                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 21, 2014
              Plaintiff-Appellee,

v                                                                  No. 315992
                                                                   Genesee Circuit Court
CURTIS CONWAY BAILEY,                                              LC No. 11-030007-FC

              Defendant-Appellant.


Before: BOONSTRA, P.J., and MARKEY and K. F. KELLY, JJ.

PER CURIAM.

        Defendant, Curtis Conway Bailey, appeals as of right following his jury trial convictions
for three counts of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(a) (sexual
penetration with victim under 13 years of age) and one count of second-degree criminal sexual
conduct (CSC II), MCL 750.520c(1)(a) (sexual contact with victim under 13 years of age).
Defendant was sentenced to 300 to 600 months’ imprisonment for each of the CSC I convictions
and 36 to 180 months’ imprisonment for the CSC II conviction. Finding no errors warranting
reversal, we affirm.

                                       I. BASIC FACTS

        At the time of trial, the complainant was 13 years old. In 2009 and 2010, when the
complainant was 10 years old, she would sometimes stay with her stepfather’s parents. Her
stepfather was defendant’s brother. Defendant had recently moved in with his parents after
having lived in North Carolina for a number of years. The complainant alleged that she would
pretend to be sleeping and defendant would come and pull down her pajama pants and
underwear and touch her vagina. This happened on five or six occasions when she stayed at her
grandmother’s house. There was also an occasion when defendant stayed at the complainant’s
house on the night before a trip to Cedar Point. Defendant, who had been sleeping on the couch,
came into complainant’s bedroom, called his dog off the bed, and proceeded to touch the
complainant again. Defendant also placed the complainant’s hand on his penis and moved it up
and down.

        In May 2010, the complainant left two notes for her health education teacher. In the
notes, the complainant revealed that her uncle had been touching her. Her parents were getting
ready for an extended vacation and the complainant expressed fear at having to stay at her
grandmother’s house. The teacher reported the notes to Children’s Protective Services, who
                                               -1-
ultimately referred the matter to the police. The complainant underwent a forensic interview at
Weiss Advocacy Center. She also underwent two physical examinations at Hurley Medical
Center and McLaren Regional Hospital. The complainant’s hymen had a laceration that was
compatible with sexual abuse.

       At the conclusion of proofs, the jury acquitted defendant of two counts of CSC I and one
count of CSC II, but convicted him of three counts of CSC I and one count of CSC II. He was
sentenced as outlined above. Defendant now appeals as of right.

                            II. SUFFICIENCY OF THE EVIDENCE

       Defendant first argues that there was insufficient evidence of penetration to support his
CSC I convictions.1 We disagree.

        This Court reviews challenges to the sufficiency of the evidence de novo. People v
Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). “In determining whether sufficient
evidence exists to sustain a conviction, [an appellate court] reviews the evidence in the light most
favorable to the prosecution, and considers whether there was sufficient evidence to justify a
rational trier of fact in finding guilt beyond a reasonable doubt.” People v Harris, 495 Mich 120,
126; 845 NW2d 477 (2014).

        MCL 750.520b(1)(a) provides that “[a] person is guilty of criminal sexual conduct in the
first degree if he or she engages in sexual penetration with another person and . . . That other
person is under 13 years of age.” MCL 750.520a(r), defines “sexual penetration” as “sexual
intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any
part of a person’s body or of any object into the genital or anal openings of another person’s
body.” Defendant argues that the evidence was insufficient to prove penetration.

       Defendant argues that the complainant’s testimony demonstrates that she was “unsure”
regarding penetration. The following exchange took place at trial:

              Q. [by the prosecutor] Okay. With what part of his body would he touch
       you with?

               A. His fingers.

               Q. Okay. And what part of your body would he touch?

               A. My vagina.

               Q. Okay. And would that be on top of your pajamas or under – on your
       skin?



1
  Defendant focuses only on penetration as it relates to his CSC I convictions; he does not appear
to contest his CSC II conviction.


                                                -2-
              A. Under, on my skin.

              Q. Uh, would it be on top of your vagina or somewhere else?

              A. I don’t remember exactly.

              Q. Okay. How did it feel to you?

              A. I don’t remember.

              Q. Okay. Did you ever have any pain?

              A. I don’t remember.

              Q. Did he ever put anything inside you?

               A. Not that I can think of. I don’t remember. It was like years ago. I
       don’t remember it that well.

              Q. What do you remember him doing with his fingers?

              A. Feeling me.

              Q. I’m sorry you have to go through this, but tell us how he would feel
       you with his fingers.

              A. I don’t really know how to explain it.

              Q. Do the best you can. You’re doing fine.

              A. I don’t know.

              Q. Did you give a statement to investigators about this?

              A. Yes.

              Q. And did you describe the incident as fingering?

              A. Yes.

The complainant testified that when she stayed the night at her grandmother’s, defendant “would
come in when he thought I was sleeping. He would pull down my pants and he would feel
me . . .” She pointed to a diagram of female genitalia to indicate where she had been touched.
The complainant testified that defendant would “pull my pants down and he would feel me.”
When asked about her denial that defendant put anything inside her, the complainant clarified
that she said defendant did not put anything other than his fingers inside her: “I only remember
saying no to anything other than his fingers. I don’t ever remember saying no to everything.



                                              -3-
        Although the complainant was apparently squeamish and hesitant to offer particulars of
the assault at trial, there was evidence of penetration. The video recording of the complainant’s
June 8, 2010, forensic interview was played for the jury wherein the complainant clearly
explained that defendant “stuck” his fingers inside her and moved his fingers “up and down.”
She knew his fingers were on the inside because she could feel it and sometimes it hurt. To the
extent defendant argues that the complainant was not worthy of belief, this Court will not
interfere with the jury’s role in determining the weight of the evidence or the credibility of the
witnesses. People v Wolfe, 440 Mich 508, 514–515; 489 NW2d 748, amended 441 Mich 1201
(1992. Questions of credibility must be left to the trier of fact. People v Harrison, 283 Mich
App 374, 378; 768 NW2d 98 (2009).

        Defendant also complains that the physical evidence of penetration was “inconclusive.”
However, in a prosecution under MCL 750.520b, the victim’s testimony need not be
corroborated with physical evidence. MCL 750.520h; People v Phelps, 288 Mich App 123, 133;
791 NW2d 732 (2010). Therefore, the complainant’s statements during her forensic interview
and her testimony at trial, standing alone, would have supported defendant’s conviction. In
addition, although defendant focuses on Dr. Gullekson’s acknowledgement that the injury to the
complainant’s hymen may have been caused by something other than digital penetration,
Gullekson made it clear that a lacerated hymen was not the result of normal activity. He testified
that “it would have to be something that actually had a projection that would have made a
forceful entry into that area that I would think could cause injury.” The following exchange took
place:

              Q. [by defense counsel] So all you can say that asked today is you just
       don’t know?

               A. All I can say is there is something in the hymen which is compatible
       with injury, period; that’s all I can say.

               Q. But you could also say it could be other things?

               A. Other things could have caused the injury?

               Q. Right.

               A. That’s where the history is important.

The complainant’s history, coupled with the irregular physical forensic examination, presented
sufficient evidence for a jury to conclude that there was penetration.

                             III. RIGHT TO CONFRONTATION

       Defendant next argues that evidence of the complainant’s Hurley Medical Center records,
which included findings by her pediatrician Dr. Sankaran, should not have been admitted into
evidence because defendant was deprived of the right to confront the witnesses against him. We
disagree.



                                               -4-
        This Court reviews de novo questions of constitutional law. People v Fackelman, 489
Mich 515, 524; 802 NW2d 552 (2011). Defendant did not object to the evidence in the trial
court; therefore his claims of constitutional error are reviewed for plain error affecting the
defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999). “To avoid forfeiture under the plain error rule, three requirements must be met: 1) error
must have occurred, 2) the error was plain, i.e., clear and obvious, 3) and the plain error affected
substantial rights”. Id. at 763. Moreover, “[h]armless error analysis applies to claims concerning
Confrontation Clause errors. But to safeguard the jury trial guarantee, a reviewing court must
conduct a thorough examination of the record in order to evaluate whether it is clear, beyond a
reasonable doubt, that the jury verdict would have been the same absent the error.” People v
Shepherd, 472 Mich 343, 348; 697 NW2d 144 (2005) (internal quotation marks and citations
omitted).

        The Confrontation Clause, US Const, Am VI prohibits testimonial statements by a
witness who does not appear at trial unless the witness is unavailable and the defendant had a
prior opportunity to cross-examine the witness. Crawford v Washington, 541 US 36, 53-54; 124
S Ct 1354; 158 LEd2d 177 (2004). In Melendez–Diaz v Massachusetts, 557 US 305, 324; 129 S
Ct 2527; 174 L Ed 2d 314 (2009), the Supreme Court explained: “Business and public records
are generally admissible absent confrontation not because they qualify under an exception to the
hearsay rules, but because—having been created for the administration of an entity’s affairs and
not for the purpose of establishing or proving some fact at trial—they are not testimonial.”
However, a Confrontation Clause issue may arise “if the regularly conducted business activity is
the production of evidence for use at trial.” Id. at 321.

        Here, the Confrontation Clause applies to the complainant’s medical records because,
although the records do not directly implicate defendant by establishing the identity of the
perpetrator, the findings of the physical examination supported the prosecution’s theory that
defendant had penetrated the complainant’s vagina with his fingers. However, defendant’s
argument is still fatally flawed. The records at issue were signed by Sexual Abuse Nurse
Examiner Sheri Clair. Clair and Dr. Sankaran performed the physical examination together.
Clair testified at trial and was subject to cross-examination. Therefore, defendant’s right to
confront the witness against him was never compromised.

         Moreover, if there was any error in admitting the evidence, the error was harmless. Clair
testified that Hurley’s emergency room did not have a culpascope that would have been
beneficial for the complainant’s forensic examination. Clair further testified that at the time of
the examination, she had not yet received training in pediatric assault. For those reasons, the
complainant was referred to McLaren for a more thorough examination.

        It was McLaren physician Dr. Gullekson who provided precise testimony regarding the
forensic findings. He testified that the complainant’s hymen had “an area of injury that is
something that was irregular, which was approximately at eleven o’clock.” The laceration was
six or seven millimeters in length. There was increased redness. It indicated past injury and
would probably be painful. Gullekson testified that “[d]igital penetration could have produced
that injury” and that the injury was compatible with sexual abuse. On cross-examination,
Gullekson acknowledged that the injury could have occurred as a result of something other than
sexual assault. However, “it would have to be something that actually had a projection that

                                                -5-
would have made a forceful entry into that area that I would think could cause injury.”
Nevertheless, Gullekson “could not by looking at the patient decide how the injury occurred.”

         Defendant believes that Gullekson’s testimony was favorable to defendant and that
Sankaran’s findings that the complainant’s hymen was “missing,” that she had a red and sore
labia majora and that the vaginal vault was looser than she might have expected in an 11 year
old, contradicted Gullekson’s favorable testimony. But that is far from the case. Gullekson
testified that the complainant’s hymen was injured and that the injury was not the result of
normal activity. Instead, the injury was one requiring forceful entry. Gullekson, not Dr.
Sankaran, provided the most damning evidence regarding penetration. Therefore, defendant has
failed to show that the outcome of trial would have been different had the evidence been
excluded.

                       IV. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that trial counsel was ineffective for failing to object to the admission
of the Hurley Medical records that contained Dr. Sankaran’s findings. We disagree.

        There was no Ginther2 hearing on the issue; therefore, the Court’s review is limited to
errors apparent on the record. People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000).

        To prevail on a claim of ineffective assistance of counsel, a defendant must “show that
his attorney’s representation fell below an objective standard of reasonableness and that this was
so prejudicial to him that he was denied a fair trial.” People v Toma, 462 Mich 281, 302; 613
NW2d 694 (2000), citing Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d
674 (1984). Trial counsel’s deficient performance prejudices a defendant when there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 US at 687; People v Vaughn, 491 Mich 642, 669;
821 NW2d 288 (2012). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 US at 600. “Effective assistance of counsel is
presumed, and the defendant bears a heavy burden of proving otherwise.” People v Rodgers,
248 Mich App 702, 714; 645 NW2d 294 (2001). This Court does not substitute its judgment for
that of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with
the benefit of hindsight. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012).
Declining to raise objections can be consistent with trial strategy. People v Unger, 278 Mich
App 210, 242; 749 NW2d 272 (2008).

       As previously discussed, because Clair (who assisted Dr. Sankaran at Hurley) testified at
trial and was subject to cross-examination, defendant’s right to confrontation was not
compromised. As such, defense counsel cannot be ineffective for failing to raise futile or
meritless objections. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).




2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -6-
        Even if counsel’s failure to object fell below an objective standard of reasonableness,
defendant must show that, but for counsel’s error, there was a reasonable likelihood that the
outcome of his trial would have been different. Given the complainant’s testimony, the various
statements she made during the investigation, and the physical evidence found by Dr. Gullekson,
there was ample evidence of defendant’s guilt independent of Dr. Sankaran’s comments.
Therefore, defendant has failed to establish that, but for trial counsel’s failure to object, the
outcome of his trial would have been different. Defendant is not entitled to reversal on his claim
of ineffective assistance of counsel.

                       V. IMPROPER REHABILITATION EVIDENCE

         Defendant argues that the trial court erred when it permitted the records custodian to
testify regarding the complainant’s prior statements to medical personnel. We disagree.

       Defendant acknowledges that defense counsel did not object to the evidence and that his
claims must be reviewed for plain error affecting the defendant’s substantial rights. Carines, 460
Mich at 763-764.

        Wyntis Hall testified that she was the records custodian at Hurley Medical Center. The
complainant’s emergency room record and a forensic report were records kept in the regular
course of business at Hurley. Defense counsel did not object to admitting the records into
evidence, even when directly asked. Hall read the history of assault portion of the report into the
record:

       Date of assault approximately one month ago. Time of assault around midnight.
       Brief history of assault, patient states I was [at] [G]ramma Cheryl’s house and
       whenever I stay the night I sleep in his room across from the place where you
       sleep when you stay the night. I think at around midnight he would come and pull
       my pants down to my knees and start touching me.

The record indicated that the complainant’s labia majora was red and tender to the touch. The
hymen was missing. Hall read the medical forensic examination into the record:

       He would start touching me he didn’t know I was awake. He put his fingers
       inside me. This has been happening for around a year and a half. He does this
       when I stay at Grandma Cheryl’s, um, [G]randma Cheryl’s buyer [sic] house. He
       stayed at our house once when we [were] going [to] Cedar Point; this was in July
       2009, he always did the same thing. This has happened about five or six times in
       a year and half. Per mom Crystal [Viar], Dr. Sankaran Flint Children’s Center,
       stated that the hymen was missing and the vaginal vault was looser than she
       would like to see.

       Defendant appears to argue that the trial court erred in admitting the complainant’s
medical records in order to bolster her testimony and combat the defense’s allegation that the
complainant made up the allegations because she preferred to stay with her other grandmother
while her parents vacationed. There is absolutely nothing in the record to indicate that the
records were admitted as rehabilitation evidence under MRE 801(d)(1)B).


                                                -7-
        MRE 801(d)(1)(B) provides that a statement is not hearsay if “[t]he declarant testifies at
the trial or hearing and is subject to cross-examination concerning the statement, and the
statement is . . . consistent with the declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or motive . . .”
However, MRE 801(d)(1)(B) has no application here. MRE 803(4) provides that that the
following is not precluded by the hearsay rule:

       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.

Because the medical records were admissible under MRE 803(4) as a statement made for
purposes of medical treatment or medical diagnosis, defendant’s bolstering argument fails.

                            VI. PROSECUTORIAL MISCONDUCT

       Finally, defendant argues that he was deprived of a fair trial when the prosecutor
appealed to the jury’s sympathy. We disagree.

        “Review of alleged prosecutorial misconduct is precluded unless the defendant timely
and specifically objects, except when an objection could not have cured the error, or a failure to
review the issue would result in a miscarriage of justice.” People v Callon, 256 Mich App 312,
329; 662 NW2d 501 (2003). Defendant admits that challenged statement was not preserved by
contemporaneous objections and requests for curative instructions; therefore, appellate review is
for outcome-determinative, plain error. Carines, 460 Mich at 763–764. “Reversal is warranted
only when plain error resulted in the conviction of an actually innocent defendant or seriously
affected the fairness, integrity, or public reputation of judicial proceedings.” Callon, 256 Mich
App at 329.

        The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). A defendant’s
opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than
the defendant’s guilt or innocence. Id. at 63-64. Claims of prosecutorial misconduct are
reviewed on a case-by-case basis, in the context of the issues raised at trial, to determine whether
a defendant was denied a fair and impartial trial resulting in prejudice to defendant. People v
Mann, 288 Mich App 114, 119; 792 NW2d 53 (2010). Prosecutorial comments must be read as
a whole and evaluated in light of defense arguments and the relationship they bear to the
evidence admitted at trial. People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004).
Prosecutors are generally free to argue the evidence and all reasonable inferences from the
evidence as it relates to their theory of the case. Unger, 278 Mich App at 236. While a
prosecutor may not vouch for the credibility of a witness with the implication that the prosecutor
has special knowledge of the truthfulness of that witness, a prosecutor may argue that the
defendant or a witness is worthy or not worthy of belief. Dobek, 274 Mich App at 66. “Appeals
to the jury to sympathize with the victim constitute improper argument.” People v Watson, 245
Mich App 572, 591; 629 NW2d 411 (2001).

                                                -8-
       During closing arguments, the prosecutor stated:

              Think this ten year old dropped these notes in the box knowing there’s
       gonna be shockwaves at ten years old; she knew there was gonna be shockwaves
       when those – when these notes hit the box, okay. She’s making all this up; no.
       She’s gonna go through all this [sic] physical exams and have somebody prod on
       her genitals; making it up, no.

                                               ***

       Even as reluctant as we saw her sitting here, she came forward and said what he
       did; the evidence has come back on him. Don’t make her go through all this –
       don’t make her go through all this all this, for nothing, please. Thank – thank
       you.

Viewing the prosecutor’s argument in the context in which it was made, it is clear that the
prosecutor was not so much urging the jury to sympathize with the complainant as arguing that
the complainant was worthy of belief. The prosecutor pointed out that it would be incredible for
a 10-year-old child to subject herself to forensic physical examination and testifying at court if
the allegations had been made up. Additionally, even if the prosecutor’s statement was an
improper appeal to the jury’s sympathy, there is no indication that a prompt objection and
curative instruction would have insufficiently cured the statement’s prejudicial effect. Here, the
prosecutor’s isolated remarks were not blatantly prejudicial, but were instead part of a larger,
proper argument regarding the complainant’s credibility. On this record, the prosecutor’s
arguments did not affect the outcome of defendant’s case.

       Affirmed.

                                                            /s/ Mark T. Boonstra
                                                            /s/ Jane E. Markey
                                                            /s/ Kirsten Frank Kelly




                                               -9-
