People v. Buchner

UNPUBLISHED

Eaton Circuit Court LC No. 2018-020356-FC

Before: Sawyer, P.J., and Riordan and Redford, JJ.

Per Curiam.

Defendant was convicted by a jury of three counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(2)(b) (sexual penetration of victim under age 13 by defendant age 17 or older) (two counts), and MCL 750.520b(1)(b)(i) (sexual penetration of victim between 13 and 16 years of age and a member of the same household) (one count); and two counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(b)(i) (sexual contact with victim between 13 and 16 years of age and a member of the same household). Defendant was sentenced to serve 50 to 90 years' imprisonment for his CSC-I convictions, concurrent with 10 to 15 years' imprisonment for his CSC-II convictions. Defendant appeals by right. Defendant argues that he is entitled to a new trial because the prosecutor elicited inadmissible hearsay testimony; an expert witness invaded the province of the jury by commenting on the complainant's credibility; and trial counsel was ineffective for failing to object to the hearsay testimony and the expert witness's testimony, failing to impeach the complainant and another witness with the complainant's prior inconsistent statements, failing to file a motion to suppress defendant's statements to police, and failing to call an additional witness. Defendant also argues that the trial court abused its discretion by imposing a sentence that departed from the minimum guidelines range. We affirm.

I. FACTUAL BACKGROUND

Defendant was accused of sexually abusing KT for multiple years when KT was 10 to 13 years old. Defendant had been in a dating relationship with KT's mother, GB, since KT was six years old, shortly after KT's father died. KT testified that on multiple occasions, defendant fingered and licked her vagina, rubbed his penis inside her vagina, sucked on her breasts, kissed

her on the lips, put his penis in her butt, and made her suck his penis. She testified that on multiple occasions, defendant would ask her to get in the shower with him. Once there, defendant would wash her body, make her wash his body, and make her suck his penis. She also described more than one occasion on which defendant tied her ankles and wrists to his bed, covered her face with a red bandana or a Halloween mask, then sexually assaulted her. KT testified that she would repeatedly scream "No," and testified that it was very painful. KT testified that her mother was at work when the abuse occurred. KT described another specific incident in which defendant made her shower with him, washed her, then followed her into her bedroom, pulled down her shorts, and licked her vagina. KT testified that defendant told her that if she let him do what he wanted, he would buy her a phone, and that he purchased her a phone the day after this incident. The next week, KT expressed suicidal ideations at school, and disclosed the abuse to school counselors. She stated that she had made previous disclosures to her friend, CM; her ex-boyfriend, GL; and her mother. KT's mother denied that KT disclosed the abuse and further stated that she did not believe KT. She voluntarily surrendered her parental rights to KT and married defendant.

A detective and a CPS investigator conducted a forensic interview with KT, who described defendant's sexual abuse in detail. That same day, the detective asked defendant to come in for an interview, and defendant agreed. Defendant reported that he had ingested a few shots of tequila, so the detective offered to give him a ride to the police station, and defendant agreed. Defendant denied sexually abusing KT, although he stated that he had showered with her before. Defendant claimed that he had washed KT's hair while she was in the shower that week, but denied that he washed her body.

At trial, Dr. Stephen Guertin was qualified as an expert in issues of child abuse and sexual abuse, and testified that he had evaluated KT. He stated that KT had been too embarrassed to participate in a physical examination, but he had taken her history and she described the abuse. Dr. Guertin took blood samples from KT to test her for sexually transmitted infections. KT's friend, CM, testified that KT disclosed the abuse to her when she was in fourth grade, and CM stated that she reported it to their fourth-grade teacher. GL also acknowledged that KT had disclosed the abuse to him. Defendant's adult daughter, KV, testified that when she was 14 years old, defendant had inappropriately touched her. She testified that while staying overnight at defendant's home, defendant had tried to unhook her bra and massage her breasts, then straddled her while he was naked. KV testified that she eventually got away from defendant and reported the incident to police, although nothing ever came of it. The jury found defendant guilty of three counts of CSC-I and two counts of CSC-II.

At sentencing, KT discussed how defendant's actions affected her life. She stated that she had lost her self-confidence, felt trapped, and became suicidal. She stated that she was on medication and was receiving therapy, but had been through multiple foster home placements and was eventually placed in a residential facility. She stated that she was learning to be a strong person, but she was not over it. The prosecutor argued that defendant had little chance for rehabilitation because he had not admitted that he had a problem, and argued that the court should use defendant's sentencing as both punishment and to create a deterrent effect for these types of crimes. He also stated that a longer sentence would protect other victims from defendant because he would likely have done it again. The trial court agreed with the prosecutor and sentenced defendant to 50 to 90 years' imprisonment for CSC-I, an upward departure of 315 months from

the minimum guidelines range; and 10 to 15 years' imprisonment for CSC-II, an upward departure of 20 months from the minimum guidelines range.

II. ANALYSIS

A. HEARSAY

Defendant first argues that the trial court abused its discretion by allowing the prosecutor to elicit inadmissible hearsay testimony from CM, GL, the detective, and Dr. Guertin. We disagree.

Defendant did not preserve this issue by making a timely objection at trial. People v Considine, 196 Mich.App. 160, 162; 492 N.W.2d 465 (1992). We review unpreserved errors for plain error affecting substantial rights. People v Jones, 468 Mich. 345, 356; 622 N.W.2d 376 (2003). To avoid forfeiture of the claim, a defendant must show that "(1) [an] error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." Id. at 355. "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). Hearsay evidence is generally inadmissible unless there is an exception. MRE 802. However, if "the proponent of the evidence offers the statement for a purpose other than to prove the truth of the matter asserted, then the statement, by definition, is not hearsay." People v Musser, 494 Mich. 337, 350; 835 N.W.2d 219 (2013), citing MRE 801(c).

Defendant first argues that CM's testimony constituted inadmissible hearsay. When asked if KT had "told [her] about something that was going on with [defendant]," CM said yes. CM then described KT's demeanor during the conversation and stated that the disclosure happened when she and KT were in fourth grade. MRE 801(a) defines a "statement" as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." In this case, CM did not repeat any oral or written assertions that KT made. Therefore, her testimony was not hearsay. Similarly, defendant argues that GL's testimony constituted inadmissible hearsay. However, GL did not testify to any statements that KT made, but simply confirmed that she had made a disclosure:

Q. Was there a time that [KT] told you about some things that [defendant] did to her?

A. Yes.

This testimony was not hearsay. The only testimony by GL that could be considered hearsay was elicited on cross-examination by defense counsel, and "[a] defendant should not be allowed to assign error on appeal to something his own counsel deemed proper at trial." People v Green, 228 Mich.App. 684, 691; 580 N.W.2d 444 (1998).

Defendant next argues that the detective's testimony constituted inadmissible hearsay. However, none of his testimony was hearsay because it was not offered to prove the truth of the matter asserted, but was offered to explain the detective's investigation. We have held that "a statement offered to show why police officers acted as they did is not hearsay." People v Chambers, 277 Mich.App. 1, 11; 742 N.W.2d 610 (2007). In this case, the detective indicated that he told KT's mother about the disclosure to explain the context of his conversation with KT's mother and explain his next step in the investigation. Similarly, he testified that he built a rapport with KT during the forensic interview and that she disclosed abuse, but he did not repeat any statements that she made. These statements were not hearsay both because they were not "statements" by KT pursuant to MRE 801(a) and because the testimony explained why the detective acted as he did.

Defendant next argues that Dr. Guertin's testimony was inadmissible hearsay. Unlike CM's and GL's testimony,...