Right to present a defense & to a fair trial; Exclusion of evidence; United States v Blackwell (6th Cir); Relevance; MRE 401; Unfair prejudice; MRE 403; Sentencing; Scoring of OV 4 (victim suffered a serious psychological injury); MCL 777.34(l)(a); Child victims; People v Needham; New York v Ferber; Comparing People v White; Presentence Investigation Report (PSIR); Child sexually abusive activity (CSAA); Using a computer to commit a crime (UCCC); Child sexually abusive material (CSAM)

The court held that there was no violation of defendant’s constitutional rights, but that the trial court erred in assessing 10 points for OV 4 at sentencing. However, since the scoring error did not alter his guidelines range, the court affirmed his convictions and sentences, but remanded for the ministerial task of correcting the PSIR. He was convicted of multiple counts of CSAA, CSAM, and UCCC after the search and seizure of computers that allegedly contained CSAM. The trial court sentenced him to 10 to 20 years for CSAA and the corresponding UCCC counts, with the sentences to run concurrently. On appeal, the court rejected his argument that the inability to present searches on a pornography website to the jury denied him the right to present a defense and deprived him of his right to a fair trial. It agreed with the prosecution that conducting a search on the pornography website several years after the original search was done would not be relevant. And even if it were, the court agreed “with the trial judge in finding such a demonstration would be more prejudicial than probative. There would be no way to ensure that the search results presented to the jury would match the results [defendant] would have accessed years prior to trial – leading to potential confusion and misleading of the jury.” In addition, “as the ages of the individuals featured here were only proven with expert testimony, the search results alone would be insufficient to establish that the individuals were over” 18 years old. Further, the “point that defense counsel sought to assert with the use of the [pornography] website was accomplished through the testimony of several witnesses, including two prosecution witnesses.” As to the scoring of OV 4, the record lacked “victim testimony regarding psychological injury or a prospect of such injury suffered by said victim.” Comparing White, the court noted there was “no victim impact statement at a preliminary examination or at sentencing to establish psychological injury.” As such, the trial court “erred in scoring OV 4 at 10 points.” But because this error did not alter the guidelines range, resentencing was not required, only remand to correct the PSIR “to reflect 0 points for OV 4.”