                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 3, 2019
               Plaintiff-Appellee,

v                                                                    No. 338586
                                                                     Eaton Circuit Court
ERNESTO EVARISTO URIBE,                                              LC No. 13-020404-FC

               Defendant-Appellant.


Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.

GADOLA, J. (dissenting).

       Defendant appeals his convictions and sentences on the ground that the trial court erred in
admitting hearsay testimony from Dr. Stephen Guertin concerning statements made to him by the
victim describing the alleged sexual abuse. The majority affirms, concluding that the hearsay
testimony was admissible under the hearsay exception set forth under MRE 803(4) for
statements made for the purpose of obtaining medical treatment. I respectfully dissent from the
majority opinion and would reverse and remand for a new trial.

        This Court reviews a trial court’s decision regarding the admission of evidence for an
abuse of discretion. People v Katt, 248 Mich App 282, 288; 639 NW2d 815 (2001). An abuse
of discretion exists “only when an unprejudiced person, considering the facts on which the trial
court acted, would say there was no justification or excuse for the ruling made.” People v Rice
(On Remand), 235 Mich App 429, 439; 597 NW2d 843 (1999).

       Hearsay statements are generally inadmissible as evidence unless authorized under a
hearsay exception. MRE 802. The hearsay exception set forth under MRE 803(4) permits the
admission of the following statements:

       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.

Under this exception, out-of-court statements made for the purpose of obtaining medical
treatment are admissible if those statements “were reasonably necessary for diagnosis and
treatment” and “if the declarant had a self-interested motivation to be truthful in order to receive

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proper medical care.” People v Mahone, 294 Mich App 208, 214-215; 816 NW2d 436 (2011).
In cases of sexual assault, because injuries such as sexually transmitted disease and
psychological trauma may be latent, a victim’s statements regarding her complete history and the
circumstances of the assault are to be considered statements made for the purpose of medical
treatment. Id. at 215.

        Under Michigan caselaw, however, MRE 803(4) does not apply to statements made
during a medical referral sought merely to obtain evidence of criminal conduct. See People v
Shaw, 315 Mich App 668, 675; 892 NW2d 15 (2016); see also People v Kosters, 175 Mich App
748, 771; 438 NW2d 651 (1989) (MCDONALD, J., dissenting) (agreeing with the majority’s
conclusion that hearsay statements did not fall within the scope of MRE 803(4) because the
purpose of the medical referral was to gather evidence of criminal conduct rather than obtain a
diagnosis or treatment). This Court’s reasoning in Shaw is instructive. In Shaw, seven years
after the sexual abuse allegedly occurred, the police referred the victim for a medical
examination – incidentally, with Dr. Guertin – in connection with the criminal investigation.
Shaw, 315 Mich App at 675. This Court held that Dr. Guertin’s testimony regarding the victim’s
statements made during the exam were inadmissible because they were not made for the purpose
of medical treatment. Id. Specifically, the Court reasoned:

       First, the examination by Guertin did not occur until seven years after the last
       alleged instance of abuse, thereby minimizing the likelihood that the complainant
       required treatment. Second, the complainant did not seek out Guertin for
       gynecological services. Rather, she was specifically referred to Guertin by the
       police in conjunction with the police investigation into the allegations of abuse by
       defendant. And during the seven years since the last alleged incident of abuse,
       she had seen a different physician, who was not called as a witness, for
       gynecological care. [Id.]

        The factual circumstances of the present case are virtually identical to those at issue in
Shaw. Here, the victim was referred to Dr. Guertin by the police in connection with their
investigation of alleged sexual abuse. Dr. Guertin, in turn, directed his examination report,
which lacked any formal diagnosis, back to the police. Dr. Guertin was not the victim’s regular
family physician; rather, Dr. David Luginbill, who also testified at trial, had treated the victim
for her entire life. The victim alleges that the abuse first occurred in 2004, when she was five
years old, and continued until 2008, when she was nine years old. Dr. Guertin examined the
victim in October 2012, eight years after the alleged abuse began and four years after the victim
reports the last instance occurred. Because of the amount of time that had passed between the
alleged abuse and the victim’s medical exam, Dr. Guertin’s physical findings were fairly normal,
and all appreciable findings could be readily attributed to an ordinary cause, i.e., one other than
sexual abuse. Although Dr. Guertin tested the victim for sexually transmitted diseases, he did
not suggest any further treatment, including psychological treatment. In fact, Dr. Guertin
admitted that he should have referred the victim for psychological treatment but neglected to do
so.

       The exception under MRE 803(4) permits the admission of hearsay statements only when
those statements are made for the purpose of either medical treatment or medical diagnosis in
connection with treatment. This exception is premised on the notion that such statements are

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inherently trustworthy because it is in the declarant’s interest to be truthful in order to receive
appropriate medical care. Mahone, 294 Mich App at 214-215. In the present case, however, the
victim was examined by Dr. Guertin not for the purpose of medical treatment but rather at the
behest of the police in furtherance of the criminal investigation, thereby undercutting the basis
for the hearsay exception. This conclusion is further supported by the fact that Dr. Guertin found
no medical “injury,”1 rendered no treatment, and made no formal diagnosis. Accordingly, it
cannot be said that the victim’s statements to Dr. Guertin were inherently reliable. As in Shaw,
these circumstances indicate that the victim’s statements to Dr. Guertin were made for the
purpose of obtaining evidence rather than medical treatment.

        The majority distinguishes the present case from Shaw on the ground that Dr. Luginbill
did not historically provide the same type of treatment as Dr. Guertin, as Dr. Luginbill never
tested the victim for sexually transmitted diseases or performed a gynecological exam.
However, had Dr. Luginbill been made aware of any sexual abuse or activity, he likely would
have provided such treatment. The majority also distinguishes Shaw on the ground that, at the
time Dr. Guertin, a pediatrician, performed the medical examination in that case, the victim was
a 23-year-old adult woman. See Shaw, 315 Mich App at 689 (GLEICHER, J., concurring). In
contrast, the victim in the present case was a 13-year-old minor at the time of the medical
examination, rendering consultation with a pediatrician appropriate. Though certainly a factual
distinction between the cases, the majority in Shaw did not rely on Dr. Guertin’s specialty in
pediatric care as a basis for concluding that the referral was not for the purpose of medical
treatment. Rather, the factors discussed above served as a sufficient basis justifying the Court’s
conclusion. Accordingly, I would find that the rationale and outcome reached in Shaw are
controlling under the present circumstances, thereby rendering Dr. Guertin’s testimony regarding
the victim’s statements inadmissible hearsay.

        Having determined that Dr. Guertin’s testimony concerning the victim’s statements
amounted to inadmissible hearsay, I would further hold that the trial court’s admission of this
testimony constitutes harmful error requiring a new trial. Under MCL 769.26, the improper
admission or rejection of evidence is grounds for granting a new trial or setting aside a verdict
only when failure to do so would result in a miscarriage of justice. See also MCR 6.431.
Reversal of a conviction is thus appropriate if the error undermined the reliability of the verdict
such that “it is more probable than not that a different outcome would have resulted without the
error.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). The defendant bears
the burden of showing that the error resulted in a miscarriage of justice, People v Hawthorne,
474 Mich 174, 181; 713 NW2d 724 (2006), and “[i]n making this determination, the reviewing




1
  Dr. Guertin testified that he found no medical injury because the last alleged instance of sexual
abuse occurred four years before he examined the victim. However, were MRE 803(4) broad
enough to permit admission of the hearsay statements under the circumstances of the present
case, the prosecution would presumably be able to introduce a victim’s hearsay statements
simply by referring the victim to an expert physician, perhaps even in cases not involving sexual
assault.


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court should focus on the nature of the error in light of the weight and strength of the untainted
evidence.” People v Elston, 462 Mich 751, 766; 614 NW2d 595 (2000).

        Given the factual similarities between the two cases, this Court’s analysis in Shaw is
again enlightening with respect to whether the evidentiary error affected the outcome of trial.2 In
Shaw, as a result of the lack of objective evidence, the case “turned largely on the [victim’s]
credibility.” Shaw, 315 Mich App at 677. The victim’s narrative regarding the alleged abuse
was repeated by multiple other witnesses, including Dr. Guertin. Id. The Court found that, by
emphasizing the consistency of the victim’s allegations by reference to this hearsay, the
prosecutor had improperly bolstered the victim’s credibility. Id. With respect to Dr. Guertin’s
and the investigating detective’s testimony, the Court further found that “the hearsay was offered
with what amounted to an official stamp of approval.” Id. Although Dr. Guertin testified that
the victim’s medical history was consistent with sexual abuse, the Court noted that his physical
findings were “ambiguous at best,” as explanations other than sexual abuse were equally
plausible. Id. at 678. Because Dr. Guertin’s opinion was therefore premised entirely on the
victim’s hearsay statements, the Court concluded that the testimony was significantly prejudicial
such that it affected the outcome of the trial. Id.

        In the absence of physical evidence, significant circumstantial evidence, or witnesses to
the alleged abuse, the outcome of the present case was similarly contingent on the victim’s
credibility. During trial, Dr. Guertin recounted his examination of the victim and her description
to him of the alleged sexual abuse, statements that were consistent with the victim’s testimony at
trial. The jury thus heard the victim’s version of events twice, once through the victim’s own
testimony and once through the testimony of an examining physician. Indeed, in the absence of
any significant physical findings, treatment, or diagnosis, it would appear that the prosecution’s
sole purpose in presenting Dr. Guertin’s testimony was to recount and bolster the victim’s
hearsay statements. In cases highly dependent on credibility assessments, “an expert will often
represent [to the jury] the only seemingly objective source, offering it a much sought-after hook
on which to hang its hat.” People v Beckley, 434 Mich 691, 722; 456 NW2d 391 (1990). Thus,
Dr. Guertin’s mere repetition of the victim’s account gave the appearance of an official or
objective endorsement of her allegations, thereby tipping the scales in favor of the prosecution.

        This error was further compounded by Dr. Guertin’s opinion testimony that, based on the
victim’s history, he believed she was sexually abused. As in Shaw, Dr. Guertin’s conclusion was
premised exclusively on the victim’s self-reported account of the events, given that his findings
upon physical examination were ambiguous. Indeed, he admitted that his physical examination
was fairly normal, noting no findings that were unequivocally indicative of sexual abuse. Yet,
Dr. Guertin not only concluded that a sexual assault had occurred but also necessarily suggested
that the victim’s statements were credible. Michigan law is clear that an expert may not vouch



2
  In Shaw, the Court evaluated defendant’s claim that counsel provided ineffective assistance by
failing to object to several witnesses’ hearsay testimony. Shaw, 315 Mich at 672. However, as
in the present case, the ultimate inquiry contemplated whether the outcome of the case would
have differed had the objectionable testimony been excluded. Id. at 678.


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for the veracity of a victim. People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995).
Further, an examining physician may not give an opinion on whether a sexual assault has
occurred unless that opinion is based on physical findings and medical history, as opposed to the
physician’s opinion that the victim was being truthful. People v Smith, 425 Mich 98, 112-113;
387 NW2d 814 (1986).

        Although the trial court delivered a jury instruction striking that portion of Dr. Guertin’s
testimony concluding that the victim had been sexually assaulted, this limiting instruction did not
address Dr. Guertin’s testimony repeating the victim’s description of the alleged abuse. Nor did
the limiting instruction expressly clarify that no part of Dr. Guertin’s testimony should be
considered as evidence that the victim’s allegations were credible. The prejudicial effect of this
testimony therefore was not adequately cured through the limiting instruction. In a case in which
the outcome hinged almost entirely on the victim’s credibility, Dr. Guertin’s mere repetition of
her account as fact more likely than not affected the outcome of trial. Coupled with his
endorsement of the victim’s credibility, this error became even more highly prejudicial, resulting
in a miscarriage of justice.

        The majority holds that defense counsel’s questioning “opened the door” to the
possibility that Dr. Guertin would respond in a negative or damaging way. See Beckley, 434
Mich at 731 (“Defendant cannot now complain that the expert’s testimony served to vouch for
the complainant’s credibility when he allowed and in fact drew out the response.”). I disagree,
and would find that Dr. Guertin provided unresponsive, narrative answers that went beyond the
scope of defense counsel’s questioning. Defense counsel questioned Dr. Guertin regarding the
lack of diagnosis in his examination report in an effort to underscore that he was not providing
medical treatment. Dr. Guertin’s responses went beyond the scope of defense counsel’s
questions, and at times he interrupted defense counsel before a question was asked:

              Defense Counsel: Dr. Guertin, if this report was then provided to a
       psychologist or a social worker, they’re reading it – another professional, they’re
       reading it, and they’re like where’s the diagnosis.

              Dr. Guertin: Well, there’s not a statement there that says “diagnosis:
       sexual abuse.” If you read this report and read the content of this report and what
       we discussed, in my opinion there would be no question that she’s been sexually
       abused. And I feel that way now, and I felt that way then.

              Defense Counsel: There’s no specific diagnosis victim of sexual abuse.
       But you never say anything in your report, victim of sexual abuse. Despite a
       diagnosis, you say nothing in your report that she’s a victim of sexual abuse.
       Now what’s your –

              Dr. Guertin: The entire report tends to say that she’s a victim of sexual
       abuse. In fact, it says how it happened. It says the period of years in which it
       happened, gives the implication of almost how many times it happened. . . .

              It is true that there’s not a line that says “diagnosis: sexual abuse.” But if
       you are asking my opinion, and if you read this, I think it should be clear that this

                                                -5-
       document supports that she was sexually abused. And based on her history to me,
       I believe that she was.

Dr. Guertin’s testimony was therefore unresponsive to the questions, which simply sought to
confirm that the report did not make a diagnosis of sexual abuse, but did not call for speculation
regarding whether the victim’s history was credible or that sexual abuse had occurred.

        Accordingly, I would find that the trial court’s admission of Dr. Guertin’s testimony
regarding statements made to him by the victim constitutes reversible error warranting remand
for a new trial.



                                                            /s/ Michael F. Gadola




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