People v. Daley

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. PATRICK JOHN DALEY, Defendant-Appellant.

No. 351774

Court of Appeals of Michigan

December 2, 2021

UNPUBLISHED

Ingham Circuit Court LC Nos. 18-001036-FH; 18-001037-FH 19-000370-FH; 19-000371-FH; 19-000372-FH

Before: Rick, P.J., and O'Brien and Cameron, JJ.

PER CURIAM.

Defendant Patrick John Daley, appeals by right his convictions following a jury trial, of 18 counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a); MCL 750.520c(2)(b) (sexual contact with person under 13 years of age by defendant 17 years of age or older). Defendant was sentenced to serve 7 to 15 years' imprisonment. We affirm.

I. FACTUAL BACKGROUND

Defendant was a fifth-grade middle school teacher during the 2016/2017 and 2017/2018 school years. According to BV, who was one of defendant's students, during quiet reading time, defendant touched BV's thigh below and to the sides of his underwear during quiet reading time, and he touched BV's buttocks when they hugged. BV's brother, ZV, also testified that defendant touched his buttocks when they hugged when defendant slowly lowered his hand to ZV's buttocks. LC testified that defendant, who was not his teacher, crouched down by LC while he was doing schoolwork in the hallway. According to LC, after exchanging greetings, defendant put his hand on LC's lower back, moved it slowly down to LC's buttocks, and then moved it farther down to briefly touch LC's testicles. At the time, LC thought it was an accident.

A paraprofessional testified that she saw defendant inappropriately touch two students, IN and CB. It happened in the school's computer lab during the 2017/2018 school year. The paraprofessional glanced up and saw defendant's hand on IN's buttocks in a way that she immediately thought was wrong. She then saw defendant touch CB's hip and buttocks area while CB was seated. She reported the incident. After her report, defendant asked her to work in other locations than his classroom. IN testified that defendant touched his buttocks over his clothing when he sought help from defendant in the computer lab. However, CB testified that defendant did not touch him in the computer lab.

According to MM, defendant touched MM on the legs and groin while defendant was crouched down to answer MM's questions, and he touched MM on the butt while MM was getting help from defendant at his desk. OR, another student of defendant, testified that she saw defendant touch MM's buttocks more than once during the school year. She also sat next to MM and saw defendant touch MM's buttocks while the class was reading.

MF testified that defendant rubbed his back, buttocks, and groin when he went to defendant's desk for help. IN testified that he saw defendant touch MF on the buttocks at defendant's desk. CS also testified that defendant touched his buttocks when he went up to defendant's desk to ask questions. According to CS, defendant placed his hand on CS's buttocks. OR said she saw defendant put his hand on CS's back and move it down to CS's buttocks a few times.

According to JG, who was in defendant's classroom for a special program, defendant approached while JG was seated and working on a worksheet. Defendant asked how it was going, squatted down, rubbed JG's inner thigh, and moved his hand toward JG's penis. JG felt uncomfortable and told defendant not to touch him. Defendant walked away, but JG did not immediately tell anyone because he felt scared and was not sure how people would react.

The principal testified that students from defendant's class during the 2017/2018 school year made concerning statements. The students were interviewed, the principal secured a substitute teacher, and human resources involved law enforcement. Students testified that there were rumors in the school. Some students testified that their parents asked them questions about defendant. Students also testified that they did not think anything of the touches or thought they were accidental before defendant was removed from the school.

At trial, Thomas Cottrell testified as an expert witness, whose expertise was in child sexual abuse and "the dynamics surrounding child sexual abusive episodes." According to Cottrell, it is a common misconception that children will be afraid of their assailants. He testified that most child sexual abuse occurs within known relationships. Another misconception is that all children will be traumatized by abuse. Instead, different children may display different reactions, including being confused, upset, or puzzled. A third common misconception is that children will immediately disclose sexual assault. Children might delay disclosing assault for a variety of reasons. Finally, Cottrell explained "grooming" as a process by which contact with a child is normalized by being incrementally increased over time.

On cross-examination, Cottrell agreed that forensic interviews could be tainted by rumors and gossip, and that conversations could distort a child's perceptions. He agreed that children were subject to suggestibility from conversations and the media. He explained that if a child was told something by a valued person, that child might shape memories around what they were told rather than what actually happened. Cottrell also agreed that there had been no scientific testing regarding grooming and that grooming was a descriptive term that required taking allegations as true and looking backward to determine a person's intent.

The jury found defendant guilty of touching MM, IN, JG, BV, MF, CS, and LC. The jury found defendant not guilty of five counts of touching TM, whose testimony differed significantly from the other students, and the jury was unable to answer a final count regarding TM, which the prosecution ultimately dismissed. Defendant's presentence investigation report (PSIR) indicated that defendant's sentencing guidelines range was minimum sentence of 36 to 71 months in prison for all counts, but the reporter opined that defendant's apathy and lack of remorse toward the victims was concerning and that defendant's behavior warranted an upward departure. The trial court departed upward from the sentencing guidelines on the basis that the offense variables (OVs) did not accurately reflect the severity of defendant's conduct, which involved numerous victims who had looked up to defendant and had taken place in a school. The court found that it was reasonable and proportionate for defendant to serve 84 to 180 months in prison.

II. EXPERT WITNESSES

Defendant raises several arguments concerning the admissibility and propriety of Cottrell's testimony. He also argues that defense counsel provided ineffective assistance related to Cottrell's testimony and whether defendant should have called a separate expert. We reject these arguments.

This Court reviews for an abuse of discretion the trial court's decision to admit evidence. People v Thorpe, 504 Mich. 230, 251; 934 N.W.2d 693 (2019). The court abuses its discretion when its decision falls outside the range of principled outcomes. Id. at 252. Generally, a defendant's ineffective assistance of counsel claim "is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). However, a defendant must move the trial court for a new trial or evidentiary hearing to preserve the defendant's claim that his or her counsel was ineffective. People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). When no hearing regarding the effectiveness of counsel was held, this Court's review is limited to mistakes apparent from the record. People v Riley, 468 Mich. 135, 139; 659 N.W.2d 611 (2003). Defendant has not preserved his ineffective assistance arguments and no hearing was held in this case.

MRE 702 provides the mechanism by which experts may offer testimony:

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 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.

The trial court has "a fundamental duty to ensure that the proffered expert testimony is both relevant and reliable." People v Kowalski, 492 Mich. 106, 120; 821 N.W.2d 14 (2012). This inquiry is flexible because there are many different kinds of experts and expertise. Id.

First, defendant argues that Cottrell's testimony was not necessary to assist the trier of fact. We disagree because Cottrell's testimony addressed common misconceptions that might confuse the average person.

The threshold inquiry when admitting expert testimony is whether the proposed testimony will assist the trier of fact to understand the evidence or determine a fact in issue. Kowalski, 492 Mich. at 121. This determination "is a commonsense inquiry that focuses on whether the proposed expert testimony is on a matter that would be commonly understood by the average person." Id. at 123. Experts are permitted to explain behavior that is contrary to the average person's commonsense assumptions, or to address behavioral traits that may create confusion in the minds of the jury. Id. at 123-124. This includes testimony that identifies myths or misconceptions. People v Peterson, 450 Mich. 349, 372-373; 537 N.W.2d 857 (1995), amended 450 Mich. 1212 (1995).

In this case, Cottrell testified that there are several common misconceptions about child sexual abuse, including that...