People v. Hallak

Decision Date28 May 2015
Docket NumberDocket No. 317863.
Citation310 Mich.App. 555,873 N.W.2d 811
Parties PEOPLE v. HALLAK.
CourtCourt of Appeal of Michigan — District of US

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Douglas R. Lloyd, Prosecuting Attorney, and Brent E. Morton, Assistant Prosecuting Attorney, for the people.

Tieber Law Office, East Lansing (by F. Martin Tieber and Kristoffer W. Tieber ) for defendant.

Before: BOONSTRA, P.J., and SAAD and MURRAY, JJ.

MURRAY, J.

Defendant, a medical doctor, was convicted by a jury of his peers of second-degree criminal sexual conduct (CSC–II), MCL 750.520c(1)(a) (sexual contact with victim under 13 years of age), third-degree criminal sexual conduct (CSC–III), MCL 750.520d(1)(b) (sexual penetration by force or coercion), and six counts of fourth-degree criminal sexual conduct (CSC–IV), MCL 750.520e(1)(b) (sexual contact by force or coercion). On appeal, defendant argues that the evidence was insufficient to support his CSC–II conviction, that his sentence to lifetime electronic monitoring violates his state and federal constitutional rights against cruel and/or unusual punishment, unreasonable searches, and double jeopardy, and that the trial court erred in utilizing facts not found by the jury in scoring the sentencing guidelines. For the reasons that follow, we reject each of defendant's arguments, and consequently affirm both his conviction and sentence.

I. MATERIAL FACTS AND PROCEEDINGS

Defendant's CSC–II conviction, the only conviction he challenges on appeal, is based on his improperly touching a 12–year–old patient, SB. As a result, we will only recount the material facts presented at trial that are relevant to that conviction.

On March 30, 2010, 12–year–old SB saw defendant for a medical exam. SB testified that while defendant was facing her with his back to the door and was either checking her throat with a tongue depressor, or was just holding the tongue depressor, he "cupped" her right breast for between 1 and 30 seconds with his left hand on the outside of her shirt. Defendant explained to SB that he was checking her breathing.

SB's mother, whom we will refer to as MB, testified that defendant's wife, Dr. Debbie Hallak, was SB's primary care doctor. Dr. Hallak's practice was on one side of the office; the urgent care clinic operated by defendant was on the other side. MB testified that on March 30, 2010, SB, who had irritable bowel syndrome (among other conditions), saw defendant for stomach issues1 at the urgent care clinic. MB explained that payment was always made before seeing a physician at this office but, on this day, there was a problem processing the insurance. As a result, MB dealt with the payment issue while a nurse obtained SB's height and weight before escorting her into an examination room. When MB finished with the insurance issue, she proceeded to the examination room, expecting to see Dr. Hallak with her daughter. When she walked in, MB saw defendant facing her daughter. His left hand held a stethoscope to SB's right side. However, his right hand was holding SB's left breast with the shirt and bra removed. According to MB, when she asked "what the hell he was doing," defendant left the room. When MB again asked defendant what he was doing, he asserted that MB was a bad mother because SB had not brushed her teeth. MB testified that defendant eventually said he had removed SB's bra because he could not hear her heart beat and that Dr. Hallak subsequently told her that was normal or that it would not be anything to worry about if he moved the bra because the wire got in the way.2

For his part, defendant denied ever deviating from his policy of having a parent or guardian in the examination room when seeing a child, and specifically denied being alone with SB. Defendant testified that when he was examining SB's throat, he would have had the tongue depressor in one hand and a flashlight in the other; he denied fondling her breast, and denied that MB yelled at him about fondling her daughter's breast. He also denied examining SB with a stethoscope that day.

Dr. Grant Greenberg testified as a prosecution expert witness in family practice and addressed ethical and acceptable practices. Relative to SB, he opined that while it might be appropriate for a parent to leave the examining room so a minor could discuss something in private with the doctor, this would only be done if the parent agreed. According to Dr. Greenberg, it would not be medically ethical or acceptable to touch a patient's breast while examining her throat. Dr. Greenberg additionally noted that touching a patient's breast during this type of examination would be counterproductive given the additional tissue in that area, and that touching the breast while examining the patient's chest with a stethoscope was equally unnecessary, problematic, and unethical.

Dr. Joseph Shufeldt testified as a defense expert in the area of urgent care, family practice in the urgent care setting, and ethical and acceptable medical practices. He agreed that there should be a chaperone with an 11– or 12–year–old minor unless the parent otherwise consents.

Along with this testimony that directly related to the touching of SB, the jury heard testimony from several witnesses who also claimed to have experienced similar treatment from defendant while under his care. Additionally, the jury heard the other victims testify in the cases consolidated with SB's.

After the jury's verdict, the trial court sentenced defendant to prison terms of 57 to 180 months for the CSC–II conviction, 85 to 180 months for the CSC–III conviction involving another victim, and 16 to 24 months for each CSC–IV conviction also involving other victims. The court additionally ordered lifetime electronic monitoring as part of defendant's CSC–II sentence. We now turn to defendant's arguments.

II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE

Defendant seeks to overturn his CSC–II conviction on the basis that his state and federal rights to due process of law3 were violated because there was insufficient evidence on the intent element of the crime, i.e., that the touching of SB was for a sexual purpose. The most that was established, according to defendant, was that he had noticed (and mentioned to MB) during an earlier abdominal examination that SB had pubic hair and that he had touched her breast while checking her breathing or examining her heart with a stethoscope. Defendant maintains that touching of intimate body parts occurs often during such an examination and such intentional touching itself cannot establish a sexual purpose in this context. Because there were no other actions or communications that suggested the purpose was sexual, and any actions and communications relative to other victims did not establish a sexual purpose as to SB, defendant asserts that there was insufficient evidence upon which to convict him.

According to defendant, upholding this conviction would put doctors in danger of CSC prosecutions for "virtually any physical examination."

In addressing this issue, our task is to determine whether any rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. We resolve all conflicting evidence in favor of the prosecution, while acknowledging that circumstantial evidence and reasonable inferences may be sufficient to prove the elements of the crime. People v. Lockett, 295 Mich.App. 165, 180, 814 N.W.2d 295 (2012).

MCL 750.520c(1)(a) establishes the crime of CSC–II and proscribes sexual contact with a person under 13 years of age. "Sexual contact" is statutorily defined to include "the intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification," MCL 750.520a(q), among other reasons. Defendant does not contest the victim's age or that there was sufficient evidence of a touching. Instead, as noted above, he argues only that the evidence failed to establish that the touching was intended for the purpose of sexual arousal or gratification.

"It is a well-established rule that a jury may convict on the uncorroborated evidence of a CSC victim." People v. Lemmon, 456 Mich. 625, 642 n. 22, 576 N.W.2d 129 (1998) ; see also MCL 750.520h. Moreover, "because it can be difficult to prove a defendant's state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant's state of mind, which can be inferred from all the evidence presented." People v. Kanaan, 278 Mich.App. 594, 622, 751 N.W.2d 57 (2008).

Upon our review of the record, we hold that the evidence was sufficient to allow a jury to conclude that defendant did more than just touch SB's breast during a medical examination, and that it was for a sexual purpose. SB's testimony that defendant "cupped" her breast, coupled with MB's witnessing of the event and Dr. Greenberg's testimony that it would not be medically ethical or acceptable to touch a patient's breast while examining her throat, was sufficient for the jury to conclude that the touching was not for a legitimate medical purpose. If not for a medical purpose, the "cupping" was sufficient to give rise to an inference that it was for a sexual purpose, particularly in light of defendant's various explanations for the situation when confronted by MB. Accordingly, there was sufficient evidence to convict defendant of CSC–II based on sexual contact with a person under the age of 13.

We likewise reject defendant's assertion that upholding his conviction could expose those in the medical field to unwarranted CSC prosecutions for any sort of conduct occurring during a physical examination. First, the facts presented to the jury in defendant's case were not that of a routine...

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