People v. Duenaz

• Decision Date: 10 July 2014
• Docket Number: Docket No. 311441.
• Citation: 306 Mich.App. 85,854 N.W.2d 531
• Parties: PEOPLE v. DUENAZ.
• Court: Court of Appeal of Michigan — District of US

306 Mich.App. 85

854 N.W.2d 531

PEOPLE

v.DUENAZ.

Docket No. 311441.

Court of Appeals of Michigan.

Submitted May 13, 2014, at Detroit.

Decided July 10, 2014, at 900 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Michael D. Wendling, Prosecuting Attorney, and Hilary B. Georgia, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Michael L. Mittlestat and Malaika Ramsey–Heath) for defendant.

Before: MARKEY, P.J., and SAWYER and WILDER, JJ.

Opinion

PER CURIAM.

Defendant appeals by right his convictions by a jury of three counts of first-degree criminal sexual conduct (CSC–I), MCL 750.520b(1)(a), and one count of second-degree criminal sexual conduct (CSC–II), MCL 750.520c(1) (a). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 50 to 75 years in prison. We affirm defendant's convictions but remand for correction of the sentencing information report and resentencing.

I. EVIDENCE OF PRIOR ASSAULT

Defendant first argues that the trial court abused its discretion by ruling inadmissible evidence regarding a sexual assault that the victim's then stepfather perpetrated on her about one year before the instant offenses. The stepfather had pleaded guilty to reduced charges of two counts of third-degree criminal sexual conduct (CSC–III), MCL 750.520d, and one count of CSC–II, and was sentenced to 10–15 years in prison. The trial court reviewed the police reports in the instant case and those from the earlier case and ruled that under the rape- shield statute, MCL 750.520j, the defense could not inquire into the prior case involving the victim.

Defendant argues that the evidence was admissible under exceptions to the rape-shield statute for sources of disease and to show an alternate source of the victim's age-inappropriate sexual knowledge. He also contends that the probative value of this evidence outweighed any prejudicial effect. Further, defendant asserts the trial court's ruling denied him his constitutional the right to present a defense and confront his accusers. We disagree.

A. STANDARD OF REVIEW

This Court reviews de novo both constitutional claims and preliminary questions of law regarding admissibility of evidence. People v. Gursky, 486 Mich. 596, 606, 786 N.W.2d 579 (2010) ; People v. Pipes, 475 Mich. 267, 274, 715 N.W.2d 290 (2006). We review the trial court's ultimate decision regarding admissibility of evidence for an abuse of discretion. People v. Burns, 494 Mich. 104, 110, 832 N.W.2d 738 (2013). An abuse of discretion occurs when trial court's decision is outside the range of principled outcomes. People v. Benton, 294 Mich.App. 191, 195, 817 N.W.2d 599 (2011).

B. ANALYSIS

We conclude the proposed evidence was not relevant, MRE 401 ; therefore, it was not admissible, MRE 402. Moreover, the trial court did not abuse its discretion by excluding the evidence because any marginally probative value of the evidence was substantially outweighed by the danger of unfair prejudice or confusion of the issues. MRE 403 ; People v. Ackerman, 257 Mich.App. 434, 442, 669 N.W.2d 818 (2003). Finally, defendant's constitutional rights to present a defense and confront the witnesses against him were not violated. People v. Arenda, 416 Mich. 1, 8, 330 N.W.2d 814 (1982) (stating that the right to confront and cross-examine witnesses does not include a right to cross-examine regarding irrelevant issues).

The rape-shield statute, MCL 750.520j, provides:

(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim's past sexual conduct with the actor.

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

Similarly, MRE 404(a)(3) provides an exception to the general rule excluding character evidence for, in a case involving criminal sexual conduct (CSC), “evidence of the alleged victim's past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease....”

The rape-shield statute “ ‘bars, with two narrow exceptions, evidence of all sexual activity by the complainant not incident to the alleged rape.’ ” People v. Adair, 452 Mich. 473, 478, 550 N.W.2d 505 (1996), quoting People v. Stull, 127 Mich.App. 14, 17, 338 N.W.2d 403 (1983). Because the statute excludes evidence that in most cases would be only minimally relevant, the statute's prohibitions do not deny or significantly diminish a defendant's right of confrontation. Arenda, 416 Mich. at 11, 330 N.W.2d 814. Moreover, evidence of a complainant's sexual history also “is usually irrelevant as impeachment evidence because it has no bearing on character for truthfulness.” Adair, 452 Mich. at 481, 550 N.W.2d 505, citing MRE 608. This is especially so in this case, given that the evidence was not intended to show “bias, motive, or a pattern of false accusations....” Id. at 481 n. 5, 550 N.W.2d 505. Under the statutory language, if one of the exceptions in the statute applies, the trial court must determine whether the inflammatory or prejudicial nature of the evidence “outweigh[s]” its probative value. MCL 750.520j.¹

The evidence defendant sought to admit concerning the victim's prior sexual experience did not fit within either of the narrow exceptions provided by the rape-shield statute. MCL 750.520j(1). The statute was enacted to prohibit inquiry into a victim's prior sexual encounters, which were historically used by defendants charged with CSC involving an adult in an effort to prove the defense of consent. The statute reflects a legislative policy determination that sexual conduct or reputation regarding sexual conduct as evidence of character and for impeachment, while perhaps logically relevant, is not legally relevant. People v. Hackett, 421 Mich. 338, 346, 365 N.W.2d 120 (1984). Although consent is not a relevant defense to a CSC charge involving an underage minor, Michigan courts have applied the rape-shield statute in cases involving child victims. See Arenda, 416 Mich. at 6, 13, 330 N.W.2d 814 ; Benton, 294 Mich.App. at 197–199, 817 N.W.2d 599 ; People v. Morse, 231 Mich.App. 424, 430, 586 N.W.2d 555 (1998) ; People v. Garvie, 148 Mich.App. 444, 448–449, 384 N.W.2d 796 (1986).

Although the proffered evidence does not fit within one of the rape-shield exceptions, in limited situations evidence the statute excludes may nevertheless be relevant and admissible to preserve a defendant's constitutional right of confrontation. Hackett, 421 Mich. at 348–349, 365 N.W.2d 120 ; Benton, 294 Mich.App. at 197, 817 N.W.2d 599. Our Supreme Court has directed that trial courts inform the exercise of their discretion in regard to such a constitutional claim by conducting an in camera hearing. Hackett, 421 Mich. at 349, 365 N.W.2d 120. In this case, defendant asserts that evidence of the prior assault was relevant and admissible as an alternative explanation for the victim's inappropriate sexual knowledge. The trial court reviewed police reports of the earlier offenses and heard arguments of counsel at a bench conference and on the record. As the prosecution notes, the only similarity between the two cases was that both involved anal and vaginal penetration. The two cases were certainly not “significantly similar.” See Morse, 231 Mich.App. at 437, 586 N.W.2d 555. In addition, defendant's theory of relevance was just that. The victim was 12 years old when she testified in this case about what occurred when she was almost 8 years old. It is pure speculation to suggest (1) that the victim's knowledge of sexual matters was inappropriate and (2) that the victim's knowledge of sexual matters derived from an experience in her life a year before the instant offenses. So, the evidence is not at all probative of the victim's credibility. Its admission would have only created “a real danger of misleading the jury” and “an obvious invasion of the victim's privacy.” Arenda, 416 Mich. at 12, 330 N.W.2d 814. In sum, the record indicates that the trial court balanced the rights of the victim and defendant, as required by Morse, 231 Mich.App. at 433, 586 N.W.2d 555, and its ruling excluding the evidence was well within the range of principled outcomes, Benton, 294 Mich.App. at 195, 817 N.W.2d 599.

II. HEARSAY

Defendant next argues that the trial court abused its discretion by admitting statements the victim made to Dr. Harry Frederick, a board-certified emergency physician and medical director of the Saginaw Child Advocacy Center. Frederick was qualified as an expert in emergency medicine and child sexual examinations. The instant offenses were alleged to have occurred between December 25, 2007, and January 1, 2008. Frederick examined the then eight-year-old victim on January 22, 2008. The victim made statements implicating defendant in the offenses while Frederick questioned her regarding her history. Defendant contends the statements were not necessary to medical diagnosis or treatment, and that the statements were not trustworthy. The prosecution disputes defendant's claims, and argues that if error occurred, it was harmless. We conclude that the trial court did not abuse its discretion by admitting the hearsay evidence.

A. STANDARD OF REVIEW

We review the trial court's decision to admit evidence for an abuse of discretion. Burns, 494 Mich. at 110, 832 N.W.2d 738. But we review de novo preliminary questions of law regarding whether a statute or evidentiary rule applies. People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999). The trial court's decision is an abuse of discretion when...