Opinion
No. 335055
11-21-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHARLES CLAYTON ROSE, JR., Defendant-Appellant.
UNPUBLISHED Mason Circuit Court
LC No. 16-003116-FC Before: HOEKSTRA, P.J., and STEPHENS and SHAPIRO, JJ. PER CURIAM.
Defendant appeals his jury convictions of first-degree criminal sexual conduct, MCL 750.520b(1)(b), second-degree criminal sexual conduct, MCL 750.520c, accosting a minor for immoral purposes, MCL 750.145a, and using a computer to commit a crime, MCL 750.145d(1)(a). Defendant was sentenced to concurrent prison terms of 135 months to 75 years for the CSC-I conviction, 54 months to 15 years for the CSC-II conviction, 17 months to 4 years for the accosting a child for immoral purposes conviction, and 23 months to 10 years for the using a computer to commit a crime conviction. We affirm.
This case arises from three separate instances of defendant's sexual contact with his 15-year-old stepdaughter. The first incident involved defendant giving the victim a massage, when his hand touched the victim's vagina over her clothing. The second incident involved defendant giving the victim a massage, when his hands touched the sides of her breasts, under her clothing. The third incident involved the victim getting out of the shower, and defendant performed an act of oral sex on her. Defendant was arrested after one of the victim's friends called Child Protective Services to report that defendant was trying to get the victim drunk in order to have sex with her.
During a lawful search of defendant's home, the police seized several electronic devices from the home including two computers, the victim's LG phone, and defendant's Samsung phone. Expert in digital forensics and analysis, Stephen Marx, performed forensic analysis of the several electronic devices, and prepared a PowerPoint presentation containing the result of his digital forensic search. Marx recovered 306 messages exchanged between defendant and the victim from the victim's LG phone. An internet browser history was also performed on defendant's Samsung phone and on his Dell computer. Using the word "step," Marx performed a search on defendant's Samsung phone to determine whether defendant conducted a search with the word. The search yielded several results, and Marx read three searches for the jury: "black stepdaughter anal; talk stepdaughter into sex; and sex with stepdaughter." On defendant's Dell computer, Marx conducted a search using the word, "stepdaughter," and this search yielded more highly sexually suggestive searches including three searches of the victim's name "in various combination of words: first, middle, and last; middle initial . . . ." Although Marx did not read the search results into the record, it appears from the referenced search period that the following searches were shown to the jury: "how to get your step daughter to sleep with you; black stepdaughter anal; how to fuck your stepdaughter (search conducted twice); white dad black stepdaughter."
Throughout his trial testimony, Marx read from the PowerPoint. A computer trial disc of the presentation was admitted into evidence as plaintiff's exhibit 5 and a printed copy of that presentation was admitted as plaintiff's exhibit 8. Neither the disc nor the printed copy was provided to this court on appeal. However, on appeal, defendant only objects to the admissibility of four of the slides involving the web history on his Dell computer and Samsung phone, copies of which are in the record.
The entire list of text messages were admitted at trial and select messages were read to the jury. Most of the text messages were sexually suggestive, with defendant referring to the victim's butt, giving the victim a massage, and buying alcohol for the victim.
The three searches read to the jury are included in one of the four slides defendant contests on appeal.
On appeal, defendant objects to the admissibility of this slide and two other slides containing similar "highly suggestive" searches obtained from the Dell computer.
Before trial, both parties brought cross motions in limine seeking the trial court's guidance on what to present to the jury. In his motion, defendant sought to preclude the admission of all photographs, internet history, and pornographic video files recovered from his electronic devices. Defendant argued that the evidence was not relevant to the case, and was more prejudicial than probative. Conversely, the prosecution argued that the evidence was not substantially prejudicial because it sought to introduce the evidence to show "defendant's preparation and planning to commit the offense . . . ." The court ruled that all the evidence proffered by plaintiff was relevant to the elements of the charged offenses. Specifically, the court ruled that the text messages and internet searches were admissible. However, it noted that some of the evidence might be substantially more prejudicial than probative. The court took the remainder of the motion under advisement indicating that it was willing to review each slide, with counsels, to determine which slides were admissible or not.
Marx testified that 700 pornographic images depicting white females and 67 pornographic images depicting young African-American females were recovered from defendant's computer. However, all the photos were legal content, and none constitutes child pornography.
On the second day of trial, the court reviewed each slide with counsel, excluded some of the slides, and ruled that some were inadmissible. Defendant then renewed his objection to the admissibility of slides 20, 26, 27, and 28, which are internet searches conducted on his Dell computer and Samsung phone.
Because neither party included the PowerPoint presentation to their brief on appeal, it is difficult to ascertain what slides were being reviewed. However, a review of the record shows that the parties agreed to the admission of slides 1-10, 11 (with redactions), and 12-20. The court excluded slides 21-22 (web searches from defendant's Samsung phone and downloaded pornographic videos respectively) as having the tendency to inflame the jury. Slides 23 through 26 were ruled admissible. Slide 27 was a list containing internet browser searches performed on defendant's Dell computer. The searches included terms such as "incest," "interracial," "my daughter," "African-American," and "ebony." The court noted that it would rule on the admissibility of the slide after Marx's testimony. The court later addressed the admissibility of slide 27. The court noted that the materials included in the slide were slightly different from the original slide 27, as some internet searches had been removed and other added, but held that the slide was admissible. The court also ruled that slide 28 was admissible, which was google searches performed on defendant's Dell computer using the search word, "step." After discussing slides 29 through 34, off record, the parties agreed that slide 29 should be admitted but slide 30 should be removed from the PowerPoint. The parties also agreed that slides 31 through 34, which consisted of defendant's Internet profile under the username "Pandrinn," would be removed from the PowerPoint.
Defendant first argues that the trial court erroneously admitted evidence of Internet searches performed and websites visited by defendant. We disagree. As an initial matter, we reject defendant's contention that the trial court allowed the admission of the slides pursuant to MRE 404(b). Granted that the trial court admitted slide 27 using MRE 404(b) analysis, a review of the record show that the parties filed and argued their motions in limine pursuant to MRE 403, and the trial court analyzed the admissibility of the slides using MRE 403 standards, i.e., whether the evidence should be excluded "if its probative value is substantially outweighed by the danger if unfair prejudice or misleading the [jury]." Moreover, MRE 404(b) is not implicated in this case because the evidence involves conducts at issue in the present case. People v Jackson, 498 Mich 246, 262; 869 NW2d 253 (2015) (holding that "acts compromised by or directly evidencing the 'conduct at issue' are not subject to scrutiny under MRE 404(b)").
Appellate courts "review for an abuse of discretion a trial court's ruling on the admissibility of evidence." People v Bowman, 254 Mich App 142, 145; 656 NW2d 835 (2002). "A trial court abuses its discretion when it chooses an outcome that falls outside the range of principled outcomes." People v Musser, 494 Mich 337, 348; 835 NW2d 319 (2013).
MRE 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Regarding slide 27, the trial court held in pertinent part:
Regarding this specific amended No. 27, I do find that this page of the slides is admissible in these proceedings. I do find that it's relevant to the facts that are at issue in this case. Specifically, it demonstrates a systematic plan of action on the part of the defendant regarding whether contact with the victim, as it's alleged, could either be intentional or accidental. It shows a pattern of intentional interest, which is focused around the victim and her—her age range and her ethnicity.
Accordingly, our inquiry is limited to whether the evidence is relevant, and even if relevant, whether the trial court should have excluded it under MRE 403.
"Generally, all relevant evidence is admissible at trial." People v Aldrich, 246 Mich App 101, 114; 631 NW2d 67 (2001). Relevant evidence is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. In determining relevance, we must consider two concepts: materiality and probative force. People v Brooks, 453 Mich 511, 517-518; 557 NW2d 106 (1996). "Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial." Id.
We conclude that the evidence of the internet searches was material. Here, the victim testified that defendant touched her breasts and vagina during massages, performed oral sex on her on one occasion, and woke her up on some occasions wearing nothing. Defendant's theory at trial was that he accidentally touched the victim's vagina and breast. The evidence was material to show that defendant did not accidentally touch the victim, where he conducted searches showing his sexual interests in girls that shared the same characteristics with the victim. Brook, 453 Mich at 518 (holding that a material fact must at least be "within the range of litigated matters in controversy") (citation omitted).
For the same reason, the evidence was highly probative. "Probative force is the 'tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' " Id. Therefore, "any tendency is sufficient probative force." Id. (quotation marks and citation omitted). Here, the dates of the searches corresponded with the date range of the offense, the searches were done contemporaneously with the sexual conduct testified by the victim, and the searches were targeted at young females sharing the same characteristic traits with the victim. Specifically, some of the searches included the victim's name in various combination, how to sleep with one's "black" stepdaughter, and the legality of sleeping with a stepdaughter. Because the evidence has the tendency to show that defendant has a sexual interest in the victim, it was probative and admissible. In addition, plaintiff was obligated to prove that defendant touched the victim for the purpose of sexual arousal or gratification in order to prove the charge of CSC-II, defendant's intent was in issue and, thus, material. The Internet searches are evidence that defendant wanted to engage in sexual conduct with the victim and that he sought instructional materials on how to accomplish that end.
Under MRE 403 we must also consider the prejudicial effect of the evidence because even relevant, it must be excluded where "its probative value is substantially outweighed by the danger of unfair prejudice" to the party. "All evidence offered by the parties is 'prejudicial' to some extent, but the fear of prejudice does not generally render the evidence inadmissible." People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995). "Unfair prejudice occurs 'when there is a tendency that the evidence will be given undue or preemptive weight by the jury, or when it is inequitable to allow use of the evidence.' " People v Waclawski, 286 Mich App 634, 672; 780 NW2d 321 (2009) (citation omitted).
The challenged evidence had the potential to create prejudice because the jury might conclude that defendant was of bad character regardless of whether he was guilty of the charged crime, and so worthy of punishment in any case. However, the slides were primarily directed at evidence of plan and intent, and not at character. The trial court excluded a great number of the web searches as they did not relate to the victim, thereby minimizing the prejudice without reducing its probative value. Accordingly, we conclude that their prejudicial impact did not "substantially outweigh" the probative value of what was admitted.
Defendant also argues that the trial court erroneously scored offense variable (OV) 4. We disagree.
"This Court reviews a sentencing court's scoring decision to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score." People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003). --------
MCL 777.34(1)(a) provides that OV 4 should be scored 10 points where "[s]erious psychological injury requiring professional treatment occurred to the victim." The fact that treatment has not been sought is not conclusive. MCL 777.34(2). The question is not whether the victim may have suffered serious psychological injury, it is whether the victim did suffer serious psychological injury that may require professional treatment. MCL 777.34.
In this case, however, the record contains sufficient evidence to support a finding that the victim suffered serious psychological injury. People v Lockett, 295 Mich App 165, 183; 814 NW2d 295 (2012) ("There must be some evidence of psychological injury on the record to justify a 10-point score"). The victim testified that after defendant was arrested, she made a comment to a friend that her mother interpreted as being suicidal, and she was taken to the hospital for a mental check. The trial court also relied on the presentence report statement that the victim's mother found what she believed were suicidal comments on the victim's Facebook page and took her to a hospital for evaluation. " 'A sentencing court may consider all record evidence before it when calculating the guidelines, including, but not limited to, the contents of the presentence investigation report . . . or testimony taken at a preliminary examination or trial.' " People v Wellman, ___ Mich App ___, ___; ___ NW2d ___ (2017); slip op at 2-3 (citation omitted). Although the victim did not appear at sentencing or provide a victim-impact statement, failure to do so does not defeat a claim of psychological injury. People v Wellman, ___ Mich App at ___; slip op at 2. Moreover, at sentencing, defendant had the opportunity to object to the contents of the presentence report, but did not do so. Evidence that the victim has not yet sought treatment and refused counseling is not determinative. Waclawski, 286 Mich App at 681 (holding that "[t]he fact that professional treatment was not sough is not conclusive when scoring [OV 4]"). Accordingly, we conclude that the trial court properly scored OV 4 at 10 points.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro