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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 23, 2017

v No. 330071
Arenac Circuit Court WALTER FRANK STEENBERGH, LC No. 15-003908-FC

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and S TEPHENS and O’B RIEN , JJ.

P ER C URIAM

.

Defendant, Walter Frank Steenbergh, was convicted by a jury offour counts of firstdegree criminal sexual conduct, MCL 750.520b(1)(a), and two cou nts of second-degree criminal sexual conduct, MCL 750.520c(1)(a), and was sentenced to concur rent prison terms of 25 to 40 years for the CSC I convictions and 10 to 15 years for the CSC II convictions. He appeals as of right his October 21, 2015 judgment of sentence. We affirm.

Defendant sexually assaulted the victim, his niece, multiple t imes between the ages of seven and eleven years old. While admonishing the victim and h er cousin to quiet down in bed, defendant would pull the victim t o the other end of the bed and “touch in between [her] legs and on [her] breasts” with “his hand or tongue.” The victim explai ned that defendant had “licked” “inside” of her “private” on more than one occasion. The victi m’s cousin denied ever witnessing defendant sexually assault the vi ctim, and defendant denied the allegations. As indicated above, however, the jury convicted defendant of multiple counts of CSC I and CSC II. This appeal
followed.

On appeal, defendant first argue s that trial counsel’s perform ance constituted ineffective assistance when he failed to retain an expert witness to testif y, or at least advise counsel, regarding forensic interviewing, the reliability of memory, and the suggestibility of children. We disagree.

A criminal defendant has the constitutional right to the effec tive assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; People v Meissner , 294 Mich App 438, 459; 812 NW2d 37 (2011). Because defendant did not properly preserve th is issue for appellate review, our review is limited to the existing record. People v Heft , 299 Mich App 69, 80; 829 NW2d 266 (2012). “Whether a person has be en denied effective assistance of counsel is a mixed question
of fact and constitutional law.” People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).-2- “To prove that defense counsel was not effective, the defendant must show that (1) defense counsel’s performance was so deficient that it fell bel ow an objective standard of reasonableness and (2) there is a reasonable probability that d efense counsel’s deficient performance prejudiced the defendant.” Heft , 299 Mich App at 80-81. “The defendant was prejudiced if, but for defense c ounsel’s errors, the result of the proceeding would have been
different.” Id . at 81. A defendant may establish the requisite prejudice “ev en if the errors of counsel cannot be shown by a preponderance of the evidence to h ave determined the outcome.” People v Trakhtenberg , 493 Mich 38, 56; 826 NW2d 136 (2012) (internal quotation mark s and citation omitted).

With regard to what witnesses to call at trial, it is generall y “presumed to be a matter of trial strategy, and an appellate court does not substitute its judgment for that of counsel in matters of trial strategy.” People v Seals , 285 Mich App 1, 21; 776 NW2d 314 (2009). Nonetheless, the failure to call a witness constitutes ineffect ive assistance of counsel if it deprives a defendant of a substantial defense. People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). “A substantial defense is one that might have made a difference in the
outcome of the trial.” People v Kelly , 186 Mich App 524, 526; 465 NW2d 569 (1990).

In this case, defendant admittedly did not satisfy the require ment that he offer proof that the retention of the expert woul d have proved favorable at tria l. People v Ackerman , 257 Mich App 434, 455; 669 NW2d 818 (2003). Thus, he has failed to esta blish the factual predicate for his claim, and no further review is required, and no further an alysis is required. Id . Indeed, to grant any relief would require that we assume that he could hav e retained an expert that would have proved favorable to this case, and we are not willing to m ake this wholly unsupported assumption on our own. In short, had defendant offered any factual support for his appellate claim, our analysis could have b een different, but he did not.

Nevertheless, we would also note that his argument on appeal i s meritless. In order to obtain relief, defendant is required to demonstrate that a subs tantial defense was lost. Ackerman

, 257 Mich App at 455. On appeal, he likens the facts of this ca se to those in People v Ackley , 497 Mich 381; 870 NW2d 858 (2015), but his reliance in that regard is misplaced. Most importantly, the expert testimony in Ackley “was the cornerstone of the prosecution’s case.” Id . at 384. Here, however, the expert testimony at i ssue was not the cornerstone of the prosecution’s case; rather, the victim’s own testimony was the cornerstone of its case, and the expert, a nurse examiner, did not offer any opinion testimony regarding memory or suggestibil ity, i.e., the areas that defendant claims counter-expertise was need ed for. Further, it cannot be overlooked that Ackley involved a scenario where the prosecution offered the testimony of five experts; here, the prosecution offered the testimony of one. Therefore, Ackley is not controlling.

Finally, any error in this re gard was not outcome determinativ e. This case did not present a so-called battle of the experts. Rather, it presented a cred ibility dispute. The prosecution presented the victim’s testimony regarding defendant’s sexual a ssaults, and trial counsel for defendant attempted to impeach that testimony through cross-exa mination of the victim, examination of other witnesses, and argument. He pointed to va rious inconsistencies between her testimony and her statement to the nurse examiner, highligh ted the lack of physical evidence to support the victim’s allegations against defendant, and poin ted to other evidence that contradicted the prosecution’s th eory. Despite these efforts, the jury clearly credited the victim’s-3- testimony. Without any indication as to how any expert may hav e assisted defendant, we simply cannot agree that the failure t o retain one was outcome determi native.

Defendant also argues on appeal that the trial court erroneous ly admitted hearsay testimony and that trial counsel’s performance constituted inef fective assistance when he failed to object to this testimony. We disagree.

Because this issue was not preserved for appellate review, our review is for plain error affecting his subs tantial rights. People v Brown , 279 Mich App 116, 134; 755 NW2d 664 (2008). “To avoid forfeiture under the plain e rror rule, three requirements must be met: (1) error must have occurred, (2) the error was plain, i.e., clear or obv ious, and (3) the plain error affected substantial rights.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

Hearsay is defined as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prov e the truth of the matter asserted.” MRE 801(c). Hearsay evidence is inadmissible unless it falls w ithin an exception established by
the rules of evidence. MRE 802. Excepted from the hearsay rul e are “[s]tatements made for purposes of medical treatment or medical diagnosis in connectio n with treatment and describing medical history, or past or present symptoms, pain, or sensatio ns, or the inception or general
character of the cause or extern al source thereof insofar as re asonably necessary to such diagnosis and treatment.” MRE 803(4). “[F]urther supporting r ationale for MRE 803(4) is the existence of (1) the self-interested motivation to speak the tr uth to treating physicians in order to receive proper medical care, and (2) the reasonable necessity o f the statement to the diagnosis and treatment of the patient.” People v Meeboer (After Remand) , 439 Mich 310, 322; 484 NW2d 621 (1992).

In this case, defendant takes i ssue with the admissibility of the nurse examiner’s testimony. Specifically, defendant challenges the nurse examin er’s testimony about statements made by the victim during her medical examination:

When I asked about the licking, kissing, or sucking, she said that he would lick her privates. I asked about digital penetration. I didn’ t use the words digital, I used did he use his finger? Did he put his finger inside of you? And she said
kind of . . . in the inside. Then I asked about his penis, and she said he tried to put his penis in my butt before. I asked about him putting his mou th on her or putting her mouth on his genitals, and she said that he would try to st ick it, meaning his penis, in her mouth and that he would lick her privates[.]

Defendant claims that MRE 803(4) is inapplicable to these state ments because the victim had no pressing need for treatment based on the fact that the medical examination took place months after the last reported sexual assault. Similarly, he also cla ims that the victim’s account was not reasonably necessary to her treatment because this information was unnecessary to determine whether the victim had contracted a sexually transmitted diseas e.

This Court has held that in cases of sexual assault, MRE 803(4 ) can apply “irrespective of
whether the declarant sustained any immediately apparent physic al injury.” People v Mahone

, 294 Mich App 208, 215; 816 NW2d 436 (2011). This Court has cle arly explained that, in cases-4- involving allegations of sexual assault where a victim’s injuri es might be psychological or latent, “a victim’s complete history a nd a recitation of the totality o f the circumstances of the assault are properly considered to be statements made for medical treatment .” Id . The victim’s description of the assaults in this case pr ovided the nurse examiner with i nformation about “the inception or general character of the cause or external source” of any physi cal injuries uncovered during the examination, overt or latent, and any suspected psychological i njury that could require followup, either privately or through co mmunity service referrals. M RE 803(4). Further, the nature of the assault is needed in order to focus the scope of the medica l examination, both as to what to look for and what not to look for (the latter being necessary t o not expose the child victim to any more intrusive physical examination than needed).

Defendant claims on appeal that the nurse examiner admitted th at none of this information was necessary to her examination, but the record re flects otherwise. The nurse examiner made it clear that it was unimportant whether a different person previously assaulted the victim because she was providing care in connection with th e instant alleged assault. In any event, it is clear that in cases of sexual assault, “a victim’s complete history and a recitation of the totality of the circumstances of the assault are properly c onsidered to be statements made for
medical treatment.” Mahone , 294 Mich App at 215. Therefore, defendant has failed to demonstrate plain e rror affecting his s ubstantial rights.

Relatedly, defendant’s claim tha t trial counsel’s performance constituted ineffective assistance when he failed to obj ect to this testimony must fail for the same reason. Counsel cannot be deemed ineffective for failing to make a futile objec tion. People v Goodin , 257 Mich App 425, 433; 668 NW2d 392 (2003).

Affirmed.

/s/ Colleen A. O'Brien /s/ Michael J. Kelly