Ineffective assistance of counsel; Stipulation to admission of a sexual assault nurse examiner (SANE) report; Confrontation Clause violation; Prejudice; MRE 803(4) (statements made for purposes of medical treatment or diagnosis); People v Meeboer; Failure to object to impeachment of a defense witness with prior crimes; MRE 609; Sentencing; Scoring of OVs 3 & 19; MCL 777.33(1)(e); MCL 777.49(c)

While the court found there was a Confrontation Clause violation, it held that even if it assumed defense counsel was deficient in this regard, defendant could not show prejudice. He also could not establish prejudice related to his claim defense counsel was ineffective for failing to object to impeachment of a defense witness with prior crimes. Further, the trial court did not err in scoring 5 points for OV 3 and 10 points for OV 19 in sentencing him. Thus, it affirmed his CSC I conviction and his sentence to 13 to 30 years as a third-offense habitual offender. The exam was conducted by a physician’s assistant (P) who did not testify. Her supervisor (S) testified, relying on P’s report. The court found that S’s testimony about the SANE report violated the Confrontation Clause. It determined P’s “statement (i.e., the report), as opposed to the victim’s statements contained within the report, was testimonial.” But, assuming without deciding a deficiency on defense counsel’s part, defendant could not show “prejudice for three reasons. First, the objection would not necessarily have kept out the content of [P’s] report. The most likely outcome of such an objection is that the trial (or [P’s] testimony) would be rescheduled to a date when [P] was available for in-person testimony and cross-examination. Second, it” was not clear P “testifying about her own observations and interaction with the victim would benefit” defendant. He did not point to any “credibility issues or other differences between [P] and [S] that would lead to a different outcome. Third, although [P’s] description of the victim’s statements provided a clearer description of the penetrative nature of the sex act at issue . . . than the victim’s other prior statements, if [P] had been available to testify, her recollection of the victim’s statements would still have been admissible.” This issue overlapped with defendant’s argument the report was not admissible under MRE 803(4), which the court rejected. The SANE exam took place “hours after the sexual assault.” The victim went to the exam right after she was discharged “from the hospital. This followed her doctor’s referral for continuation of care that otherwise would have happened at the hospital.” Thus, her statements were admissible under MRE 803(4). The court further found that the evidence of defendant’s guilt was “sufficiently strong that removing the SANE report from the body of evidence would not yield a different result.”