Defendant appeals as of right his jury trial convictions of five counts of first-degree criminal sexual conduct (CSC I), MCL 750.520b, and three counts of possession of child sexually abusive material, MCL 750.145c(4). Defendant was sentenced to concurrent terms of 17V2 to 40 years of imprisonment for each count of CSC I and one year for each count of possession of child sexually abusive material. We affirm.
Defendant argues that the trial court abused its discretion in denying his motion to sever the CSC I charges from the charges of possession of child sexually abusive material. We disagree. MCR 6.120(B) provides that “[o]n the defendant’s motion, the court must sever unrelated offenses for separate trials.” Whether defendant’s charges are related is a question of law that we review de novo.
People v Tobey,
The staff comment to MCR 6.120 notes that “[t]he standard in subrule (B)... is derived from ABA Standard 13-1.2, and a predecessor standard, ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance (Approved Draft, 1968), Standard 1.1.” Standard 13-1.2 defines related offenses as follows: “ ‘Two or more offenses are related offenses if they are based upon the same conduct, upon a single criminal episode, or upon a common plan.’ ”
People v McCune,
“Two or more offenses may be joined in one charge ... when the offenses .. . :
*18 (a) are of the same or similar character, even if not part of a single scheme or plan; or
(b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” [Tobey, supra at 150 n 13, quoting Standard 1.1.]
The complainant, who is defendant’s stepdaughter, and defendant’s wife testified at trial that defendant looked at sexual images on his computer, including images of children, while engaging in sexual acts with them. The testimony implied that defendant used child pornography for stimulation before and during his sexual abuse of the complainant, and, thus, the use of child pornography was part of his modus operandi. Furthermore, a prosecution expert testified that the pictures used as exhibits at the trial were viewed on defendant’s computer within the same time frame that defendant was molesting the complainant. Thus, the circumstances in the case at bar clearly fall within the plain language of MCR 6.120(B). Moreover, evidence regarding defendant’s habit of viewing child pornography was part of the res gestae of the CSC 1 crimes. Accordingly, we conclude that the trial court did not err in refusing to sever the charges.
Defendant also argues that the charges should have been severed under MCR 6.120(C), which gives the court discretion to sever related charges on grounds of unfair prejudice. However, because the evidence regarding defendant’s possession of child sexually abusive material would have been admissible at a separate trial on the CSC I charges for the reasons just discussed, defendant cannot establish that a different outcome was likely had the charges been severed and separate trials held. See, e.g.,
People v Delgado,
Defendant also argues that the admission of the images at issue violated MRE 1002 (requirement of original) because they were only identified by witnesses as being similar to the images they had seen on defendant’s computer. Again, we disagree. Because defendant failed to object to the admission of the images on best evidence grounds, this issue is unpreserved.
People v Griffin,
MRE 1002 provides:
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.
MRE 1004 provides:
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if—
*20 (1) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original Not Obtainable. No original can he obtained by any available judicial process or procedure; or
(3) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(4) Collateral Matters. The writing, recording, or photograph is not closely related to a controlling issue.
The complainant testified that defendant looked at sexually explicit images on his computer, including pictures of nude children, before or while engaged in sexual acts with her. This testimony was res gestae evidence used to describe the circumstances surrounding the sexual assaults. Thus, insofar as the CSC I charges were concerned, the evidence of child pornography found on defendant’s computer was a collateral matter and was not related to a controlling issue. Therefore, under MRE 1004 the original pictures were not required, and other evidence, including photographs that witnesses testified were similar, could be used to establish the circumstances surrounding the crime.
The photographs were also used as evidence to prove the knowing possession element of MCL 750.145c. As discussed below, the prosecution had to show more than just the presence of child sexually abusive material in a temporary Internet file or a computer recycle bin to prove that defendant knowingly possessed the material. This element was established by the testimony of a friend of defendant’s that defendant had sent him pictures of nude children similar to those exhibited at the trial. Because of the large volume of images stored on *21 defendant’s hard drive and because the friend’s computer was not searched, it was impossible for the prosecution to determine which images had been sent to the friend.
Defendant also argues that there was insufficient evidence for conviction under MCL 750.145c because the prosecutor failed to prove beyond a reasonable doubt that the images were of “real” children under the age of 18. We disagree. We review de novo claims regarding the sufficiency of the evidence.
People v Lueth,
We note that, at the time defendant committed the charged offenses, MCL 750.145c(4) 1 provided:
A person who knowingly possesses any child sexually abusive material is guilty of a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $10,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know the child is a child, or that person has not taken reasonable precautions to determine the age of the child.
*22 “Child sexually abusive material” was defined by MCL 750.145c(l)(i) to include “a developed or undeveloped photograph, film, slide, electronic visual image, computer diskette, or sound recording of a child engaging in a listed sexual act.In this case, the “listed sexual act” was “erotic nudity,” defined as “the lascivious exhibition of the genital, pubic, or rectal area of any person.” MCL 750.145c(l)(d).
Defendant argues that the prosecutor failed to establish that the persons in the photographs were children under the age of 18 because plaintiffs expert did not testify about the ages of the children in the images. MCL 750.145c(5) provided that “[ejxpert testimony as to the age of the child used in a child sexually abusive material... is admissible as evidence in court and may be a legitimate basis for determining age, if age is not otherwise proven.” The plain language of this subsection indicates that expert testimony is not required to establish the age of the children in the images. Rather, it provides that such testimony is permissible “if age is not otherwise proven.” In the case at hand, the images themselves provided evidence of the ages of the persons depicted.
State v May,
362 NJ Super 572, 594;
We also reject defendant’s argument that the prosecution failed to prove that he “knowingly possessed” *23 child pornography because the prosecution’s expert testified that the images were contained in either a temporary Internet file or in a deleted file, not readily accessible to the user. We need not address whether the mere presence of a document or image in a temporary Internet file or in the computer recycle bin would be sufficient to prove knowing possession beyond a reasonable doubt because the evidence adduced below, viewed in a light most favorable to the prosecution, showed that defendant’s possession reached beyond such circumstances. Defendant’s wife and the complainant testified that they had seen defendant looking at images of adolescents on his computer screen for extended periods, including during the course of engaging in sexual acts. Furthermore, defendant’s friend testified that defendant had e-mailed pictures of nude children to him.
Finally, defendant argues that the prosecutor failed to prove that the pictures found on his computer were of actual children and were not virtual or computer-generated images. The version of the statute under which defendant was charged did not address the situation of computer-generated child pornography. Indeed, MCL 750.145c(l)(a) provided, “ ‘Child’ means a person who is less than 18 years of age and is not emancipated by operation of law----” There is no indication in the statute that “person” means anything but its ordinary meaning, i.e., a living human being.
We do not believe that the prosecution has the burden to come forth with direct evidence to counter unsupported speculation that images on a computer are not of real children. See
United States v Farrelly,
Affirmed.
Notes
MCL 750.145c was amended in 2002.