If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### 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- Appellee, UNPUBLISHED October 29, 2020

v No. 333916 Macomb Circuit Court JONATHAN ERNEST MANWELL, LC No. 2015

- 002139

- FC

Defendant

- Appellant.

ON REMAND

Before: J ANSEN , P .J., and S ERVITTO and S HAPIRO , JJ.

P ER C URIAM

. This case is before us on remand from our Supreme Court to reconsider our holdings in parts III and IV of People v Manwell , unpublished per curiam opinion of the Court of Appeals, issued February, 22, 2018 (Docket No. 333916), regarding the testimony of Children ’ s Protective Services (CPS) worker , Jennifer Raleigh, and the testimony of Detective John Newman in light of the consolidated cases of People v Thorpe and People v Harbison

, 504 Mich 230; 934 NW2d 693 (2019 ). W e again affirm.

The underlying facts of this case are set out in our prior opinion, Manwell

, supra , and need not be repeated here. Suffice it to say

, defendant was convicted of sexually abusing his daughter

, DM, and this Court affirmed defendant ’ s convictions. In affirming, this Court found that challenged trial testimony of both CPS worker Jennifer Raleigh and Detective John Newman was admissible lay opinion testimony under MRE 701 , that the testimony did not constitute improper vouching for DM ’ s credibility , and that defendant failed to establish plain error affecting his substantial rights. Manwell , unpub op at 5

- 6.

In Thorpe , 504 Mich at 23 6 , the defendant was accused of inappropriately touching his girlfriend ’ s daughter. Thomas Cottrell testified as an expert witness in the area of child sexual abuse and disclosure. Id . at 239. Cottrell “ testified to the broad range of reactions of children who are abused, the cost/benefit analysis children make in deciding whether to disclose abuse, and some of the reasons children may delay disclosure. ” Id . On redirect examination, the prosecutor asked- 2

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Cottrell the percentage of children reporting abuse whos e reports are fabricated. The defendant objected, but the trial court overruled the objection on the ground that defendant had opened the door by raising the issue of false reports on cross

- examination. Id . at 239

- 240. Cottrell testified that it was “ ex tremely rare ” for a child to lie about a sexual assault. He stated that children who lie do so “ with a purpose ” such as bringing attention to domestic violence against the other parent. Id . at 240.

Reviewing the admission of Cottrell ’ s testimony as a pr eserved error, the Supreme Court referenced its prior decision in People v Smith , 425 Mich 98; 387 NW2d 814 (1986), and stated:

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 tr uth. ” 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 do ctor. 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 find ings and the complainant ’ s medical history. [ Thorpe , 504 Mich at 255, quoting Smith , 425 Mich at 106, 109

- 112.]

The Court concluded that “ it [wa]s more probable than not that a different outcome would have resulted without Cottrell ’ s testimony that children lie about sexual abuse 2% to 4% of the time. ” Thorpe , 504 Mich at 259. The Court remarked that the trial “ was a true credibility contest ” in which there was “ no physical evidence, there were no witnesses to the alleged assaults, and there

were n o inculpatory statements. ” Id . at 260. Consequently, “ the improperly admitted testimony wherein Cottrell vouched for [the complainant ’ s] credibility likely affected the jury ’ s ultimate decision. ” Id . at 260. The Court thus reversed the defendant ’ s conv ictions and remanded for a new trial.

In the companion case, People v Harbison , the defendant occasionally babysat his nearly nine

- year

- old niece. Id. at 242. The child was removed from her home and placed in foster care. Id . at 242. After her removal, the child disclosed incidents of abuse to a foster parent, a caseworker, and a pediatrician. Id . at 242

- 243. At trial, the child testified regarding numerous incidents of penetrative and nonpenetrative sexual assaults by the defendant. Id . at 243. Dr. Debra Simms, an expert in the field of “ child sexual abuse diagnostics, ” testified that she diagnosed the child with

“ probable pediatric sexual abuse. ” Her diagnosis was based on the child ’ s oral history and not on any physic al findings in the physical examination. Id . at 244

- 247.

The Court reviewed the Harbison claim of error under the plain

- error standard applicable to unpreserved claims. The Court concluded that “ Dr. Simms ’ s expert opinion that TH suffered

‘ probable pediatric sexual abuse ’ is contrary to this Court ’ s unanimous decision in Smith

. ” Id . at 260

- 261. The Court held that Dr. Simms ’ s candid acknowledgment that her physical examination revealed no evidence of assault meant that her conclusion that the child suffered “ probable- 3

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pediatric sexual abuse ” was based on her opinion that the victim gave a “ clear, consistent, detailed and descriptive ” report of the assaults. Id . at 261

- 262. Her testimony therefore violated the holding in Smith

, “ that an examining ph ysician 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. ’ ” Id . at 262, quoting Smith , 425 Mich at 109. The testimony qualified as plain error because Dr. Simms vouched for the victim ’ s testimony in violation of the

“ straightforward bright

- line test ” as stated in Smith

. Thorpe , 504 Mich at 262. The Court also concluded that Dr. Simms ’ s testimony affected the defendant ’ s substanti al rights, principally because Dr. Simms “ clearly vouched for [the complainant ’ s] credibility. Id. The Court quoted People v Beckley , 434 Mich 691, 727

- 728, 729; 456 NW2d 391 (1990) (opinion by B RICKLEY , J.)

, in which the Court stated :
[A]ny testimony ab out 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 special ized knowledge in terms of behavioral characteristics generally associated with the class of victims, but to possess some specialized knowledge for discerning the truth. [ Thorpe , 504 Mich at 263.]

The Court reversed the defendant ’ s convictions in Harbison and remanded for a new trial. Id . at 266.

In this case, as this Court determined in its original opinion, defendant did not preserve the claims of error raised and addressed in pa rts III and IV of this Court ’ s original opinion. Therefore, those claims are reviewed under the plain

- error framework whereby defendant must show a plain error that affected his substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). A plain error is one that is “ clear or obvious. ” Id

. at 763. A clear or obvious error is “ one that is not ‘ subject to reasonable dispute. ’ ” People v Randolph , 502 Mich 1, 10; 917 NW2d 249 (2018) (citation omitted). An error affects substantial rights if it is prejudicial, i.e. , if it affects the outcome of the proceedings. Carines , 460 Mich at 763. Further, a reviewing court should reverse

“ only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial pr oceedings. ” Thorpe , 504 Mich at 252

- 253.

We find no such error here. We first note that nothing in Thorpe affects th is Court ’ s prior conclusion that Raleigh ’ s and Newman ’ s testimony was not de facto expert testimony requiring conformity to the requiremen ts of MRE 702. Addressing the challenged testimony, defense counsel questioned Newman about defendant ’s and DM’s body language during their respective police interviews . On redirect, the prosecutor questioned Newman about the specific differences between defendant and DM ’ s interview body language and behavior. Newman testified that avoiding eye contact was typical of victims and that abuse victims sometimes “ feel ashamed. ” When asked what inference he made from DM ’ s lack of eye contact with him, he repl ied, “ [t]hat she was confused and she was ashamed. ” He also stated that D M said that defendant was “ her buddy ” and she did not want to get him in trouble. Newman ’ s testimony did not express an opinion regarding D M ’ s truthfulness or the veracity of her al legations. The only inference that Newman drew from D M ’ s avoidance of eye contact and indication of shame was that she was confused and felt ashamed. He did not opine that confusion and shame were indicia of truthfulness, or even that- 4

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they were consisten t with truthfulness. Indeed, shame and confusion could be consistent with either truthful or untruthful accusations.

Raleigh testified that victims who had been repeatedly assaulted usually have difficulty specifying how many assaults occurred. She also stated that it was not uncommon for a child victim to “ cling to the abuser ” and “ want more attention from ” the abuser. T his testimony is not comparable to Cottrell ’ s testimony in Thorpe that children rarely lied about a sexual assault , and those who do ar e usually motivated by a hope to obtain a benefit. Cottrell ’ s testimony was tantamount to an affirmation that the complainant was truthful. Raleigh ’ s testimony indicated that two characteristics

— inability to specify frequency of recurring assaults and de sire for attention from the alleged abuser

— are not uncommon in child sexual abuse cases. The focus of her testimony involved characteristics of sexual abuse victims generally , not the veracity of D M ’ s allegations or a likelihood that D M actually suffered abuse. Unlike in Thorpe , Raleigh did not offer a statistical percentage of victims who testify truthfully or falsely. Raleigh ’ s testimony is also distinguishable from Dr. Simms ’ s testimony in Harbison because she never opined that D M

w as truthful or offered a diagnostic opinion of the likelihood of abuse. We therefore conclude that Thorpe and Harbison do not affect the analysis in Part III of this Court ’ s original opinion.

Part IV of this Court ’ s opinion addressed defendant ’ s argument that Raleigh and Newman improperly bolstered D M ’ s credibility. We previously determined that Newman ’ s testimony that D M appeared to be ashamed and confused was not a pronouncement on her credibility. Nothing in Thorpe/Harbison alters this conclusion.

We also previously concluded that “ Raleigh ’ s testimony that DM ’ s demeanor and posture during her interview was typical of victims did not constitute vouching for DM ’ s credibility because Raleigh did not associate DM ’ s demeanor and behavior with credibility

. ” Manwell

, supra , at 8. There is n othing in Thorpe/Harbison that requires a different finding . Raleigh did not state that she found D M credible, or even that she substantiated the allegations of abuse. And, any potential prejudice of Raleigh ’ s challenged testimony derived from the potential for a jury to infer that Raleigh must have believed that D M was abused because the case had proceeded to trial. The Court in Thorpe/Harbison did not address this type of inference. Further, to the extent that Raleigh ’ s testimony created a risk that the jury might make that inference, defendant ’ s substantial rights were protected by defense counsel ’ s cross

- examination of Raleig h

, whereby she conceded that she did not know if D M ’ s allegations were truthful, and by the trial court ’ s jury instructions on the presumption of innocence and that “ [t]he fact that the Defendant is charged with a crime and is on trial is not evidence

. ”

The remainder of Raleigh ’ s testimony that defendant challenges on appeal involved
t estimony either elicited by defense counsel or permissible testimony concerning characteristics of victims of sexual abuse. For example, i t was the defense theory that D M ’ s inability to specify the number of incidents of sexual abuse supported its content ion that D M was fabricating the allegations, and that D M ’ s continued close association with defendant refuted her claim that defendant was sexually abusing her. Thorpe does not affect this Court ’ s conclusion that defendant cannot claim relief on the basis of testimony that defense counsel elicited from witnesses. Moreover, t he prosecutor was permitted to respond to specific defense allegations by introducing evidence that these behaviors were not inconsistent with that of an actual victim of sexual abuse. Raleigh ’ s testimony about victims’ difficulty in quantifying the frequency of abuse did not bolster- 5

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DM ’ s credibility, but refuted the suggestion that this difficulty indicated fabrication. Importantly, Raleigh did not state or imply that she made any observation or conclusion that validated D M ’ s allegations as truthful. Raleigh did not state that D M was credible because sh e sat with her head lowered and had difficulty speaking. She merely stated that these behaviors are typical in children reporting abuse. Likewise, her testimony about victims ’ devotion to their abusers refuted an inference of fabrication without vouching for DM ’ s truthfulness.

In sum, neither Newman ’ s nor Raleigh ’ s testimony run afoul of the principles set forth in Thorne/Harbison

. D efendant has thus fail ed to establish plain error affecting his substantial rights.

Affirmed.

/s/ Kathleen Jansen /s/ Debo rah A. Servitto /s/ Douglas B. Shapiro