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UNPUBLISHED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: JANSEN, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

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parts III and IV of People v Manwell, unpublished per curiam opinion of the Court of Appeals, 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). We 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 236, 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 
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Cottrell the percentage of children reporting abuse whose 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 “extremely 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 preserved 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 truth.” 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 doctor. 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 findings 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 no 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 convictions 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 physical 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 
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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 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 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 substantial 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 BRICKLEY,J.), 

in which the Court stated:

[A]ny testimony about 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 specialized 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 parts 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 proceedings.” Thorpe, 504 Mich at 252-253.

We find no such error here. We first note that nothing in Thorpe affects this Court’s prior 

conclusion that Raleigh’s and Newman’s testimony was not de facto expert testimony requiring 

conformity to the requirements 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 replied, “[t]hat 

she was confused and she was ashamed.” He also stated that DM 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 DM’s truthfulness or the veracity of her allegations. The only inference that Newman 

drew from DM’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 
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they were consistent 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. This testimony is not

comparable to Cottrell’s testimony in Thorpe that children rarely lied about a sexual assault, and

those who do are 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 desire 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 DM’s 

allegations or a likelihood that DM 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 DM

was 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 DM’s credibility. We previously determined that Newman’s testimony that 

DM 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 nothing in Thorpe/Harbison that requires a different finding. Raleigh did not state 

that she found DM 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 DM 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 Raleigh, whereby she conceded 

that she did not know if DM’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

testimony either elicited by defense counsel or permissible testimony concerning characteristics 

of victims of sexual abuse. For example, it was the defense theory that DM’s inability to specify 

the number of incidents of sexual abuse supported its contention that DM was fabricating the 

allegations, and that DM’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, the 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 
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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 DM’s 

allegations as truthful. Raleigh did not state that DM was credible because she 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. Defendant has thus failed to establish plain error affecting his substantial rights.

Affirmed.

/s/ Kathleen Jansen

/s/ Deborah A. Servitto

/s/ Douglas B. Shapiro