People of Michigan v. Kyle Edward Straight ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 11, 2023
Plaintiff-Appellee,
v No. 359001
Otsego Circuit Court
KYLE EDWARD STRAIGHT, LC No. 20-005893-FH
Defendant-Appellant.
Before: GADOLA, P.J., and GARRETT and FEENEY, JJ.
PER CURIAM.
A jury convicted defendant of three counts of possession of child sexually abusive material
(CSAM), MCL 750.145c(4)(a). On appeal, defendant challenges the sufficiency of the evidence
supporting his convictions, arguing that the prosecution did not prove the identity element. We
affirm.
I. BASIC FACTS AND PROCEEDINGS
While driving to work in late November 2019, defendant retrieved from the center console
of his vehicle an SD card1 (the “card”), which he had placed there a few months earlier, and
inserted it into his phone. The card contained images of what defendant described as “child
pornography.” While sitting roadside for around 20 minutes, defendant viewed and then deleted
images until he was almost late to work. After work that day, defendant discussed with Victoria
Straight (“Victoria”), his then live-in ex-wife, the card and its contents. Victoria testified that, at
that time, defendant told her that he had asked his brother, Cody Hamilton, about placing the
images on the card, but did not accuse Hamilton of doing so. After her discussion with defendant,
Victoria turned the card over to the police.
1
The expert witness in this case, Craig Baumgartner, defined “SD card” as “a small multi-media
device that is usually inserted into a cell phone or into a computer in order to go through and extend
the amount of potential data storage space.”
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Defendant agreed to be interviewed by detectives early in their investigation. During the
interview, defendant initially denied ownership of the card. But after being told that the card
contained a video of defendant and his child, defendant admitted that he owned it. Defendant
offered multiple theories for how the child pornographic images ended up on the card. First,
defendant suggested Hamilton was responsible for the images because Hamilton had access to
defendant’s car and phones. According to defendant, as the detective scrolled through pictures on
the card with him, defendant viewed a selfie photograph of Hamilton in front of a mirror. Later,
however, defendant explained that he could have accidentally clicked a pop-up advertisement for
child pornographic images. Defendant stated that once, about nine years before the interview,
such an ad popped up while he was viewing adult pornography, and he immediately shut down
and rebooted his computer. As for his two cell phones, defendant insisted that child pornography
would not be found on either device. As the interview continued, defendant consented to the police
searching and seizing his vehicle, two phones, and two laptops. The card, phones, and laptops
were submitted to the Michigan State Police’s Computer Crimes Unit (the “Unit”) for analysis.
Craig Baumgartner, a civilian analyst in the Unit, completed an examination of defendant’s
devices. Baumgartner did not find any child pornographic images on the laptops. Defendant’s old
phone had 573 child pornographic images, and his new phone had 721 such images.2 Both phones
also had adult pornographic images, but Baumgartner believed those images to be personal, rather
than from a website. Baumgartner could not determine when the child pornographic images were
placed on the phones because the phones had no web history. Consequently, he could not
determine whether the child pornographic images were viewed on the same dates as the adult
pornographic images. The card contained 637 child pornographic images, as well as adult
pornographic videos. Of the 637 images, 235 were downloaded, rather than merely viewed or
cached.3 The 235 images were downloaded on more than two dozen dates between November
2018 and July 2019. Baumgartner, however, could not determine whether the download dates of
the child pornographic images corresponded with the date of any adult pornography viewed on
websites because there was no web history on the card.
At trial, defendant testified that he did not intentionally seek, download, or possess the
child pornographic images. Defendant testified that he believed Hamilton was responsible for the
images—even though defendant never witnessed Hamilton view or download such images—
because Hamilton had access to defendant’s new phone in August through November 2019 when
defendant transported Hamilton to and from work. Defendant, along with his cousin, David Blair,
and his sister, Stephanie Straight, testified to repeatedly observing Hamilton use defendant’s
phone. Hamilton, however, testified that he never used defendant’s phone.
2
The old phone and the new phone were bought in 2018 and 2019, respectively.
3
“Cache” is a “set of files kept by a web browser to avoid having to download the same material
repeatedly. Most web browsers keep copies of all the web pages that you view, up to a certain
limit, so that the same images can be redisplayed quickly when you go back to them.” People v
Flick, 487 Mich 1, 4 n 1; 790 NW2d 295 (2010) (quotation marks and citation omitted).
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As noted earlier, the jury convicted defendant of three counts of possession of CSAM. The
trial court sentenced defendant to concurrent terms of one year of imprisonment, with 389 days’
jail credit, for each conviction, and five years of probation. Defendant now appeals as of right.
II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence to support his convictions because
the prosecution failed to establish his identity as the person who knowingly possessed CSAM.
A. STANDARD OF REVIEW
We review a sufficiency-of-the-evidence challenge de novo, in a light most favorable to
the prosecution, with any conflicts between evidence resolved in the prosecution’s favor, and to
determine whether a rational trier of fact could find that the evidence proved the essential elements
of the crime beyond a reasonable doubt. People v Solloway, 316 Mich App 174, 180-181; 891
NW2d 255 (2016). De novo review means that we consider the legal issue independently and
without deference to the trial court’s conclusion. People v Harverson, 291 Mich App 171, 176;
804 NW2d 757 (2010). That said, we do not interfere with the jury’s role in deciding the credibility
of the witnesses. Solloway, 316 Mich App at 180. Circumstantial evidence and reasonable
inferences therefrom can prove an element of a crime, including a defendant’s intent. Harverson,
291 Mich App at 175, 178. “[I]dentity is an element of every offense.” People v Yost, 278 Mich
App 341, 356; 749 NW2d 753 (2008). Due process requires the evidence to show guilt beyond a
reasonable doubt to sustain a conviction. Harverson, 291 Mich App at 175.
B. ANALYSIS
Defendant was convicted of possession of CSAM under MCL 750.145c(4):
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 . . . .
CSAM is defined as any depiction of a child engaging in a “listed sexual act.” MCL
750.145c(1)(o).4 Possession occurs when a person “knowingly has actual physical control or
4
MCL 750.145c(1)(o) provides in full:
“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,
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knowingly has the power and the intention at a given time to exercise dominion or control over a
depiction of [CSAM].” People v Flick, 487 Mich 1, 13; 790 NW2d 295 (2010). Possession need
not be exclusive. Id. at 14. It can be actual or constructive and shown with direct or circumstantial
evidence. Id.
Defendant stipulated at trial that CSAM was located on the card and phones. On appeal,
he only argues that there was insufficient evidence of identity, which functionally serves as a
challenge to the element of possession. We conclude that there was sufficient evidence that
defendant knowingly and actually possessed CSAM.
Defendant admitted ownership of the devices and stipulated that CSAM was on them.
Defendant stated that in his first encounter with child pornography, nearly nine years before his
police interview, he “glimpse[d]” at a pop-up ad of child pornography and “immediately shut down
[his] computer and rebooted it.” As for his encounters with the CSAM in this case, defendant
testified that for about 20 minutes, he viewed anywhere from 80 to 200 images on the card “one
after another” while deleting them. He made this choice up to 200 times—eliminating with each
deletion the option of involving the police. Altogether, a rational jury could find that defendant
exercised dominion or control over the CSAM on the card.
Defendant speculates that he could have accidentally clicked a pop-up ad of CSAM while
viewing adult pornography on his phone. But Baumgartner, an expert in digital and computer
forensic analysis, dismissed that possibility. Baumgartner explained that it was not reasonable or
plausible to believe that an adult-pornography viewer would accidentally click on an ad and
produce the amount of CSAM found in this case—over 1,900 images. That number of images
combined with defendant’s many affirmative steps—viewing some images for around 20 minutes,
intentionally deleting image after image, and deciding to not involve the police—were sufficient
for the jury to reasonably infer that defendant did not accidentally stumble upon the images but
accessed and controlled them. See Flick, 487 Mich at 16. Additionally, a rational jury could infer
consciousness of guilt from defendant’s initial attempts to conceal evidence. See People v
Kowalski, 489 Mich 488, 508-509; 803 NW2d 200 (2011).
Defendant argues that he was not the only person who had access to the card or the phones.
To begin with, defendant fails to appreciate that possession need not be exclusive. Flick, 487 Mich
at 14. With respect to the card, defendant testified that he stored the card in the center console of
his car, which he frequently used to transport Hamilton to and from work. While there was some
evidence that a photograph of Hamilton was on the card, a jury could find that the photograph’s
existence on the card does not necessarily prove that Hamilton used the card. Defendant was in
the car during those trips to and from work, and he never witnessed Hamilton take the card.
Defendant also did not dispute Hamilton’s testimony that he never borrowed defendant’s car. Even
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.”
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more, as the prosecution mentions, Hamilton had no need for the card because he did not own a
phone at the time defendant discovered the CSAM. Altogether, a jury could find that Hamilton’s
alleged access to the card was not enough to create reasonable doubt as to whether defendant
knowingly possessed CSAM.
As for the phones, Blair testified that he witnessed Hamilton use defendant’s phone,
including “almost every time” defendant was asleep. Stephanie stated that she witnessed Hamilton
use defendant’s phone daily when she lived at and after she moved out of their mother’s home.
Defendant, too, asserted that he witnessed Hamilton use one of the phones throughout 2018 and
2019, including when they lived together, as well as during trips to and from work after they lived
together. Hamilton testified, however, that he never used defendant’s phone. Because we are
reviewing a sufficiency-of-the-evidence claim, we must resolve this conflict in the evidence in the
prosecution’s favor. See Solloway, 316 Mich App at 180-181. Not only that, but the record shows
that no one ever witnessed Hamilton view or download CSAM while using defendant’s phone. In
any event, defendant’s theory of the case does not alter the fact that the prosecution presented
sufficient evidence on each element of the crime. See People v Mikulen, 324 Mich App 14, 20;
919 NW2d 454 (2018) (“The prosecution need not negate every reasonable theory of innocence;
instead, it need only prove the elements of the crime in the face of whatever contradictory evidence
is provided by the defendant.”). The evidence of defendant’s ownership, access, and control of
the card and phones was sufficient for a rational jury to conclude that defendant knowingly
possessed the CSAM located on those devices.
Lastly, defendant makes a string of arguments about the credibility of witnesses and the
weighing of evidence: he argues that the prosecution’s witnesses were unreliable and did little to
condemn him; he did not conceal any device; he offered a plausible explanation for telling Victoria
about the card and its contents; his actions were those of an innocent man; and his witnesses had
no concerns with allowing him around their minor children. The jury, however, did not find
defendant’s theory credible, and we must not interfere with the jury’s credibility determinations or
weighing of the evidence. See Solloway, 316 Mich App at 180.
In sum, defendant’s due-process rights were not violated because there was sufficient
evidence that he knowingly possessed and controlled CSAM on the devices he owned, which
consequently satisfied the element of identity and supported the jury’s findings of guilt beyond a
reasonable doubt.
Affirmed.
/s/ Michael F. Gadola
/s/ Kristina Robinson Garrett
/s/ Kathleen A. Feeney
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