendant also argues that he received ineffective assistance of counsel because defense
counsel failed to impeach the victim based on inconsistent testimony from pre-trial interviews
and the preliminary examination. We disagree.

        “Decisions regarding what evidence to present and whether to call or question witnesses
are presumed to be matters of trial strategy.” People v Garza, 246 Mich App 251, 255; 631
NW2d 764 (2001). Trial strategy is entitled to strong deference, Odom, 276 Mich App at 415,
and this Court “will not substitute its judgment for that of trial counsel regarding matters of trial
strategy, nor will it assess counsel’s competence with the benefit of hindsight,” Garza, 246 Mich
App at 255. Therefore, failing to call a witness or question a witness appropriately only
constitutes ineffective assistance “if it deprives the defendant of a substantial defense.” People v
Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004).

         At trial, defense counsel extensively questioned the victim as to why she testified at the
preliminary examination that she had pain in or around her anus, but did not mention pain
anywhere but her stomach to her mother, Dr. Simms, or CPS. Defense counsel also elicited
testimony from three witnesses who had frequent overnight stays at defendant’s home stating
that it was highly unlikely that defendant would have been alone in the home with the victim and
her brother overnight, contradicting the victim’s testimony that only she, her brother, and
defendant were in the home when the incidents occurred. Defense counsel emphasized this
testimony during closing arguments, stating that “it would seem highly unlikely that on four
different occasions her father was alone with her and [her brother] and nobody else.” Through

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directly challenging the victim’s credibility with a previous inconsistent statement and by the
testimony of other witnesses, defense counsel effectively raised the issue of the victim’s
credibility and defendant was not deprived of a defense. Dixon, 263 Mich App at 398. Defense
counsel’s choice to cross-examine the victim concerning one inconsistency and to use other
witnesses’ testimony to call attention to the victim’s inconsistencies was a trial strategy that does
not amount to deficient performance. Defense counsel’s failure to cross-examine the victim
regarding every inconsistency in her story does not amount to performance denying defendant of
the Sixth Amendment right to counsel. Id. at 396.

        Additionally, defendant cannot demonstrate a reasonable probability that, but for defense
counsel’s failure to cross-examine the victim concerning additional inconsistencies, the result of
the proceeding would have been different. Carbin, 463 Mich at 600. The victim’s other
inconsistencies between her trial testimony and preliminary examination testimony are as
follows: (1) whether she was playing her videogames in bed prior to the first incident or the
second; (2) whether the final incident lasted one hour or a couple of minutes; and (3) whether the
second incident occurred during the summer or during the school year. Defendant argues that
defense counsel’s failure to raise these inconsistencies amounts to deficient performance.
However, overall, the victim’s testimony at the preliminary examination and trial was consistent.
She described defendant’s actions consistently and relayed additional details about each incident.
Her brother’s testimony that he, defendant, and the victim were often alone in the house on the
weekends also supported the victim’s credibility. Additionally, the minimal inconsistencies in
the victim’s story were likely alleviated by an expert’s testimony regarding the non-linear nature
of a child sexual abuse victim’s memories and how victims tell their stories. Considering this
information, the victim’s overall consistency in relating her story, and her brother’s supporting
testimony, defendant cannot demonstrate that the addition of these other inconsistencies would
have probably altered the outcome of the trial. Defendant has, therefore, failed to prove both that
defense counsel was deficient and that, but for the deficient performance, the outcome of the trial
would have been different.

       Affirmed.



                                                              /s/ David H. Sawyer
                                                              /s/ Jane E. Markey




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