                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 20, 2016
               Plaintiff-Appellee,

v                                                                    No. 328801
                                                                     Muskegon Circuit Court
MATTHEW JOSEPH BUSSING,                                              LC No. 15-065877-FC

               Defendant-Appellant.


Before: WILDER, P.J., and MURPHY and O’BRIEN, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of first-degree child abuse, MCL
750.136b(2). He was sentenced as a fourth-offense habitual offender, MCL 769.12, to 20 to 30
years’ imprisonment. Defendant appeals as of right, and we affirm.

        Defendant resided with the mother of the one-year-old victim in this case; he is not the
child’s father. There is no dispute that defendant was the only person with the victim when she
incurred the injuries that formed the basis of the child-abuse prosecution. Defendant claimed
that the victim, while in his care, fell from a chair, that he lunged to catch her but was
unsuccessful, and that he then tumbled and landed on top of the child, with the child hitting a
cupboard and wood floor in the process. The prosecution’s theory was that the victim’s injuries
were the result of physical abuse by defendant. There was evidence that defendant acted in an
erratic and belligerent manner after the victim sustained her injuries, engaging in delaying tactics
and evasive conduct that precluded the child’s mother and a babysitter from seeing the victim for
a period of time. Defendant did not take the victim for medical care, claiming that she was okay
in his view. When the victim’s mother was finally handed the child, after the babysitter’s
husband had first coaxed defendant into turning over the victim,1 the mother noticed that the
child had an atypical distant stare and had red marks and bruises on her right arm, lips, tongue,
neck, cheeks, ears, and the top of her head. An ambulance was immediately called, and the child
was taken to the emergency room at Hackley Hospital, where doctors recommended that the



1
 Defendant subsequently punched the babysitter’s husband in the face after a verbal altercation
and then sped off in his pickup truck.


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victim be transferred to Helen DeVos Children’s Hospital because the child had bleeding around
her brain.

        The doctor who treated the victim in the emergency room at Hackley testified that the
child had bruises on her tongue, both cheeks, both ears, the anterior portion of the neck, the
lateral neck, and her right arm. According to the doctor, a CAT scan revealed a subdural
hematoma, with evidence of old and fresh bleeding around the brain. During the prosecution’s
case-in-chief, it presented testimony by Dr. N. Debra Simms, a physician who was board
certified in general and child abuse pediatrics and was one of only nine board-certified child
abuse experts in Michigan. One-hundred percent of her practice was devoted to the evaluation of
possible child maltreatment, and she was consulted in this case, examining and evaluating the
child for 4-1/2 hours. Dr. Simms was recognized, without objection, as an expert in pediatrics
and child abuse. She described the following injuries to the victim: numerous bruises, including
multiple linear bruises on various planes, about the neck, face, and head; bruises to the tongue,
ears, and right shoulder and arm; and subdural hematoma, with extensive bleeding in different
areas of the brain. When asked whether defendant’s account of events was consistent with the
child’s injuries, Dr. Simms answered in the negative, explaining that the child “had too many
injuries in too many planes of the body.” Dr. Simms elaborated:

               [W]hen we’re talking about injuries and if we talked about a child falling
       and hitting then you would expect a single plane of injury. Then if you talked
       about somebody falling and landing on top of them or whatever then you’re still
       talking a maximum of two planes of injury. And in [the victim’s] case, as you
       saw, she had so many planes of injury that a unipolar, one, or bipolar impact
       would not explain the full totality of her injuries.

         Dr. Simms opined that the cause of the victim’s injuries was pediatric child abuse. At
this stage of the trial, defendant had not testified, and his account of what had transpired was in
abbreviated form, coming from a text message that he had sent the child’s mother and statements
to police. Defendant then took the stand and explained in greater detail his version of events.
The prosecution proceeded to call Dr. Simms back to the stand as a rebuttal witness in order to
address some of the specifics provided by defendant. Dr. Simms testified very briefly on
rebuttal, indicating that defendant’s description of events still did not account for all of the
victim’s injuries. According to Dr. Simms, the pattern, location, extent, and nature of the
injuries continued to point to child abuse and were inconsistent with defendant’s assertion and
testimony of a “fall.” As part of her rebuttal testimony, Dr. Simms did maintain that she
questioned the “physics” of defendant’s account, finding it difficult to understand how the child
may have hit a cupboard if defendant was over the top of the child as they fell to the floor.
Defense counsel objected that Dr. Simms was not qualified to explain the physics of a fall, and
the trial court overruled the objection.

       On appeal, defendant argues that the trial court abused its discretion by permitting Dr.
Simms to testify on rebuttal with respect to biomechanical engineering issues, where the
testimony did not satisfy the foundational requirements of MRE 702, and where it had a
tendency to confuse and mislead the jury and was unfairly prejudicial, MRE 403. We review for
an abuse of discretion a trial court’s decision to admit evidence, including expert witness
testimony. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999); People v Matuszak, 263

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Mich App 42, 47; 687 NW2d 342 (2004). An abuse of discretion occurs when a court selects an
outcome that falls outside the range of reasonable and principled outcomes. People v Babcock,
469 Mich 247, 269; 666 NW2d 231 (2003). “When the decision regarding the admission of
evidence involves a preliminary question of law, such as whether a statute or rule of evidence
precludes admissibility of the evidence, the issue is reviewed de novo.” People v Washington,
468 Mich 667, 670-671; 664 NW2d 203 (2003).

       The admissibility of expert testimony is governed by 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,
       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.

       Expert testimony is limited to opinions that fall within the scope of the witness’s
knowledge, skill, experience, training, or education, and an expert is not permitted to opine on
matters outside of his or her area of expertise. People v Unger, 278 Mich App 210, 251; 749
NW2d 272 (2008). MRE 403 provides:

               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.

        To the extent that defendant is assailing Dr. Simms’s rebuttal testimony because of the
references to linear bruises and planes of injury, Dr. Simms had already testified extensively in
regard to those matters in the prosecution’s case-in-chief, which testimony was not challenged
below and is not being challenged on appeal. Defendant has never contended that Dr. Simms
was unqualified relative to her testimony and opinions elicited when she originally took the
stand. Moreover, the testimony concerning linear bruises and planes of injury simply pertained
to patterns, features, types, and locations of injury and possible related causes, and the testimony
was certainly within the knowledge, experience, and training of a physician board-certified in
child abuse, which field focuses on identifying injuries to children and their sources. Dr. Simms
indicated on rebuttal that the child’s injuries were not consistent with defendant’s trial testimony
concerning the nature of the alleged fall. We find no abuse of discretion in allowing this
testimony.

        Defendant primarily complains about the rebuttal testimony touching on physics, which
formed the basis of an objection at trial. The record reflects that Dr. Simms merely called into
question defendant’s testimony that the child struck a cupboard during the purported fall as
described by defendant. Dr. Simms did not understand how the child would have hit or been
exposed to the cupboard during the fall, where defendant explained that his body was on top of
and essentially covered the child as they fell to the floor. We cannot agree with defendant that
this testimony concerned biomechanical engineering, such that expertise in that field was

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necessary. Rather, Dr. Simms’s testimony was more in the nature of a simple observation that
any lay person could have reasonably and competently made. Additionally, Dr. Simms testified
that child abuse experts “do a lot of looking at falls and fall mechanisms,” and we see no reason
to conclude that Dr. Simms was unqualified to question defendant’s testimony about the child
supposedly hitting the cupboard. And, under these circumstances, Dr. Simms’s rebuttal
testimony was not substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, MRE 403. There was no abuse of discretion when the trial court
overruled defense counsel’s objection and allowed the rebuttal testimony.

        Furthermore, Dr. Simms indicated that defendant’s testimony, which included the claim
about the cupboard, still did not explain all of the child’s injuries. And Dr. Simms’s earlier
unchallenged testimony revealed a strong case of child abuse. Taking these points into
consideration in conjunction with defendant’s unusual behavior after the child sustained her
injuries and the disturbing photographs of the injuries, we conclude that any presumed error in
regard to Dr. Simms’s brief rebuttal testimony was entirely harmless. MCL 769.26; Lukity, 460
Mich at 495. We are quite confident that absent Dr. Simms’s testimony on rebuttal that
defendant would nonetheless have been convicted. Reversal is unwarranted.

       Affirmed.



                                                           /s/ Kurtis T. Wilder
                                                           /s/ William B. Murphy
                                                           /s/ Colleen A. O'Brien




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