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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 21, 2016

v No. 324389 Berrien Circuit Court DAVID WALLACE HREHA, LC No. 2013-016446-FC

Defendant-Appellant.

Before: S AAD , P.J., and B ORRELLO and G ADOLA , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of th ree counts of second-degree criminal sexual conduct, MCL 50. 520c(1)(a), and two counts of f irst-degree criminal sexual conduct, MCL 750.520b(1)(a). The victims of defendant’s crimin al sexual conduct were KH, WE, and MJ. These boys, each under the age of 13, were neighbo rs to defendant and often worked for defendant by cleani ng his yard. For the reasons bel ow, we affirm.

I. EVIDENTIARY ISSUES

A. PRIOR INCIDENTS OF SEXUAL ABUSE

On appeal, defendant first argues that the trial court erred b y excluding evidence of an incident in which WE was sexually abused by a cousin. We revie w a trial court’s evidentiary decisions for an abus e of discretion. People v Unger , 278 Mich App 210, 216; 749 NW2d 272 (2008). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Id . at 217. “Preliminary questions of law, such as whether a rul e of evidence, constitutional provision, or statute precludes the ad mission of the evidence, are reviewed de novo.” People v Jones , 270 Mich App 208, 211; 714 NW2d 362 (2006).

The rape-shield statute, MCL 750.520j, is a general exclusiona ry rule; it bars, with two narrow exceptions, all evidence of a victim’s sexual activity n ot incident to the alleged sexual assault. People v Adair , 452 Mich 473, 478; 550 NW2d 505 (1996). However, in limited circumstances, admission of evidence of a victim’s sexual activ ity may nonetheless be required to preserve a defendant’s const itutional rights, including the right of confrontation. People v Hackett , 421 Mich 338, 348; 365 NW2d 120 (1984)

. A defendant may introduce evidence of a prior incident of sexual abuse of a victim to show that the vic tim’s age-inappropriate sexual knowledge was not learned from the defendant. People v Morse , 231 Mich App 424, 436; 586-2- NW2d 555 (1998). For evidence of a prior incident to be admiss ible, however, the facts underlying the incident must be “significantly similar” to the allegations in the present case. Id

. at 437. If the facts of the pri or incident are not “significantly similar,” the exclusion of evidence regarding the prior incident doe s not violate a defendant’s rig ht of confrontation and right to present a defense. People v Duenaz , 306 Mich App 85, 90-93; 854 NW2d 531 (2014).

The incident between WE and his cousin did not embody all the sexual acts that WE claimed defendant committed against him. In the prior incident , the cousin penetrated WE’s anus with his penis. In this cas e, WE testified that defendant ’s penis penetrate d his anus, but WE also testified that defendant touched WE’s penis with his hands and that defendant put WE’s penis in his mouth and sucked it. The prior incident did not a ccount for many sexual details unique to the charged conduct, so the previous incident could n ot fully explain the knowledge displayed by WE. See Morse , 231 Mich App at 434

. Additionally, WE was 11 years old at trial, and we cannot disagree with the t rial court’s statement that it would be speculation to conclude that WE’s sexual knowledge was inappropriate for his age. See Duenaz , 306 Mich App at 93. Further, defendant must show that the prior incident resulted i n the conviction of another person. Morse , 231 Mich App at 437. Although WE’s cousin was charged in the prior incident, he was never convicted because the court dismissed the charges after f inding him incompetent to stand trial. Under these circumstances, the trial court’s decision t o exclude evidence of the incident between WE and his cousin fell w ithin the range of reasonable a nd principled outcomes.

B. CHILD’S STATEMENT ABOUT SEXUAL ABUSE

Defendant next argues that the trial court erred when it allow ed MJ’s mother to testify about a statement that MJ made while they were making a trip to Walmart with WE. According to defendant, evidence of MJ’s statement was not admissible und er MRE 803A because it was not spontaneous. We review the trial court’s decision for an a buse of discretion. Unger , 278 Mich App at 216.

“ ‘Hearsay’ is a statement, other than the one made by the dec larant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Hearsay is not admissible unless it falls within an exception t o the hearsay rule. MRE 802; People v Gursky , 486 Mich 596, 606; 786 NW2d 579 (2010). MRE 803A codified th e commonlaw “tender years” exception to the hearsay rule. People v Douglas , 496 Mich 557, 573; 852 NW2d 587 (2014). Under MRE 803A, “[a] statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declaran t during the same proceeding, provided,” in part, “the statement is shown to have been sponta neous and without indication of manufacture.” 1 “The question of spontaneity, at its essence, asks whether th e statement is the creation of the chil d or another.” Gursky , 486 Mich at 613.

1 There are several other requirements for the admission of a he arsay statement under MRE 803A. We do not address those requirements, however, because d efendant only challenges the trial court’s conclusion that MJ’ s statement to his mother was spontaneous.-3- MJ’s statement to his mother that defendant touched his privat es was the result of questioning by MJ’s mother. In Gursky , 486 Mich at 614, our Supreme Court addressed the admissibility of a child’s statement that was the result of que stioning, and held that “the mere fact that questioning occurred i s not incompatible with a rulin g that the child produced a spontaneous statement.” However, for the statement to be admis sible, “the child must broach the subject of sexual abuse, and any questioning or prompts from adults must be nonleading or openended in order for the statement to be considered the creation of the child.” Id . Our Supreme Court further explained the following:

To be clear, we do not hold that any questioning by an adult automatically renders a statement “nonspontaneous” and thus inadmissible unde r MRE 803A. Open-ended, nonleading questions that do not specifically sugge st sexual abuse do not pose a problem with eliciting potentially false claims o f sexual abuse. But where the initial questioning focuses on possible sexual abuse, the resultant answers are not spontaneous becau se they do not arise without e xternal cause. When questioning is involved, trial courts must look specifical ly at the questions posed in order to determine wheth er the questioning shaped, pro mpted, suggested, or otherwise implied the answers. [ Id . at 614-615 (footnote omitted).]

This approach requires courts to review the totality of the cir cumstances surrounding the statement in order to determine w hether the statement was spont aneous. Id . at 615.

MJ broached the subject of sexual abuse. In response to WE’s question whether he could go to defendant’s house, MJ unexp ectedly said that defendant wa s a sex offender. Although MJ’s statement that defendant was a sex offender did not specif ically indicate that defendant had sexually abused MJ, it implied that defendant had engaged in so me type of improper sexual conduct. MJ’s mother then asked MJ questions, including what h e meant, how he knew that defendant was a sex offender, and whether anything happened to him. These questions were nonleading and open-ended; they did not suggest sexual abuse. In response to these questions, MJ put his head down and said no. It was only when MJ’s mother asked him a second time if anything happened, after indicating that he could tell her anyt hing and would not be in trouble, that MJ said that defendant had touched his privates. Under th ese circumstances, in which MJ broached the subject of sexual abuse, but then denied that anyt hing happened with defendant until his mother asked him additional nonleading and open-ended questions, it may be considered a close question whether MJ’s statement that defendant touched his privates was spontaneous. A trial court’s decision on a close evidentiary q uestion ordinarily cannot be an abuse of discretion. People v Cameron , 291 Mich App 599, 608; 806 NW2d 371 (2011). Accordingly, we conclude that th e trial court’s decision that M J’s statement was spontaneous fell within the range of reasonable and principled outcomes and the trial court did not abuse its discretion by admitting the testimony.

C. AVAILABILITY OF CHILD WITNESS

Next, defendant argues that the trial court erred by finding that MJ was unavailable as a witness under MRE 804(a)(3) and by admitting MJ’s preliminary e xamination testimony into evidence. We agree. We review a trial court’s evidentiary dec isions for an abuse of discretion, but review a trial court’s fact ual findings regarding the unava ilability of a witness under-4- MRE 804(a) for clear error. People v Sardy , ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No. 319227); slip op at 4. “A finding is clearly erron eous when, although there is evidence to support it, the reviewi ng court is left with a defi nite and firm conviction that a mistake has been made.” People v Lanzo Constr Co , 272 Mich App 470, 473; 726 NW2d 746 (2006).

MRE 804(b) sets forth numerous exceptions to the hearsay rule that apply when a declarant is unavailable as a witness, People v Duncan , 494 Mich 713, 724; 835 NW2d 399 (2013), and one of the exceptions is for former testimony. MRE 804(b)(1). MRE 804(a) defines when a declarant is unavailable as a witness, which includes wh en a declarant “has a lack of memory of the subject matter of the declarant’s statement.” MRE 04(a)(3). In Sardy , ___ Mich App at ___; slip op at5, this Court concl uded that a trial court did not err by finding that a victim was unavailable under MRE 804(a)(3) when the victim, upon being asked about the defendant’s conduct that was the basis for th e charges, said that she could not remember what happened.

In this case, however, the trial court clearly erred by findin g that MJ was unavailable as a witness. To have been unavailable under MRE 804(a)(3), MJ must have had “a lack of memory of the subject matter of the declarant’s statement.” (Emphasis added.) The subjectmatter of MJ’s former statement was the incident in which defendant inapp ropriately touched MJ in the building behind defendant’s house. At trial, MJ did not indica te that he lacked memory regarding this incident. Rather, MJ testified that he was watc hing television while sitting on defendant’s lap in the building when defendant used his hands t o touch MJ’s penis over his clothes. Because MJ did not lack memory regarding the incident , we are left with a definite and firm conviction that the trial court made a mistake by finding that MJ was unavailable under MRE 804(a)(3). Consequently, the trial court abus ed its discre tion by admitting MJ’s preliminary examination testimony under MRE 804(b)(1).

“[A] preserved, nonconstitutional error is not a ground for re versal unless after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative.” People v Lukity , 460 Mich 484, 495-496; 596 NW2d 607 (1999) (quotation marks omitted). MJ’s testimony at the prelim inary examination was cumulative of his trial testimony, except that at the preliminary examination, MJ testified that defendant’s hand went into his pa nts and touched his penis. Re gardless of whether defendant touched MJ’s penis or the clo thes over it, he could be convicte d of second-degree criminal sexual conduct under MCL 750.520c. “Sexual contact” for purposes of M CL 750.520c “includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts . . . .” MCL 750.520a(q). Although MJ’s preliminary examination testimo ny may have bolstered his credibility, despite containing an inconsistency, because it sh owed that MJ previously testified that defendant touched his penis, other evidence also bolstered MJ’s credibility. Specifically, MJ’s mother testified that MJ told her defendant touched his pr ivates, and the testimony of KH and WE showed defendant’s propensity and character to commit th e charged crime. See MCL 768.27a; People v Watkins , 491 Mich 450, 491-492; 818 NW2d 296 (2012). Under these circumstances, defendant has notshown that it appears more pro bable than not tha t the erroneous admission of MJ’s preliminary examination testimony was outcome determinative.-5- Defendant also claims that the trial court erred when it allow ed the prosecution on rebuttal to ask WE about his preliminary examination testimony. We decline to address this issue. All the legal authority that defendant cites in his arg ument concerns MRE 804(a)(3), but it is clear from a review of the record that the trial court did n ot rely on MRE 804 as the basis for allowing WE to testify about his preliminary examination testim ony. Rather, the trial court allowed WE to testify about his p reliminary examination testimo ny because it concluded that, after defendant tried to impeach WE with a prior inconsistent s tatement, the prosecution was entitled to show that WE’s prior statement was not inconsistentwith his trial testimony. Defendant does not address the trial court’s stated reason for allowing WE to testify about his preliminary examination testimony, so he has abandoned this arg ument. See People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998) (“An appellant may n ot 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 w ith little or no citation of suppo rting authority.”).

D. EXPERT TESTIMONY

Next, defendant argues that error occurred when Barbara Welke, the prosecution’s expert in forensic interviewing and disc losures of sexually abused chi ldren, testified that the behaviors and actions of KH, WE, and MJ during their interviews at the Ch ildren’s Assessment Center (CAC) were consistent with those of sexually abused children an d that it was not odd for sexually abused children to want to spend time with their abuse rs. We review this unpreserved claim of evidentiary error for p lain error affecting defendant’ s substantial rights. People v Benton , 294 Mich App 191, 202; 817 NW2d 599 (2011).

In People v Peterson , 450 Mich 349; 537 NW2d 857, amended 450 Mich 1212 (1995), our Supreme Court clarified the permissible scope of expert tes timony in child sexual abuse cases. “An expert may testify regarding typical symptoms of ch ild sexual abuse for the sole purpose of explaining a victim’s s pecific behavior that might b e incorrectly construed by the jury as inconsistent with that of an abuse victim or to rebut an attack on the victim’s credibility.” Id

. at 373. The prosecution may present expert testimony to explai n common postincident behavior of sexually abused children. Id . “This expert testimony, however, may be introduced only if the facts as they develop would raise a question in the minds of th e jury regarding the specific behavior. The behavior must be of such a nature that it may po tentially be perceived as that which would be inconsistent with a victim of child sexual abus” Id . at 373 n 12. Generally, “[u]nless a defendant raises the issue of the particular child victim’s postincident behavior or attacks the child’s credibility, an expert may not testify that the particular child victim’s behavior is consistent with that of a sexually abused child.” Id . at 373-374 (footnote omitted). “The credibility of the victim is attacked when the defendant highli ghts behaviors exhibited by the victim . . . and alludes that the victim is incredible because of [those] behaviors.” Id . at 374 n 13.

Welke’s testimony that the behaviors and actions of KH, WE, an d MJ during their CAC interviews were consistent with those of sexually abused childr en constitutes plain error. See Benton , 294 Mich App at 202. There is no indication that the jurors would potentially perceive the victims’ behaviors during the interviews as being inconsist ent with a child abuse victim. Also, defendant did not attack the victims’ credibility by allu ding that they were incredible because of their behaviors and actions during the interviews. Accordingly, the testimony did not fall within the permissible scope of expert testimony in a chil d sexual abuse case, and Welke was-6- prohibited from testifying that th e victims’ behaviors and acti ons were consistent with those of child sexual abuse victims. See Peterson , 450 Mich at 373-374.

However, this error did not aff ect defendant’s substantial rig hts. See Benton , 294 Mich App at 202. Welke’s improper opi nion was never repeated during trial, and neither the prosecution nor defendant ever argued that the victims’ behavio rs at their CAC interviews rendered them credible or incredi ble. Further, the trial court instructed the jury that it could not consider Welke’s expert testimony as an opinion regarding wheth er KH, WE, or MJ were telling the truth. A jury is presumed to follow its instructions. People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998). Under these circumstances, Welke’s improp er opinion did not affect the outcome of the proceedings. See People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

Welke’s testimony that it was no t odd for sexually abused chil dren to want to spend time with their abusers 2 was not, however, plainly erroneous. See Benton , 294 Mich App at 202. KH testified, as did members of his family, that he went back to d efendant’s house on a regular basis after the evening of the fish di nner, which was when he alleged that defendant touched his penis. We conclude that KH’s behavior of returning to defendant’s hous e would raise a question in the minds of the jury regarding that behavior and could potentiallybe perceived as inconsistent with the behavior of a sexually abused child. See Peterson , 450 Mich at 373 n 12. Because this testimony could be easily misconstrued and allow the jury to dr aw an incorrect inference, it was not plainly erroneous for Welke t o testify that it was “not at all odd” for sexually abused children to willingly spend time with their abusers. 3

II. CUMULATIVE EFFECT OF ERROR

Defendant next argues that he was denied a fair trial by the c umulative effect of errors. We review a claim regarding the cumulative effect of errors to determine if the combination of alleged errors denied the defendant a fair trial. People v Knapp , 244 Mich App 361, 387; 624 NW2d 227 (2001). The cumulative effect of several errors may w arrant reversal even if

2 Welke explained that 95 percent of all child sexual abuse is c ommitted by perpetrators known to the victims and, thus, an abuser is often someone for whom a victim has positive feelings.

3 Although defendant did not specifi cally argue that the victims ’ postincident behavior was inconsistent with that of sexual abuse victims, we conclude that raising such an argument was not necessary to permit this portion of Welke’s testimony at tr ial. In Peterson , 450 Mich at 358, a defendant avoided raising any questions “that would have brou ght into issue [the victim’s] behavior that the jury would arguably consider to be inconsiste nt with the behavior of an abused person.” Nonetheless, our Supreme Court concluded that “where there are common misperceptions regarding the behavior of the victim on which a jury may draw an incorrect inference . . .the prosecutor may present limited expert testim ony dealing solely with the misperception.” Id. at 379. Therefore, despite the fact that the defendant did no t raise the issue of the particular child victim’s postincident behavior or direc tly attack the child’s credibility, the Court held that “[b]ecause the c hild’s testimony could be easil y misconstrue . . . expert testimony was proper to rebut possible inferences by the jurors.” Id. at 379-380.-7- individual errors would not warrant reversal. Id . at 388. Only actual errors are aggregated to determine their cumulative effect. People v Bahoda , 448 Mich 261, 292 n 64; 531 NW2d 659 (1995). The errors must be of consequence. Knapp , 244 Mich App at 388. “ ‘[C]umulative error,’ properly understood, actua lly refers to cumulative unfa ir prejudice , and is properly considered in connection with issues of harmless error.” People v LeBlanc , 465 Mich 575, 591 n 12; 640 NW2d 246 (2002).

Defendant has shown two actual errors: (1) the erroneous admi ssion of MJ’s preliminary examination testimony and (2) Welke’s improper opinion that the behaviors and actions of KH, WE, and MJ at their CAC interview s were consistent with those o f sexually abused children. It was defendant’s theory that KH, WE, and MJ were not credible. The two errors did not significantly hinder defendant’s ability to argue that the thre e victims were incredible. He could still argue that their postincident behavior, such as KH’s cond uct in returning to defendant’s house two or three times a week after the fish dinner, their pr ior inconsistent statements at their CAC interviews and at the preliminary examination, and the inco nsistencies between their testimony and the testimony of others rendered them incredible. Additionally, for reasons already provided, any prejudice that defendant suffered from We lke’s improper opinion was minimal. The prejudicial impact of the erroneous admission of MJ’s preliminary examination testimony may have been greater because it was a prior statemen t in which MJ testified that defendant touched his penis, which could have bolstered MJ’s cr edibility. Regardless, the jury heard another prior statement of MJ through the testimony of MJ ’s mother. Moreover, KH, WE, and MJ each testified that defe ndant touched their penises and WE testified regarding other acts of sexual misconduct by defendant, and their testimony could be used to show defendant’s propensity and character to comm it the charged crimes. MCL 768 .27a; Watkins , 491 Mich at 491-492. Under these circumstances, the combined prejudicial e ffect of the two errors was not so consequential as to affect the jury’s credibility determinat ions and deny defendant a fair trial. We reject defendant’s claim regar ding the cumulative effect of the errors.

III. DEFENDANT’S STANDARD 4 BRIEF

In his Standard 4 brief, defendant argues that he was denied n umerous constitutional rights when the trial court prohibited him from introducing evi dence showing a direct contradiction of KH’s allegati ons and evidence that would place considerable doubt on WE’s allegations. Because defense counsel never attempted to introd uce any of the evidence that defendant claims the trial court prohibited him from introducin g, we view defendant’s arguments as claims of ineffective assistance of counsel. To establish a claim of ineffective assistance, a defendant must show that counsel’s performance fell below an ob jective standard of reasonableness and that, but for counsel’s deficient performanc e, there is a reasonable probability that the result of the proceedings would have been different. People v Uphaus (On Remand)

, 278 Mich App 174, 185; 748 NW2d 899 (2008). Because defendant did not move for a new trial or an evidentiary hearing below, our review is limited to mista kes apparent on the record. People v Heft , 299 Mich App 69, 80; 829 NW2d 266 (2012).

A defendant has the burden of e stablishing the factual predica te for a claim of ineffective assistance of counsel. People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999). The factual predicate of defendant’s first c laim is that an October 2013 ca se report and an April 2014 letter reported that KH denied that an y touching occurred. However, o ur review is limited to errors-8- apparent on the record. Heft , 299 Mich App at 80. Neither the case report nor the letter referenced by defendant is included in the lower court record. Accordingly, defendant has not established the factual predic ate for his claim. Additionally, defendant does not cite any authority in support of his argum ent, so it is unclear whether he is claiming that the October 2013 case report and the April 2014 letter should have been submitte d for the truth of KH’s denials or only as extrinsic evidence of pri or inconsistent statements to test the credibility of KH’s testimony. See People v Jenkins , 450 Mich 249, 256; 537 NW2d 828 (1995); People v Steele

, 283 Mich App 472, 487; 769 NW2d 256 (2009). Because “[a]n appe llant may not merely announce his position and leave it to this Court to discover an d rationalize the basis for his claims, nor may he give only cursory treatment with little or n o citation of supporting authority,” Kelly , 231 Mich App at 640-641, defendant ha s abandoned this ineffec tive assistance claim.

Next, to establish a claim of ineffectiv e assistance of counse l, a defendant must overcome the strong presumption that couns el’s performance was sound tri al strategy. People v Dixon , 263 Mich App 393, 396; 688 NW2d 308 (2004). Decisions regarding wh at evidence to present are presumed to be matters of trial strategy. Id . at 398. According to defendant, he suffered from numerous physical problems, including, most pertinently, erecti le dysfunction, and evidence of this physical problem would h ave cast doubt on WE’s allegation of penetration. The prosecution filed a motion for release of defendant’s medical records, whic h indicated that defendant had been given a prescription for er ectile dysfunction. As a resul t of the motion, the trial court ordered that all of defendant’s medical records from the Battle Creek Veteran’s Hospital, including records of any prescrip tions that were filled, be rel eased to the prosecution and that any medical providers who were subpoen aed shall testify regarding d efendant’s medical records. It is unknown what testimony a medical provider would give regardi ng defendant’s erectile dysfunction and filled p rescriptions that may have remedied tha t ailment. Under these circumstances, defendant has failed to overcome the strong pres umption that defense counsel’s decision not to present evidence of defendant’s physical proble ms was anything other than sound trial strategy. See id . at 396. Defendant was not denie d the effective assistance of counsel. 4

Affirmed.

/s/ Henry William Saad /s/ Stephen L. Borrello /s/ Michael F. Gadola

4 We reject defendant’s argument that the cumulative effect of the errors identified in his Standard 4 brief denied him a fair trial. Absent the establish ment of deficiencies in counsel’s performance, there can be no cumulative effect of deficiencies meriting reversal. See Dobek

, 274 Mich App at 106.