                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 8, 2018
              Plaintiff-Appellee,

v                                                                  No. 336384
                                                                   Ottawa Circuit Court
ANTONIO LUIS RIVERA,                                               LC No. 16-040398-FC

              Defendant-Appellant.


Before: MARKEY, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

       A jury convicted defendant of second-degree criminal sexual conduct (CSC-II), MCL
750.520c(1)(a) (sexual contact with another person under 13 years of age), and the trial court
sentenced him to 84 to 180 months’ imprisonment for the CSC-II conviction. Defendant now
appeals. For the reasons set forth below, we affirm his conviction but remand for resentencing.

                                    I. BACKGROUND FACTS

        This case arises out of several alleged instances of defendant’s sexual contact with his
girlfriend’s six-year-old daughter (the victim). The victim testified that on her sixth birthday,
defendant hurt her by placing “his no-nos inside [her] no-no.” Further, the victim testified that
defendant hurt her in the bathroom at her house on more than one occasion. She stated that
defendant warned her not to tell anyone.

         The victim’s biological father testified that in June 2016, the victim displayed
inappropriate sexual behavior. The victim’s father testified he asked his daughter where she
learned that behavior from, and she replied that she learned it from defendant. After learning of
the allegation, the victim’s mother placed a hidden camera on the bathroom counter. Eventually,
she observed something that concerned her enough to call the Children’s Advocacy Center and
the police. All three recordings on this camera involved defendant and the victim. The victim’s
mother took her for a medical exam at the Children’s Advocacy Center where Julie Mascorro, a
registered nurse with the Children’s Advocacy Center, took the victim’s medical history. At
trial, the prosecutor asked Nurse Mascorro what the victim said happened to her. Defense
counsel objected on hearsay grounds. The prosecutor argued that the testimony was admissible
under MRE 803, and the trial court allowed the testimony.



                                               -1-
                                      II. LEGAL ANALYSIS

                                           A. MRE 803

       On appeal, defendant first argues that the trial court erred by admitting Nurse Mascorro’s
testimony regarding the victim’s description of the alleged assault. We disagree.1

       Under the Michigan Rules of Evidence, 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 statements are generally inadmissible unless an
exception applies. MRE 802.

       Although the trial court did not indicate which hearsay exception it utilized to admit the
testimony, we agree with the parties that Nurse Mascorro’s statements were inadmissible under
MRE 803A,2 which provides a “tender years” exception for a child’s statement regarding sexual



1
  “A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.”
People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). “A trial court abuses its discretion
when its decision falls outside the range of principled outcomes.” People v Feezel, 486 Mich
184, 192; 783 NW2d 67 (2010) (quotation marks and citation omitted). “Preliminary questions
of law, including whether a rule of evidence or statute precludes admissibility of the evidence,
are reviewed de novo.” Burns, 494 Mich at 110.

2
    MRE 803A provides:
                A statement describing an incident that included a sexual act performed
         with or on the declarant by the defendant or an accomplice is admissible to the
         extent that it corroborates testimony given by the declarant during the same
         proceeding, provided:

                (1) the declarant was under the age of ten when the statement was made;

                 (2) the statement is shown to have been spontaneous and without
         indication of manufacture;

                (3) either the declarant made the statement immediately after the incident
         or any delay is excusable as having been caused by fear or other equally effective
         circumstance; and

                 (4) the statement is introduced through the testimony of someone other
         than the declarant.

                If the declarant made more than one corroborative statement about the
         incident, only the first is admissible under this rule.



                                                -2-
assault. The rule requires that the statement must be spontaneous and that the prosecution must
provide notice of its intent to introduce the evidence at trial. MRE 803A(2) & (4). Here, the
victim made the statement to Nurse Mascorro in response to direct questions about the alleged
sexual abuse by defendant. Additionally, there is no evidence in the record that the prosecution
provided defendant with a notice of intent to offer Nurse Mascorro’s testimony under this rule.

        However, we conclude that the statements were admissible under MRE 803(4).3
“Statements made for the purpose of medical treatment are admissible pursuant to MRE 803(4) if
they were reasonably necessary for diagnosis and treatment and if the declarant had a self-
interested motivation to be truthful in order to receive proper medical care.” People v Mahone,
294 Mich App 208, 214-215; 816 NW2d 436 (2011).4

        As a general rule, identification of a victim’s assailant is not reasonably necessary for
diagnosis and treatment. People v Lalone, 432 Mich 103; 437 NW2d 611 (1989). In that case,
the Supreme Court noted that “[i]t has long been the rule that the declarant’s naming of the
person responsible for their condition may not be admitted pursuant to the hearsay exception
described in MRE 803(4),” and it excluded such statements made to a psychologist on the
grounds that the identification of a perpetrator went beyond the rules allowed under the hearsay
exception to describe the “general character of the cause or external source thereof.” Id. at 110.
However, in People v Meeboer (After Remand), 439 Mich 310, 324-326; 484 NW2d 621 (1992),
the Supreme Court modified Lalone insofar as it relates to child victims of sexual abuse. It noted
that in such cases, identification of the perpetrator is generally relevant both to treating the
child’s psychological injuries and to assuring the child’s safety which is part of the treatment. Id.
at 329-330.




                 A statement may not be admitted under this rule unless the proponent of
         the statement makes known to the adverse party the intent to offer the statement,
         and the particulars of the statement, sufficiently in advance of the trial or hearing
         to provide the adverse party with a fair opportunity to prepare to meet the
         statement.

                 This rule applies in criminal and delinquency proceedings only.
3
    MRE 803(4) provides that the following statements are not hearsay:
                 (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.
4
  Where the trial court reaches the right result, albeit for the wrong reason, this Court will not
reverse. Zimmerman v Owens, 221 Mich App 259, 264; 561 NW2d 475 (1997).


                                                 -3-
       Meeboer did not, however, expand MRE 803(4) to all such identifications by a child
because it recognized that a child may not understand the need to be truthful in the medical
treatment setting which is the underlying basis for the hearsay exception. The Court therefore
held that a child’s statement must also be found trustworthy to be admitted under MRE 803(4).
Meeboer, 439 Mich at 324-326. The totality of the circumstances must be considered when
determining trustworthiness. Id. at 324-325. Some of the factors to be considered include:

       (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. [Meeboer, 439 Mich at 3240325.]

        In this case, there was sufficient evidence of trustworthiness to allow admission of the
statements. The victim’s statements were corroborated by her own testimony at trial, in her
statements to her parents, and in the recordings recorded from the hidden camera in the
bathroom. The victim was six years old at the time of the sexual abuse, and she utilized child-
like terminology to describe her private area as “no-no.” The victim could not have mistaken
defendant’s identity because he had been at her home as her babysitter. The victim also had no
apparent motivation to lie. Moreover, the examination, which was initiated by the victim’s
mother after she viewed the contents of the hidden camera, was conducted almost a month after
the victim revealed the sexual abuse to her parents. Nurse Mascorro testified that the purpose of
the examination was for diagnosis and treatment of the victim. Accordingly, based on the totality
of the circumstances, the statements made by the victim to Nurse Mascorro appear to be
trustworthy, and the testimony is admissible hearsay under MRE 803(4). Thus, Nurse
Mascorro’s testimony was properly admitted by the trial court as a hearsay exception, and the
outcome at trial would have not been different if the trial court admitted the testimony under this
hearsay exception. People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999).

                                 B. OTHER-ACTS EVIDENCE




                                                -4-
      Defendant next argues that the trial court erred by admitting other-acts evidence under
MCL 768.27a because it was unfairly prejudicial and should have been excluded under MRE
403. We disagree.5

       MCL 768.27a states, in pertinent part:

               (1) Notwithstanding section 27, in a criminal case in which the defendant
       is accused of committing a listed offense against a minor, evidence that the
       defendant committed another listed offense against a minor is admissible and may
       be considered for its bearing on any matter to which it is relevant. If the
       prosecuting attorney intends to offer evidence under this section, the prosecuting
       attorney shall disclose the evidence to the defendant at least 15 days before the
       scheduled date of trial or at a later time as allowed by the court for good cause
       shown, including the statements of witnesses or a summary of the substance of
       any testimony that is expected to be offered.

        Evidence introduced at trial must be relevant, meaning 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,” in order to be admissible. MRE 401; MRE
402. “Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” MRE 403. “Unfair prejudice may exist where there is a danger that the evidence will
be given undue or preemptive weight by the jury or where it would be inequitable to allow use of
the evidence.” People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).

        During trial, the trial court admitted the testimony of defendant’s 20-year-old biological
daughter who testified that defendant sexually assaulted her when she was five or six years old.
Specifically, she testified that on one occasion, defendant asked her if she wanted a sucker, and
that when she said yes, he blindfolded her and put his penis in her mouth. On another occasion,
she remembered that when defendant was starting a bath for her, she was bleeding but could not
recall why. The statute, MCL 768.27a, “establish[ed] an exception to MRE 404(b) in cases
involving a charge of sexual misconduct against a minor.” People v Watkins, 491 Mich 450,
471; 818 NW2d 296 (2012). As we have previously noted:



5
  “This Court reviews a trial court’s evidentiary ruling for an abuse of discretion.” People v
Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). “When the trial court selects one of
these principled outcomes, the trial court has not abused its discretion and, thus, it is proper for
the reviewing court to defer to the trial court’s judgment.” Id. (quotation marks and citation
omitted). The effect of an evidentiary error is “evaluated by assessing it in the context of the
untainted evidence to determine whether it is more probable than not that a different outcome
would have resulted without the error.” Lukity, 460 Mich at 495. Preliminary questions of law,
including whether a rule of evidence or statute precludes admissibility of the evidence, are
reviewed de novo. Id. at 488.


                                                -5-
              When a defendant is charged with a sexual offense against a minor, MCL
       768.27a allows prosecutors to introduce evidence of a defendant’s uncharged
       sexual offenses against minors without having to justify their admissibility under
       MRE 404(b). In many cases, it allows evidence that previously would have been
       inadmissible, because it allows what may have been categorized as propensity
       evidence to be admitted in this limited context. . . . [People v Pattison, 276 Mich
       App 613, 618-619; 741 NW2d 558 (2007).]

       Therefore, MCL 768.27a supersedes MRE 404(b). Accordingly, in this case, defendant’s
biological daughter’s testimony about defendant’s prior uncharged sexual offenses, when she
was a minor, was admissible for any relevant purpose. MCL 768.27a. These two incidents were
relevant to demonstrate that defendant had committed similar sexual behavior in the past against
a minor of the same age, and thus, likely sexually assaulted the victim in this case. Pattison, 276
Mich App at 618-619.

        This other-acts evidence is still subject to MRE 403. Watkins, 491 Mich at 496. But in
this case, the evidence was not unfairly prejudicial because the evidence supported the victim’s
credibility and presented circumstances similar to those underlying the charged offense. Id. at
487 (holding that “other-acts evidence admissible under MCL 768.27a may not be excluded
under MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity
inference”). These incidents, including the current case, involved defendant’s sexual contact
with a six-year-old girl in a bathroom. The fact that defendant’s charged and uncharged acts
involved sexual conduct committed against minors of the same age, who were close to
defendant, increased the probative value of the other-acts evidence. Further, even though
defendant points out that the other acts occurred over 15 years ago, “[t]he remoteness of the
other act[s] affects the weight of the evidence rather than its admissibility.” People v Brown, 294
Mich App 377, 387; 811 NW2d 531 (2011). Thus, the other-acts evidence tended to show
defendant’s common scheme or plan as well as his identity as the perpetrator.

        The trial court also ensured that the jury properly utilized this other-acts evidence by
instructing the jury that defendant was not on trial for the uncharged act; rather, that they may
only consider the evidence if they find that defendant committed the sexual acts in the present
case. Therefore, the instruction helped reduce any unfair prejudice, and the probative value of
the evidence was not substantially outweighed by the danger of unfair prejudice. MRE 403;
Blackston, 481 Mich at 462. Accordingly, the trial court did not abuse its discretion by admitting
other-acts evidence under MCL 768.27a, and defendant is not entitled to relief.

                                        C. SENTENCING

       Defendant next argues that the sentence imposed by the trial court was unreasonable and
disproportionate and that he is entitled to resentencing.6



6
 “A sentence that departs from the applicable guidelines range will be reviewed by an appellate
court for reasonableness.” People v Lockridge, 498 Mich 358, 391-392; 870 NW2d 502 (2015).


                                                -6-
        In People v Lockridge, 498 Mich 358, 387-389; 870 NW2d 502 (2015), the Michigan
Supreme Court held Michigan’s mandatory sentencing guidelines unconstitutional because they
allowed defendant’s minimum sentences to be increased based on facts found by a judge rather
than by a jury beyond a reasonable doubt, as the Sixth Amendment requires. Accordingly,
sentencing guidelines are now considered advisory, not mandatory, in determining a defendant’s
sentence, and departures from the sentencing guidelines are to be reviewed on appeal for
reasonableness. Id. at 391-392. When reviewing for reasonableness, this Court follows the
principles set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), assessing whether
the sentence given is proportionate to the offender and to the seriousness of the crime.
Steanhouse, 500 Mich at 476-477. Additional factors considered by Michigan courts under the
proportionality standard include:

       (1) the seriousness of the offense; (2) factors that were inadequately considered by
       the guidelines; and (3) factors not considered by the guidelines, such as the
       relationship between the victim and the aggressor, the defendant’s misconduct
       while in custody, the defendant’s expressions of remorse, and the defendant’s
       potential for rehabilitation. [People v Steanhouse (On Remand), ___ Mich App
       ___, ___; ___ NW2d ___ (2017); slip op at 3.]

“[A] departure sentence may be imposed when the trial court determines that ‘the recommended
range under the guidelines is disproportionate, in either direction.” Steanhouse (On Remand),
___ Mich App at ___; slip op at 3. “An appellate court must evaluate whether reasons exist to
depart from the sentencing guidelines and whether the extent of the departure can satisfy the
principle of proportionality.” Id. “The first inquiry in our reasonableness review is whether
there were ‘circumstances that are not adequately embodied within the variables used to score
the guidelines.’ ” Id. citing Milbourn, 435 Mich at 659-600.

       Defendant was convicted of CSC-II, MCL 750.520c(1)(a), which is a Class C felony.
MCL 777.16y. After the trial court scored the sentencing guidelines for the CSC-II offense,
defendant had a prior record variable (PRV) score of 5 and offense variable (OV) score of 45.
These scores placed defendant in PRV level B and OV level IV. The minimum sentence range
was 19 to 38 months’ imprisonment. MCL 777.64. The trial court sentenced defendant to a term
of 84 to 180 months’ imprisonment for the CSC-II conviction, an upward departure from the
sentencing guidelines range.

       Defendant’s minimum sentencing guidelines range was 19 to 38 months’ imprisonment,
but defendant was sentenced to a minimum term of 84 months’ imprisonment, a departure of 46
months over the maximum minimum sentence of 38 months. This is more than a 100% increase


“[T]he standard of review to be applied by appellate courts reviewing a sentence for
reasonableness on appeal is abuse of discretion.” People v Steanhouse, 500 Mich 453, 471; 902
NW2d 327 (2017). In determining whether a trial court abused its discretion by unreasonably
departing from the sentencing guidelines, we review whether the court conformed to the
principle of proportionality set forth in People v Milbourn, 435 Mich 630, 461 NW2d 1(1990).
Steanhouse, 500 Mich at 476-477.


                                               -7-
over the highest possible minimum sentence within the guidelines. At sentencing, the trial court
explained its deviation from the guidelines as follows:

       In this case, the Court is going to impose a sentence in excess of the guidelines.
       The Court is going to do this because—and the Court imposes this—the Court
       recognizes that the guidelines are only advisory. The Court does not feel bound
       by the guidelines. But the purpose of this sentence above the guidelines is that we
       had a very vulnerable and extremely young child in this case, there was a position
       of trust that was repeatedly violated between the Defendant and the child, that
       there were multiple incidences of preying on this child sexually, there was the
       infliction of pain, there is the harm to the family that resulted from this behavior,
       not only psychological, but, primarily—but also, financial harm. And more
       importantly than any of these factors . . . Defendant does present a danger to
       young children because there is evidence that he preyed on his own child, and this
       is a continuing pattern of behavior which is not likely to change, in my judgment.

        The trial court’s reasons for the more than 100% upward departure from the top of the
guidelines references, almost exclusively, factors considered in the charge and the sentencing
guidelines. The age of the victim is a factor in the charge and conviction of CSC II, a fifteen-
year felony, which elevates what could have otherwise been charged as CSC IV, a two-year
misdemeanor because the victim is “under 13 years of age.” The vulnerability of the child is
accounted for in OV 10 for which defendant was scored 10 points and OV 4 for which defendant
was scored 10 points for psychological injury. That there were multiple incidences of abuse was
scored in OV 13, which addresses continuing pattern of criminal behavior. Notably, the trial
court did not explain the basis for its conclusion that the sentencing guidelines’ consideration of
these factors was inadequate in this case.7

        The trial court did reference two significant factors not fully considered by the sentencing
guidelines. First, though defendant was scored 10 points under OV 10 due to the victim’s age,
he could also have been scored under that variable for abusing his authority status and because
the abuse occurred within a domestic relationship. Had he been scored an additional 10 points,
this would have placed defendant in a different grid. However, even if defendant had been
placed in the highest OV level, his guideline range would have been 29-57 months, much less
than the sentence he received. Second, the trial court considered defendant’s prior history of
similar behavior involving his biological daughter years ago. From this, the trial court concluded
that defendant lacked rehabilitative potential because his behavior of sexually preying on
children had continued. We agree that this is a relevant sentencing consideration that the



7
 “To conduct such an analysis, we must compare the stated reasons for exceeding the guidelines
with the scored offense variables (OVs) to determine whether those reasons were already
encompassed within the guidelines.” Steanhouse (On Remand), ___ Mich App at __; slip op at
3. “Specifically, we must determine whether the trial court abused its discretion by imposing a
departure sentence without articulating whether the guidelines adequately took into account the
conduct alleged to support the particular departure imposed.” Id.


                                                -8-
guidelines did not account for and we agree that some departure from the guidelines was
properly based upon it. However, even if defendant had been charged as a second habitual
offender, his guideline range would have been 19-47 months. Indeed, if defendant had been
considered a fourth habitual offender, his guideline range would have been 19-76 months.

       In sum, while the trial court did not abuse its discretion in concluding that the
recommended guideline range was disproportionately low, defendant is entitled to resentencing
because “the extent of the departure [did not] satisfy the principle of proportionality” for the
reasons just reviewed. Steanhouse (On Remand), ___ Mich App at ___; slip op at 3.

       Defendant’s conviction is affirmed. His sentence is vacated and the matter remanded for
resentencing. We do not retain jurisdiction.



                                                           /s/ Jane E. Markey
                                                           /s/ Douglas B. Shapiro
                                                           /s/ Michael F. Gadola




                                              -9-
