People v. Harmon

Decision Date25 February 2002
Docket NumberDocket No. 226089.
Citation248 Mich. App. 522,640 N.W.2d 314
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Carl HARMON, a/k/a Douglas Carl Harman, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, and Terrence E. Dean, Senior Assistant Prosecuting Attorney, for the people.

Martin J. Beres, St. Clair Shores, for the defendant on appeal.

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, M.C.L. § 750.145c(2). The trial court sentenced him as a second-offense habitual offender, M.C.L. § 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 M.C.L. § 750 .145c(2).

Defendant first contends that the prosecutor presented insufficient evidence to sustain four convictions under M.C.L. § 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 N.W.2d 748 (1992), amended 441 Mich. 1201, 489 N.W.2d 748 (1992). This standard applies to bench trials. People v. Legg, 197 Mich.App. 131, 132, 494 N.W.2d 797 (1992). This Court must resolve all evidentiary conflicts in favor of the prosecution. People v. Terry, 224 Mich.App. 447, 452, 569 N.W.2d 641 (1997).

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 M.C.L. § 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 M.C.L. § 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 N.W.2d 255 (1994), aff'd. on other grounds 450 Mich. 349, 537 N.W.2d 857 (1995), in which this Court, addressing the defendant's four convictions under M.C.L. § 750.145c(2), stated:

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 N.W.2d 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 M.C.L.§ 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, 517 N.W.2d 255. 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 M.C.L. § 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 M.C.L. § 750.145c(2). Indeed, defendant made four "photograph[s]" under M.C.L. § 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 N.W.2d 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

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...

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