Opinion
No. 346675
02-20-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JEROME MOORE, JR., Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court
LC No. 2017-002362-FH Before: REDFORD, P.J., and CAVANAGH and SERVITTO, JJ. PER CURIAM.
Defendant appeals as of right his jury convictions of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(c) (during commission of another felony), assault with intent to commit CSC involving sexual penetration, MCL 750.520g(1), and assault of a prison employee, MCL 750.197c(1). We affirm.
I. FACTUAL HISTORY
On June 30, 2016, the victim was at work, at the Macomb Correctional Facility (the prison), and providing mental health therapy to defendant, in her capacity as a clinical social worker. As the therapy session concluded, defendant's facial expression changed from calm to an intense stare. The victim felt uncomfortable and physically moved toward the door to indicate that defendant's therapy session was over. Defendant did not move. Instead, defendant requested a crossword puzzle. In response, the victim gave defendant a couple of crossword puzzles and told defendant to feel free to submit a request for a treatment session.
When defendant stood up, the victim noticed a large hole in the "crotch" of defendant's pants, and that defendant's pants pockets were cut out. The victim opened her door and told defendant that he could not have holes in his pants when he returned for therapy. The victim tried to usher defendant out of her door, but defendant stepped back into the victim's office, and asked the victim whether she knew how to complete the crossword puzzles she provided him. After the victim told defendant she did not know how to complete the puzzles, defendant opened his arms for a hug. The victim stepped back toward her desk and told defendant that hugs are not given.
Defendant lunged at the victim, tightly wrapped his arms around her, covered her mouth with his hand, and pushed her onto her desk. Defendant took his other hand and unbuckled the victim's pants. The victim was unable to reach her personal protection device, or move her head away from defendant's hand and scream. Defendant and the victim struggled, and defendant fell on top of the victim onto the floor. The victim testified that defendant managed to insert his hand, almost to his elbow, into the front of her pants.
Defendant tried to move the victim's underwear aside to put his fingers inside of her vagina. Defendant clawed and scratched at the victim's genitals. Max Abelman (Abelman), Mark Levine (Levine), and Karen Solgot (Solgot), psychologists who worked at the prison, heard a loud thump and a female scream come from the victim's office, and ran into the victim's office. Abelman and Levine tried to pull defendant away from the victim, but to no avail. Officer John Klimowicz (Klimowicz), the acting resident unit manager at the prison, entered the victim's office and attempted to pull defendant off the victim by grabbing defendant's leg. Defendant continued to resist. Klimowicz then grabbed defendant by his neck and pulled defendant off the victim.
The victim testified that defendant did not stop attempting to digitally penetrate her until defendant was pulled off of her. Jamie Kates, a registered nurse (RN) employed at the prison, went to the victims' office and treated the victim for a bleeding right arm abrasion. Solgot accompanied the victim to Turning Point's Forensic Nurse Examiner Program, where the victim was treated by Gail Lippert (Lippert), a sexual assault nurse examiner (SANE).
II. ADMISSION OF EVIDENCE
Defendant argues that the trial court abused its discretion when it allowed the prosecution to examine Lippert about statements the victim made to Lippert during the victim's sexual assault examination. Defendant also argues that the trial court abused its discretion when it admitted Lippert's sexual assault examination report into evidence. We disagree with both claims.
A. STANDARD OF REVIEW
Defendant's arguments regarding the trial court's admission of Lippert's testimony about the victim's statements and Lippert's sexual assault examination report are preserved for review. When properly preserved, we review the trial court's decision to admit evidence for an abuse of discretion but any preliminary questions of law are reviewed de novo. People v Mann, 288 Mich App 114, 117; 792 NW2d 53 (2010). Preliminary questions of law include whether the evidence was inadmissible under a rule of evidence or statute. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011).
Defendant also argues that the victim's statements to Lippert were testimonial within the meaning of the Sixth Amendment, and thereby inadmissible. In support, defendant argues that it is impossible to separate the forensic and medical aspects of Lippert's treatment. Defendant did not raise this issue in the trial court, thus, the issue is unpreserved and reviewed for plain error affecting defendant's substantial rights. See People v Carines, 460 Mich 750, 752-753; 597 NW2d 130 (1999) (citations omitted). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. at 763 (citations omitted). The third aspect of the plain error test requires a showing of prejudice. Id. Reversal is warranted only where the plain error leads to "the conviction of an actually innocent defendant," or affects the "fairness, integrity, or public reputation" of the judicial proceeding. Id. at 763-764.
B. ANALYSIS
1. LIPPERT'S TESTIMONY
Defendant argues that the trial court abused its discretion when it allowed the prosecution to question Lippert about statements the victim made to Lippert during the victim's sexual assault examination. We disagree.
" 'Hearsay' is a statement, other than the 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 is inadmissible unless it falls under one of the recognized exceptions. People v Stamper, 480 Mich 1, 3; 742 NW2d 607 (2007), citing MRE 802. Relevant to this case, MRE 803(4) creates an exception to the hearsay rule for "[s]tatements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment." People v Garland, 286 Mich App 1, 8; 777 NW2d 732 (2009), quoting MRE 803(4).
In Mahone, this Court considered the applicability of MRE 803(4) in the context of sexual assault examinations and explained:
Statements made for the purpose of medical treatment are admissible pursuant to MRE 803(4) if they were reasonably necessary for diagnosis and treatment and if the declarant had a self-interested motivation to be truthful in order to receive proper medical care. This is true irrespective of whether the declarant sustained any immediately apparent physical injury. Particularly in cases of sexual assault, in which the injuries might be latent, such as contracting sexually transmitted diseases or psychological in nature, and thus not necessarily physically manifested at all, a victim's complete history and a recitation of the totality of the circumstances of the assault are properly considered to be statements made for medical treatment. [Mahone, 294 Mich App at 214-215 (citations omitted).]Defendant argues that the victim's statements to Lippert were not reasonably necessary for the diagnosis and treatment of the victim and were, therefore, inadmissible hearsay and not subject to any exception. Defendant's argument is without merit.
Lippert testified in detail regarding her examination of the victim, including statements made by the victim during that examination. Lippert reported the victim said:
Jerome Moore, jumped on me. He had looked at me funny. Looking at my boobs. . . . He leaned into me. Tried to hug me. I told him we don't hug. He had his hand on my mouth. He pushed me into the office. I screamed. I fell. I was fighting
him to get off of me. He tried to get his hand in my pants over my underwear. He was trying to get past my underwear and penetrate me. My vagina. I was pushing him away from me. He was digging at me. My vagina. He didn't get past my underwear.Thus, the victim described to Lippert how defendant put his hand into her pants, and what defendant was doing with his hand while it was in her clothing.
The victim's statements were reasonably necessary for diagnosis and treatment of the victim's physical injuries because they assisted Lippert with planning for the victim's care. Lippert examined the outer part of the victim's vagina, and noted that the victim had a red abrasion and a bleeding tear on her labia majora. Lippert testified that the nature of defendant's assault did not warrant an internal examination. In light of the victim's injuries and statement that defendant was digging in her genital area, Lippert determined that the victim needed medication because of her potential exposure to HIV. Lippert's testimony was consistent with the victim's in-court testimony of what occurred, such as when the victim testified that defendant was "[c]lawing and scratching" at her genital area. Additionally, Lippert concluded that the victim's account of what occurred was consistent with the victim's injuries. Thus, the victim's statements to Lippert were admissible under MRE 803(4) because they were made for the purposes of medical treatment and diagnosis. See Mahone, 294 Mich App at 214-215 (citations omitted). Accordingly, the trial court did not err when it allowed the prosecution to examine Lippert about statements the victim made during the victim's sexual assault examination.
Defendant also argues that the victim's statements to Lippert were testimonial within the meaning of the Sixth Amendment, and thereby inadmissible. Defendant suggests that it is impossible to separate the forensic and medical aspects of Lippert's treatment, affecting their testimonial nature. We disagree.
Defendant cites cases from foreign jurisdictions to establish that statements made to sexual assault nurse examiners are testimonial. None of the cases defendant cited are binding on this Court. See People v Lewis, 322 Mich App 22, 29 n 3; 910 NW2d 404 (2017).
"Both the United States and Michigan constitutions guarantee a criminal defendant the right to confront the witnesses against him or her." Garland, 286 Mich App at 10, citing US Const, Am VI; Const 1963, art 1, § 20. A defendant's right to confront witnesses, however, only applies to testimonial evidence. People v Bruner, 501 Mich 220, 227; 912 NW2d 514 (2018) "[I]f the hearsay is nontestimonial, the Confrontation Clause does not restrict state law from determining admissibility." Garland, 286 Mich App at 10.
Evidence is testimonial if it is "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Bruner, 501 Mich at 227 (citation omitted). Also, "[s]tatements are testimonial if the 'primary purpose' of the statements or the questioning that elicits them 'is to establish or prove past events potentially relevant to later criminal prosecution.' " Garland, 286 Mich App at 10, quoting Davis v Washington, 547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006). In People v Spangler, 285 Mich App 136, 154; 774 NW2d 702 (2009), this Court stated:
[I]n order to determine whether a sexual abuse victim's statements to a SANE [sexual assault nurse examiner] are testimonial, the reviewing court must consider the totality of the circumstances of the victim's statements and decide whether the circumstances objectively indicated that the statements would be available for use in a later prosecution or that the primary purpose of the SANE's questioning was to establish past events potentially relevant to a later prosecution rather than to meet an ongoing emergency.
The admission of the victim's statements to Lippert did not violate defendant's right to confrontation because the statements were nontestimonial. The record demonstrates that, under the totality of the circumstances, an objective witness would reasonably believe that the statements made by the victim to Lippert were for the primary purposes of meeting an ongoing emergency and for medical treatment, and not to establish past events potentially relevant to a later prosecution. See id.
RN Kates treated the victim for a bleeding right arm abrasion, immediately after defendant assaulted the victim. The victim told RN Kates that defendant repeatedly grabbed her vagina, and complained of vaginal pain. While RN Kates did not examine the victim's vaginal area, she advised the victim to seek further medical treatment at the hospital and tell the hospital personnel everything about her pain and injuries. Later that day, the victim went to Turning Point, where Lippert conducted the victim's sexual assault examination.
Lippert asked the victim about her medical history and why the victim presented for treatment, including what occurred during the assault, in order to plan the victim's treatment. The victim told Lippert that defendant put his hand inside of her pants over her underwear, tried to get past her underwear and digitally penetrate her vagina, and was digging at her vagina. Although Lippert collected DNA evidence from the outer surface of the victim's labia majora and submitted the evidence to law enforcement, Lippert's role was not for purposes of law enforcement or future prosecution, but to determine the need for and the type of medical care to be provided. Further, Lippert's forensic role was minimal and secondary to the provision of medical treatment and terminated when she submitted the DNA evidence to law enforcement. In fact, Lippert testified that she did not know whether the DNA was tested. Consequently, defendant's argument is without merit.
Even if the victim's statements were deemed testimonial, defendant confronted the victim at trial by cross-examination. Therefore, the admission of the victim's statements to Lippert did not violate the Confrontation Clause. See Garland, 286 Mich App at 10 ("[T]estimonial hearsay is inadmissible against a criminal defendant unless . . . defendant had a prior opportunity to cross-examine the declarant.").
Defendant also asserts that the victim's first mention of defendant's attempt to digitally penetrate her was to Lippert. Accordingly, defendant argues that the victim had six hours after defendant's assault to fabricate her description of the events, which renders the victim's statements inadmissible under the excited utterance exception to the rule against hearsay.
MRE 803(2) provides an exception to the hearsay rule for a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The rule allows hearsay testimony that would otherwise be excluded because it is perceived that a person who is still under the sway of excitement precipitated by an external startling event will not have the reflective capacity essential for fabrication so that any utterance will be spontaneous and trustworthy. The pertinent inquiry is not whether there has been time for the declarant to fabricate a statement, but whether the declarant is so overwhelmed that she lacks the capacity to fabricate. [People v McLaughlin, 258 Mich App 635, 659-660; 672 NW2d 860 (2003) (internal quotation marks and citations omitted.]
As an initial matter, defendant's argument is mistaken because the prosecution did not seek to offer the victim's statements to Lippert or the sexual assault examination report into evidence under the hearsay exception for excited utterances, MRE 803(2). Further, given the circumstances under which RN Kates and Lippert rendered medical assistance to the victim, as well as the nature of their examinations, the difference in detail between the victim's statements to RN Kates and Lippert is not significant.
The victim told RN Kates that she had vaginal pain because defendant repeatedly grabbed her vagina. RN Kates went to the victim's office to render assistance to the victim under emergent circumstances, not particularly for sexual assault medical treatment. RN Kates treated the victim's elbow injury, which resulted from defendant's assault, and asked the victim whether she had any other injuries. Because other people were in the room, the victim whispered that she had vaginal pain resulting from defendant repeatedly grabbing her vagina.
The victim presented to Lippert's facility for the purpose of undergoing a sexual assault examination. Similar to what the victim told RN Kates, the victim told Lippert that defendant's hand was inside of her pants, and that defendant was digging at her vagina. The victim's account of what occurred was consistent with the victim's injuries and enabled Lippert to determine that the victim needed medication because of her potential exposure to HIV. Any discrepancies in the victim's statements to RN Kates and Lippert are insignificant and do not support defendant's claim that the statements of the victim to Lippert were fabricated.
Defendant next contends that the prosecution did not call Abelman, Levine, and Solgot as witnesses, and that if Abelman, Levine, and Solgot were called, they would not have testified that defendant's hand was inside of the victim's pants. Defendant is mistaken in his assertions.
The prosecution called Abelman, Levine, and Solgot as witnesses. Abelman and Levine testified that they observed defendant's left hand covering the victim's mouth, that defendant's right hand was placed between defendant and the victim, but that they were unable to observe what defendant was doing with his right hand. Solgot testified that she observed defendant on top of the victim, but was unable to see where defendant's hands were placed. Thus, defendant's claim that the prosecution did not call Abelman, Levine, and Solgot as witnesses and that their testimony would directly contradict the victim's statements is incorrect.
Defendant also contends that Lippert's testimony and sexual assault examination report regarding the victim's claims improperly bolstered the victim's testimony and should have been precluded. We disagree.
"Witness credibility is a matter for the jury to decide." People v Hoang, 328 Mich App 45, 68; 935 NW2d 396 (2019). Without objection from defendant, the trial court granted the prosecution's request for Lippert to testify as an expert in sexual assault examinations. "It is . . . well-established that expert opinion testimony will not be excluded simply because it concerns the ultimate issue." People v Smith, 425 Mich 98, 106; 387 NW2d 814 (1986). Lippert's sexual assault examination revealed that the victim had a red abrasion and a bleeding tear on her labia majora, and that the victim's injuries appeared to be new. Accordingly, Lippert determined that the victim needed medication because of her potential exposure to HIV. Lippert opined that the victim's account of what occurred was consistent with the victim's injuries. Thus, the trial court properly admitted Lippert's testimony and sexual assault examination report under MRE 803(4). Therefore, defendant's bolstering argument fails, as Lippert's testimony merely served to corroborate the victim's claims.
Defendant also argues that because Lippert was an expert witness and the only witness to corroborate the victim's testimony, Lippert's testimony and examination report required greater scrutiny. The testimony of Abelman, Levine, and RN Kates also, however, served to corroborate the victim's testimony. Furthermore, defendant does not support his argument with any caselaw, argue why Lippert's testimony and examination report required greater scrutiny, or suggest the level of scrutiny required. While it is presumed that defendant is suggesting the trial court failed in its gatekeeper function under MRE 702, neither the record nor defendant identify how the trial court failed to perform this function or why the straight-forward role performed by Lippert as a SANE necessitated greater scrutiny than given of her qualifications. In addition to Lippert's testimony, defendant ignores that the results of Lippert's sexual assault examination of the victim showed that the victim's injuries were consistent with the victim's account of what occurred. Accordingly, defendant's argument is unpersuasive.
2. LIPPERT'S REPORT
Finally, defendant argues that the trial court abused its discretion when it admitted Lippert's sexual assault examination report into evidence. We disagree.
Before Lippert was called to testify, defendant objected to Lippert testifying about the contents of her report that referenced the victim's account of defendant's assault. Specifically, defendant said:
I know a lot of the recitation that's in the SANE report talks about oh he did this, he moved there, he came here. Those aren't facts that are necessarily necessary for the diagnosis and treatment. Whereas with Nurse Lippert I know at one point she specifically asks, at least per the report, she specifically asks the complaining witness are you experiencing pain and she responded. So, in something like that I cannot object to that. But it's just the recitation of the activities that took place prior to the actual call it, injury. [Emphasis added.]The trial court overruled defendant's objection, finding that the victim's account was part of the victim's medical history, and also was connected to ascertaining and treating her injuries. The trial court said: "The court is frankly unimpressed with the business rule or the records kept in the normal course of business etcetera. However, the court believes that it is permissible to allow the introduction into evidence of the medical report." Without further objection by defendant, the trial court later granted the prosecution's request to admit Lippert's sexual assault examination report into evidence.
Despite the trial court's ambivalence regarding the business records rule, Lippert's report was admissible under the hearsay exception for records of regularly conducted activities under MRE 803(6). MRE 803(6) provides an exception to the rule against hearsay for business records. McLaughlin, 258 Mich App at 651. MRE 803(6) provides, in pertinent part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
Lippert's sexual assault examination report meets the requirements of MRE 803(6). Lippert is the director of the Turning Point and is the primary SANE who conducts the examinations during the day. Lippert testified that a 10-page medical chart report is generated after each sexual assault examination. Consistent with Lippert's regular business practices, a medical chart report was generated after Lippert conducted the victim's sexual assault examination. Thus, the trial court could have admitted the report into evidence under MRE 803(6) because "MRE 803(6) plainly states that a . . . report can be admitted if 'the testimony of the custodian or other qualified witness' shows that it was made and kept as a regular practice of the business." McLaughlin, 258 Mich App at 652.
Defendant does not specifically state which statements the victim made that are included in the report that should have been excluded from admission into evidence. Defendant does not explain how Lippert's report was substantively different from Lippert's verbal testimony, with regard to the victim's statements. Neither does defendant cite caselaw in support of his argument. As already indicated, the trial court correctly admitted Lippert's sexual assault examination report containing the victim's statements into evidence under MRE 803(4) because the victim's statements were made for the purposes of medical treatment and diagnosis. Furthermore, the trial court could have also admitted Lippert's report into evidence under MRE 803(6). Thus, defendant fails to establish error in the trial court's admission of the report warranting reversal.
Affirmed.
/s/ James Robert Redford
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto