PEOPLE OF MI V MARK EUGENE MOTTINGER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 13, 2008
Plaintiff-Appellee,
v
No. 278566
Calhoun Circuit Court
LC No. 2006-004487-FC
MARK EUGENE MOTTINGER,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Bandstra and O’Connell, JJ.
PER CURIAM.
After a jury trial, defendant was convicted of three counts of first-degree criminal sexual
conduct, MCL 750.520b(1)(b)(i), and sentenced to three concurrent terms of 135 to 360 months’
imprisonment. He appeals as of right. We affirm.
First, defendant argues that his counsel was ineffective for failing to object at trial to the
rampant abuse of Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence presented
by the prosecution. We disagree.1
To establish ineffective assistance of counsel, a defendant must show “that his attorney’s
representation fell below an objective standard of reasonableness and that this was so prejudicial
to him that he was denied a fair trial.” People v Toma, 462 Mich 281, 302; 613 NW2d 694
(2000). To establish that his trial counsel’s performance was deficient, “defendant must
overcome the strong presumption that his counsel’s action constituted sound trial strategy under
the circumstances.” Id. To establish prejudice, defendant must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different . . . .” Id. at 302-303, quoting People v Mitchell, 454 Mich 145, 167; 560 NW2d
600 (1997). “Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761
(2004). Further, counsel is not ineffective for failing to make a futile objection. People v
Milstead, 250 Mich App 391, 401; 648 NW2d 648 (2002).
1
Because no evidentiary hearing was held, our review is limited to the existing record. People v
Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
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In People v Beckley, 434 Mich 691; 456 NW2d 391 (1990), and People v Peterson, 450
Mich 349; 537 NW2d 857 (1995), amended 450 Mich 1212 (1995), our Supreme Court provided
the framework for the proper scope of an expert’s testimony regarding CSAAS issues. The basic
rules announced in Beckley and reaffirmed in Peterson include the following: “(1) an expert
may not testify that sexual abuse occurred, (2) an expert may not vouch for the veracity of the
victim, and (3) an expert may not testify regarding whether the defendant is guilty.” Peterson,
supra at 352. However, the Peterson Court also clarified its decision in Beckley and held,
(1) an expert may testify in the prosecution’s case in chief regarding typical and
relevant symptoms of child sexual abuse for the sole purpose of explaining a
victim’s specific behavior that might be incorrectly construed by the jury as
inconsistent with that of an actual abuse victim, and (2) an expert may testify with
regard to the consistencies between the behavior of the particular victim and other
victims of child sexual abuse to rebut an attack on the victim’s credibility. [Id. at
352-353.]
During his opening statement, defense counsel referred to the victim’s version of events
as inconsistent, preposterous, and unrealistic. In doing so, defense counsel attacked the victim’s
credibility, specifically with regard to the victim’s claim that some of the incidents of sexual
abuse occurred while she and defendant were in close proximity to other people. Defense
counsel also attacked the victim’s credibility by highlighting her clinginess toward defendant and
her sexual inappropriateness, behaviors that appeared to constitute accommodating the alleged
abuser. Consequently, the door was opened for Dr. Henry to generally explain that
accommodating the abuser is behavior exhibited by children who are victims of sexual abuse.
Additionally, Dr. Henry testified in general about secrecy, helplessness, entrapment, disclosure,
and retraction,2 but this testimony explained why a victim might exhibit a lack of responsiveness
and related directly to his testimony regarding behavior that accommodates the abuser.
Therefore, the admission of testimony regarding these behaviors was not erroneous, and defense
counsel did not err when it failed to challenge its admission. Milstead, supra at 401.
Nevertheless, some additional testimony that Dr. Henry provided at trial was improper.
After Dr. Henry explained why a sexually abused child might exhibit clingy behavior, the
prosecutor asked him whether he reviewed the victim’s counseling records and whether, in his
opinion, the information contained in those records indicated that the victim exhibited behavior
that was consistent with that of a sexually abused child. The prosecutor’s question did not
directly relate to the victim’s specific behaviors of clinginess toward defendant, sexual
inappropriateness, or willingness to participate in sexual acts with defendant while other people
were in close proximity, and the prosecutor did not limit Dr. Henry’s opinion regarding the
victim’s records to a discussion of clingy behavior. In answering the prosecutor’s question,
Dr. Henry essentially vouched for the victim’s credibility by indicating that the victim’s
counseling records supported her allegations of abuse. The testimony was not limited to
2
Common characteristics observed in children who are victims of sexual abuse include (1)
secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, conflicting, and
unconvincing disclosure, and (5) retraction. Peterson, supra at 372 n 11.
-2-
background information, and Dr. Henry became an advocate, not just an advisor. See Beckley,
supra at 731-732. The scope of Dr. Henry’s testimony exceeded the rules announced in Beckley,
supra, and Peterson, supra, and resulted in error. Further, Dr. Henry’s statements concerning an
“Iceberg of Life” diagram assembled by the victim were not tailored to address the victim’s
clinginess toward defendant, her sexual inappropriateness, her willingness to participate in
sexual acts with defendant while other people were in close proximity, or any other behavior that
needed to be explained to the jury, so admission of this testimony was also erroneous.
Consequently, counsel’s performance in allowing the testimony without objection fell below an
objective standard of reasonableness.
However, counsel’s errors were harmless. The errors are most similar to those discussed
in Peterson, supra at 375-379. The Peterson Court found error because the experts in that case
were allowed to vouch for the veracity of the victim and made numerous references to
consistencies between the victim’s behavior and behavior that is typical of victims of sexual
abuse, even though defense counsel never asserted that the victim’s behavior was inconsistent
with that of a sexual abuse victim. Id. at 376-377. The Peterson Court ultimately held that the
errors were harmless and did not result in a miscarriage of justice. Id. at 378-379. The Court
noted that parts of the testimony of the prosecution’s expert witnesses led to questions
concerning the experts’ accuracy, and that the prosecutor recognized during closing arguments
that the case was a classic example of a credibility contest. Id. at 377-378. Accordingly, the
jury’s attention was not focused on the experts’ testimony, but rather on the testimony of the
victim and the defendant and which of the two the jury should believe. Id. In reaching a
conclusion, the Peterson Court remarked that the trial court “properly instructed the jury
throughout the trial with respect to questionable testimony and properly charged the jury
concerning its use of the expert testimony during deliberations.” Id. Because the errors did not
particularly favor either side, they were harmless and did not result in a miscarriage of justice.
Id. at 379.
Similarly, in this case, Dr. Henry generally stated that the information contained in the
victim’s records indicated a pattern of behavior that was consistent with that of a sexually abused
child. Further, his references to the “Iceberg of Life” diagram conveyed that the victim’s
thoughts and ideas were consistent with those of a child who was sexually abused, even though
defense counsel never offered a contrary assertion. But, these errors are harmless. First, during
opening statements, defense counsel indicated that the jury would hear from an expert “who will
state everything [the victim] did is explainable. Everything [the victim] did makes sense because
it’s consistent with behaviors of child sexual assault victims. Very convenient, but not proof of
the facts. That’s an expert’s opinion . . . .” Defense counsel also elicited testimony from
Dr. Henry revealing that he could not state whether the victim was sexually abused, negating the
suggestion that Dr. Henry believed she was abused. Further, during Dr. Henry’s questioning,
defense counsel set forth the idea that an advocate, not someone with an objective viewpoint,
drafted the counseling records. This testimony served to question the credibility of the
counseling records. Defense counsel also questioned Dr. Henry regarding whether a child who
had reported falsely in the past would be capable of providing false information during a
counseling session in order to support her lie. In so doing, he challenged the victim’s credibility.
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Defense counsel also elicited from Dr. Henry an admission that some of the feelings that the
victim indicated in the “Iceberg of Life” diagram were the same feelings that a child might feel if
her parents abandoned her.3 Thus, instead of challenging improper portions of the testimony,
defense counsel chose to attack Dr. Henry’s ideas concerning the credibility of the counseling
records and the “Iceberg of Life” diagram, casting doubt on his testimony as a whole. Defense
counsel also questioned the extent of the “proof” that was actually provided by these documents
and argued that Dr. Henry’s opinion was not proof. The nature of defense counsel’s questioning
is a matter of trial strategy, which we will not second-guess with the benefit of hindsight.4
People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004).
In addition, the prosecutor acknowledged during closing arguments that the case was a
credibility contest. Neither the prosecutor nor defense counsel focused the jury’s attention on
Dr. Henry’s testimony. Rather, both parties’ counsel highlighted the testimony of the victim and
defendant and emphasized that the resolution of the case centered on which person the jury
believed. Although both parties’ counsel referred to Dr. Henry’s testimony during closing
arguments, they did not emphasize this testimony. Further, the trial court properly instructed the
jury with regard to the use of expert testimony, which typically cures such errors. People v
Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008) (“Curative instructions are sufficient to
cure the prejudicial effect of most inappropriate prosecutorial statements and jurors are presumed
to follow their instructions.”). Under these circumstances, Dr. Henry’s improper testimony did
not particularly favor either side.
Therefore, we find no reasonable probability that the results of defendant’s trial would
have been different had defense counsel challenged the admission of the improper testimony.
Toma, supra at 302-303. The testimony of other witnesses corroborated the victim’s testimony
and raised questions regarding the credibility of defendant and his wife, and the impact of
Dr. Henry’s testimony was minimal at best. Defense counsel was not ineffective.
Defendant also asserts that his counsel was ineffective for failing to obtain a proper
limiting instruction before trial regarding the expert’s testimony. The trial court granted defense
counsel’s motion in limine and limited Dr. Henry’s testimony by precluding him from testifying
that sexual abuse occurred, vouching for the veracity of the victim, or testifying regarding
whether defendant is guilty. These three limitations are the basic rules announced in Beckley and
reaffirmed in Peterson and, therefore, were not improper. Further, based on the discussion on
the record before trial between the judge and the attorneys, there was already an understanding
that Dr. Henry’s testimony would be limited to merely address the lack of responsiveness of
victims of sexual abuse. In addition, defense counsel elicited testimony from Dr. Henry
indicating that Dr. Henry did not know whether the victim was sexually abused. As the Beckley
Court noted, effective cross-examination by defense counsel can prevent the jury from drawing
3
The victim’s father was not involved in her life, and the victim’s mother had remarried and had
emotional problems.
4
In particular, we note that it may have been far less effective to discredit general testimony
about behaviors of child abuse victims without having testimony about the specific victim to
question.
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the conclusion that an expert believes that based on a particular behavior observed by
complainant, a sexual assault in fact occurred. Beckley, supra at 725. Accordingly, defense
counsel was not ineffective for failing to obtain a more inclusive limiting instruction.
Defendant also argues on appeal that his counsel was ineffective because he stipulated to
the admission of the victim’s counseling records, which were irrelevant and contained highly
prejudicial information and hearsay. In particular, defendant argues that the counseling records
contained the therapist’s observations of the victim, hearsay from the victim, and information
relating to the course of treatment. Defendant also argues that the “Iceberg of Life” diagram was
improperly admitted. Again, 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). The
records introduced here contain two levels of hearsay: (1) the record itself (because the reports
are used to prove that the statements were made), and (2) the victim’s statements contained
within the records and the therapist’s observations of the victim and information relating to the
course of treatment (hearsay within hearsay). To be admissible, each level of hearsay must fall
within an exception to the hearsay rule. MRE 805; Cooley v Ford Motor Co, 175 Mich App 199,
203; 437 NW2d 638 (1988). We hold that the counseling records and the “Iceberg of Life”
diagram are admissible under MRE 803(6) as records of regularly conducted activity. See e.g.,
Merrow v Bofferding, 458 Mich 617, 626-627; 581 NW2d 696 (1998); Jackson v Depco Equip
Co, 115 Mich App 570, 579-580; 321 NW2d 736 (1982).
In looking at the second level of hearsay, MRE 803(4), the medical record exception,
applies. In People v Meeboer (After Remand), 439 Mich 310, 322; 484 NW2d 621 (1992), the
Court stated:
In order to be admitted under MRE 803(4), a statement must be made for
purposes of medical treatment or diagnosis in connection with treatment, and
must describe medical history, past or present symptoms, pain or sensations, or
the inception or general character of the cause or external source of the injury.
Traditionally, further supporting rationale for MRE 803(4) is the existence of
(1) the self-interested motivation to speak the truth to treating physicians in order
to receive proper medical care, and (2) the reasonable necessity of the statement
to the diagnosis and treatment of the patient.
The Meeboer Court also addressed the need to sufficiently establish the trustworthiness of a
child’s statement in order to support the application of the medical treatment exception. Id. The
Meeboer Court stated:
Factors related to trustworthiness guarantees surrounding the actual making of the
statement include: (1) the age and maturity of the declarant, (2) the manner in
which the statements are elicited (leading questions may undermine the
trustworthiness of a statement), (3) the manner in which the statements are
phrased (childlike terminology may be evidence of genuineness), (4) use of
terminology unexpected of a child of similar age, (5) who initiated the
examination (prosecutorial initiation may indicate that the examination was not
intended for purposes of medical diagnosis and treatment), (6) the timing of the
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examination in relation to the assault (the child is still suffering pain and distress),
(7) the timing of the examination in relation to the trial (involving the purpose of
the examination), (8) the type of examination (statements made in the course of
treatment for psychological disorders may not be as reliable), (9) the relation of
the declarant to the person identified (evidence that the child did not mistake the
identity), and (10) the existence of or lack of motive to fabricate.
Although some courts hold that corroborative evidence relating to the trust
of the out-of-court statement should not be considered in determining whether to
admit the statement, we believe the better reasoned view is that the reliability of
the hearsay is strengthened when it is supported by other evidence. Corroborating
physical evidence of the assault, evidence that the person identified as the
assailant had the opportunity to commit the assault, and resulting diagnosis and
treatment can support the trustworthiness of the child’s statements regarding a
sexual assault and aid in the determination whether the statement was made for
the purpose of receiving medical care. [Id. at 324-326 (footnotes omitted).]
Psychological trauma experienced by a victim of sexual abuse and the resulting
counseling is recognized as an area that requires diagnosis and treatment. Id. at 229. The
statements made by the victim in the counseling records and the “Iceberg of Life” diagram
appear to be made for the purpose of diagnosis and treatment. Although the therapy sessions
began after the victim disclosed the abuse to the police and the victim knew that a case was being
prepared against defendant, the timing of the therapy sessions and the fact that they were therapy
sessions, which are not as reliable as medical treatment sessions, do not result in the statements
being deemed any less trustworthy under the relevant considerations. The victim made many
statements consistent with those of an individual seeking treatment and dealing with her feelings.
The statements do not appear to focus on defendant’s conduct in an accusatory way. In addition,
although defendant asserts that the victim had a motive to fabricate, we do not find this argument
persuasive based on the nature of the statements, which, again, do not focus on defendant’s
conduct. The statements reflect a desire to express thoughts and feelings in order to receive
proper treatment, and they are not objectionable on hearsay grounds.
With regard to the therapist’s observations of the victim and information relating to the
course of treatment set forth in the counseling records, however, we reach a different conclusion.
Conclusions and observations of a therapist are arguably not admissible in evidence under
MRE 803(4). Regardless, we find that defense counsel’s allowance of the therapist’s
observations and course of treatment did not fall below an objective standard of reasonableness.
The stipulation to the admission of the counseling records was made in lieu of the victim’s
counselor testifying at trial. Defense counsel may have concluded that the therapist’s trial
testimony concerning her observations of the victim and her opinion regarding the best course of
treatment for the victim would have carried more weight with the jury and provided more
substantive evidence than merely admitting the records containing hearsay statements. Defense
counsel’s “[d]ecisions regarding what evidence to present and whether to call or question
witnesses are presumed to be matters of trial strategy,” People v Garza, 246 Mich App 251, 255;
631 NW2d 764 (2001), and we will not substitute our judgment for that of counsel regarding
matters of trial strategy or assess counsel’s competence with the benefit of hindsight, Matuszak,
supra at 58. Therefore, defendant has not overcome the strong presumption that his counsel’s
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actions constituted sound trial strategy, nor has defendant otherwise met his heavy burden of
proving that his counsel was ineffective.
Defendant also asserts that the failure to call an additional witness to support his theory
that the victim had a motive to lie deprived him of a substantial defense, because challenges to
the victim’s credibility might have made a difference in the outcome of his trial. Such a witness
was at the courthouse and waiting in the hall to testify, but defense counsel forgot to call her as a
witness. A decision regarding whether to call a witness is generally presumed to be a matter of
trial strategy, and the failure to call witnesses constitutes ineffective assistance of counsel only
when it deprives the defendant of a substantial defense. People v Dixon, 263 Mich App 393,
398; 688 NW2d 308 (2004). “A defense is substantial if it might have made a difference in the
outcome of the trial.” People v Hyland, 212 Mich App 701, 710; 538 NW2d 465 (1995), vacated
in part on other grounds 453 Mich 902 (1996).
The record reveals that defense counsel addressed the theory that the victim had a motive
to lie in his opening statement, his closing argument, and during his cross-examination of the
victim. Because the theory that the victim was motivated to lie was raised before the trial court,
defendant was not deprived of this defense. See Dixon, supra (a defendant is not deprived of a
defense if the theory was raised during the cross-examination of the victim and closing
arguments). Consequently, defendant was not denied the effective assistance of counsel when
counsel failed to call this witness. Defendant has not shown both that his counsel’s
representation fell below an objective standard of reasonableness under prevailing professional
norms and that, but for his counsel’s error, the results of the proceeding would have been
different.
Next, defendant argues that the prosecutor unfairly used CSAAS evidence as proof of
defendant’s guilt. We disagree.5 Defendant has not provided any examples of allegedly
improper comments made by the prosecutor. The trial court, however, granted defendant’s
motion to limit Dr. Henry’s testimony. Although Dr. Henry provided some improper testimony,
he also testified that he could not state whether the victim was sexually abused, nor did he testify
that defendant was guilty. Further, when commenting on the evidence, the prosecutor was
allowed to discuss the reasonable inferences that could be drawn from the expert’s testimony and
compare the expert testimony presented to the facts of the case. Our review of the record reveals
that the prosecutor’s comments were based on the evidence, reasonable inferences, and common
sense. Moreover, the trial court properly instructed the jurors that they “may only consider the
evidence that has been properly admitted in this case” and that the “lawyers’ statements and
arguments are not evidence.” The trial court further instructed that “you should only accept
things that the lawyers say that are supported by the evidence or by your own common sense and
general knowledge.” Additionally, “[y]ou should use your own common sense and general
knowledge in weighing and judging the evidence” and “you should rely on your own common
sense and everyday experience.” The trial court also properly instructed the jurors with regard to
5
Because defense counsel failed to challenge the prosecutor’s argument, we review defendant’s
claim for plain error affecting his substantial rights. People v Thomas, 260 Mich App 450, 453454; 678 NW2d 631 (2004).
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the use of expert testimony during deliberations. These instructions were sufficient to dispel any
prejudice that might have resulted from the prosecutor’s remarks. People v Bahoda, 448 Mich
261, 281; 531 NW2d 659 (1995) (the trial court’s instruction that attorneys’ arguments are not
evidence eliminated any prejudice). Again, curative instructions are presumed to resolve most
errors, and jurors are presumed to follow their instructions. Unger, supra at 235. There was no
plain error requiring reversal.
Finally, defendant argues that his lack of criminal history was a pertinent character trait
under MRE 404(a)(1), and he should have been permitted to inform the jury of this. We
disagree.6 In People v Phillips, 170 Mich App 675, 680-681; 428 NW2d 739 (1988), this Court
addressed a similar situation and held that no rule of evidence would permit testimony regarding
a defendant’s lack of a criminal record. Similarly, in this case, we find that no rule of evidence
permits testimony concerning defendant’s lack of a criminal record. Id. This is neither evidence
establishing reputation nor evidence of a specific instance of conduct under MRE 405. Id. at
680. In addition, pursuant to MRE 608(b), character evidence introduced by way of specific
instances of conduct, or the lack thereof, cannot be proved through extrinsic evidence. Id. at
681. Further, evidence of specific instances of conduct, or lack thereof, would not be permitted
under MRE 405(b) because character is not an essential element of the charge or defense. Id.
Based on the foregoing, the trial court did not err in prohibiting defendant from introducing
evidence that he had no prior criminal history.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Richard A. Bandstra
/s/ Peter D. O’Connell
6
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion and
questions of law de novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
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