[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Eaton Circuit Court. LC Nos. 12-020060-FH, 12-020070-FH, 12-020177-FH.
For PEOPLE OF MI, Prosecutor, PLAINTIFF-APPELLEE: BRENT MORTON, CHARLOTTE, MI.
For HALLAK KASSEM MAHMOUD, Retained, DEFENDANT-APPELLANT: F MARTIN TIEBER, LANSING, MI.
Before: BOONSTRA, P.J., and SAAD and MURRAY, JJ.
[310 Mich.App. 559] Christopher M. Murray,
Defendant, a medical doctor, was convicted by a jury of his peers of second-degree criminal [310 Mich.App. 560] sexual conduct (CSC-II), MCL 750.520c(1)(a) (sexual contact with victim under 13 years of age), third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(b) (sexual penetration by force or coercion), and six counts of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(b) (sexual contact by force or coercion). On appeal, defendant argues that the evidence was insufficient to support his CSC-II conviction, that his sentence to lifetime electronic monitoring violates his state and federal constitutional rights against cruel and/or unusual punishment, unreasonable searches, and double jeopardy, and that the trial court erred in utilizing facts not found by the jury in scoring the sentencing guidelines. For the reasons that follow, we reject each of defendant's arguments, and consequently affirm both his conviction and sentence.
I. MATERIAL FACTS AND PROCEEDINGS
Defendant's CSC-II conviction, the only conviction he challenges on appeal, is based on his improperly touching a 12-year-old patient, SB. As a result, we will only recount the material facts presented at trial that are relevant to that conviction.
On March 30, 2010, 12-year-old SB saw defendant for a medical exam. SB testified that while defendant was facing her with his back to the door and was either checking her throat with a tongue depressor, or was just holding the tongue depressor, he " cupped" her right breast for between 1 and 30 seconds with his left hand on the outside of her shirt. Defendant explained to SB that he was checking her breathing.
SB's mother, whom we will refer to as MB, testified that defendant's wife, Dr. Debbie Hallak, was SB's primary care doctor. Dr. Hallak's practice was on one [310 Mich.App. 561] side of the office; the urgent care clinic operated by defendant was on the other side. MB testified that on March 30, 2010, SB, who had irritable bowel syndrome (among other conditions), saw defendant for stomach issues at the urgent care clinic. MB
explained that payment was always made before seeing a physician at this office but, on this day, there was a problem processing the insurance. As a result, MB dealt with the payment issue while a nurse obtained SB's height and weight before escorting her into an examination room. When MB finished with the insurance issue, she proceeded to the examination room, expecting to see Dr. Hallak with her daughter. When she walked in, MB saw defendant facing her daughter. His left hand held a stethoscope to SB's right side. However, his right hand was holding SB's left breast with the shirt and bra removed. According to MB, when she asked " what the hell he was doing," defendant left the room. When MB again asked defendant what he was doing, he asserted that MB was a bad mother because SB had not brushed her teeth. MB testified that defendant eventually said he had removed SB's bra because he could not hear her heart beat and that Dr. Hallak subsequently told her that was normal or that it would not be anything to worry about if he moved the bra because the wire got in the way.
For his part, defendant denied ever deviating from his policy of having a parent or guardian in the examination room when seeing a child, and specifically denied being alone with SB. Defendant testified that when he was examining SB's throat, he would have [310 Mich.App. 562] had the tongue depressor in one hand and a flashlight in the other; he denied fondling her breast, and denied that MB yelled at him about fondling her daughter's breast. He also denied examining SB with a stethoscope that day.
Dr. Grant Greenberg testified as a prosecution expert witness in family practice and addressed ethical and acceptable practices. Relative to SB, he opined that while it might be appropriate for a parent to leave the examining room so a minor could discuss something in private with the doctor, this would only be done if the parent agreed. According to Dr. Greenberg, it would not be medically ethical or acceptable to touch a patient's breast while examining her throat. Dr. Greenberg additionally noted that touching a patient's breast during this type of examination would be counterproductive given the additional tissue in that area, and that touching the breast while examining the patient's chest with a stethoscope was equally unnecessary, problematic, and unethical.
Dr. Joseph Shufeldt testified as a defense expert in the area of urgent care, family practice in the urgent care setting, and ethical and acceptable medical practices. He agreed that there should be a chaperone with an 11- or 12-year-old minor unless the parent otherwise consents.
Along with this testimony that directly related to the touching of SB, the jury heard testimony from several witnesses who also claimed to have experienced similar treatment from defendant while under his care. Additionally, the jury heard the other victims testify in the cases consolidated with SB's.
After the jury's verdict, the trial court sentenced defendant to prison terms of 57 to 180 months for the CSC-II conviction, 85 to 180 months for the CSC-III [310 Mich.App. 563] conviction involving another victim, and 16 to 24 months for each CSC-IV conviction also involving other victims. The court additionally ordered lifetime electronic monitoring as part of defendant's CSC-II sentence. We now turn to defendant's arguments.
A. SUFFICIENCY OF THE EVIDENCE
Defendant seeks to overturn his CSC-II conviction on the basis that his state and federal rights to due process of law were violated because there was insufficient evidence on the intent element of the crime, i.e., that the touching of SB was for a sexual purpose. The most that was established, according to defendant, was that he had noticed (and mentioned to MB) during an earlier abdominal examination that SB had pubic hair and that he had touched her breast while checking her breathing or examining her heart with a stethoscope. Defendant maintains that touching of intimate body parts occurs often during such an examination and such intentional touching itself cannot establish a sexual purpose in this context. Because there were no other actions or communications that suggested the purpose was sexual, and any actions and communications relative to other victims did not establish a sexual purpose as to SB, defendant asserts that there was insufficient evidence upon which to convict him. [310 Mich.App. 564] According to defendant, upholding this conviction would put doctors in danger of CSC prosecutions for " virtually any physical examination."
In addressing this issue, our task is to determine whether any rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. We resolve all conflicting evidence in favor of the prosecution, while acknowledging that circumstantial evidence and reasonable inferences may be sufficient to prove ...