                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 8, 2016
               Plaintiff-Appellee,

v                                                                  No. 326469
                                                                   Ingham Circuit Court
NATHANIEL MORRICE,                                                 LC No. 14-000640-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and STEPHENS and BOONSTRA, JJ.

PER CURIAM.

        Defendant was convicted of three counts of first-degree criminal sexual conduct (CSC-I),
MCL 750.520b(1)(a) (person under 13, defendant 17 years of age or older), and one count of
second-degree CSC (CSC-II), MCL 750.520c(1)(a) (person under 13, defendant 17 years of age
or older). He was acquitted of disseminating sexually explicit matter to a minor, MCL 722.675.
He was sentenced to 300 to 450 months’ imprisonment for each CSC-I conviction and 71 to 180
months’ imprisonment for his CSC-II conviction. All sentences run concurrent. He now appeals
as of right. For the reasons stated in this opinion, we affirm.

        The victim, HH, is defendant’s stepdaughter. At trial, HH testified to a progression of
sexual abuse by defendant that began when she was 5 years old and ended when she was aged
12. According to HH, at five years’ old defendant would enter her bedroom and touch her on her
vagina over her clothes. At six years’ old defendant made HH perform fellatio and according to
HH, she continued to do this every couple of months. HH testified that defendant first vaginally
penetrated her when she was 12 years old, that “it hurt really bad,” and that she started bleeding
from her vagina after the assault even though she was over her menstrual period. According to
HH, thereafter defendant engaged in vaginal sex with her about six times and anal sex once. HH
recalled that the last time she was assaulted by defendant was in late October 2013, when she
was still 12 years old.

                             I. RIGHT TO PRESENT A DEFENSE

        Defendant first argues that he was deprived the right to present a defense when the trial
court ruled that evidence regarding Dan Medina was precluded by the rape-shield statute, MCL
750.520j. We disagree.



                                               -1-
        Medina was a man who lived with HH’s grandmother during a time when HH spent a
significant amount of time at her grandmother’s house. According to HH’s mother, Medina had
been arrested for molesting HH’s cousins. HH testified that Medina never assaulted her.

        The rape-shield statute is an evidentiary rule that excludes admission of evidence of a
victim’s sexual activity that is not incident to the alleged sexual assault. People v Adair, 452
Mich 473, 478; 550 NW2d 505 (1996). However, if material to a disputed fact, the trial court
may admit “[e]vidence of the victim’s past sexual conduct with the actor” or “[e]vidence of
specific instances of sexual activity showing the source or origin of semen, pregnancy, or
disease.” MCL 750.520j. Additionally, admitting evidence of a victim’s sexual activity “may be
required to preserve a defendant’s constitutional right to confrontation.” People v Hackett, 421
Mich 338, 348; 365 NW2d 120 (1984). A court may also admit evidence of this nature to show
that a victim’s age-inappropriate sexual knowledge was not acquired from the defendant. People
v Morse, 231 Mich App 424, 436; 586 NW2d 555 (1998).

        Defendant’s argument is a hybrid of these principles. First, he claims that evidence of
Medina’s prior sexual-assault convictions is evidence of sexual activity that shows the source of
HH’s physical condition, which is specifically allowed under MCL 750.520j(1)(b). Second, he
claims that this evidence does not even fall under the ambit of the rape-shield statute because it is
merely proffered to show HH’s age-inappropriate sexual knowledge, independent of any past
sexual activity. Finally, defendant ties both arguments together and posits that precluding the
evidence ultimately deprived him of his right to present a defense. See People v Kurr, 253 Mich
App 317, 326; 654 NW2d 651 (2002) (“A criminal defendant has a state and federal
constitutional right to present a defense.”).

        Defendant’s argument, however, is based on the erroneous premise that the trial court
prohibited the admission of evidence of the underlying facts of Medina’s convictions. Defendant
never sought to admit the underlying facts of Medina’s convictions; consequently, the trial court
never ruled that this evidence was inadmissible. Instead, after all the evidence was presented,
after both parties gave closing arguments, and after the jury was instructed and began
deliberations, the court received a question from the jury about the facts underlying Medina’s
conviction asking whether the court would have allowed or precluded that evidence. Since
neither party offered the evidence, the court’s answer to the jury question did not deprive the
defendant of a defense that he never proffered.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Next, defendant postulates several instances where he claims his counsel was ineffective.
To preserve an ineffective-assistance-of-counsel claim, a defendant must move for a new trial or
a Ginther1 hearing. People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005). Defendant
moved this Court to remand to the trial court for a Ginther hearing on some of the alleged
instances of ineffective assistance, which this Court denied. People v Morrice, unpublished
order of the Court of Appeals, entered March 8, 2016 (Docket No. 326469). “When no Ginther

1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).



                                                -2-
hearing has been conducted, [this Court’s] review of the defendant’s claim of ineffective
assistance of counsel is limited to mistakes that are apparent on the record.” People v Mack, 265
Mich App 122, 125; 695 NW2d 342 (2005).

        An ineffective-assistance-of-counsel claim raises a mixed question of fact and
constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). This Court
reviews the trial court’s factual findings for clear error, but it reviews the trial court’s
constitutional determinations de novo. People v Dendel, 481 Mich 114, 124; 748 NW2d 859,
amended on other grounds 481 Mich 1201 (2008). “Clear error exists when the reviewing court
is left with a definite and firm conviction that a mistake has been made.” People v Kurylczyk,
443 Mich 289, 303; 505 NW2d 528 (1993).

        To show that defense counsel was ineffective and to be afforded a new trial, a defendant
must establish (1) that counsel’s performance fell below an objective standard of reasonableness
and (2) that the defendant was prejudiced as a result of counsel’s performance. People v
Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). A prejudice showing means that “ ‘there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ” Id., quoting Strickland v Washington, 466 US 668, 694; 104 S Ct
2052; 80 L Ed 2d 674 (1984). There is a strong presumption that counsel rendered adequate
assistance. Id. at 670.

                  A. CONFRONTING GUERTIN’S EXPERT TESTIMONY

       Defendant first argues that his trial counsel did not properly challenge the testimony from
Stephen Guertin, MD on the physical evidence of sexual abuse revealed in his examination of
HH. We disagree.

        Guertin, who was qualified as an expert in the area of diagnosis and treatment of child
sexual abuse, evaluated HH in June 2014. During his physical examination of HH, Guertin
found that she had a “deep notch” in her “private area,” which he explained was consistent with
penial/vaginal intercourse at age 12. He also testified that HH’s hymenal opening was “in excess
of 25 millimeters or 2.5 centimeters.” Guertin said that “if you look at the literature,” such a
measurement “is not seen in kids unless they are sexually experienced or have suffered intrusive
injury.” He noted that although neither of these findings alone definitively support the
allegations of penile/vaginal intercourse, the presence of both does. However, Guertin
acknowledged, “most experts don’t use hymenal openings” when evaluating for sexual abuse.

        Defendant cites several journal articles in support of his proposition that Guertin’s
testimony regarding HH’s physical condition was inaccurate or incomplete. Defendant suggests
that his counsel was ineffective for failing to cross-examine Guertin using the information
contained in these articles or call an expert that had knowledge of the information contained in
them.

       Defendant has not overcome the presumption that his counsel’s decisions regarding what
evidence to present and pursue constituted sound trial strategy. A primary focus of defendant’s
theory of defense was that Medina actually abused HH, a suggestion that is consistent with
Guertin’s testimony that HH exhibited physical signs of sexual abuse. Counsel questioned HH


                                                -3-
and her mother about Medina, and both acknowledged that HH spent time at her grandmother’s
house while Medina was present. HH’s mother testified that Medina was a convicted sex
offender who had abused at least two of HH’s cousins. Counsel also questioned Detective
Harrison about Medina’s connection to HH and about Harrison’s investigation—or, rather, what
counsel portrayed as a lack of an investigation—into Medina. Thus, instead of choosing to
discredit Guertin’s opinion that HH’s physical condition supports a finding of sexual abuse,
defense counsel chose to accept that opinion and construct a narrative in which someone else
with access to HH was the abuser. The decision to argue one defense instead of another is a
matter of trial strategy. People v Lloyd, 459 Mich 433, 449; 590 NW2d 738 (1999); People v
Hedelsky, 162 Mich App 382, 387; 412 NW2d 746 (1987).

        Defendant also argues that counsel should have more effectively questioned Guertin
regarding his conclusion that HH’s physical condition evidenced her description of
penile/vaginal assault at age 12, given evidence that she suffered a prepubescent fall on the
monkey bars and had used tampons. However, trial counsel did elicit testimony from Guertin
that the notch could have been caused by a prepubescent injury. Trial counsel also highlighted
this point during closing arguments, stating, “But I know one thing Doctor Guertin said. He said
the notch that he found could have happened before she was 12, before she started menstruation.
And it could have happened when she fell as a child.” Defense counsel employed a reasonably
sound strategy in choosing to confront Guertin on certain perceived weaknesses in his
testimony.2

                  B. FAILURE TO OBJECT TO HEARSAY STATEMENTS

        Defendant also argues that his trial counsel should have objected to several instances of
improper hearsay testimony. “ ‘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 evidence is not admissible at trial unless an exemption or
exception applies. MRE 802. “If, however, the proponent of the evidence offers the statement
for a purpose other than to prove the truth of the matter asserted, then the statement, by
definition, is not hearsay.” People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013); see
also MRE 801(c).

                             1. TESTIMONY OF HH’S FRIENDS

        Defendant first claims that testimony by AB and CS to statements made by HH regarding
the alleged abuse was improper and should have been objected to by trial counsel. AB stated,
without objection, that HH told her “that she didn’t want to tell anybody because he said don’t
tell anybody,” and that HH did not like defendant because “he raped her.” The hearsay
testimony that defendant complains that CS gave is her recounting a statement that EB allegedly
made after asking HH questions: “she was like you’re telling the truth.”


2
  We also note that trial counsel sought to exclude Guertin’s testimony pretrial with a motion in
limine.



                                               -4-
        These statements were not offered to prove the truth of the matters asserted. Instead, the
prosecutor used the testimony from these witnesses to explain the circumstances involved and
the context behind HH’s eventual disclosure of the sexual abuse, including the progression from
telling a friend to reporting it to the authorities. AB’s testimony regarding HH’s desire that she
not tell anyone helps the jury to understand why the witnesses waited so long before disclosing
the abuse to an adult. Moreover, CS’s testimony that EB believed HH was telling the truth was
unsolicited testimony during a colloquy about when and why the children finally decided to
disclose the abuse to an adult.

       As for AB’s statement, “he raped her,” AB is merely stating what she learned, not stating
what HH said. Such a statement may be objectionable due to lack of personal knowledge, but
given that an objection may only draw the jury’s attention toward this testimony, People v
Bahoda, 448 Mich 261, 287 n 54; 531 NW2d 659 (1995), counsel’s decision to remain silent was
reasonable trial strategy.

                   2. GUERTIN’S TESTIMONY ON HH’S DISCLOSURES

       Defendant next claims that Guertin’s testimony regarding several statements that HH
made to him about the sexual assaults, including that defendant was the perpetrator, were
inadmissible hearsay. We agree that these statements were inadmissible hearsay for which there
was no exception, but find their admission harmless error.

       One exception to the hearsay rule includes “[s]tatements made for purposes of medical
treatment or medical diagnosis in connection with treatment and describing medical history . . .
.” MRE 803(4). The rationale behind this exception is “(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, 439 Mich 310, 322; 484 NW2d 621 (1992). Whether this exception applies, i.e.,
whether the statement was made for purposes of medical treatment or diagnosis and not some
other purpose, can be established by determining the trustworthiness of the statement. Id. The
Meeboer Court highlighted several factors indicating trustworthiness:

       (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 (citation footnotes omitted).]




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Furthermore, the Meeboer Court noted that the perpetrator’s identification “is necessary to
adequate medical diagnosis and treatment.” Id. at 322. And, important to the case at hand, the
Court explained that corroborating physical evidence of the assault “can support the
trustworthiness of the child’s statements regarding a sexual assault and aid in the determination
whether the statement was made for the purpose of receiving medical care.” Id. at 326.

        HH was 13 years old at the time she made the statements to Guertin, old enough to know
the importance of telling the truth during the interview. Guertin did acknowledge asking HH
leading questions in his interview. HH used the terms “blow job,” “semen,” and “cummed,”
explaining that she learned these terms from defendant. The examination did not occur until
approximately seven months after the last assault and approximately six months before trial.
Guertin testified that all the information he elicited was for the purposes of diagnosis and
treatment, both medically and psychologically, and for the child’s protection. Defendant was
HH’s stepfather, so misidentification, at least in this context, was not a concern. At the time of
the statements, there was no known motive for HH to fabricate the allegations.3

         In People v Shaw, ___ Mich App ___; ___NW2d ___ (2016); slip op at 1, “the
complainant was 23 years old, [when] she reported to the Lansing Police Department that [the]
defendant, her stepfather, had sexually molested her on multiple occasions between the ages of 8
and 16.” Relevant to this appeal, defendant Shaw argued that his counsel was ineffective for
failing to object to hearsay statements from Dr. Steven Guertin and Detective Elizabeth Reust.
Id. at ___, ___; slip op at 2, 5. Guertin conducted a physical examination of the complainant
seven years after the last alleged incident of abuse. “[I]t was undisputed that prior to [] Guertin's
examination, the complainant had been sexual active with her boyfriend.” Id. at ___; slip op at
5 n 5. Guertin testified to statements told to him by the complainant regarding the abuse. Id. at
___; slip op at 3-4. Guertin also testified that, “based on the complainant’s medical history, he
believed her allegations” and “that his physical findings were consistent with someone who had
suffered child sexual abuse.” Id. at ___; slip op at 5. Detective Reust’s testimony vouched for
the credibility of the complainant’s statements. The detective testified that she “confirmed” the
veracity of “background” facts and statements made by the complainant. Detective Reust also
testified to the statements the complainant made to Guertin. The Court in Shaw noted that
Detective Reust sent the complainant to Guertin in furtherance of the investigation against the
defendant. Id. at ___; slip op at 4.

        The Shaw Court determined that the above testimony from Guertin and Detective Reust
was inadmissible hearsay for which there was no exception and that defense counsel was
ineffective for failing to object where there was no strategic advantage for allowing the
testimony. Id. at ___; slip op at 4-5. The Shaw Court reasoned that the “case turned largely on
the complainant’s credibility” “[g]iven the time that had passed since the alleged abuse stopped,

3
  Defense counsel suggested during closing argument that HH may have been motivated to help
rid defendant from her life so that her biological father would return. HH testified, though, that
she did not think that her stepfather had anything to do with her father’s disappearance, and
Detective Harrison explained that HH’s father remained uninvolved in her life and in this
investigation until Child Protective Services contacted him.



                                                -6-
the lack of any witnesses to the charged crimes, and the lack of any significant circumstantial
proofs.” Id. at ___; slip op at 4-5. The Shaw Court reversed and remanded the defendant’s case
for a new trial after holding that but for defense counsel’s error, there was a reasonably
probability that the outcome of defendant Shaw’s case would have been different. Id. at ___;
slip op at 5.

       The instant case is strikingly similar to Shaw. Here we also have a detective referring the
complainant to Guertin for the purposes of furthering the criminal investigation against the
defendant, Guertin testifying to inadmissible hearsay statements made by the complainant during
a physical examination that was done a significant time after the last alleged instance of abuse,
and a detective vouching for the credibility of the complainant. Compared to Shaw however,
there are marked differences between it and the instant case that compel a result other than
reversal. The physical exam in Shaw was conducted on the complainant some seven years later,
with the complainant having been sexually active in the interim. HH was examined seven
months after the last alleged incident of abuse and there was no evidence that she had sex with
anyone other than defendant. Indeed, when asked about the possibility of sexually activity with
anyone else, Guertin testified that HH was repulsed by the idea of having sex with anyone.
Unlike Shaw, this case is not a pure credibility contest, and there is physical evidence to
corroborate HH’s testimony in the form of a deep notch and an abnormally wide hymenal
opening, which together, Guertin testified, is indicative of sexual abuse. See Shaw, ___ Mich
App at ___; slip op at 4-5 (observing that, “Given the time that had passed since the alleged
abuse stopped, the lack of any witnesses to the charged crimes, and the lack of any significant
circumstantial proofs, this case turned largely on the complainant’s credibility.”).

         Still, Harrison’s testimony regarding Guertin’s examination is concerning. Harrison
testified that she sent HH to Guertin and that she and the doctor “use a team approach” in
obtaining all of the relevant information regarding the abuse. She also stated that she knows and
understands “the way that he conducts his examinations.” A reasonable interpretation of
Harrison’s testimony is that she understood that Guertin’s examination would provide additional
information to use in the investigation of defendant.

        In any event, defendant has failed to show the requisite prejudice. Vaughn, 491 Mich at
669. To show prejudice, a defendant must establish that “ ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
Id., quoting Strickland, 466 US at 694. Even absent the admission of the hearsay testimony, the
result of the proceeding would not have been different. As our Supreme Court stated in People v
Douglas, 496 Mich 557, 581; 852 NW2d 587 (2014), where “there is other evidence to
corroborate the allegations beyond the declarant’s statements,” “such cumulative hearsay
testimony is more likely to be harmless.” Such evidence is present here.

         C. FAILURE TO OBJECT TO CREDIBILITY-VOUCHING STATEMENTS

        Defendant also argues that counsel was ineffective for not objecting to the testimony of
several witnesses that improperly vouched for the credibility of HH and other witnesses.

        It “is improper for a witness or an expert to comment or provide an opinion on the
credibility of another person while testifying at trial.” Musser, 494 Mich at 349. These


                                                -7-
comments are not probative because “ ‘they do nothing to assist the jury in assessing witness
credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence.’
” Id., quoting Connecticut v Taft, 306 Conn 749, 764; 51 A3d 988 (2012).

       Specifically, defendant cites testimony from CS’s mother, who testified that HH was
“trustworthy” and that she “believed” her allegations; testimony from CS that HH was “a very
trustworthy person” and that EB was “a trusted one of us”; and Harrison’s description of the
forensic interviewing process as “truth-seeking,” as well as the following explanation for why
she determined that HH was not lying:

       [S]he described a progression of events to me which is pretty difficult if not
       impossible to. I mean it’s not indicative of lying or coaching when she knows,
       has an unexplained knowledge. Like she’s talking about starting out as touching,
       then oral sex, then vaginal penetration. She also said a couple things to me that
       really stuck out as far as like talking about ejaculation. She didn’t use that word
       though. But when she’s talking about that like that it was on her stomach and
       talking about the taste and in talking about the towel, that’s definitely unexplained
       sexual knowledge. So it all kind of, that’s part of the hypothesis testing about like
       is she lying for attention.

         These statements contributed nothing to the context of the witnesses’ roles in the
pertinent facts of the allegations; they were merely the opinions of the witnesses themselves
regarding credibility, which is prohibited unless the witnesses’ credibility has been attacked. See
MRE 608(a). While it is arguable that the statement of CS and her mother were isolated and a
lack of objection could be considered sound trial strategy so as to not draw attention to them, see
Bahoda, 448 Mich at 287 n 54, the same cannot be said for Harrison’s statements. Harrison was
allowed to describe in detail and elaborate on why she ruled out one of her alternate hypotheses,
i.e., that HH was lying about the abuse. Thus, Harrison was informing the jury why she believes
HH is being truthful, an issue that is solely for the jury. People v Dobek, 274 Mich App 58, 71;
732 NW2d 546 (2007) (“It is generally improper for a witness to comment or provide an opinion
on the credibility of another witness, because credibility matters are to be determined by the
jury.”). We can discern no reasonable strategic reason that defense counsel failed to lodge an
objection during Harrison’s elaborative statement (or following the prosecutor’s question
regarding what Harrison did to explore the possibility that HH was lying).

        However, once again prejudice has not been shown. In arguing that counsel’s deficient
performance affected the outcome of his trial, defendant again misrepresents the evidence in his
case as boiling down to only a contest of pure credibility. True, HH was the accuser and
consequently an essential witness in this case. However, there was additional physical evidence
beyond the verbal allegations that HH was sexually abused. Moreover, defendant acknowledged
this evidence by focusing much of his trial strategy around the failure to sufficiently investigate
Medina. This was a reasonable defense strategy. Even if defense counsel had objected to the




                                                -8-
improper statements, it is unlikely that the strategy would have changed.

       Affirmed.




                                                            /s/ William B. Murphy
                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Mark T. Boonstra




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