PEOPLE OF MI V DOUGLAS CARL HARMON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
December 4, 2001
9:15 a.m.
Plaintiff-Appellee,
v
DOUGLAS CARL HARMON, a/k/a DOUGLAS
CARL HARMAN,
Defendant-Appellant.
No. 226089
Muskegon Circuit Court
LC No. 99-043820-FH
Updated Copy
February 15, 2002
Before: Griffin, P.J., and Gage and Meter, JJ.
METER, J.
Defendant appeals as of right from his conviction following a bench trial of four counts
of making child sexually abusive material, MCL 750.145c(2). The trial court sentenced him as a
second-offense habitual offender, MCL 769.10, to concurrent terms of ten to thirty years'
imprisonment. We affirm, but remand for the ministerial task of correcting the presentence
investigation report.
The evidence presented at trial established that defendant took nude photographs of two
fifteen-year-old girls with a digital camera in a studio located in defendant's house. Testimony
indicated that photographs were taken on two separate occasions: July 10 and July 20, 1999. At
trial, the prosecution introduced four photographs, two of each girl, that were taken on July 20.
The trial court found that these four photographs supported four convictions under MCL
750.145c(2).
Defendant first contends that the prosecutor presented insufficient evidence to sustain
four convictions under MCL 750.145c(2). We disagree.
In reviewing the sufficiency of the evidence in a criminal case, this Court must review the
evidence in the light most favorable to the prosecutor and determine whether a rational trier of
fact could have found that the essential elements of the crime were proved beyond a reasonable
doubt. People v Wolfe, 440 Mich 508, 513-515; 489 NW2d 748 (1992), amended 441 Mich
1201 (1992). This standard applies to bench trials. People v Legg, 197 Mich App 131, 132; 494
NW2d 797 (1992). This Court must resolve all evidentiary conflicts in favor of the prosecution.
People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
-1-
MCL 750.145c(2) states:
A person who persuades, induces, entices, coerces, causes, or knowingly
allows a child to engage in a child sexually abusive activity for the purpose of
producing any child sexually abusive material, or a person who arranges for,
produces, makes, or finances, or a person who attempts or prepares or conspires to
arrange for, produce, make, or finance any child sexually abusive activity or child
sexually abusive material is guilty of a felony, punishable by imprisonment for
not more than 20 years, or a fine of not more than $100,000.00, or both, if that
person knows, has reason to know, or should reasonably be expected to know that
the child is a child, or that person has not taken reasonable precautions to
determine the age of the child.
MCL 750.145c(1)(h) states that "'[c]hild sexually abusive activity' means a child engaging in a
listed sexual act." Under MCL 750.145c(1)(e), a "listed sexual act" includes erotic nudity. MCL
750.145c(1)(d) defines "erotic nudity" as "the lascivious exhibition of the genital, pubic, or rectal
area of any person." MCL 750.145c(1)(d) further states that "[a]s used in this subdivision,
'lascivious' means wanton, lewd, and lustful and tending to produce voluptuous or lewd
emotions."
MCL 750.145c(1)(i) defines "child sexually abusive material" as
a developed or undeveloped photograph, film, slide, electronic visual image,
computer diskette, or sound recording of a child engaging in a listed sexual act; a
book, magazine, or other visual or print medium containing such a photograph,
film, slide, electronic visual image, or sound recording; or any reproduction, copy,
or print of such a photograph, film, slide, electronic visual image, book,
magazine, other visual or print medium, or sound recording.
We first note that the felony complaint and information did not identify any specific dates
on which the four crimes occurred; the documents simply indicated that the crimes occurred in
"June/July 1999." However, the prosecutor acknowledges that the photographs presented at trial
derived from solely the second photography session on July 20, and the prosecutor's theory at
trial was that those four photographs formed the basis for the four charged counts. In addition,
the trial court explicitly relied on the four photographs to support its finding that defendant was
guilty of the four charged counts; the trial court found that the four photographs constituted
depictions of erotic nudity because of their lascivious nature. Therefore, the question becomes
whether the four photographs, two of each victim, could support four convictions under MCL
750.145c(2), even though the four photographs were from one photography session on July 20,
1999.
Defendant contends that the evidence supported only two convictions, one corresponding
to each girl, because the four photographs derived from a single photography session. In making
this argument, defendant relies on People v Smith, 205 Mich App 69, 72-73; 517 NW2d 255
(1994), aff 'd on other grounds 450 Mich 349; 537 NW2d 857 (1995), in which this Court,
addressing the defendant's four convictions under MCL 750.145c(2), stated:
-2-
However, we agree with defendant that the evidence presented by the
prosecutor was scant with respect to the number of occasions on which this
conduct occurred. Even viewing the evidence in the light most favorable to the
prosecutor, we can conclude that defendant took more than one photograph, but
only on one occasion. It cannot be discerned from the victim's testimony exactly
how many photographs were taken (she only refers to "pictures" in the plural) and
the victim only specifically described one occasion on which defendant took
photographs. Accordingly, while we conclude that the witness did give testimony
sufficient to allow the conclusion by the jury that defendant committed one count
of child sexually abusive activity, we cannot say that there was sufficient
evidence to justify the conclusion that defendant committed four counts of child
sexually abusive activity. Accordingly, we set aside three of defendant's four
convictions of child sexually abusive activity, leaving in place only one
conviction and sentence for that offense.
Two years later, in People v Hack, 219 Mich App 299, 306-307; 556 NW2d 187 (1996),
this Court stated in dicta:
In Smith, this Court determined that the defendant could only be convicted
once for multiple photographs taken of the same victim at one time. Here,
however, we are dealing with multiple acts committed against two victims.
Accordingly, this Court's opinion in Smith does not govern the outcome of this
case.
At first blush, it appears that defendant is correct in arguing that the evidence in the
instant case supported only two convictions under MCL 750.145c(2). On closer examination,
however, we must reject defendant's argument. Indeed, we do not believe that Hack set forth the
correct interpretation of Smith. Contrary to the assertion in Hack, the Smith Court did not
explicitly state that a "defendant could only be convicted once for multiple photographs taken of
the same victim at one time." See id. Indeed, in vacating three of the defendant's convictions in
Smith, this Court was swayed by the lack of evidentiary specificity with regard to the number of
photographs. See Smith, supra at 72-73. The Smith panel may have been concerned, for
example, that less than four photographs were taken or that certain of the photographs were not
sufficiently lascivious to support a conviction under MCL 750.145c(2). In the instant case, by
contrast, the prosecutor presented four photographs that the trial court specifically concluded
were lascivious. In light of this evidence, we can discern no reason why defendant could not be
convicted of four counts of "mak[ing] . . . child sexually abusive material" under MCL
750.145c(2). Indeed, defendant made four "photograph[s]" under MCL 750.145c(1)(i) and
therefore could be convicted of four counts under the plain language of the relevant statutes. See
People v Childs, 243 Mich App 360, 367; 622 NW2d 90 (2000) (unambiguous statutes must be
enforced as written). Smith is sufficiently distinguishable from the instant case; no error
occurred here with regard to the number of convictions.1
1
Our conclusion in this regard renders moot defendant's argument that the trial court made
insufficient factual findings to support convictions with regard to the first photography session.
-3-
Defendant additionally contends that the prosecutor presented insufficient evidence to
support the trial court's findings that defendant knew, had reason to know, or reasonably should
have been expected to know the ages of the victims or failed to take reasonable precautions to
determine their ages. Again, we disagree.
One victim testified that she told defendant at one of the two photography sessions that
she was fifteen years old. According to this victim, defendant did not ask her for any
identification before photographing her in the nude. The victim further stated that she did not see
or hear defendant request identification from the other victim before taking nude photographs.
The second victim testified that defendant did not ask either victim about their ages before taking
photographs and that she never told defendant her age. She further testified that she signed a
model release form indicating that she was over eighteen but did not sign the document until
after the nude photographs were taken. She claimed that at defendant's direction, she signed and
backdated the document to make it appear that she had signed it before the photographs were
taken. Another girl who accompanied the victims to the first photography session confirmed the
second victim's testimony regarding the backdating of the model release form.
Defendant testified that both victims signed release forms indicating that they were over
eighteen; however, defendant could not find the form for one of the victims. Defendant
additionally asserted that he took no nude photographs at the first photography session and that
the victims promised to produce identification before any nude photography took place in the
future. Defendant testified that at the second photography session, the victims told defendant
that they forgot to bring identification, and defendant admitted that he proceeded to take nude
photographs, regardless of the lack of identification, on the promise from the victims that they
would supply identification within seven days.
Viewing this testimony in the light most favorable to the prosecutor, there was sufficient
evidence for the jurors to conclude that defendant failed to take reasonable precautions to
determine the age of the victims.2 No error occurred with regard to the sufficiency of the
evidence.
Next, defendant contends that incorrect scoring occurred with regard to certain offense
and prior record variables contained in the legislative sentencing guidelines.3 Defendant
challenges the scoring of offense variable (OV) 10 (exploitation of a vulnerable victim), which
was scored at ten points, OV 13 (continuing pattern of criminal behavior), which was scored at
twenty-five points, and prior record variable (PRV) 7 (subsequent or concurrent felony
convictions), which was scored at twenty points.
2
Contrary to defendant's contention, this case did not involve witness testimony that was so
inherently implausible or so seriously impeached that it could not possibly be believed by a
reasonable juror, as discussed in People v Lemmon, 456 Mich 625, 644; 576 NW2d 129 (1998).
3
The offenses here were committed in July 1999; therefore, this matter is controlled by the
legislative sentencing guidelines. See People v Reynolds, 240 Mich App 250, 253; 611 NW2d
316 (2000).
-4-
We initially note that in the trial court, defendant did not raise any issues before, during,
or after sentencing regarding the scoring of the offense and prior record variables that are at issue
on appeal. Moreover, defendant was sentenced within the range produced by the guidelines.
A party shall not raise on appeal an issue challenging the scoring of the
sentencing guidelines or challenging the accuracy of information relied upon in
determining a sentence that is within the appropriate guidelines sentence range
unless the party has raised the issue at sentencing, in a proper motion for
resentencing, or in a proper motion to remand filed in the court of appeals. [MCL
769.34(10); see also MCR 6.429(C).]
Therefore, the scoring issue is not properly presented for appeal. However, defendant also
contends that his trial attorney rendered ineffective assistance of counsel by failing to challenge
the scoring of the offense and prior record variables. Accordingly, appellate review of the
scoring issue, as it relates to ineffective assistance of counsel, is appropriate.
To establish ineffective assistance of counsel, a defendant must show (1) that the
attorney's performance was objectively unreasonable in light of prevailing professional norms
and (2) that, but for the attorney's error or errors, a different outcome reasonably would have
resulted. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001). Defendant has not
met this burden in the instant case, because, as will be noted, his offense and prior record
variables were correctly scored. Counsel was not required to make a meritless objection to the
scoring, see People v Gist, 188 Mich App 610, 613; 470 NW2d 475 (1991), and the failure to
object was not objectively unreasonable and did not reasonably affect the outcome of the
proceedings. Carbin, supra at 600.
Regarding OV 10, MCL 777.40(1)(b) dictates a score of ten points if "[t]he offender
exploited a victim's . . . youth . . . ." MCL 777.40(3)(b) states, "[e]xploit means to manipulate a
victim for selfish or unethical purposes." MCL 777.40(2) states that "[t]he mere existence of 1
or more factors described in subsection (1) does not automatically equate with victim
vulnerability." Defendant argues that despite the girls' young ages in this case, there was no
evidence that they were vulnerable or that he exploited them. He contends that the girls
participated in the photography sessions without any coercion or exploitation on his part. We
disagree. Indeed, the evidence presented at trial established that defendant manipulated the
victims and took advantage of their vulnerability based on age. First, defendant paid the victims
to pose nude, thereby dangling a financial reward in front of victims who defendant
acknowledged were in need of money. Second, defendant took advantage of the victims'
youthful aspirations to become models. By using these two incentives, fame and fortune,
defendant manipulated the minors into posing for lewd and lascivious photographs. No error
occurred in the scoring of OV 10.
Regarding OV 13, MCL 777.43(1)(b) dictates a score of twenty-five points if "[t]he
offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a
person." MCL 777.43(2)(a) states that "[f]or determining the appropriate points under this
variable, all crimes within a 5-year period, including the sentencing offense, shall be counted
regardless of whether the offense resulted in a conviction." Defendant contends that because his
previous conviction for delivery of a controlled substance to a minor was not a crime against a
person but instead a controlled substance crime, it could not be considered under MCL
-5-
777.43(1)(b). We need not reach this issue. Indeed, the court nonetheless appropriately scored
OV 13 at twenty-five points because of defendant's four concurrent convictions under MCL
750.145c(2). No error occurred in the scoring of OV 13.
Regarding PRV 7, MCL 777.57(1)(a) dictates a score of twenty points if "[t]he offender
has 2 or more subsequent or concurrent convictions." Defendant argues that because of his
arguments regarding the sufficiency of the evidence and because he could be convicted of only
two counts under MCL 750.145c(2) in this case, the proper score for PRV 7 was ten points for "1
subsequent or concurrent conviction" under MCL 777.57(1)(b). Because we have upheld all four
of defendant's instant convictions, this argument is without merit. No error occurred in the
scoring of PRV 7.
Finally, defendant takes issue with certain information contained in the presentence
investigation report (PSIR). At sentencing, defendant objected to references in the PSIR about
his alleged involvement in nude photography with underage females other than the victims of the
instant crimes. The court stated on the record that it was "not weighing that in sentencing."
Accordingly, the information about additional nude photography must be stricken from the PSIR.
See People v Taylor, 146 Mich App 203, 205-206; 380 NW2d 47 (1985). However, because the
trial court did not rely on the challenged information in sentencing defendant, resentencing is not
required.
Defendant appears to challenge additional information (e.g., the allegation that he bought
underwear from girls) contained in the PSIR but does not set forth a reasoned argument with
regard to it. Indeed, it is apparent that defendant's appellate argument is focused on the nude
photography allegations about additional girls that the trial court disregarded.4 Accordingly,
appellate review with regard to the possible additional challenges to the PSIR is inappropriate.
Indeed, "[a] party may not merely state a position and then leave it to this Court to discover and
rationalize the basis for the claim." People v Griffin, 235 Mich App 27, 45; 597 NW2d 176
(1999).5
4
Indeed, defendant indicates in his appellate brief that "[t]he court claimed that it would not take
into consideration the challenged material." The court made this claim solely with regard to the
nude photography allegations and not to the additional allegations (e.g., the buying of
underwear) that defendant appears to challenge on appeal.
5
Even if we did review the information in the PSIR about buying underwear, we would find no
basis for relief. Indeed, with regard to this issue, defendant objected at sentencing to the
statement about "offering to and on occasion purchasing underwear." Defense counsel stated,
"Mr. Harmon in his testimony denied that, and he denies that today." The court responded:
Well, I—I accepted that testimony as true. I heard testimony under oath.
I'm allowed to make reasonable inferences. . . . I did not believe a great deal of
what Mr. Harmon said. And I think there was sufficient evidence on the record,
both direct evidence and reasonable one-step inferences, to justify what's in the
presentence report as to those items. So, I would leave that in there.
(continued…)
-6-
Affirmed, but remanded for the ministerial task of correcting the presentence
investigation report. We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Richard Allen Griffin
/s/ Hilda R. Gage
(…continued)
In objecting to the underwear information, defendant relied merely on his prior testimony at trial,
and the court essentially indicated that it did not find this testimony believable but instead
believed other testimony indicating that underwear buying did occur.
Under these
circumstances, no error requiring resentencing occurred.
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.