                             STATE OF MICHIGAN

                               COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                            UNPUBLISHED
                                                                            January 6, 2015
                  Plaintiff-Appellee,

v                                                                           No. 317079
                                                                            Washtenaw Circuit Court
HARVEY SAVILL WINCE a/k/a HARVEY                                            LC No. 12-000418-FC
SEVILLE WINCE,

                  Defendant-Appellant.


Before: K. F. KELLY, P.J., and SAWYER and METER, JJ.

PER CURIAM.

      Following a jury trial, defendant was found guilty of first-degree child abuse, MCL
750.136b(2); and torture, MCL 750.85(1). The court sentenced defendant to prison terms of 120
months to 15 years for first-degree child abuse and 380 months to 65 years for torture.
Defendant now appeals as of right. We affirm.

         On March 31, 2012, having to work, the victim’s mother left her young son JT1 in the
care of her daughter and defendant. When the victim’s mother returned following work, her
daughter had left, leaving JT alone with defendant. JT’s mother said that her son was not injured
at the time. She then went to see her father, leaving JT in defendant’s care. When she returned
around 9:00 p.m., she observed that JT’s feet were red. She testified that when she removed his
pants and shirt, she discovered bruises on the child and noted that the skin looked like it was “off
his feet.” Defendant testified that JT had earlier been involved in an altercation with some other
children in the neighborhood. Defendant also testified that at some point JT became ill and
vomited. Defendant testified that he drew a bath for JT, adjusting the hot and cold water to an
acceptable temperature. He claimed that he then left JT in the bath and played a video game for
several minutes. According to defendant, when he returned, JT was out of the bathtub.
Defendant dried JT and noticed that the skin was coming off both his legs. He testified that it
appeared that water had been added to the bathtub.




1
    The mother testified that JT was four years old at the time of trial.


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        The victim’s mother took the child to the emergency room at St. Joseph Hospital. The
attending physician testified that she saw “burns on his feet and buttocks” and that her “first
thought was that this child had been submerged and held down in hot water.” The child was
stabilized and transported to the burn unit at the University of Michigan Hospital. Lisa
Markman, an assistant clinical professor of pediatrics at the University of Michigan, was
accepted as an expert in “child abuse,” over defendant’s objection. She reported that JT had
been “beaten” and “intentionally burned in scalding water.” She testified regarding the
“stocking” pattern of the burns, their depth, and how burns on both feet are indicative of an
intentional burn. She explained that the burn pattern was not consistent with defendant’s
explanation. She opined in regard to JT’s condition that “this was one of the worst cases of
physical abuse that I’d seen in a living child in a really long time.” She testified that his head
injuries alone would be “medically diagnostic of physical abuse.” She also testified that a CT
scan revealed a “Grade 3 liver laceration,” which she characterized as “a potentially life-
threatening injury.”

         Washtenaw County Sheriff’s Office Detective Craig Raisanen tested the water at
defendant’s apartment less than 24 hours after the incident. He stated that he sought to learn if
the bath water could get hot enough to cause scalding burns. He noted that the water heater was
set to the “very hot” setting, which, according to the appliance’s manual, allowed the water to be
heated to 158 degrees Fahrenheit. He ran the water for five minutes, measuring the running
water and the standing water in the tub at two minutes and again at five minutes. He used a
standard water-temperature thermometer and recorded the water coming out of the faucet at 125
degrees and 90 degrees Fahrenheit at the two- and five-minute marks, respectively. He also
measured the temperature of the water in the middle of the tub at 120 degrees and 115 degrees
Fahrenheit at two and five minutes, respectively. On cross-examination, Raisanen explained that
he did not consult with any experts or calibrate the thermometer before taking his measurements.

        Defendant argues that the court erred in admitting evidence regarding Raisanen’s testing
of the water temperature because it went beyond lay opinion and was thus subject to, but did not
meet, the requirements of Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125
L Ed 2d 469 (1993), and MRE 702. He also argues that Markman’s opinions based on that test
were improperly admitted. The first portion of this assertion of error was preserved, and is thus
reviewed for an abuse of discretion. People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010).
“A trial court abuses its discretion when its decision falls outside the range of principled
outcomes.” Id. (citation and quotation marks omitted). The second portion is unpreserved, and
thus will be reviewed for plain error affecting defendant’s substantial rights. People v Carines,
460 Mich 750, 763, 774; 597 NW2d 130 (1999).

        Lay testimony “in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the witness and (b) helpful to a
clear understanding of the witness’ testimony or the determination of a fact in issue.” MRE 701;
see also People v Dobek, 274 Mich App 58, 77; 732 NW2d 546 (2007). This contrasts with
expert opinion testimony under MRE 702, which 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,

                                               -2-
       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.

        Raisanen collected water temperature data using a standard thermometer and presented
his findings to the jury in his testimony. This testimony was not opinion testimony because it
was merely a report of data collection. Raisanen was not asked if, in his opinion, the water was
hot enough to burn a child. He only testified to his actions and observations, and this
information was relevant to a fact in issue, namely, whether the victim could have received the
type of burns he sustained in the bathtub at defendant’s apartment. Indeed, the information was
helpful in considering if JT could have added water to his bath and how it might have impacted
the temperature of the water.

        Additionally, there was nothing in Raisanen’s testimony that qualifies as technical or
scientific within the meaning of the evidentiary rule. Raisanen consistently testified that he used
a standard thermometer and a simple procedure. Use of a thermometer and reading the
temperature is well within the experience of lay individuals. Not only was Raisanen’s testimony
appropriate, but the jury had the capacity to properly weigh his testimony in light of defendant’s
cross-examination. Whether Raisanen’s thermometer was properly calibrated does not negate
his perception or move his testimony into that of an expert; such concerns go to the weight, not
admissibility, of the evidence.

        Defendant also claims the testimony should have been excluded under MRE 403 and 701
because the test was not accurate or reliable. However, there is no evidence on the record that
Raisanen’s temperature recordings were inaccurate. Defendant did not test the detective’s
thermometer to show that it was inaccurate, and, significantly, the evidence regarding the user
manual showed that defendant’s hot water heater was capable of producing water at temperatures
recorded by Raisanen. There has been no showing that a special thermometer is needed to
measure bath water or that thermometers need be calibrated to do so. Defendant’s challenges
may have raised questions of accuracy for the jury, but they did not establish that the test was
invalid. The basic nature of Raisanen’s testing and observations and how his testimony was
rationally based on his perceptions was clear for the jury, and there is nothing about the
testimony that would confuse the issues to be decided or subject defendant to the danger of
unfair prejudice, especially given that he was subject to cross-examination. Any prejudice
stemming from the testimony is due to its relevance to the facts in issue.

       Because the testimony was proper, any reliance or reference to it by Markman was also
appropriate and does not constitute plain error affecting defendant’s substantial rights.

       Affirmed.

                                                            /s/ Kirsten Frank Kelly
                                                            /s/ David H. Sawyer
                                                            /s/ Patrick M. Meter




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