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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

May 16, 2017 

v No. 331922 

Jackson Circuit Court 

RANDY JAMES BERKEYPILE, LC No. 15-005787-FC 

 Defendant-Appellant. 

Before: GADOLA, P.J., and JANSEN and SAAD, JJ. 

PER CURIAM. 

 Defendant appeals his convictions following a jury trial of two counts of first-degree 

criminal sexual conduct (CSC I), MCL 750.520b(1)(b), two counts of second-degree criminal 

sexual conduct (CSC II), MCL 750.520c(1)(b), and two counts of CSC II involving a person less 

than 13 years of age where the defendant is 17 years of age or older, MCL 750.520c(2)(b). 

Defendant was sentenced to concurrent prison terms of 6 to 14 years for the CSC I and 4 to 12 

years for the CSC II convictions. We affirm. 

I. PERTINENT FACTS 

 The victim, RR, is defendant’s stepdaughter. At trial, she testified to a progression of 

sexual abuse by defendant that began when she was 12 years old. According to RR, the assaults 

initially consisted of defendant groping her chest and gradually progressed to defendant going 

under and on top of her clothing and touching her chest and vaginal area. She testified that on 

one occasion, defendant tried to make her touch his penis, but she closed her hand in a fist and 

refused to open it. She also testified that defendant attempted to put his penis in her mouth but 

was unsuccessful. According to RR, most of the assaults occurred in her bedroom, the living 

room, defendant’s room, and her mother’s room, and on Wednesdays when her mother was at 

work and her brother was in school. 

 The last assault occurred on July 30, 2013, when RR was 14 years old. RR testified that 

she was sitting on her bed, playing a game on her computer, when defendant walked into her 

room and started groping her. She stated that at some point, defendant pushed her down on her 

side and started touching her breast and inside her vagina. Defendant then took her top and pants 

off, and put his mouth on her breast and vagina, as she lay on the floor. She testified that she 

was on her period and was using tampons when defendant put his mouth on her vagina, but 

changed her tampon after the assault. After the assault ended, defendant took her to a Pizza Hut 
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and to Lowe’s. When they got back to the house, RR asked defendant to drive up to the house 

while she got the mail. RR then called the police and reported the assaults. 

 That same day, RR underwent a sexual assault examination. Because RR claimed that 

defendant put his mouth on her breasts and vagina, those areas were swabbed and tested for 

saliva. The swabs from the breasts tested positive for saliva and were forwarded for DNA 

testing. At trial, evidence was presented that defendant’s DNA was found on the swabs from 

RR’s breasts.1

II. ANALYSIS 

 On appeal, defendant argues that he received ineffective assistance of counsel. To 

preserve an ineffective assistance of counsel claim, a defendant must move for a new trial or a 

Ginther2 hearing. In this case, defendant did neither; therefore, this Court’s review is limited to 

mistakes apparent from the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). 

 A criminal defendant has the fundamental right to the effective assistance of counsel. 

United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984). “To establish 

ineffective assistance of counsel, the defendant must first show: (1) that counsel’s performance 

fell below an objective standard of reasonableness under prevailing professional norms, and (2) 

that there is reasonable probability that, but for counsel’s errors, the result of the proceeding 

would have been different.” People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000). In 

order to meet the second requirement, a defendant must show that counsel’s error was so serious 

that the defendant was deprived of a fair trial. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 

(2002). 

 “Defense counsel must be afforded broad discretion in the handling of cases, which often 

results in taking the calculated risk which still do sometimes, at least, pluck legal victory out of 

legal defeat.” People v Pickens, 446 Mich 298, 325; 521 NW2d 797 (1994) (quotation marks 

and citation omitted). Therefore, in matters of trial strategy, a defendant is required to overcome 

a strong presumption that counsel’s performance constituted sound strategy. People v Mitchell, 

454 Mich 145, 156; 560 NW2d 600 (1997). An appellate court will not substitute its judgment 

regarding matters of strategy, nor should it “assess counsel’s competence with the benefit of 

hindsight.” People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). 

 Defendant claims that RR’s statements to the Sexual Abuse Nurse Examiner (the SANE 

nurse) violated the rule against hearsay. Hearsay 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 

 

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 Specifically, the swab from the left breast yielded “a straight single source” that matched 

defendant’s DNA, and the swab from the right breast yielded two donors, with defendant being 

the major donor. The DNA expert stated that there was not enough DNA from the minor donor 

to make any further analysis, but she opined that it could have been RR’s DNA. 

2 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 
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matter asserted.” MRE 801(c). However, “‘[s]tatements 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 or general character of the cause or 

external source therefore insofar as reasonably necessary to such diagnosis and treatment’ are 

admissible as an exception to the hearsay rule.” People v Garland, 286 Mich App 1, 8; 777 

NW2d 732 (2009), quoting MRE 803(4). “The rationale supporting the admission of statements 

under this exception is the existence of (1) the reasonable necessity of the statement to the 

diagnosis and treatment of the patient, and (2) the declarant’s self-interested motivation to speak 

the truth to treating physicians in order to receive proper medical care.” Id. at 8-9. 

 During trial, the SANE nurse testified that she conducted an examination of RR on the 

day of the last sexual assault. She stated that she prepared a report and read from the report 

during her testimony, which contained numerous statements that RR had made during the 

examination. RR’s statements to the nurse were reasonably necessary for her treatment and 

diagnosis. See id. at 9. RR went to the hospital for medical care on the day of the assault and 

was referred to the SANE nurse to determine whether she had been sexually assaulted. The 

SANE nurse’s testimony was consistent with RR’s in-court version of what occurred, which 

detailed the sexual assaults RR endured from defendant for two to two-and-a-half years, 

including the one on the day of the medical examination. The nurse testified that obtaining the 

patient’s medical history was very important because it would influence her findings and direct 

her on how best to treat the victim. She also stated that obtaining information about the assault 

was necessary to guide her on how best to proceed with the examination. She concluded, based 

on the examination, that her observations on RR’s body were consistent with RR’s history and 

her description of the assault. 

 In addition, RR had a self-interested motivation to speak the truth in order to obtain 

medical treatment. See id. At the time of the examination, RR was over the age of 10 years old; 

“thus there was a rebuttable presumption that she understood the need to tell the truth to the 

nurse.” Id. “The fact that [RR] did not have any immediate apparent physical injuries did not 

rebut this presumption. Often, the injuries inflicted on the victim in a sexual assault, such as 

transmission of a sexually transmitted disease, immune deficiency virus, or psychological 

trauma, are impossible to detect at first but still require diagnosis and treatment.” Id. at 9-10. 

 Defendant relies on this Court’s decision in People v Shaw, 315 Mich App 668; 892 

NW2d 15 (2016), to argue that RR’s statements to the nurse were inadmissible hearsay. In 

Shaw, the complainant was 23 years old when she reported to the police that the defendant, her 

step-father, had sexually molested her on multiple occasions when she was between the ages of 8 

and 16. Id. at 671. The treating physician conducted a forensic examination of the complainant 

seven years after the last alleged instance of abuse, and testified to the statements made by the 

complainant during the examination. Id. at 674. This Court concluded that MRE 803(4) did not 

apply where the forensic physical examination of the complainant was conducted seven years 

after the last alleged instance of abuse, the complainant was referred to the pediatrician by the 

police in conjunction with the police investigation into the allegation of abuse by the defendant, 

and during the seven years since the last incident of abuse the complainant had seen a different 

physician, who was not called as a witness, for gynecological care. Id. at 675. 
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 This case is factually distinguishable from Shaw. Here, unlike in Shaw, RR was referred 

for medical examination on the same day that the last sexual assault occurred. Further, unlike in 

Shaw where the complainant had seen a different physician other than the testifying physician, 

the SANE nurse was the first medical personnel to examine RR after she reported the sexual 

assault that occurred on that day. Therefore, the information obtained during the preexamination/medical interview was crucial to the SANE nurse’s ability to determine whether RR 

had been sexually assaulted and was properly admitted under MRE 803(4). Accordingly, the 

statements were admissible, and any objection to their admission would have been futile. As 

such, counsel cannot be deemed ineffective for failing to raise a futile objection. People v Eisen, 

296 Mich App 326, 329; 820 NW2d 229 (2012). 

 Defendant also argues that trial counsel failed to obtain an expert to properly test the 

saliva sample for the presence of tobacco or nicotine. RR’s mother testified at trial that she did 

not believe RR’s accusations against defendant. After an officer relayed the results of the DNA 

testing to RR’s mother, she stated, “Well, [RR] could have taken her finger and stuck her finger 

in [defendant’s] chew spit bottle and rubbed it on her nipples.” Based on this information, the 

evidence was sent back to be tested for the presence of tobacco. None was detected, but the 

forensic scientist indicated that trace amounts possibly could have been detected with more 

sensitive instruments. But the forensic scientist also stated that, although some forensic 

laboratories may have more sensitive instruments, he was unsure of which laboratories would 

have such an instrument. 

 It is clear that, assuming counsel could have arranged for an expert who would have done 

such testing, defendant admitted that he chews tobacco and any presence that could have been 

found on RR could have simply come from his mouth. Thus, such a test would not have 

established that defendant did not lick RR’s breasts. We also note that defendant testified in his 

defense and did not offer any evidence to support this theory; he merely denied sexually 

assaulting RR and could not offer any explanation as to why RR would make up the allegations. 

Therefore, defendant’s claim fails because he has failed to identify the instrument, if any, that 

would have detected the presence of tobacco, has failed to show that tobacco would have been 

detected, and has failed to show how a positive result for the presence of tobacco would have 

altered the outcome of the lower court proceedings. 

 Finally, defendant avers that trial counsel failed to have proper testing done to identify 

the identity of the minor/trace DNA donor. But defendant fails to explain how the presence of 

another’s DNA somehow would exonerate himself. The fact remains that defendant’s DNA was 

found on RR. Thus, counsel was not ineffective for failing to follow up on a pointless 

investigation. 

 Affirmed. 

/s/ Michael F. Gadola 

/s/ Kathleen Jansen 

/s/ Henry William Saad