STATE OF MICHIGAN COURT OF APPEALS

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1 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED June 28, 2012 v No Oakland Circuit Court BRANDON JERROLD JOHNSON, LC No FH Defendant-Appellant. Before: GLEICHER, P.J., and M. J. KELLY and BOONSTRA, JJ. PER CURIAM. Defendant Brandon Jerrold Johnson digitally penetrated a 17-year-old member of his extended family. For his crime, a jury convicted him of third-degree criminal sexual conduct (CSC) in violation of either MCL d(1)(b) (sexual penetration accomplished by force or coercion) or (c) (sexual penetration of a mentally incapable, mentally incapacitated, or physically helpless victim). The court then sentenced defendant as a fourth habitual offender, MCL , to 7 to 30 years imprisonment. We agree with defendant that his trial counsel should have objected to the improper admission of the victim s hearsay statement, taken from her medical records, that she was afraid because she knew defendant carried a gun. Given the record evidence of defendant s guilt, however, we find this error harmless. Defendant s remaining claims lack merit. Accordingly, we affirm. I. BACKGROUND On the night of September 18, 2010, the victim spent time in her bedroom, listening to music with her 16-year-old nephew and defendant, her nephew s 23-year-old cousin from the other side of his family tree. Defendant and the victim were not related by blood, but the victim considered defendant as family and she had known him her entire life. The trio fell asleep in the victim s bedroom. The victim testified that defendant woke her several times that night, offering to give her a back massage, moving her legs onto the bed, and asking if she was a virgin. Around dawn, the victim awoke when she felt defendant move her shorts and penetrate her vagina with his finger. The victim pulled away and became hysterical. Defendant fled and the victim telephoned her mother, who had left early that morning. The prosecutor charged defendant with alternative counts of third-degree CSC (penetration) and fourth-degree CSC (sexual contact), each on alternative theories that defendant -1-

2 accomplished the offense by force/coercion or on a physically helpless (sleeping) victim. The jury ultimately convicted defendant of third-degree CSC but did not indicate under which theory. II. FAILURE TO OBJECT TO INADMISSIBLE HEARSAY Defendant first argues that his trial counsel was ineffective for failing to object when the nurse examiner testified regarding the victim s summary of the incident, particularly the victim s statement that defendant carries a gun so I was scared. 1 Because defendant did not request a new trial or an evidentiary hearing, review of his ineffective assistance claim is limited to errors apparent from the record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002). To establish an ineffective assistance claim, a defendant must show that (1) counsel s performance fell below an objective standard of reasonableness under professional norms and (2) there is a reasonable probability that, but for counsel s errors, the result would have been different and the result that did occur was fundamentally unfair or unreliable. People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). The decision whether to object is a matter of trial strategy. People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004). This Court will 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 Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). The victim s summary of the incident was contained in the nurse examiner s records, which were admitted into evidence under MRE 803(6), the business record exception to the hearsay rule. When a business record contains a hearsay statement, that statement must also come within a hearsay exception to be admissible. MRE 805. Hearsay within hearsay must be excluded if the proponent fails to establish a foundation for its admission. Solomon v Shuell, 435 Mich 104, 129; 457 NW2d 669 (1990). The victim did not make the challenged statement concerning the gun for the purpose of medical treatment or medical diagnosis. MRE 803(4). It was not reasonably necessary [for] diagnosis or treatment. Id. Rather, it was an unnecessary comment having nothing to do with the victim s injuries and counsel should have objected to its admission. Relief is unwarranted, however, as there is no reasonable likelihood that the lone statement that defendant carries a gun affected the outcome of the proceedings. Contrary to defendant s assertion, the evidence could not have swayed the jury to convict defendant of third, rather than fourth, degree CSC; one involves sexual penetration and the other contact. The offense degree has nothing to do with the use of a weapon. III. SENTENCING GUIDELINES Defendant argues that the court improperly scored offense variable (OV) 10 at 10 points, and that defense counsel was ineffective for failing to object. The interpretation and application of the sentencing guidelines present questions of law that we review de novo. People v Huston 489 Mich 451, 457; 802 NW2d 261 (2011). A sentencing court has discretion in determining 1 This was the sole reference to a firearm in the record. -2-

3 the number of points to be scored, provided that evidence of record adequately supports a particular score. People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006). OV 10 takes into account exploitation of a vulnerable victim. MCL (1). Defendant was assessed 10 points, which is warranted when [t]he offender 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 (1)(b). The instructions define the term exploit as to manipulate a victim for selfish or unethical purposes, MCL (3)(b), and the term vulnerability as the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation. MCL (3)(c). A domestic relationship is a familial or cohabiting relationship. People v Jamison, 292 Mich App 440, 447; 807 NW2d 427 (2011). Although defendant was not related to the victim by blood, the evidence showed that he was a member of her extended family. 2 Absent that relationship, defendant would not have been permitted to spend the night with the victim in her bedroom. Defendant manipulated that relationship to sexually assault the victim. That conduct merits a 10-point score. Moreover, a sentencing court must assign the highest number of points possible when scoring OV 10. MCL (1). Accordingly, the court was precluded from assigning only five points based on defendant s exploitation of a sleeping victim. MCL (1)(c). The evidence supported a 10-point score for OV 10 and defense counsel had no ground to object. Defendant s claims of scoring error and ineffective assistance must therefore fail. See People v Goodin, 257 Mich App 425, 433; 668 NW2d 392 (2003). IV. SUFFICIENCY OF THE EVIDENCE In a pro se brief filed pursuant to Supreme Court Administrative Oder Standard 4, defendant argues that the prosecutor presented insufficient evidence to support his conviction. In relation to sufficiency challenges, we review the record de novo and, viewing both the direct and circumstantial evidence in a light most favorable to the prosecution, determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Nowack, 462 Mich 392, ; 614 NW2d 78 (2000). It is for the jury to determine what inferences may be fairly drawn from the evidence and the weight to be accorded the evidence. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). Also, we must defer to the jury s assessment of witness credibility. People v Hill, 257 Mich App 126, ; 667 NW2d 78 (2003). As noted, we cannot discern whether the jury convicted defendant of engaging in sexual penetration accomplished by force or coercion, MCL d(1)(b), or on a physically helpless, mentally incapable, or mentally incapacitated victim, MCL d(1)(c). The prosecutor presented sufficient evidence to support defendant s conviction under either theory. 2 The term familial means of, involving, or common to a family and the term family includes a group of people related by blood or marriage. Webster s New Twentieth Century Dictionary, Unabridged (2d ed, 1979). -3-

4 Force or coercion as proscribed by MCL d(1)(b) includes overcoming a victim through the use of actual physical force or violence, MCL b(1)(f)(i), and overcoming the victim through concealment or surprise, MCL b(1)(f)(v). Force or coercion includes the exertion of strength or power on another person to compel an act against that person s will. People v Premo, 213 Mich App 406, ; 540 NW2d 715 (1995). As explained in People v Carlson, 466 Mich 130; 644 NW2d 704 (2002), the force need not be so great as to overcome the victim. It is sufficient that the actor seize[s] control of the victim in a manner to facilitate the accomplishment of sexual penetration without regard to the victim s wishes. Id. at 140. The record evidence supports that defendant accomplished penetration through the use of physical force or violence, by overcoming the victim through surprise. At trial, the victim testified that she fell asleep and awoke only because she felt defendant s hand inside of her. The victim then discovered that her shorts had been pulled down. She explained that she was in shock and panic and asked defendant what he was doing, after which she left the room. The victim s testimony was sufficient to enable the jury to find beyond a reasonable doubt that defendant accomplished the sexual penetration by overcoming the victim through the element of surprise while she was sleeping, thereby establishing the force or coercion element. The evidence was also sufficient to prove that defendant knew or had reason to know that the victim was physically helpless. A person is physically helpless when she is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act. MCL a(m). [T]he essence of physical helplessness is that the victim is unable to communicate unwillingness to an act. People v Perry, 172 Mich App 609, 622; 432 NW2d 377 (1988). A case of third-degree CSC predicated on sleep-induced helplessness is made out where the victim is penetrated while asleep and awakens during that process from the sensation of being penetrated. Id. It is not made out where the victim is awake when the penetration occurs and is physically able to communicate her unwillingness to act, e.g., the defendant engages in sexual penetration after waking the victim. Id. at , 622. Both during direct and cross-examination, the victim testified that she was asleep and awoke only when she felt defendant penetrate her. The victim described her state as being asleep but [not] fully asleep. Defense counsel impeached the victim with her prior statement to the police that she had blacked out, and with her preliminary examination testimony that she was halfway asleep. The victim reiterated at trial that she was halfway asleep and was not aware of what was going on around her. A person who is not fully awake and has some sensory perception may nevertheless be physically helpless because common experience tells us that sleep is not an all or nothing condition. Woodward v Commonwealth, 12 Va App 118, 121; 402 SE2d 244 (1991). Viewed in the light most favorable to the prosecution, the victim s testimony that she was halfway asleep or not fully asleep created a factual issue for the jury. The jury was free to consider from the evidence whether the victim was physically helpless and unable to communicate her lack of consent. Defendant alternatively argues for the first time on appeal that the victim was incompetent to testify because [b]eing asleep is an essential element of the offense and yet the victim did not have an adequate understanding of what it means to be asleep. However, a sleeping victim is not an essential element; a physically helpless victim is the essential element of third-degree CSC under 520d(1)(c). Physical helplessness may be caused by any condition -4-

5 or circumstance that renders the victim physically unable to communicate unwillingness to an act. Moreover, a witness s competency to testify does not depend on her understanding or ability to clearly articulate the elements of the offense. A lay witness is competent to testify if she has personal knowledge of the matter to which she testifies unless the court finds that she does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably[.] MRE 601; MRE 602. The victim had personal knowledge of defendant s actions and expressed herself sufficiently to be understood. The fact that she was unable to clearly articulate her state of consciousness did not render her incompetent to testify. V. PROSECUTORIAL MISCONDUCT Defendant further contends that the victim s inability to clearly state whether she was half asleep, fully asleep, or blacked out rendered her trial testimony false and misleading. Defendant accuses the prosecutor of committing misconduct by securing a conviction based on the victim s false testimony. Defendant did not object to the prosecutor s conduct at trial, leaving the issue unpreserved. Unpreserved issues of prosecutorial misconduct are reviewed for plain error affecting substantial rights. Goodin, 257 Mich App at 431. The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial (i.e., whether prejudice resulted). People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003). A prosecutor may not knowingly use false testimony to obtain a conviction and has a duty to correct false evidence and advise the defendant and the trial court if a government witness lies under oath. People v Lester, 232 Mich App 262, ; 591 NW2d 267 (1998). [A] conviction obtained through the knowing use of perjured testimony offends a defendant s due process protections guaranteed under the Fourteenth Amendment. People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009). A conviction obtained after the knowing use of perjured testimony must be set aside if the false testimony could have affected the judgment. Id. There is no record indication that the victim committed perjury, much less that the prosecutor knowingly presented perjured testimony. Defense counsel did attempt to create doubt about whether the victim was truly asleep by cross examining her regarding her mental status. But it was the jury s duty to gauge the victim s credibility and determine whether she was physically helpless at the time. Hill, 257 Mich App at Defendant also makes a fleeting reference to the victim having offered improper rebuttal testimony. Rebuttal evidence is admissible to contradict, repel, explain, or disprove evidence presented by the other party in an attempt to weaken or impeach it. People v Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996). The victim testified as part of the prosecutor s case in chief. Defendant rested without presenting any evidence and the victim was not recalled. Therefore, the victim did not offer any rebuttal testimony, let alone improper testimony. Defendant also refers to the prosecutor s failure to disclose exculpatory or impeachment evidence, but fails to explain what evidence was withheld. VI. FAILURE TO PRESENT POLICE STATEMENT INTO EVIDENCE Defendant argues pro se that his trial counsel was ineffective because she impeached the victim with her prior police statement, but did not offer that statement into evidence. As a result, -5-

6 the trial court had to deny the jury s request to see the statement during deliberations. Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy. Rockey, 237 Mich App at (citations omitted). [T]he failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense. People v Dixon, 236 Mich App 393, 398; 688 NW2d 308 (2004). A substantial defense is one that might have made a difference in the outcome of the trial. People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). The record shows that defense counsel impeached the victim with her prior police statement, but failed to offer that statement into evidence. When the jury requested the witnesses original police statements during deliberations, the court instructed the jury that those statements had not been admitted into evidence and that it should consider only the evidence admitted during the trial and rely on your collective memory regarding witness testimony. A witness may be questioned about a prior statement without that statement being admitted into evidence. People v Avant, 235 Mich App 499, ; 597 NW2d 864 (1999). There is no indication that the jurors were unable to recall the victim s testimony regarding her prior statement. Therefore, defendant has not shown that the jurors inability to read the victim s prior statement affected the outcome of the trial. Affirmed. /s/ Elizabeth L. Gleicher /s/ Michael J. Kelly -6-

7 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED June 28, 2012 v No Oakland Circuit Court BRANDON JERROLD JOHNSON, LC No FH Defendant-Appellant. Before: GLEICHER, P.J., and M. J. KELLY and BOONSTRA, JJ. BOONSTRA, J., (concurring in part and dissenting in part). I concur with the result reached in the majority s opinion. I write separately to set forth what I believe to be a proper evidentiary analysis in line with the applicable rules of evidence and the published prior authority of this Court. In my view, we need not reach the evidentiary issue since, as the majority notes, relief is unwarranted. However, having reached it, we should decide it correctly. The statement whose admission into evidence the majority challenges, was not hearsay, and it in any event was admissible under the hearsay exception for statements offered for purposes of medical treatment. The following additional facts of record are relevant to this analysis. Immediately following the incident in question, the victim jumped up from her bed in such a shock and panic, asked defendant What are you doing?, and went to her mother s bedroom. Since her mother was not present, she called her mother on the telephone. Her mother described her as disturbed, kind of crying, very shaken, upset, her voice was crackly. The victim later described the experience as having been traumatic. At her mother s direction, the victim woke up her brother, nephew, and sister, and told them what had happened. Her mother returned home real quick, within approximately minutes, and found the victim crying, very upset, and very emotional. She took the victim to the police station. Police officers later came to their home to conduct an investigation. The mother indicated that, after speaking to the police, she just tried to console my daughter. That same day, at the direction of the police, the mother took the victim for an examination by a sexual assault nurse examiner at the START (Safe Therapeutic Assault Response Team) Program of HAVEN. During the examination, the nurse examiner followed protocol in using a packet of forms (the HAVEN forms ) that covered appropriate authorizations and disclosures, patient medical data, information provided by the victim about this incident (including verbatim quotes from the -1-

8 victim), results of the examination, diagrams relating to the examination, physical assessment, evidence collection, discharge summary, and appropriate signatures. At trial, the nurse examiner who conducted the examination of the victim testified. During her testimony, the prosecutor moved for the admission of the HAVEN forms under the business record exception to the hearsay rule. MRE 803(6). Defense trial counsel indicated that she had no objection, and the HAVEN forms were admitted as an exhibit at trial. Declining to raise objections to evidence is a matter of trial strategy. See People v Unger, 278 Mich App 210, 242, 253; 749 NW2d 272 (2008). This Court should not substitute its judgment for that of counsel regarding matters of trial strategy, nor should it assess counsel s competence with the benefit of hindsight. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). Counsel s strategy does not constitute ineffective assistance simply because it does not work. People v Kevorkian, 248 Mich App 373, ; 639 NW2d 291 (2001). In my view, defendant has not overcome the presumption that his counsel s lack of objection to the admission of the statement at issue constituted sound trial strategy. This is especially true because counsel is not required to raise meritless or futile objections. People v Moorer, 262 Mich App 64, 76; 683 NW2d 736 (2004). At trial, the nurse examiner provided testimony regarding her examination of the victim, including as to each page of the HAVEN forms that were admitted as a trial exhibit. With respect to page 3, the nurse examiner testified that it provided the victim s description of the incident, and she read that description into the record word for word, as follows: I woke up to the sound of my basketball shorts being snapped back into my back. I heard him murmur like he was talking on his phone. He kept telling me I am grown and how can I still be a virgin and 17 years old. He started to massage my back. I told him to stop. He carries a gun so I was scared. I think I blacked out because I woke up to his hand in my pants and he fingered me in my vagina. The majority concludes that defendant s trial counsel should have objected to the improper admission of the following portion (only) of the victim s incident description: He carries a gun so I was scared. 1 The majority states, without analysis, that this portion of the 1 The majority states that this was the sole reference to a firearm in the record. This is accurate insofar as the trial record is concerned, but I note that the following testimony was elicited from the victim during the victim s preliminary examination testimony: Q And you didn t see [defendant] with a gun on that particular day, correct? A Corr wait, can you rephrase that? Q Back on September 18 th you did not see [defendant] with a gun in his pocket or otherwise on that particular day, correct? -2-

9 victim s incident description was a hearsay statement, and further concludes that the statement did not fall within the hearsay exception for statements made for purposes of medical treatment or medical diagnosis in connection with treatment. MRE 803(4). In my view, neither conclusion is correct. As the majority notes, the victim s summary of the incident was contained in the nurse examiner s records, which were admitted into evidence under the business record exception to the hearsay rule. The admission of those records is unchallenged, and is not at issue on appeal. Nor is the victim s overall summary of the incident challenged. Rather, defendant challenges on appeal trial counsel s failure to object to a portion of the nurse examiner s testimony about the records, and thus implicitly also challenges the excerpted portion of the victim s statement to the nurse examiner, as reflected in the records. Preliminarily, a proper evidentiary review would require a separate analysis of (a) the nurse examiner s testimony at trial; and (b) the written statement that was contained within the HAVEN forms that were admitted as an exhibit at trial, and about which the nurse examiner testified. The majority conflates the two, focusing only on the written statement contained in the HAVEN forms. A statement is hearsay only if it is offered in evidence to prove the truth of the matter asserted. MRE 801(c). Here, the nurse examiner s testimony was not offered to prove that defendant carries a gun, but instead was offered to describe the process for conducting the medical examination of the victim and for gathering the information contained within the HAVEN forms, and to clarify that the statements in the HAVEN forms were those of the victim. The nurse examiner s testimony was not hearsay. MRE 801(c). The majority correctly notes that where there are multiple layers of hearsay within hearsay, each independent hearsay statement must fall within a hearsay exception to be admissible. Solomon v Shuell, 435 Mich 104, 129; 457 NW2d 669 (1990). Thus, even assuming that the HAVEN forms were themselves hearsay (but properly admitted under the business record exception), statements within the HAVEN forms would be inadmissible if they independently were hearsay statements and did not fall within their own hearsay exception. The majority does not challenge the introduction of the victim s overall summary of the incident. Yet the majority assumes (without any analysis) that the challenged portion of the victim s statement to the nurse examiner constituted hearsay. But, like the nurse examiner s testimony, the victim s statement to the nurse examiner (as reflected in the HAVEN forms) was not offered to prove the truth of the fact that defendant carries a gun, but rather to describe the incident, and its effect upon the victim, in the context of a post-sexual assault nurse examination. The excerpted portion of the victim s statement was not hearsay. MRE 801(c). The majority also concludes, without any reference to the record, that the statement did not fall within a recognized hearsay exception: A Correct. -3-

10 The victim did not make the challenged statement concerning the gun for the purpose of medical treatment or medical diagnosis. MRE 803(4). It was not reasonably necessary [for] diagnosis or treatment. Id. Rather, it was an unnecessary comment having nothing to do with the victim s injuries and counsel should have objected to its admission. I disagree. The victim made her statement in the context of an examination by a sexual assault nurse examiner. Certainly, it was made for the purpose of medical treatment or medical diagnosis. Far from being an unnecessary comment having nothing to do with the victim s injuries, it was reasonably necessary [for] diagnosis or treatment. In my view, this Court is not in any position to determine as a matter of law that the victim s purpose was other than to fully inform the examining nurse of the totality of the circumstances of the incident and its effect upon the victim, nor is the court in a position to determine as a matter of law that the victim s statement was not reasonably necessary for her medical diagnosis and treatment. This Court has long recognized that [s]exual abuse cases involve medical, physical, developmental, and psychological components, all of which require diagnosis and treatment. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). 2 A complainant s statements allow medical personnel to structure the examination and questions to the exact type of trauma that the complainant [has] recently experienced. Id. The record reflects that the victim suffered a traumatic event that may have included developmental[] and psychological components, all of which require diagnosis and treatment. Id. The nurse examiner s exploration of the victim s trauma elicited the challenged statement. The majority improperly discounts any possibility that the victim s stated knowledge that defendant carries a gun so I was scared may have contributed to her trauma arising from this incident (or to any resulting developmental or psychological effects for which medical diagnosis or treatment might be appropriate). As this Court recently has stated, in a strikingly similar context: Defendant also argues that statements the victim made to the nurse who conducted a rape examination should not have been admitted. Statements made for the purpose of medical treatment are admissible pursuant to MRE 803(4) if they were reasonably necessary for diagnosis and treatment and if the declarant had a self-interested motivation to be truthful in order to receive proper medical care. This is true irrespective of whether the declarant sustained any immediately apparent physical injury. People v Garland, 286 Mich App 1, 8-10; 777 NW2d 732 (2009). Particularly in cases of sexual assault in which the injuries might be latent, such as contracting sexually transmitted diseases or psychological in nature and thus not necessarily physically manifested at all, a victim s complete 2 Although McElhaney presented the additional consideration of assessing the trustworthiness of a complainant of tender years, that consideration was immaterial to the Court s analysis as applied here. -4-

11 history and a recitation of the totality of the circumstances of the assault are properly considered to be statements made for medical treatment. Id. at 9-10; People v McElhaney, 215 Mich App 269, ; 545 NW2d 18 (1996). Thus, statements the victim made to the nurse were all properly admissible pursuant to MRE 803(4). [People v Mahone, 265 Mich App 208, 215; NW 2d (2011) (emphasis added).] The majority departs from this precedential case, even while recognizing that relief is unwarranted. I respectfully dissent from the majority s conclusion that the challenged statement constituted hearsay, and that it did not fall within MRE 803(4). I otherwise concur, and agree with the majority s ultimate conclusion that relief is unwarranted. /s/ Mark T. Boonstra -5-