-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 20, 2016

v No. 328801 Muskegon Circuit Court MATTHEW JOSEPH BUSSING, LC No. 15-065877-FC

Defendant-Appellant.

Before: W ILDER , P.J., and M URPHY and O’B RIEN , JJ.

P ER C URIAM

.

Following a jury trial, defendant was convicted of first-degre e child abuse, MCL 750.136b(2). He was sentenced as a fourth-offense habitual off ender, MCL 769.12, to 20 to 30 years’ imprisonment. Defendant appeals as of right, and we aff irm.

Defendant resided with the mot her of the one-year-old victim i n this case; he is not the child’s father. There is no dispute that defendant was the onl y person with the victim when she incurred the injuries that forme d the basis of the child-abuse prosecution. Defendant claimed that the victim, while in his care, fell from a chair, that he lunged to catch her but was unsuccessful, and that he then t umbled and landed on top of the child, with the child hitting a cupboard and wood floor in the process. The prosecution’s theo ry was that the victim’s injuries were the result of physical abuse by defendant. There was evid ence that defendant acted in an erratic and belligerent manner after the victim sustained her i njuries, engaging in delaying tactics and evasive conduct that precluded the child’s mother and a bab ysitter from seeing the victim for a period of time. Defendant did not take the victim for medica l care, claiming that she was okay in his view. When the victim’s mother was finally handed the c hild, after the babysitter’s
husband had first coaxed defenda nt into turning over the victim

, 1 the mother noticed that the child had an atypical distant stare and had red marks and bruis es on her right arm, lips, tongue, neck, cheeks, ears, and the top of her head. An ambulance was immediately called, and the child was taken to the emergency room at Hackley Hospital, where doct ors recommended that the

1 Defendant subsequently punched the babysitter’s husband in the face after a verbal altercation and then sped off in his pickup truck.-2- victim be transferred to Helen DeVos Children’s Hospital becaus e the child had bleeding around
her brain.

The doctor who treated the victim in the emergency room at Hac kley testified that the child had bruises on her tongue, both cheeks, both ears, the an terior portion of the neck, the lateral neck, and her right arm. According to the doctor, a CA T scan revealed a subdural hematoma, with evidence of old a nd fresh bleeding around the br ain. During the prosecution’s case-in-chief, it presented testimony by Dr. N. Debra Simms, a physician who was board certified in general and child abuse pediatrics and was one of only nine board-certified child abuse experts in Michigan. One -hundred percent of her practice was devoted to the evaluation of possible child maltreatment, and she was consulted in this case , examining and evaluating the child for 4-1/2 hours. Dr. Simms was recognized, without objec tion, as an expert in pediatrics and child abuse. She described the following injuries to the v ictim: numerous bruises, including multiple linear bruises on various planes, about the neck, face , and head; bruises to the tongue, ears, and right shoulder and arm; and subdural hematoma, with e xtensive bleeding in different
areas of the brain. When asked whether defendant’s account of events was consistent with the child’s injuries, Dr. Simms answered in the negative, explainin g that the child “had too many injuries in too many planes of the body.” Dr. Simms elaborated :

[W]hen we’re talking about injuries and if we talked about a c hild falling and hitting then you would expect a single plane of injury. The n if you talked about somebody falling and landing on top of them or whatever t hen you’re still talking a maximum of two planes of injury. And in [the victim’s ] case, as you saw, she had so many planes of injury that a unipolar, one, or bipolar impact would not explain the full to tality of her injuries.

Dr. Simms opined that the cause of the victim’s injuries was p ediatric child abuse. At this stage of the trial, defenda nt had not testified, and his a ccount of what had transpired was in abbreviated form, coming from a text message that he had sent t he child’s mother and statements to police. Defendant then took the stand and explained in grea ter detail his version of events. The prosecution proceeded to call Dr. Simms back to the stand a s a rebuttal witness in order to address some of the specifics provided by defendant. Dr. Simms testified very briefly on rebuttal, indicating that defenda nt’s description of events sti ll did not account for all of the victim’s injuries. According to Dr. Simms, the pattern, locati on, extent, and nature of the injuries continued to point to child abuse and were inconsisten t with defendant’s assertion and testimony of a “fall.” As part of her rebuttal testimony, Dr. Simms did maintain that she questioned the “physics” of defendant’s account, finding it dif ficult to understand how the child may have hit a cupboard if defendant was over the top of the ch ild as they fell to the floor. Defense counsel objected that Dr. Simms was not qualified to ex plain the physics of a fall, and
the trial court overru led the objection.

On appeal, defendant argues th at the trial court abused its discretion by permitting Dr. Simms to testify on rebuttal with respect to biomechanical e ngineering issues, where the testimony did not satisfy the foundational requirements of MRE 702, and where it had a tendency to confuse and mislead the jury and was unfairly preju dicial, MRE 403. We review for
an abuse of discretion a trial court’s decision to admit eviden ce, including expert witness testimony. People v Lukity , 460 Mich 484, 488; 596 NW2d 607 (1999); People v Matuszak , 263-3- Mich App 42, 47; 687 NW2d 342 (2004). An abuse of discretion o ccurs when a court selects an outcome that falls outside the range of reasonable and principl ed outcomes. People v Babcock

, 469 Mich 247, 269; 666 NW2d 231 (2003). “When the decision reg arding the admission of evidence involves a preliminary question of law, such as whethe r a statute or rule of evidence precludes admissibility of the evidence, the issue is reviewed de novo.” People v Washington

, 468 Mich 667, 670-671; 664 NW2d 203 (2003).

The admissibility of expert testimony is governed by MRE 702, which provides:

If the court determines that sc ientific, technical, or other s pecialized knowledge will assist the trier of fact to understand the evide nce or to determine a fact in issue, a witness qualified as an expert by knowledge, s kill, experience, training, or education may testify thereto in the form of an op inion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliabl y to the facts of the case.

Expert testimony is limited to opinions that fall within the s cope of the witness’s knowledge, skill, experience, training, or education, and an ex pert is not permitted to opine on matters outside of his or her area of expertise. People v Unger , 278 Mich App 210, 251; 749 NW2d 272 (2008). MRE 403 provides:

Although relevant, evidence may be excluded if its probative v alue is substantially outweighed by the danger of unfair prejudice, con fusion of the issues, or misleading the jury, or by considerations of undue d elay, waste of time, or needless presentation of cumulative evidence.

To the extent that defendant i s assailing Dr. Simms’s rebutt al testimony because of the references to linear bruises and planes of injury, Dr. Simms ha d already testified extensively in regard to those matters in the prosecution’s case-in-chief, whi ch testimony was not challenged below and is not being challenged on appeal. Defendant has nev er contended that Dr. Simms was unqualified relative to her testimony and opinions elicited when she originally took the stand. Moreover, the testimony c oncerning linear bruises and p lanes of injury simply pertained to patterns, features, types, and locations of injury and possi ble related causes, and the testimony was certainly within the knowledge , experience, and training of a physician board-certified in child abuse, which field focuses on identifying injuries to chi ldren and their sources. Dr. Simms
indicated on rebuttal that the c hild’s injuries were not consis tent with defendant’s trial testimony concerning the nature of the alleged fall. We find no abuse of discretion in allowing this testimony.

Defendant primarily complains about the rebuttal testimony tou ching on physics, which formed the basis of an objection at trial. The record reflects that Dr. Simms merely called into question defendant’s testimony that the child struck a cupboard during the purported fall as described by defendant. Dr. Simms did not understand how the c hild would have hit or been exposed to the cupboard during the fall, where defendant explai ned that his body was on top of and essentially covered the chil d as they fell to the floor. W e cannot agree with defendant that this testimony concerned biomechanical engineering, such that e xpertise in that field was-4- necessary. Rather, Dr. Simms’s testimony was more in the natur e of a simple observation that any lay person could have reasonably and competently made. Add itionally, Dr. Simms testified that child abuse experts “do a lot of looking at falls and fall mechanisms,” and we see no reason to conclude that Dr. Simms was unqualified to question defendan t’s testimony about the child supposedly hitting the cupboard. And, under these circumstance s, Dr. Simms’s rebuttal testimony was not substantially outweighed by the danger of unf air prejudice, confusion of the issues, or misleading the jury, MRE 403. There was no abuse of discretion when the trial court overruled defense counsel’s obje ction and allowed t he rebuttal testimony.

Furthermore, Dr. Simms indicate d that defendant’s testimony, w hich included the claim about the cupboard, still did not explain all of the child’s in juries. And Dr. Simms’s earlier unchallenged testimony revealed a strong case of child abuse. Taking these points into consideration in conjunction with defendant’s unusual behavior after the child sustained her injuries and the disturbing photographs of the injuries, we con clude that any presumed error in regard to Dr. Simms’s brief reb uttal testimony was entirely har mless. MCL 769.26; Lukity , 460
Mich at 495. We are quite confident that absent Dr. Simms’s testimony on reb uttal that
defendant would nonetheless have been convicted. Reversal is u nwarranted.

Affirmed.

/s/ Kurtis T. Wilder /s/ William B. Murphy
/s/ Colleen A. O'Brien