            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 18, 2020
               Plaintiff-Appellee,

v                                                                   No. 345836
                                                                    Ottawa Circuit Court
MEGAN MARIE IPEMA,                                                  LC No. 18-041983-FH

               Defendant-Appellant.


Before: MURRAY, C.J., and JANSEN and MARKEY, JJ.

PER CURIAM.

      Following a jury trial, defendant was convicted of third-degree child abuse, MCL
750.136b(5), and was sentenced to serve 90 days in jail. We affirm.

        Defendant struck her nine-year-old son with a belt on his exposed buttocks and lower leg
in response to his refusal to shovel the driveway, and his continued disruptive behavior. The child
had a number of bruises, and the day following the incident, defendant called child protective
services (CPS) to ask for assistance. The child’s bruises were then documented by the police and
at the emergency room, which led to this prosecution.1

                             I. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that the evidence was insufficient to support her conviction beyond
a reasonable doubt. This Court reviews de novo a challenge to the sufficiency of the evidence.
People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). Due process requires that
evidence of every element of a crime be proved beyond a reasonable doubt in order to sustain a
criminal conviction. People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979). To determine
if the prosecutor produced evidence sufficient to support a conviction, this Court considers “the
evidence in the light most favorable to the prosecutor” to ascertain “ ‘whether a rational trier of


1
  We do not opine on the decision to prosecute defendant, which is a matter exclusively in the
province of the prosecutor. People v Jones, 252 Mich App 1, 8; 650 NW2d 717 (2002)


                                                -1-
fact could find the defendant guilty beyond a reasonable doubt.’ ” People v Tennyson, 487 Mich
730, 735; 790 NW2d 354 (2010), quoting People v Hardiman, 466 Mich 417, 421; 646 NW2d 158
(2002). “[A] reviewing court is required to draw all reasonable inferences and make credibility
choices in support of the jury verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78
(2000). Direct and circumstantial evidence, as well as all reasonable inferences that may be drawn
from the evidence, are considered to determine whether the evidence was sufficient to sustain the
conviction. Hardiman, 466 Mich at 429.

       MCL 750.136b(5) provides:
       A person is guilty of child abuse in the third degree if any of the following apply:
       (a) The person knowingly or intentionally causes physical harm to a child.
       (b) The person knowingly or intentionally commits an act that under the
       circumstances poses an unreasonable risk of harm or injury to a child, and the act
       results in physical harm to a child.

“Physical harm” means “any injury to a child’s physical condition.” MCL 750.136b(1)(e). Here,
Officer Mark Deleeuw examined and photographed extensive bruising to the child’s “buttocks
area, as well as, his legs, thigh, and up his back.” The photographs were admitted into evidence,
and defendant acknowledged that the bruising was caused by her hitting the child with a belt.
Nurse Practitioner Daniel Hoekstra, who examined the child in the emergency room, reported that
the child said that he was spanked on his bare buttocks with a belt and hand. Hoekstra observed 8
to 10 linear lesions and bruises bilaterally across the child’s buttocks, with bruising on the sides of
the buttocks and hamstring area of the right leg, and noted six to eight additional linear injuries
across the child’s right hamstring area with several round injuries in different areas. According to
Hoekstra, the linear lesions were consistent with the child’s report of a belt striking him. This
evidence was sufficient for a jury to conclude beyond a reasonable doubt that defendant caused
“physical harm” to the child.

        We disagree with defendant’s argument that there was no evidence that she “knowingly or
intentionally” caused physical harm. Knowing is defined as “[h]aving or showing awareness or
understanding; well-informed,” and “deliberate” or “conscious.” People v Maynor, 256 Mich App
238, 241-242; 662 NW2d 468 (2003), citing Black’s Law Dictionary (7th ed) (quotation marks
omitted). “Knowing” includes both actual and constructive knowledge, and knowledge and intent
may “be inferred from one’s actions.” People v Gould, 225 Mich App 79, 87; 570 NW2d 140
(1997) (citations omitted). Defendant argues that her intent was to reasonably discipline her child,
not to harm her child, and the child abuse statute does not prevent a parent “from taking steps to
reasonably discipline a child, including the use of reasonable force.” MCL 750.136b(9).

       There was evidence that could have persuaded a jury to conclude that defendant’s actions
were not knowing and intentional. For example, defendant testified that the child had been having
behavioral difficulties, including aggression and defiance, for several years, and that she had
unsuccessfully attempted nonphysical methods of discipline, such as grounding, rewards,
removing privileges, and time outs. Thus, defendant had a history of offering seemingly
appropriate discipline. She had also pursued appropriate interventions to help the child, including
volunteering at the school where she was eventually hired. Evidence showed that defendant also
took the child to a psychiatrist, Bobga Fomunung, M.D., who had been treating the child since


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2013, and had diagnosed him with attention deficit disorder, and mild to moderate autism spectrum
disorder. Given the child’s continued aggressive behavior at home and at school, Dr. Fomunung
had prescribed and adjusted medications, referred the child for behavioral therapy, and had
provided guidance for defendant. Notably, after the spanking defendant told Dr. Fomunung that
she had hurt the child, and was frustrated because she needed help with his behavior, an action that
would not have been as likely if the initial intent had been to harm the child. Additionally, the day
following the spanking, defendant noticed the child’s injuries, and felt sadness and remorse,
prompting her to call CPS in an attempt to obtain advice or services to assist her in addressing the
child’s behavioral difficulties.

         Nonetheless, other evidence supported the jury’s finding that her intent or knowledge when
spanking the child with the belt was that he would be hurt. Notably, “because it can be difficult to
prove a defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial
evidence will suffice to establish the defendant’s state of mind, which can be inferred from all the
evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008). Defendant
and the child had been arguing, and defendant described herself as becoming frustrated, angry, and
irritable as a result. She warned the child that she would spank him, and eventually brought him
in from outside to spank him. Witnesses estimated that he had been struck 8 to 10 times across
the buttocks, and six to eight times across his upper right leg. The child recalled that defendant
was holding him down with her foot on his back, and had a “mad face.” Defendant noted that the
child was smirking at her, and kicking and hitting her, and it was her husband who intervened to
stop the spanking because it had gone too far. The child observed that his buttocks were purple
and bleeding. Reasonable inferences arising from this evidence were sufficient to support a finding
that the striking of the child went beyond reasonable discipline and showed a knowledge that the
child would be injured. “It is for the trier of fact, not the appellate court, to determine what
inferences may be fairly drawn from the evidence and to determine the weight to be accorded those
inferences.” Hardiman, 466 Mich at 428. The extent of the hitting revealed by the injuries and
the nature of the incident were sufficient to establish an intense physical beating that resulted from
an intent to cause the injury or knowledge that injury would occur. Accordingly, the evidence was
sufficient to establish the intent element of third-degree child abuse.

                                   II. IRRELEVANT EVIDENCE

        Defendant next argues that evidence that corporal punishment is emotionally harmful to a
special needs child should not have been admitted because it was irrelevant. Defendant did not
object to this testimony, so we review its admission for plain error affecting substantial rights.
MRE 103(d); People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Reversal is warranted
only if the plain error resulted in the conviction of an innocent defendant or if “the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings independent of the
defendant’s innocence.” Carines, 460 Mich at 763-764 (quotation marks and citation omitted).
We find no error.

        Generally, relevant evidence is admissible, and irrelevant evidence is not. MRE 402.
Evidence is relevant if it has “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.” MRE 401. “Under this broad definition,” evidence that is useful in shedding light on
any material point is admissible. People v Aldrich, 246 Mich App 101, 114; 631 NW2d 67 (2001).


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To be relevant, “the matter sought to be established by the evidence must be ‘in issue.’ ” People
v McKinney, 410 Mich 413, 418; 301 NW2d 824 (1981).

        Dr. Fomunung, an expert in behavioral health, described the information he had supplied
to defendant about addressing the behavioral problems of a child with special needs. The
prosecutor asked Dr. Fomunung whether he ever recommended physical punishment of a special
needs child, and he responded that he never recommended striking a child. He affirmed that
parents have a right to use reasonable corporal punishment, but opined that it would be physically
and emotionally harmful to this child.

        Defendant argues that Dr. Fomunung’s comment that physical discipline was emotionally
harmful was irrelevant because emotional harm was not included in the elements of the crime.
However, a conviction of third-degree child abuse requires the prosecutor to prove that the
defendant “knowingly or intentionally caused physical harm to a child.” MCL 750.136b(5). See
also People v Sherman-Huffman, 466 Mich 39, 41; 642 NW2d 339 (2002). It is evident that the
prosecutor was questioning Dr. Fomunung about a fact at issue, which was whether defendant’s
spanking of the child was intended to discipline him, or to harm him. Defendant had asserted that
spanking was a progressive form of discipline after nonphysical methods had failed to curb her
child’s problematic behaviors. And the child abuse statute is not applied to prevent a parent “from
taking steps to reasonably discipline a child, including the use of reasonable force.” MCL
750.136b(9). Thus, Dr. Fomunung’s opinion regarding defendant’s knowledge about corporal
punishment as discipline, and whether physical punishment could be considered reasonable
discipline of the child, were relevant to material issues. Dr. Fomunung’s comment—that
emotional harm was one of the reasons that physical discipline was inappropriate in this case—
was related to why he does not recommend to parents of autistic children, including defendant,
that they utilize corporal punishment.

        Contrary to defendant’s argument, Dr. Fomunung’s information about what constitutes
reasonable discipline was not irrelevant because it was not first demonstrated that defendant was
aware of Dr. Fomunung’s opinion about physical discipline. Defendant reasons that the actual
educational materials that Dr. Fomunung provided to defendant were not published to the jury so
that the jury would be able to determine what defendant knew. However, the jury did know that
the materials did not include a recommendation for using physical discipline. Moreover, the
testimony that using physical discipline was harmful to a child was relevant because it was a part
of Dr. Fomunung’s opinion about why physical discipline was not recommended in the
information about managing the child’s behavior that he had provided to defendant. The testimony
was directly relevant to defendant’s assertion that she had struck the child in an act of reasonable
discipline. The questions about Dr. Fomunung informing defendant about what constituted
appropriate discipline, including his excluding that it was feasible to consider corporal punishment
as appropriate discipline of a special needs child, addressed a central question of this case.
Accordingly, it was not plain error to admit this evidence.

        Defendant argues that his attorney provided ineffective assistance by failing to object to
Dr. Fomunung’s opinion about the emotional harm of the physical punishment. A defendant’s
right to counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am
VI; Const 1963 art 1, § 20. This right “encompasses the right to the ‘effective’ assistance of
counsel.” People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). To demonstrate an


                                                -4-
ineffective assistance of counsel claim, a defendant must show (1) “that counsel’s performance
was deficient,” and (2) “that counsel’s deficient performance prejudiced the defense.” People v
Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007) (quotation marks and citations omitted).
A counsel’s performance is deficient if “it fell below an objective standard of professional
reasonableness.” People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). The
performance will be deemed to have prejudiced the defense if it is reasonably probable that, but
for counsel’s error, “the result of the proceeding would have been different.” Id. The “[e]ffective
assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.”
People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). Because Dr. Fomunung’s
testimony was relevant to whether defendant’s hitting the child with the belt was reasonable
discipline, any objection would not have been meritorious. “Failing to advance a meritless
argument or raise a futile objection does not constitute ineffective assistance of counsel.” Ericksen,
288 Mich App at 201.

                                       III. EXPERT EVIDENCE

        Finally, defendant argues that an expert’s opinion that the child had been hit 16 times with
a belt should not have been admitted because it was unreliable, and that his trial counsel provided
ineffective assistance by failing to object.

       MRE 702 provides for the admission of expert opinion that results from “scientific,
technical, or other specialized knowledge,” and must assist the trier of fact. Specifically, 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 upon 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.

To determine whether expert testimony is admissible under MRE 702, a searching inquiry is
mandated. The inquiry must include not just consideration of the data underlying expert testimony,
but also of the manner in which the expert interprets and extrapolates from the data. Gilbert v
DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004). The trial court must consider
many factors to determine “whether the reasoning or methodology underlying the testimony is
scientifically valid and . . . whether that reasoning or methodology properly can be applied to the
facts in issue.” Daubert v Merrell Dow Pharm, Inc, 509 US 579, 592-593; 113 S Ct 2786; 125 L
Ed 2d 469 (1993). The opinion of an otherwise qualified expert must also be shown to be reliable,
including the data underlying the expert’s theories and the methodology by which the expert draws
his conclusions. People v Yost, 278 Mich App 341, 394; 749 NW2d 753 (2008).

        Defendant argues that the expert testimony of Hoekstra regarding the number of times the
child was struck with a belt should have been excluded. Hoekstra detailed the child’s injuries, and
estimated that there were 8 to 10 horizontal linear lesions on each side of the buttocks, and six to
eight areas of linear horizontal bruising on the right upper leg. Hoekstra testified that there were


                                                 -5-
16 total injuries on the buttocks, and six to eight on the leg, and that the injuries were consistent
with strikes from a belt.

       On cross-examination, Hoekstra clarified that there were 8 to 10 bruises on each of the
buttocks, and across the leg. Defendant’s counsel asked: “And, do you have any expertise [in]
regards to determining how many strikes, how many times this kid was struck to have cause --
caused these bruises?” Hoekstra responded:

               I—I don’t know that for sure, but there seemed to be about, you know, like
       I say, each, you know, eight to—eight—six to eight, eight to ten on each area. It’s
       hard to know if the bilateral sides of the buttock were from one swipe, and maybe
       on one side then kind of going over to the other, or if they were all individual,
       separate, I don’t have any way to determine that, but certainly, it—it—it’s one or
       the other, I would say. And, you know, unless there was two belts being used, I
       would think that—I would believe that each strike would be equivalent with one
       or, excuse me, each ecchymosis area, ecchymotic area, would be consistent with
       one strike.

Hoekstra testified that the number of strikes was “closer to 16,” rather than the larger number of
injuries that the prosecutor’s questions suggested, because the bruises on both sides of the buttocks
could have been caused by one belt strike. However, he could not be sure if one strike traversed
the buttocks, or if bruises on each side were caused by separate strikes. Defendant’s counsel asked
again if Hoekstra had any expertise or training to determine the number of strikes, and Hoekstra
responded that there was no formal training to detect distinct bruises, but his determination was
based on “common knowledge in seeing injuries in the emergency department.”

        Defendant argues that Hoekstra’s opinion about the number of strikes was based on
speculation, and that the trial court should have sua sponte excluded the evidence. An expert’s
opinion testimony is limited to the expert’s area of expertise. People v Jones, 95 Mich App 390,
394; 290 NW2d 154 (1980). An expert must show that any opinion based on data expresses
conclusions reached through reliable principles and methodology. Gilbert, 470 Mich at 782. After
an expert is qualified to give an opinion, the scope of the testimony is not limited by MRE 702,
but the “expert must be an expert in the precise problem as to which he undertakes to testify.”
People v Beckley, 434 Mich 691, 725-726; 456 NW2d 391 (1990) (quotation marks and citation
omitted). “Where [expert] testimony is purely speculative, it should be excluded or stricken.”
Phillips v Deihm, 213 Mich App 389, 402; 541 NW2d 566 (1995).

         Hoekstra did not speculate about the number of times that defendant struck the child. He
testified that he was not certain about the number of strikes because each could have caused
bruising on one side of the buttocks, or both sides of the buttocks. Thus, the jury was presented
with his opinion that there may have been a minimum of 16 strikes, and a maximum of 24 strikes.
Hoekstra testified that he based his opinion regarding the number of strikes on the number of
injuries observed, and on “common knowledge in seeing injuries in the emergency department.”
MRE 702 provides that an expert may be qualified “by knowledge, skill, experience, training, or
education.” Thus, the opinion was based on his observations and deductions based on those
observations. Defendant has not demonstrated that Hoekstra’s testimony about the number of
strikes was speculative or unreliable.


                                                -6-
         Regarding the ineffective assistance argument, Hoekstra testified on direct examination
that the child’s injuries were created by belt strikes, and that there were 26 injuries. Therefore, the
jury may have been left with the impression that there were 26 belt strikes after Hoekstra’s direct
examination, and trial counsel’s cross-examination successfully had Hoekstra limit the number of
belt strikes to 16, and attempted to undercut the reliability of Hoekstra’s testimony by questioning
the basis of his findings. Thus, defense counsel’s cross-examination of Hoekstra did not constitute
deficient performance, but appeared to be part of a strategy favoring defendant by limiting the
impact of Hoekstra’s direct testimony.

       Affirmed.



                                                               /s/ Christopher M. Murray
                                                               /s/ Kathleen Jansen
                                                               /s/ Jane E. Markey




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