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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 13, 2017

v No. 330446 Wayne Circuit Court RYAN DOUGLAS WHITSON, LC No. 15-004163-01-FC

Defendant-Appellant.

Before: O’C ONNELL , P.J., and G LEICHER and B OONSTRA , JJ.

P ER C URIAM

. Defendant appeals by right his conviction, following a jury tr ial, of three counts of firstdegree criminal sexual conduct (CSC-I), MCL 750.520b (multiple variables), and two counts of third-degree criminal sexua l conduct (CSC-III), MCL 750.520d (m ultiple variables). The trial court sentenced him to 26 to 50 years’ imprisonment for each of the CSC-I convictions, and to 5 to 15 years’ imprisonment for each of the CSC-III convictions. 1 We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises from a series of sexual assaults committed bydefendant against his daughters, MW and RW, over several years. Both girls testified that defendant’s assaults began when they were approximately nine years old, at which time the family was living in Toledo, Ohio. Both girls reported that defendant forced them to engage in vaginal intercourse and fellatio and that defendant’s sex ual assaults continued after t he family moved to Taylor, Michigan in 2011. Neither MW nor RW was aware of the assaults on the other until MW confronted defendant on October 5, 2014. As a result of MW’s d isclosure, RW came forward and stated that defendant had als o molested her for several years.

1 Although the judgment of sentenc e does not reflect a statutory sentence enhancement, it appears that defendant was sente nced as a second habitual offen der under MCL 769.10. The felony information included a habitual offender notice and the sentencing guidelines range identified by the prosecution on the record was the range appli cable to that of a second habitual offender with defendant’s prior record and offense variable sco res.-2- Before trial, the prosecution endorsed NS as a witness for tri al. The prosecution intended to call NS to testify that she had engaged in a sexual relation ship with defendant when she was 14 years old. NS was subpoenaed but did not appear for trial. Defense counsel did not object to NS’s absence.

Dr. Dena Nazer, a pediatrician at Children’s Hospital of Michi gan and Kids Talk Children’s Advocacy Center, testified that she had performed ex aminations, including genital examinations, on MW and RW in November 2014 to look for signs o f injury or sexually transmitted infections. Dr. Nazer testified that RW’s examinat ion results were “normal,” and described MW’s examination results as follows:

[S]he had something that we called an indeterminate finding or a finding that there’s no consensus on. What that means simply is that it’s a finding that supports her disclosure so it’s not a finding that we would con sider normal. It’s not considered not normal on its own but if a child gives a dis closure that sexual abuse happens or happened then it would support their disclosur e.
Dr. Nazer stated that a “supportive finding” is not considered either normal or abnormal in the absence of an allegation of sexual abuse.

Before defense counsel began to cross-examine MW, the prosecut ion informed the trial court that it objected to any efforts by defendant to elicit te stimony concerning MW’s sexual activity with other partners. D efense counsel initially argued that evidence of MW’s sexual activity should be admissible i n light of Dr. Nazer’s testimony regarding the results of her genital examination; however, counsel later conceded that the exception s found in the rape-shield statute, MCL 750.520j, did not apply to such evidence. The tri al court held that the testimony was precluded by the rape-shield statute.

Defendant was convicted and sen tenced as described above. Thi s appeal followed.

II. MISSING WITNESS

Defendant argues that he was pr ejudiced by the prosecution’s i ntroduction of evidence regarding defendant’s past relationship with NS despite the fac t that it failed to produce NS, an endorsed witness, at trial. Acco rding to defendant, the trial court erred by failing to sua sponte hold an evidentiary hearing to d etermine whether the prosecutio n had satisfied its duty under MCL 767.40a(3), and further erred by failing to grant defendant a mistrial as a result of NS’s absence, or to issue a missing witn ess instruction to the jury. We disagree.

To preserve a challenge to the prosecution’s failure to produc e a witness at trial, the defendant must move for a post-trial evidentiary hearing or a n ew trial. People v Dixon

, 217 Mich App 400, 409; 552 NW2d 663 (1996). Additionally, a party claiming error arising from the trial court’s failure to pr operly instruct the jury “must o bject or request a given jury instruction to preserve the error for review.” People v Sabin (On Second Remand) , 242 Mich App 656, 657; 620 NW2d 19 (2000). D efendant did not raise this issue in the trial court by moving for a post-trial evidentiary hearing or a new trial, and did not object to the trial court’s instruction to the jury concer ning the missing witness or reque st that an additional instruction be-3- given. Consequently, this issue is unpreserved and reviewed fo r plain error affecting substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). Even where plain err or is apparent from the record, the error only warrants reversal when it results in the conviction of an innocent defendant or “seriously affect[ed] the fairness, integ rity, or public reputation of judicial proceedings.” Id

. (internal quotation marks omitted) . When a party fails to requ est or object to a specific jury instruction, relief is only warranted “when neces sary to avoid mani fest injustice.” Sabin (On Second Remand) , 242 Mich App at 657.

If the prosecution endorses a witness under MCL 767.40a(3), it is required to exercise due diligence to secure that w itness’s presence at trial. People v Duenaz , 306 Mich App 85, 104; 854 NW2d 531 (2014). The prosecution’s failure to produce an e ndorsed witness may be excused upon a showing of due diligence. People v Eccles , 260 Mich App 379, 388; 677 NW2d 76 (2004). If the trial court determines that the prosecution failed to satisfy its duty in this regard, it may be appropriate to instruct the jury that “it may infer that the missing witness’s testimony would have been unfavorable to the prosecution’s case .” Id . See also People v Perez

, 469 Mich 415, 420-421; 670 NW2d 655 ( 2003) (finding that a miss ing witness jury instruction in response to a violation of MCL 767.40a is sometimes, although n ot always, appropriate and that the propriety of such an instruc tion depends on the facts of th e case).

It is undisputed that the prosecution endorsed NS in its witne ss list and intended to call NS as a witness regarding her sexual relationship with defendan t when she was 14 years old. Christina Meach, MW and RW’s mot her, testified regarding defend ant’s relationship with NS, and police officer Kenneth May t estified about a Toledo police report that referred to defendant’s relationship with NS. The pros ecution was therefore obliged to exercise due diligence to secure NS’s presence at defendant’s trial. Eccles , 260 Mich App at 388. The reason for NS’s absence is not apparent from the record, nor is the extent of the prose cution’s efforts to secure her presence. In regard to these efforts, Officer May testified th at he spoke with NS on several occasions and that she was subpoenaed to appear. It is unclear at what point the prosecution became aware that NS would not comply with the subpoena. The o nly testimony concerning NS’s failure to appear was the f ollowing exchange between the p rosecution and Officer May on the last day of defendant ’s three-day trial:

Q . . . . Was she subpoenaed to be here?

A . She was.

Q . Okay. Did she appear?

A . I have not seen her.

Q . Okay, have you been able to contact her?

A . No, I have not.

As an initial matter, it is not clear from the record that the prosecution failed to exercise due diligence to secure NS’s presence or deliberately misled th e trial court. Defendant’s suggestion that the prosecution introduced evidence concerning NS while knowing that she-4- would not testify at trial is completely unsupported by the rec ord. We will not presume that an attorney violated his or her dut y of candor to the tribunal in the absence of evidence to the contrary. See People v Dunbar , 463 Mich 606, 617 n 3; 625 NW2d 1 (2001), overruled in part on other grounds by People v Jackson , 483 Mich 271; 769 NW2d 630 (2009).

More importantly, even if the record supported the conclusion that the prosecution failed to exercise due diligence to produce NS at trial, such a findin g would not result in undue prejudice under the circumstances of this case. Contrary to de fendant’s assertion on appeal, the trial court did, in fact, issue a missing witness instruction t o the jury, instructing the jury that the prosecution was responsible for producing NS and that it could infer from NS’s absence that her testimony would have been unfavorable to the prosecution. “Jur ors are presumed to follow their instructions, and instructions a re presumed to cure most errors .” People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003). Thus, by giving an appropri ate jury instruction, the trial court minimized any prejudice that resulted from NS’s nonappear ance. And while defendant argues that he was prejudiced by his inability to cross-examine NS, he has not explained why the missing witness instruction was an inadequate remedy in this ca se. Therefore, defendant has failed to demonstrate that his subs tantial rights were affected

.

III. APPLICATION OF RAPE-SHIELD STATUTE

Defendant also argues that the trial court erred by finding th at he was precluded by the rape-shield statute, MCL 750.520j, from inquiring into MW’s sex ual activities with others. Defendant argues that the trial court should not have excluded that evidence because Dr. Nazer testified that her physical exa mination of MW’s genital region resulted in an “indeterminate finding” that could be supportive of sexual abuse. Consequentl y, evidence regarding other sexual activities was admissible as rebuttal evidence to provid e an alternative explanation for Dr. Nazer’s findings. We conclude without deciding the issue that any error that arose from the exclusion of this evid ence was harmless.

We review a trial court’s rulings regarding the admissibility of evidence for an abuse of discretion. People v McLaughlin , 258 Mich App 635, 649; 672 NW2d 860 (2003). “A trial court abuses its discretion when it chooses an outcome that is outside the range o f reasonable and principled outcomes.” People v Green , 313 Mich App 526, 531; 884 NW2d 838 (2015), quoting People v Orr , 275 Mich App 587, 588-589; 739 NW2d 385 (2007). A preserved error in the admission or exclusion of evidence only warrants reversal when it appears “more probable than not that the alleged error affected the outcome of the trial in light of the weight of the properly admitted evidence.” McLaughlin , 258 Mich App at 650.

MCL 750.520j provides that “[e]vidence of specific instances o f the victim’s sexual conduct . . . shall not be admitted” in CSC cases, subject to t wo statutory exceptions. Duenaz
, 306 Mich App at 91. One of those exceptions is found in MCL 75 0.520j(1)(b), i.e. that “[e]vidence of specific instan ces of sexual activity showing th e source or origin of semen, pregnancy, or disease,” may be admitted if it is material to a fact at issue and its inflammatory or prejudicial effect does not outweigh its probative value. Duenaz , 306 Mich App at 91. A defendant who wishes to introduce evidence under this exceptionis required to file a written motion and offer of proof within 10 days after the arraignment on the information. MCL 750.520j(2); McLaughlin , 258 Mich App at 653. Here, def endant failed to provide such-5- notice. Although not dispositive as to the admissibility of th e evidence, defendant’s failure to provide advance notice wei ghed in favor of exclusion. McLaughlin , 258 Mich App at 654.

Although the statutory language refers only to evidence concer ning “semen, pregnancy, or disease,” this Court has held that specific instances of sex ual activity can also be introduced “to show the origin of a physical condition when evidence of that condition is offered by the prosecution to prove one of the elements of the crime charged p rovided the inflammatory or prejudicial nature of the rebuttal evidence does not outweigh i ts probative value.” People v Shaw , 315 Mich App 668, ___; ___ NW2d ___ (2016); slip op at 6 (emp hasis added). In Shaw

, a physician testified that he dis covered “extensive hymenal cha nges” and a “chronic anal fissure” during his examination of the complainant. Id . at ___; slip op at 5-6. A majority of the Court determined that defense trial counsel had rendered ineffective assistance in failing to present testimony of the complainant’s boyfriend, and that his testimon y would have been admissible to provide an alternative explanat ion for the hymenal changes and anal fissure described by the physician. Id . at ___; slip op at 6.

In reaching this conclusion, the Court in Shaw cited to People v Mikula , 84 Mich App 108; 269 NW2d 195 (1978), and People v Haley , 153 Mich App 400; 395 NW2d 60 (1986). In Mikula , the majority opinion offered t he following rationale:

Defendant argues that the int ent of [MCL 750.520(j)(1)(b)] is t o permit an accused to introduce specific instances of the complainant's se xual activity to show the origin of a physical condition offered as circumstanti al evidence of defendant's guilt. [ ] The prosecution contends that the specific physical condition here involved is not included in the statute and the proffered evidence was, therefore, properly excluded. We are persuaded that the defend ant's interpretation of the statute is correct.

It is well settled that where the prosecution substantiates it s case by demonstrating a physical condition of the complainant from whic h the jury might infer the occurrence of a sexual act, the defendant must be per mitted to meet that evidence with proof o f the complainant's prior sexual activity tending to show that another person might have been responsible for her condition. . . . The question in this case is whether the Legislature intended to retain that rule only for the conditions expressly included in t he statute to the exclusion o f other physical conditions. We think not. We are persuaded that there is no r ational distinction between the evidence expressly allowed under the statute and th at offered in this

case.
Certainly proof of the origin of the condition found in this c ase has no more potential for harassment of a complainant than proof of th e origin of one of the conditions expressly included in the statute. Moreover, th e prosecution offered the evidence of the cond ition found in this case for th e same purpose for which evidence of a condition included in the statute would be introduced, I. e. to prove the guilt of the accused. The introduction of evidence o f the origin of the condition to rebut the inference of guilt is equally important to the defense-6- whether the condition be one of those included in the statute o r another condition similarly probative of one of t he elements of the crime.

We conclude, therefore, that th e Legislature intended that evi dence of specific instances of sexual activity is admissible to show the origin of a physical condition when evidence of that condition is offered by the pro secution to prove one of the elements of the crime charged provided the inflammat ory or prejudicial nature of the rebuttal evidence does not outweigh its probative value. [ Mikula , 84 Mich App at 113-114 (citations and footnote omitted).]

Shaw ’s endorsement of Mikula has now made it precedential. MCR 7.215(J)(1). Yet, because the holding in Mikula on its face appears not to be consistent with the text of MCL 750.520j(1)(b), we will dig a b it deeper into the rationale that we believe may underlie its conclusion.

The majority in Shaw cited secondarily to Haley , noting that Haley held that “once the prosecution introduced medical evidence to establish penetratio n, evidence of alternative sources of penetration became highly relevant to material issues in dis pute.” Haley , 153 Mich App at 405-406. The Court in Haley further concluded that the “admission of evidence which merely explained complainant’s detailed and accurate sexual knowledge was no longer sufficient to protect defendant's constitutional rights of confrontation and cross-examination since penetration, rather than knowledge, was the relevant issue.” Haley cited to People v Hackett

, 421 Mich 338; 365 NW2d 120 (1984), in which our Supreme Court r ejected constitutional challenges to the admission of evidence of the complainants’ pr ior sexual conduct, but nonetheless noted that “in certain limited situations, such evi dence may not only be relevant, but its admission may be required to preserve a defendant’s constit utional right to co nfrontation.” Id . at 348.

The Court in Hackett noted that “[t]he [rape-shield] statute and its parallel provi sions in the Michigan Rules of Evidence, MRE 404(a)(3), constitute a pol icy determination, that sexual conduct or reputation as evidence of character and for impeachment , while perhaps logically relevant, is not legally relevant.” Id . at 346 (emphasis added). Fur ther, however, “[i]t is equally clear that while the extent of c ross-examination is within the discretion of the trial court there is a dimension of the Confrontation Clause that guarantees to defend ant a reasonable opportunity to test the truth of a witness’ testimony.” Id . at 347.

Placing the rape-shield statute in context, the Court explaine d that it was designed to insulate a complainant from character and general credibility c hallenges, but that those protections do not necessarily preclude the admission of eviden ce regarding other sexual conduct where relevant to issues presented in a case. Moreover, where relevant to such issues, admission of the evidence might be required in order to protect the defen dant’s constitutional right to confrontation:

By enacting a general exclusionary rule, the Legislature recog nized that in the vast majority of cases, evidence of a rape victim’s prior s exual conduct with others, and sexual reputation, when offered to prove that the c onduct at issue was consensual or for general impeachment is inadmissible. People v. Arenda , [416-7- Mich. 1, 10, 330 N.W.2d 814 (1982)]. The first purpose is simp ly a variation of character evidence as circumstantial evidence of conduct. The second is a collateral matter bearing only on general credibility as to whi ch it has been held that cross-examination may be denied . . . . The fact that the Legislature has determined that evidence of sexual conduct is not admissible as character evidence to prove consensual conduct or for general impeachmentpurposes is not however a declaration that evide nce of sexual conduct is never admissible. We recognize that in certain limited situations, such evidence may not only be relevant, but its admission may b e required to preserve a defen dant's constitutional right to confrontation. For example, where the defendant proffers evidence of a complainant’s prior sexual conduct for the narrow purpose of showing the complaining witness’ bias, this would almost always be material and should be admitted.

. . . Moreover in certain circumstances, evidence of a complainant’s sexual conduct may also be probative of a complai nant’s ulterior motive for making a false charge.

. . . Additionally, the defendant should be permitted to show that the complainant has made false accusatio ns of rape in the past. [ Hackett , 421 Mich at 347-348 (citations omitted).]

We therefore conclude that the proscriptions of the rape-shiel d statute are implicated when evidence of other sexual conduct is offered for purposes o f challenging a complainant’s character or general credibil ity, but are not necessarily impli cated when the evidence is otherwise admissible for a proper purpose, and that the underpinnings of that admissibility lie in the confrontation clause. See also People v Sharpe , ___ Mich App ___; ___ NW2d ___ (2017) (Docket Nos. 332879, 333872), slip op at 8 (“It is axiomatic th at evidence that is inadmissible for one purpose may nonetheless be admissible for another purpo se.”). Rather, the court must then balance the probative value and prejudicial effect of the evidence. 2 We note that “[t]he standard for excluding evidence on the basis of prejudice is mo re stringent under MCL 750.520j than under MRE 403,” because the probative value of evidence of other sexual conduct must only be “outweighed” by its prej udicial and inflammatory effect on the jury, rather than “substantially outwei ghed” as in MRE 403. See id ., slip op at 5, citing People v Adair , 452 Mich 473, 481; 550 NW2d 505 (1996). We further note that, in provid ing examples of situations where such evidence would be admissible, the Supreme Court in Hackett did not expressly reference admissibility for purposes of providing an alternativ e explanation for a physical condition. However, the Court in Hackett did not list its examples inan all-inclusive fashion. Instead, the Court left the dete rmination of admissibility to t he discretion of the trial court:

The determination of admissibility is entrusted to the sound d iscretion of the trial court. In exercising its discretion, the trial court should be mindful of the significant legislative purposes underlying the rape-shield sta tute and should

2 The Court in Hackett described the task associated with determining whether evidenc e of other sexual conduct infringes on a defendant’s right of confrontatio n as one of “[b]alancing the potential prejudicial nature of this evidence, in view of the l egislative purposes behind the rapeshield law, against the . . . proba tive value of the evidence.”-8- always favor exclusion of evidence of a complainant’s sexual co nduct where its exclusion would not unconstitutionally abridge the defendant’s right to confrontation. [ Hackett , 421 Mich at 349.]

The Court further outlined the procedure to be followed in the trial court for assessing the admissibility of such evidence:

The procedure to be employed by the trial court in evaluating the admissibility of evidence of the c omplainant’s prior sexual con duct is found in the rape-shield statute’s provision for in camera hearings. [ Id ., 421 Mich at 349, quoting MCL 750.520j(2) (“ The court may order an in camera hearing to determine whether the proposed eviden ce is admissible under subsection (1). ”).]

Further:

Whether we construe this provision to permit the extension of in camera hearings to include consideration of evidence outside the scope of subsection (1) where a defendant’s confrontati on right has been implicated, [ ] or whether we ground the broadened scope of such hearings on this Court’s con stitutional authority to establish rules of practice and procedure, [ ] we conclude that the hearing procedure will best accomplish the required balancing. A hearing held outside the presence of the jury to determine admissibility pro motes the state’s interests in protecting the priv acy rights of the alleged rape victim while at the same time safeguards the defendant’s right to a fair trial. Fu rthermore, this procedure establishes a record of the evidence for appellate re view of the trial court's ruling.

The defendant is obligated initi ally to make an offer of proof as to the proposed evidence and to demonstrate its relevance to the purpo se for which it is sought to be admitted. Unless there is a sufficient showing of relevancy in the defendant’s offer of proof, the trial court will deny the motio n. If there is a sufficient offer of proof as to a defendant’s constitutional ri ght to confrontation, as distinct simply from use of sexual conduct as evidence of ch aracter or for impeachment, the trial court shall order an in camera evidentiary hearing to determine the admissibility of such evidence in light of the co nstitutional inquiry previously stated. At this hearing, the trial court has, as al ways, the responsibility to restrict the scope of cross-examination to prevent questions which would harass, annoy or humiliate sexual assault victims and to guard against mere fishing expeditions. . . . Moreo ver, the trial court continues to possess the discretionary power to exclude relevant evidence offered for any purpose where its probative value is substantially outweighed by the risks of unfair prejudice, confusion of issues or misleading the jury. . . . We again emp hasize that in ruling on the admissibility of the proffered evidence, the trial court should rule against the admission of evidence of a complainant's prior sexual condu ct with third persons unless that ruling would unduly infringe on the defenda nt's constitutional right to confrontation. [ Id ., 421 Mich at 349-351 (citations omitted).]-9- It appears from the record that the trial court, in exercising its discretion to preclude the proffered evidence, did not fo llow the procedure outlined by th e Court in Hackett . This does not mean that the trial court necessarily erred by excluding the ev idence. However, it does not appear that the trial court or the parties addressed the issue in terms of the confrontation clause or followed the procedure outlined in Hackett for offers of proof and in camera hearings. We are therefore unable on the current r ecord to determine whether the trial court abused its discretion in excluding the evidence.

Nonetheless, we conclude that any error in excluding the evide nce in this case was harmless. The probative value of the excluded evidence was not as significant as that at issue in Shaw . The Shaw Court opined that the complaina nt’s ongoing sexual relationship at the time of her physical examination was highly relevant because the physic ian “essentially testified that the hymenal changes were consistent with those of either a sexually active adult woman or an abused child.” Id . Thus, without evidence of the complainant’s sexual relations hip with her boyfriend, “there was no likely explanation, other than [the] d efendant’s guilt,” to explain the physical condition reported by the physician. Id . By contrast, Dr. Nazer’s testimony regarding the implications of her findings was far less definitive. Dr. Nazer reached an “indeterminate finding” regarding the condition of MW’s hymen, and explained t hat while such a finding is “supportive” of the complainant’s disclosure, it is not conside red abnormal in the absence of allegations of sexual abuse. The natural implication of Dr. Na zer’s testimony is that the results of MW’s medical examination were inconclusive regarding whether MW had engaged in any sexual activity that would have compromised the condition of he r hymen—regardless of whether that activity occurred with defendant or others.

Moreover, it is improbable that the outcome of the trial would have been different if defendant had been allowed to introduce evidence that MW was se xually active with others before she was examined by Dr. Nazer. Although MW did not desc ribe the sexual encounters that occurred in Taylor in great detail, she unequivocally test ified that defendant engaged in vaginal intercourse with her at their house. She also stated t hat when they left the house together, defendant would drive to isolated locations and make her put his penis in her mouth. The testimony of a complainant i n a CSC prosecution need not be corroborated. MCL 750.520h; People v Brantley , 296 Mich App 546, 551; 823 NW2d 290 (2012). Moreover, the ju ry also convicted defendant of the CSC-I charges stemming from RW’s acc usations, regardless of the fact that Dr. Nazer reported that RW’s examination results were normal. Thus it does not appear that the jury placed disproportionate weight on Dr. Nazer’s ind eterminate finding or the lack of evidence of other s exual activity by MW.

Affirmed.

/s/ Peter D. O’Connell /s/ Elizabeth L. Gleicher /s/ Mark T. Boonstra