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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

August 14, 2018

v No. 334692

Ingham Circuit Court

KEVIN ROBERT SMITH, LC No. 15-001023-FC

Defendant-Appellant.

Before: CAMERON, P.J., and METER and BORRELLO, JJ.

PER CURIAM.

Defendant appeals as of right his convictions by a jury of criminal sexual conduct in the 

first degree, MCL 750.520b (CSC-I), and second degree, MCL 750.520c (CSC-II). The trial 

arose from allegations that he sexually assaulted his cousins, the twins DG and KG, when they 

were children; the two convictions involved incidents with DG.1 The trial court sentenced 

defendant to concurrent prison terms of 180 to 270 months for the CSC-I conviction and 71 to 

180 months for the CSC-II conviction. We affirm.

I. ASSISTANCE OF COUNSEL

Defendant argues that he received ineffective assistance of counsel in several respects. 

Whether a defendant received the effective assistance of counsel is a mixed question of fact and 

law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). This Court reviews for 

clear error the trial court’s findings of fact and reviews de novo questions of constitutional law. 

Id. To establish ineffective assistance of counsel, a defendant must show: (1) that counsel’s 

performance was below an objective standard of reasonableness and (2) that there is a reasonable

probability that, but for counsel’s error or errors, the result of the proceedings would have been 

different. Id. at 51. This Court will not substitute its judgment for that of counsel regarding 

matters of trial strategy. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).

 1 The jury acquitted defendant concerning an alleged incident involving KG and could not reach 

a verdict regarding a third alleged incident involving DG.
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A. FAILURE TO OBJECT

The gist of defendant’s initial ineffective-assistance claim is that the prosecutor used 

improper testimony from Detective Annie Harrison, Dr. Stephen Guertin, and various other 

witnesses to vouch for the credibility of the complainants’ accusations and that counsel should 

have objected to the testimony. “It is generally improper for a witness to comment or provide an 

opinion on the credibility of another witness, because credibility matters are to be determined by 

the jury.” People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007). “An expert may not 

vouch for the veracity of a victim.” Id.

1. ANNIE HARRISON

a. THE FORENSIC INTERVIEW

Defendant contends that Harrison improperly vouched for the complainants’ credibility 

when “she told the jury that her ‘job is to thoroughly investigate and determine if [the case] 

should or shouldn’t be forwarded to the prosecutor’s office for review.’ ” Defendant insists that 

“[t]he jury had no choice but to conclude that Harrison’s ‘thorough investigation’ resulted in a 

determination of [defendant’s] guilt, otherwise they would not be in court.” Defendant suggests 

that Harrison’s “insistence that her interview technique is scientific and research-based and that 

she had received extensive training” in how to conduct the forensic interview “exacerbated” the 

prejudice stemming from the alleged vouching. This argument is meritless.

In Dobek, id., this Court observed that a detective “testified about his background and

experience, the manner in which to properly investigate and interview subjects in criminal sexual 

conduct cases, his interview of the victim and her demeanor, and delayed disclosure in criminal 

sexual conduct cases.” This Court had no problem with the detective’s testimony about these 

subjects; it was the defendant’s cross-examination about deception issues that arguably crossed 

the line. Id. Moreover, the Court in Dobek noted:

Given that [the detective] was called as a witness by the prosecutor and that a 

criminal prosecution against defendant was pursued, the jurors surely understood 

that [the detective] believed that the victim was telling the truth even without the 

disputed testimony. [Id.]

That the detective who investigated the case and presented it to the prosecutor is testifying for 

the prosecution at a trial concerning the subject of the investigation is a clear indication that the 

detective believes in the validity of the charges. The detective is not barred from testifying; what 

trial courts must do, however, is carefully ensure that detectives (or other witnesses) are not 

allowed to act as human lie detectors and testify that, in their opinions, the complainant is being 

truthful.

Harrison testified that she had received specialized training in conducting interviews in 

child-sexual-abuse cases. She explained that the majority of cases she investigated involved 

delayed disclosure, with the delay being “a few days or it could be a few weeks or years.” This 

did not constitute vouching for the complainants’ credibility; the testimony said nothing about 

the truth or falsity of the sisters’ statements. Harrison described the nature of a forensic 
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interview of a sexual-abuse victim: “The goal for a forensic interview is to obtain a statement 

from a child in an unbiased developmentally appropriate neutral way”; the State of Michigan had 

developed the protocol for this type of interview “to help us as [everyday] professionals on the 

do’s and don’ts of how to interview a child, what the best practice is.” Harrison further 

explained that the goal of the interview was to avoid misunderstandings and to have the children 

describe their story in their own words, without the interviewer being suggestive. Harrison noted 

that one of the ways of ensuring that the interview elicited a statement of the subject’s own 

recitation of events is for the interviewer to construct alternative hypotheses. Harrison explained 

that this was important because “[t]here can’t be any misunderstandings. We need to make sure 

that we are getting the allegations correct, that we’re looking to see what other possibilities are. 

We want to minimize suggestibility.”

The questioning enabled Harrison to determine that the complainants were insisting that 

defendant had actually committed intentional sexual assaults on them. Harrison’s unbiased 

questioning might have enabled her to determine that the complainants were lying or mistaken—

for example, their accounts might have been internally inconsistent or inconsistent with known 

facts or with the laws of sexual assault. That this evidence of lying or mistake did not 

materialize does not mean that Harrison determined that what the complainants told her was true, 

nor did she suggest to the jury that this was the case; instead, she specifically noted that it merely

meant she would continue her investigation rather than terminate the inquiry. Contrary to 

defendant’s claim, Harrison was not permitted to offer testimony concerning her evaluation of 

the complainants’ claims. When the prosecutor asked Harrison, “And were you able to eliminate 

any of the hypotheses or come to any conclusions?” defense counsel objected and the prosecutor 

withdrew the question. Considered in context, Harrison’s testimony indicated that she had 

determined from the interview that the complainants’ statements did not represent 

misunderstandings or outright lies, not that the statements were necessarily true. Moreover, as 

previously noted, the jurors would already have assumed that Harrison believed the allegations 

because she took them to the prosecutor, who in turn filed the charges that they were considering 

at the trial. Id. We find no ineffective assistance with regard to this aspect of Harrison’s 

testimony.

b. FURTHER INVESTIGATION

Defendant claims that Harrison’s statement that she interviewed 28 witnesses constituted 

vouching because she found these witnesses by asking the sisters whom they told or who might 

know about the incidents. This statement does not in any way constitute vouching; it merely 

indicates that Harrison obtained and followed investigative leads. The statement does not detail 

what the witnesses told Harrison or whether Harrison believed what the witnesses told her. In 

short, there is nothing about this statement that vouches for the complainants.

Evidently to support this claim, defendant quotes a lengthy portion of Harrison’s 

testimony that includes her descriptions of how she checked out some details of DG’s

statements. Defendant asserts that the lengthy quotation “is replete with both improper hearsay 

and improper vouching” and that “[t]he amount of improper testimony by Harrison is astounding 

. . . .” MRE 801(c) provides that “ ‘[h]earsay’ 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.” To the extent that any of Harrison’s testimony referred to statements of DG, 
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the statements were not submitted to prove their truth (e.g., that shirts were kept in a particular 

closet), but to show that Harrison’s investigation of DG’s claims did not outright disprove those 

claims, and thus required Harrison to continue her investigation. At any rate, most of the 

testimony recited by defendant concerned proper and allowable visual observations by Harrison, 

indicating how she attempted to determine if the claims should continue to be investigated. 

Seeking and finding corroborating evidence is not equivalent to vouching for a witness’s 

credibility.2 Defendant’s claim regarding the content of the quoted passage is meritless.3

c. QUALIFICATION AS AN EXPERT

Defendant next contends that Harrison was allowed to offer expert opinions despite not 

having been qualified as an expert. However, it is clear that had the prosecutor sought such 

qualification, Harrison would have been qualified. MRE 702 provides that an individual can be 

qualified as an expert “by knowledge, skill, experience, training, or education[.]” Based on her 

testimony regarding her background and training, Harrison would qualify as an expert. Defense 

counsel was not ineffective for failing to object.

d. SPECIFIC CASELAW

Defendant contends that Harrison’s testimony was improper based on People v Peterson, 

450 Mich 349; 537 NW2d 857, amended 450 Mich 1212 (1995), and People v Shaw, 315 Mich 

 2 As discussed infra, unlike the investigator in People v Shaw, 315 Mich App 668, 676; 892 

NW2d 15 (2016), Harrison did not state that she “was able to confirm the veracity of [the 

complainant’s] statements . . . .”

3 The trial court concluded that even if Harrison made some improper statements, defendant 

failed to demonstrate prejudice from her testimony because there was physical evidence 

consistent with sexual abuse and there were family members who testified that they had 

witnessed defendant behaving inappropriately with the complainants. Defendant contends that 

the trial court erred in making these conclusions. Defendant states that there was “absolutely no 

physical evidence showing sexual abuse” and that Dr. Guertin had found that “his physical 

findings could have come from abuse or volitional sexual intercourse.” However, the fact that 

the physical findings could have come from sexual abuse in fact supports the trial court’s 

finding. Defendant next embarks on a lengthy examination of what certain witnesses had 

described about defendant’s conduct. He emphasizes that most of the witnesses only became 

concerned about defendant’s conduct when the complainants’ allegations came to light, or 

alleged that they were concerned about his conduct at the time it occurred but did not bother to 

report it to authorities or directly confront DG or KG about it. However, in the context of sexual 

abuse by a family member, it may be that other family members are disinclined to think ill of the 

perpetrator. Also, they might be disinclined to report inappropriate behavior because they do not 

want to accuse a family member or cause problems within the family. That this is a valid 

concern can be seen from what happened to the family relationships following the revelation of 

DG’s and KG’s claims.
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App 668; 892 NW2d 15 (2016).4 The statements defendant finds objectionable in connection 

with this caselaw involve Harrison’s testimony that the majority of the cases she investigates 

involve delayed disclosure, that sexual-abuse victims frequently remember more details after 

their initial interviews, and that it is normal for sexual-abuse victims to skim over specific facts. 

Defendant claims that Harrison’s “lengthy recitation of the ‘truth seeking’ process” was 

improper because “it invaded the purview of the jury and improperly vouched for the 

complainants.” However, Harrison did not claim that DG’s or KG’s recitation of events was 

truthful or even credible; she merely explained that, based on her experience, other sexual-abuse 

victims behaved just like other crime victims: they sometimes made delayed disclosure of their 

accusations, they remembered additional details as time went by, and they sometimes skimmed 

over facts. In Peterson, 450 Mich at 373, the Court stated: “We hold that the prosecution may 

present evidence, if relevant and helpful, to generally explain the common postincident behavior 

of children who are victims of sexual abuse.” The complaints highlighted by defendant concern 

a witness’s explanation of “common postincident behavior of children who [were allegedly] 

victims of sexual abuse”; therefore, Harrison’s testimony was proper under Peterson. The 

improper testimony in Peterson concerned experts’ testimony concerning statistics related to the 

veracity of child-sexual-abuse victims. Id. at 375-376. The Court concluded: “Such references 

to truthfulness as [sic] go beyond that which is allowed under MRE 702.” Id. at 376 (emphasis 

added). Harrison’s testimony did not involve “references to truthfulness” and did not suggest 

that correspondence between the complainants’ claims and what occurred in other sexual-abuse 

cases established the veracity of the complainants’ assertions.5

In People v Shaw, 315 Mich App 668, 676; 892 NW2d 15 (2016), this Court found error 

in testimony by the investigating officer that contained hearsay, and that also asserted she was 

able to “confirm the veracity” of the events related by the complainant and “corroborate[]” what 

 4 We decline to address the nonbinding, unpublished case also cited by defendant.

5 Defendant acknowledges that this Court in Dobek held that police officers were allowed to 

provide lay opinion testimony; specifically, with respect to the police officer in Dobek, this Court 

ruled that (1) it could reasonably be argued that the officer’s testimony was acceptable lay 

opinion testimony; and (2) assuming expert testimony was required, the officer “was more than 

qualified to give expert opinion testimony on delayed disclosure to the extent of the testimony 

actually presented.” Dobek, 274 Mich App at 78-79. The main thing that the officer testified to 

was that “delayed disclosure is common and happens quite frequently with child victims.” Id. at 

79. Harrison testified to the same conclusion based on her experience, and defendant now claims 

that that was “vouching.” Defendant additionally asserts, however, that Harrison also “testified 

to many psychological aspects for which she had no training,” such as the remembering of more 

details after the initial interview and “skimming” over facts of the crime. Without explaining 

why, defendant insists that “[t]here can be no doubt that this testimony was improper.” But 

Harrison’s observations were not “psychological.” She was testifying to her own observations 

from investigating many child-sexual-abuse cases. These observations are not unusual; indeed, it 

is not unusual for witnesses to remember additional details or skim over some facts that are 

subsequently developed more completely in a later interview or even at trial.
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the complainant told her. The Court stated that the officer had essentially informed the jury that 

she had “concluded that the complainant was credible[.]” Id. This Court found no tactical 

advantage for the defense attorney in not objecting and concluded that counsel’s failure to object 

fell below an objective standard of reasonableness. Id. at 676-677.

While the prosecutor in the present case did ask Harrison about certain “ways to 

corroborate statements” that Harrison followed, Harrison’s testimony did not go as far as the 

investigator’s statements in Shaw, wherein the investigator stated that she “confirm[ed] the 

veracity” of certain statements by comparing them with inadmissible hearsay. See id. at 676. In 

addition, Harrison specifically testified that she did not conclude at the end of the interviews that 

the complainants had been abused but instead concluded that further investigation was needed. 

Moreover, defense counsel specifically elicited hearsay testimony from Harrison during crossexamination by either including hearsay statements in his questions or by asking her to relate 

what she had been told by the complainants or by other witnesses. This was in line with the 

defense strategy of highlighting inconsistencies in the complainants’ stories. This case is 

therefore unlike Shaw and we do not find Shaw to require reversal.6

2. DR. STEPHEN GUERTIN

Defendant contends that his trial attorney should have objected to the testimony of Dr. 

Guertin because he provided inadmissible hearsay testimony when he recounted statements made 

to him by KG and DG and testified about a diagnosis of sexual molestation.7 

The prosecutor claims that MRE 803(4)—the medical diagnosis or treatment hearsay 

exception—applies to the testimony about the complainants’ statements. MRE 803(4) excepts 

the following:

Statements 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 of general character of the cause 

or external source thereof insofar as reasonably necessary to such diagnosis and 

treatment.

 6 We also note that Shaw was issued on June 14, 2016, the very day of Harrison’s testimony, and 

as such it would be difficult to hold counsel responsible for failing to object on the basis of 

Shaw.

7 By using quotation marks, defendant suggests that Dr. Guertin’s examinations of KG and DG 

were not “medical examinations.” However, defendant does not explain how a physical 

examination of a woman’s vagina by a doctor following her claim of sexual abuse is not a 

medical examination. Similarly, defendant sets off the words “medical history” with quotation 

marks to suggest, again without explanation, that a doctor conducting an interview of an 

individual who has presented for a physical examination concerning claims of sexual abuse is not 

obtaining a medical history. In fact, Dr. Guertin testified that “[s]ince it’s a doctor doing it, it is 

a medical history.”
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In People v Mahone, 294 Mich App 208, 214-215; 816 NW2d 436 (2011), this Court stated:

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. Thus, statements the victim made to the nurse were all 

properly admissible pursuant to MRE 803(4). [Citations omitted.]

The statements were admissible if one looks to Mahone. While the Court in Shaw, 315 Mich 

App at 675, found MRE 803(4) inapplicable because the examination in that case occurred 

“seven years after the last alleged instance of abuse,” because the complainant “was specifically 

referred to Guertin[8] by the police,”9 and because “during the seven years since the last alleged 

incident of abuse, she had seen a different physician . . . for gynecological care,” the Shaw 

opinion was not issued until June 14, 2016, and Dr. Guertin provided his testimony on June 7, 

2016. Accordingly, it did not fall below an objective standard of reasonableness for counsel to 

fail to object on the basis of Shaw. At any rate, even assuming the availability and applicability 

of Shaw and thus even assuming that counsel erred by failing to object to Dr. Guertin’s 

testimony, we cannot find a basis for reversal.

At the commencement of cross-examination, the following detailed exchange occurred:

Q. [Defense counsel]: When you say the findings were consistent with 

either one, either one what?

A. [Dr. Guertin]: It wasn’t either child. It was—you can clearly get these 

injuries with a painful sexual molestation encounter that entailed bleeding, 

especially if it was in the pre-pubertal period. You can also get these findings 

from consensual sex, especially recurrent consensual sex.

Q. All right. Thank you, Doctor. Doctor, in the history that you obtained 

with these two young ladies, is the sole source of the history from these girls 

themselves?

A. Absolutely.

 8 Shaw also involved testimony by Dr. Guertin.

9 There was evidence in the present case of a police referral to Dr. Guertin.
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Q. I mean, you don’t review any police reports or prior statements or 

anything like that?

A. No. In fact, again, they are put to the side. I don’t think I, even in this 

folder, I have such a thing.

Q. All right. And when you indicate in your conclusion that—I think in 

one of their conclusions you indicated a strong history of sexual abuse?

A. Right. [KG] was a strong history. And with [DG] I said a clear 

history.

Q. And that’s based on what they tell you?

A. It’s based on what they say, right. Level of detail. And the fact that—

Q. You don’t try to analyze whether what they’re saying is accurate, or 

whether it’s inconsistent, you base that conclusion on what they had told you?

A. Right. I can’t tell you if they were telling me the truth.

Q. All right.

A. But they said certain things, things that they said could certainly cause 

injury. And they had injury, so . . .

Q. And, of course, back to the first question I asked you: Those injuries, 

as well, could be caused by volitional sexual—

A. They could. [Italics and underlining added.]

Defense counsel’s cross-examination placed Dr. Guertin’s testimony in context. 

Although Dr. Guertin used words like “clearly” and “strong” to describe the history he obtained 

from the complainants, he confirmed that he was using these terms to indicate the level of detail 

they related.

Further, the trial court instructed the jury that although Dr. Guertin was an expert, 

[Y]ou do not have to believe an expert’s opinion. Instead, you should decide 

whether you believe it and how important you think it is.

When you decide whether you believe an expert’s opinion, think carefully 

about the reasons and facts he gave for his opinion, and whether those facts are 

true.

You should also think about the expert’s qualifications, and whether his 

opinion makes sense when you think about the other evidence in the case.
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You heard Dr. Guertin render a conclusion that [DG] and [KG] were 

sexually abused. That evidence cannot be used to show that the crimes charged 

were committed, or that the Defendant committed them, nor can it be considered 

an opinion by Doctor Guertin that [DG] and [KG] are telling the truth.

You, as jurors, are the sole judges of the facts and the credibility of the 

witnesses. And you should base your decision on all the evidence presented in 

the case.

You heard Doctor Guertin’s opinion about the behavior of sexually abused 

children. You should consider that evidence only for the limited purpose of 

deciding whether [DG] and/or [KG]’s acts and words after the alleged crime were 

consistent with those of sexually abused children. The evidence cannot be used to 

show that the crime charged here was committed, or that the Defendant 

committed it, nor can it be considered an opinion by Doctor Guertin that [DG] or 

[KG] are telling the truth. [Emphasis added.]

“Jurors are presumed to follow their instructions, and it is presumed that instructions cure most 

errors.” Mahone, 294 Mich App at 212. It is apparent that in this case the jurors followed their 

instructions because they acquitted defendant of the only charge based on [KG]’s testimony, and 

they were unable to agree regarding a verdict for the final charge (the CSC-II charge related to 

defendant’s allegedly forcing [DG] to touch his penis). Had the jurors unquestioningly accepted 

Dr. Guertin’s testimony, they would have found defendant guilty of all four counts; instead, the 

jurors followed their instructions and only convicted defendant on the two counts for which they 

found sufficient evidence.

Given the clarification on cross-examination that Dr. Guertin’s testimony was based on 

DG’s and KG’s statements, given the jury instructions, and given that DG and KG testified at 

trial about the incidents in question, we cannot find that any error in the admission of Dr. 

Guertin’s testimony affected the outcome of the trial.10

3. OTHER WITNESSES

Defendant claims that the complainants’ father and grandmother,

11 as well as witnesses 

RG, SF, AG, and SK, were all permitted to relate hearsay statements in light of trial counsel’s 

 10 Defendant takes issue with Dr. Guertin’s diagnosis of sexual abuse. But again, Dr. Guertin 

specifically stated: “I can’t tell you if they were telling me the truth,” and admitted that if he 

obtained an inaccurate history, that could result in a false diagnosis. In addition, Dr. Guertin’s 

opinions properly were based in part on his physical examinations. See People v Smith, 425 

Mich 98, 112; 387 NW2d 814 (1986). He explained that pre-pubertal penetration is more likely 

to leave notches in the hymen than post-pubertal penetration.

11 For ease of reference, the complainants’ mother, father, and grandmother will be referred to in 

this opinion as “Mother,” “Father,” and “Grandmother.”
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failure to object, and that this cumulative hearsay prejudiced defendant to the degree that, absent 

the hearsay, the outcome of the trial would have been different.

a. FATHER

Father testified:

A. Correct. We have always talked about it [“things” Mother had made 

him aware of]. She always has never been comfortable with the way that Kevin 

has ever been around any girl that has been in our family that’s young. She has 

made mention for 15, 20 years. She had never liked it. There was something 

there. She said: I just can’t put my finger on it. I always thought to myself, 

maybe you’re overreacting.

Mr. Hocking [Defense Counsel]: I am going to object. I don’t know that 

his thoughts on the subject are relevant.

The Court: It’s his thoughts. I’ll overrule the objection. It’s his thoughts. 

So I’ll allow the answer.

Q. (Mr. Kwasnik [Ass’t Prosecutor]): Go ahead [and] finish your answer. 

What did you think?

A. It was just—that was what my knowledge of the situation was. It was 

always the way my wife reacted to the things that she had seen, you know. I 

worked a lot, so I wasn’t around as much as she was when we owned the store 

and stuff like that.

So, yes, firsthand situations that I was not present at. I only know from 

what she had told me due to general conversations at dinner or anything like that. 

[Emphasis added.]

Defendant claims that Father’s statements as quoted above were hearsay because he 

testified that Mother told him about a number of incidents involving [DG] and defendant. Even 

assuming that this nonspecific testimony constituted inadmissible hearsay, we cannot find 

anything outcome-determinative in it because the testimony essentially indicates that Mother had 

no evidence from which to conclude that defendant had done something inappropriate; she 

simply felt uncomfortable with defendant’s interactions. This admission supported defendant’s 

claim of innocence, i.e., that the sexual-assault allegations were based on lies from [DG] and 

[KG] and the resultant misunderstanding of the adults; in other words, he had not actually 

sexually assaulted either complainant, but his general behavior with them had caused some of the 

adults to feel uncomfortable. Moreover, on cross-examination, Father agreed that the allegations 
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against defendant had “caught [him] off guard” because he never expected his cousin to molest 

his children. This statement supported the defense.12 

b. GRANDMOTHER

Defendant claims that Grandmother testified that Mother told her about an incident that 

occurred between [DG] and defendant at a pond. Defendant does not specify the hearsay he 

claims was related or explain how Grandmother’s testimony constituted impermissible vouching 

for the credibility of [DG] or [KG]. Defendant cannot simply announce his position and leave it 

to this Court to find and rationalize the basis for the claim. People v Kelly, 231 Mich App 627, 

640-641; 588 NW2d 480 (1998). At any rate, after examining the cited transcript page, we find 

that Grandmother was describing what she observed at the pond, i.e., that [DG] and defendant 

were “sitting close together” and “needed to separate a little bit.” While she also related that 

“[Mother] was concerned that they were sitting too close together,” this was simply a reiteration 

of Grandmother’s own statement that she observed the two close together and that they needed to 

separate. In addition, Grandmother testified that she “didn’t think anything was really going on.” 

This comment actually assisted the defense by emphasizing that an adult did not see any criminal 

conduct occurring. Defense counsel was not ineffective for failing to object to this exchange. 

c. RG

Defendant claims that RG provided multiple hearsay statements. He states that RG 

“testified that [Mother] sat her down at a party and explained that she felt that [defendant] had 

acted inappropriately with the girls over several years.” This is a misreading of the cited 

transcript page. RG actually testified that Mother “had mentioned some things that had bothered 

her over the years that she had noticed [defendant] doing . . . .” This nonspecific testimony was 

not particularly consequential and defense counsel was not ineffective for failing to object to it. 

Defendant also claims that RG “testified that [Mother] was vocal about not liking [defendant].” 

Defendant does not cite a transcript page for this allegation, and we refuse to do defendant’s 

legwork for him. Id. Defendant next takes issue with the following exchange during RG’s 

testimony:

A. . . . So it caught Jason’s attention. Jason brought it up to me and he 

said, what was that about. I said, I have no idea what’s going on. This was a 

different instance at the pond. So it was around the time that they were 13. I 

think it [was] around the time that it may have stopped.

That was another instance in the pond someplace where Jason was really 

uncomfortable with it. He said: I don’t like it. Don’t have a good feeling about it. 

Something is wrong. He’s doing something and it’s just not right. He’s like: 

Something needs to be done.

 12 Defendant also claims that Father provided hearsay when he stated that he “wasn’t there on 

some of the other circumstances.” Defendant does not explain, however, how this statement 

constitutes hearsay when Father did not elaborate on anything another person told him. 
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So he was getting a bad vibe off of it as well. I was like: I don’t know 

what you want me to say, or who you want me to say it to. Do you want me to 

say it to [Father]? Do you want me to say it to [Mother]? Do you want me to 

approach the girls?

Q. What did you do?

A. I asked the girls about it. They were like: No, it’s fine . . . . We have 

got it under control. Left it at that. So—

Q. You did have a conversation with the girls that you remember?

A. We touched on it a little bit. But neither one wanted to talk about it. So 

I kind of just left it at that and let it be.

Contrary to defendant’s implication, it is not clear from the transcript whether RG also observed 

the incident being referred to by “Jason,” but she did provide some hearsay when she discussed 

Jason’s stating, “[h]e’s doing something and it’s just not right.” However, RG did not relate 

anything that specifically described defendant’s conduct, and the concluding statement was that 

DG and KG appeared to discount the importance of the incident. This supported the defense. It 

indicated that nothing serious enough to merit a complaint had occurred. In these circumstances, 

we find no ineffective assistance of counsel in the failure to object.

d. SF

Defendant claims that SF improperly testified about a social-media post from DG. 

Defendant asserts that SF “testified that the post explained that [DG] had been sexually 

assaulted.” Defendant does not set forth support for this claim. Here is what SF actually 

testified to:

Q. When did you first become aware—you know [why] you’re here, 

correct?

A. Yes.

Q. When did you first become aware that there was a potential problem?

A. I had just happened to have a break at work, and opened my Facebook. 

And I see [DG] have [sic] a posting.

Q. Okay. So there was something about that posting that made you 

watch?

A. She never said any names. But she kind of made an accusation about 

something that had happened to her.

Q. It bothered you enough to do some follow-up; is that right?
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A. It bothered me enough to show my co-worker, am I seeing what I think 

I am seeing.

Q. Then what did you do?

A. I texted her twin.

Q. You texted her twin?

A. I texted [KG] and asked if her sister was okay.

Q. All right. And did you do anything else?

A. Not that day. She texted her and was like, she is okay.

Q. All right.

A. Later I did text [KG] and said, is she okay. She said yeah. 

While this testimony contains some hearsay, the nature of it is inconsequential. SF did 

not relate what DG posted on her Facebook page other than to say that she made an accusation 

about something that happened to her; SF did not explain what that accusation was. Contrary to 

defendant’s claim, SF did not testify that [DG] made a social media post claiming sexual assault. 

The testimony contains hearsay from KG stating that DG is “okay.” Defendant does not explain 

how this hearsay was prejudicial. In fact, it supported the defense that nothing had happened, 

and that DG and KG were making up their allegations, because even if the post on Facebook did 

claim that DG was sexually assaulted, KG assured SF that DG was okay, which is inconsistent 

with her having been assaulted. This testimony aided the defense in arguing that DG’s testimony 

about being sexually abused was not credible. In cross-examining DG, counsel pointed out 

inconsistencies in DG’s social-media postings. Counsel was not ineffective for failing to object

Defendant next claims that SF repeated hearsay in testifying about conversations she had 

with DG at a party. Defendant fails to disclose that SF was twice instructed by the prosecutor to 

confine her comments to what she observed and not to testify to what DG had said. Also, 

defense counsel objected when SF began to describe what DG was upset about, and her 

testimony on this point was cut off. SF then testified that she had conversations with DG, but she 

did not in fact relate the content of the conversations. 

Defendant claims that SF related hearsay statements in describing what transpired when 

she entered the kitchen in Mother’s home, when Mother became extremely angry against 

defendant. But Mother had already testified about this episode, so SF’s testimony did not 

disclose anything new to the jury. Contrary to defendant’s assertion that “[t]his inappropriate 

testimony served to substantiate the claim that [defendant] was guilty of these alleged crimes,” 

this testimony did not substantiate anything other than Mother’s reaction to DG’s disclosures. 

The jurors were well aware that the disclosures had been made because DG testified about them. 

Defendant has failed to show any outcome-determinative prejudice based on counsel’s failure to 

object.
-14-

e. AG

Defendant next argues that AG provided hearsay testimony by stating that DG and KG 

had told her about some of defendant’s actions. But AG, while providing a brief hearsay 

statement in this regard, also clearly testified about personally seeing defendant do the same 

things (trying to “grab” areas on the girls). In these circumstances, there was no prejudice

arising from the hearsay. Defendant also argues that AG provided hearsay testimony by stating 

that the complainants told her about texting defendant to tell him to stop. But the prosecutor 

himself immediately admonished AG to only testify about “things that you saw with your own 

eyes.” Counsel was not ineffective for failing to raise an objection when the prosecutor himself 

corrected the witness. 

f. SK

Defendant next protests that DG’s boyfriend, SK, was allowed to testify without 

objection that DG told him years before trial that defendant had sexually assaulted her when she 

was younger. However, MRE 801(d)(1) states that a prior statement of a witness is not hearsay 

if:

The declarant testifies at the trial court hearing and is subject to cross-examination 

concerning the statement, and the statement is . . . (B) consistent with the 

declarant’s testimony and is offered to rebut an express or implied charged against 

the declarant of recent fabrication or improper influence or motive . . . .

SK’s testimony fit within this rule because defense counsel argued in opening statements that the 

complainants recently fabricated these charges. Counsel was not ineffective for failing to object.

Contrary to defendant’s allegation, the circumstances and testimony in this case are 

different from those at issue in Shaw, 315 Mich App at 673-674, and we find no basis to reverse 

based on defense counsel’s failure to object to the various instances of alleged hearsay.

B. FAILURE TO PRESENT WITNESSES

1. ALTERNATIVE SOURCE OF INJURIES

Defendant argues that counsel should have presented evidence of an alternative source of 

DG’s injuries, specifically, the testimony of two other men with whom [DG] had been sexually 

active. This Court in People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012), stated:

Decisions regarding whether to call or question witnesses are presumed to

be matters of trial strategy. [T]he failure to call witnesses only constitutes 

ineffective assistance of counsel if it deprives the defendant of a substantial 

defense. Similarly, [t]he failure to make an adequate investigation is ineffective 

assistance of counsel if it undermines confidence in the trial’s outcome. [People v 

Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012) (quotation marks and 

citations omitted).]
-15-

MCL 750.520j(1) provides:

(1) Evidence of specific instances of the victim’s sexual conduct, opinion 

evidence of the victim’s sexual conduct, and reputation evidence of the victim’s 

sexual conduct shall not be admitted under [MCL 750.520b to MCL 750.520g]

unless and only to the extent that the judge finds that the following proposed 

evidence is material to a fact at issue in the case and that its inflammatory or 

prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim’s past sexual conduct with the actor.

(b) Evidence of specific instances of sexual activity showing the source or 

origin of semen, pregnancy, or disease.

Here, Dr. Guertin readily admitted that DG was sexually active and that her notched hymen 

could have resulted from consensual sex. Given this testimony and the limits set forth in the 

above statute, we find no ineffective assistance of counsel with respect to this issue.13

2. TESTIMONY OF BW

Defendant also claims that trial counsel was ineffective for failing to present the 

testimony of BW, the complainants’ great-grandmother and defendant’s grandmother. 

According to BW’s affidavit, DG’s claim that defendant assaulted her at BW’s house while BW

was asleep was false because defendant and DG were never at her house without Mother, Father, 

or Grandmother being present.14 

The prosecutor notes, as did the trial court, that RG testified that defendant was BW’s 

favored grandchild. This fact, along with BW’s admission that she suffers from Alzheimer’s

disease, would have undercut Wade’s testimony. DG maintained that she was present at RW’s 

house without Mother, Father, or Grandmother. In light of RW’s possible bias and her 

Alzheimer’s disease, we cannot find any ineffective assistance of counsel with respect to the 

failure to call BW as a witness to attempt to rebut this statement by DG.

 13 In Shaw, 315 Mich App 668, 681 n 8; 892 NW2d 15 (2016), the Court concluded that two 

brief references to the fact that the complainant had had consensual sex “were unlikely to 

provide the jury a basis to conclude that the complainant was in a sexually active relationship 

before Guertin’s examination.” Here, by contrast, there was not simply a reference to DG’s 

having had consensual sex at some point; Dr. Guertin specifically acknowledged multiple times 

that DG reported being “sexually active” to him and he explained that this sexual activity could 

have resulted in the hymenal changes. 

14 BW also provided a statement about her dog’s barking habit but defendant does not make an 

issue of this in his appellate brief.
-16-

We find no ineffective assistance of counsel with respect to any of defendant’s claims 

and reject his claim of cumulative error.

II. ADMISSION OF DR. GUERTIN’S TESTIMONY

A. QUALIFICATION AS AN EXPERT

Defendant argues that Dr. Guertin should not have been qualified as an expert. However, 

defense counsel explicitly stated that he had “[n]o objection” to Dr. Guertin’s being qualified as 

“an expert in the field of sexual abuse against children.” Thus, defendant affirmatively waived 

any objection to Dr. Guertin’s qualifications and may not now raise the issue on appeal. People 

Kowalski, 489 Mich 488, 503-505; 803 NW2d 200 (2011); People v Carter, 462 Mich 206, 215; 

612 NW2d 144 (2000). 

B. AREA OF EXPERTISE

Defendant also argues that Dr. Guertin testified outside his area of expertise when he 

addressed psychological and memory issues and examined the complainants as adults. We 

review this unpreserved issue for plain error affecting substantial rights. People v Carines, 460 

Mich 750, 763; 597 NW2d 130 (1999). 

Because defendant did not challenge Dr. Guertin’s credentials as a child-sexual-abuse 

expert, he has not established that testimony pertaining to such psychological and memory 

issues, or pertaining to the physical makeup of adults sexually abused earlier in life, is outside 

the expertise of a medical doctor qualified by training and experience with working with 

sexually-abused children. MRE 702 specifically provides that “a witness [may be] qualified as 

an expert by knowledge, skill, experience, training, or education . . . .” A pediatric doctor who 

has spent a substantial portion of his time dealing with sexually abused children for over 30 years 

could, by experience and training, be an expert concerning psychological and memory issues that 

are routinely encountered when working with sexually abused children and concerning how 

earlier sexual abuse could affect physical structures later in life. Defendant has simply failed to 

demonstrate that this was not the case and thus has not demonstrated any clear or obvious error. 

Id.

C. OTHER ALLEGATIONS

Defendant attacks the hypothetical that Dr. Guertin used at one point in his testimony 

and claims it “mimicked the very facts of this case and allowed for more improper vouching.” 

However, there is nothing in Dr. Guertin’s response that vouches for DG’s or KG’s statements. 

And defendant ignores that Dr. Guertin explained that his only bases for evaluation were the 

statements he obtained from the sisters and his physical examinations. He specifically stated: “I 

can’t tell you if they were telling me the truth,” and admitted that if he obtained an inaccurate 

history, that could result in a false diagnosis. He largely reiterated these precepts later in his 

testimony. These caveats serve to countermand defendant’s argument that Dr. Guertin 
-17-

improperly opined regarding the ultimate issues in the case.15 Defendant claims that Dr. Guertin 

improperly vouched for DG when he testified that sexually abused children remember things that 

are vivid, and that DG accordingly remembered digital penetration because “[it] clearly made an 

impression on her.” This remark was not, contrary to defendant’s assertion, “a pediatric medical 

doctor[] pontificat[ing] about his opinions on an adult women’s memories and how they made 

her feel.” It was the opinion of an expert in child sexual abuse concerning why a sexual-abuse 

victim might remember certain details very clearly while not recalling other details. 

Defendant contends that Dr. Guertin’s testimony about the results of the physical 

examination was not necessary. He argues that “the medical evidence did nothing to help the 

jury determine a fact in issue.” Defendant contends that this is so because Dr. Guertin was 

unable to determine with certainty whether the sisters’ physical injuries were from sexual abuse 

or consensual sexual intercourse, and therefore the testimony was irrelevant. However, this 

ignores that one of the facts at issue was whether there was evidence to support a claim of 

penetration, which is an element of the two counts charging CSC-I. MCL 750.520b. Therefore, 

medical testimony that confirmed that there had been penetration was very relevant. That the 

penetration could have been from consensual sex does not render the testimony irrelevant; it 

affects the weight but not the admissibility of the testimony. Further, in light of its relevance to 

an element of the charged offenses, we reject the argument that MRE 403 mandated exclusion of 

the testimony. 

III. LIFETIME ELECTRONIC MONITORING

Defendant contends that the imposition of lifetime electronic monitoring (LEM) on him 

by the trial court constituted an unreasonable search and also constituted cruel or unusual 

punishment. We review constitutional questions de novo. People v Benton, 294 Mich App 191, 

195; 817 NW2d 599 (2011).

In People v Hallak, 310 Mich App 555, 577, 579; 873 NW2d 811 (2015), rev’d in part on 

other grounds 499 Mich 879 (2016), this Court considered and rejected the defendant’s claims 

that LEM is an unreasonable search and that it violates the constitutional prohibition against 

cruel or unusual punishment. Defendant has failed to present any cogent argument in support of 

his claim that we can distinguish Hallak to arrive at a different conclusion. 

With regard to defendant’s claim that there is nothing in the record to support the 

conclusion that defendant presents the kind of lifetime threat to society that the defendant in 

Hallak presented, the trial court disagreed. The trial court stated:

Defendant also argues the facts of the present case are different because, 

as opposed to the 13 victims in Hallak, there was only one victim in this case; 

thus, lifetime electronic monitoring as applied to Defendant is unconstitutional. 

The Court finds this claim to be equally without merit. In the case at bar, 

 15 In addition, as noted in footnote 10, Dr. Guertin’s opinions properly were based in part on his 

physical examinations. See People v Smith, 425 Mich 98, 112; 387 NW2d 814 (1986).
-18-

Defendant was accused of sexually abusing his two young cousins since they 

were young children and continuing to do so into their teen years. There was also 

evidence presented at trial that Defendant frequently preyed on other young 

females who were either part of the family or close family friends. While 

Defendant was only convicted of CSC 1st and 2nd against [DG], the evidence 

presented at trial, of both charged and uncharged conduct, strongly indicated that 

Defendant had a history of inappropriate sexual activity, for a number of years, 

involving several victims. In addition, [DG] testified that the reason she decided 

to come forward with the allegations was because she believed Defendant was 

“going after” another little girl . . . who was six years old and autistic. 

Defendant’s behavior was persistent and ongoing, and based on the testimony at 

trial, he clearly demonstrated a strong interest in young girls to which he had 

constant access. As a result, “when employing an as-applied standard” under the 

specific facts of this case, lifetime electronic monitoring as part of Defendant’s 

sentence was neither cruel, nor unusual. 

The trial court’s recitation accurately reflects the evidence presented at trial and in fact

understates that evidence. DG, KG, and AG testified regarding defendant’s inappropriate sexual 

conduct with them, and AA testified regarding defendant’s request for provocative photographs. 

As the trial court noted, DG also related her concerns regarding defendant’s contact with a young 

autistic girl. The LEM imposition was appropriate. 

Affirmed.

/s/ Thomas C. Cameron

/s/ Patrick M. Meter