If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

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,

FOR PUBLICATION

February 27, 2020

9:00 a.m.

v No. 342402

Ottawa Circuit Court

JUAN JOSE DEL CID, LC No. 16-040357-FC

Defendant-Appellant.

ON REMAND

Before: SHAPIRO, P.J., and BORRELLO and BECKERING, JJ.

SHAPIRO, P.J.

Following a jury trial, defendant was convicted of two counts of first-degree criminal 

sexual conduct (CSC-I) against AC, the daughter of his longtime girlfriend. On appeal, we 

affirmed defendant’s convictions.1 Defendant then appealed to the Supreme Court, which vacated 

our judgment in part and remanded for reconsideration2in light of People v Harbison, the 

companion case to People v Thorpe, 504 Mich 230, 235; 934 NW2d 693 (2019).

3

 There, the Court 

held “that examining physicians cannot testify that a complainant has been sexually assaulted or 

has been diagnosed with sexual abuse without physical evidence that corroborates the 

complainant’s account of sexual assault or abuse because such testimony vouches for the 

complainant’s veracity and improperly interferes with the role of the jury.” Id. 235. The question 

in this case is whether an examining physician may testify to a “diagnosis” of “possible pediatric 

sexual abuse” in the absence of supporting physical findings. We conclude that Harbison and the 

 

1 People v Del Cid, unpublished per curiam opinion of the Court of Appeals, issued May 21, 2019 

(Docket No. 342402).

2 People v Del Cid, ___ Mich ___ (Docket No. 159848) (2019).

3 The first case name in the caption of these consolidated cases is People v Thorpe. Since the 

Supreme Court order referred us to People v Harbison and our discussion largely focuses on that 

case, we will refer to the case as Harbison.
-2-

cases it relied on bar such testimony and because we cannot say that this error was harmless, we 

reverse defendant’s convictions and remand for a new trial.

AC lived in a two-bedroom apartment with her siblings, her mother (Nelly) and her 

mother’s boyfriend, defendant. Defendant and Nelly have three children together, and Nelly has 

two children of her own, including AC. AC refers to defendant as her “step-dad.”

The allegations arose in June 2016, when AC was 14 years old. AC had been caught 

stealing by her aunt and mother, who was angry. After her mother fell asleep, AC decided to go 

to a weeknight church service through the church’s “bus ministry” because she did not want to be 

home. According to AC, while at church a friend asked her if she was virgin, to which she 

responded she was not. AC testified that, by way of explanation, she mentioned her boyfriend and 

told her friend that “my step-dad was doing this stuff,” referring to the allegations of sexual abuse. 

When the church bus was returning the teenagers home, AC requested to be dropped off last 

because she did not want to go home. She testified that the “main reason” was that her mother 

was mad at her. When AC’s friend left the bus, she whispered something to bus driver, who then 

announced that he could not return AC to her home. A chaperone then began questioning AC, 

who responded that her step-dad was “molesting” her. 

The police were contacted and interviewed AC that night. About a week later, AC 

underwent a forensic interview and the police interviewed defendant, who denied the allegations. 

The next day defendant was arrested and charged with one count of CSC-I. He was bound over 

following a preliminary examination, and the information charged him with sexual penetration by 

a person 17 years of age or older against an individual less than 13 years of age, MCL 

750.520b(2)(b), and sexual penetration of a person who is at least 13 but less than 16 years of age 

by a member of the same household, MCL 750.520b(1)(b)(i). 

At trial, AC testified that the first incident of abuse occurred when she was eight years old. 

She stated that one day when she and the other children were playing with defendant, he slid his 

hand down her pants. She was not sure whether defendant touched her on top of or underneath 

her underwear, but she was certain that defendant touched her vaginal area. AC told her mother

about this incident shortly after it occurred. Nelly asked AC to repeat her allegations in front of 

defendant, but AC said that she did not feel comfortable doing so. Defendant told Nelly that he 

was “just playing around” and tickling the victim, and AC agreed with defendant’s story “to get it 

over with” and because she was scared of getting in trouble.

According to AC’s testimony, the next incident occurred when she was 12 years old. She 

testified that defendant picked her up, carried her into his bedroom and took off her pants. AC 

stated that when she realized what defendant was doing, she began crying and told him that she 

did not want to have sex with him because she did not want to get pregnant. AC asserted that 

defendant said it was okay because he had a condom. She testified that defendant then had sexual 

intercourse with her, which was “very painful.” She further testified that she then went to the 

bathroom and discovered she was bleeding. She said that she told defendant about the bleeding 

and that he simply looked at her and walked away.

AC testified that defendant had sex with her two to three times a week after she turned 13 

and that it was so often that she came to see it as “a normal thing.” She testified that she did not 
-3-

tell her mother about what was going on; the only incident she ever revealed to her mother was the 

one that occurred when she was eight years old. AC’s mother worked nights and defendant cared 

for the children while she was working. AC testified that usually the other children were at home 

when defendant would have sexual intercourse with her, but they never witnessed it because they 

were always either asleep or in another room playing games when it occurred. She also testified 

that there were a few times when defendant had sex with her while her mother was in the shower 

getting ready for work. She also recalled defendant having sex with her while her youngest 

brother, then a baby, was asleep in the same bed. 

Dr. Debra Simms, M.D., performed the medical evaluation of AC following disclosure of 

the allegations and was admitted as an expert in “child abuse pediatrics” at trial. Before she 

conducted a physical examination of AC, Dr. Simms obtained a history from her mother; the nurse 

obtained a history from AC. The nurse relayed to Dr. Simms that AC alleged penile-vaginal 

contact and penile-digital contact while she was between the ages of 12 and 14 and that there had 

been pain and bleeding after the first penile-vaginal contact. Dr. Simms then performed a physical 

examination, which revealed no signs of sexual abuse. Dr. Simms diagnosed AC with “possible 

pediatric sexual abuse.” She gave the following explanation for her opinion: 

Q. Okay. I want to focus on kind of the genital area regarding the physical 

examination. Did you ultimately form an opinion in this case after doing the 

physical examination?

A. Yes, I did.

Q. What was your opinion?

A. I made a medical diagnosis, based upon the history and the physical 

examination, and I diagnosed her with possible pediatric sexual abuse.

Q. Why is that?

A. The history was given that there had been penile/vaginal contact, that 

there had been contact to her hand, obviously, when you look at a hand, you’re not 

going to see a penis print or anything like that, so you’re going to have a normal 

exam. [AC], in–as part of our history, we’re very specific, [AC] had actually started 

her menstrual period when she was 12 years of age. [AC] was also reported to use 

tampons. So, as part of the history, I knew that there was an object that was 

regularly going into the vaginal area, that I knew that her menstrual cycle had begun 

two-and-a-half years prior to my examination. The changes that occur with puberty 

adapt a child, even though we don’t want children becoming sexually active at that 

age . . . . But, the body, from the fact that it is regulating and having menstruation 

and whatever the potential is there at that time. So, there are physical changes that 

occur to the body. . . . You go from birth, which is one, to fully mature, you’re not 

going to get any more developed is five. . . . So, in looking at her body, she was a 

sexual maturity five of the genital area. . . . So, the–the opening to the vagina is 

there, and in front of that opening is a piece of tissue called the hymen. . . . In the 

case of sexually mature young ladies, that tissue is the one that will really change. 
-4-

. . . I’ve personally seen children before puberty and after puberty and it’s night and 

day differences, because of those affects. [AC], when I’m examining her and 

looking at those tissues, she has what is called a petaled configuration. . . . That 

allows intrusion of a tampon or intrusion of something else without necessarily 

tearing the tissue. A lot of people believe that the first time you have sex that tissue 

has to tear. It doesn’t have to, depending upon the shape and depending upon the 

sexual maturity rating of the individual. So, in [AC’s] case, I found that she had 

this petaled configuration. So, her physical examination was normal. Her physical 

examination was normal. It neither confirmed nor ruled out her history given that 

there had been penile/vaginal contact. My diagnosis as a physician was based upon 

the history that was given, and that’s what we do.

Q. So, based upon the history and the anatomical findings, if you will, it’s 

possible that she was sexually abused.

A. It was possible that she was sexually abused, yes, sir.

Q. But, her medical evaluation was normal.

A. Her–her physical examination was normal, yes, sir.

Q. Is that abnormal?

A. It’s normal to be normal.

Q. Okay. What do you mean by that?

A. There are actually–as I mentioned, there are a lot of people that think 

that the body, especially the hymen, is like a solid wall. . . . And they think that, 

for virgins, that that actually has to be broken the first time they have intercourse. 

That is not true. . . . So, because a lot of people believe certain things and there are 

myths about what the normal structures are, there has been research and there have 

been papers published. One of the papers that was published was called, “it’s 

Normal to be Normal.” They took 236 children that they wanted to look at their 

examinations and say, “If these children were abused, then what do their 

examinations look like,” well, you come to the problem of whether or not you know 

if a child has been abused. So, what they did, is they took 236 children where there 

had been convictions . . . ; 77 percent of those children had normal or non-specific 

findings. So, even though we knew that someone had decided that they had been 

abused, it was normal to be normal. That was in a wide age range. Then, what they 

did, is they did another study in which they took 36 pregnant adolescents . . . . And 

so, of those 36 pregnant teenagers, all but two of them did not have definitive 

findings of penetration. So, that paper was actually titled, “Normal Does Not Mean 

Nothing Happened.” So, when we say that it’s normal to be normal, the human 

body, especially as it goes through puberty, is adapted to this kind of function, and–

and it can occur with little or no damage to the body.
-5-

Q. So, ultimately, in conclusion, the findings that you found on [AC] were 

normal?

A. She was normal, yes, sir.

Q. And it’s normal to be normal, that’s–that’s nothing that’s abnormal?

A. That’s nothing–I guess so.

Q. Did you follow that? She–it was normal to be normal, which is normal?

A. Yes.

On cross-examination, Dr. Simms confirmed that “there were no hematomas, no lacerations, no 

scars, nothing, that it was normal.”

In addition to AC and Dr. Simms, the prosecution called as witnesses the bus chaperone

and two other church members who spoke with AC the night of her disclosure. The forensic 

interviewer also testified as well as two police officers. Officer Jose Mendoza, who interviewed 

defendant following the allegations, testified that defendant denied sexually abusing or touching 

AC. Mendoza further testified that defendant told him that about two weeks prior AC had come 

into his bedroom late at night, jumped him and straddled her legs around his torso. Defendant said 

that he told her that was inappropriate but she did it four more times and then touched his “genital 

area” with her hands; defendant told her “not to do that.” 

The defense called numerous witness. AC’s mother, Nelly, testified that she “never 

witnessed . . . anything out of the normal” between AC and defendant. Nelly also asserted that 

AC had lied to her “on many occasions” and she “started being very dishonest” once she began 

high school. Nelly believed that “something may have happened to [AC],” but she did not believe 

that defendant was the perpetrator. AC’s sister, KC, testified that she lived in the same household 

as AC and defendant and did not recall ever seeing anything strange between them. KC did not 

think that she could trust her sister because of the “many lies that she has been telling.” The 

defense’s other witnesses testified to defendant’s character. Defendant then testified and denied 

that he had ever had sex with AC or touched her in a sexual manner.

The jury deliberated for about an hour on the first day of deliberations. About midday on 

day two, they requested to listen to AC’s and defendant’s testimonies. An audio disc of the 

testimonies was prepared for the jury. They then deliberated for about two more hours before 

finding defendant guilty of the charged offenses.

On appeal, defendant argued, in part, that Dr. Simms vouched for AC’s testimony in 

violation of People v Smith, 425 Mich 98; 387 NW2d 814 (1986). According to defendant, Dr. 

Simms’s diagnosis of possible pediatric sexual abuse signaled her acceptance of AC’s allegations. 

Defendant also argued that trial counsel was ineffective for failing to object to Dr. Simms’s 

testimony. We rejected those arguments, reasoning that admission of the testimony was not plainly 

erroneous when Dr. Simms “did not state a finding of sexual abuse or even probable abuse.” Given 

that, we concluded that Dr. Simms’s testimony did not amount to impermissible vouching. We 

further concluded that any objection by trial counsel would have been futile and therefore 
-6-

defendant was not denied effective assistance of counsel by the lack of an objection. People v Del 

Cid, unpublished per curiam opinion of the Court of Appeals, issued May 21, 2019 (Docket No. 

342402), p 2.

4

After our decision, the Supreme Court decided Harbison. In lieu of granting defendant’s

application for leave to appeal, the Supreme Court vacated the part of our judgment concerning

Dr. Simms’s testimony and remanded for reconsideration in light of Harbison. Having done so, 

we now conclude that an examining physician’s testimony diagnosing a child-complainant with 

“possible sexual abuse” is inadmissible without corroborating physical evidence, that admission 

of Dr. Simms’s testimony to that effect was plainly erroneous, and that reversal is required.

The Supreme Court has repeatedly overruled decisions permitting testimony from expert

witnesses that has the effect of bolstering a child-complainant’s testimony. See e.g., People v 

Beckley, 434 Mich 691, 727; 456 NW2d 39 (1990); People v McGillen, 392 Mich 278, 285; 220 

NW2d 689 (1974). Even before Harbison, it was established that an examining physician could 

not opine that sexual abuse had occurred unless that opinion was supported by physical findings. 

In Smith, 425 Mich at 112, the examining physician testified to his opinion that the complainant 

had been sexually assaulted based “not on any findings within the realm of his medical capabilities 

or expertise as an obstetrician/gynecologist, but, rather, on the emotional state of, and the history 

given by, the complainant.” The Supreme Court held that admission of this testimony was 

erroneous and required reversal. Id. at 113. In Harbison, the Court summarized the rationale for 

that holding:

Citing MRE 704, we stated that “[i]t is . . . well-established that expert opinion 

testimony will not be excluded simply because it concerns the ultimate issue[.]”

Yet, we acknowledged that an examining physician cannot give an opinion on 

whether a complainant had been sexually assaulted if the “conclusion [is] nothing 

more than the doctor’s opinion that the victim had told the truth.” An examining 

physician’s opinion is objectionable when it is solely based “on what the victim . . .

told” the physician. Such testimony is not permissible because a “jury [is] in just 

as good a position to evaluate the victim’s testimony as” the doctor. Nonetheless, 

an examining physician, if qualified by experience and training relative to treatment 

of sexual assault complainants, can opine with respect to whether a complainant 

had been sexually assaulted when the opinion is based on physical findings and the 

complainant’s medical history. [Thorpe, 504 Mich at 255.]

The Harbison defendant was convicted of, among other charges, two counts of first-degree 

criminal sexual conduct and two counts of second-degree criminal sexual conduct. Id. at 242-243, 

249. At the defendant’s trial, Dr. Simms testified that, following her examination of the 

complainant, TH, she diagnosed her with “probable pediatric sexual abuse.” Id. at 244. Dr. Simms 

acknowledged that TH’s physical examination was normal; it “did not show any acute or remote 

indications of trauma.” Id. at 245. She also explained that she had not expected to find any 

 

4 We also rejected defendant’s argument that his due-process rights were violated when, during 

voir dire, a potential juror stated that she was a victim of sexual abuse and described a situation 

that was similar to the facts of the present case. Del Cid, unpub op at 2-3.
-7-

indications of trauma given TH’s descriptions of the alleged sexual contact. Id. at 244-246. She 

explained that a finding of probable pediatric sexual abuse is appropriate when there is a “clear, 

consistent, detailed, and descriptive” account of the abuse. Id. at 247-248.

The Supreme Court determined that Dr. Simms’s testimony that TH suffered “probable 

pediatric sexual abuse” amounted to impermissible vouching:

Dr. Simms candidly acknowledged that her examination of TH showed no physical 

evidence of an assault. Her conclusion that TH suffered “probable pediatric sexual 

abuse” was based solely on her own opinion that TH’s account of the assaults was 

“clear, consistent, detailed and descriptive.” This testimony clearly falls within 

Smith’s holding that an examining physician cannot give an opinion on whether a 

complainant had been sexually assaulted if the “conclusion [is] nothing more than 

the doctor’s opinion that the victim had told the truth.” An examining physician’s 

opinion is objectionable when it is solely based “on what the victim . . . told” the 

physician. Such testimony is not permissible because a “jury [is] in just as good a 

position to evaluate the victim’s testimony as” the doctor. [Id. at 261-262.]

The Court concluded that this error was obvious because “Smith was unanimous and has never 

been called into question,” and it “provides a very straightforward bright-line test that trial courts 

can readily observe.” Id. at 262. The Court then concluded that Dr. Simms’s testimony that TH 

suffered probable pediatric sexual abuse affected the defendant’s substantial rights. Id. at 263. 

The Court recounted its precedent establishing the prejudicial effect of expert vouching for a childcomplainant’s credibility:

[W]e believe the most prejudicial aspect of Dr. Simms’s testimony was that she 

clearly vouched for TH’s credibility. This Court has previously drawn a distinction 

between expert testimony that a particular child was abused and testimony about 

the common characteristics of abused children:

Therefore, any testimony about the truthfulness of this 

victim’s allegations against the defendant would be improper 

because its underlying purpose would be to enhance the credibility 

of the witness. To hold otherwise would allow the expert to be seen 

not only as possessing specialized knowledge in terms of behavioral 

characteristics generally associated with the class of victims, but to 

possess some specialized knowledge for discerning the truth.

As we recognized in Beckley and embraced in [People v Peterson, 450 Mich 

349; 537 NW2d 857 (1995)]:

The use of expert testimony in the prosecution of criminal 

sexual conduct cases is not an ordinary situation. Given the nature 

of the offense and the terrible consequences of a miscalculation—

the consequences when an individual, on many occasions a family 

member, is falsely accused of one of society’s most heinous 

offenses, or, conversely, when one who commits such a crime would 
-8-

go unpunished and a possible reoccurrence of the act would go 

unprevented—appropriate safeguards are necessary. To a jury 

recognizing the awesome dilemma of whom to believe, an expert 

will often represent the only seemingly objective source, offering it 

a much sought-after hook on which to hang its hat. [Thorpe, 504 

Mich at 263-264.]

The Court then reiterated its view that Dr. Simms’s testimony amounted to impermissible 

vouching and determined that this error was not harmless because the case was a credibility 

contest:

[T]he Court of Appeals found no error in Dr. Simms’s testimony, reasoning that 

Dr. Simms did not opine on whether [TH] was abused by [the defendant] but only 

diagnosed [TH] with “probable pediatric sexual abuse.” We disagree. Regardless 

of whether “probable pediatric sexual abuse” is a term of art that can be used as a 

diagnosis with or without physical findings, we conclude that Dr. Simms’s 

testimony had the clear impact of improperly vouching for TH’s credibility.

. . . [T]he instant case is largely a credibility contest. The only evidence 

against [the defendant] was TH’s uncorroborated testimony. To bolster its case, 

the prosecution presented testimony from a pediatrician who is board-certified in 

child abuse pediatrics; who is currently a medical director at the Safe Harbor 

Children’s Advocacy Center; who has examined, in her estimate, thousands of 

children that have been sexually abused; and who has testified as an expert 

witnesses [sic] in 32 counties. Given the lack of compelling testimony that forms 

the basis for the verdict and the plainly erroneous testimony that TH suffered 

“probable pediatric sexual abuse,” we conclude that the plain error affected [the 

defendant’s] substantial rights. [Id. at 264.]

The Court further concluded that this was far more than “a mere evidentiary error.”

Rather, this error strikes at the heart of several important principles underlying our 

rules of evidence. Dr. Simms’s testimony that TH suffered “probable pediatric 

sexual abuse” based solely on TH’s statements about her history not only had the 

effect of vouching for TH’s credibility, but it also invaded the province of the jury 

to determine the only issue in the case. Then, Dr. Simms reinforced this plain error 

by claiming that her diagnosis was based on a “national [consensus]” of 

pediatricians when even a cursory review of the article on which she relies reveals 

that the authors did not intend for pediatricians to rely on the article to make a 

diagnosis of “probable pediatric sexual abuse” at trial. This improperly admitted 

testimony very likely bolstered TH’s credibility and affected the verdict. We 

conclude that the gravity of this significant error seriously affected the integrity of 

Harbison’s trial. [Id. at 264-265.]

The Court reversed this Court’s judgment affirming the defendant’s convictions and remanded to 

the circuit court for a new trial. Id. at 266.
-9-

Harbison, Smith and the cases on which they relied establish a bright-line rule that an 

examining physician’s opinion that a complainant was sexually abused is admissible only if

supported by physical findings. Dr. Simms’s testimony is contrary to that caselaw because, despite 

the lack of any physical evidence of abuse, she diagnosed AC with possible pediatric sexual abuse. 

In the absence of physical findings, it necessarily follows that the physician’s opinion is solely 

based on her assessment of the complainant’s statements. The Supreme Court could not have been 

clearer that such testimony is inadmissible because it invades the jury’s province to determine 

witness credibility. See id. at 262.

The question then is whether Dr Simms’s otherwise inadmissible testimony should be 

allowed in this case because she testified that AC was possibly, rather than probably, sexually 

abused. We conclude that this is a distinction without a meaningful difference. “Possible pediatric 

sexual abuse” is not significantly different from “probable pediatric sexual abuse” in terms of the 

physician’s endorsement of the accusation. In both instances, the examining physician speaks to 

the likelihood of abuse in the absence of any physical evidence and couches it in terms of a medical 

diagnosis. This necessarily leads the jury to believe that the expert witness finds the complainant’s 

account credible.

5 And were we to consider “possible sexual abuse” as significantly different from 

“probable sexual abuse” it would be inadmissible under MRE 403. Testimony that the “diagnosis”

is merely “possible” has very little probative value while, for the reasons discussed in Harbison,

such testimony is highly prejudicial.6

Indeed, Harbison strongly indicated that a “diagnosis” of sexual abuse made by a physician 

has no place at trial absent positive physical findings. As in this case, in Harbison Dr. Simms 

explained that the lack of supporting physical findings regarding the hymen did not mean that 

penetration had not occurred because its “normal to be normal.” The Supreme Court stated that, 

to the extent that Dr. Simms’s diagnosis was based on Examination Findings in Legally Confirmed 

Child Sexual Abuse: It’s Normal to be Normal, 94 Pediatrics 310 (1994)—the same article she 

referred to in her testimony in the instant case—her reliance on it was “seriously misplaced.” The 

Court explained:

Relying on this article to testify at trial concerning whether a complainant suffered 

“probable pediatric sexual abuse” actually undermines the integrity of the study by 

proving the very premise that it accepts as true, i.e., that legally confirmed 

 

5

In Harbison, Dr. Simms testified that a diagnosis of possible pediatric sexual abuse is given if a 

child’s “statement is limited,” possibly because the child has a developmental disability, is young, 

or is unable to really communicate what happened. Thorpe, 504 Mich at 247. Here, the jury was 

not provided that context. But even if the jury had heard that explanation, it would not change our 

view of the case because the opinion would still be solely based on the complainant’s statements, 

and any diagnosis from an expert witness may be viewed by the jury as a “stamp of approval.”

6 To be clear, where there are no physical findings a physician may not testify that the complainant 

suffered “possible pediatric sexual abuse” or other phrases indicating a conclusion as to the 

likelihood that such abuse actually occurred. At the same time, however, a medical expert may 

offer the opinion that a lack of physical findings does not affirmatively establish that no abuse 

occurred. 
-10-

convictions are a valid measure of the truth. The article admits as much by 

acknowledging that “since the examiner testified in court in 34 of the cases in which 

the perpetrator was convicted following a jury trial, it is possible that testimony 

concerning medical findings contributed to the conviction.” Id. at 315 (emphasis 

added). Given that the article notes that it “is possible that testimony concerning 

medical findings contributed to the conviction,” it seems likely that testimony 

concerning a “diagnosis” would further contribute to the conviction, especially, as 

in this case, when there are no physical findings to be found. Id. In many respects, 

relying on the article in this manner is akin to offering into evidence conviction 

rates to establish that those charged with crimes will “probably” be convicted.

We conclude that the article is clearly directed toward making a “diagnosis” 

on the basis of “ ‘proof’ before proceeding with criminal charges” and does not 

support a “diagnosis” of pediatric sexual abuse at trial. Id. at 317 (emphasis added). 

The article only once refers to the term “diagnosis” and only does so by placing the 

term in scare quotes, which are “used to express esp. skepticism or derision 

concerning the use of the enclosed word or phrase.” Merriam-Webster’s Collegiate 

Dictionary (11th ed). In other words, the term “diagnosis” is not being used in its 

traditional sense. This makes sense, as even Dr. Simms herself explained that the 

purpose of the “diagnosis” was “to allow pediatricians that do child abuse 

evaluations to communicate with one another effectively . . . .”

Rather, the article is directed at pediatricians who must make referrals of 

possible sexual abuse and to inform prosecutors that the absence of medical 

“findings” does not mean that the complainant did not suffer sexual abuse. This

This reading of the article not only makes sense but is consistent with Michigan 

law and likely the law of every other state. Indeed, the Michigan Legislature set a 

very low bar for triggering a report of sexual abuse, requiring a report if one only 

“has reasonable cause to suspect child abuse or child neglect . . . .” MCL 

722.623(1)(a). [Thorpe, 504 Mich at 265 n 65.]

Harbison thus recognized that a “diagnosis” of sexual abuse absent physical findings is a 

term of art and has no probative value at trial. That the Court spoke disapprovingly of such 

diagnoses without qualification supports our conclusion that a diagnosis of possible pediatric 

sexual abuse is also inadmissible without corroborating physical findings. And in this case, Dr. 

Simms expressly referenced the article discussed in Harbison, thus compounding the initial error 

of introducing her diagnosis into evidence. See id. at 265.

In sum, we conclude that the admission of Dr. Simms’s testimony that AC suffered possible 

pediatric sexual abuse was plain error as it was contrary to Smith and Harbison.

7

 We further 

 

7 The defendant in Harbison did not object to Simms’s testimony and the Supreme Court 

unanimously held that its admission was plain error under Smith. We see no reason to reach a 

different conclusion. Moreover, reversal is merited under Harbison even though it was decided 

after the verdict in this case as defendant raised the issue on appeal. At a minimum, Harbison

should be given limited retroactive effect. See People v Quinn, 305 Mich App 484, 490; 853 

NW2d 383 (2014).
-11-

conclude that this error affected defendant’s substantial rights. The present case was a credibility 

contest. The testimony of the prosecution’s other witnesses did not corroborate AC’s testimony 

that defendant repeatedly had sexual intercourse with her while she was between the ages of 12 

and 14. Defendant testified that he never touched AC in a sexual manner and that he never touched 

her vagina. His testimony was supported by AC’s mother and sister who testified that they did not 

witness anything inappropriate between defendant and AC and offered negative opinions regarding 

AC’s character for truthfulness. Because Dr. Simms testified that she was board-certified in child 

abuse pediatrics, had “lots” of years of experience, was the child abuse pediatrician for the Center 

for Child Protection and Ottawa County Children’s Advocacy, and had been qualified as an expert 

in 37 counties in Michigan, the introduction of her diagnosis undermined the reliability of the 

verdict. See People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010). For the same reasons 

stated by the Supreme Court in Harbison, we also conclude that Dr. Simms’s testimony seriously 

affected the integrity of defendant’s trial. An opinion from Dr. Simms as to whether AC was

sexually abused not only had the effect of vouching for the AC’s credibility, but it also invaded 

the province of the jury to determine whether defendant sexually abused the victim. Therefore, 

admission of that testimony was not a mere evidentiary error. Thorpe, 504 Mich at 264-265. 

Reversed and remanded. We do not retain jurisdiction.

/s/ Douglas B. Shapiro 

/s/ Stephen L. Borrello 

/s/ Jane M. Beckering