People of Michigan v. Edward James Charboneau ( 2024 )

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, FOR PUBLICATION
November 15, 2024
Plaintiff-Appellee, 10:54 AM
v No. 364596
Marquette Circuit Court
EDWARD JAMES CHARBONEAU, LC No. 2019-058611-FH
Defendant-Appellant.
Before: BORRELLO, P.J., and N. P. HOOD and YOUNG, JJ.
YOUNG, J.
Defendant, Edward James Charboneau, appeals as of right his sentences of 10 to 20 years’
imprisonment for 32 counts of Child Sexually Abusive Activity, MCL 750.145c(2), 32
corresponding counts of Using a Computer to Commit a Crime, MCL 752.797(3)(f), 2 counts of
Child Sexually Abusive Material (CSAM) – Aggravated Possession, MCL 750.145c(4), and 2
corresponding counts of Using a Computer to Commit a Crime, MCL 752.797(3)(e). Charboneau
appeals these sentences by right under MCR 7.203(A)(1), arguing that his constitutional right to a
fair trial was violated when the trial court did not allow defense counsel to present certain
demonstrative evidence at trial. Charboneau also contends the trial court incorrectly assessed 10
points for offense variable (OV) 4 because there was no victim testimony regarding psychological
injury or a prospect of such injury suffered. Though we hold there was no violation of
Charboneau’s constitutional rights, we agree that the trial court erred in assessing 10 points for
OV 4 at sentencing. We affirm Charboneau’s convictions and sentences but remand this matter
for the ministerial task of correcting the presentence investigation report (PSIR) in the lower court
file.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out the search and seizure of Charboneau’s two computers (one desktop
and one laptop) on May 29, 2019, which were alleged to contain Child Sexual Abusive Material
(“CSAM”). Detective Lieutenant Christopher Aldrich of the Marquette City Police Department
conducted the search warrant and was called to testify as the prosecution’s first witness at trial.
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Following seizure of the two computers,1 Detective Aldrich testified that they were brought to the
Michigan State Police Computer Crimes Unit in Marquette for analysis. Following this analysis,
Detective Aldrich recovered multiple images that he considered to be CSAM from the desktop
computer and two videos of suspected CSAM on the laptop computer. In addition to these images,
the forensic analysis of the computers also found web addresses identified as pornography
websites. In total, 35 images and 2 videos of suspected CSAM were found among the two devices.
On cross-examination, Detective Aldrich was asked about some of the flagged search
terms. Defense counsel began with the YouTube search for “young girl pole dancing.” Defense
counsel asked Detective Aldrich if he was aware that one minute later, there was another search
for “UK’s latest fitness craze, little girls pole dancing.” Detective Aldrich answered that he was
not aware of the subsequent search. Additionally, Detective Aldrich testified that he was not aware
that, in addition to the search term “teen prostitute,” there was also a search on YouTube for
“Morning Joe, MSNBC” and that one of the stories that morning on the show had focused on “teen
prostitutes.” Defense counsel also questioned Detective Aldrich regarding the search term “teen
with new lingerie groped POV” on the website Pornhub. Defense counsel asked Detective Aldrich
if he were to enter the search term “teen with new, new lingerie groped POV” into Pornhub,
whether it would return results containing CSAM or legal adult pornography; Detective Aldrich
responded that he did not know.
At this point, defense counsel sought to display the Pornhub website to the jury and conduct
a search for “teen with new, new lingerie groped POV” to determine what results the search would
return. It was defense counsel’s belief that the search results would show “absolutely nothing teen
related or CSAM related.” The prosecutor responded that he was aware there are pornography
websites that display individuals ages eighteen or older who pose, dress, and appear as an underage
so that those who are interested in viewing such content can do it legally, as models are of legal
age. However, the prosecutor argued that a search conducted on the current date, in September
2019, would not replicate a search conducted in 2018, and that the point defense counsel was trying
to make could be done without having a jury view pornographic images. The trial court agreed
with the prosecutor and barred defense counsel from performing the requested searches before the
jury on the basis that the demonstration was not relevant, and was more prejudicial than probative.
Immediately following that ruling, the trial judge asked the parties if there was “anything further
we need to address in that regard?” Defense counsel responded, “no judge,” and continued with
cross-examination.
The prosecutor called several more witnesses, including Dr. Francis Darr, a qualified expert
in child abuse, neglect, and pediatrics. Dr. Darr reviewed the images and videos at issue and
1
One computer was described as a Hewlett Packard All-In-One desktop computer (labeled “Item
One” for investigative purposes) and the other computer was a Hewlett Packard laptop (labeled
“Item Two” for investigative purposes). Detective Aldrich testified that, at the time the search
warrant was executed, there was a cord running between the desktop computer and the laptop
computer. In this appeal, Charboneau does not challenge the legality of law enforcement’s search
or seizure of either computer.
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opined that the overwhelming majority of the individuals in each photograph were children and
adolescents under the age of eighteen, constituting CSAM. The prosecution also called
Charboneau’s neighbor, Michael Perry, to the stand. Perry testified that he gave an old computer
to Charboneau that his mother was planning to throw away, and that he had never personally turned
on or used the computer himself.
Charboneau’s 15-year-old son, Gabriel Charboneau,2 was also called to testify. Gabriel
testified that he would sometimes use Charboneau’s computers, but that he did not have the sign-
in information to access them by himself. When asked if he had ever seen anything “inappropriate”
in the apartment, Gabriel recalled a time that he saw a pornography website already pulled up by
someone else on Charboneau’s computer when he was ten or eleven years old, but that he never
personally searched for porn on either of Charboneau’s computers.
The prosecution’s next witness was Jeffrey Martin, a digital forensic examiner, formerly
employed with the Michigan State Police, who testified that he was called by the Marquette Police
Department to consult on a potential CSAM case.3 In his forensic analysis, Martin determined
that two images were taken from a web search, while the other potential CSAM images found on
the computer had been downloaded and/or transferred there at one point in time. All of the images,
he explained, however, were found on unallocated space within the computer, meaning they had
been deleted by the user and were waiting for the next item to be deleted to take over the space
they currently occupied on the computers’ hard drives. Martin further testified that the suspicious
web searches were able to be tied to a specific log in user ID. On Item 1 (the desktop computer),
the activity was tied to the username “E. Charboneau.” On Item 2 (the laptop), the user activity
was tied to the “Gaby Baby” username.4 Both devices also contained autofill information that tied
the user activity to Charboneau. Martin further testified that folders created by the E. Charboneau
user account were discovered on the devices with titles commonly used in naming CSAM.
Specifically, Martin discovered folders accessed and created by the E. Charboneau user account
between March 2019 and April 2019 entitled “eight year-old,” “six year-old,” “six year-old
daughter,” “horny brother and sister,” “eight year-old daughter,” and “petite six year-old.”
On cross-examination, Martin was shown the thirty-five separate images and two videos
found in the unallocated space of the computers and opined that each was suspected CSAM.
Martin testified that he had no way of knowing who put them on the computer or when they were
put there, but he could only decipher which username was used to store the images and videos.
Martin further admitted that it did not appear that Charboneau had ever initiated any updates to the
operating system of the desktop or laptop computer, which would make it possible that files in the
“unallocated space” portion of the hard drive could have been there prior to Charboneau obtaining
the desktop computer where all of the images were located. The same is true of the laptop
2
Because Gabriel shares the same last name as his father, we refer to Gabriel by his first name.
3
Martin was qualified as an expert in digital forensic analysis and was deemed a certified computer
examiner.
4
Martin testified that the last log in for Gaby Baby, the username associated with Gabriel, was in
2014. He also testified that he found no evidence that Gabriel used the computer described as Item
1.
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computer, which had not been updated since 2016. Additionally, Martin acknowledged that
CSAM is typically shared on peer-to-peer networks, and that he found no peer-to-peer software
transferring files on either device.
On the third and final day of trial, defense counsel called Joshua Blanchard, an expert in
computer forensics, as its first witness. Blanchard agreed with Martin that all of the CSAM images
were found in the unallocated space on the computers, and thus, the images would be inaccessible
to a user. Blanchard testified that he saw no evidence that Charboneau interacted with or viewed
the CSAM images in any way, nor was there any evidence on the computers that he copied,
purchased, created, or distributed any of the images found on his computer.
Counsel then questioned Blanchard on the concerning search terms that were used on the
internet, to which Blanchard testified:
Q. And was there anything in your analysis that led you to believe that
those were anything other than– let me ask it better. What did those, what did those
– your discovery of those search terms lead you?
A. I believe that they were search terms on – that were connected with
commercial pornography websites that have adult pornography and would yield
adult pornography.
Q. So you – what was it? Pornhub.com and motherless.com. Those were
porn sites, correct?
A. So Porn Hub is a, a pornography website that has adult pornography on
it. And motherless.com is a web – it’s different. It’s less commercial. It was started
by a person named Joshua Lange. And it’s a website where people can upload, sort
of their own amateur pornography. Their terms of service prohibit uploading child
pornography. And so it’s a place that people go and they enter search terms and
they get, you know, sort of self-created pornography.
Q. Search terms like teen and girls, and jail bait ass. Is that true?
A. Yeah, so those are search terms that come up frequently in the cases I
work on that involved child pornography. Teen is a search term that frankly yields
on adult porn sites, you know, eighteen, nineteen year old people. And anyone,
really who wants to claim to be that age.
On cross-examination, the prosecutor asked Blanchard if he was aware that the search term
“teen with new lingerie groped” was conducted under the E. Charboneau user name. Blanchard
responded that he did see that it occurred while the user account E. Charboneau was logged in.
The prosecutor continued:
Q. And the other terms such as jail bait that were attributed to that user
name of E. Charboneau. Again the same answer would apply
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A. So again I, I saw that. That’s not a search term that in my experience is
associated with child pornography. I understand it’s sort of a crude term for
someone young. But the search terms that I find in cases that are associated with
child pornography are different than that. Those are search terms that would – on
an adult website like Porn Hub or motherless would yield legal adult pornography.
* * *
Q. I mean you can’t – I’m sorry. I’ll follow up and then I’ll shut up and let
you answer. So you can’t really know what that user or that person doing that
search is actually looking for or not, is that, that correct? And feel free to answer.
A. So I think there are a couple parts to that question right. The first part is
that people – you said purveyors, but people that are looking for this stuff, right,
rather than people that are distributing it. The people that are looking for it in my
experience know where to look because there are often communities of people that
are interested in child pornography. They talk on chat groups. Some dark web
pages. They exchange on BitTorrent. They know where to go and they know what
search terms get them what they want. And so, no I think that people that want this
stuff do know where to go to get it. I think the search term that you got to be careful
about – you say teen in lingerie. Teen in lingerie captures young adult women,
right. It captures eighteen and nineteen year olds.
Q. Yes it does. Yep.
A. And if you put that into a commercial site like Porn Hub my expectation
is that you would get back women in their twenties who are pretending like their
teens. Dressed kind of youngish. And we can debate whether or not that’s
something someone should do. But it is, it is unquestionable [sic] legal to search
for adult pornography in the United States.
In further questioning regarding Pornhub and motherless.com, Blanchard testified that these adult
porn sites provide legal search results to its users and do not generate illegal search results.
The defense rested and the prosecutor called Martin to the stand as a rebuttal witness.
Martin testified that contrary to Blanchard’s testimony, search terms like “young little girl” and
“teen jail bait” came up in his CSAM investigations. He further indicated that in about fifty percent
of his cases investigating CSAM the illegal materials are in allocated space, which was also
contrary to Blanchard’s testimony.
The jury found Charboneau guilty on 32 counts of child sexually abusive activity, 32
corresponding counts of using a computer to commit a crime, 2 counts of aggravated possession
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of CSAM, and 2 corresponding counts of using a computer to commit a crime.5 Charboneau was
sentenced on December 15, 2022, to 10 years to 20 years’ incarceration with the Michigan
Department of Corrections on the child sexually abusive activity and corresponding use of a
computer to commit a crime counts, with the sentences to run concurrently. This appeal followed.
II. ANALYSIS
A. CHARBONEAU’S RIGHT TO A FAIR TRIAL
In this appeal, Charboneau argues that the inability to present searches on the Pornhub
website to the jury denied him the right to present a defense and deprived him of his constitutional
right to a fair trial. We disagree.
1. STANDARD OF REVIEW
We review the trial court’s exclusion of evidence for an abuse of discretion. People v King,
297 Mich App 465, 472; 824 NW2d 258 (2012). A trial court’s decision whether to admit or
exclude evidence will be affirmed in the absence of a clear abuse of discretion. People v Starr,
457 Mich 490, 494; 577 NW2d 673 (1998). The trial court abuses its discretion when its decision
is outside the range of principled outcomes. People v Feezel, 486 Mich 184, 192; 783 NW2d 67(2010).
As for unpreserved constitutional claims,6 we review for plain error affecting substantial
rights. King, 297 Mich App at 472. This requires the defendant to show that the plain error
affected his substantial rights. Id. at 473, citing People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). Reversal is warranted only if the error resulted in the conviction of an innocent
defendant or seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. Id.
2. THE TRIAL COURT DID NOT COMMIT PLAIN ERROR IN DECIDING TO EXCLUDE
THE EVIDENCE
The right to present a complete and meaningful defense arises from the Sixth Amendment’s
Confrontation Clause and the Due Process Clause of the Fourteenth Amendment. US Const, Ams
V, XIV; People v King, 297 Mich App 465, 473; 824 NW2d 258 (2012). A defendant also has the
5
The jury acquitted Charboneau on three counts of Child Sexually Abusive Activity,
MCL 750.145c(2) and three corresponding counts of Using a Computer to Commit a Crime,
MCL 752.797(3)(f).
6
At trial, Charboneau never claimed that his constitutional right to present a defense was being
denied by the trial court’s ruling. Charboneau’s only objection to the ruling of the trial court was
based on the Michigan Rules of Evidence, with no mention of a constitutional violation occurring.
Thus, the evidentiary issue is preserved, but the constitutional issue is not preserved. People v
Gaines, 306 Mich App 289, 306; 856 NW2d 222 (2014).
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right to present a defense under the Michigan Constitution. Const 1963, art 1, § 17. People v
Carpenter, 464 Mich 223, 241-242; 627 NW2d 276 (2001). However, “[t]he right to assert a
defense may permissibly be limited by ‘established rules of procedure and evidence designed to
assure both fairness and reliability in the ascertainment of guilt and innocence.’ ” People v Toma,
462 Mich 281, 294; 613 NW2d 694 (2000), citing Chambers v Mississippi, 410 US 284, 302; 93
S Ct 1038; 35 L Ed 2d 297 (1973). A trial court might be justified in excluding evidence that is
“incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” United
States v Blackwell, 459 F3d 739, 753 (CA 6, 2006), or evidence that is “repetitive, only marginally
relevant or poses an undue risk of harassment, prejudice, or confusion of the issues.” Holmes v
South Carolina, 547 US 319, 326–327; 126 S Ct 1727, 164 L Ed 2d 503 (2006).
Here, defense counsel sought to conduct the searches on the website Pornhub for the
purpose of showing the jury that, when searching the terms at issue, no teen related or CSAM
results would be returned. At trial, the prosecution objected to defense counsel’s introduction of
the demonstrative evidence, stating that it is not relevant and that it would be more prejudicial than
probative. Defense counsel now argues for the first time that the trial court violated Charboneau’s
constitutional rights in excluding the evidence. We disagree.
Evidence is relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without such evidence. MRE 401. And, although relevant, evidence may still be excluded.
Relevant evidence should be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or the potential for misleading the jury. People
v Brownridge, 459 Mich 456, 461 (1999). See also MRE 403. As argued by the prosecution,
conducting a search on the Pornhub website several years after the original search was done is not
relevant. And even if it were relevant, we agree 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 that Charboneau would have accessed years prior to
trial – leading to potential confusion and misleading of the jury. Further, 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 the age of eighteen.
Moreover, the point that defense counsel sought to assert with the use of the Pornhub
website was accomplished through the testimony of several witnesses, including two prosecution
witnesses. Defense counsel argued that he was not requesting the demonstration to “show that the
exact same videos or photos are available now as would have been at the same time. [He was]
doing it to show that a search algorithm on any particular website is gonna return a type of category
of thing.” This objective was achieved through the testimony of Detective Aldrich, Dr. Darr,
Martin, and Blanchard collectively.
Detective Aldrich testified that he recalled there being images of adult pornography present
on the Charboneaus’ devices, as did Martin. Martin also testified that when the term “teen” is
searched on a pornography website, that pornographic videos with the term “teen” in the name of
the video would appear. Charboneau’s own expert, Blanchard, testified that the search terms found
on the Charboneaus’ devices would return results for adult pornography, that he has never seen a
CSAM case that involves the use of the Pornhub website, and that Pornhub and motherless are not
websites that people go to when looking for CSAM. Blanchard also testified that those specific
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search terms would yield results that would include 18-year-old or 19-year-old individuals. While
defense counsel’s demonstration could potentially have been helpful in conveying this point to the
jury, it is mere speculation that such demonstration would have bolstered Charboneau’s defense.
The trial court’s ruling on this issue resulted from the proper application of Michigan’s evidentiary
rules and was not an abuse of discretion. Nor did the ruling manifest plain error affecting
Charboneau’s substantial rights.
Under these circumstances, we hold that trial court’s decision to exclude the demonstrative
evidence was not an abuse of discretion nor plain error.
B. OV 4
Charboneau argues that the trial court erred in assessing 10 points for OV 4 because the
record lacks victim testimony regarding psychological injury or a prospect of such injury suffered
by said victim. We agree.
1. STANDARD OF REVIEW
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013), superseded by statute on other grounds as stated by People
v Rodriguez, 327 Mich App 573, 579 n 3; 935 NW2d 51 (2019). “[T]he clear-error standard
requires us to affirm unless we are definitely and firmly convinced the trial court made a
mistake . . . .” People v Ziegler, 343 Mich App 406, 410; 997 NW2d 493 (2022). “Whether the
facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the
application of the facts to the law, is a question of statutory interpretation, which an appellate court
reviews de novo.” Hardy, 494 Mich at 438.
This Court reviews for clear error a trial court’s findings in support of a particular score
under the sentencing guidelines, but we review de novo whether the trial court properly interpreted
and applied the sentencing guidelines to the findings. People v Hardy, 494 Mich 430, 438; 835
NW2d 340 (2013). A trial court’s finding is clearly erroneous when this Court is left with the
definite and firm conviction that the trial court made a mistake. People v McChester, 310 Mich
App 354, 358; 873 NW2d 646 (2015). The prosecution bears the burden to establish the facts in
support of a score by a preponderance of the evidence. People v Osantowski, 481 Mich 103, 111;
748 NW2d 799 (2008).
2. THE TRIAL COURT CLEARLY ERRED IN ASSESSING 10 POINTS TO OV 4
OV 4 evaluates psychological injury to a victim, and provides that 10 points shall be scored
if a victim suffers serious psychological injury requiring professional treatment.
MCL 777.34(l)(a). The fact that treatment has not been sought is not conclusive. MCL 777.34(2).
As previously explained by this Court, the possession or dissemination of CSAM is a crime that
has a victim. People v Needham, 299 Mich App 251, 255; 829 NW2d 329 (2013). This Court
also noted that the use of children as subjects of pornographic materials is harmful to the
physiological, emotional, and mental health of the child. Id. at 256, citing New York v Ferber, 458
US 747,758; 102 S Ct 3348; 73 L. Ed. 2d 1113 (1982). In Ferber, the Supreme Court noted that,
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[V]irtually all of the States and the United States have passed legislation
proscribing the production of or otherwise combating “child pornography.” The
legislative judgment, as well as the judgment found in the relevant literature, is that
the use of children as subjects of pornographic materials is harmful to the
physiological, emotional, and mental health of the child. That judgment, we think,
easily passes muster under the First Amendment.
In this case, the trial scored OV 4 at 10 points. Under MCL 777.34, the trial court assigns
10 points to OV 4 if it found that a victim suffered serious psychological injury that required or
may require professional treatment.
The prosecutor relies on People v Roop, unpublished per curiam opinion of the Court of
Appeals, issued May 16, 2019 (Docket No. 342262), p 9-10. In that case, Roop was convicted of
manufacturing CSAM, using a computer to commit a crime, distributing CSAM abusive material,
and possessing CSAM. Id. at 1. Roop argued there was no evidence that the persons depicted in
the materials actually suffered any psychological injury. Id. at 9-10. In his appeal, Roop claimed
that the trial court must have relied on People v Needham, 299 Mich App 251; 829 NW2d 329(2013) to score OV 4. Roop, unpub op at 9-10.
In Needham, this Court addressed whether a trial court could assign 10 points under OV 10
for the exploitation of a victim’s youth for an offense involving CSAM, even though there was no
evidence that the defendant had any contact with the child depicted. Needham, 299 Mich App at
252. We held that the victim in a case involving CSAM is the child depicted and that the end user
of child pornography exploits the youthful victim by creating a market for child pornography and
participates in the continued exploitation of the victim anew every time the image is viewed. Id.
at 255-258. For those reasons, a defendant convicted of possessing CSAM, exploits the child
victim by downloading and viewing the image even though he or she has never had contact with
the victim. Id.Applying Needham in Roop, this Court upheld the trial court, finding that Roop had not
shown that the trial court erred when it assigned 10 points under OV 4. Roop, unpub op at 10.
However, we find Roop distinguishable. In that case, unlike here, there was psychological harm
reported by a 10-year-old victim. Roop, unpub op at 8. Roop relied on Needham, a decision from
2013, but we find instructive People v White, 501 Mich 160; 905 NW2d 228 (2017). In White, our
Supreme Court reversed the trial court’s assessment of 10 points to OV 4, concluding that “(a)
points for OV 4 may not be assessed solely on the basis of a trial court’s conclusion that a ‘serious
psychological injury’ would normally occur as a result of the crime perpetrated against the victim
and (b) evidence of fear while a crime is being committed, by itself, is insufficient to assess points
for OV 4.” Id. at 162. White explained,
[A] trial court “may not simply assume that someone in the victim’s position would
have suffered psychological harm because MCL 777.34 requires that serious
psychological injury ‘occurred to a victim,’ ” not that a reasonable person in that
situation would have suffered a “serious psychological injury.” [Id. at 163 citing
People v Lockett, 295 Mich App 165, 183; 814 NW2d 295 (2012).]
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Here, like in White, we have no victim impact statement at a preliminary examination or at
sentencing to establish psychological injury. A “court cannot merely assume that a victim has
suffered a ‘serious psychological injury’ solely because of the characteristics of the crime.” Id. at
165. We thus conclude that the trial court clearly erred in scoring OV 4 at 10 points. However,
because the trial court’s sentencing error does not alter the imposed sentencing guidelines range,
resentencing is not required.7 We thus remand to the trial court only for the ministerial act of
amending the PSIR to reflect 0 points for OV 4.
III. CONCLUSION
We affirm the trial court’s decision in denying Charboneau’s request to present the disputed
demonstrative evidence. However, because there was not a preponderance of the evidence to
support serious psychological injury, the trial court clearly erred in assessing 10 points for OV 4.
We affirm Charboneau’s convictions and sentences but remand to the trial court for the ministerial
act of amending the PSIR to reflect 0 points for OV 4.
Affirmed in part, remanded in part. We do not retain jurisdiction.
/s/ Adrienne N. Young
/s/ Stephen L. Borrello
/s/ Noah P. Hood
7
Defense counsel urges this Court to remand for resentencing because he claims the sentence
imposed was based on inaccurate information. We do not believe the information considered in
sentencing Charboneau was inaccurate as used in MCL 769.34(10), but rather, that there is
insufficient evidence of it. This Court has previously held that where a guideline variable score is
at issue and does not change the guidelines, the remedy is ministerial in nature. See People v
Barnes, 332 Mich App 494, 509; 957 NW2d 62 (2020).
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