People of Michigan v. Eddie Brown

926 N.W.2d 879, 326 Mich. App. 185

• Court: Michigan Court of Appeals
• Decided: October 23, 2018
• Docket: 339318
• Status: Published

Opinion

Ronayne Krause, J.

*882 *187 Defendant appeals as of right his jury convictions of three counts of first-degree criminal sexual conduct (CSC-I)-one under MCL 750.520b(1)(a) (sexual penetration with a victim less than 13 years of age) and two under MCL 750.520b(1)(b)( i ) (sexual penetration *188 with a victim at least 13 but less than 16 years of age and a member of the same household)-and one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(b)( i ) (sexual contact with a victim at least 13 but less than 16 years of age and a member of the same household). The trial court sentenced defendant as both a second-offense habitual offender, MCL 769.11, and as a second CSC-I offender against a minor under the age of 13 with respect to one count of CSC-I, MCL 750.520b(2)(c), and as a second CSC-I offender with respect to the other two counts of CSC-I, MCL 750.520f, imposing sentences of life in prison for the CSC-I conviction under § 520b(1)(a), 10 to 40 years in prison for each CSC-I conviction under § 520b(1)(b)( i ), and 5 to 22½ years in prison for the CSC-II conviction, to be served concurrently. We affirm.

I. FACTS AND EVIDENCE

Defendant sexually abused the victim when she was 12 and 13 years old and lived in the same house as defendant. Defendant was the boyfriend of the victim's mother, and he began living in the victim's home while her mother was pregnant with defendant's child. The sexual abuse took place multiple times over the course of approximately five months, beginning with odd, inappropriate statements to the victim in January 2010 and culminating in a final act of sexual assault on or about May 5, 2010. Defendant initially made statements to the victim along the lines of wishing she was her mother, defendant's girlfriend, and other unsettling phrases. The first instance of physical sexual assault took place in February when the victim was still 12 years old. Defendant, under the guise of punishing her for talking to boys, forced the victim to lift her shirt and allow him to put her breasts into his *189 mouth. He then ordered the victim to lie down on the bathroom floor and remove her pants. Defendant then performed cunnilingus on the victim. Defendant's first charge, CSC-I (sexual penetration with a victim under the age of 13), and fourth charge, CSC-II (sexual contact with a victim at least 13 but less than 16 years of age and residing in the same household), arise from this first assault. This was defendant's second CSC-I conviction for penetration of a victim under the age of 13, mandating an automatic sentence of life.

Charges two and three, CSC-I (sexual penetration with a victim between the ages of 13 and 16 who resides within the same household), involved anal and oral penetration of the victim after her thirteenth birthday. Defendant forced the victim on at least one occasion to perform fellatio on him, again under the guise of punishment. Defendant would show up in the victim's room in the early morning hours and often hover or sit on the edge of the bed until the victim woke. Defendant, on at least one occasion, offered the victim a choice between performing oral sex on him and having him perform oral sex on her. On or about May 5, 2010, the final assault took place in the early morning hours. Defendant penetrated the victim anally, required *883 the victim to pull down her night shirt, and ejaculated onto her breast. Later that morning at the bus stop, the victim told her best friend that she didn't feel well because defendant had kept her up all night and that defendant had assaulted her again. She then borrowed her friend's cell phone in order to send a message to another friend, a boy who lived down the street, informing him that she had been assaulted again. Her friend, the boy from down the street, then told the victim's aunt about the abuse while the aunt was babysitting the victim and her siblings that evening. The victim then told her aunt about the abuse *190 herself. The aunt then went inside and told her fiancé the victim's uncle, about the abuse.

The victim disclosed to her aunt and uncle that defendant had staged and taken several indecent photographs of her with his old cell phone. The victim helped her uncle locate the old phone used to take the photographs. Her uncle put the phone in his pocket, but he was unable to view the phone's contents because it was locked by a password. A short time later, the victim's mother and defendant returned home after an evening of running errands. The victim's mother had to return to the store, and the victim's uncle offered to ride with her. Defendant, presumably having noticed the general mood of the people in the house and startled by the uncle's behavior, began to frantically search for the old phone. On the way home from the store, the victim's uncle informed her mother of what the victim had told him and that he was in possession of the old phone.

When the victim's mother and uncle returned home, they both noticed defendant looking for his phone. The victim and her aunt then left the house and were in the process of getting into the uncle's car when defendant approached and asked where the victim was going on a school night. Nothing was said, and the victim went to her uncle's house for the night. Defendant repeatedly called the uncle's phone, asking to speak with the victim. Defendant then left in the mother's van, not informing anyone of where he was going. The uncle later returned to the victim's house, and the victim's mother unlocked the phone. The victim's mother and uncle verified that the pictures existed. Late the next evening or early on the day after, they filed a police report.

At trial, the prosecution presented testimony from the victim regarding the charged instances of sexual *191 abuse, as well as her testimony that defendant took photographs of her with his cell phone. The prosecution introduced four photographs of the victim that were recovered from defendant's phone. The prosecution additionally presented text messages from the victim disclosing the abuse, as well as the testimony of witnesses who corroborated the circumstances surrounding the victim's disclosure of the abuse. The prosecution further presented the testimony of a sexual assault nurse examiner regarding her examination of the victim and the victim's statements. A jury found defendant guilty of the charged offenses.

II. ADMISSION OF PHOTOGRAPHS

Defendant argues that he was denied a fair trial by the admission of photographs depicting the 12-year-old victim's vagina, breasts, and buttocks. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

"In order to preserve the issue of the improper admission of evidence for appeal, a party generally must object at the time of admission." People v. Knox , 469 Mich. 502 , 508, 674 N.W.2d 366 (2004).

*884 At trial, defendant objected to the prosecution's request to admit 11 photographs of the victim from defendant's phone, arguing that the photographs were more prejudicial than probative because of their graphic nature and that the evidence was not necessary because the victim could testify regarding the photographs. The trial court allowed the prosecution to introduce 4 of the proffered 11 photographs. Accordingly, defendant's evidentiary claim is preserved. However, because defendant did not raise an objection on the ground that the admission of the photographs allegedly denied him a *192 fair trial, his constitutional claim is unpreserved. See People v. Canter , 197 Mich. App. 550 , 563, 496 N.W.2d 336 (1992).

"A trial court's decision to admit evidence will not be disturbed absent an abuse of discretion." People v. Denson , 500 Mich. 385 , 396, 902 N.W.2d 306 (2017). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes." People v. McBurrows , 322 Mich. App. 404 , 411, 913 N.W.2d 342 (2017) (quotation marks and citation omitted). Unpreserved claims of constitutional error are reviewed for plain error affecting a defendant's substantial rights. People v. Carines , 460 Mich. 750 , 764, 597 N.W.2d 130 (1999).

B. ANALYSIS

"Photographic evidence is generally admissible as long as it is relevant, MRE 401, and not unduly prejudicial, MRE 403." People v. Gayheart , 285 Mich. App. 202 , 227, 776 N.W.2d 330 (2009). "Exclusion is required under MRE 403 only when the danger of unfair prejudice substantially outweighs the probative value of the evidence." People v. Head , 323 Mich. App. 526 , 541, 917 N.W.2d 752 (2018). "Photographs may be used to corroborate a witness's testimony ...." Id. (cleaned up).

In ruling on the prosecution's request to admit 11 of the 45 photographs of the victim found on defendant's phone, the trial court stated that several of the photographs were "repulsive." The court ruled that the prosecution could only use the photographs in which the victim could identify defendant's hands in the photos. The court refused to admit the other photographs as cumulative and too prejudicial because testimony would be sufficient. Accordingly, the court admitted *193 only People's Exhibits 12 through 15. In each photograph, the victim identified herself or her vagina, as well as defendant's hand. With regard to the first three photographs, she testified that each was taken by defendant.

Trial courts have a duty, at times an unpleasant one, to resolve questions of the admissibility of evidence in cases that run the gamut of antisocial behavior. Doing so sometimes requires the consideration of evidence that a law-abiding member of society would find repulsive, indecent, or obscene, or rather not acknowledge exists. Were this Court to hold that evidence could be excluded for the mere reason that it was unpleasant to consider, evidence of the most probative value might then be excluded from the most heinous of cases.

Generally, photographs that are merely calculated to arouse the sympathies or prejudices of the jury should not be admitted. However, if a photograph is otherwise admissible for a proper purpose, it is not rendered inadmissible merely because it brings vividly to the jurors the details of a gruesome or shocking accident or crime. [ People v. Howard , 226 Mich. App. 528 , 549-550, 575 N.W.2d 16 (1997) (citations omitted).]

*885 The sexual assault of a child is condemned so strongly by society that the mere possession of photographic representations of such acts is a felony punished similarly to murder, robbery, and other serious crimes. See MCL 750.145c. The photographs in this case are shocking, indecent, and unsettling. However, they are illustrative of not only the acts depicted, but of the propensities of the individual who took them, and they were not introduced merely to shock or inflame the jurors. The photographs corroborated the victim's testimony that defendant took the photographs, given the victim's ability to identify defendant's hands, and *194 that he had a sexual interest in her. See Head , 323 Mich. App. at 541 , 917 N.W.2d 752 . They also corroborate the victim's testimony in a more general sense because they are the only direct evidence confirming any part of the victim's testimony. Id . Therefore, any prejudicial taint is more than overcome by their probative value, regardless of how lurid and despicable the photographs themselves may be.

Moreover, a holding that the opposite were true would require this Court to conclude that the trial court had abused its discretion in allowing the photographs to be admitted. Given the trial court's careful consideration of the photographs, its decision to vastly limit the number that could be admitted at trial, and its requirement that the victim be able to identify the defendant's hands in the admitted photographs, we instead conclude that the trial court acted well within its discretion. Although the photographs were perhaps the most wrenching of the evidence against defendant, they served merely to corroborate the testimony of the victim. Id. Given our holding that the photographs' probative value far outweighs any prejudice, their admission at trial was proper.

Because application of MRE 403 to any photographs that a party seeks to admit requires a balancing of factors, we emphasize that sexually explicit photographs used as evidence of a sexual assault of a minor cannot be unfairly prejudicial per se . As our prior decisions have indicated, and as the trial court did in this case, trial courts must weigh the prohibitive value against the danger of any unfair prejudice that admission might cause. A decision on the admissibility of photographs in such cases cannot be based solely on the graphic nature of the photographs. See, e.g., Howard , 226 Mich. App. at 549-550 , 575 N.W.2d 16 ; Head , 323 Mich. App. at 541 , 917 N.W.2d 752 .

*195 III. QUALIFICATION OF EXPERT WITNESS

Next, defendant argues that the trial court committed errors requiring reversal by qualifying a prosecution's witness, nurse Katrina Sadowski, as an expert in sexual abuse trauma and by admitting her testimony when she was not certified by the state as a sexual assault nurse examiner (SANE). We disagree.

Defendant objected at trial to the qualification of Sadowski, but he did not object to her testimony regarding the victim's body language or the absence of injury in most sexual assault cases. Therefore, defendant preserved his challenge to Sadowski's qualification as an expert generally, but he did not preserve his remaining challenges to her testimony. See Knox , 469 Mich. at 508 , 674 N.W.2d 366 ; Canter , 197 Mich. App. at 563 , 496 N.W.2d 336 . This Court reviews for an abuse of discretion a trial court's decision on an expert's qualifications, as well as a trial court's *886 decision to admit or exclude expert witness testimony. People v. Dixon-Bey , 321 Mich. App. 490 , 496, 909 N.W.2d 458 (2017). "Unpreserved claims of evidentiary error are reviewed for plain error affecting the defendant's substantial rights." People v. Benton , 294 Mich. App. 191 , 202, 817 N.W.2d 599 (2011).

MRE 702 governs the admissibility of expert testimony and provides:

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, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the *196 form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

At trial, Sadowski testified that she held an associate's degree in nursing and a nursing license, received sexual assault training through an online course, had worked at Haven since 2009, and had performed approximately 30 examinations as a sexual assault nurse examiner. Sadowski had not yet received her state certification as a sexual assault nurse examiner because she had not been available when the test was offered. She had never written any articles and had never previously testified in court, although neither is required to qualify as an expert witness. After defendant objected to Sadowski's qualifications as an expert in forensic nursing, Sadowski further testified that the 30 examinations that she had performed were based on her forensic-nursing training, she had earned approximately 36 continuing education credits, and she completed reports with each examination. The trial court qualified her as an expert in forensic nursing.

Defendant's primary argument is that the trial court abused its discretion by qualifying Sadowski as an expert because she had not yet received certification from the state. However, MRE 702 does not require that an expert be certified by the state in the particular area in which the expert is qualified. Rather, an expert may be qualified on the basis of "knowledge, skill, experience, training, or education ...." MRE 702. Sadowski, most importantly, was a certified nurse. The fact that she had yet to receive her SANE certification does not render her incompetent as a medical professional. To require some form of certification in a specific subfield of a larger profession in order to serve *197 as an expert witness would cause not only absurd results, but mandate the creation of new certifications any time a novel or rare issue were before a trial court.

To the extent that defendant challenges specific portions of Sadowski's testimony on grounds other than her general lack of qualification as an expert, his claims are without merit. First, defendant challenges Sadowski's testimony that genital injury is not present in most sexual-assault cases. Secondly, defendant challenges Sadowski's testimony that during her examination of the victim, the victim was "shielding herself" and "had her arms huddled around herself...." Defendant points out that the prosecutor referred to this testimony in her rebuttal argument. Defendant argues that Sadowski's testimony improperly enhanced the victim's credibility by indicating that, even though there was no evidence of trauma, the victim's body language implied that the sexual assaults occurred. He further argues that Sadowski's testimony was beyond her expertise, *887 substantially prejudicial, and without foundation.

With regard to Sadowski's testimony regarding the lack of injury in most sexual assault cases, this testimony was properly admitted because it was based on Sadowski's specialized knowledge and assisted the jury in understanding the evidence in this case. See MRE 702 ; see also People v. McLaughlin , 258 Mich. App. 635 , 657-658, 672 N.W.2d 860 (2003). The lack of the appearance of injury in sexual-assault cases is not a new or novel theory. Additionally, Sadowski's testimony regarding the victim's body language was not based on Sadowski's specialized knowledge, but on her "perception of the witness." This testimony was admissible lay testimony under MRE 701, rather than as expert testimony. See *198 McLaughlin , 258 Mich. App. at 657-658 , 672 N.W.2d 860 . Accordingly, the admission of Sadowski's testimony did not constitute plain error affecting defendant's substantial rights.

IV. PRESENTENCE INVESTIGATION REPORT

Finally, defendant argues that this Court should remand this matter to the trial court because the cover sheet of his presentence investigation report (PSIR) contains inaccurate information that must be corrected. We disagree.

"A challenge to the validity of information contained in the PSIR may be raised at sentencing, in a proper motion for resentencing, or in a proper motion to remand." People v. Lloyd , 284 Mich. App. 703 , 706, 774 N.W.2d 347 (2009). At the sentencing hearing, defendant objected to an error on page 6 of the PSIR, but he did not object to any alleged error on the cover sheet. Defendant has not filed a motion for resentencing or a motion to remand. Therefore, this issue is unpreserved. See id . ; Canter , 197 Mich. App. at 563 , 496 N.W.2d 336 . Unpreserved claims involving the accuracy of a PSIR are reviewed for plain error affecting the defendant's substantial rights. People v. McCrady , 244 Mich. App. 27 , 32, 624 N.W.2d 761 (2000).

"A judge is entitled to rely on the information in the presentence report, which is presumed to be accurate unless the defendant effectively challenges the accuracy of the factual information." People v. Grant , 455 Mich. 221 , 233-234, 565 N.W.2d 389 (1997) (citations omitted). Moreover, "[t]he Department of Corrections *199 relies on the information contained in the PSIR to make critical decisions regarding a defendant's status. Therefore, it is imperative that the PSIR accurately reflect the sentencing judge's determination regarding the information contained in the report." Lloyd , 284 Mich. App. at 705-706 , 774 N.W.2d 347 (citations omitted).

Defendant claims that the cover sheet of his PSIR improperly lists his sentences for Counts 2 and 3 as "LIFE." Defendant is correct that the trial court did not sentence him to life imprisonment on Counts 2 and 3, but rather to 10 to 40 years in prison for each count, as reflected in the amended judgment of sentence. Nonetheless, defendant has not demonstrated an error on the cover sheet of the PSIR. The PSIR is prepared before sentencing; therefore, it cannot contain information regarding the sentence imposed by the court at the sentencing hearing. See MCL 771.14. This is supported by the fact that the "Criminal History" section of the PSIR leaves blank the sentences for defendant's *888 current offenses. Although the cover sheet refers to the "Max" sentence, it apparently lists, and informed the trial court of, the maximum sentence possible for each of defendant's current convictions, which was life imprisonment for Counts 1, 2, and 3. See MCL 750.520b(2). Accordingly, defendant fails to establish any plain error on the cover sheet of the PSIR.

V. CONCLUSION

Affirmed.

Murray, C.J., and Borrello, J., concurred with Ronayne Krause, J.