People of Michigan v. Anthony Ray McFarlane Jr

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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

v No. 336187
Allegan Circuit Court
ANTHONY RAY MCFARLANE, JR., LC No. 14-018862-FC

Defendant-Appellant.

Before: MURRAY, C.J., and MARKEY and TUKEL, JJ.

PER CURIAM.

Defendant, Anthony Ray McFarlane, Jr., appeals by right his jury conviction of first-
degree child abuse involving his then nine-week-old infant, KM. See MCL 750.136b(2). The
trial court sentenced defendant to serve 15 to 25 years in prison for his conviction. On appeal,
defendant raises several claims of error that he argues warrant a new trial or resentencing. For
the reasons explained below, we affirm defendant’s conviction but remand for resentencing.

I. SUFFICIENCY OF THE EVIDENCE

A. STANDARD OF REVIEW

Defendant first argues that the prosecutor presented insufficient evidence to support his
conviction of first-degree child abuse. This Court reviews a challenge to the sufficiency of the
evidence by examining the “record evidence de novo in the light most favorable to the
prosecution to determine whether a rational trier of fact could have found that the essential
elements of the crime were proved beyond a reasonable doubt.” People v Roper, 286 Mich App
77, 83; 777 NW2d 483 (2009). This Court must resolve all conflicts in the evidence in favor of
the prosecution. See People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005).

B. ANALYSIS

To establish the elements of first-degree child abuse, the prosecution had to prove—in
relevant part—that defendant “knowingly or intentionally cause[d] serious physical . . . harm” to
KM. MCL 750.136b(2). Serious physical harm means “any physical injury to a child that
seriously impairs the child’s health or physical well-being, including, but not limited to, brain
damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal
injury, poisoning, burn or scald, or severe cut.” MCL 750.136b(1)(f). Because the Legislature

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provided that the perpetrator must “knowingly or intentionally” cause the serious physical harm,
it is not sufficient for the prosecutor to prove that the defendant intended to commit the act that
caused the physical harm; the prosecutor must prove that the “defendant intended to cause
serious physical harm or knew that serious physical harm would be caused by [his or] her act.”
People v Maynor, 470 Mich 289, 291; 683 NW2d 565 (2004).

In this case, the prosecutor presented evidence that tended to suggest that defendant
injured KM at some point on December 6, 2013, or earlier in the day on December 7, 2013.

KM’s half-sister, KD, who was five years old on the day at issue, testified that she
wanted defendant to play with her, but he wanted to play video games. After she began to cry,
defendant became angry with her, punished her, and eventually spanked her. She said she went
to her room but peeked into the living room when she heard KM crying. She saw defendant
shaking KM.

Defendant suggests that KD’s testimony was improbable because her timing was off and
she failed to earlier disclose the shaking incident. When reviewing challenges to the sufficiency
of the evidence, this Court must not interfere with the fact-finder’s role in deciding the weight
and credibility to give to a witness’s testimony—“no matter how inconsistent or vague that
testimony might be.” People v Mehall, 454 Mich 1, 6; 557 NW2d 110 (1997); see also People v
Lemmon, 456 Mich 625, 646-647; 576 NW2d 129 (1998). Rather, this Court must view the
evidence in the light most favorable to the prosecution and uphold the verdict if a reasonable
finder of fact could have found that the elements were proved beyond a reasonable doubt. See
People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992). Therefore, we cannot disregard
KD’s testimony; instead, we must make every reasonable inference from her testimony in favor
of the verdict. See id.

KD’s testimony about the timing was not entirely clear. She did at first imply that the
shaking incident occurred sometime immediately before defendant took her to his mother’s
house, which would have been early on Saturday, December 7, 2013. The children’s mother,
Dakota Chitwood, testified that KM was already showing signs of fussiness and pain by that
time, and Chitwood was home and would likely have been in a position to witness the discipline
had it occurred Saturday morning. However, KD later testified that the discipline occurred after
she got home from school and before her mother got home from work. From KD’s testimony a
reasonable finder of fact could infer that the shaking incident occurred on Friday.

The prosecutor also presented expert testimony that KM had several injuries. Sarah
Brown, D.O., a child abuse pediatrician, testified that KM had blood in the “space between her
brain and her skull”—the “subdural space.” The bleeding was “all over both sides of her brain.”
She also had a suspected tibia fracture, and Brown stated that an ophthalmologist observed
bleeding in the back of KM’s eye, which was referred to as retinal hemorrhages. Brown stated
that KM’s injuries could have been caused by someone violently shaking KM or by throwing her
onto a couch or other soft surface. Brown acknowledged that KM had had a prenatal stroke,
which caused the left hemisphere of KM’s brain to shrink substantially. But she opined that
KM’s subdural hematomas and retinal hemorrhages were not attributable to her stroke. There
was also testimony that the latter injuries arose during the time frame set forth in KD’s
testimony. Thus, when Brown’s testimony is considered with KD’s testimony that she saw

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defendant shake KM, a reasonable jury could infer that defendant violently shook KM and that
his acts caused her to suffer the identified injuries.

Further, it does not matter that the finder of fact must make multiple inferences to
establish these elements. When considering the sufficiency of the evidence, this Court must
consider the inferences that can be fairly drawn from the evidence, and “it does not matter that
the evidence gives rise to multiple inferences or that an inference gives rise to further
inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). Finally, the
Legislature specifically defined serious physical harm to include subdural hematoma. See MCL
750.136b(1)(f). As such, the prosecutor presented sufficient evidence to establish defendant’s
identity as the person who inflicted an act that caused a serious physical injury to KM. See
People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008) (noting that identity is an element
of every offense). The only remaining issue is whether the prosecutor presented sufficient
evidence to establish that defendant intended to cause serious physical harm or knew that serious
physical harm would result. See Maynor, 470 Mich at 291, 295.

Because it is difficult to prove an actor’s state of mind, the prosecution may rely on
minimal circumstantial evidence to prove that the defendant had the required mental state. See
People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008). The evidence that defendant
shook KM and that his shaking caused her injuries was sufficient to establish that defendant
acted intentionally and caused her serious physical harm. Brown further opined that the acts that
caused KM’s injuries had to be violent. There was expert opinion to the contrary, but this Court
must resolve that dispute in the prosecution’s favor. Wilkens, 267 Mich App at 738. A
reasonable finder of fact could find Brown’s testimony credible and find that defendant shook
KM violently. It could then further infer from the violence of the act that he either intended to
cause her serious injury or knew that it was likely to do so. See Unger, 278 Mich App at 223.

The prosecutor presented sufficient evidence to permit a rational trier of fact to find that
each element of first-degree child abuse had been proved beyond a reasonable doubt. See Roper,
286 Mich App at 83.

II. INVADING THE PROVINCE OF THE JURY

A. STANDARD OF REVIEW

Defendant next argues that the trial court erred when it allowed Brown to testify that she
diagnosed KM with “definite pediatric physical abuse.” He maintains that Brown’s testimony
amounted to an opinion that he was guilty. This Court generally reviews a trial court’s decision
to allow the admission of testimony for an abuse of discretion. See Roper, 286 Mich App at 90.
However, it is an abuse of discretion to allow testimony that is inadmissible as a matter of law.
See People v Bynum, 496 Mich 610, 623; 852 NW2d 570 (2014).

This Court reviews de novo whether the trial court properly interpreted and applied the
rules of evidence. See People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013). This Court
also reviews de novo constitutional questions such as whether the trial court improperly allowed
a witness to invade the province of the jury. People v Shafier, 483 Mich 205, 211; 768 NW2d
305 (2009). Because defendant did not object to Brown’s testimony on this basis before the trial

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court, this Court’s review is limited to determining whether there was a plain error that affected
defendant’s substantial rights. See People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999). To establish plain error that warrants relief, the defendant must show that the error was
plain or obvious and affected the outcome of the lower court proceedings. Id.

B. ANALYSIS

A trial court may permit testimony by a “witness qualified as an expert by knowledge,
skill, experience, training, or education” 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.” MRE 702. An expert may offer an opinion at trial if his or her
testimony “is based on sufficient facts or data” and “is the product of reliable principles and
methods,” and if the witness “has applied the principles and methods reliably to the facts of the
case.” MRE 702. The trial court must also ensure that the expert’s testimony is relevant.
Bynum, 496 Mich at 624. Even when an expert’s testimony is relevant, it remains subject to the
limits imposed by MRE 403. Id. at 635 n 43.

This case required expert medical testimony because it was beyond the ken of ordinary
persons to evaluate the medical evidence and assess the nature and extent of KM’s injuries, the
timing of those injuries, and the possible mechanisms of injury implicated by the medical
evidence. See People v Kowalski, 492 Mich 106, 121-122; 821 NW2d 14 (2012). Moreover, if
an expert’s opinion is otherwise admissible, it does not become objectionable merely because “it
embraces an ultimate issue to be decided by the trier of fact.” MRE 704; see also People v
Smith, 425 Mich 98, 106-107; 387 NW2d 814 (1986). Nevertheless, there are limits on an
expert’s authority to offer an opinion that embraces an ultimate issue:

Although the ultimate issue rule no longer stands in the way of expert
testimony stating opinions on crucial questions to be decided by the trier of fact, it
is important that the expert witness not been permitted to testify about the
requirements of law which apply to the particular facts in the case or to phrase his
opinion in terms of a legal conclusion. In the former case, the claim is that the
province of the judge is invaded, while in the latter, the contention is that the
province of the jury is invaded. [People v Drossart, 99 Mich App 66, 75; 297
NW2d 863 (1980).]

As our Supreme Court explained in People v Peterson, 450 Mich 349, 374; 537 NW2d
857 (1995), quoting People v Beckley, 434 Mich 691, 721-722; 456 NW2d 391 (1990) (opinion
by BRICKLEY, J.), where a jury has been confronted with one of society’s most heinous offenses,
there is a significant danger that the jury will give extra weight to an expert’s testimony:

“The use of expert testimony in the prosecution of criminal sexual conduct
cases is not an ordinary situation. Given the nature of the offense and the terrible
consequences of a miscalculation—the consequences when an individual, on
many occasions a family member, is falsely accused of one of society’s most
heinous offenses, or, conversely, when one who commits such a crime would go
unpunished and a possible reoccurrence of the act would go unprevented—
appropriate safeguards are necessary. To a jury recognizing the awesome

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 dilemma of whom to believe, an expert will often represent the only seemingly
objective source, offering it a much sought-after hook on which to hang its hat.”
[Emphasis added by Peterson]

This case involved whether defendant intentionally injured KM by inflicting trauma to
her brain. Because there was no external evidence of injury, her injuries involved a classic
diagnosis of shaken baby syndrome or abusive head trauma. See Sissoko v State, ___ Md App
___; ___ A3d ___ (2018); slip op at 22-23 (tracing the history of the shaken baby and abusive
head trauma diagnoses from 1860 to the present and discussing at length the modern controversy
surrounding the diagnoses). The American Academy of Pediatrics adopted the term “abusive
head trauma” in 2009 and defined it to mean the “constellations of injuries that are caused by the
directed application of force to an infant or young child, resulting in physical injury to the head
and/or its contents.” Id. at ___; slip op at 23 (quotation marks and citations omitted). Thus, by
definition, the diagnosis involves trauma caused by human agency, which the American
Academy of Pediatrics labels abusive.

It remains the prevailing view in the medical community that there are “some internal
findings that are highly correlated with abusive head trauma.” Id. Consistent with this view, a
physician may employ a differential diagnosis and conclude that the child’s injuries were the
result of abusive head trauma:

[T]he consensus is that no single finding or combination of findings is
pathognomonic for abusive head trauma. Rather, a differential diagnosis must be
made based upon the totality of the circumstances in each individual case. A
congruence of multiple findings, each of which independently correlates with
abusive head trauma, narrows the field of potential diagnoses significantly,
however, and absent a clinical history of accidental trauma or evidence of a
disease process consistent with those findings, a diagnosis of abusive head trauma
may be made. [Id. at ___; slip op at 25 (citation omitted).]

A minority of physicians and other scientists have identified changes in the understanding
of the biomechanics of shaking and evidence that subdural hematomas, retinal hemorrhages, and
brain swelling are not unique to head trauma caused by human agency. For that reason, those
physicians and scientists believe it is impossible to reliably conclude that a particular child’s
injuries were the result of inflicted trauma. Id. at ___; slip op at 26. Although there is a debate
about the reliability of such a diagnosis, courts continue to allow experts to offer such a
diagnosis on the ground that it is an accepted and reliable diagnosis. Id. at ___; slip op at 27
(collecting cases that have generally upheld the admissibility of expert testimony opining that
injuries of this nature were inflicted by human agency).

Our Supreme Court has recognized the debate within the medical community about the
reliability of a diagnosis of shaken baby syndrome or abusive head trauma. People v Ackley, 497
Mich 381, 391-392; 870 NW2d 858 (2015). It has not, however, considered whether there are
any limits on an expert’s ability to diagnose abusive head trauma. Still, it has provided general
guidance on the limits of expert testimony in analogous circumstances.

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 As a result of the danger that a jury might give too much weight to an expert’s opinion on
a matter involving an ultimate issue, our Supreme Court has imposed strict limits on expert
testimony that “comes too close” to findings that are left exclusively to the jury. Peterson, 450
Mich at 374. For example, in cases involving criminal sexual conduct, an expert may not offer
an opinion that the alleged victim had in fact been sexually abused, may not offer testimony that
vouches for the victim’s veracity, and may not offer an opinion that the defendant is guilty. See
id. at 352. The same is true for expert testimony on “battered woman syndrome”: the expert
may not opine that the complainant was in fact a battered woman, may not testify that the
defendant is guilty, and may not comment on the complainant’s veracity. See People v Christel,
449 Mich 578, 580; 537 NW2d 194 (1995). Although an expert may be necessary to explain
characteristics of gang culture, the expert may not offer an opinion that a particular gang member
acted in conformity with character traits commonly associated with gang members and may not
offer an opinion on the defendant’s intent when he acted. See Bynum, 496 Mich at 630-634.

It is necessary for an expert to testify about the types of injuries typically observed with
head trauma in children and to describe the possible mechanisms of injury involved. See
Kowalski, 492 Mich at 121-122. Further, unlike the case with a diagnosis of sexual assault based
on the emotional state and statements of the complainant, see Smith, 425 Mich at 112, a
diagnosis that a child’s head injuries were not accidental may be made on the basis of physical
examination and scientific evidence rather than solely on the history provided by the
complainant, see Sissoko, ___ Md App at ___; slip op at 25. Accordingly, contrary to
defendant’s contention on appeal, a physician may properly offer an opinion that, when the
medical evidence is considered along with the child’s history, the child’s injuries were inflicted
rather than caused by accident or disease because a jury is unlikely to be able to assess the
medical evidence. See Smith, 425 Mich at 106 (recognizing that whether an expert is needed
depends on whether the untrained layman would be qualified to determine the issue without the
aid of an expert); Drossart, 99 Mich App at 79-82 (stating that the expert may not tell the jury
how to decide the case, but may offer an opinion on an ultimate issue where the expert’s
experience and training is in an area that is largely unfamiliar to the jury). Expressing an opinion
that the trauma was inflicted or not accidental does not impermissibly invade the province of the
jury because the expert is not expressing an opinion of the defendant’s guilt or whether the
defendant had a culpable state of mind, which the expert may not do. See Bynum, 496 Mich at
630-633; Peterson, 450 Mich at 374; Christel, 449 Mich at 580. Instead, the expert is
interpreting the medical evidence and offering the opinion that the trauma was caused by human
agency, and the jury is free to reject that opinion on the basis of the evidence adduced at trial,
including a contrary opinion by another expert. See Drossart, 99 Mich App at 81.

Notwithstanding the propriety of a diagnosis of inflicted trauma, we conclude that in
cases involving allegations of abuse, an expert goes too far when he or she diagnoses the injury
as “abusive head trauma” or opines that the inflicted trauma amounted to child abuse. The
ordinary understanding of the term “abuse”—as opposed to neglect or carelessness—implies a
level of willfulness and moral culpability that implicates the defendant’s intent or knowledge
when performing the act that caused the head trauma. An expert may not offer an opinion on the
intent or criminal responsibility of the accused. Bynum, 496 Mich at 630-633.

Brown—who was admitted as an expert in child abuse pediatrics—testified generally
about the nature of KM’s condition and injuries. She described the possible mechanisms that

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could cause the injuries and then stated that KM’s injuries were inflicted rather than accidental or
the result of her preexisting condition. Brown did not limit her diagnosis to her belief that KM’s
injuries were best explained as inflicted or not accidental; she opined that this case involved a
“definite case of abusive head trauma.” It was also evident from her testimony that abusive head
trauma meant child abuse. She repeatedly told the jury that KM’s injuries were “caused by
definite pediatric physical abuse,” and she stated that “we know that abusive head trauma”
causes these injuries because people confess to hospital staff and investigators or other family
members after inflicting the injuries. She also agreed that KM had suffered previous abuse even
though she was only nine weeks old. She further told the prosecutor that she was correct when
the prosecutor noted that Brown looked at the totality of the circumstances before concluding
that this case involved “child abuse.”

Brown’s testimony that KM’s injuries were caused by “abusive head trauma” or
otherwise amounted to “child abuse” strongly suggested that it was her opinion that whoever
inflicted the injuries on KM did so with culpable state of mind; that is, her testimony plainly
implicated whether defendant “knowingly or intentionally” caused serious physical harm to KM
within the meaning of MCL 750.136b(2). Because Brown was in no better position than the jury
to assess the intent that defendant had when he acted, her belief that his actions were abusive or
amounted to child abuse were irrelevant and inadmissible as a matter of law. See Drossart, 99
Mich App at 79-80. Consequently, the trial court plainly erred to the extent that it allowed
Brown to use the phrase “abusive head trauma” to label her diagnosis rather than a less
prejudicial label, such as inflicted or nonaccidental head trauma, and erred by allowing her to
agree that KM’s injuries amounted to “child abuse.” See Carines, 460 Mich at 763. However, a
plain error will not warrant relief unless the defendant demonstrates that the error affected the
outcome of the lower court proceedings. See id.

Although Brown opined that KM’s injuries were caused by definite pediatric physical
abuse, she conceded that she could not say what actually happened to KM. She also testified that
there were some people who felt that abusive head trauma was misdiagnosed. Moreover,
defense counsel called three witnesses who testified that they did not agree with Brown’s
diagnosis: Julie Mack, M.D., who was a pediatric radiologist; Douglas Smith, M.D., who was a
retired pathologist; and Joseph Sheller, M.D., who was a pediatric neurologist. The experts
informed the jury that they did not believe that a medical professional could diagnose abuse.
Mack testified that the medical records might give rise to a suspicion of abuse but opined that a
medical professional cannot diagnose abuse. Smith also testified that the diagnoses of shaken
baby syndrome or abusive head trauma were founded on flawed studies and that there was great
controversy over whether a medical professional could make such diagnoses. Sheller similarly
testified that the presence of the symptoms seen in KM would cause a reasonable pediatrician to
be concerned about the potential for abuse, but that a suspicion does not mean abuse actually
occurred. Sheller stated that the symptoms at issue were not an absolute sign of abuse. Given
this testimony, the jury was well aware of the limits on Brown’s opinion. Any prejudice
occasioned by her characterization of the acts was minimal.

Although the prosecutor mentioned in her closing that Brown had characterized the
symptoms as having been caused by abuse, she did not argue that the jury should rely on
Brown’s opinion when deciding whether defendant had the requisite intent to establish first-

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degree child abuse. Instead, she argued that KD’s account of events, the severity of the injuries,
and defendant’s subsequent actions tended to prove defendant’s guilt.

There was evidence that KM became symptomatic while in defendant’s care, and KD
testified that she saw defendant shake KM at around that same time. The timing and eyewitness
account permitted an inference that KM manifested her symptoms at that time because they were
inflicted at that moment. A detective also reported that KD had reported that she had heard
defendant yell “shut up” to KM. KD stated that defendant punished her when she cried at a time
when he wanted to play video games. The evidence tended to suggest that defendant could
become angry and frustrated by crying children. Brown also testified that KM’s injuries were
consistent with having been violently shaken. There was also testimony that defendant warned
KD not to tell anyone and threatened to come after a neighbor if she or her husband said
anything wrong about his statements to investigators. Defendant’s statements suggest that he
was conscious of his guilt. See People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996).

The totality of the evidence strongly supported that defendant became angry with KM,
violently shook her out of frustration, and caused the injuries at issue. Given the strength of the
evidence, to the extent that the trial court plainly erred by allowing Brown to use the labels
abusive head trauma or child abuse, we find it unlikely that the error affected the outcome of the
trial. See Carines, 460 Mich at 763. Therefore, the error does not warrant relief. Id.

C. INEFFECTIVE ASSISTANCE

Defendant also argues that defense counsel’s failure to object to Brown’s testimony
amounted to ineffective assistance. Because the trial court did not hold an evidentiary hearing on
defendant’s claim that he did not receive the effective assistance of counsel, there are no factual
findings to which this Court must defer, and this Court’s review is for mistakes that are apparent
on the record alone. Unger, 278 Mich App at 253. This Court reviews de novo whether defense
counsel’s acts or omissions fell below an objective standard of reasonableness under prevailing
professional norms and whether, without the error, the result of the proceedings would have been
different. Yost, 278 Mich App at 387. Counsel has wide discretion in matters of trial strategy
and a defendant must overcome a strong presumption that defense counsel represented him
competently. Unger, 278 Mich App at 242.

In his closing argument, defense counsel portrayed Brown as biased and untrustworthy.
He argued to the jury that Brown’s testimony was flawed and that she ignored important medical
details and discounted evidence that led to a contrary diagnosis because she wanted to “sustain
her beliefs.” He also stated that Brown’s testimony was nothing more than “her opinion,” which
could not be trusted because she deliberately left out information.

Given defense counsel’s argument, he might reasonably have refrained from objecting to
Brown’s diagnosis of abusive head trauma and her references to abuse because her claim that she
could diagnose child abuse furthered his argument that she was partial and not worthy of
credibility. Because there was a plausible and legitimate strategic reason for defense counsel’s
decision not to object, it cannot be said that the failure to object fell below an objective standard
of reasonableness under prevailing professional norms. See id. Additionally, as already
explained, it is unlikely that that Brown’s use of the label “abusive head trauma” affected the

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outcome of the trial. As such, even if defense counsel should have objected, his failure to do so
does not amount to ineffective assistance that warrants a new trial. See id.

Defendant has not established plain error or ineffective assistance that warrants a new
trial.

III. EVIDENCE OF TIBIA FRACTURE

On appeal, defendant argues that defense counsel should have objected to the evidence
regarding a possible tibia fracture that KM may have had. He states that the testimony
constituted improper other-acts evidence barred by MRE 404(b) and maintains that defense
counsel’s failure to object to the admission of the evidence amounted to ineffective assistance of
counsel. Although defendant states that the testimony was inadmissible, he has not offered any
substantive analysis of the evidence at issue. He also implies that the prosecutor’s use of the
evidence in closing was improper, but again he has not offered any meaningful analysis. To the
extent that defendant might be arguing that the trial court plainly erred by allowing the evidence
or that the prosecutor engaged in misconduct by arguing the evidence, defendant has abandoned
those claims on appeal. See People v Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006).
For that reason, we limit our analysis to determining whether defendant has established that
defense counsel’s handling of this testimony and evidence amounted to ineffective assistance.

At trial, Brown testified that she examined KM’s x-rays from her admission to Bronson
and had some concern. She ordered a new bone survey on December 17, 2013. She testified
that the new bone survey revealed that KM had a spiral tibia fracture. Although she
acknowledged that the report from Bronson stated that KM’s bone survey was normal, Brown
stated that she recalled from memory that a physician from Bronson diagnosed KM with two
fractures, but she could not forensically confirm one fracture. Brown did not otherwise offer any
opinion as to when or how the fracture occurred. The prosecution rested after Brown’s
testimony.

The defense experts thereafter disagreed about whether the x-rays showed a fracture.
Mack testified that the x-rays did not reveal a fracture. Even if she were to hypothesize that the
films showed a fracture, she would have had to have concluded that the fracture was “weeks old”
by the time of the x-rays. Smith did not offer an opinion on the x-rays other than to observe that
the interpretations were inconsistent and depended on evidence of a periosteal reaction that was
normally found in children who are growing because the periosteum was an active tissue that
helps shape the bone during growth. Sheller, by contrast, agreed that the images showed a
fracture, but he disregarded it in his opinion because it occurred before the date of the injuries at
issue and was for that reason not relevant to his diagnosis.

The evidence that KM might have suffered a fracture at some point before the events at
issue was inadmissible under MRE 402. In the absence of evidence connecting the fracture to
defendant, it did not have “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.” MRE 401. Indeed, without evidence from which a reasonable jury could find that
KM suffered the injury while under defendant’s care and that the nature of the injury was
consistent with having been inflicted by human agency, the evidence was not even relevant to

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prove conduct in conformity with character, which would ordinarily be improper under MRE
404(b). See People v VanderVliet, 444 Mich 52, 68 & n 20; 508 NW2d 114 (1993) (recognizing
that, consistent with MRE 104(a), the trial court must make a preliminary determination that a
reasonable jury could find that the defendant committed the other act by a preponderance of the
evidence before allowing the admission of the other acts evidence for a proper purpose). Even to
the extent that the evidence might be admissible because Brown relied on it as a component of
her differential diagnosis of abusive head trauma, the evidence was likely inadmissible under
MRE 403 because it invited speculation by the jury, and the danger of unfair prejudice
outweighed whatever marginal relevance the evidence might have had for purposes of the
diagnosis. Nevertheless, even though this evidence was likely inadmissible, it does not follow
that defense counsel provided ineffective assistance by failing to object to its admission.

As already discussed, this Court must affirmatively entertain the range of possible
reasons that defense counsel might not have objected. Unger, 278 Mich App at 242. Defendant
must overcome the strong presumption that trial counsel’s strategy was reasonable. Id

In this case, the evidence of a tibia fracture was weak, and defense counsel elicited expert
testimony that the evidence did not show a fracture or that the fracture was irrelevant to the
diagnosis of the symptoms KM exhibited on the day at issue. The one defense expert who
acknowledged the fracture stated that that type of fracture could have an innocent origin.
Defense counsel also used the inconsistent and weak evidence of a fracture to challenge the
credibility of the prosecution’s experts. He suggested that the images that showed there was no
fracture were deliberately excluded because it did not fit the prosecution’s theory of the case.

On this record, it appears that defense counsel had a legitimate strategic reason for not
objecting to testimony about the fracture: he had strong evidence to contradict the evidence, and
it allowed him to challenge the credibility of the prosecution’s experts. Defendant has not
overcome the presumption that counsel employed sound trial strategy. See id.

IV. OFFENSE VARIABLES 3 AND 7

A. STANDARD OF REVIEW

Defendant next argues the evidence did not show that KM’s injuries were life-threatening
or permanent, or that he treated her with sadism, torture, excessive brutality, or conduct designed
to substantially increase her fear and anxiety. As such, he maintains, the trial court erred when it
assigned 25 points under Offense Variable (OV) 3 and assigned 50 points under OV 7.

This Court reviews for clear error a trial court’s findings in support of particular score
under the sentencing guidelines but reviews de novo whether the trial court properly interpreted
and applied the sentencing guidelines to the findings. People v Hardy, 494 Mich 430, 438; 835
NW2d 340 (2013).

B. ANALYSIS

“When calculating the sentencing guidelines, a court may consider all record evidence,
including the contents of a PSIR, plea admissions, and testimony presented at a preliminary
examination.” People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015). It may

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also consider a victim impact statement in a PSIR or other statement or letter submitted to the
court for consideration on sentencing. See, e.g., People v Earl, 297 Mich App 104, 109-110; 822
NW2d 271 (2012). Further, the trial court may rely on inferences that arise from the record
evidence when making the findings underlying its scoring of offense variables. Id. at 109.

A trial court must assess 25 points under OV 3, if it finds that “[l]ife threatening or
permanent incapacitating injury occurred to a victim.” MCL 777.33(1)(c). The trial court found
that a score of 25 points was appropriate for OV 3. The trial court mentioned the possibility that
the leg fracture might be permanently incapacitating but then indicated that there was not enough
testimony to know whether the leg or other injuries would amount to incapacitating injuries.
Nevertheless, it found that there were permanently incapacitating injuries to the brain and that
the injury to the brain was potentially life threatening.

To the extent that the trial court found that defendant’s actions caused a permanent
incapacitating injury to KM, we find it clearly erred. See Hardy, 494 Mich at 438. There was no
expert testimony about the long-term effects of the injury to KM’s brain caused by her subdural
hematomas. The prosecution’s own expert, Brown, testified that she did not think they would
“ever know if she’s having neurological problems” as a result of the injuries she sustained on the
day at issue because it “would be very difficult to figure out” whether the effects were from her
“prenatal stroke” or from her head injury. She also opined that there would be no long-term
effects from the tibia fracture or from her retinal hemorrhage. Nevertheless, there was evidence
that KM’s injuries were life threatening.

The record shows that KM had significant subdural bleeding, repeated seizures, and
retinal hemorrhages, and that these injuries were severe enough that the treating physicians at the
hospital where she first reported had her airlifted to a larger hospital. As such, the trial court did
not clearly err when it found that KM’s injuries were life threatening and assigned 25 points
under OV 3. See MCL 777.33(1)(c).

The trial court also found that defendant used excessive brutality in the commission of
the offense. Specifically, it noted the leg fractures and the extent of KM’s brain injuries. For
that reason, it assigned 50 points under OV 7.

The trial court had to assess 50 points under OV 7 if it found that that a “victim was
treated with sadism, torture, excessive brutality or similarly egregious conduct designed to
substantially increase the fear and anxiety a victim suffered during the offense.” MCL
777.37(1)(a). Because the Legislature provided that the brutality must be—in relevant part—
excessive, the trial court could only assign 50 points if it found that the abuse involved in this
case exceeded the brutality that normally encompasses first-degree child abuse. See Hardy, 494
Mich 442-443 (noting that a trial court may normally consider conduct inherent in the crime, but
holding that the legislature’s use of the phrase “designed to substantially increase fear” required
a showing that the actor engaged in conduct to increase the victim’s fear beyond that normally
involved in the crime); People v Steanhouse (On Remand), 322 Mich App 233, 240; ___ NW2d
___ (2017) (stating that excessive brutality requires savagery beyond that usual for the crime).

The trial court clearly erred to the extent that it relied on the evidence of a leg fracture in
scoring this variable. Even if the trial court found that KM actually suffered a leg fracture, as

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already discussed, there was no record evidence tending to connect defendant to the fracture.
And the jury specifically found that the injury that defendant caused was “abusive head trauma.”

However, the trial court did not clearly err to the extent that it found that KM was
subjected to excessive brutality in the commission of the first-degree child abuse. To be guilty
of the charge, the defendant had to cause serious physical harm to KM, see MCL 750.136b(2),
which means “any physical injury to a child that seriously impairs the child’s health or physical
well-being,” MCL 750.136b(1)(f). Although serious physical harm necessarily includes
subdural hemorrhages, a person can commit first-degree child abuse without causing such an
injury. And in this case, there was evidence—albeit disputed—that defendant had to have
violently shaken or thrown KM to cause the subdural hematomas and other injuries. The
severity of the injuries supported a finding that KM was treated with brutality in excess of that
which necessarily accompanies the commission of first-degree child abuse. See MCL
777.37(1)(a).

The trial court did not err when it scored OV 3 and OV 7.

V. CLAIMS SUBMITTED UNDER STANDARD 4

Finally, defendant submitted a brief on his own behalf under Administrative Order No.
2004-6, Standard 4, 471 Mich c, cii (2004), in which he raised numerous claims of errors.
Defendant did not raise any of the claims before the trial court. Therefore, they are all
unpreserved. See People v Bass, 317 Mich App 241, 272; 893 NW2d 140 (2016). We review
unpreserved claims of error for plain error that affected defendant’s substantial rights. Carines,
460 Mich at 763. To establish a plain error that warrants relief, a defendant must show that the
error was plain or obvious and affected the outcome of the lower court proceedings. Id. To the
extent that defendant also argues that his trial and appellate counsel provided ineffective
assistance, the trial court did not hold an evidentiary hearing. As such, this Court’s review is
limited to mistakes apparent on the record alone. Unger, 278 Mich App at 253.

Defendant argues that the trial court erred by relying on inadmissible evidence to score
the sentencing variables. A sentencing hearing is not a criminal trial, and many of the
constitutional requirements in criminal trial do not apply to sentencing. For example, the rules of
evidence do not apply to sentencing. See People v Uphaus (On Remand), 278 Mich App 174,
183-184; 748 NW2d 899 (2008); MRE 1101(b)(3). As such, the trial court could properly rely
on any and all record evidence in sentencing defendant, including the contents of his presentence
investigation report. See McChester, 310 Mich App at 358.

Defendant also maintains that the trial court erred by making judicial fact-findings, and
he claims that he is entitled to a remand for a hearing as described in People v Lockridge, 498
Mich 358, 398-397; 870 NW2d 502 (2015). The trial court sentenced defendant under the now
advisory sentencing guidelines. Id. at 399. For that reason, it could make findings of fact not
found by the jury without violating his rights under the Sixth Amendment. See People v Biddles,
316 Mich App 148, 158-161; 896 NW2d 461 (2016). Further, defendant necessarily does not
qualify for a remand hearing because those procedures apply only to sentences imposed on or
before July 29, 2015. See Lockridge, 498 Mich at 397.

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 Defendant next argues that the trial court erred when it scored OV 10 and OV 13. He
claims that there was no evidence to support either score. With regard to OV 10, he also states
that victim vulnerability is necessarily subsumed within the offense of child abuse and, for that
reason, should not be scored.

The trial court had to assess 10 points under OV 10, if it found that defendant “exploited
a victim’s “physical disability, mental disability, youth or agedness, or a domestic relationship,
or the offender abused his or her authority status.” MCL 777.40(1)(b). The fact that the offense
of first-degree child abuse applies to children, see MCL 750.136b(1)(a), does not mean that the
trial court may not consider the victim’s youth for purposes of scoring OV 10; it should unless
the Legislature provided otherwise. See Hardy, 494 Mich at 441-442. The Legislature did not
provide that MCL 777.40(1)(b) does not apply to crimes against children. Accordingly, the trial
court could properly consider KM’s youthfulness for purposes of scoring OV 10. There was
record evidence permitting an inference that defendant violently shook or threw KM when she
was just nine weeks of age. That evidence supported a score of 10 points under MCL 777.40.

As for OV 13, the trial court had to assign 25 points under that variable if it found that
defendant’s offense was part of a “pattern of felonious criminal activity involving 3 or more
crimes against a person.” MCL 777.43(1)(c). The trial court must count all crimes that occurred
within a five-year period, which includes the sentencing offense; further, the court must count all
offenses even if the offense did not result in a conviction. MCL 777.43(2)(a). As noted in
defendant’s PSIR, he was on bond for felonious assault when he committed the present offense,
which, when counted with the sentencing offense, constituted two offenses against a person. The
trial court did not make any specific findings with regard to a third felony offense, so it is unclear
how it arrived at the score of 25 points for this OV. On this record, the trial court clearly erred to
the extent that it found that defendant had committed three felony offenses against a person
within the past five years. See Hardy, 494 Mich at 438.

The trial court calculated defendant’s total OV score to be 110, which placed him in grid
VI/C with a range of 135 to 225 months. See MCL 777.62. After subtracting 25 points, the new
score would place him in grid V/C and the new range would be 126 to 210 months. MCL
777.62. The trial court sentenced defendant to serve a minimum sentence of 180 months in
prison, which was within the range provided under grid V/C. Normally, because the error was
not preserved for appellate review, defendant cannot show that he is entitled to be resentenced
unless he does so through a claim of ineffective assistance of counsel during sentencing. See
People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). On appeal, defendant asserts
that his trial counsel was ineffective to the extent that he failed to raise any of the errors he now
asserts on appeal.1 Had defense counsel raised this issue at sentencing, the trial court would have
had to recalculate the applicable grid and sentence within the appropriate range. Therefore,
defendant has established that defense counsel’s failure to raise this claim at sentencing fell

1
Because we have concluded that defendant’s remaining claims were without merit, defense and
appellate counsel cannot be faulted for failing to raise those claims. See People v Riley, 468
Mich 135, 142; 659 NW2d 611 (2003).

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below an objective standard of reasonableness and prejudiced his sentencing. See Yost, 278
Mich App at 387. Accordingly, on this record, we agree that defendant is entitled to
resentencing with zero points assessed under OV 13. See Francisco, 474 Mich at 92.

Defendant also asserts that his sentence was not proportionate and amounted to cruel and
unusual punishment. Because defendant’s sentence was within the range provided under the
advisory sentencing guidelines, his sentence was presumptively proportionate, and a
proportionate sentence is not cruel or unusual. See People v Bowling, 299 Mich App 552, 558;
830 NW2d 800 (2013). To overcome the presumption, defendant had to show that there was
something unusual about the circumstances of his case that made the sentence disproportionate.
Id. He has not identified any unusual circumstances beyond arguing that his sentence was
invalid as a result of flaws in his trial and sentencing. In any event, defendant can raise this issue
before the trial court on remand for resentencing.

Defendant also suggests that the trial court erred when it allowed KD to testify by video
in violation of his right to confront the witnesses against him. Defense counsel, however, told
the trial court that he had agreed with the prosecutor to allow certain witnesses—lay and
expert—to testify via electronic communications. Moreover, defense counsel agreed that one of
the witnesses was the mother of KM and KD, Chitwood, who had relocated out of state and was
having transportation difficulties. So, he had to have understood that the child witness would
also be testifying by video. By agreeing that the witnesses could testify by “any means that is
available to allow them to testify,” defense counsel waived any claim of error with regard to that
procedure. See People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). See also People v
Buie, 491 Mich 294, 315; 817 NW2d 33 (2012) (“[I]f the decision constitutes reasonable trial
strategy, which is presumed, the right of confrontation may be waived by defense counsel as
long as the defendant does not object on the record.”).

Defendant also asserts that the trial court erred when it allowed Brown to testify because
she was biased; her opinion was not premised on sound science, and she was improperly allowed
to offer an opinion on defendant’s guilt. As already discussed, although there is disagreement
within the medical community about the diagnosis of abusive head trauma, Brown could offer an
opinion as to whether KM’s injuries were inflicted by human agency. Further, while Brown’s
use of the term “abusive” to describe the head trauma may have been improper, that error did not
warrant relief. Finally, whether Brown held a personal or professional bias was a proper subject
for cross-examination; it was not grounds to preclude her from testifying. See People v Layher,
464 Mich 756, 764; 631 NW2d 281 (2001) (noting that showing bias is almost always relevant).

VI. CONCLUSION

We affirm but remand for resentencing consistent with this opinion. We do not retain
jurisdiction.

/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Jonathan Tukel

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