People of Michigan v. Juan Jose Del Cid ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
February 27, 2020
Plaintiff-Appellee, 9:00 a.m.
v No. 342402
Ottawa Circuit Court
JUAN JOSE DEL CID, LC No. 16-040357-FC
Defendant-Appellant.
ON REMAND
Before: SHAPIRO, P.J., and BORRELLO and BECKERING, JJ.
SHAPIRO, P.J.
Following a jury trial, defendant was convicted of two counts of first-degree criminal
sexual conduct (CSC-I) against AC, the daughter of his longtime girlfriend. On appeal, we
affirmed defendant’s convictions.1 Defendant then appealed to the Supreme Court, which vacated
our judgment in part and remanded for reconsideration2 in light of People v Harbison, the
companion case to People v Thorpe, 504 Mich. 230, 235; 934 NW2d 693 (2019).3 There, the Court
held “that examining physicians cannot testify that a complainant has been sexually assaulted or
has been diagnosed with sexual abuse without physical evidence that corroborates the
complainant’s account of sexual assault or abuse because such testimony vouches for the
complainant’s veracity and improperly interferes with the role of the jury.” Id. 235. The question
in this case is whether an examining physician may testify to a “diagnosis” of “possible pediatric
sexual abuse” in the absence of supporting physical findings. We conclude that Harbison and the
1
People v Del Cid, unpublished per curiam opinion of the Court of Appeals, issued May 21, 2019
(Docket No. 342402).
2
People v Del Cid, ___ Mich ___ (Docket No. 159848) (2019).
3
The first case name in the caption of these consolidated cases is People v Thorpe. Since the
Supreme Court order referred us to People v Harbison and our discussion largely focuses on that
case, we will refer to the case as Harbison.
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cases it relied on bar such testimony and because we cannot say that this error was harmless, we
reverse defendant’s convictions and remand for a new trial.
AC lived in a two-bedroom apartment with her siblings, her mother (Nelly) and her
mother’s boyfriend, defendant. Defendant and Nelly have three children together, and Nelly has
two children of her own, including AC. AC refers to defendant as her “step-dad.”
The allegations arose in June 2016, when AC was 14 years old. AC had been caught
stealing by her aunt and mother, who was angry. After her mother fell asleep, AC decided to go
to a weeknight church service through the church’s “bus ministry” because she did not want to be
home. According to AC, while at church a friend asked her if she was virgin, to which she
responded she was not. AC testified that, by way of explanation, she mentioned her boyfriend and
told her friend that “my step-dad was doing this stuff,” referring to the allegations of sexual abuse.
When the church bus was returning the teenagers home, AC requested to be dropped off last
because she did not want to go home. She testified that the “main reason” was that her mother
was mad at her. When AC’s friend left the bus, she whispered something to bus driver, who then
announced that he could not return AC to her home. A chaperone then began questioning AC,
who responded that her step-dad was “molesting” her.
The police were contacted and interviewed AC that night. About a week later, AC
underwent a forensic interview and the police interviewed defendant, who denied the allegations.
The next day defendant was arrested and charged with one count of CSC-I. He was bound over
following a preliminary examination, and the information charged him with sexual penetration by
a person 17 years of age or older against an individual less than 13 years of age, MCL
750.520b(2)(b), and sexual penetration of a person who is at least 13 but less than 16 years of age
by a member of the same household, MCL 750.520b(1)(b)(i).
At trial, AC testified that the first incident of abuse occurred when she was eight years old.
She stated that one day when she and the other children were playing with defendant, he slid his
hand down her pants. She was not sure whether defendant touched her on top of or underneath
her underwear, but she was certain that defendant touched her vaginal area. AC told her mother
about this incident shortly after it occurred. Nelly asked AC to repeat her allegations in front of
defendant, but AC said that she did not feel comfortable doing so. Defendant told Nelly that he
was “just playing around” and tickling the victim, and AC agreed with defendant’s story “to get it
over with” and because she was scared of getting in trouble.
According to AC’s testimony, the next incident occurred when she was 12 years old. She
testified that defendant picked her up, carried her into his bedroom and took off her pants. AC
stated that when she realized what defendant was doing, she began crying and told him that she
did not want to have sex with him because she did not want to get pregnant. AC asserted that
defendant said it was okay because he had a condom. She testified that defendant then had sexual
intercourse with her, which was “very painful.” She further testified that she then went to the
bathroom and discovered she was bleeding. She said that she told defendant about the bleeding
and that he simply looked at her and walked away.
AC testified that defendant had sex with her two to three times a week after she turned 13
and that it was so often that she came to see it as “a normal thing.” She testified that she did not
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tell her mother about what was going on; the only incident she ever revealed to her mother was the
one that occurred when she was eight years old. AC’s mother worked nights and defendant cared
for the children while she was working. AC testified that usually the other children were at home
when defendant would have sexual intercourse with her, but they never witnessed it because they
were always either asleep or in another room playing games when it occurred. She also testified
that there were a few times when defendant had sex with her while her mother was in the shower
getting ready for work. She also recalled defendant having sex with her while her youngest
brother, then a baby, was asleep in the same bed.
Dr. Debra Simms, M.D., performed the medical evaluation of AC following disclosure of
the allegations and was admitted as an expert in “child abuse pediatrics” at trial. Before she
conducted a physical examination of AC, Dr. Simms obtained a history from her mother; the nurse
obtained a history from AC. The nurse relayed to Dr. Simms that AC alleged penile-vaginal
contact and penile-digital contact while she was between the ages of 12 and 14 and that there had
been pain and bleeding after the first penile-vaginal contact. Dr. Simms then performed a physical
examination, which revealed no signs of sexual abuse. Dr. Simms diagnosed AC with “possible
pediatric sexual abuse.” She gave the following explanation for her opinion:
Q. Okay. I want to focus on kind of the genital area regarding the physical
examination. Did you ultimately form an opinion in this case after doing the
physical examination?
A. Yes, I did.
Q. What was your opinion?
A. I made a medical diagnosis, based upon the history and the physical
examination, and I diagnosed her with possible pediatric sexual abuse.
Q. Why is that?
A. The history was given that there had been penile/vaginal contact, that
there had been contact to her hand, obviously, when you look at a hand, you’re not
going to see a penis print or anything like that, so you’re going to have a normal
exam. [AC], in–as part of our history, we’re very specific, [AC] had actually started
her menstrual period when she was 12 years of age. [AC] was also reported to use
tampons. So, as part of the history, I knew that there was an object that was
regularly going into the vaginal area, that I knew that her menstrual cycle had begun
two-and-a-half years prior to my examination. The changes that occur with puberty
adapt a child, even though we don’t want children becoming sexually active at that
age . . . . But, the body, from the fact that it is regulating and having menstruation
and whatever the potential is there at that time. So, there are physical changes that
occur to the body. . . . You go from birth, which is one, to fully mature, you’re not
going to get any more developed is five. . . . So, in looking at her body, she was a
sexual maturity five of the genital area. . . . So, the–the opening to the vagina is
there, and in front of that opening is a piece of tissue called the hymen. . . . In the
case of sexually mature young ladies, that tissue is the one that will really change.
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. . . I’ve personally seen children before puberty and after puberty and it’s night and
day differences, because of those affects. [AC], when I’m examining her and
looking at those tissues, she has what is called a petaled configuration. . . . That
allows intrusion of a tampon or intrusion of something else without necessarily
tearing the tissue. A lot of people believe that the first time you have sex that tissue
has to tear. It doesn’t have to, depending upon the shape and depending upon the
sexual maturity rating of the individual. So, in [AC’s] case, I found that she had
this petaled configuration. So, her physical examination was normal. Her physical
examination was normal. It neither confirmed nor ruled out her history given that
there had been penile/vaginal contact. My diagnosis as a physician was based upon
the history that was given, and that’s what we do.
Q. So, based upon the history and the anatomical findings, if you will, it’s
possible that she was sexually abused.
A. It was possible that she was sexually abused, yes, sir.
Q. But, her medical evaluation was normal.
A. Her–her physical examination was normal, yes, sir.
Q. Is that abnormal?
A. It’s normal to be normal.
Q. Okay. What do you mean by that?
A. There are actually–as I mentioned, there are a lot of people that think
that the body, especially the hymen, is like a solid wall. . . . And they think that,
for virgins, that that actually has to be broken the first time they have intercourse.
That is not true. . . . So, because a lot of people believe certain things and there are
myths about what the normal structures are, there has been research and there have
been papers published. One of the papers that was published was called, “it’s
Normal to be Normal.” They took 236 children that they wanted to look at their
examinations and say, “If these children were abused, then what do their
examinations look like,” well, you come to the problem of whether or not you know
if a child has been abused. So, what they did, is they took 236 children where there
had been convictions . . . ; 77 percent of those children had normal or non-specific
findings. So, even though we knew that someone had decided that they had been
abused, it was normal to be normal. That was in a wide age range. Then, what they
did, is they did another study in which they took 36 pregnant adolescents . . . . And
so, of those 36 pregnant teenagers, all but two of them did not have definitive
findings of penetration. So, that paper was actually titled, “Normal Does Not Mean
Nothing Happened.” So, when we say that it’s normal to be normal, the human
body, especially as it goes through puberty, is adapted to this kind of function, and–
and it can occur with little or no damage to the body.
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Q. So, ultimately, in conclusion, the findings that you found on [AC] were
normal?
A. She was normal, yes, sir.
Q. And it’s normal to be normal, that’s–that’s nothing that’s abnormal?
A. That’s nothing–I guess so.
Q. Did you follow that? She–it was normal to be normal, which is normal?
A. Yes.
On cross-examination, Dr. Simms confirmed that “there were no hematomas, no lacerations, no
scars, nothing, that it was normal.”
In addition to AC and Dr. Simms, the prosecution called as witnesses the bus chaperone
and two other church members who spoke with AC the night of her disclosure. The forensic
interviewer also testified as well as two police officers. Officer Jose Mendoza, who interviewed
defendant following the allegations, testified that defendant denied sexually abusing or touching
AC. Mendoza further testified that defendant told him that about two weeks prior AC had come
into his bedroom late at night, jumped him and straddled her legs around his torso. Defendant said
that he told her that was inappropriate but she did it four more times and then touched his “genital
area” with her hands; defendant told her “not to do that.”
The defense called numerous witness. AC’s mother, Nelly, testified that she “never
witnessed . . . anything out of the normal” between AC and defendant. Nelly also asserted that
AC had lied to her “on many occasions” and she “started being very dishonest” once she began
high school. Nelly believed that “something may have happened to [AC],” but she did not believe
that defendant was the perpetrator. AC’s sister, KC, testified that she lived in the same household
as AC and defendant and did not recall ever seeing anything strange between them. KC did not
think that she could trust her sister because of the “many lies that she has been telling.” The
defense’s other witnesses testified to defendant’s character. Defendant then testified and denied
that he had ever had sex with AC or touched her in a sexual manner.
The jury deliberated for about an hour on the first day of deliberations. About midday on
day two, they requested to listen to AC’s and defendant’s testimonies. An audio disc of the
testimonies was prepared for the jury. They then deliberated for about two more hours before
finding defendant guilty of the charged offenses.
On appeal, defendant argued, in part, that Dr. Simms vouched for AC’s testimony in
violation of People v Smith, 425 Mich. 98; 387 NW2d 814 (1986). According to defendant, Dr.
Simms’s diagnosis of possible pediatric sexual abuse signaled her acceptance of AC’s allegations.
Defendant also argued that trial counsel was ineffective for failing to object to Dr. Simms’s
testimony. We rejected those arguments, reasoning that admission of the testimony was not plainly
erroneous when Dr. Simms “did not state a finding of sexual abuse or even probable abuse.” Given
that, we concluded that Dr. Simms’s testimony did not amount to impermissible vouching. We
further concluded that any objection by trial counsel would have been futile and therefore
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defendant was not denied effective assistance of counsel by the lack of an objection. People v Del
Cid, unpublished per curiam opinion of the Court of Appeals, issued May 21, 2019 (Docket No.
342402), p 2.4
After our decision, the Supreme Court decided Harbison. In lieu of granting defendant’s
application for leave to appeal, the Supreme Court vacated the part of our judgment concerning
Dr. Simms’s testimony and remanded for reconsideration in light of Harbison. Having done so,
we now conclude that an examining physician’s testimony diagnosing a child-complainant with
“possible sexual abuse” is inadmissible without corroborating physical evidence, that admission
of Dr. Simms’s testimony to that effect was plainly erroneous, and that reversal is required.
The Supreme Court has repeatedly overruled decisions permitting testimony from expert
witnesses that has the effect of bolstering a child-complainant’s testimony. See e.g., People v
Beckley, 434 Mich. 691, 727; 456 NW2d 39 (1990); People v McGillen, 392 Mich. 278, 285; 220
NW2d 689 (1974). Even before Harbison, it was established that an examining physician could
not opine that sexual abuse had occurred unless that opinion was supported by physical findings.
In Smith, 425 Mich. at 112, the examining physician testified to his opinion that the complainant
had been sexually assaulted based “not on any findings within the realm of his medical capabilities
or expertise as an obstetrician/gynecologist, but, rather, on the emotional state of, and the history
given by, the complainant.” The Supreme Court held that admission of this testimony was
erroneous and required reversal. Id. at 113. In Harbison, the Court summarized the rationale for
that holding:
Citing MRE 704, we stated that “[i]t is . . . well-established that expert opinion
testimony will not be excluded simply because it concerns the ultimate issue[.]”
Yet, we acknowledged that an examining physician cannot give an opinion on
whether a complainant had been sexually assaulted if the “conclusion [is] nothing
more than the doctor’s opinion that the victim had told the truth.” An examining
physician’s opinion is objectionable when it is solely based “on what the victim . . .
told” the physician. Such testimony is not permissible because a “jury [is] in just
as good a position to evaluate the victim’s testimony as” the doctor. Nonetheless,
an examining physician, if qualified by experience and training relative to treatment
of sexual assault complainants, can opine with respect to whether a complainant
had been sexually assaulted when the opinion is based on physical findings and the
complainant’s medical history. [Thorpe, 504 Mich. at 255.]
The Harbison defendant was convicted of, among other charges, two counts of first-degree
criminal sexual conduct and two counts of second-degree criminal sexual conduct. Id. at 242-243,
249. At the defendant’s trial, Dr. Simms testified that, following her examination of the
complainant, TH, she diagnosed her with “probable pediatric sexual abuse.” Id. at 244. Dr. Simms
acknowledged that TH’s physical examination was normal; it “did not show any acute or remote
indications of trauma.” Id. at 245. She also explained that she had not expected to find any
4
We also rejected defendant’s argument that his due-process rights were violated when, during
voir dire, a potential juror stated that she was a victim of sexual abuse and described a situation
that was similar to the facts of the present case. Del Cid, unpub op at 2-3.
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indications of trauma given TH’s descriptions of the alleged sexual contact. Id. at 244-246. She
explained that a finding of probable pediatric sexual abuse is appropriate when there is a “clear,
consistent, detailed, and descriptive” account of the abuse. Id. at 247-248.
The Supreme Court determined that Dr. Simms’s testimony that TH suffered “probable
pediatric sexual abuse” amounted to impermissible vouching:
Dr. Simms candidly acknowledged that her examination of TH showed no physical
evidence of an assault. Her conclusion that TH suffered “probable pediatric sexual
abuse” was based solely on her own opinion that TH’s account of the assaults was
“clear, consistent, detailed and descriptive.” This testimony clearly falls within
Smith’s holding that an examining physician cannot give an opinion on whether a
complainant had been sexually assaulted if the “conclusion [is] nothing more than
the doctor’s opinion that the victim had told the truth.” An examining physician’s
opinion is objectionable when it is solely based “on what the victim . . . told” the
physician. Such testimony is not permissible because a “jury [is] in just as good a
position to evaluate the victim’s testimony as” the doctor. [Id. at 261-262.]
The Court concluded that this error was obvious because “Smith was unanimous and has never
been called into question,” and it “provides a very straightforward bright-line test that trial courts
can readily observe.” Id. at 262. The Court then concluded that Dr. Simms’s testimony that TH
suffered probable pediatric sexual abuse affected the defendant’s substantial rights. Id. at 263.
The Court recounted its precedent establishing the prejudicial effect of expert vouching for a child-
complainant’s credibility:
[W]e believe the most prejudicial aspect of Dr. Simms’s testimony was that she
clearly vouched for TH’s credibility. This Court has previously drawn a distinction
between expert testimony that a particular child was abused and testimony about
the common characteristics of abused children:
Therefore, any testimony about the truthfulness of this
victim’s allegations against the defendant would be improper
because its underlying purpose would be to enhance the credibility
of the witness. To hold otherwise would allow the expert to be seen
not only as possessing specialized knowledge in terms of behavioral
characteristics generally associated with the class of victims, but to
possess some specialized knowledge for discerning the truth.
As we recognized in Beckley and embraced in [People v Peterson, 450 Mich.
349; 537 NW2d 857 (1995)]:
The use of expert testimony in the prosecution of criminal
sexual conduct cases is not an ordinary situation. Given the nature
of the offense and the terrible consequences of a miscalculation—
the consequences when an individual, on many occasions a family
member, is falsely accused of one of society’s most heinous
offenses, or, conversely, when one who commits such a crime would
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go unpunished and a possible reoccurrence of the act would go
unprevented—appropriate safeguards are necessary. To a jury
recognizing the awesome dilemma of whom to believe, an expert
will often represent the only seemingly objective source, offering it
a much sought-after hook on which to hang its hat. [Thorpe, 504
Mich. at 263-264.]
The Court then reiterated its view that Dr. Simms’s testimony amounted to impermissible
vouching and determined that this error was not harmless because the case was a credibility
contest:
[T]he Court of Appeals found no error in Dr. Simms’s testimony, reasoning that
Dr. Simms did not opine on whether [TH] was abused by [the defendant] but only
diagnosed [TH] with “probable pediatric sexual abuse.” We disagree. Regardless
of whether “probable pediatric sexual abuse” is a term of art that can be used as a
diagnosis with or without physical findings, we conclude that Dr. Simms’s
testimony had the clear impact of improperly vouching for TH’s credibility.
. . . [T]he instant case is largely a credibility contest. The only evidence
against [the defendant] was TH’s uncorroborated testimony. To bolster its case,
the prosecution presented testimony from a pediatrician who is board-certified in
child abuse pediatrics; who is currently a medical director at the Safe Harbor
Children’s Advocacy Center; who has examined, in her estimate, thousands of
children that have been sexually abused; and who has testified as an expert
witnesses [sic] in 32 counties. Given the lack of compelling testimony that forms
the basis for the verdict and the plainly erroneous testimony that TH suffered
“probable pediatric sexual abuse,” we conclude that the plain error affected [the
defendant’s] substantial rights. [Id. at 264.]
The Court further concluded that this was far more than “a mere evidentiary error.”
Rather, this error strikes at the heart of several important principles underlying our
rules of evidence. Dr. Simms’s testimony that TH suffered “probable pediatric
sexual abuse” based solely on TH’s statements about her history not only had the
effect of vouching for TH’s credibility, but it also invaded the province of the jury
to determine the only issue in the case. Then, Dr. Simms reinforced this plain error
by claiming that her diagnosis was based on a “national [consensus]” of
pediatricians when even a cursory review of the article on which she relies reveals
that the authors did not intend for pediatricians to rely on the article to make a
diagnosis of “probable pediatric sexual abuse” at trial. This improperly admitted
testimony very likely bolstered TH’s credibility and affected the verdict. We
conclude that the gravity of this significant error seriously affected the integrity of
Harbison’s trial. [Id. at 264-265.]
The Court reversed this Court’s judgment affirming the defendant’s convictions and remanded to
the circuit court for a new trial. Id. at 266.
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Harbison, Smith and the cases on which they relied establish a bright-line rule that an
examining physician’s opinion that a complainant was sexually abused is admissible only if
supported by physical findings. Dr. Simms’s testimony is contrary to that caselaw because, despite
the lack of any physical evidence of abuse, she diagnosed AC with possible pediatric sexual abuse.
In the absence of physical findings, it necessarily follows that the physician’s opinion is solely
based on her assessment of the complainant’s statements. The Supreme Court could not have been
clearer that such testimony is inadmissible because it invades the jury’s province to determine
witness credibility. See id. at 262.
The question then is whether Dr Simms’s otherwise inadmissible testimony should be
allowed in this case because she testified that AC was possibly, rather than probably, sexually
abused. We conclude that this is a distinction without a meaningful difference. “Possible pediatric
sexual abuse” is not significantly different from “probable pediatric sexual abuse” in terms of the
physician’s endorsement of the accusation. In both instances, the examining physician speaks to
the likelihood of abuse in the absence of any physical evidence and couches it in terms of a medical
diagnosis. This necessarily leads the jury to believe that the expert witness finds the complainant’s
account credible.5 And were we to consider “possible sexual abuse” as significantly different from
“probable sexual abuse” it would be inadmissible under MRE 403. Testimony that the “diagnosis”
is merely “possible” has very little probative value while, for the reasons discussed in Harbison,
such testimony is highly prejudicial.6
Indeed, Harbison strongly indicated that a “diagnosis” of sexual abuse made by a physician
has no place at trial absent positive physical findings. As in this case, in Harbison Dr. Simms
explained that the lack of supporting physical findings regarding the hymen did not mean that
penetration had not occurred because its “normal to be normal.” The Supreme Court stated that,
to the extent that Dr. Simms’s diagnosis was based on Examination Findings in Legally Confirmed
Child Sexual Abuse: It’s Normal to be Normal, 94 Pediatrics 310 (1994)—the same article she
referred to in her testimony in the instant case—her reliance on it was “seriously misplaced.” The
Court explained:
Relying on this article to testify at trial concerning whether a complainant suffered
“probable pediatric sexual abuse” actually undermines the integrity of the study by
proving the very premise that it accepts as true, i.e., that legally confirmed
5
In Harbison, Dr. Simms testified that a diagnosis of possible pediatric sexual abuse is given if a
child’s “statement is limited,” possibly because the child has a developmental disability, is young,
or is unable to really communicate what happened. Thorpe, 504 Mich. at 247. Here, the jury was
not provided that context. But even if the jury had heard that explanation, it would not change our
view of the case because the opinion would still be solely based on the complainant’s statements,
and any diagnosis from an expert witness may be viewed by the jury as a “stamp of approval.”
6
To be clear, where there are no physical findings a physician may not testify that the complainant
suffered “possible pediatric sexual abuse” or other phrases indicating a conclusion as to the
likelihood that such abuse actually occurred. At the same time, however, a medical expert may
offer the opinion that a lack of physical findings does not affirmatively establish that no abuse
occurred.
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convictions are a valid measure of the truth. The article admits as much by
acknowledging that “since the examiner testified in court in 34 of the cases in which
the perpetrator was convicted following a jury trial, it is possible that testimony
concerning medical findings contributed to the conviction.” Id. at 315 (emphasis
added). Given that the article notes that it “is possible that testimony concerning
medical findings contributed to the conviction,” it seems likely that testimony
concerning a “diagnosis” would further contribute to the conviction, especially, as
in this case, when there are no physical findings to be found. Id. In many respects,
relying on the article in this manner is akin to offering into evidence conviction
rates to establish that those charged with crimes will “probably” be convicted.
We conclude that the article is clearly directed toward making a “diagnosis”
on the basis of “ ‘proof’ before proceeding with criminal charges” and does not
support a “diagnosis” of pediatric sexual abuse at trial. Id. at 317 (emphasis added).
The article only once refers to the term “diagnosis” and only does so by placing the
term in scare quotes, which are “used to express esp. skepticism or derision
concerning the use of the enclosed word or phrase.” Merriam-Webster’s Collegiate
Dictionary (11th ed). In other words, the term “diagnosis” is not being used in its
traditional sense. This makes sense, as even Dr. Simms herself explained that the
purpose of the “diagnosis” was “to allow pediatricians that do child abuse
evaluations to communicate with one another effectively . . . .”
Rather, the article is directed at pediatricians who must make referrals of
possible sexual abuse and to inform prosecutors that the absence of medical
“findings” does not mean that the complainant did not suffer sexual abuse. This
This reading of the article not only makes sense but is consistent with Michigan
law and likely the law of every other state. Indeed, the Michigan Legislature set a
very low bar for triggering a report of sexual abuse, requiring a report if one only
“has reasonable cause to suspect child abuse or child neglect . . . .” MCL
722.623(1)(a). [Thorpe, 504 Mich. at 265 n 65.]
Harbison thus recognized that a “diagnosis” of sexual abuse absent physical findings is a
term of art and has no probative value at trial. That the Court spoke disapprovingly of such
diagnoses without qualification supports our conclusion that a diagnosis of possible pediatric
sexual abuse is also inadmissible without corroborating physical findings. And in this case, Dr.
Simms expressly referenced the article discussed in Harbison, thus compounding the initial error
of introducing her diagnosis into evidence. See id. at 265.
In sum, we conclude that the admission of Dr. Simms’s testimony that AC suffered possible
pediatric sexual abuse was plain error as it was contrary to Smith and Harbison.7 We further
7
The defendant in Harbison did not object to Simms’s testimony and the Supreme Court
unanimously held that its admission was plain error under Smith. We see no reason to reach a
different conclusion. Moreover, reversal is merited under Harbison even though it was decided
after the verdict in this case as defendant raised the issue on appeal. At a minimum, Harbison
should be given limited retroactive effect. See People v Quinn, 305 Mich. App. 484, 490; 853
NW2d 383 (2014).
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conclude that this error affected defendant’s substantial rights. The present case was a credibility
contest. The testimony of the prosecution’s other witnesses did not corroborate AC’s testimony
that defendant repeatedly had sexual intercourse with her while she was between the ages of 12
and 14. Defendant testified that he never touched AC in a sexual manner and that he never touched
her vagina. His testimony was supported by AC’s mother and sister who testified that they did not
witness anything inappropriate between defendant and AC and offered negative opinions regarding
AC’s character for truthfulness. Because Dr. Simms testified that she was board-certified in child
abuse pediatrics, had “lots” of years of experience, was the child abuse pediatrician for the Center
for Child Protection and Ottawa County Children’s Advocacy, and had been qualified as an expert
in 37 counties in Michigan, the introduction of her diagnosis undermined the reliability of the
verdict. See People v Feezel, 486 Mich. 184, 192; 783 NW2d 67 (2010). For the same reasons
stated by the Supreme Court in Harbison, we also conclude that Dr. Simms’s testimony seriously
affected the integrity of defendant’s trial. An opinion from Dr. Simms as to whether AC was
sexually abused not only had the effect of vouching for the AC’s credibility, but it also invaded
the province of the jury to determine whether defendant sexually abused the victim. Therefore,
admission of that testimony was not a mere evidentiary error. Thorpe, 504 Mich. at 264-265.
Reversed and remanded. We do not retain jurisdiction.
/s/ Douglas B. Shapiro
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
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