PEOPLE OF MI V RICHARD LEELAND GIRARDAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
September 22, 2005
November 22, 2005
Crawford Circuit Court
LC No. 03-002110-FC
RICHARD LEELAND GIRARD,
Official Reported Version
Before: Sawyer, P.J., and Talbot and Borrello, JJ.
Defendant appeals as of right his jury trial convictions of five counts of first-degree
criminal sexual conduct (CSC I), MCL 750.520b, and three counts of possession of child
sexually abusive material, MCL 750.145c(4). Defendant was sentenced to concurrent terms of
17 1/2 to 40 years of imprisonment for each count of CSC I and one year for each count of
possession of child sexually abusive material. We affirm.
Defendant argues that the trial court abused its discretion in denying his motion to sever
the CSC I charges from the charges of possession of child sexually abusive material. We
disagree. MCR 6.120(B) provides that "[o]n the defendant's motion, the court must sever
unrelated offenses for separate trials." Whether defendant's charges are related is a question of
law that we review de novo. People v Tobey, 401 Mich 141, 153; 257 NW2d 537 (1977). The
court's ultimate ruling on a motion to sever is reviewed for an abuse of discretion. People v
Duranseau, 221 Mich App 204, 208; 561 NW2d 111 (1997).
The staff comment to MCR 6.120 notes that "[t]he standard in subrule (B) . . . is derived
from ABA Standard 13-1.2, and a predecessor standard, ABA Project on Minimum Standards for
Criminal Justice, Standards Relating to Joinder and Severance (Approved Draft, 1968), Standard
1.1." Standard 13-1.2 defines related offenses as follows: "'[t]wo or more offenses are related
offenses if they are based upon the same conduct, upon a single criminal episode, or upon a
common plan.'" People v McCune, 125 Mich App 100, 103; 336 NW2d 11 (1983), quoting
ABA Standard 13-1.2. Standard 1.1 provides:
"Two or more offenses may be joined in one charge, . . . when the offenses
(a) are of the same or similar character, even if not part of a single scheme
or plan; or
(b) are based on the same conduct or on a series of acts connected together
or constituting parts of a single scheme or plan." [Tobey, supra at 150 n 13,
quoting Standard 1.1.]
The complainant, who is defendant's stepdaughter, and defendant's wife testified at trial
that defendant looked at sexual images on his computer, including images of children, while
engaging in sexual acts with them. The testimony implied that defendant used child
pornography for stimulation before and during his sexual abuse of the complainant and, thus, the
use of child pornography was part of his modus operandi. Furthermore, a prosecution expert
testified that the pictures used as exhibits at the trial were viewed on defendant's computer within
the same time frame that defendant was molesting the complainant. Thus, the circumstances in
the case at bar clearly fall within the plain language of MCR 6.120(B). Moreover, evidence
regarding defendant's habit of viewing child pornography was part of the res gestae of the CSC I
crimes. Accordingly, we conclude that the trial court did not err in refusing to sever the charges.
Defendant also argues that the charges should have been severed under MCR 6.120(C),
which gives the court discretion to sever related charges on grounds of unfair prejudice.
However, because the evidence regarding defendant's possession of child sexually abusive
material would have been admissible at a separate trial on the CSC I charges for the reasons just
discussed, defendant cannot establish that a different outcome was likely had the charges been
severed and separate trials held. See, e.g., People v Delgado, 404 Mich 76, 83; 273 NW2d 395
(1978) ("'Evidence of other criminal acts is admissible when so blended or connected with the
crime of which defendant is accused that proof of one incidentally involves the other or explains
the circumstances of the crime.'" [Citation deleted.]). For this same reason, we reject defendant's
unpreserved assertion that joinder of the charges effectively violated MRE 404(b). See, e.g.,
Delgado, supra at 83 ("When such is the case and the antecedent event incidentally involves the
commission of another crime, the principle that the jury is entitled to hear the 'complete story'
ordinarily supports the admission of such evidence.").
Defendant also argues that the admission of the images at issue violated MRE 1002
(requirement of original) because they were only identified by witnesses as being similar to the
images they had seen on defendant's computer. Again, we disagree. Because defendant failed to
object to the admission of the images on best evidence grounds, this issue is unpreserved.
People v Griffin, 235 Mich App 27, 44; 597 NW2d 176 (1999). To prevail in a claim of
unpreserved nonconstitutional error, "[t]he defendant must show a plain error that affected
substantial rights. The reviewing court should reverse only when the defendant is actually
innocent or the error seriously affected the fairness, integrity, or public reputation of judicial
proceedings." People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).
MRE 1002 provides:
To prove the content of a writing, recording, or photograph, the original
writing, recording, or photograph is required, except as otherwise provided in
these rules or by statute.
MRE 1004 provides:
The original is not required, and other evidence of the contents of a
writing, recording, or photograph is admissible if—
(1) Originals Lost or Destroyed. All originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original Not Obtainable. No original can be obtained by any available
judicial process or procedure; or
(3) Original in Possession of Opponent. At a time when an original was
under the control of the party against whom offered, that party was put on notice,
by the pleadings or otherwise, that the contents would be a subject of proof at the
hearing, and that party does not produce the original at the hearing; or
(4) Collateral Matters. The writing, recording, or photograph is not
closely related to a controlling issue.
The complainant testified that defendant looked at sexually explicit images on his
computer, including pictures of nude children, before or while engaged in sexual acts with her.
This testimony was res gestae evidence used to describe the circumstances surrounding the
sexual assaults. Thus, insofar as the CSC I charges were concerned, the evidence of child
pornography found on defendant's computer was a collateral matter and was not related to a
controlling issue. Therefore, under MRE 1004 the original pictures were not required, and other
evidence, including photographs that witnesses testified were similar, could be used to establish
the circumstances surrounding the crime.
The photographs were also used as evidence to prove the knowing possession element of
MCL 750.145c. As discussed below, the prosecution had to show more than just the presence of
child sexually abusive material in a temporary Internet file or a computer recycle bin to prove
that defendant knowingly possessed the material. This element was established by the testimony
of a friend of defendant's that defendant had sent him pictures of nude children similar to those
exhibited at the trial. Because of the large volume of images stored on defendant's hard drive
and because the friend's computer was not searched, it was impossible for the prosecution to
determine which images had been sent to the friend.
Defendant also argues that there was insufficient evidence for conviction under MCL
750.145c because the prosecutor failed to prove beyond a reasonable doubt that the images were
of "real" children under the age of 18. We disagree. We review de novo claims regarding the
sufficiency of the evidence. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002).
"[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a
court must view the evidence in a light most favorable to the prosecution and determine whether
any rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt." People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992),
amended 441 Mich 1201 (1992). "It is for the trier of fact, not the appellate court, to determine
what inferences may be fairly drawn from the evidence and to determine the weight to be
accorded those inferences." People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
Evidentiary conflicts are resolved in favor of the prosecution. Wolfe, supra at 515.
We note that, at the time defendant committed the charged offenses, MCL 750.145c(4)1
A person who knowingly possesses any child sexually abusive material is
guilty of a misdemeanor punishable by imprisonment for not more than 1 year, or
a fine of not more than $10,000.00, or both, if that person knows, has reason to
know, or should reasonably be expected to know the child is a child, or that
person has not taken reasonable precautions to determine the age of the child.
"Child sexually abusive material" was defined by MCL 750.145c(1)(i) to include "a developed or
undeveloped photograph, film, slide, electronic visual image, computer diskette, or sound
recording of a child engaging in a listed sexual act . . . ." In this case, the "listed sexual act" was
"erotic nudity," defined as "the lascivious exhibition of the genital, pubic, or rectal area of any
person." MCL 750.145c(1)(d).
Defendant argues that the prosecutor failed to establish that the persons in the
photographs were children under the age of 18 because plaintiff 's expert did not testify about the
ages of the children in the images. MCL 750.145c(5) provided that "[e]xpert testimony as to the
age of the child used in a child sexually abusive material . . . is admissible as evidence in court
and may be a legitimate basis for determining age, if age is not otherwise proven." The plain
language of this subsection indicates that expert testimony is not required to establish the age of
the children in the images. Rather, it provides that such testimony is permissible "if age is not
otherwise proven." In the case at hand, the images themselves provided evidence of the ages of
the persons depicted. State v May, 362 NJ Super 572, 594; 829 A2d 1106 (2003) (observing that
the images admitted at trial were, themselves, evidence of the ages of the persons depicted).
Moreover, MCL 750.145c(4) proscribed the possession of images that the possessor "knows, has
reason to know, or should reasonably be expected to know" are of a person under 18 years old.
Given the images presented at trial, a jury could determine that defendant "should reasonably be
expected to know" that the images were of persons under 18.
We also reject defendant's argument that the prosecution failed to prove that he
"knowingly possessed" child pornography because the prosecution's expert testified that the
images were contained in either a temporary Internet file or in a deleted file, not readily
accessible to the user. We need not address whether the mere presence of a document or image
in a temporary Internet file or in the computer recycle bin would be sufficient to prove knowing
possession beyond a reasonable doubt because the evidence adduced below, viewed in a light
MCL 750.145c(4) was amended in 2002. 2002 PA 629. Unless otherwise noted, all citations
to MCL 750.145c are to this previous version of the statute.
most favorable to the prosecution, showed that defendant's possession reached beyond such
circumstances. Defendant's wife and the complainant testified that they had seen defendant
looking at images of adolescents on his computer screen for extended periods, including during
the course of engaging in sexual acts. Furthermore, defendant's friend testified that defendant
had e-mailed pictures of nude children to him.
Finally, defendant argues that the prosecutor failed to prove that the pictures found on his
computer were of actual children and were not virtual or computer-generated images. The
version of the statute under which defendant was charged did not address the situation of
computer-generated child pornography. Indeed, MCL 750.145c(1)(a) provided, "'Child' means a
person who is less than 18 years old and is not emancipated by operation of law . . . ." There is
no indication in the statute that "person" means anything but its ordinary meaning, i.e., a living
We do not believe that the prosecution has the burden to come forth with direct evidence
to counter unsupported speculation that images on a computer are not of real children. See
United States v Farrelly, 389 F3d 649, 653 (CA 6, 2004). As with the ages of the persons
depicted, the images themselves are evidence that the persons depicted are real. See United
States v Kimler, 335 F3d 1132, 1142 (CA 10, 2003) (observing that "[j]uries are still capable of
distinguishing between real and virtual images").
/s/ David H. Sawyer
/s/ Michael J. Talbot
/s/ Stephen L. Borrello