People v. Agar, Docket No. 321243.

Citation314 Mich.App. 636,887 N.W.2d 662
Decision Date02 February 2016
Docket NumberDocket No. 321243.
Parties PEOPLE v. AGAR.
CourtCourt of Appeal of Michigan (US)

314 Mich.App. 636
887 N.W.2d 662


Docket No. 321243.

Court of Appeals of Michigan.

Submitted Aug. 4, 2015, at Detroit.
Decided Feb. 2, 2016.

Approved for publication March 22, 2016, at 9:10 a.m.

887 N.W.2d 665

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, Michael D. Wendling, Prosecuting Attorney, and Hilary B. Georgia, Senior Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Desiree M. Ferguson ) for defendant.

Thomas J. Agar in propria persona.



314 Mich.App. 638

Defendant appeals as of right his jury trial convictions of distributing child sexually abusive material, MCL 750.145c(3) ; possessing child sexually abusive material (three counts), MCL 750.145c(4) ; using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(d) ; and resisting and obstructing a police officer, MCL 750.81d(1). Defendant was sentenced to serve 18 months to 7 years for his convictions of distribution and use of a computer to commit a crime, 18 months to 4 years for each count of possession, and 1 to 2 years for resisting and obstructing a

314 Mich.App. 639

police officer, the sentences to be served concurrently. We vacate in part and remand for a new trial.


Defendant's computer-related convictions arose after his Internet provider (IP) address was identified by Detective Eric Stevens as one that was possibly trading or sharing child pornography.

At defendant's preliminary examination on the distribution and possession charges, Detective Stevens testified as an expert in computer forensics to explain the Ephex software that he used to find defendant's IP address and the Shareaza software he believed defendant used to possess and share child pornography. After a second preliminary examination on the amended information that added charges of resisting and obstructing an officer and using a computer to commit a crime, defendant was bound over on all charges.

Defendant moved pretrial for the appointment of a forensic computer expert witness to rebut Detective Stevens and to investigate and support defendant's theories

887 N.W.2d 666

of how defendant could have inadvertently downloaded child pornography. Defense counsel and the court admitted to a lack of sophistication regarding computer issues in general. Defendant argued that the appointment of an expert witness was necessary to examine defendant's computer, to prepare for trial, and to effectively rebut the testimony offered by the prosecution's expert Detective Stevens. Defendant identified Larry A. Dalman, a retired career state police officer, as the expert he wanted to retain. Defendant stated that he was indigent and needed $1,500 of public funds to retain Dalman.

314 Mich.App. 640

The prosecution's position was that defendant had not shown a sufficient “nexus between the facts of the case and the need for an expert” as required by People v. Jacobsen, 448 Mich. 639, 641, 532 N.W.2d 838 (1995) (quotation marks and citation omitted). Further, the prosecution argued that defendant only wanted an expert because the prosecution had one and to grant defendant's request would make all indigent requests for public funds for an expert automatically approved. The prosecution also asserted that defendant had not shown that any expert he retained would obtain different results from his examination of the computer than Detective Stevens had or that the detective's methodology was deficient.

The trial court denied defendant's motion for an expert. The court concluded that, based on its review of the caselaw, there needed to be “a greater connection between the specifics of the issue that [were] involved in [defendant's] case and the need for an expert in order to get to the meat of the matter.” The court identified that defendant was requesting an expert to show that in the process of copying the hard drives of others, defendant inadvertently copied child sexually abusive material to his own computer. The court found the theory plausible, but also that it was a fairly simple concept. The court held that an expert was not critically important to defendant's defense.


Defendant first claims that the trial court abused its discretion by denying his request for public funds to retain his own computer forensics expert. We agree.

“This Court reviews for abuse of discretion a trial court's decision whether to grant an indigent defendant's motion for the appointment of an expert witness.”

314 Mich.App. 641

People v. Carnicom, 272 Mich.App. 614, 616, 727 N.W.2d 399 (2006), citing MCL 775.15. An abuse of discretion occurs when a trial court selects an outcome that is not within the range of reasonable and principled outcomes. Id. at 617, 727 N.W.2d 399.

MCL 775.15 authorizes a court to provide public funds for indigent defendants to retain expert witnesses. However, “[a] trial court is not compelled to provide funds for the appointment of an expert on demand.” Carnicom, 272 Mich.App. at 617, 727 N.W.2d 399, citing People v. Tanner, 469 Mich. 437, 442, 671 N.W.2d 728 (2003). Under MCL 775.15, the defendant bears the burden of demonstrating that “there is a material witness in his favor within the jurisdiction of the court, without whose testimony he cannot safely proceed to a trial....” The first portion of defendant's burden is to “show a nexus between the facts of the case and the need for an expert.” Jacobsen, 448 Mich. at 641, 532 N.W.2d 838 (quotation marks and citation omitted). Defendant met that burden.

Defendant in this case cited his need for an expert as threefold: (1) to support his defense that the child sexually abusive material was inadvertently downloaded to his

887 N.W.2d 667

computer when, in the course of performing a repair, he copied another person's hard drive to his computer; (2) to support his defense that files containing child pornography could have been on his computer as the result of his unprotected and open wireless network; and (3) to explain that the Shareaza program he copied was already programmed to share files and, once downloaded onto his computer, resumed file-sharing. Detective Stevens's testimony was the centerpiece of both of the preliminary examinations and the trial. Much of the testimony from Detective Stevens involved the technical process for extracting

314 Mich.App. 642

the thumbnail fingerprints of child pornography from defendant's computer and the process for initially identifying the IP address to which the files migrated. Additionally, in this case the defense was that the files were loaded at a time when defendant did not have control of the computer. Even Detective Stevens was unable to identify when the files were loaded. Thus, the logical nexus is clear.

The prosecution also opposed the motion on the basis that defendant did not offer any evidence that the expert's examination of the computer would produce any different results than Detective Stevens had, and that the mere possibility that the expert might be of assistance to defendant was not enough to warrant appointment of an expert at public expense. The prosecution cited Jacobsen, Carnicom , and Tanner. We are troubled by the logic that a defendant who admits technical ignorance and who has no resources from which to acquire technical expertise is asked to present evidence of what evidence an expert would offer in order to receive public funds to hire the expert. However, even assuming that these cases require some showing of what the expert would do to assist defendant, we find an abuse of discretion in this case because it is factually distinguishable from Jacobsen, Tanner , and Carnicom.

In Jacobsen, the defendant requested public funds for the appointment of an expert to testify that, due to an unreasonable delay in conducting a Breathalyzer test, the results of the tests were unreliable. Id. at 640–641, 532 N.W.2d 838. The Court concluded that the “mere allegation that the delay was unreasonable” was not sufficient, without more, to warrant the appointment of an expert at public expense, noting that there was no indication that any circumstance existed that would

314 Mich.App. 643

call into question the results of the tests administered. Id. at 641–642, 532 N.W.2d 838. In this case, it was clear that even Detective Stevens could not pinpoint the timing of the downloads. Because this issue was crucial, additional testimony would have been of great significance.

In Carnicom, the defendant, believing “that his expert witness would be able to offer testimony that would explain the presence of methamphetamine in his bloodstream at the time of [his] arrest” based on his use of Adderall, requested public funds for the...

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4 cases
  • People v. Kennedy
    • United States
    • Supreme Court of Michigan
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    ...that the defendants in those cases were not entitled to expert assistance.47 See U.S. Const., art. VI, cl. 2.48 See People v. Agar , 314 Mich. App. 636, 642, 887 N.W.2d 662 (2016) ("We are troubled by the logic that a defendant who admits technical ignorance and who has no resources from wh......
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  • People v. Wilbourn-Little
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    ...incredible, and "[t]his Court must not interfere with the jury's role as the sole judge of the facts when reviewing the evidence." Agar, 314 Mich.App. at 652. On basis of the evidence presented at trial, a jury reasonably could infer that defendant had the means, motive, and opportunity to ......
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    ...testimony established otherwise. "It was for the jury to resolve issues of witness credibility and to weigh the evidence." Agar, 314 Mich.App. at 652. As result, all reasonable inferences and credibility issues must be viewed in support of the jury verdict. Id. On this basis, it was apparen......

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