If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 19, 2021
Plaintiff-Appellee,
v No. 349362; 350305
Kent Circuit Court
MARQUISSE DAVON PARKS, LC No. 18-004022-FC
Defendant-Appellant.
Before: STEPHENS, P.J., and BECKERING and O’BRIEN, JJ.
PER CURIAM.
Defendant, Marquisse Davon Parks, appeals as of right his jury trial convictions of first-
degree criminal sexual conduct (CSC-I), MCL 750.520b(2)(b); and second-degree criminal sexual
conduct (CSC-II), MCL 750.520c(2)(b). The trial court sentenced defendant, as a fourth-offense
habitual offender, MCL 769.12(1)(a), to 35 to 105 years’ imprisonment for his CSC-I conviction
and 25 to 75 years’ imprisonment for his CSC-II conviction. On appeal, defendant argues that the
trial court erred by allowing the testimony of several witnesses at trial. He further contends that
defense counsel provided ineffective assistance for failing to object to this improper testimony.
For the reasons set forth in this opinion, we affirm.
I. BASIC FACTS
The victim accused defendant, her biological father, of touching her vaginal area with his
hand and penetrating her vagina with his penis every day after school or “many times.” The victim
was unable to specify a time frame, but she claimed the abuse started when she was five or six
years old.1 The victim disclosed to her mother in March 2018 that defendant had inappropriately
touched her, and her mother reported the allegation to the Grandville Police Department the same
1
The victim was seven years old at the time of trial.
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day. The department scheduled a forensic interview for the victim at the Children’s Advocacy
Center, and Officer Alex Niesen interviewed defendant before asking him to leave the home.
The day after the victim’s disclosure, she attended the forensic interview, which was
conducted by Amy Minton. After the interview, the victim went to the YWCA for an examination
performed by Diane Decatur, a sexual assault nurse examiner (SANE). Shortly thereafter, the
prosecution charged defendant. After the preliminary hearing, Minton forensically interviewed
the victim a second time because she had made an additional disclosure to her mother.
At trial, the prosecution presented testimony from the victim, her mother, Officer Niesen,
Decatur, and Minton. KP, defendant’s biological son, and KP’s brother, CR, also testified at trial
because they temporarily lived with defendant and saw the victim regularly coming out of
defendant’s bedroom when they arrived home from school.2 They both recalled once seeing the
victim leave defendant’s bedroom with the buckle of her pants undone.3 The prosecution also
called Thomas Cottrell, the chief programming officer at YWCA West Central Michigan, to
testify as an expert regarding child sexual abuse, child sexual abuse victims, and sex offenders. In
addition, the prosecution admitted other-acts evidence regarding several alleged incidents of
sexual abuse that occurred between defendant and his stepdaughter, AJ, and two alleged incidents
of sexual abuse that occurred between defendant and his biological daughter JT. Defense counsel
had JT’s mother and Officer DJ Verhage testify regarding JT’s allegations against defendant.
Andrew Measaell also testified at trial that he took over the case from Officer Niesen and that the
victim’s mother told him that no damages or tears were found on the victim. Additionally, he
testified that no male DNA or pubic hair was recovered from the victim. The jury found defendant
guilty on both counts, and the trial court sentenced him as described above. This appeal followed.
II. ANALYSIS
A. DECATUR’S TESTIMONY
Defendant first argues that he was denied his due process4 right to a fair trial by the
presentation of testimony from Decatur that impermissibly bolstered the victim’s credibility.
Specifically, defendant alleges that Decatur vouched for the victim when she testified that on the
2
KP explained that he and CR attended a different school than the victim, and they would arrive
home an hour later than she did.
3
CP testified that the victim’s underwear was also sticking out, and although he did not think
anything of it at the time, he told her to pull up her pants. KP recalled another time when he walked
into defendant’s bedroom after the victim left and saw defendant under the covers. He could not
tell whether defendant had on his clothes.
4
Although defendant attempts to frame this issue as a claim of constitutional error implicating his
due-process rights, evidentiary errors are not constitutional errors. People v Blackmon, 280 Mich
App 253, 259; 761 NW2d 172 (2008). “Merely framing an issue as constitutional does not make
it so.” Id. at 261.
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physical examination form, she checked the box indicating that there was “possible” pediatric
sexual abuse. Albeit a close call, we disagree.
We review unpreserved claims of evidentiary error for plain error affecting a defendant’s
substantial rights. People v Coy, 258 Mich App 1, 12; 699 NW2d 831 (2003). This standard of
review requires defendant to establish the following:
[f]irst, there must be an error; second, the error must be plain (i.e., clear or obvious);
and third, the error must affect substantial rights (i.e., there must be a showing that
the error was outcome determinative). Moreover, 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,
independent of guilt or innocence. [Id. (citations omitted).]
MRE 704 provides that “[t]estimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of
fact.” However, the Michigan Supreme Court has repeatedly held that “an examining physician
cannot give an opinion on whether a complainant had been sexually assaulted if the conclusion
[is] nothing more than the doctor’s opinion that the victim had told the truth.” People v Thorpe,
504 Mich 230, 255; 934 NW2d 693 (2019) (quotation marks and citation omitted; alteration in
original). See also People v Smith, 425 Mich 98, 109; 387 NW2d 814 (1986). When a medical
professional’s opinion is based “solely on what the victim had told him,” the opinion testimony is
objectionable. Id. See also Thorpe, 504 Mich at 255. The testimony is objectionable because it
lacks a “reliable foundation,” and jurors are just as qualified to evaluate the victim’s testimony.
Smith, 425 Mich at 109. However, “an examining physician, if qualified by experience and
training relative to treatment of sexual assault complainants, can opine with respect to whether a
complainant had been sexually assaulted when the opinion is based on physical findings and the
complainant’s medical history.” Thorpe, 504 Mich at 255.
In this case, the trial court did not plainly err by permitting Decatur to testify about the fact
that she had checked the box indicating “possible” pediatric sexual abuse on the victim’s physical
exam assessment. See Coy, 258 Mich App at 12. Decatur testified that she completed a medical
review of the victim’s symptoms to identify whether she had a history of illnesses or anything that
could be of concern. The victim was five years old at the time of the examination, so Decatur also
took a history from the victim’s mother, seeking information regarding her doctor, medical history,
immunizations, milestones, and similar information. The mother reported the victim having a
history of genital pain for a couple of years, along with sadness, difficulty sleeping, and not getting
along with other kids according to her teacher. Decatur then physically examined the victim,
searching for injuries or areas of concern. Decatur observed an abrasion at “12 o’clock on the
labia on the outside of the vaginal area, genital area.” She noted that it is “not something you
typically have … on your genital area,” and was indicative of possible injury. Decatur described
it as a scraping similar to “when you fall off a bike and you scrape yourself.” The first layer of
skin was missing.
She also discussed with the victim whether something had happened to her body, and the
victim described acts perpetrated on her by defendant. Although Decatur initially testified that her
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decision to check the box was based on the victim’s disclosure, on redirect examination she
testified that under “factors involved in the decisionmaking process,” she noted the victim’s
abrasion on her labia majora. And she testified repeatedly that she could not say whether or not
the victim was abused, as she could not make that judgment. Although a medical professional
may not testify that a child was either possibly or probably sexually abused based solely on the
child’s disclosure, he or she “can opine with respect to whether a complainant had been sexually
assaulted when the opinion is based on physical findings and the complainant’s medical history.”
See Thorpe, 504 Mich at 255; see also People v Del Cid, 331 Mich App 532, 547; 953 NW2d 440
(2020). In this case, albeit not artfully delivered, Decatur’s testimony as to possible sexual abuse
was based on the victim’s genital injury and her disclosure. While Decatur conceded that the
scratch was not necessarily indicative of sexual assault, she also testified that the position of the
scratch was concerning.
Because Decatur’s decision to mark “possible” pediatric sexual abuse on the physical exam
assessment form was based on both the victim’s disclosure and a physical abrasion on the victim’s
genital area, the trial court did not plainly err by permitting Decatur to testify about it.
Defendant also argues that Decatur’s testimony, in which she relayed what the victim told
her at the time of the medical examination, constituted inadmissible hearsay. We disagree.
MRE 801(c) defines hearsay as “a statement, other than the one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
MRE 802 provides that hearsay is inadmissible except as the Michigan Rules of Evidence permit,
and MRE 803 provides specific exceptions to the general rule that hearsay is inadmissible. For
example, MRE 803(4) provides an exception for “[s]tatements 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.”
“The rationale for MRE 803(4) is the existence of (1) the self-interested motivation to
speak the truth to treating physicians in order to receive proper medical care, and (2) the reasonable
necessity of the statement to the diagnosis and treatment of the patient.” People v Shaw, 315 Mich
App 668, 674; 892 NW2d 15 (2016) (quotation marks and citation omitted). “This is true
irrespective of whether the declarant sustained any immediately apparent physical injury.” People
v Mahone, 294 Mich App 208, 215; 816 NW2d 436 (2011). Additionally, “in cases of sexual
assault, in which the injuries might be latent, such as contracting sexually transmitted diseases or
psychological in nature, . . . a victim’s complete history and a recitation of the totality of the
circumstances of the assault are properly considered to be statements made for medical treatment.”
Id.
Defendant references MRE 803A in his brief; MRE 803A provides that “[a] statement
describing an incident that included a sexual act performed with or on the declarant by the
defendant or an accomplice is admissible to the extent that it corroborates testimony given by the
declarant during the same proceeding” given that the following requirements are met:
(1) the declarant was under the age of ten when the statement was made;
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(2) the statement is shown to have been spontaneous and without indication
of manufacture;
(3) either the declarant made the statement immediately after the incident
or any delay is excusable as having been caused by fear or other equally effective
circumstance; and
(4) the statement is introduced through the testimony of someone other than
the declarant.
Furthermore, “[i]f the declarant made more than one corroborative statement about the incident,
only the first is admissible under this rule.” MRE 803A.
Defendant argues that Decatur’s testimony at issue did not fall under the hearsay exception
contained in MRE 803A. Notably, the prosecution does not dispute this in its brief on appeal, and
we agree with defendant. The victim’s statements to Decatur were not spontaneous because
Decatur asked the victim questions to elicit the statements, and the statements were not the first
she had made about defendant sexually abusing her, as those were made to her mother. See MRE
803A(2). Therefore, defendant is correct that Decatur’s testimony regarding what the victim told
her were not admissible under MRE 803A.
However, the prosecution correctly points out that Decatur’s testimony was admissible
under MRE 803(4). The statements the victim made to Decatur were “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.” MRE
803(4). The Children’s Advocacy Center recommended that the victim’s mother take her to the
YWCA for a physical examination because she had reported penetration, and the Children’s
Advocacy Center wanted to ensure that no “damage” had been done to her. Decatur testified that
the purpose of the evaluation she performed on children was to ensure they were safe and to
address any infections they might have. She also stated that she performed an examination of the
child’s entire body to see whether there was “any injury or anything that that we are concerned
with.” Decatur testified that she did not conduct a forensic interview with the victim; instead she
conducted a medical evaluation to look for an injury. At the examination, Decatur asked the victim
why she was present, whether any body part hurt, and whether something had happened to her
body. Decatur also inquired into whether the victim had been threatened, whether she had secrets,
and whether she felt safe at home. Decatur relayed to the jury her questions and the victim’s
responses.
Defendant claims that even if some of the statements the victim made to Decatur were
admissible under MRE 803(4), the trial court should have limited or redacted the other,
inadmissible statements. However, he has not specified which statements the trial court should
have included or excluded, or how the trial court should have redacted the statements that were
partially admissible; it is not our job to elaborate on or unravel this argument for defendant. See
People v Bowling, 299 Mich App 552, 559-560; 830 NW2d 800 (2013).
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We conclude that the trial court did not err by permitting Decatur to testify regarding
statements the victim made to her in association with the medical evaluation. See Coy, 258 Mich
App at 12.
Defendant also argues that his trial counsel was ineffective for failing to object to Decatur’s
above-described testimony. Our determination of “whether a person has been denied effective
assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465
Mich 575, 579; 640 NW2d 246 (2002). We review for clear error a trial court’s findings of fact
and de novo questions of constitutional law. Id. When the defendant fails to move “for a new trial
or an evidentiary hearing, our review is limited to mistakes apparent from the record.” People v
Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012).
The defendant has the burden of establishing that he was denied effective assistance of
counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). He must “show (1) that trial
counsel’s performance was objectively deficient, and (2) that the deficiencies prejudiced” him.
People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). For the first requirement, the defendant
“must overcome the strong presumption that counsel’s performance was born from a sound trial
strategy,” People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012), and that counsel’s
actions were not a “result of reasonable professional judgment,” Strickland v Washington, 466 US
668, 690; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “Decisions regarding what evidence to present,
whether to call witnesses, and how to question witnesses are presumed to be matters of trial
strategy, as is a decision concerning what evidence to highlight during closing argument.” People
v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008) (citations omitted). This Court should not
“substitute [its] judgment for that of counsel on matters of trial strategy” or “use the benefit of
hindsight when assessing counsel’s competence.” People v Unger, 278 Mich App 210, 242-243;
749 NW2d 272 (2008). For the second requirement, the defendant “must show that, but for
counsel’s deficient performance, a different result would have been reasonably probable.” People
v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011). “Failing to advance a meritless argument
or raise a futile objection does not constitute ineffective assistance of counsel.” People v Ericksen,
288 Mich App 192, 201; 793 NW2d 120 (2010).
In this case, defense counsel’s failure to object to Decatur testifying that she marked the
box for possible pediatric sexual abuse on the victim’s physical examination assessment form did
not amount to ineffective assistance of counsel. Because Decatur’s diagnosis was not based solely
on the victim’s disclosure, her diagnosis was admissible at trial, and any objection from defense
counsel would have been futile. See Thorpe, 504 Mich at 255; Ericksen, 288 Mich App at 201.
Additionally, defense counsel was not ineffective in failing to object to Decatur’s testimony
regarding the victim’s statements made during the medical evaluation. As discussed, Decatur’s
testimony was admissible because the victim’s statements were made for the purpose of, and in
connection with, the victim receiving medical treatment. See MRE 803(4). Any objection would
have been meritless, and the failure to raise a meritless objection does not amount to ineffective
assistance of counsel. See Ericksen, 288 Mich App at 201.
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B. COTTRELL’S TESTIMONY
Defendant argues that Cottrell improperly vouched for the victim’s credibility at trial. We
agree in part, but find the erroneously admitted testimony harmless in this case.
We review for an abuse of discretion a trial court’s admission of evidence. People v
Duenaz, 306 Mich App 85, 94; 854 NW2d 531 (2014). A trial “court abuses its discretion when
it chooses an outcome that is outside the range of reasonable and principled outcomes.” People v
Waclawski, 286 Mich App 634, 645; 780 NW2d 321 (2009).
“The trial court has an obligation under MRE 702 to ensure that any expert testimony
admitted at trial is reliable.” People v Dobek, 274 Mich App 58, 94; 732 NW2d 546 (2007)
(quotation marks and citation omitted). When admitting expert testimony, trial courts must
determine whether “the testimony (1) will assist the trier of fact to understand a fact in issue, (2)
is provided by an expert qualified in the relevant field of knowledge, and (3) is based on reliable
data, principles, and methodologies that are applied reliably to the facts of the case.” People v
Kowalski, 492 Mich 106, 120; 821 NW2d 14 (2012).
Additionally, in People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995), amended
450 Mich 121 (1995), the Michigan Supreme Court provided the following limits on expert witness
testimony in child sexual abuse cases: “(1) an expert may not testify that the sexual abuse occurred,
(2) an expert may not vouch for the veracity of a victim, and (3) an expert may not testify whether
the defendant is guilty.” The Michigan Supreme Court also held that an expert witness may testify
about the following:
(1) an expert may testify in the prosecution’s case in chief regarding typical and
relevant symptoms of child sexual abuse for the sole purpose of explaining a
victim’s specific behavior that might be incorrectly construed by the jury as
inconsistent with that of an actual abuse victim, and (2) an expert may testify with
regard to the consistencies between the behavior of the particular victim and other
victims of child sexual abuse to rebut an attack on the victim’s credibility. [Id.
at 352-353.]
Furthermore, the Michigan Supreme held that in general “it is improper for a witness or an
expert to comment or provide an opinion on the credibility of another person while testifying at
trial.” People v Douglas, 496 Mich 557, 583; 852 NW2d 587 (2014) (quotation marks and citation
omitted). See also Dobek, 274 Mich App at 71 (“It is generally improper for a witness to comment
or provide an opinion on the credibility of another witness, because credibility matters are to be
determined by the jury.”).
In this case, a portion of Cottrell’s testimony was improper. Although Cottrell was
properly permitted to “testify in the prosecution’s case in chief regarding typical and relevant
symptoms of child sexual abuse for the sole purpose of explaining a victim’s specific behavior that
might be incorrectly construed by the jury as inconsistent with that of an actual abuse victim,” he
crossed the line at one point by testifying regarding “the consistencies between the behavior of the
particular victim and other” child sexual abuse victims before the victim’s credibility was attacked.
Peterson, 450 Mich at 352.
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Cottrell’s testimony regarding the three general categories of child sexual abuse disclosures
and misconceptions regarding the profile of a sex offender was permissible.5 Additionally,
although the prosecutor prefaced a couple of her questions with specific reference to previously
admitted testimony relevant to her inquiry, asking if that was “a red flag,” Cottrell did not respond
specifically; rather, he responded with testimony regarding the general behaviors of offenders and
conduct by child sexual abuse victims that might be incorrectly construed as inconsistent with an
actual abuse victim. See Peterson, 450 Mich at 352-353. For example, the prosecution specifically
asked Cottrell whether it was a red flag that the victim gave an initial statement to the Children’s
Advocacy Center and then later disclosed further details, and Cottrell responded by stating that
most children typically disclose in a graduated process, that it was not atypical for a child to add
more information to a disclosure later, and that gradual disclosure was not a red flag. However,
as defendant notes in his brief on appeal, at one point on direct examination, Cottrell specifically
testified regarding the victim in this case when he stated that it “absolutely” did not surprise him
that the victim, who was five years old, made a delayed disclosure. He then went on to explain
how delayed disclosure was not the exception. This testimony was improper. See id. at 376
(concluding that testimony from expert witnesses in regard to “the consistencies between the
victim’s behavior and the behavior of typical victims of child sexual abuse” was erroneous
“[b]ecause the defendant never argued that the victim’s behavior was inconsistent with that of a
typical victim . . .”).
Defendant also points out that on redirect examination, the prosecution likely bolstered the
credibility of the victim and the victim’s mother when asking Cottrell,
Defense Counsel talked about changes in behavior. If we heard testimony
that the victim had triggers that made her upset from when she was sexually abused,
for example, if she resisted sexual assault, she was threatened that she was not going
to be able to have dinner that night, and so now she eats as much as she can, would
that be a behavioral change consistent with being sexual [sic] abused?
The prosecution’s question was likely regarding the victim’s and her mother’s statements
regarding the impact that defendant’s punishments had on the victim. Cottrell agreed that “[w]hen
there is that much of a story present,” the behavior would be consistent, and he clarified that the
rendition that the prosecution presented to him made “perfect sense.” He stated that it was difficult
to look at isolated behavior and determine whether it was “indicative of sexual abuse, but if the
child is explaining or there’s an explanation for it, then that stress reaction or that behavior or that
protective mechanism does make perfect sense.”
As the prosecution notes in its brief on appeal, on cross-examination, defense counsel
specifically opened the door to the question when asking Cottrell, “We’ve heard some testimony,
Mr. Cottrell, and we’ve heard some testimony that the alleged victim in this case has some behavior
issues. Isn’t it true that behaviors aren’t really diagnostic of trauma?” Cottrell responded to
defense counsel’s question by stating that it depended on the behavior and how the behavior
5
It was made very clear several times during his testimony that Cottrell had never met or
interviewed the victim, and that he was not opining on victim credibility.
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presented. Sometimes a behavior could be, and he explained how certain behaviors were and were
not symptoms of sexual abuse. Defense counsel went on to ask Cottrell, “so changes in behavior
isn’t necessarily indicative of abuse, right?” Cottrell responded in the affirmative, stating that “I
don’t think you can use a child’s behavior in and of itself to directly make a link to something
abusive happening.” Further, defense counsel questioned Cottrell as to whether a “disorganized
family” and frequent moves could cause stress in a young child. Cottrell answered, “yes.” As a
result, defense counsel’s questions in this regard implied that the victim’s behaviors previously
testified to at trial were indicative of a stressful home environment instead of sexual abuse.
Defense counsel also inquired into the effects of coaching and suggestibility in a five-year old, as
well as lying based on having received repeated information from another adult, which Cottrell
acknowledged could lead to a phenomenon called “source attribution” in children. In response,
the prosecutor elicited testimony regarding indicators that might reveal a child has been coached,
and that certain behaviors, such as those exhibited by the victim, could be consistent with sexual
abuse. See id. at 373. Cottrell also noted, however, that a child’s behaviors such as those discussed
at trial could not be taken one at a time and be deemed indicative of sexual abuse.
Therefore, the only improper testimony that defendant challenged was Cottrell’s testimony
affirming that it was normal that the victim in this case made a delayed disclosure. However, the
trial court permitting this testimony constituted harmless error. See Thorpe, 504 Mich at 252. In
Thorpe, 504 Mich at 252, 260, the Michigan Supreme Court held that Cottrell’s improper expert
witness testimony required reversal under the harmless error standard, noting that the case “was a
true credibility contest” because “[t]here was no physical evidence, there were no witnesses to the
alleged assaults, and there were no inculpatory statements.” In this case, there were no
eyewitnesses to the sexual abuse. However, CR and KP provided testimony confirming that they
saw the victim leave defendant’s bedroom regularly when they got home from school and once
with her pants unbuckled, which circumstantially corroborated the victim’s allegation that
defendant regularly sexually abused her in his bedroom after school. Additionally, Officer Niesen
testified at trial regarding inculpatory statements defendant made to him. For example, after
Officer Niesen told defendant that one of his children made an allegation against him regarding
inappropriate touching, defendant volunteered the victim’s name. Defendant also told Officer
Niesen that he tickled his children’s inner thighs and buttock area. Additionally, when Officer
Niesen asked defendant about surveillance, defendant denied that there were cameras in the
bedroom, even though Officer Niesen did not tell defendant that the victim had accused him of
abusing her in the bedroom. Regarding physical evidence, although not conclusive of sexual
abuse, Decatur testified that she found an abrasion on the victim’s genital area. And finally, as is
discussed later in this opinion, the trial court properly admitted other acts evidence pursuant to
MCL 768.27a(1) indicating that defendant had sexually abused two of his other minor children.
Therefore, we conclude that a different outcome would not have resulted without Cottrell’s
improper testimony. See id. See also Peterson, 450 Mich at 378-379 (determining that the
erroneous expert testimony constituted harmless error because it did not ultimately affect the jury’s
verdict).
Defendant also argues that he was denied effective assistance because his defense counsel
failed to object to Cottrell’s improper testimony. We disagree because the record does not support
this contention.
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At a motion hearing, defense counsel initially objected to Cottrell’s giving testimony,
challenging the late notice of Cottrell as a witness, as well as the reliability of the data on which
Cottrell relied. On the first day of the jury trial, before the trial started, defense counsel raised
concerns that Cottrell’s testimony would improperly bolster the victim’s credibility. Additionally,
during trial, defense counsel repeatedly objected to Cottrell’s testimony on the ground that he was
improperly bolstering the victim’s credibility. Therefore, the record does not support defendant’s
contention of ineffective assistance with respect to Cottrell. See Randolph, 502 Mich at 9.
C. MINTON’S TESTIMONY
Defendant argues that Minton provided inadmissible hearsay evidence when relaying what
the victim told her about the alleged sexual abuse. We agree.
Minton testified at trial that during her first interview with the victim, the victim told her
that defendant touched the area she “used to pee,” and that defendant moved his hand inside her
private area “numerous times” when the victim’s mother was not home. Minton also shared that
the victim repeatedly told her she was scared, and that defendant threatened to “whoop” her for
disclosing. Regarding her second interview, Minton testified that the victim told her defendant
put his private on her private and moved it and his body “up and down” more than one time when
the victim’s mother was not home.
Defendant argues, and the prosecution effectively concedes, that Minton’s testimony
regarding the victim’s statements was inadmissible hearsay. As defendant correctly points out in
his brief, the statements were inadmissible under MRE 803A because the victim’s statements to
Minton were not spontaneous, and they were not the first statements she had made about defendant
sexually abusing her. Moreover, they do not appear to fit under another hearsay exception.
Although admission of Minton’s hearsay testimony constituted error that was plain and
obvious, it did not affect defendant’s substantial rights. Coy, 258 Mich App at 12. See id. The
victim testified at trial regarding her allegations against defendant, and both the victim’s mother
and Decatur properly testified regarding the victim’s allegation that defendant sexually abused her,
which means that Minton’s testimony was cumulative. See People v Rodriguez, 251 Mich App
10, 29; 650 NW2d 96 (2002) (stating that “[a]ny error would not have been outcome determinative
given other similar testimony and the nature of the evidence against” the defendant). In light of
other persuasive and properly admitted evidence, reversal is not required.
Defendant also argues that he was denied effective assistance because his counsel failed to
object to Minton’s hearsay testimony. Review of the record reveals that defense counsel’s failure
to object was likely trial strategy. See Horn, 279 Mich App at 39. Instead of objecting when
Minton relayed the victim’s statements, defense counsel undertook to discredit the victim’s
statements during the second interview by emphasizing the difference between her first admissions
to Minton and her second admissions. Defense counsel also had Minton explain to the jury that
her job was not to determine whether the victim was truthful. Additionally, counsel attempted to
discredit how Minton performed the forensic interviews and had her admit that the credibility of
the victim’s statements depended on how well the forensic interview was conducted. The record
indicates that defense counsel’s attempt to use Minton’s hearsay statements to help defendant’s
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case was unsuccessful, but we will not “use the benefit of hindsight when assessing counsel’s
competence.” Unger, 278 Mich App at 242-243.
Even assuming that defense counsel’s performance was objectively deficient, defendant
has failed to establish that “but for counsel’s deficient performance, a different result would have
been reasonably probable” because of the significant amount of evidence admitted against
defendant at trial. Armstrong, 490 Mich at 290. As noted, the victim, Decatur, and the victim’s
mother all properly testified at trial regarding the victim’s allegations against defendant. Decatur
also testified regarding a physical injury to the victim’s genital area, which could be consistent
with sexual abuse. Officer Niesen testified regarding the inculpatory statements defendant made
to him. Additionally, although KP and CR were not eyewitnesses to the sexual abuse, their
testimony added corroborative support to the victim’s statements that defendant sexually abused
her in his bedroom after school. Furthermore, the prosecution properly admitted other-acts
evidence against defendant to show he had the propensity to commit sexual abuse against children.
Therefore, defendant was not denied the effective assistance of counsel.
D. OTHER-ACTS EVIDENCE
Finally, defendant argues that the trial court abused its discretion by permitting the
prosecution to admit other-acts evidence pertaining to the allegations that AJ and JT made against
him under MCL 768.27a(1), because the evidence did not survive the MRE 403 balancing test.
We disagree.
“When a defendant is charged with a sexual offense against a minor, MCL 768.27a allows
prosecutors to introduce evidence of a defendant’s uncharged sexual offenses against minors
without having to justify their admissibility under MRE 404(b).” People v Pattison, 276 Mich
App 613, 618-619; 741 NW2d 558 (2007). “In many cases, it allows evidence that previously
would have been inadmissible, because it allows what may have been categorized as propensity
evidence to be admitted in this limited context.” Id. at 619. However, MCL 768.27a remains
subject to MRE 403. People v Watkins, 491 Mich 450, 486; 818 NW2d 296 (2012). In Watkins,
491 Mich at 487-488, the Michigan Supreme Court provided the following factors to consider
when determining whether other-acts evidence admitted under MCL 768.27a should be excluded
pursuant to MRE 403:
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal
proximity of the other acts to the charged crime, (3) the infrequency of the other
acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence
supporting the occurrence of the other acts, and (6) the lack of need for evidence
beyond the complainant’s and the defendant’s testimony.
These considerations are meant to be illustrative and not exhaustive. Id. at 488.
In this case, both JT’s and AJ’s allegations survive the MRE 403 balancing test because
the probative value of the evidence was not substantially outweighed by the danger of its unfair
prejudice. See MRE 403. AJ testified in regard to two inappropriate occurrences involving
defendant in 2011, and a third incident that occurred a couple of years later. Although there was
a gap in time from when defendant was alleged to have begun abusing the victim, the victim’s
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mother testified that defendant was incarcerated, starting in 2011, for three years. Additionally,
assuming the third incident involving AJ occurred in 2015, and defendant sexually touched the
victim in this case in 2017 or 2018, the incidents were only a few years a part. Furthermore, both
AJ and the victim lived with defendant at the time they were abused, and defendant was AJ’s
stepfather and the victim’s biological father. The victim was five or six when the abuse occurred,
and AJ testified that she was 10 years old when the abuse started, although the third incident must
have occurred when she was approximately 13 years old. Additionally, both AJ and the victim
accused defendant of threatening them for not going along with his advances. Furthermore, AJ’s
testimony was supported by the testimony of the victim’s mother. For example, the victim’s
mother remembered AJ bringing up one of the incidents in 2017, before the victim’s disclosure.
JT alleged that defendant sexually touched her in 2016, when she was nine years old. The
victim in this case alleged that defendant sexually abused her when she was five or six years old,
which would have been in 2017 or 2018 and which means the other act was close in time.
Defendant was the biological father of both JT and the victim. JT’s mother testified that JT made
an allegation against defendant in 2010 regarding inappropriate touching, and that the 2016
incident occurred shortly after she permitted JT to see defendant again alone after he served three
years in prison. JT’s mother also testified that while she did not initially believe JT, she did so
after the victim made her disclosure.
The record supports the trial court’s ruling to admit evidence regarding AJ’s and JT’s
allegations against defendant because it survives the MRE 403 balancing test. See Duenaz, 306
Mich App at 94. The allegations involved sexual abuse that occurred within a relatively close time
frame as the charged offenses in this case. Moreover, the three alleged victims were young
children who were related to defendant by blood or affinity, and the abuse occurred in defendant’s
home while the children were in his care. As a result, the other-acts evidence was highly relevant
in establishing defendant’s propensity to sexually abuse young children with whom he has ready
access and control. This evidence was not unfairly prejudicial. See Watkins, 491 Mich at 487
(explaining that “other-acts evidence admissible under MCL 768.27a may not be excluded under
MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity inference”).
Further, because no physical evidence linked defendant in this case, the other-acts evidence was
necessary to support the victim’s testimony. See id. at 491 (concluding that “the other-acts
evidence also supported the victim’s credibility, presented circumstances similar to those
underlying the charged offense, and established [the defendant’s] modus operandi”).
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Jane M. Beckering
/s/ Colleen A. O’Brien
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