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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 16, 2017

v No. 330086 Kalamazoo Circuit Court VICTOR DEVON FITZPATRICK, LC No. 2015-000668-FC

Defendant-Appellant.

Before: M URPHY , P.J., and S AWYER and S WARTZLE , JJ.

P ER C URIAM

. Defendant appeals by right his convictions for two counts of f irst-degree criminal sexual assault (CSC), MCL 750.520b(1)(b), and two counts of second-deg ree CSC, MCL 750.520c(1)(b). The trial court sentenced defendant to 330 mon ths to 50 years’ imprisonment for first-degree CSC and 15 to 30 years’ imprisonment for secon d-degree CSC. We affirm.

On April 4, 2015, defendant was out late drinking in Kalamazoo , Michigan, with his cousin Makella Potts, and her fr iend. At some point that night , defendant went to Makella’s house with Makella to go to sleep. Makella decided to go back out and left defendant on the couch in her living room. Their aunt, Carla Potts, was spendin g the night at Makella’s on a separate couch in the living room. The victim, defendant’s 14- year-old cousin was also staying in Makella’s house that night. Before defendant came back for the night, the victim watched television until 1 a.m. with Carla, and then went to bed with h er nieces in a first-floor bedroom.

At some point during the night, the victim awoke to defendant rubbing his penis against her butt. The victim told defendant to stop, but he did not sa y anything and continued to rub against the victim for another couple of minutes. When defenda nt stopped, he rolled the victim onto her back, got on top of her , and took off her pants. Defe ndant then removed his pants and put his penis in the victim’s m outh and moved it up and down. After defendant removed his penis from the victim’s mouth, he put it into her vagina. Defe ndant then pushed the victim’s bra down and began licking her breasts while his penis was still in her vagina. This continued until there was a knock on the door, at wh ich point defendant stopped , put on his clothes, and left.

The next day, the victim told Makella what happened. The vict im was eventually taken to the YWCA, where a nurse performed a physical examination. A s part of the exam, the nurse collected the victim’s medical history, including the reason fo r the victim’s visit to the YWCA-2- that day. Over defendant’s obj ection, the nurse testified at t rial that the victim told her that while the victim was asleep, a man came behind her and rubbed his pen is on her butt, then got on top of her and put his penis in her mouth, then in her vagina. The nurse testified that this continued until the man heard a knock on the door, at which point he left . After hearing the victim’s story, the nurse performed a physical examination of the victim and fo und a 3⁄4-inch abrasion to the victim’s genital area on the posterior fourchette, which was co nsistent with the events that the victim described. Samples were taken from the areas that the v ictim told the nurse that her assailant had touched, but no sal iva or semen was found in any of the samples.

Also at defendant’s trial, the prosecution introduced evidence of a sexual assault from 2006 in which defendant was accused of sexually assaulting his 18-year-old stepcousin. In that instance, the victim was sleeping on a couch at Makella’s apart ment. Defendant came into Makella’s apartment after the victim had already fallen asleep, took the victim’s pants off, and put his penis into her vagina. When the victim woke up, defend ant stopped. The victim quickly put her pants back on and went to Makella’s room to call the po lice, at which point defendant fled.

On appeal, defendant first argues that the trial court erred b y admitting the nurse’s testimony regarding the victim’s statement because it was inadm issible hearsay. We disagree. “This Court reviews a trial court’s evidentiary ruling for an a buse of discretion.” People v Benton , 294 Mich App 191, 195; 817 NW2d 599 (2011). “A trial court a buses its discretion when its decision falls outside the range of reasonable and pri ncipled outcomes.” People v Duncan , 494 Mich 713, 722-723; 835 NW2d 399 (2013).

Hearsay is “a statement, other than the one made by the declar ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). “If, however, the proponent of the evidence offers the statement for a purpose other than to prove the truth of the matter asserted, th en the statement, by definition , is not hearsay.” People v Musser

, 494 Mich 337, 350; 835 NW2d 319 (2013). If a statement is hear say, it “is generally prohibited and may only be admitted at trial if provided for in an excepti on to the hearsay rule.” People v Gursky , 486 Mich 596, 606; 786 NW2d 579 (2010). “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 t he declarant had a self-interes ted motivation to be truthful in order to receive proper medical care.” People v Mahone , 294 Mich App 208, 214-215; 816 NW2d 436 (2011).

In this case, the nurse’s testimony was arguably not hearsay b ecause it was not offered to prove the truth of the victim’s statement. The nurse testified that she collected information from the victim in order to address the victim’s medical needs, whic h included understanding why the victim was visiting the nurse on that occasion. The nurse did not identify defendant by name, but rather described the events that the victim said caused her injuries. At no point did the nurse indicate that these events were true, only that the injuries sh e identified on the victim were consistent with the victim’s des cription of these events. Ther efore, the nurse’s testimony was arguably not hearsay.

Even if the statement were hear say, it was admissible under MR E 803(4). The nurse explained that collecting a medical history, including the reas on that the patient was visiting the-3- nurse on a particular occasion, was a routine part of the nurse ’s examination process. In the victim’s case, she described to the nurse a sexual assault duri ng which a man put his penis inside her vagina, causing pain. The v ictim complained of continuing discomfort in her genital region. Based on the victim’s statements, the nurse conducted a physica l exam and was able to identify a 3⁄4-inch abrasion to the victim’s genital area. Therefore, the s exual assault that the victim described to the nurse was “r easonably necessary for diagnosis and treatment” because it determined the type of examination and course of treatment that was most appropriate. Mahone

, 294 Mich App at 214-215. Defendant argues that the purpose of the victim’s examination was to collect evidence, not for medical treatment. However, the fact that the nurse collected evidence of a sexual assault during her ex amination of the victim “is no t dispositive.” People v Duenaz

, 306 Mich App 85, 96; 854 NW2d 531 (2014). The victim went to t he nurse complaining of genital discomfort, and the nurse diagnosed an abrasion to the victim’s genital area. This supports the conclusion that the victim went to the nurse for a medical diagnosis. Further, by telling the nurse the truth, the victim ensured that the nurse was able to properly address any potential medical injuries that the victim may have suffered. Therefore, she had a “self-interested motivation to be truthful in order to receive proper medical care.” Mahone , 294 Mich App at 214-215. Accordingly, the trial court properly adm itted the nurse’s testimony regarding the victim’s statement describing her sexual assault under MRE 803(4).

Defendant next argues that the trial court erred by admitting defendant’s other-acts evidence. We disagree. Defendant did not object to the admiss ion of the 2006 sexual assault, but rather left its admission to t he discretion of the trial co urt. Therefore, defendant waived his right to appeal this issue, People v Fetterley , 229 Mich App 511, 520; 583 NW2d 199 (1998), and his waiver extinguished any error, People v Carter , 462 Mich 206, 215; 612 NW2d 144 (2000). Yet, even addressing the merits of defendant’s argumen t, his claim fails. If defendant had not waived this issue, his failure to object left the issue unpreserved. People v Aldrich , 246 Mich App 101, 113; 631 NW2d 67 (2001). “We review unpreserved evidentiary err or, including alleged constitutional error, for plain error.” People v Coy , 258 Mich App 1, 12; 669 NW2d 831 (2003).

MRE 404(b)(1) states that “evidence of other crimes, wrongs, o r acts” is not admissible “to prove the character of a person in order to show action in conformity therewith,” but is admissible for “purposes, such as proof of . . . scheme [or] pl an.” MRE 404(b)(1). To determine whether other acts evidence is admissible, courts in Michigan f ollow the VanderVliet 1 approach, which requires the following:

First, the prosecutor must offer the “prior bad acts” evidence under something other than a character or propen sity theory. Second, the evide nce must be relevant under MRE 402, as enforced through MRE 104(b). Third, the probative value of the evidence must not b e substantially outweighed by u nfair prejudice under MRE 403. Finally, the trial court, upon request, may pro vide a limiting

1 People v VanderVliet , 444 Mich 52; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994 ).-4- instruction under MRE 105. [ People v Knox , 469 Mich 502, 509; 674 NW2d 366 (2004) (citation and quotati on marks omitted).]

Defendant first argues that the 2006 evidence was improperly a dmitted because its sole purpose was to show defendant’s c haracter. This argument is wi thout merit. “Where the only relevance of the proposed evidence is to show the defendant’s c haracter or the defendant’s propensity to commit the crime, the evidence must be excluded.” Id . However, this “rule is inclusionary, because it provides a nonexhaustive list of reaso ns to properly admit evidence that may nonetheless also give rise to an inference about the defend ant’s character.” People v Mardlin , 487 Mich 609, 615-616; 790 NW2d 607 (2010). Here, the prosec ution offered the 2006 victim’s testimony of the pre vious incident in which defen dant put his penis in the victim’s vagina while she was sleeping to show a common scheme or plan o n behalf of defendant to sexually assault young teenage girls. On its face, this is a p roper purpose under MRE 404(b)(1).

“[E]vidence of similar misconduct is logically relevant to sho w that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they ar e manifestations of a common p lan, scheme, or system.” People v Sabin (After Remand) , 463 Mich 43, 63; 614 NW2d 888 (2000). “While there [may be] some dissimilarities between the charged acts and the other bad acts , a high degree of similarity is not required, nor are dist inctive or unusual f eatures required to b e present in both th e charged and the uncharged acts.” People v Steele , 283 Mich App 472, 480; 769 NW2d 256 (2009).

Both in the current case and the 2006 assault, defendant was i nvolved in a sexual assault of a young relative while the rela tive was staying as a guest a t defendant’s cousin’s home. In both instances, defendant approached the victim while she was s leeping and removed her clothes. Although there were clear differences in the two assa ults, such as the victim in the 2006 incident was on a couch and not a bedroom, and defendant stoppe d assaulting the 2006 victim when she woke up, the cases were sufficiently similar to establ ish a common scheme or plan. See Steele , 283 Mich App at 480.

Defendant does not contest the relevance of the evidence, but rather argues that the trial court erred in admitting evidence of the 2006 assault because i t was unfairly prejudicial. Under MRE 403, relevant “evidence may be excluded if its probative va lue is substantially outweighed by the danger of unfair prejudice , confusion of the issues, or misleading the jury, or by considerations of undue delay, wa ste of time, or needless prese ntation of cumulative evidence.” MRE 403 “does not prohibit prejud icial evidence; only evidence that is unfairly so.” People v Crawford , 458 Mich 376, 398; 582 NW2d 785 (1998). This is because evid ence offered against a party is “by its very nature . . . prejudicial, otherwise the re would be no point in presenting it.” People v Fisher , 449 Mich 441, 451; 537 NW2d 577 (1995). When weighing “proba tive value against prejudicial value,” this Court balances several factors , including, among other considerations, “the potential fo r confusing or misleading the jury.” People v Blackston , 481 Mich 451, 462; 751 NW2d 408 (2008).

Defendant argues that evidence of the 2006 assault unfairly bo lstered the victim’s testimony because it painted defendant as a bad man to the jury , tempted the jury to convict defendant of the 2006 assault rather than the assault at issue in the case, and tempted the jury to-5- find that defendant committed the crime in this case because he had a propensity to commit crimes. These arguments are without merit. “A carefully const ructed limiting instruction rendered by the trial court would be sufficient to counterbalan ce any potential for prejudice spawned by the other acts evidence.” People v Martzke , 251 Mich App 282, 295; 651 NW2d 490 (2002). Jurors are presumed to follow the trial court’s in structions. People v Unger , 278 Mich App 210, 235; 749 NW2d 272 (2008).

The trial court’s limiting instructions specifically addressed defendant’s concerns. Specifically, the trial court instructed the jury that it could not use this evidence to “decide that it shows that the Defendant is a bad person,” that it “must not co nvict the Defendant here because you think he is guilty of other bad conduct,” and that the jury could use this evidence “only to consider” whether defendant had a common plan or scheme, not “t hat he [was] likely to commit crimes.” The trial court’s ins tructions counterbalanced any po tential for prejudice that the evidence of defendant’s 2006 assault may have had. See Martzke , 251 Mich App at 295. Accordingly, defendant failed to establish that the evidence of his 2006 sexual assault was unfairly prejudicial, and the tria l court did not plainly err b y admitting it.

Defendant also argues that def ense counsel was ineffective at trial because he failed to object to the admission of evide nce of the 2006 sexual assault. However, the trial court did not err by admitting evidence of defendant’s 2006 sexual assault. As such, any objection that defense counsel could have made to its admission at trial would have been meritless. Defense counsel cannot be found ineffective “for failing to raise merit less or futile objections.” People v Putman , 309 Mich App 240, 245; 870 NW2d 593 (2015). Accordingly, def ense counsel was not ineffective.

Affirmed.

/s/ William B. Murphy /s/ David H. Sawyer /s/ Brock A. Swartzle