If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 25, 2019
Plaintiff-Appellee,
v No. 344262
Kent Circuit Court
MIGUEL GARCIA, LC Nos. 18-000208-FH;
18-000285-FH
Defendant-Appellant.
Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ.
PER CURIAM.
Following a combined jury trial for case numbers 18-000208-FH and 18-000285-FH,
defendant, Miguel Garcia, was convicted of capturing/distributing the image of an unclothed
person, MCL 750.539j; two counts of using a computer to commit a crime, MCL 752.796; and
two counts of possession of child sexually abusive material, MCL 750.145c(4). Defendant was
sentenced to 18 months to 5 years’ imprisonment for capturing the image of an unclothed person
and two terms of 18 months to 4 years’ imprisonment for possession of child sexually abusive
material, to be served consecutively to two terms of 4 to 7 years’ imprisonment for using a
computer to commit a crime. Defendant now appeals his convictions and sentences as of right.
We affirm.
This case arose from defendant’s teenage daughters finding photographs of their friend
on defendant’s cellular phone when she was only wearing shorts and was asleep. During the
subsequent investigation, the police found videos and images of child sexually abusive material
stored on defendant’s computer and child pornography searches on his cellular phone.
Defendant raises several issues that he claims merit reversal of some or all of his
convictions and his sentence. However, defendant is not entitled to relief on any of these
grounds.
Defendant argues that there is insufficient evidence that he took the inappropriate
photographs of the teenage victim or that he was the person responsible for accessing or
possessing the child pornography. We disagree.
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A challenge to the sufficiency of the evidence is reviewed de novo on appeal. People v
Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). In reviewing the sufficiency of the
evidence, this Court must determine whether, evaluating the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the elements of the offense beyond
a reasonable doubt. People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992).
“Circumstantial evidence and reasonable inferences that arise from such evidence can constitute
satisfactory proof of the elements of the crime.” People v Williams, 268 Mich App 416, 419;
707 NW2d 624 (2005). All conflicts in the evidence must be resolved in favor of the
prosecution, and this Court shall not interfere with the jury’s determinations regarding the weight
of the evidence and the credibility of the witnesses. Wolfe, 440 Mich at 515. Intent and
premeditation may be inferred from all the facts and circumstances. People v Cameron, 291
Mich App 599, 615; 806 NW2d 371 (2011).
To convict a defendant of using a computer to commit a crime, MCL 752.796(1) provides
that “[a] person shall not use a computer program, computer, computer system, or computer
network to commit, attempt to commit, conspire to commit, or solicit another person to commit a
crime.” Here, the underlying crimes were two counts of possession of child sexually abusive
material, MCL 750.145c(4). MCL 750.145c(4) provides, in pertinent part,
A person who knowingly possesses or knowingly seeks and accesses any
child sexually abusive material if that person knows, has reason to know, or
should reasonably be expected to know the child is a child or that the child
sexually abusive material includes a child or that the depiction constituting the
child sexually abusive material appears to include a child, or that person has not
taken reasonable precautions to determine the age of the child is guilty of a
crime . . . .
“Child sexually abusive material” means
any depiction, whether made or produced by electronic, mechanical, or other
means, including a developed or undeveloped photograph, picture, film, slide,
video, electronic visual image, computer diskette, computer or computer-
generated image, or picture, or sound recording which is of a child or appears to
include a child engaging in a listed sexual act; a book, magazine, computer,
computer storage device, or other visual or print or printable medium containing
such a photograph, picture, film, slide, video, electronic visual image, computer,
or computer-generated image, or picture, or sound recording; or any reproduction,
copy, or print of such a photograph, picture, film, slide, video, electronic visual
image, book, magazine, computer, or computer-generated image, or picture, other
visual or print or printable medium, or sound recording. [MCL 750.145c(1)(o).]
“[A] defendant constructively possesses ‘any child sexually abusive material’ when he
knowingly has the power and the intention at a given time to exercise dominion or control over
the contraband either directly or through another person or persons.” People v Flick, 487 Mich
1, 15; 790 NW2d 295 (2010). “Possession can be established with circumstantial or direct
evidence, and the ultimate question of possession is a factual inquiry to be answered by the jury.”
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Id. at 14 (quotation marks and citation omitted). “Dominion or control over the object need not
be exclusive.” Id. (quotation marks and citation omitted).
Defendant does not dispute that child sexually abusive material was found on his
computer. In fact, the detectives produced evidence of the numerous photographs, videos, and
websites accessed depicting very young girls engaged in sexual acts. On the basis of the ages of
the children in the material found, and the testimony at trial of the detectives and defendant’s
daughters regarding the very young age of the children, any person would “know[], [have]
reason to know, [and] should reasonably be expected to know” that the material included a child.
See MCL 750.145c(4). The testimony also showed that the material depicting the children was
sexually abusive in nature.
Defendant disputes that the evidence offered was sufficient to prove that he possessed the
images, given that his young daughters stated at trial that it could have been them. But the
evidence showed that the child sexually abusive material was found on defendant’s computer in
his home, under an account labeled “Miguel,” which is defendant’s first name. There was also
child sexually abusive material found on defendant’s cellular phone. The testimony showed that
the material began being downloaded in 2010, when defendant’s daughters would have been 7
and 10 years old. The younger daughter testified that she did not look at pornography until she
was 13 years old. The older daughter testified that she “possibly” could have looked at
pornography when she was 10 years old, but she could not remember because she “was little.”
The younger daughter testified that she did not look for “PTHC,”1 did not know what that was,
and never searched the dark web or Russian websites. The older daughter also did not know
what PTHC was and stated she would not have searched that term on purpose. The testimony
from the detectives showed that the type of explicit, young-child sexual material found on
defendant’s computer could not have been found through a simple Google search, which is what
the younger daughter testified that she did. The younger daughter also testified that she never
visited chat rooms or “Chaturbate,” yet the detectives testified that they found numerous chats
from Chaturbate on the computer. Both daughters denied purposely downloading, or ever
having seen, child pornography.
Additionally, defendant’s daughters only admitted on the day before the trial that they
were responsible for the material, while the investigation began many months before that. Their
admissions came shortly after a recorded call from defendant in jail to his eldest daughter, who
had custody of the younger daughters, in which he encouraged them to go to the police and
“confess” to the charges that he was on trial for. Although defendant contends that he was only
encouraging his daughters to confess to things that they actually did, the call was played for the
jury, and the jury weighs the credibility of the evidence. As stated in Flick, the factual inquiry of
whether the defendant exercised control over the child sexually abusive material, even if not
exclusively, beyond a reasonable doubt, is left to the jury. See Flick, 487 Mich at 14; Wolfe, 440
Mich 513-514. Moreover, “the prosecutor need not negate every reasonable theory consistent
with innocence.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). A prosecutor
1
Testimony at trial explained that this referred to “pre-teen hard core.”
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“need only convince the jury in the face of whatever contradictory evidence the defendant may
provide.” Id. (quotation marks and citation omitted).
We also hold that the evidence was also sufficient to support defendant’s conviction of
capturing/distributing the image of an unclothed person. MCL 750.539j(1)(b) provides that a
person shall not “[p]hotograph, or otherwise capture or record, the visual image of the
undergarments worn by another individual, the unclad genitalia or buttocks of another individual,
or the unclad breasts of a female individual under circumstances in which the individual would
have a reasonable expectation of privacy.” There is no dispute that the photographs were of the
friend’s buttocks, while she was asleep, and, therefore, would have a reasonable expectation of
privacy. Defendant argues that there was insufficient evidence that he was the one who took the
photographs. However, we find that when viewed in the light most favorable to the prosecution,
a rational juror could have found that defendant was the one who took the photographs. The
photographs were found on defendant’s cellular phone. Testimony showed that defendant asked
the detective, “You can’t take pictures of people with clothes on?” That statement could lead a
reasonable jury to conclude that defendant admitted that he had knowledge of, and himself took,
the photographs. Additionally, the testimony showed that the younger daughter was surprised
and embarrassed when she discovered the photographs. Both daughters apologized to their
friend for the inappropriate photographs numerous times. The younger daughter only stated that
she had taken the pictures on the day that the trial began, which was only a few days after the
recorded jail call between defendant and the eldest daughter, who had custody of the younger
daughter, took place in which defendant urged the eldest daughter to get the younger daughter to
confess to all the charges. A rational juror could find that the younger daughter’s confession was
not true on the basis of her actions and timing of her confession.
Therefore, viewing this evidence in the light most favorable to the prosecution, we
conclude that defendant’s convictions were supported by sufficient evidence. See Wolfe, 440
Mich 513-514.
Defendant next argues that the trial court erred in instructing the jury. However, we need
not review this issue as it was waived by defense counsel at trial.
This Court has defined waiver as the intentional relinquishment or
abandonment of a known right. One who waives his rights under a rule may not
then seek appellate review of a claimed deprivation of those rights, for his waiver
has extinguished any error. When defense counsel clearly expresses satisfaction
with a trial court’s decision, counsel’s action will be deemed to constitute a
waiver. [People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011)
(quotation marks and citations omitted).]
The Michigan Supreme Court concluded in Kowalski, 489 Mich at 504, that “by expressly and
repeatedly approving the jury instructions on the record, defendant waived any objection to the
erroneous instructions, and there is no error to review.”
In this case, just before the commencement of jury deliberations, defense counsel stated
that he was satisfied with the reading of the jury instructions; the trial court instructed the jury
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and asked defense counsel if he had “any objections with regards to the instructions as read?”
Defense counsel replied, “No, your Honor.” After the jury came back with questions and the
trial court addressed their questions with additional instructions, the court stated, “Record should
reflect that when we got the questions, I did have an opportunity to speak with the attorneys
before we came back in here, and expressed my thought process as to what I would explain to
them. Any objection to the responses to their questions?” Defense counsel replied, “No
objections, Your Honor, Thank you.” Defense counsel expressly affirmed the jury instructions
that were provided by the trial court, and as a result, defendant’s claims of instructional error are
waived. See People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002) (holding that
defense counsel waived any instructional error when counsel stated, “No, your honor,” in
response to the trial court’s question whether there were any objections to the jury instructions as
read); see also People v Ortiz, 249 Mich App 297, 311; 642 NW2d 417 (2001) (“Defendant
affirmatively waived any errors when he specifically indicated to the trial court that he had no
objections to the instructions as given.”). Therefore, we decline to review this issue. See Ortiz,
249 Mich App at 311 (“Because any objections were waived, there are no errors to review.”).
Defendant next argues that, as applied to this case, the scoring of offense variable (OV)
10 was unconstitutional. We disagree.
OV 10 addresses the exploitation of vulnerable victims. Ten points must be assigned to
OV 10 where “[t]he offender exploited a victim’s physical disability, mental disability, youth or
agedness, or a domestic relationship, or the offender abused his or her authority status.” MCL
777.40(1)(b). “Exploit” is defined as “to manipulate a victim for selfish or unethical purposes.”
MCL 777.40(3)(b). “When a person possesses child sexually abusive material, he or she
personally engages in the systematic exploitation of the vulnerable victim depicted in that
material. Evidence of possession therefore can support a score of 10 points for OV 10, reflecting
that a defendant exploited a victim’s vulnerability due to the victim’s youth.” People v
Needham, 299 Mich App 251, 252; 829 NW2d 329 (2013).
Preliminarily, defendant misconstrues the holding in Needham. This Court stated that
evidence of possession of child sexually abusive material can support a score of 10 points for
OV 10, not that it must. Id. The scoring is not mandated and, therefore, not invalidated by
Lockridge.
There was clearly a victim in this case. A “victim” is a “ ‘person harmed by a crime, tort,
or other wrong’ . . . or . . . a person who ‘is acted on and usually adversely affected by a force or
agent . . .’ ” Id. at 332 (quotation and citations omitted). “The victim of crimes involving child
sexually abusive activity, including the possession of child sexually abusive material, is the child
victim portrayed in the material.” Id. (quotation marks and citations omitted). Defendant does
not submit that the children were not vulnerable. Contrary to defendant’s arguments, however,
he did exploit and manipulate the young, vulnerable victims depicted in the material he
possessed, even though he did not himself have direct contact with them. Nothing in the plain
language of MCL 777.40 suggests that an offender must have direct or physical contact with the
victim to exploit or manipulate him or her. The very purpose of MCL 750.145c is to “protect[ ]
children from sexual exploitation . . . .” People v Ward, 206 Mich App 38, 42; 520 NW2d 363
(1994). The “victimization of the children involved does not end when the pornographer’s
camera is put away. The consumer, or end recipient, of pornographic material may be
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considered to be causing the children depicted in those materials to suffer as a result of his
actions . . . .” Needham, 299 Mich App at 256 (quotation marks and citation omitted).
The record reflects that defendant downloaded images of children ranging in age from 5
years old to 16 years old engaging in various sexual acts. There is no dispute that the victims
here were children, given that defendant was convicted of possessing child sexually abusive
material, MCL 750.145c(4). Therefore, given that defendant engaged in the systemic
exploitation of vulnerable victims by downloading videos of children being sexually assaulted
and taking photographs of a minor child’s unclothed body while she was asleep, we hold that the
record supports the assessment of 10 points under OV 10. Defendant has not shown plain error
in the trial court’s scoring of OV 10. See People v Carines, 460 Mich 750, 764; 597 NW2d 130
(1999).
Defendant next argues that the trial court did not properly articulate its rationale for
imposing consecutive sentences and he is, therefore, entitled to resentencing. We disagree.
Preliminarily, defendant has abandoned this issue and we could choose to decline to
review it. When a defendant has offered only cursory treatment of a claim, this Court may treat
it as abandoned. See People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004). “It is not
enough for an appellant in his brief simply to announce a position or assert an error and then
leave it up to this Court to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position.” People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001) (quotation
marks and citation omitted). In his brief, defendant cites cursory legal issues, recites parts of
the records, and concludes “[a]ppellant respectfully contends that the Trial Court record does not
set forth adequate bases for the consecutive sentences.” Defendant offers no legal analysis or
application and, therefore, effectively abandons this issue.
Regardless, we find no merit to defendant’s claim. In Michigan courts, “concurrent
sentencing is the norm, and a consecutive sentence may be imposed only if specifically
authorized by statute.” People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012) (quotation
marks and citation omitted). MCL 752.797(3) and (4) authorizes the sentencing court to order
that a term of imprisonment imposed for violations of MCL 752.796 be served consecutively to
any term of imprisonment imposed for conviction of the underlying offense. Defendant was
convicted under MCL 752.796 and, therefore, the trial court had discretion to order consecutive
sentences.
This Court held that trial courts imposing one or more discretionary consecutive
sentences are required to articulate on the record the reasons for each consecutive sentence
imposed. People v Norfleet, 317 Mich App 649, 664; 897 NW2d 195 (2016) In Norfleet, the
sentencing court imposed five consecutive sentences for multiple drug offenses, but spoke “only
in general terms,” stating that it “took into account defendant’s ‘background, history, [and] the
nature of the offenses involved’ ” and “did not speak separately regarding each consecutive
sentence, each of which represents a separate exercise of discretion.” Id. at 654. This Court
remanded the case so that the trial court could fully articulate its rationale. Id. at 666.
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In this case, the trial court buttressed its sentencing decision with several pages of
reasoning. First, the court stated that it was very familiar with the facts and circumstances of the
case and had listened “very carefully” to the testimony, “evaluated the credibility of the
witnesses” and believed the jury reached the right verdict “without any question whatsoever.”
The court stated that it was “quite frankly, very upset” about the phone call in which defendant
encouraged his family a few days before trial “to go in and confess” to the crimes he was
charged with, trying to have his daughters “take the stand and testify that they had even been
surfing the web when . . . they were small children, and wouldn’t even know how to do this.”
The court considered that defendant was 62 years old, without a prior record “whatsoever,” and
had “never been in jail, on probation, or in prison.” But the court went on to say that “this was a
very disturbing set of facts and circumstances.” The court took into account that defendant took
pictures of his daughters’ young friend when she was asleep, the pictures were “inappropriate,”
done without permission, and had a great negative impact on the victim who “was upset” and it
was something she was “going to have to deal with . . . for a long time.”
The trial court went on to say that defendant’s using the computer to commit a crime and
possession of child pornography convictions were “totally separate crime[s]” and had nothing to
do with defendant taking inappropriate pictures of the friend. The court pointed to the fact that
the experts testified that the child pornography that defendant possessed
wasn’t something that [he] just found when [he was] Googling . . . [he] had to go
into the dark edges of the . . . web and find pornography of small children being
violated. . . . And the victims of that crime are those children that keep getting
abused because there’s people like [defendant] who want to view that
pornography.
The trial court then sentenced defendant as stated earlier, with the terms of imprisonment for the
using the computer to commit a crime count served consecutive to the terms for capturing the
image of an unclothed person and child pornography convictions.
The trial court effectively articulated its reason for the consecutive sentences, stating that
the crimes were completely separate, the many victims involved were separate and yet all
negatively impacted, and pointed to the “very disturbing” facts surrounding defendant’s trial
wherein he coerced his young daughters to confess to his crimes. Given the record in this case,
we hold that defendant has not established that the trial court plainly erred in imposing
consecutive sentences. See Carines, 460 Mich at 764; Norfleet, 317 Mich App at 649, 664.
Defendant next argues that his sentence is not proportionate to his offense and to his
circumstances. However, MCL 469.34(10) precludes our review of a within-guidelines
sentence. MCL 769.34(10) provides, in pertinent part,
If a minimum sentence is within the appropriate guidelines sentence range,
the Court of Appeals shall affirm that sentence and shall not remand for
resentencing absent an error in scoring the sentencing guidelines or inaccurate
information relied upon in determining the defendant’s sentence. [Emphasis
added.]
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In this case, defendant’s recommended minimum sentence was 7 to 23 months’
imprisonment with regard to capturing/distributing an image of an unclothed person; the
recommended minimum sentence was 27 to 57 months’ imprisonment with regard to each count
of using a computer to commit a crime; and the recommended minimum sentence was 5 to 23
months’ imprisonment with regard to each count of possession of child sexually abusive
material. The trial court sentenced defendant to a minimum of 46 months in prison for using a
computer to commit a crime, 18 months for each count of capturing/distributing the image of an
unclothed person, and 18 months for each count of possession of child sexually abusive material.
Each sentence was within the range recommended by the guidelines. Defendant does not dispute
that his sentences were within the recommended minimum guidelines range, and he does not
argue that the trial court relied on inaccurate information or that there was an error in scoring the
guidelines. Therefore, we affirm defendant’s sentence.
The constitutional argument brought forth by defendant on this issue is currently being
considered by our Supreme Court. See People v Ames, 501 Mich 1026 (2018). Until Ames is
decided, we are bound to follow this Court’s published precedent. See MCL 7.215(C)(2);
People v Schrauben, 314 Mich App 181, 196 n 1, 886 NW2d 173 (2016) (“Lockridge did not
alter or diminish MCL 769.34(10) . . . .”).
Nevertheless, even if we were to review defendant’s sentence, a defendant’s sentence
within the applicable sentencing guidelines is neither presumptively severe nor unfairly
disparate. See People v Lee, 243 Mich App 163, 187; 622 NW2d 71 (2000). In order to
overcome the presumption of proportionality, “a defendant must present unusual circumstances
that would render the presumptively proportionate sentence disproportionate.” Id.
First, defendant’s sentence is presumptively proportionate because it fell within the
sentencing guidelines recommendation. Additionally, defendant fails to articulate unusual
circumstances that render the sentence disproportionate. When sentencing defendant, the trial
court also took into consideration the fact that defendant was 62 years old, without a prior record
“whatsoever,” and had “never been in jail, on probation, or in prison.” But the court also
considered that “this was a very disturbing set of facts and circumstances,” that defendant took
pictures of his daughters’ young friend when she was asleep, the pictures were “inappropriate,”
done without permission, and had a great negative impact on the victim, who “was upset” and it
was something she was “going to have to deal with . . . for a long time.” The trial court’s
selection of a within-guidelines sentence reflects the trial court’s balancing of the positive factors
that defendant identified, with the extensive testimony of the history of possession of child
sexually abusive material and the circumstances surrounding the trial. In sum, the trial court
imposed a proportionate sentence.
Affirmed.
/s/ David H. Sawyer
/s/ Stephen L. Borrello
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