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- Appellee, UNPUBLISHED

May 21, 2019

v No. 339726

Shiawassee Circuit Court

BRIAN JOSEPH BACKUS, LC No. 16

- 008412

- FC

Defendant

- Appellant.

Before: S WARTZLE

, P.J., and M. J. K ELLY and T UKEL

, JJ.

P ER C URIAM

.

D efendant was convicted by a jury of five counts of first

- degree criminal sexual conduct,

MCL 750.520b( 1)(b) (victim less than 13 years old), and was sentenced by the trial court to

serve concurrent terms of 50 to 75 years in prison. On remand from this Court, see People v

Backus , unpublished order of the Court of Appeals, entered February 28, 2018 (Docket No.

339726), the trial court denied defendant’s motion for new trial , which was based on claims of

ineffective assistance of counsel. Defendant appeals as of right. We affirm.

I

. BACKGROUND

The complainant is defendant ’s adopted child. I n January 2016, the complainant, who

was 15 years old at the time of trial, gave his mother a letter he had written in which he stated

that defendant had been sexually assaulting him for the past five years. The complainant

testified at trial that defenda nt began forcing him to have anal and oral sex when he was about 8

years old, and that the assaults had continued until he was about 13 years old. The complainant’s

older brother likewise testified that when he was about 11 years old, defendant beg a n touc hing

his genitals and forcing him to have oral sex , and that when he got older, defendant force d him to

have anal sex

. The complainant’s brother testified that defendant’s assaults continued until the

year before trial.

II

. ANALYSIS

Defendant initially raised several different arguments concerning the ineffective

assistance of counsel. Defendant argue d that his trial attorneys were ineffective because they- 2

- failed to file a motion to suppress his incriminating statements to police, failed to investigate

exculpatory evidence, failed to consult a handwriting expert, and failed to object to testimony

from the prosecutor’s expert witness. At oral argument before this Court, however, defendant

waived all of his ineffective

- assistance arguments except two: the claim based on his trial

attorneys’ failure to file a motion to suppress incriminating statements , and the claim based on

his trial attorneys’ failure to object to testimony from the expert witness

. We will not consider

the arguments that defendant raise d and subsequently waived. “One who waives his rights under

a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver

has extinguished any error.” People v Carter , 462 Mich 206 , 215 ; 612 NW2d 144 (2000)

(cleaned up)

. As explained below, w e conclude that defendant’s remaining ineffective

assistance

- of

- counsel claim s are without merit.

A. STANDARD OF REVI EW

To establish a claim of ineffective assistance of counsel, a defendant must prove that

defense co unsel’s performance was objectively unreasonable in light of prevailing professional

norms and that, but for counsel’s error, it is reasonably probable that the outcome would have

been different. Strickland v Washington , 466 US 668, 688, 694; 104 S Ct 205 2; 80 L Ed 2d 674

(1984); People v Pickens , 446 Mich 298, 302

- 303; 521 NW2d 797 (1994). Effective assistance

of counsel is presumed, People v Vaughn , 491 Mich 642, 670; 821 NW2d 288 (2012), and a

defendant bears a heavy burden of proving otherwise, People v Seals , 285 Mich App 1, 17; 776

NW2d 314 (2009). In doing so, a defendant must overcome a strong presumption that the

challenged conduct might be considered sound trial strategy. People v Knapp , 244 Mich App

361, 385

- 386, 386 n 7; 624 NW2d 227 (2001). A defendant can only overcome the presumption

by showing that counsel failed to perform an essential duty and that the failure was prejudicial to

defendant. People v Hampton , 176 Mich App 383, 385; 439 NW2d 365 (1989). Counsel’s

performance must be meas ured against an objective standard of reasonableness, People v Payne

, 285 Mich App 181, 188, 190; 774 NW2d 714 (2009), and without benefit of hindsight, People v

LaVearn , 448 Mich 207, 216; 528 NW2d 721 (1995). This Court “neither substitutes its

judgment for that of counsel regarding matters of trial strategy, nor makes an assessment of

counsel’s competence with the benefit of hindsight.” People v Mutuszak , 263 Mich App 42, 58;

687 NW2d 342 (2004).

Whether a defendant received ineffective assistance o f trial counsel presents a mixed

question of fact and constitutional law. People v Grant , 470 Mich 477, 484; 684 NW2d 686

(2004). “A judge must first find the facts, then must decide whether those facts establish a

violation of the defendant’s constituti onal right to the effective assistance of counsel.” Id. This

Court reviews the trial court’s factual findings for clear error. Id. “Clear error exists if the

reviewing court is left with a definite and firm conviction that the trial court made a mistak e.”

People v Armstrong , 490 Mich 281, 289; 806 NW2d 676 (2011). We review q uestions of

constitutional law de novo. Grant , 470 Mich at 485.

B

. MOTION TO SUPPRESS DEFENDANT’S STATEMENTS

Defendant argued during the Ginther hearing that his trial attorneys were ineffective for

failing to request a Walker hearing to suppress the statements he made to police during his first

interview. Defendant contends that his statements were inadmissible and should have been- 3

- suppressed because he did not receive Miranda warnings before he made the statements, even

though he was subject to a custodial interrogation. Because we conclude that a reasonable

person in defendant’s position would have felt he was at liberty to end or leave the interview,

defendant’s statements were not made during a custodial interrogation and Miranda warnings

were not required.

“It is well settled that Miranda warnings need be given only in situations involving a

custodial interrogation.” People v Zahn , 234 Mich App 43 8, 449; 594 NW2d 120 (1999). In

determining whether a defendant was subjected to a custodial interrogation, this Court considers

“the totality of the circumstances, with the key question being whether the accused reasonably

could have believed that he was not free to leave.” Id

. Relevant factors to consider in making

this determination include “the location of the questioning, its duration, statements made during

the interview, the presence or absence of physical restraints during the questioning, and th e

release of the interviewee at the end of the questioning.” Howes v Fields

, 565 US 499, 509; 132

S Ct 1181; 182 L Ed 2d 17 (2012) (citations omitted).

Defendant asserted that his statements were made during a custodial interrogation

because he was coerced into going to the police station and because he did not feel free to leave

once he arrived there. According to defendant, when police officers arrived at his home to

execute a search warrant , one of the of ficers “grabbed” him by the arm

, pulled him to his patrol

vehicle

, forced him into the vehicle

, and locked the door before driving him to the police station.

Defendant also stated that he asked the officer whether he needed a lawyer several times, and

was told that he did not. At the police station

, according to defendant

, the officer shut the door to

the interview room and defendant believed that the door was locked.

The officer who conducted the initial interview with defendant testified that when he

m ade contact with defendant, he asked defendant whether he was willing to “freely and

voluntarily” come to the police station to have a conversation with him, and defendant agreed to

do so. The officer testified that he offered to drive defendant to the po lice station and bring him

home after the interview, but he also told defendant that he was free to drive his own vehicle

. The officer claimed that d efendant decided to ride with the officer ; the officer denied that he

locked the door to his patrol vehicl e once defendant was inside . Additionally

, the officer

claimed that the door to the interview room at the police station could not be locked. A

recording of the interview was admitted at trial

. During the interview, the officer told defendant

that he wa s free to leave at any time

, and d efendant acknowledged that he had agreed to come to

the police station freely and voluntarily.

Although defendant claims that the police interview lasted for nearly two hours, the

recording of the interview played at trial indicates that the actual length of the interview was 86

minutes, excluding a break. Even if defendant’s assessment of the length of the interview is

accurate, we do not agree that a two

- hour interview would have caused a reasonable person to

believe that he was unable to leave or unable to terminate the interview. Defendant

acknowledged that he was not handcuffed by the officers before going to the police station, and

there was no evidence that he was restra ined in any way at the police station. The interviewing

officer reiterated several times that defendant was free to leave at any point during the

questioning, and that defendant would be going home at the end of the i nterview. In addition,

during the bre ak in the interview, defendant did not request to leave or end the interview. Based- 4

- on the totality of the circumstances, we conclude that a reasonable person in defendant’s position

would have felt he was at liberty to end or leave the interview. Theref ore, defendant’s

statements were not made during a custodial interrogation and Miranda warnings were not

required . “Failing to advance a meritless argument or raise a futile objection does not constitute

ineffective assistance of counsel.” People v Erick sen , 288 Mich App 192, 201; 793 NW2d 120

(2010)

. T he trial court did not clearly err by concluding that defendant’s trial attorneys were not

ineffective for failing to file motions to suppress his statements made during his interview with

police

.

C

. EXPERT

- WITNESS TESTIMONY

Defendant next argues that trial counsel was ineffective for failing to object to testimony

from the prosecutor’s expert

- medical witness that the complainant was sexually abused by

defendant. We agree that this testimony was impr oper, but conclude that any error did not affect

the outcome of the proceedings . Additionally, we do not agree with defendant’s contention that

trial counsel was ineffective for failing to object to the expert’s testimony regarding statements

made by the complainant during the medical examination.

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

If the court determines that scientific, technical, or other specialized

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, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise if

(1) the testimony is based on sufficient facts or data, (2) the test imony is the

product of reliable principles and methods, and (3) the witness has applied the

principles and methods reliably to the facts of the case.

In child

- sexual

- abuse cases, “ (1) an expert may not testify that the sexual abuse occurred, (2) an

expert may not vouch for the veracity of a victim, and (3) an expert may not testify whether the

defendant is guilty.” People v Peterson , 450 Mich 349, 352; 537 NW2d 857 (1995). In this

case, the expert medical witness testified that in his opinion, the compla inant was abused by

defendant. This testimony clearly violated the holding in Peterson that “an expert may not

testify that the sexual abuse occurred,” and we agree that trial counsel should have object ed to

this testimony. I n light of the overwhelming e vidence of defendant ’s guilt, however, he cannot

show that the outcome of the trial would have been different absent counsel’s error. See People

v McGraw , 484 Mich 120, 142; 771 NW2d 655 (2009). T he prosecut or presented ample

evidence that defendant comm itted the offenses, including defendant’s own admissions during

two police interviews, as well as the complainant’s testimony and the “other acts” testimony of

his brother

. In light of this compelling evidence, i t is not likely that the outcome of the

proceeding would have been different, but for trial counsel’s failure to object to the expert’s

testimony.

As for the expert’s testimony regarding the complainant’s description of the sexual

assaults during the medical

- history portion of the examination , d efendant asserts that the

testimony was not prop erly admitted under the medical

- treatment hearsay exception, MRE

803(4), because the complainant’s statements were made too long after the last alleged incident- 5

- had occurred to be conside red trustworthy. Although statements made for purposes of medical

treatment may generally be admitted under MRE 803(4), this Court has held that “[i] n cases of

suspected child abuse, statements the child makes may be admitted under this exception when

the totality of circumstances surrounding the statements supports that they are trustworthy.”

People v Duenaz

, 306 Mich App 85, 95; 854 NW2d 531 (2014). Factors to be considered on the

issue of trustworthiness include:

(1) the age and maturity of the declar ant, (2) the manner in which the statements

are elicited (leading questions may undermine the trustworthiness of a statement),

(3) the manner in which the statements are phrased (childlike terminology may be

evidence of genuineness), (4) use of terminology unexpected of a child of similar

age, (5) who initiated the examination (prosecutorial initiation may indicate that

the examination was not intended for purposes of medical diagnosis and

treatment), (6) the timing of the examination in relation to the ass ault (the child is

still suffering pain and distress), (7) the timing of the examination in relation to

the trial (involving the purpose of the examination), (8) the type of examination

(statements made in the course of treatment for psychological disorder s may not

be as reliable), (9) the relation of the declarant to the person identified (evidence

that the child did not mistake the identity), and (10) the existence of or lack of

motive to fabricate. [ People v Meeboer (After Remand)

, 439 Mich 310, 324

- 325 ;

484 NW2d 621(1992) (citations omitted).]

In this case, the complainant was examined by the expert when he was 13 or 14 years old,

and he testified that the last assault occurred when he was 13 years old

. Therefore

, there was

some delay between the last

- reported incident and the examination

. Yet, a ccording to the

evidence presented, the complainant was mature enough at the time of the examination to

describe what happened to him with clarity and detail, and there was no evidence that the

statements were elicited through leading or improper questions. See id

. The examination was

initiated by C hild P rotective S ervices

, not by the prosecut or

, although it seems clear that the

purpose of the examination was to investigate the allegations rather than strictl y for medical

diagnosis and treatment. Id

. at 325. Based on the totality of circumstances surrounding the

statements, a finding that the statements were trustworthy is supported by the record. Duenaz

, 306 Mich App at 95. Moreover, in light of the overw helming evidence presented against

defendant, any error based on the admission of these statements did not affect the outcome of the

proceedings. See McGraw , 484 Mich at 142. Defendant is not entitled to relief.

Affirmed.

/s/ Brock A. Swartzle

/s/ Michael J. Kelly

/s/Jonathan Tukel