Michigan Court Of Appeals Affirms CSC Conviction

On May 28, 2015, the Michigan Court of Appeals held in a criminal case that there was sufficient evidence presented at trial to convict a medical doctor of a variety of sexually assaultive crimes, including criminal sexual conduct (CSC) in the second, third, and fourth degrees.

In People v Hallak, Docket No. 317863, the Michigan Court of Appeals addressed a variety of arguments made by defendant, including a number of constitutional challenges to his punishment and the requirement that he submit to lifetime electronic monitoring as a sex offender after he completes his prison sentence.

The Court first recited the facts of the case.

Defendant’s CSC II conviction, the only conviction he challenges on appeal, is based on his improperly touching a twelve-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 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 issues1 at the urgent care clinic because Dr. Hallak was not available. 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 moved 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 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 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 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.

The Court's analysis of whether the jury's verdict was supported by sufficient evidence at trial followed.

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. According to defendant, upholding this conviction would put doctors in danger of CSC prosecutions for “virtually any physical examination . . . ."

“It is a well-established rule that a jury may convict on the uncorroborated evidence of a CSC victim.” People v Lemmon, 456 Mich 625, 642 n 22; 576 NW2d 129 (1998); MCL 750.520h. Moreover, “because it can be difficult to prove a defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant’s state of mind, which can be inferred from all the evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008).

Upon our review of the record, we hold that the evidence was sufficient to allow a jury to conclude that defendant did more than just touch SB’s breast during a medical examination, and that it was for a sexual purpose. SB’s testimony that defendant “cupped” her breast, coupled with MB’s witnessing of the event and Dr. Greenberg’s testimony that it would not be medically ethical or acceptable to touch a patient’s breast while examining her throat, was sufficient for the jury to conclude that the touching was not for a legitimate medical purpose. If not for a medical purpose, the “cupping” was sufficient to give rise to an inference that it was for a sexual purpose, particularly in light of defendant’s various explanations for the situation when confronted by MB. Accordingly, there was sufficient evidence to convict defendant of CSC II based on sexual contact with a person under the age of 13.

We likewise reject defendant’s assertion that upholding his conviction could expose those in the medical field to unwanted CSC prosecutions for any sort of conduct occurring during a physical examination. First, the facts presented to the jury in defendant’s case were not that of a routine medical exam. Defendant did not have a third person present during the examination of a minor, and two witnesses testified as to his “cupping” the minor’s breast, and an expert testified that there was no medical reason to do so. Second, we firmly believe that between the objective screening charging procedures used by the prosecution, a trial court’s ability to dismiss cases without factual support (see MCR 6.419), and a jury’s keen ability to accurately determine the facts of a case, that there are sufficient protections within the system to avoid the concerns raised by defendant.