                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 19, 2018
               Plaintiff-Appellee,

v                                                                  No. 336178
                                                                   Macomb Circuit Court
CHRISTOPHER DAVID COWLES,                                          LC No. 2015-001588-FH

               Defendant-Appellant.


Before: CAMERON, P.J., and JANSEN and O’CONNELL, JJ.

PER CURIAM.

       Defendant appeals his jury trial convictions of four counts of third-degree criminal sexual
conduct (CSC-III) after he sexually assaulted his 16-year-old high school student contrary to
MCL 750.520d(1)(e) (sexual penetration with student at least 16 years old). Defendant was
sentenced to four concurrent terms of 5 to 15 years’ imprisonment for the four counts of CSC-III.
Defendant now argues he was denied due process when the trial court denied access to the
victim’s psychological records. We disagree and, therefore, affirm his convictions and
sentences.

        Defendant engaged in a sexual relationship with a 16-year-old student (the victim), while
teaching at a high school in Clinton Township. Defendant was 22 years old at the time.
Defendant and the victim engaged in three separate sexual encounters that escalated in severity.
On the first occasion, defendant kissed the victim and touched her breast. On the second
occasion, he asked her to perform oral sex on him. Finally, on the third occasion, defendant
performed oral sex on the victim and penetrated her with his fingers and penis, despite the victim
repeatedly saying “no.” While seeking treatment for severe depression, the victim disclosed to
“Dr. Raymond,” a psychologist and sexual assault counselor, that she had been sexually
assaulted. Before trial, defendant filed a motion for supplemental discovery, seeking access to
the victim’s psychological records, which contained information regarding her treatment with
Dr. Raymond. The trial court denied defendant’s motion, and defendant was later convicted of
four counts of CSC-III.

       Defendant argues that his due process rights were violated when the trial court denied his
motion to access the victim’s psychological records. We disagree.




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        “A trial court’s decision regarding discovery is reviewed for abuse of discretion.” People
v Phillips, 468 Mich 583, 587; 663 NW2d 463 (2003). A trial court’s decision whether to
conduct an in camera review of records is also reviewed for abuse of discretion. People v Laws,
218 Mich App 447, 455; 554 NW2d 586 (1996). “An abuse of discretion occurs when the trial
court’s decision is outside the range of reasonable and principled outcomes.” People v Jackson,
292 Mich App 583, 591; 808 NW2d 541 (2011). This Court “review[s] de novo the issue
whether a defendant was denied his right to due process.” People v Smith, 319 Mich App 1, 5;
900 NW2d 108 (2017).

       Although “ ‘[t]here is no general constitutional right to discovery in a criminal case,’ ”
People v Dickinson, 321 Mich App 1, 18; 909 NW2d 24 (2017) (citation omitted), “[d]efendants
have a due process right to obtain evidence in the possession of the prosecutor if it is favorable to
the accused and material to guilt or punishment.” People v Stanaway, 446 Mich 643, 666; 521
NW2d 557 (1994). Evidence is material if it “would raise a reasonable doubt about the
defendant’s guilt.” Id. Defendant sought to obtain the victim’s psychological records, which are
considered privileged because they were created as part of her treatment and counseling for
trauma related to sexual assault. Id. at 648-649, 651. Such records are generally not
discoverable unless an exception to the laws governing privileged material applies. Id. at 648-
649. Thus, defendant’s argument turns on whether the information contained in the records is
“material to guilt or punishment” such that it extinguishes the privacy and confidentiality
afforded by the sexual assault counselor-victim privilege.

       Confidential communications between a sexual assault victim and a sexual assault
counselor are generally privileged and inadmissible at trial. MCL 600.2157a(2) provides:

       (2) [A] confidential communication, or any report, working paper, or statement
       contained in a report or working paper, given or made in connection with a
       consultation between a victim and a sexual assault or domestic violence
       counselor, shall not be admissible as evidence in any civil or criminal proceeding
       without the prior written consent of the victim. [Stanaway, 446 Mich at 656 n 9,
       quoting MCL 600.2157a(2).]

Furthermore, the psychological records in this case were also protected under MCL 330.1750,
which provides:

       (1) Privileged communications shall not be disclosed in civil, criminal, legislative,
       or administrative cases or proceedings, or in proceedings preliminary to such
       cases or proceedings, unless the patient has waived the privilege[.] [MCL
       330.1750; see Stanaway, 446 Mich at 659-660.]

Therefore, defendant was precluded by law from accessing the victim’s psychological records at
issue unless the victim gave written consent or otherwise waived the privilege. “[As] with any
privilege, the holder may waive it through conduct that would make it unfair for the holder to
insist on the privilege thereafter.” People v Bragg, 296 Mich App 433, 466; 824 NW2d 170
(2012) (quotation marks and citation omitted). Here, there is no indication that the victim
waived the privilege to her psychological records. Therefore, waiver is not a basis for disclosure.


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        Instead, defendant argues that the trial court should have allowed him to access the
victim’s privileged psychological records under the framework set out for such disclosures in
Stanaway, 446 Mich at 678-679. In Stanaway, the Michigan Supreme Court determined that, in
certain circumstances, a trial court may conduct an in camera inspection of a victim’s medical
and psychological records, regardless of their status as privileged documents. Id. at 677. The
Michigan Supreme Court concluded:

       [O]ur review of the jurisprudence . . . along with our own precedent in dealing
       with discovery and evidentiary principles, coupled with a prudent need to resolve
       doubts in favor of constitutionality, prompts us to hold that in an appropriate case
       there should be available the option of an in camera inspection by the trial judge
       of the privileged record on a showing that the defendant has a good-faith belief,
       grounded on some demonstrable fact, that there is a reasonable probability that
       the records are likely to contain material information necessary to the defense.
       [Id. at 676-677.]

        Stanaway was a consolidated case, in which our Supreme Court reviewed two separate
requests for production of privileged psychological documents. In Stanaway, Brian Stanaway
was charged with three counts of CSC-III for sexually assaulting his children’s 14-year-old
babysitter. Id. at 650-651. Approximately one year after the events had taken place, the victim
disclosed to a counselor that Stanaway had sexually assaulted her, and the counselor reported the
victim’s disclosures to the police. Id. at 651. Stanaway argued that the victim’s psychological
records “might contain inconsistent statements or might lead to exculpatory evidence, but
admitted he had no basis for a good-faith belief that it was probable such information would be
found.” Id.

        Stanley Caruso, the defendant whose case was consolidated with Stanaway’s, was
charged with second-degree criminal sexual conduct for sexually assaulting his eight-year-old
niece. Id. at 654. Caruso moved to obtain the victim’s counseling records, stating that he had
reason to believe the records contained a note written by the victim suggesting that she wanted to
have sex with him. Id. at 654-655. In Stanaway’s case, the Michigan Supreme Court
determined that Stanaway had not demonstrated that there was “a reasonable probability that the
[victim’s] records contain[ed] information material to his defense sufficient to overcome the
various statutory privileges[,]” because Stanaway had failed to show, through “a good faith
belief, grounded on some demonstrable fact,” that the psychological records contained evidence
necessary to his defense. Id. at 677. Conversely, in Caruso’s case, our Supreme Court remanded
for an in camera review of the victim’s psychological records, stating:

       Defendant Caruso may have demonstrated a realistic and substantial possibility
       that the material he requested might contain information necessary to his defense.
       The defendant argued in his motion for in camera discovery that the
       circumstances in which the accusation was made were relevant to the truth or
       falsity of the claim. The defense theory is that the claimant is a troubled,
       maladjusted child whose past trauma has caused her to make a false accusation
       against her uncle. The defendant asserted a good-faith belief in his motion that
       the complainant suffered sexual abuse by her biological father before this
       allegation of abuse, the nonresolution of which produced a false accusation, and

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       factual support for some sexually aggressive behavior, namely, writing a letter to
       her mother’s live-in boyfriend inviting him to have sex with her in his car. The in
       camera review ordered by the trial judge may have been proper under the facts of
       this case. [Id. at 682-683.]

         Defendant argues that the facts of his case are more similar to the facts of Caruso’s case
than to the facts of Stanaway’s case. In support of his argument, defendant uses the victim’s
preliminary examination testimony that Dr. Raymond did not initially believe the victim that
defendant had engaged in a sexual relationship with her. However, defendant provides no
articulable facts to show that the actual records indicate why Dr. Raymond may have disbelieved
the victim. In Stanaway, the Michigan Supreme Court explains that Caruso requested an in
camera review of the victim’s psychological records because he was looking for a specific piece
of evidence related to the victim’s alleged “sexually aggressive behavior,” and stated as much to
the trial court. Stanaway, 446 Mich at 682. Defendant argues that “there must be some reason
why [Dr. Raymond] disbelieved [the victim],” but defendant offers no evidence to justify an in
camera review of privileged psychological records. Defendant’s unsupported speculation that
“there must be some reason” that Dr. Raymond did not initially believe the victim is not a
“demonstrable fact” under Stanaway to warrant an in camera review of the records.

        Additionally, “[a]s long as defendant is able to make a sound argument in his defense
without having access to complainant’s privileged counseling records, any information in those
records would not be material to his defense.” People v Davis-Christian, 316 Mich App 204,
213; 891 NW2d 250 (2016). There is no evidence that the absence of the victim’s psychological
records made it impossible for defendant to present a sound defense. Defendant’s main defense
was that the victim falsely accused him of sexual assault as a form of attention-seeking behavior.
Despite the absence of the psychological records, defendant was still able to cross-examine the
prosecution’s witnesses, including the victim, and had access to all of the admissible evidence in
this case, including copies of defendant’s cell phone records, the victim’s cell phone records, a
forensic report regarding the victim’s cell phone, and blueprints of defendant’s apartment, in
order to craft his defense. Thus, the trial court’s refusal to grant an in camera review of the
victim’s psychological records did not deprive defendant of the tools and information necessary
to adequately prepare a defense.

        The trial court should not permit the disclosure of privileged materials “when the record
reflects that the party seeking disclosure is on a fishing expedition to see what may turn up.”
Davis-Christian, 316 Mich App at 208 (quotation marks omitted). A defendant’s search for
evidence amounts to “fishing for information when he or she relies on generalized assertions and
fails to state any specific articulable fact that indicates the privileged records are needed to
prepare a defense.” Id. (quotation marks omitted). Defendant did not provide articulable facts in
support of the contention that he required access to the victim’s psychological records. At best,
defendant contended that the psychological records were material and necessary because they
might contain evidence that Dr. Raymond was skeptical or disbelieving of the victim’s claim that
she had been sexually assaulted by defendant. Defendant is attempting to use the victim’s
unsubstantiated statement to access her psychological records in an effort to fish for information
that might bolster his defense. Id. at 212. However, “defendant’s assertion of need merely
voices a hope of corroborating evidence, untethered to any articulable facts.” Id. at 213.
Overall, defendant failed to show via concrete, articulable facts, that the victim’s psychological

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records were necessary and material to his defense, and therefore, his due process rights were not
violated. Accordingly, defendant’s claim is without merit.

       Affirmed.



                                                            /s/ Thomas C. Cameron
                                                            /s/ Kathleen Jansen
                                                            /s/ Peter D. O'Connell




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