IN RE DANIEL PHILLIP HART
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DANIEL PHILLIP HART, Minor.
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 23, 1999
Petitioner-Appellee,
v
No. 208019
Allegan Juvenile Court
LC No. 97-007089 DL
DANIEL PHILLIP HART,
Respondent-Appellant.
Before: Whitbeck, P.J., and Cavanagh and Griffin, JJ.
PER CURIAM.
A juvenile court jury found respondent guilty of second-degree criminal sexual conduct, MCL
750.520c(1)(h)(i); MSA 28.788(3)(1)(h)(i), as a consequence of his sexual contact with his older
brother, the original complainant. The trial court made respondent a temporary ward of the court and
imposed a term of probation. Respondent appeals as of right. We affirm.
I. Basic Facts And Procedural History
Respondent and complainant are biological brothers born of the same woman and possibly the
same father. Mary Ann and Thomas Hart adopted respondent and complainant 1 after serving as the
brothers’ foster parents. Respondent was fifteen years of age at the time of trial, and complainant was
seventeen years of age at that time.
According to complainant, at some time after the commencement of the 1995-1996 school
year, possibly in September 1995, respondent asked complainant to help respondent with his history
homework. Respondent and complainant were home alone at the time, with respondent “babysitting”
complainant because complainant suffers from “mild” cerebral palsy and “mental disabilities.”
Complainant testified that he went into the basement of the Harts’ home to help respondent with
his homework. Once downstairs, complainant asked respondent to look at a book on the United
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States presidents which had been given to him and respondent by their adoptive paternal grandparents.
Respondent indicated that he would allow complainant to look at the book if complainant first let him
“play doctor.” Complainant agreed to the request.
Complainant further testified that, after he agreed to let respondent play doctor, respondent
went into his bathroom and retrieved a container of Vaseline. Respondent then lowered complainant’s
pants and underwear, as well as his own. As complainant lay on his stomach on the floor of the
basement hallway, respondent climbed on top of him and inserted his penis into complainant’s anal
canal.2
Respondent denied engaging in any sexual activity with complainant. Respondent’s theory of
defense was that the assault never occurred and that complainant had made up the assault because he
was angry at the Harts and respondent. Respondent argued that the allegation of sexual misconduct
was an effective way to punish these individuals.
The jury acquitted respondent on the original charge of first-degree criminal sexual conduct, but
found him guilty of second-degree criminal sexual conduct.
II. Standard Of Review
A. Expert Witness Testimony
Respondent argues that the trial court abused its discretion when it qualified prosecution witness
Betty Baker as an expert witness and allowed her to testify with regard to whether the victim suffered
from a “developmental disability” and, hence, was “mentally disabled” within the meaning of MCL
750.520a(b) and (e); MSA 28.788(1)(b) and (e)3. These evidentiary challenges differ from the
challenge advanced before the trial court. An objection based on one ground at trial is insufficient to
preserve an appellate attack based on a different ground. People v Asevedo, 217 Mich App 393,
398; 551 NW2d 478 (1996). We review these unpreserved evidentiary challenges de novo to
determine whether manifest injustice will result from our failure to grant the requested relief. Id. at 398
399.
B. Sufficiency Of The Evidence
We review a challenge to the sufficiency of the evidence de novo. See e.g., People v Wolfe,
440 Mich 508, 515; 489 NW2d 748 (1992), modified 441 Mich 1201 (1992) (appellate courts
review evidence in a light most favorable to the prosecutor and determine whether a rational trier of fact
could find the essential elements of the crime proven beyond a reasonable doubt).
C. Rebuttal Evidence
We review unpreserved claims of erroneously admitted rebuttal evidence to determine whether
manifest injustice will result if this Court fails to grant relief. People v Kelly, 423 Mich 261, 281; 378
NW2d 365 (1985). The admission of rebuttal evidence is within the sound discretion of the trial judge
and will not be disturbed on appeal absent a clear abuse of discretion. People v Figgures, 451 Mich
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390, 398; 547 NW2d 673 (1996). With the exception of the objection to complainant’s testimony
regarding where his parents were at the time of the assault, respondent failed to preserve his evidentiary
challenges below by timely and specific objections on the grounds now asserted.
D. Excluded Evidence
A trial court’s decision to exclude evidence is reviewed for an abuse of discretion. People v
McAlister, 203 Mich App 495, 505; 513 NW2d 431 (1994).
III. Statutory Provisions On Second Degree Criminal Sexual Conduct
MCL 750.520c(1); MSA 28.788(3)(1) provides as follows:
A person is guilty of criminal sexual conduct in the second degree if the person
engages in sexual contact with another person and if any of the following circumstances
exists:
* * *
(h) That other person is . . . mentally disabled, . . . and any of the following:
(i) The actor is related to the victim by blood or affinity to the fourth degree.
Here, respondent challenges the sufficiency of the evidence presented to establish that complainant was
mentally disabled within the meaning of the act. MCL 750.520a(e); MSA 28.788(1)(e) indicates that a
person who is “mentally disabled” includes “a person [who] .. . has a developmental disability.”
Section 750.520a(b) defines the term “developmental disability” as follows:
“Developmental Disability” means an impairment of general intellectual
functioning or adaptive behavior which meets the following criteria:
(i) It originated before the person became 18 years of age.
(ii) It has continued since its origination or can be expected to continue
indefinitely.
(iii) It constitutes a substantial burden to the impaired person’s ability to
perform in society.
(iv) It is attributable to 1 or more of the following:
(A) Mental retardation, cerebral palsy, epilepsy, or autism.
(B) Any other condition of a person found closely related to mental retardation
because it produces a similar impairment or requires treatment and services similar to
those required for a person who is mentally retarded.
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The first line of § 750.520a(b) indicates that the term developmental disability means an impairment of
general intellectual functioning “or” adaptive behavior. The disjunctive “or” generally refers to a choice
or alternative between two or more things. Auto-Owners Ins Co v Stenberg Brothers, Inc, 227 Mich
App 45, 50; 575 NW2d 79 (1997); but see also People v Humphreys, 221 Mich App 443, 451-452;
561 NW2d 868 (1997). Accordingly, to sustain respondent’s conviction the record must contain
sufficient evidence to establish beyond a reasonable doubt that respondent suffered either an impairment
of general intellectual functioning or an impairment of adaptive behavior.
Section 750.520a(b) does not define the term “adaptive behavior.” Where a statute does not
define one of its terms, a court may look to a dictionary for a definition. People v Lee, 447 Mich 552,
558; 526 NW2d 882 (1994). 1 Schmidt, Attorneys’ Dictionary of Medicine, p A-138, defines the
term “adaptive behavior” as “[a] pattern of behavior which helps an individual in adjusting to the
environment.”
IV. Expert Witness Testimony
A witness must be qualified by “knowledge, skill, experience, training, or education” to testify
as an expert. MRE 702; People v Whitfield, 425 Mich 116, 122; 388 NW2d 206 (1986); People v
Haywood, 209 Mich App 217, 224-225; 530 NW2d 497 (1995). However, “a trial court should not
require a proposed expert witness to satisfy an overly narrow test of qualifications.” Id. at 225. The
qualification of an expert witness rests in the discretion of the trial court and the exercise of that
discretion will not be overturned on appeal absent an abuse of discretion. Id. at 224-225.
We conclude that the trial court did not abuse its discretion when it qualified the prosecution’s
proposed expert witness, Betty Baker, as an expert in the area of emotionally impaired juveniles.
Baker’s qualification as an expert was proper in light of her master’s degree in counseling, her
specialized training in recognizing and treating emotionally impaired children, her experience in
counseling emotionally impaired teenagers and the number of prior times she has been qualified as an
expert in other proceedings in the area of treating emotionally impaired juveniles.
Similarly, we conclude that the trial court correctly determined that Baker was qualified to testify
about the emotional impairments suffered by complainant, the effect those impairments had on
complainant’s ability to function within the parameters set by society, the treatment complainant received
for those impairments and the relationship between the nature and history of complainant’s impairments,
the treatment he receives for his impairments and the criteria set forth in § 750.520a(b). Baker was so
qualified in light of her training and experience in recognizing and treating emotional impairments in
juveniles and her treatment of complainant for almost a year before trial.
Respondent also argues that the trial court abused its discretion when it allowed Baker to offer
testimony that invaded the province of the court and the jury. Respondent failed to preserve this issue
for appellate review, and manifest injustice will not result from our failure to grant the requested relief.
Asevedo, supra at 398-399.
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In any event, Baker’s testimony did not involve an opinion as to what constitutes the
appropriate legal standard for determining the existence of a developmental disability. Rather, once the
definition was provided to her and the jury, she applied her expertise and observations of complainant
to those standards and opined that complainant suffered a developmental disability as defined by the
statute. Moreover, the testimony related to a subject completely outside the court’s legal knowledge
and did not conflict with the instructions given the jury. On this record, Baker’s testimony did not
invade the province of the trial court to instruct the jury on the applicable principles relating to whether
the victim suffered a developmental disability. People v Drossart, 99 Mich App 66, 77-79; 297
NW2d 863 (1980).
Baker’s testimony also did not invade the province of the jury. The field of identifying and
treating developmentally disabled children is a field largely unfamiliar to the jury. Additionally, Baker
was qualified by training and experience to testify about whether complainant suffered a developmental
disability under the statute. Accordingly, because she was so qualified, it follows that she could offer an
opinion related to the ultimate issue in fact, without invading the province of the jury. MRE 704;
Drossart, supra at 80.
V. Sufficiency Of The Evidence
Respondent argues that the prosecutor failed to present sufficient evidence to sustain
respondent’s conviction. We disagree.
Respondent first argues that the prosecutor presented insufficient evidence to sustain
respondent’s conviction because the prosecutor failed to present evidence “which proved beyond a
reasonable doubt that complainant had the statutory level of impairment in general intellectual functioning
envisioned by the Legislature when it enacted the statute.” Viewing the testimony in a light most
favorable to the prosecutor, we conclude that a rational trier of fact could find beyond a reasonable
doubt, Wolfe, supra, that complainant suffered an impairment of general adoptive behavior in light of his
difficulty controlling his anger, his obsessive-compulsive behavior, his inability to apply his knowledge to
situations with which he is presented when his emotions are involved and his difficulty in responding
appropriately to novel situations with which he is presented.
Respondent also argues that the prosecutor presented insufficient evidence to sustain
respondent’s conviction because the prosecutor failed to present evidence that the impairment of
complainant’s general adaptive behavior has continued since its origin or can be expected to continue
indefinitely. Because the prosecutor offered no evidence as to when the impairment of complainant’s
adaptive behavior originated, the question becomes whether the prosecutor presented sufficient
evidence from which a rational trier of fact could find beyond a reasonable doubt that the impairment
would continue indefinitely.
Section 750.520a does not define the term “indefinitely.” Random House Webster’s College
Dictionary (2d ed, 1997), p 662, defines the term “indefinite” as “1. having no fixed or specific limit . .
.[;] 2. not clearly defined or determined . . . .” Viewing the testimony in a light most favorable to the
prosecutor, a rational trier of fact could find beyond a reasonable doubt, Wolfe, supra, that complainant
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suffered an impairment of general adaptive behavior that can be expected to continue indefinitely in light
of the fact that complainant’s maladaptive behavior continues after ten years of counseling and treatment
with various medications and in light of Baker’s testimony that she observed nothing in complainant’s
behavior that suggested that his maladaptive behavior would end anytime soon.
Respondent also argues that the prosecutor presented insufficient evidence to sustain
respondent’s conviction because the prosecutor failed to present evidence from which the jury could
find beyond a reasonable doubt that complainant’s impairment constituted a substantial burden on his
ability to perform in society.
Section 750.520a does not define the term “substantial burden.” Random House Webster’s
College Dictionary (2d ed, 1997), p 1285, defines the term “substantial” as “of ample or considerable
amount, quantity, size, etc.” It defines the term “burden” as “that which is borne with difficulty; onus[.]”
Id., at 175. Viewing the testimony in a light most favorable to the prosecutor, a rational trier of fact
could find beyond a reasonable doubt, Wolfe, supra, that complainant’s impairment substantially
burdens his ability to perform in society.
Finally, respondent argues that the prosecutor presented insufficient evidence to sustain
respondent’s conviction because the prosecutor failed to present any evidence that complainant’s
impairment of general intellectual functioning was causally connected to his cerebral palsy or a condition
closely related to mental retardation. Respondent does not address the question of whether the
prosecutor presented sufficient evidence to sustain respondent’s conviction on a theory that
complainant’s adaptive behavioral impairment was caused by a condition closely related to mental
retardation because it “requires treatment and services similar to those required for a person who is
mentally retarded.”
The evidence established that complainant was not mentally retarded. Additionally, although
there was evidence that complainant suffered from mild cerebral palsy, there was no evidence that his
maladaptive behavior was attributable to cerebral palsy. There was evidence introduced, however,
from which a rational trier of fact could conclude beyond a reasonable doubt that complainant’s
behavioral impairment was attributed to a condition closely related to mental retardation because it
requires treatment and services similar to those offered to a mentally retarded person. Viewing this
evidence in a light most favorable to the prosecutor, a rational trier of fact could conclude beyond a
reasonable doubt, Wolfe, supra that complainant’s behavioral impairment was attributable to a
condition closely related to mental retardation by the types and quantity of services provided
complainant to allow him to function in a productive manner.
In sum and viewing the evidence in a light most favorable to the prosecutor, we conclude that a
rational trier of fact could conclude beyond a reasonable doubt that complainant suffered a
developmental disability. MCL 750.520c(1)(h)(i); MSA 28.788(3)(1)(h)(i); MCL 750.520a(b) and
(e); MSA 28.788(1)(b) and (e).
VI. Rebuttal Evidence
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Respondent argues that the trial court abused its discretion when it admitted certain rebuttal
evidence and we agree. Nevertheless, reversal is unwarranted.
First, respondent advanced a theory of defense that complainant fabricated the story of the
sexual assault to punish both complainant’s former adoptive parents and respondent because the victim
was angry with these individuals. The rebuttal evidence introduced by the prosecutor supported this
defense by supplying a rationale for complainant directing his anger in such a manner, i.e., that the
former adoptive parents treated respondent better than complainant and that the former adoptive
parents were abusive to complainant. In fact, this was the strongest evidence introduced at trial that
supported the offered defense. Accordingly, we conclude that the erroneously admitted evidence could
not have adversely effected the outcome of respondent’s trial. People v Belanger, 454 Mich 571,
575-576; 563 NW2d 665 (1997); Figgures, supra at 402.
Second, respondent argues, and we agree, that the trial court erred when it admitted Baker’s
rebuttal testimony. Respondent offered no evidence and left no impression that complainant had
sexually assaulted any of the juveniles residing at the Lakeside facility, where complainant had resided
after his adoptive parents’ parental rights were terminated. Baker’s testimony was not responsive to
any evidence or theory advanced by respondent and, therefore, constituted improper rebuttal evidence.
Figgures, supra at 399. Manifest injustice will not result, however, from this Court’s failure to reverse
respondent’s conviction. The erroneously admitted evidence was not outcome determinative because it
did not paint respondent in a bad light and was consistent with complainant’s admission on cross
examination by respondent that he sometimes resulted to physically violent behavior when angered.
Belanger, supra at 575-576; Figgures, supra at 402.
Third, respondent argues, and we agree, that the trial court erred when it admitted “family
dynamics” rebuttal evidence. This evidence was introduced by the prosecutor during cross-examination
after the trial court refused to allow respondent to explore these dynamics. Accordingly, the
prosecutor’s rebuttal evidence was not responsive to the evidence or the theory advanced by
respondent; instead, the evidence was admitted solely to respond to denials elicited by the prosecutor
on cross-examination. As such, the evidence did not constitute proper rebuttal evidence. A prosecutor
may not elicit a denial on cross-examination simply to create an issue for rebuttal. Figgures, supra at
401; People v McIntire, 232 Mich App 71, 108; 151 NW2d 187 (1998). Nevertheless, respondent
was not unfairly prejudiced by its admission in light of the fact that the evidence supported his theory of
defense.
VII. Excluded Evidence
Respondent has abandoned his evidentiary challenge with regard to the bleachers incident4 by
failing to provide citation to specific authority supporting his claim that the evidence was admissible for
the purpose for which admission was sought. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388
(1959).
Affirmed.
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/s/ William C. Whitbeck
/s/ Mark J. Cavanagh
/s/ Richard Allen Griffin
1
In May of 1996, the Harts’ parental rights to complainant were terminated by mutual agreement
between complainant and the Harts.
2
Although his testimony was vague on this point, complainant also appears to have testified that
respondent penetrated his anus with respondent’s penis on other occasions, although he could not recall
the number of times or any approximate dates on which such acts occurred. Complainant indicated that
the “things” respondent did ended in May, 1996.
3
To the extent that respondent advances arguments for the exclusion of Baker’s testimony other than
the lack of qualification, we decline to address those arguments because they were not set forth in the
statement of the issues presented or necessarily included therein. People v Yarbrough, 183 Mich App
163, 165; 454 NW2d 419 (1990).
4
The trial court excluded evidence that would have demonstrated that complainant filed a false police
report against Mary Ann Hart alleging that she pushed him from a bleacher.
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