Background

• Defendant, Robbie Christopher Needham, pled no contest to possession of child sexually abusive material under MCL 750.145c(4).
• The defense challenges OV 10 scoring, arguing no contact with victims precludes exploitation of vulnerability.
• The circuit court scored OV 10 at 10 points based on exploitation of a vulnerable victim due to the victims’ youth.
• OV 10 can be scored by factors including victim youth, vulnerability, and exploitation, with the highest applicable points applied.
• Michigan caselaw supports considering possession of child pornography as exploitation of victims depicted, even without direct contact.
• The court affirmed the OV 10 scoring, holding that possession itself exploits and victimizes depicted children.

Issues

Key Cases Cited

• People v Kimble, 470 Mich 305 (2004) (guides OV 10 analysis (not cited for full rules))
• Cannon, 481 Mich 152 (2008) (explains OV 10 factors and exploitation obligation)
• Russell (On Remand), 281 Mich App 610 (2008) (no victim means OV 10 not scored; here there are victims depicted)
• Huston, 489 Mich 451 (2011) (predatory-conduct requires a victim but not necessarily direct contact)
• Phelps, 288 Mich App 123 (2010) (discusses scoring and sufficiency of evidence)
• Althoff, 280 Mich App 524 (2008) (possession of child pornography can be a sexual offense against minors depicted)
• Norris, 159 F3d 926 (1998) (continues victimization theory through possession and consumption)
• Osborne v. Ohio, 495 U.S. 103 (1990) (importance of ongoing victimization from possession of images)
• Ferber, 458 U.S. 747 (1982) (harm from child pornography material)
• Shutic, 274 F.3d 1123 (2001) (privacy invasion aspect of depicting victims)
• Sherman, 268 F.3d 539 (2001) (relevance to child pornography harms)