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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UNPUBLISHED

December 11, 2018

v No. 335911

Macomb Circuit Court

HILARY MARTINE ULP, LC No. 2015-003612-FC

Defendant-Appellant.

Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.

PER CURIAM.

Defendant appeals as of right her jury trial conviction of first-degree child abuse, 

MCL 750.136b(2). We affirm.

This case arises from injuries sustained by a 14-month old child, NK, in May 2015. At 

the time, defendant was in a dating relationship with NK’s father. On May 14, 2015, defendant 

babysat NK from 7:30 p.m. to 10:30 p.m. at the father’s house while the father was away playing

cards. The father returned at 10:30 p.m., and defendant spent the night at the father’s home. The 

next morning, the father awoke to cries from NK. When the father picked NK up out of his crib, 

NK’s body was stiff and his head fell backwards. Defendant called 911, and NK was transported 

to the emergency room. NK’s injuries included fractured ribs, a fractured pelvis and collarbone, 

subdural hematoma (brain bleeding), petechiae (burst blood vessels), and retinal hemorrhaging 

(bleeding in the back of the eyes).

I. SUFFICIENCY OF THE EVIDENCE

On appeal, defendant first argues that the evidence was insufficient to convict her of 

first-degree child abuse because the evidence suggested that NK’s father, not defendant, abused 

NK. To support her argument, defendant points to evidence that NK was in the sole care of the 

father from 2:30 a.m. to 9:00 a.m., the father was alone with NK at 9:00 a.m. when NK started 

crying inconsolably, and NK did not have petechiae on his face until emergency medical services 

(EMS) arrived.

This Court reviews de novo a challenge to the sufficiency of the evidence. People v 

Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). The evidence is reviewed in a light 

most favorable to the prosecutor to determine whether a rational trier of fact could find the 

essential elements of the crime were proven beyond a reasonable doubt. People v Robinson, 475 
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Mich 1, 5; 715 NW2d 44 (2006). It is the role of the trier of fact to weigh evidence and evaluate 

the credibility of witnesses. People v Kanaan, 278 Mich App 594, 618-619; 751 NW2d 57 

(2008).

Defendant does not argue that the evidence was insufficient to support any element of her 

conviction of first-degree child abuse. Rather, defendant argues that the evidence was 

insufficient to prove beyond a reasonable doubt that she, and not NK’s father, abused the child.

Identity is an element of every crime, and like all elements, the prosecution must prove 

the perpetrator’s identity beyond a reasonable doubt. People v Yost, 278 Mich App 341, 356; 

749 NW2d 753 (2008). Direct testimony, circumstantial evidence, and the reasonable inferences 

arising from circumstantial evidence may provide satisfactory proof of the elements of an 

offense. People v Johnson, 146 Mich App 429, 434; 381 NW2d 740 (1985). This includes the 

identity of the perpetrator. People v Kern, 6 Mich App 406, 409-410; 149 NW2d 216 (1967).

The evidence presented at trial was sufficient for a reasonable jury to conclude that 

defendant committed first-degree child abuse in violation of MCL 750.136b(2). The evidence 

established that NK was in defendant’s sole care from 7:30 p.m. to 10:30 p.m. on May 14, 2015. 

No one else was present with NK during that time. After NK’s father returned, only defendant, 

NK’s father, and NK were home from 10:30 p.m. until 9:00 a.m. the next day. When defendant 

was interviewed by the police, she gave several explanations as to how NK may have gotten hurt 

while he was in her care. Defendant said that NK fell over while sitting on the floor and hit his 

head, she tossed him up in the air and caught him, she hugged him tightly, and he fell off the 

changing table and possibly hit the shelves, rocking chair, or toys on the floor. Although 

defendant denied hurting NK, Detective Matthew Hambright specifically asked defendant if she 

was present when NK was injured, and defendant said yes.

NK’s injuries included fractured ribs, a fractured pelvis and collarbone, brain damage, 

petechiae, and retinal hemorrhages. There were possible signs of NK’s injuries before 9:00 a.m.

the day after defendant watched NK and he began crying inconsolably. Defendant told the 

detectives that, at some point, she went to check on NK and his lips were tight and he would not 

take a bottle. When the father arrived home at 10:30 p.m., NK had rough, labored breathing. Dr. 

Marcus DeGraw, the prosecution’s expert witness, testified that both muscle tightness and 

labored breathing were consistent and indicative of NK’s injuries. Although Dr. DeGraw 

testified that NK would have been in a lot of pain at the time the injuries were inflicted, he also 

said that the pain would be less if NK’s body was not manipulated. The father testified that he 

did not move NK’s body at 10:30 p.m. when he applied baby Vick’s to help NK’s rough 

breathing, or at 2:00 a.m. when he looked at NK in his crib to make sure his chest was rising and 

falling.

The direct testimony, circumstantial evidence, and the reasonable inferences arising from 

that evidence provide satisfactory proof that defendant was the perpetrator of this crime. She 

was alone with NK from 7:30 p.m. to 10:30 p.m., and gave several accounts of possible ways 

that NK may have sustained his injuries. Based on this evidence, a reasonable jury could have 

concluded beyond a reasonable doubt that defendant was the perpetrator of NK’s abuse. 

Because defendant does not challenge whether the elements of first-degree child abuse were met, 

the evidence was sufficient to support defendant’s conviction.
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Defendant makes several arguments on appeal that the father, rather than defendant,

caused NK’s injuries. When reviewing whether evidence was sufficient to support a defendant’s 

conviction, we do not require that the prosecution disprove every reasonable theory consistent 

with innocence, People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000), and instead only 

review “whether there was sufficient evidence to justify a rational trier of fact in finding guilt 

beyond a reasonable doubt,” People v Hampton, 407 Mich 354, 356; 285 NW2d 284 (1979). 

When reviewing the evidence, conflicts in fact are to be viewed in a light most favorable to the 

prosecution. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992).

Defendant’s arguments—that NK’s father was the abuser because (1) he had sole care of 

NK from 2:30 a.m. to 9:00 a.m., (2) he was alone with NK at 9:00 a.m. when NK started crying 

inconsolably, and (3) there was no testimony that NK had petechiae before 9:00 a.m.—all lend 

support to her theory that NK’s father abused NK. But this evidence was presented to the jury 

and argued by defendant’s trial counsel, and the jury rejected the argument that NK’s father was 

the perpetrator of the abuse. While defendant’s arguments support her theory of innocence, her 

arguments do not contradict that she had sufficient opportunity alone with NK to perpetrate the 

abuse and that NK suffered symptoms—namely rough, labored breathing and muscle tightness—

before 9:00 a.m. that were consistent and indicative of NK’s injuries. In other words, a 

reasonable jury could still find beyond a reasonable doubt that defendant abused NK in the face 

of defendant’s contradictory evidence. See Nowack, 462 Mich at 400 (“[T]he prosecution is 

bound to prove the elements of the crime beyond a reasonable doubt. It is not obligated to 

disprove every reasonable theory consistent with innocence to discharge its responsibility; it 

need only convince the jury in the face of whatever contradictory evidence the defendant may 

provide.”) (Quotation marks and citation omitted.)

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, defendant argues that she was denied effective assistance of counsel because her 

trial counsel failed to (1) consult or call a medical expert, (2) impeach the prosecution’s expert 

for misrepresenting facts, (3) have defendant undergo a psychological evaluation, and (4) object 

to the emergency room physician’s testimony. We disagree.

After defendant filed her claim of appeal, this Court remanded for a Ginther1 hearing and 

a decision as to whether defendant was denied effective assistance of counsel.2 An evidentiary 

hearing was held, and the trial court entered an order concluding that defendant could not 

establish that she was denied effective assistance of counsel at trial.

Claims of ineffective assistance are mixed questions of law and fact. People v Ackley, 

497 Mich 381, 388; 870 NW2d 858 (2015). “A judge must first find the facts, then must decide 

whether those facts establish a violation of the defendant’s constitutional right to the effective 

assistance of counsel.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011) 

 1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

2 People v Ulp, unpublished order of the Court of Appeals, entered June 18, 2018 (Docket No. 

335911).
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(quotation marks and citation omitted). Appellate courts review the trial court’s findings of fact 

for clear error, and review questions of constitutional law de novo. People v Trakhtenberg, 493 

Mich 38, 47; 826 NW2d 136 (2012). “Clear error exists if the reviewing court is left with a 

definite and firm conviction that the trial court made a mistake.” Armstrong, 490 Mich at 289.

“In order to obtain a new trial, a defendant must show that (1) counsel’s performance fell 

below an objective standard of reasonableness and (2) but for counsel’s deficient performance, 

there is a reasonable probability that the outcome would have been different.” Trakhtenberg, 

493 Mich at 51. Effective assistance is “strongly presumed,” People v Vaughn, 491 Mich 642, 

670; 821 NW2d 288 (2012), and the defendant bears the burden of proving otherwise, People v 

Hampton, 176 Mich App 383, 385; 439 NW2d 365 (1989). Counsel’s performance cannot be 

judged with the “benefit of hindsight.” People v Unger, 278 Mich App 210, 242-243; 749 

NW2d 272 (2008).

Trial counsel has wide discretion regarding trial strategy “because counsel may be 

required to take calculated risks to win a case.” People v Heft, 299 Mich App 69, 83; 829 NW2d 

266 (2012). A court cannot substitute its judgment for that of trial counsel concerning matters of

trial strategy. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). There is a 

strong presumption that trial counsel’s performance was strategic, Unger, 278 Mich App at 242, 

and defendant bears the burden of overcoming this presumption, People v Horn, 279 Mich App 

31, 39; 755 NW2d 212 (2008). The fact that a trial strategy fails does not mean that its use 

constitutes ineffective assistance of counsel. People v Petri, 279 Mich App 407, 412; 760 NW2d 

882 (2008). But the strategy must, in fact, be sound; a court must not insulate the review of 

counsel’s performance by calling it trial strategy. People v Douglas, 496 Mich 557, 585; 852 

NW2d 587 (2014).

A. FAILURE TO CONSULT WITH OR CALL A MEDICAL EXPERT

First, defendant argues that she was denied effective assistance because trial counsel 

failed to consult with a medical expert to review the medical records. Defendant asserts that a 

medical expert was particularly important in this matter because the prosecution’s theory of the 

cause of NK’s injuries is a highly contested and untested hypothesis. Yet defendant failed to 

offer any proof that trial counsel did not consult with an expert or properly investigate the 

medical issues. More to the point, at the Ginther hearing, defendant’s trial counsel testified that 

he consulted with Dr. Steven Guertin on this case. Trial counsel turned over all of NK’s medical 

records that were in counsel’s possession to Dr. Guertin, and after reviewing the records, Dr. 

Guertin concluded that NK’s injuries were the result of child abuse. Trial counsel consulted with 

Dr. Guertin on four or five occasions before trial, but did not call Dr. Guertin as a matter of trial 

strategy because (1) counsel believed that he could get the same information from Dr. DeGraw 

on cross-examination and (2) Dr. Guertin opined that the prosecution’s cross-examination of him 

could be detrimental to defendant. Defendant’s argument that trial counsel was ineffective for 

failing to consult a medical expert is therefore factually inaccurate. As for defendant’s argument 

that trial counsel was ineffective for failing to call an expert to testify, we note that decisions 

regarding whether to call a witness are generally a matter of trial strategy, Horn, 279 Mich App 

at 39, and trial counsel explained his strategic reason for not calling the expert he consulted. 

Defendant’s arguments fail to overcome the strong presumption that this decision was reasonable 

trial strategy.
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Defendant alternatively contends that trial counsel was ineffective for failing to consult 

and call a different medical expert who could have provided more favorable testimony. 

Defendant analogizes this case to Ackley, 497 Mich at 389-390, in which our Supreme Court 

found that trial counsel was objectively unreasonable when it consulted only a single expert after 

that expert told counsel that he “disagreed with the defense’s theory” of the case and advised 

counsel to consult a different expert who “was significantly more likely to agree with” the 

defense’s theory.

We agree with the trial court that this case is distinguishable from Ackley because Dr. 

Guertin did not advise trial counsel that he disagreed with the defense’s theory of the case or that 

trial counsel should consult a different expert. As noted by our Supreme Court in Ackley, an 

attorney’s selection of an expert witness may be a “paradigmatic example of trial strategy,” so 

long as it is made after a thorough investigation of the law and facts. Id. at 390-391 (quotation 

marks and citation omitted). Here, there is nothing to suggest that defendant’s trial counsel’s 

decision to not consult a different expert was objectively unreasonable; Dr. Guertin advised 

counsel that NK’s injuries were indicative of abuse and did not recommend that trial counsel 

consult another expert. Based on trial counsel’ consultation with Dr. Guertin, it was objectively 

reasonable for trial counsel to proceed on an alternative-perpetrator defense, especially in light of 

the circumstantial evidence that NK’s father could have abused NK. Though this strategy was 

unsuccessful, it was still objectively reasonable. Petri, 279 Mich App at 412.

B. FAILURE TO IMPEACH THE PROSECUTION’S MEDICAL EXPERT

Defendant argues at length that trial counsel was ineffective for failing to impeach the 

testimony of the prosecution’s expert witness for inconsistencies in or misrepresentations of

NK’s medical records. When defendant filed her post-conviction motions for appointment of an 

expert and supplemental discovery, Dr. Douglas Smith, defendant’s proposed expert in 

pathology, had reviewed NK’s medical records and the trial transcript. Defendant’s motions, as 

well as her arguments on appeal, are based on Dr. Smith’s “rebuttals” of the evidence presented 

at trial by Dr. DeGraw. Dr. Smith recommended that other specialized physicians review NK’s

records to determine whether defendant was prejudiced by trial counsel’s alleged failure to 

thoroughly review the medical evidence. Based on the inconsistencies that Dr. Smith 

discovered, defendant alleges that her trial counsel was ineffective for failing to impeach Dr. 

DeGraw on the inconsistencies between his testimony and the medical records.

Defendant’s entire argument on this claim is premised on her belief that she could have 

proceeded with a different defense at trial: rather than arguing that defendant was not NK’s 

abuser, trial counsel could have argued that NK was not abused at all. Trial counsel’s failure to 

call a witness or present evidence only constitutes ineffective assistance if it deprives the 

defendant of a “substantial defense” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 

(2012). A defense is substantial if it might have made a difference in the outcome at trial. 

People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009).

The inconsistencies or errors found by Dr. Smith are not significant enough to 

demonstrate that the outcome at trial would have been different had trial counsel further 

investigated the medical evidence, called an expert witness to rebut Dr. DeGraw, or impeached

Dr. DeGraw. To begin, defendant takes issue with Dr. DeGraw’s testimony that a CAT scan 

“showed” a subdural hematoma, which Dr. DeGraw explained was a pocket of blood between 
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the brain and the skull. Defendant’s expert, Dr. Smith, noted that the CAT scan had to be done 

twice, and that the CAT scan report stated that “there is evidence that is very suggestive of a 

subdermal hematoma.” (Emphasis added). While the jury may have agreed with defendant’s 

argument that there is a distinction between NK’s CAT scan “showing” a subdural hematoma 

and being “very suggestive of” one, that distinction does not support that NK was not abused. 

And even had trial counsel impeached Dr. DeGraw on his use of the word “showed” instead of 

stating that the CAT scan was “very suggestive,” there is no reasonable expectation that it would 

have affected the outcome of the proceedings; either word choice means that the CAT scan 

evidenced that NK had a subdermal hematoma.

Defendant next argues that trial counsel should have taken issue with Dr. DeGraw’s 

testimony that he did not personally observe retinal hemorrhaging in NK, and relied upon the 

report of an ophthalmologist. Dr. Smith asserted that NK’s retinal hemorrhages could have been 

caused by the two neurosurgeries that were performed after NK was admitted. Defendant 

contends that trial counsel should have relied on this fact to bring into question whether the 

retinal hemorrhaging was due to trauma before NK was admitted to the ER. Yet this would have 

been futile because Dr. Sills testified that when NK arrived in the ER, he used an 

ophthalmoscope to look into NK’s eyes and saw bleeding in the back of the eyes. Defense 

counsel was not ineffective for failing to impeach Dr. DeGraw’s testimony about NK’s retinal 

hemorrhages because the same evidence would have been presented later through Dr. Sills’s 

testimony.3

Defendant also argues that trial counsel should have impeached Dr. DeGraw when he 

testified that petechiae are only caused by a low platelet count or compressive force. Dr. Smith 

disputed this conclusion and asserted that petechiae can be caused by seizures, which NK likely 

had before coming to the ER. We acknowledge these alleged discrepancies, but note that the 

petechiae were only one of NK’s “constellation of injuries.” According to Dr. DeGraw, when 

these injuries were viewed in conjunction, they were highly indicative of trauma and abuse. On 

this basis, we conclude that defense counsel was not ineffective for failing to impeach Dr. 

DeGraw on petechiae’s causes because it would not have changed the outcome at trial.

As for NK’s fractures, defendant asserts that trial counsel should have consulted with a 

radiologist because the CAT scans and X-rays did not conclusively determine that NK had some 

of the fractures mentioned by Dr. DeGraw. Dr. Smith did not have access to the X-rays and 

 3 Defendant attempts to downplay Dr. Sills’s observations by arguing that Dr. Sills did not 

provide detail about the hemorrhaging, which defendant contends is an issue because there are 

different types of retinal hemorrhaging and “[a]ppropriately categorizing the retinal hemorrhage 

is a tantamount step in the diagnosis of the patient’s condition.” Although defendant names 

several different types of retinal hemorrhages, she does not explain why “categorizing the retinal 

hemorrhage is a tantamount step in the diagnosis of the patient’s condition,” or even what type of 

retinal hemorrhaging is indicative of abuse and which, if any, is not. “An appellant may not 

merely announce his position and leave it to this Court to discover and rationalize the basis for 

his claims, nor may he give only cursory treatment with little or no citation to support authority.” 

People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998).
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CAT scans, so he based his opinions on the medical records of those tests. Dr. Smith opined that 

later X-ray reports of NK’s fractures did not discuss healing of the fractures, which Dr. Smith 

believed would have been discussed if the injuries were, in fact, fractures. Dr. Smith also 

pointed out that NK’s medical records indicated that the fractures to NK’s right anterior iliac 

wing and ribs were “poorly visualized,” and questioned whether a fracture to the right anterior 

iliac wing would even be indicative of abuse. Lastly, Dr. Smith opined that NK’s fractured 

clavicle may have been an old injury or a bone malformation because NK’s medical records 

described the fracture as having rounded edges, which Dr. Smith explained could be suggestive 

of a prior injury. We recognize that Dr. Smith’s review of NK’s fractures was significantly 

handicapped by his lack of access to NK’s CAT scans and X-rays and his being forced to base 

his review off NK’s medical records. Yet nothing in those records, as explained by Dr. Smith,

suggests that NK did not actually suffer from the injuries described by Dr. DeGraw. At most, 

Dr. Smith’s analysis proposes that trial counsel could have asked more questions about NK’s 

fractures. This in turn does not suggest that NK’s fractures were not present; for instance, 

defendant does not explain why a “poorly visualized” fracture is in anyway indicative of the 

fracture not existing. Nothing about Dr. Smith’s analysis of NK’s medical records supports that 

NK did not suffer from the injuries described by Dr. DeGraw at trial. Dr. DeGraw testified that 

NK’s injuries were indicative of inflicted or abusive trauma. Even if trial counsel impeached Dr. 

DeGraw on the points raised by defendant on appeal, it would not have tended to contradict Dr. 

DeGraw’s testimony that NK suffered from injuries and that those injuries were indicative of 

abuse. Thus, trial counsel’s impeachment would not have made a difference in the outcome at 

trial, and trial counsel’s failure to impeach Dr. DeGraw on NK’s fractures did not amount to 

ineffective assistance. Chapo, 283 Mich App at 371.

4

Overall, defendant did not dispute that NK was severely injured. Dr. DeGraw and Dr. 

Sills concluded that NK’s injuries, taken as a whole, were not an accident; his injuries were 

probative of child abuse. Dr. DeGraw testified that defendant’s explanations for how NK may 

have been injured did not correlate to the severity of his injuries. NK’s injuries were not at issue 

for the jury, but rather, at issue was the identity of the perpetrator. Thus, defendant has failed to 

demonstrate that trial counsel was ineffective for failing to impeach Dr. DeGraw or consulting 

with other specialized physicians.

Lastly, defendant briefly contends that trial counsel was ineffective for failing to obtain 

additional records for experts to review. Defendant argues that additional records could have 

provided a fuller picture of the causes of NK’s injuries and that she was precluded from 

obtaining the records to review for this appeal because trial counsel failed to originally obtain 

 4 Defendant also briefly contends that trial counsel was ineffective for failing to question Dr. 

DeGraw at trial about the fact that drainage from NK’s nasogastric tube was noted as “coffee 

grounds.” Dr. Smith believed that this fact raised the possibility that NK “was slowly bleeding 

from somewhere.” Yet defendant does not explain the significance of this fact or how it would 

have tended to impeach Dr. DeGraw or otherwise provide favorable evidence to defendant. “An 

appellant may not merely announce his position and leave it to this Court to discover and 

rationalize the basis for his claims, nor may he give only cursory treatment with little or no 

citation to support authority.” Kelly, 231 Mich App at 640-641.
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them. At the Ginther hearing, trial counsel testified that he gave all of the medical records that 

he had to Dr. Guertin. Trial counsel believed that Dr. Guertin would request additional records if 

he needed them, and stated that Dr. Guertin did not require any additional records because he 

was able to render his expert opinion based on the records provided. Based on trial counsel’s 

consultation with Dr. Guertin, we believe that it was objectively reasonable for trial counsel to 

not request additional records, and therefore defendant is not entitled to a new trial on this 

ground.

C. FAILURE TO CONSULT A FORENSIC PSYCHOLOGIST

Defendant alleges that trial counsel was ineffective for failing to have a forensic 

psychologist review the recorded interrogations of defendant. In support of defendant’s

postjudgment motion for expert assistance, defendant’s appellate counsel had Dr. Jeffrey Wendt, 

a forensic psychologist, review the interrogations. Dr. Wendt concluded that defendant’s 

“statements and demeanor during the interview provided indications that there were likely 

psychological factors and situational factors that rendered her significantly more vulnerable to 

interpersonal influence than the average adult.” Dr. Wendt opined that a psychological 

evaluation of defendant would have been beneficial to the trier of fact to understand how 

defendant’s statements and behavior were influenced during the interrogations. On appeal, 

defendant argues that the testifying detectives “cherry-picked” defendant’s statements from the 

interrogations and took them out of context to suggest that defendant made admissions against 

interest.

Defendant does not allege that the statements she made during her interviews with the 

detectives were involuntary. Rather, she argues that her trial counsel was ineffective because he 

did not have a forensic psychologist review the interrogation videos or have defendant undergo a 

psychological evaluation, which may have supported the conclusion that she was influenced into 

admitting that she injured NK.

5

 At the Ginther hearing, defendant’s trial counsel explained that 

he did not consult a forensic psychologist because defendant never confessed. This is supported 

by the record and the video of defendant’s interrogations: defendant never confessed to injuring 

NK. She gave several inconsistent explanations for how NK may have sustained his injuries 

while in defendant’s care, but she repeatedly denied ever intentionally hurting NK. Even when 

the detectives employed interview techniques like falsely telling defendant that they had 

evidence directly linking her to NK’s injuries, defendant continued to deny any abuse. Based on 

trial counsel’s explanation, we do not believe that it was objectively unreasonable for counsel to 

not consult a forensic psychologist to explain defendant’s behavior. We would also note that, at 

best, a forensic psychologist could have explained that defendant was susceptible to influence, 

which may explain why she made some statements that, as she words it on appeal, “sounded like 

circumstantial evidence of guilt.” Yet in so doing, trial counsel and the forensic psychologist 

would have to highlight for the jury those statements that “sounded like circumstantial evidence 

 5 The interrogation videos were not played at trial or admitted as exhibits. Rather, they were

filed with this Court by defendant as exhibits to her brief on appeal and motion to remand. The 

videos were not a part of the lower court record, but they were reviewed and determined to be

fairly and accurately described by the testifying detectives at trial.
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of guilt.” We find that it was sound trial strategy for trial counsel to not highlight for the jury 

that defendant made statements that could be interpreted as incriminating, and to instead focus 

on the fact that defendant continually denied ever abusing NK. See Vaughn, 491 Mich at 670 

(stating that courts reviewing an ineffective assistance claim must affirmatively entertain the 

range of possible reasons counsel may have had for proceeding as they did).6

D. FAILURE TO IMPEACH EMERGENCY ROOM PHYSICIAN

Defendant argues that trial counsel was ineffective because he did not object to Dr. Sills’s 

testimony, which allegedly misinterpreted a CAT scan and referred to “studies” even though Dr. 

Sills was not endorsed as an expert.

On the witness stand, Dr. Sills looked at a CAT scan report to refresh his memory, and 

then testified that NK had a subdural hemorrhage. Defendant asserts that trial counsel should 

have objected because the medical records were only “very suggestive” of a subdural hematoma. 

By the time Dr. Sills testified, the jury had already heard Dr. DeGraw’s testimony that NK had a 

severe brain injury indicative of nonaccidental trauma, including a CAT scan that “showed” a 

subdural hemorrhage. For the same reasons that trial counsel was not ineffective for not 

objecting to Dr. DeGraw’s testimony, trial counsel’s lack of objection to Dr. Sills’s testimony

does not amount to ineffective assistance.

About the cause of NK’s petechiae, Dr. Sills testified:

What we found in studies is probably what we call shaking impact[], it’s a 

combination of not only, it can be just rapid acceleration/deceleration many times. 

It can be acceleration/deceleration to an actual object like an, even a pillow. Just 

to stop it suddenly, a shaking impact from someone hitting something in the back. 

You won’t see any bruise or swelling back there. It is all in the brain. They have 

very fragile blood vessels in the brain at this age.

Defendant argues that trial counsel was ineffective for not objecting to Dr. Sills’s opinion that 

NK’s brain injuries were caused by shaking because Dr. Sills was not endorsed as an expert, and 

for failing to ask which studies Dr. Sills relied on to render his opinion. Assuming that trial 

counsel could have successfully objected to Dr. Sills’s testimony as to the cause of NK’s 

petechiae and his reliance on unidentified studies, the objection would not have changed the 

outcome of trial. Before Dr. Sills testified, Dr. DeGraw explained what petechiae are and how 

 6 In her second motion to remand for an evidentiary hearing, defendant argued that trial counsel 

was ineffective for failing to play the interrogation video for the jury. Defendant chose not to 

raise this claim in either of her briefs before or after this Court’s remand. Although this issue is 

not properly before this Court, we nonetheless note our agreement with the trial court that trial 

counsel was not ineffective for not playing defendant’s interrogation video to the jury. Trial 

counsel testified at the Ginther hearing that he believed that it was not in defendant’s best 

interests to play the video for the jury because defendant did not present well. We see nothing 

objectively unreasonable about this strategy.
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they are caused. He explained that petechiae can be caused by sustained compressive force, and 

that compressive force was consistent with NK’s other injuries, such as his broken ribs. Even 

ignoring Dr. Sills’s testimony, the evidence presented at trial was still that NK’s injuries were 

indicative of abuse. Because it would not have changed the outcome of trial, trial counsel’s 

failure to object to Dr. Sills’s testimony does not amount to ineffective assistance.7

III. POSTJUDGMENT MOTIONS

In her final argument, defendant contends that the trial court abused its discretion by 

denying her postjudgment motion for expert assistance and supplemental discovery. We 

disagree. This Court reviews a trial court’s decision whether to grant an indigent defendant’s 

motion for the appointment of an expert at public expense for an abuse of discretion. People v 

Bergman, 312 Mich App 471, 488; 879 NW2d 278 (2015). This Court also reviews a trial court 

decision related to a discovery request for an abuse of discretion. People v Fink, 456 Mich 449, 

458; 574 NW2d 28 (1998). A court abuses its discretion when its chosen outcome falls outside 

the range of reasonable and principled outcomes. Unger, 278 Mich App at 217.

Defendant filed her claim of appeal on November 28, 2016. Defendant filed her motions 

for expert assistance and supplemental discovery on August 1, 2017, arguing that expert review 

of several additional documents was necessary to assist defendant on appeal. The prosecution 

responded that defendant was not entitled to discovery or an expert at public expense as 

defendant already proceeded to trial. The trial court issued an opinion and order denying 

defendant’s motions.

Defendant filed additional motions for expert funding and supplemental discovery in the 

trial court after the case was remanded. The trial court held a hearing on these motions, and 

issued an opinion and order denying defendant relief. Although the trial court determined that 

the motions were, arguably, inside the scope of the remand, it nonetheless denied defendant’s 

motions for the same reasons that it previously denied the motions. The trial court relied on 

MCR 7.208(B)(1), which provides:

 7 In her second motion to remand for an evidentiary hearing, defendant argued that trial counsel 

was ineffective for failing to allow defendant or her mother to testify at trial. Defendant chose 

not to raise this claim in either of her briefs before or after this Court’s remand. Although the 

issue is not properly before this Court, we note our agreement with the trial court that trial 

counsel was not ineffective for not calling defendant or her mother. Trial counsel testified that it 

was defendant’s choice not to testify, and he considered calling defendant’s mother as a witness 

but ultimately determined that it was not beneficial. There is nothing to suggest that trial counsel 

deprived defendant of her right to testify, especially because defendant, on the record, waived 

her right to testify at trial. As for the decision to not call defendant’s mother as a witness, 

decisions on which witnesses to call are a matter of trial strategy, Horn, 279 Mich App at 39, and 

this Court does not substitute its judgment for that of trial counsel on matters of strategy, Payne, 

285 Mich App at 190.
-11-

No later than 56 days after the commencement of the time for filing the 

defendant-appellant’s brief as provided by MCR 7.212(A)(1)(a)([iii]), the 

defendant may file in the trial court a motion for a new trial, for judgment of 

acquittal, to withdraw a plea, or to correct an invalid sentence.

Defendant did not file a motion for a new trial, judgment of acquittal, to withdraw a plea, or to 

correct an invalid sentence in the trial court. MCR 7.208(B)(1). Rather, she filed postjudgment 

motions seeking an expert and discovery to aid in her appeal. Defendant provided no authority 

that would allow a trial court to decide these types of postjudgment motions, and the trial court 

noted that the cases cited by defendant did not support her position. The trial court therefore 

denied defendant’s motion because she did not move for any relief allowable in a postjudgment 

motion.

On appeal, defendant continues to not cite any authority to support her position, but 

instead argues that the trial court’s reliance on MCR 7.208(B)(1) was misplaced because 

defendant did not file any of the motions enumerated in that court rule. This is not enough. See

People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998) (“An appellant may not 

merely announce his position and leave it to this Court to discover and rationalize the basis for 

his claims, nor may he give only cursory treatment with little or no citation of supporting 

authority.”). Because defendant failed to cite any caselaw, statute, or court rule allowing the trial 

court to provide defendant with the postjudgment relief that she requests, we conclude that the

trial court did not abuse its discretion by ruling that it could not grant defendant her requested 

relief.

8

Affirmed.

/s/ Michael J. Kelly 

/s/ Patrick M. Meter 

/s/ Colleen A. O’Brien 

 8 Based exclusively on policy arguments, defendant asks this Court “to opine that current case 

law for funding for experts [for indigent defendants] extends to appeal.” We decline to do so in 

this case. Defendant’s reason for requesting expert funding was to establish an ineffective 

assistance claim. Defendant’s trial counsel already consulted an expert to assess NK’s medical 

records, and that expert did not suggest that he needed additional medical records or recommend 

that trial counsel consult a different expert. As explained, in light of trial counsel’s consultation 

with his expert, it was not objectively unreasonable for trial counsel to not consult a different 

expert or request additional medical records. Even if defendant were granted additional funding, 

it would, at best, allow defendant to find experts to testify on how trial counsel could have 

proceeded differently. But simply because trial counsel could have proceeded differently does 

not mean his performance was objectively unreasonable. After consulting with his expert, trial 

counsel proceeded with an alternative-perpetrator strategy. That strategy was entirely reasonable 

given the facts of this case.