PEOPLE OF MI V JOSEPH MICHAEL CHONTOS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 29, 2004
Plaintiff-Appellee,
v
No. 246799
Wayne Circuit Court
LC No. 02-007853
JOSEPH MICHAEL CHONTOS,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 246884
Wayne Circuit Court
LC No. 02-009913
JOSEPH MICHAEL CHONTOS,
Defendant-Appellant.
Before: Jansen, P.J., and Meter and Cooper, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted on two counts of first-degree criminal
sexual conduct with a person under the age of thirteen (CSC I), MCL 750.520b(1)(a), two
counts of second-degree criminal sexual conduct with a person under thirteen (CSC II), MCL
750.520c(1)(a), and one count of disseminating sexually explicit material to a minor, MCL
722.675. Defendant was sentenced to 225 months to 40 years’ imprisonment for each conviction
of CSC I, 5 to 15 years’ imprisonment on each conviction of CSC II, and 1 to 2 years’
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imprisonment on the conviction of disseminating sexually explicit material to a minor. We
affirm.1
Defendant contends that there was insufficient evidence to support a conviction of
disseminating sexually explicit material to minors. We disagree.
In reviewing a claim of insufficient evidence, this Court views evidence in light most
favorable to the prosecution to determine whether a rational trier of fact would have found that
the essential elements of the crime were proven beyond a reasonable doubt. People v Johnson,
460 Mich 720, 722-723; 597 NW2d 73 (1999).
A person violates MCL 722.675 when he “[k]nowingly disseminates to a minor sexually
explicit visual or verbal material that is harmful to minors” or “[k]nowingly exhibits to a minor a
sexually explicit performance that is harmful to minors.” Defendant’s particular contention on
appeal is that the prosecution failed to prove that the material exhibited was “harmful to minors.”
The statute itself defines the term “harmful to minors,” as MCL 722.674 provides:
(a) "Harmful to minors" means sexually explicit matter which meets all of the
following criteria:
(i) Considered as a whole, it appeals to the prurient interest of minors as
determined by contemporary local community standards.
(ii) It is patently offensive to contemporary local community standards of adults
as to what is suitable for minors.
(iii) Considered as a whole, it lacks serious literary, artistic, political, educational,
and scientific value for minors.
(b) "Local community" means the county in which the matter was disseminated.
(c) "Prurient interest" means a lustful interest in sexual stimulation or
gratification. In determining whether sexually explicit matter appeals to the
prurient interest, the matter shall be judged with reference to average 17- year-old
minors. If it appears from the character of the matter that it is designed to appeal
to the prurient interest of a particular group of persons, including, but not limited
to, homosexuals or sadomasochists, then the matter shall be judged with reference
to average 17-year-old minors within the particular group for which it appears to
be designed.
The testimony of the victim regarding the movies included:
1
We note that defendant conceded, at oral argument, the first issued raised in his appellate brief
regarding the constitutionality of the disseminating sexually explicit material statute, thus, we
need not address this issue.
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Q. Let me ask you this: did your uncle ever show you some kind of movies that
you hadn’t seen before?
A. Yes.
*
*
*
Q. And do you remember what the movies were about?
A. They were porno movies.
Q. Could you tell us what you saw?
A. People having sex.
Q. You say people; can you describe that in any more detail?
A. Guy and a girl; then a guy and two girls.
Q. What were the guys and the girls doing?
A. Having intercourse.
The prosecution showed the victim two physical video tapes and the victim identified those as
the two video tapes that defendant had showed him. Additionally, the victim testified:
Q. Do you remember telling detective Lancaster something about watching a 69
position?
A. Yes.
Q. What did you mean when you told her about watching a 69 position?
A. That’s where you lie on the floor, and the other person lays on top of them,
and they both give oral sex.
Q. And when you told her about that, what were you making reference to?
A. Can you repeat the question?
Q. When you told detective Lancaster about that, what were you talking about?
A. I saw it on the movie; it was - - I don’t understand.
Detective Sally Lancaster testified that she executed a search warrant and discovered the two
video tapes which the victim identified. And, Detective Lancaster described the video tapes as
“pornographic video tapes” and explained that she viewed them briefly and that they showed
“males and females having sexual intercourse, or oral sex; some of male and two females.”
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We find that the above provided testimony is sufficient for a reasonable jury to conclude
that the videos which defendant showed to the victim were harmful to minors. Certainly
depictions of males and females engaging in sexual intercourse and oral sex would appeal to the
prurient interest of a minor by contemporary local standards. See MCL 722.675(a)(i).
Additionally, a reasonable jury could conclude that it is patently offensive to contemporary local
standards of adults to show depictions of individuals engaged in sexual intercourse and oral sex
to a minor. See MCL 722.675(a)(ii). Finally, both the victim and the detective described these
movies as “porno movies.” Accordingly, a reasonable jury could conclude that such movies lack
any serious literary, artistic, political, educational, and scientific value for minors. See MCL
722.675(a)(iii). Therefore, viewing the evidence in the light most favorable to the prosecution
there is sufficient evidence to support defendant’s conviction.
Next, defendant argues that the prosecution erred when it failed to disclose a document
evidencing an interview between the victims’ father (and defendant’s brother), Derek Chontos,
and a friend of the court (FOC) referee wherein he stated that he believed the statements against
defendant were true.
Due process requires disclosure of certain information possessed by the prosecution if
that evidence might lead a jury to entertain a reasonable doubt about a defendant’s guilt. People
v Lester, 232 Mich App 262, 280; 591 NW2d 267 (1999), citing Brady v Maryland, 373 US 83;
83 S Ct 1194; 10 L Ed 2d 215 (1963), and Giglio v US, 405 US 150, 154; 92 S Ct 763; 31 L Ed
2d 104 (1972). In Lester, supra at 281, this Court reiterated what a defendant must prove to
establish that a prosecutor violated this rule:
(1) that the state possessed evidence favorable to the defendant; (2) that he did not
possess the evidence nor could he have obtained it himself with any reasonable
diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that
had the evidence been disclosed to the defense, a reasonable probability exists
that the outcome of the proceedings would have been different. United States v
Meros, 866 F2d 1304, 1308 (CA11, 1989), cert den 493 US 932; 110 S Ct 322,
107 L Ed 2d 312 (1989).
First, it is important to point out that the particular document which defendant complains was not
disclosed was never entered as evidence. Second, and most important, this document simply is
not favorable to defendant. Rather, the record indicates that this document is a report prepared
by the friend of the court purporting that Derek Chontos stated to the FOC referee that he
believed the allegations against defendant were true. Defendant fails to explain, and we fail to
see, how this could be considered favorable evidence, a distinction necessary for due process to
require disclosure. See Lester, supra at 281. Consequently, we find that no disclosure was
necessary here.
Next, defendant argues that the prosecutor improperly impeached Derek Chontos using
extrinsic evidence, specifically, the record of the FOC interview. Again, the FOC record was not
entered as evidence, nor is there any other evidence regarding that meeting or statements.
Rather, the prosecutor merely asked the witness about prior inconsistent statements, and in the
course of that questioning, offered the FOC report, not as evidence, but to refresh the witness’
memory. We find that there was no impeachment using extrinsic evidence at all, and
accordingly, no error.
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Finally, defendant argues that trial court improperly considered defendant’s choice to
exercise his right to a jury trial when imposing its sentence. After reviewing the record, we
disagree. Sentencing decisions are reviewed by this Court for an abuse of discretion. People v
Kowalski, 236 Mich App 470; 601 NW2d 122 (1999).
In support of his contention that the trial court considered the fact that defendant
exercised his right to have a jury trial, in his brief on appeal defendant points to a number of
comments made by the trial court at the sentencing hearing. We have reviewed the challenged
remarks and conclude that rather than chastising defendant for going to trial, as defendant
suggests, the trial court is actually addressing directly the multiple statements made by
defendant’s family members pleading with the court that defendant did not commit the crime and
responding to defendant’s claim that he has suffered because of the charges and trial. The trial
court’s statement expresses to defendant that he brought it about himself and that suffering
through the process is not a basis for leniency. We find that, taken as a whole, there is simply no
evidence that the trial court sentenced defendant more harshly based on the exercise of his
constitutional right to a jury trial.
Affirmed.
/s/ Kathleen Jansen
/s/ Patrick M. Meter
/s/ Jessica R. Cooper
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