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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, V RUDY RAMONEZ VALDEZ, Defendant-Appellant.

UNPUBLISHED June 23, 2005

No. 255580 Monroe Circuit Court LC No. 03-032957-FC

Before: Sawyer, P.J., and Markey and Murray, JJ. PER CURIAM. Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(1)(a), and second-degree criminal sexual conduct, MCL 750.520c(1)(a). He was sentenced to concurrent prison terms of life for the first-degree CSC conviction, and ten to fifteen years for the second-degree CSC conviction. He appeals by right. We affirm defendant's convictions, but vacate his sentences and remand for resentencing. I. Underlying Facts Defendant was convicted of sexually assaulting his stepdaughter, aged twelve at the time of trial. In 1996, the victim's mother married defendant. After the marriage, the victim, along with her mother and her brother, BS, aged fourteen at the time of trial, shared a home with defendant and, at times, his three daughters, Nicole Valdez, Brandy Valdez, and Maria Valdez. In late 1996, the victim's mother and defendant had a daughter, JV. In 1998, the victim's mother, a nurse, began working from 7:00 p.m. until 7:00 a.m., three days a week, leaving defendant to care for the victim, BS, and JV. According to the victim, defendant sexually abused her on numerous occasions while her mother was at work. The victim testified that, beginning in 1998, when she was six years old, defendant began touching her breasts and "butt" "over her clothes" about "once every month or so, or once every week." She indicated that defendant warned her not to tell anyone because her mother would "go crazy," he would hurt her family, and her family would not believe her. The victim testified that, beginning in 2001, when she was about eight years old, defendant started "doing other things." According to the victim, one to three times a week, while her mother was at work, she and defendant would go into defendant's bedroom. After removing her clothes and his shorts, defendant would kiss her body, digitally penetrate her, and put his -1-


penis in her vagina, her anus, or her mouth. The victim indicated that, after "slimy" "stuff" came out of defendant's penis, he would wash off in the bathroom and direct her to do the same. The victim's mother testified that it was defendant's practice to "always get up and clean himself off afterwards." The victim noted that, immediately after the incidents, it would "burn" when she urinated. According to the victim, the majority of the sexual incidents occurred in defendant's bedroom while the other children were asleep or otherwise occupied. BS testified that when their mother was at work, the victim and defendant usually went into defendant's bedroom while he and JV stayed in the family room. BS explained that when they were all in the family room, defendant would stand up first, the victim would then stand up, and the two would go into defendant's room. The victim's mother testified that, when she would return home from work, she often found the victim in her and defendant's bed. The victim's mother also testified that before the allegations were revealed, the victim often complained of stomach aches, headaches, and, on one occasion, of having "a little" bleeding from her vaginal area. The victim testified that in exchange for the sexual acts, defendant would help her with her chores and buy her candy or other treats. The alleged incidents ended in 2003, after the then eleven-year-old victim revealed them to a camp counselor while they were sharing details about their "secret lives." The victim indicated that she was afraid that her then six-year-old sister was in danger of being abused by defendant. The victim's mother testified that when she questioned defendant about the victim's allegations, he said: "You have every right to say what you're saying to me." In response to her question of "why," defendant said that he would tell her later. Defendant testified on his own behalf and denied ever touching the victim in a sexual manner. He admitted that, occasionally, the victim joined him in his room to watch movies, and that, when she was seven years old, he slapped her bottom. He indicated that, although he apologized to his adult daughters for what was occurring in their family, he never admitted that he had sexually abused the victim. II. Improper Expert Opinion Testimony Defendant first contends that he was denied a fair trial when Jennifer Devivo, who was qualified as an expert in child sexual abuse and was also the victim's therapist, implicitly vouched for the victim's veracity. We disagree. Defendant did not object to Devivo's testimony below. Therefore, this Court reviews this unpreserved claim for plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). During direct examination, the prosecutor primarily asked Devivo about the general behavior of child victims of sexual abuse. The prosecutor also asked: "What do you think the outlook is for, for [the victim], in terms of therapy?" In response, Devivo testified regarding the victim's progress in therapy, and also stated the following, which defendant claims was an improper expert opinion regarding the victim's veracity: Um, obviously the fact that she's in this progress and has, um, disclosed something like this, shows that she obviously is a brave little kid anyway. Um, -2-


and that comes through in her therapy. I thinks [sic] she's going to do really well eventually, but I think this is a long road. No one ever gets over being sexually abused, they just learn to live with it in new ways. [Emphasis added.] 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, amended 450 Mich 1212 (1995). Even an indirect reference may contravene these prohibitions because "the jury in these credibility contests is looking `to hang its hat' on the testimony of witnesses it views as impartial." Id. at 376. Although, through the challenged statements, Devivo may have implicitly vouched for the victim's veracity, reversal is not warranted on the basis of this unpreserved issue. The challenged testimony was a relatively small portion of Devivo's testimony. Devivo properly testified at length regarding the general behavior of sexually abused children, much of which was not inconsistent with the victim's behavior.1 For example, Devivo testified that it is not unusual for young victims of sexual abuse not to immediately disclose the abuse, and that victims usually provide more details when subsequently telling the story. Also, Dr. Randall Schlievert, an expert in child sexual abuse, testified that the victim's normal physical examination is not inconsistent with sexual abuse, and that the victim's "disclosures are suggestive of a sexually abused child." Additionally, there was other compelling unchallenged evidence, including that of defendant's own two adult daughters. Defendant's twenty-one-year-old daughter, Brandy, testified that in response to her questions about the victim's allegations, defendant "cried a lot," and stated that he was sorry "for what he had done to the family." When Brandy asked defendant "how long was it going on," he replied that "it didn't matter, that one time was too many times." On cross-examination, Brandy indicated that although defendant did not specifically admit to the victim's allegations, he stated that he was "sorry for all that [he had] done to [the victim], [he's] sorry for what [he had] done to this family." Upon further questioning, Brandy indicated that defendant "specifically said" that he was sorry for what he had done to the victim. Defendant's twenty-year-old daughter, Maria, testified that, when the allegations were first made, defendant claimed that "he didn't know what was going on." However, when defendant and Maria later talked, defendant told her that "he was sorry for what had happened, and he hoped that one day [they] would all forgive him for everything that was going on, and that one [sic], hopefully God would forgive him too." Moreover, the trial court instructed the jurors of the proper use of Devivo's testimony, and that her testimony could not be used to show that the charged crime was committed, or be

In child sexual abuse cases, "(1) an expert may testify in the prosecution's case in chief regarding typical and relevant symptoms of child sexual abuse for the sole purpose of explaining a victim's specific behavior that might be incorrectly construed by the jury as inconsistent with that of an actual abuse victim, and (2) an expert may testify with regard to the consistencies between the behavior of the particular victim and other victims of child sexual abuse to rebut an attack on the victim's credibility." Peterson, supra at 352-353.

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considered Devivo's opinion that the victim told the truth.2 "Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors." People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). In sum, even if plain error occurred, defendant has not demonstrated that his substantial rights were affected. Carines, supra. Defendant is not entitled to a new trial with respect to this issue. III. The Victim's Mother's Testimony Defendant contends that errors warranting reversal occurred when the prosecutor improperly elicited during direct examination of the victim's mother both hearsay and the victim's mother's opinion that the victim was truthful. We disagree. A. Challenged Testimony The victim's mother testified that she asked the victim to describe defendant's penis to determine what "really happened." She indicated that, in response, the victim took a piece of paper, wrapped it around two fingers, and explained that when defendant's penis "got hard," the skin would "pull back," and "when he was done," the skin would return. The victim's mother testified that defendant had an uncircumcised penis, and that the victim's description was accurate. She also testified that the victim indicated that, after defendant ejaculated, he would clean himself off, which she knew was defendant's "practice." The victim's mother stated that based on the victim's description of defendant's penis and his behavior, she knew the victim was "telling [her] the truth." B. Hearsay - Statement of Prior Identification With regard to the challenged testimony, defendant first contends that the trial court abused its discretion by admitting the victim's statements to her mother describing defendant's penis as statements of identification under MRE 801(d)(1)(C) as an exception to the rule against admitting hearsay. See MRE 801; MRE 802. We review the trial court's decision to admit evidence for an abuse of discretion, People v Watson, 245 Mich App 572, 575; 629 NW2d 411 (2001), and will not reverse on the basis of an evidentiary error unless the court's ruling affected a party's substantial rights, MRE 103(a).

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The court instructed the jury as follows: You have heard uh [sic], an opinion from Jennifer Devivo about the behavior of sexually abused children. You should consider that evidence only for the limited purpose of deciding whether you believe the victim, [the victim's] acts and words after the alleged crime were consistent with those of sexually abused children. That evidence cannot be used to show that the crime charged here was committed, or that the defendant committed it. Nor can it be considered an opinion by Jennifer Devivo, that the complainant is telling the truth.

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We find merit to defendant's claim that the victim's statement to her mother describing defendant's penis did not qualify as a statement of identification under MRE 801(d)(1)(C). In People v Sykes, 229 Mich App 254, 273-274; 582 NW2d 197 (1998), this Court held that "identification" within the meaning MRE 801(d)(1)(C) did not extend to include out-of-court descriptive statements leading the hearer of the statements to conclude the declarant's description identified a particular person. But defendant bears the burden of demonstrating that a preserved nonconstitutional error merits reversal because it more probably than not was outcome determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). Given the other unchallenged evidence against defendant, it is highly improbable that the outcome would have been different had the trial court precluded the challenged testimony. In her testimony, the eleven-year-old victim described defendant's penis, and it was undisputed that defendant was uncircumcised. Thus, the challenged evidence was cumulative of other properly admitted evidence. Therefore, even if the trial court abused its discretion by admitting the challenged testimony, defendant cannot affirmatively establish that it is more probable than not that the alleged error was outcome determinative. C. Opinion Evidence We also reject defendant's claim that error warranting reversal occurred when the victim's mother improperly testified that the victim was "telling [her] the truth," contrary to MRE 608(a). Because defendant did not object to the testimony below, this Court reviews this unpreserved claim for plain error affecting substantial rights. Carines, supra. MRE 608(a) provides, in pertinent part: The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Even if the challenged testimony did not meet the requirements of MRE 608(a), reversal is not warranted on the basis of this unpreserved issue. Carines, supra. The victim's mother's opinion that the victim told her the truth was based on two factors: (1) the victim's description of defendant's penis, and (2) the victim's description of defendant's behavior of immediately cleaning himself after sex. As previously indicated, the victim herself described defendant's uncircumcised penis, as well as his post-ejaculation cleaning practices. The victim's mother's testimony that defendant's penis was uncircumcised and that it was defendant's practice to immediately wash up was not improper. Thus, although the victim's mother testified that she believed the victim, the facts on which she relied were already plainly before the jury. Further, contrary to defendant's suggestion, it is highly improbable that the jurors decided the case on the basis that a mother believed her child. Additionally, the victim testified in detail about the alleged incidents. Also, the victim's brother, BS, testified and described how defendant and the victim would regularly leave the family room together and go into defendant's room, while he and their younger sister, JV, remained in the family room. Also, as previously indicated, defendant made incriminating -5-


comments to his adult daughters regarding the incidents. In short, there was sufficiently compelling, admissible evidence to render the admission of the challenged testimony harmless. Consequently, defendant cannot demonstrate plain error affecting his substantial rights and, therefore, reversal is not warranted on the basis of this issue. IV. Hearsay - Statements Made for Medical Treatment or Diagnosis Next, defendant contends that he was denied a fair trial when Dr. Schlievert testified regarding statements the victim made to his office social worker, because the statements constituted inadmissible hearsay, inasmuch as they were not made for purposes of medical treatment or diagnosis under MRE 803(4), but merely for investigative purposes. We disagree. Because defendant did not object to this testimony below, this Court reviews this unpreserved claim for plain error affecting his substantial rights. Carines, supra. MRE 803(4), a hearsay exception, allows the admission of "[s]tatements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history . . . insofar as reasonably necessary to such diagnosis and treatment." "Under MRE 803(4), the declarant must have the self-motivation to speak the truth to treating physicians in order to receive proper medical care, and the statement must be reasonably necessary to the diagnosis and treatment of the patient." People v McElhaney, 215 Mich App 269, 280; 545 NW2d 18 (1996). Although, in his testimony, Dr. Schlievert indicated that his office only obtains information that "impact[s] [their] diagnosis, [their] treatment plan," a review of the record supports defendant's claim that the victim's statements were elicited for investigative purposes not for medical treatment or diagnosis within the meaning of MRE 803(4). It is undisputed that the investigating police officer initiated Dr. Schlievert's examination, approximately one month after the victim first reported the incidents, that the victim had been examined after disclosing the incidents by a different physician, and that the referral to Dr. Schlievert was for an evaluation for sexual abuse. See, e.g., McElhaney, supra at 281 ("[i]f the prosecutor scheduled the medical examination, it might indicate that the examination was not for the purposes of medical treatment.") Nonetheless, even if Dr. Schlievert's testimony regarding the victim's statements constituted plain error, the error was harmless because the challenged testimony was cumulative of the victim's own trial testimony, where she described, in detail, the alleged sexual acts and identified defendant as the perpetrator. Id. at 283; People v Hill, 257 Mich App 126, 140; 667 NW2d 78 (2003). Thus, defendant cannot establish plain error affecting his substantial rights and, therefore, reversal is not warranted on the basis of this unpreserved claim. Carines, supra. V. Prosecutorial Misconduct Next, defendant contends that he was denied a fair trial by two instances of prosecutorial misconduct. We disagree. Because defendant failed to object to the prosecutor's conduct below, this Court reviews his unpreserved claims for plain error affecting substantial rights. People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003).

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A. Improper Argument First, defendant claims that the prosecutor made an improper argument when she urged the jury to find the victim credible because several other witnesses believed her. Defendant has not demonstrated plain error affecting his substantial rights. Before making the challenged comments, the prosecutor told the jurors that they were to evaluate and judge the witnesses' credibility and the evidence, and she discussed the witnesses and the evidence at length. In making the challenged remarks, the prosecutor was in the midst of discussing "corroboration" and urged the jurors to consider the numerous witnesses to whom the victim had told her story including trained personnel, and argued that, given the victim's youth and lack of sophistication at that age, it is unlikely that she could have "fooled" all of those individuals. In making the argument, the prosecutor also stated: The most important corroboration, well, [the victim's] testimony by far, is the most important thing, and her account, and some of the details that just sort of creep you out are [sic] the most important thing. Viewed in context, the prosecutor's argument that, based on the evidence, the victim's claims were believable was not improper. A prosecutor is free to argue reasonable inferences arising from the evidence as they relate to her theory of the case, including arguing from the facts that a witness is credible. People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). Defendant also generally claims that in making the challenged comments, the prosecutor engaged in misconduct by proffering prejudicial and inadmissible evidence. Contrary to defendant's suggestion, although a prosecutor may not argue the effect of testimony that was not entered into evidence at trial, she may argue reasonable inferences from the evidence that was admitted. People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003). For the same reason, we reject defendant's claim that because no witness testified that the victim could not have "fooled" him or her, the prosecutor improperly argued facts not in evidence. The prosecutor's argument that it is unlikely that the victim could have "fooled" these trained individuals was a fair inference from the evidence. A prosecutor may use "hard language" when the evidence supports it, and is not required to phrase arguments and inferences in the blandest possible terms. People v Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996). To the extent the prosecutor's remarks were improper, they involved only a portion of her closing and rebuttal argument and were not so inflammatory that defendant was prejudiced. Any prejudice that may have resulted could have been cured by a timely instruction. Watson, supra at 586. Indeed, the trial court instructed the jurors that the lawyers' comments are not evidence, and that the case should be decided on the basis of the evidence. The instructions were sufficient to dispel any possible prejudice. People v Bahoda, 448 Mich 261, 281; 531 NW2d 659 (1995). Accordingly, this claim does not warrant reversal. B. Denigration of Defendant We also reject defendant's assertion that the prosecutor impermissibly denigrated his character during closing argument when she argued that defendant had a motive to lie, because he "has a special reason to lie

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