                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 25, 2017
              Plaintiff-Appellee,

v                                                                  No. 330145
                                                                   Monroe Circuit Court
ROBERT ERWIN STUMPMIER,                                            LC No. 14-041399-FH

              Defendant-Appellant.


Before: MURPHY, P.J., and MURRAY and M. J. KELLY, JJ.

PER CURIAM.

        Defendant, Robert Stumpmier, was convicted after a jury trial of six counts of possession
of child sexually abusive material, MCL 750.145c(4), and six counts of using a computer to
commit a crime, MCL 752.797. He was sentenced to concurrent prison terms of 18 to 84 months
for the possession of child sexually abusive material convictions and 365 days for using a
computer to commit a crime convictions. He appeals his convictions as of right, raising three
claims of error. For the reasons stated in this opinion, we affirm.

                                       I. BASIC FACTS

        The Monroe Police Department received information that led them to believe that
Stumpmier possessed child pornography. They executed search warrants at Stumpmier’s home
and at a music store he operated, and seized computers and other evidence. An analysis of the
computer hard drive disclosed numerous digital images of naked males. The police isolated 131
images that they felt possibly depicted underage males and had these images analyzed by Dr.
Randall Schlievert, a medical doctor who had previously assisted law enforcement during similar
investigations. Dr. Schlievert reviewed the images and opined that six of the images were of
youths under 18 years of age. Based on these images, Stumpmier was charged with six counts of
possession of child sexually abusive material and six counts of using a computer to commit a
crime. At the trial, in addition to the testimony of police officers who were involved in the
investigation and the analysis of the seized evidence, the prosecutor also presented the “other
acts” testimony from two teenage boys who had interacted with Stumpmier at his music store
and as members of a 4-H group. The prosecutor also presented Dr. Schlievert’s opinion
testimony after having him qualified as an expert witness. Stumpmier presented the testimony of
Dr. Arlan Rosenbloom as a defense expert witness to counter Dr. Schlievert’s testimony. Dr.
Rosenbloom opined that the age of the males in the photographs could not be ascertained.

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                                     II. EXPERT WITNESS

                                  A. STANDARD OF REVIEW

         Stumpmier first contends that the trial court erred in admitting Dr. Schlievert as an expert
with regard to childhood growth and physical maturity. This Court reviews questions regarding
a trial court’s determination of a witness’s qualification as an expert for an abuse of discretion.
People v Gambrell, 429 Mich 401, 407; 415 NW2d 202 (1987). An abuse of discretion is shown
when the court’s “decision falls outside the range of principled outcomes.” People v Lane, 308
Mich App 38, 51; 862 NW2d 446 (2014).

                                          B. ANALYSIS

      Regarding the admission of expert testimony, our Supreme Court stated in People v
Kowalski, 492 Mich 106, 119-122; 821 NW2d 14 (2012) (opinion by MARY BETH KELLY, J.):

              MRE 702 establishes prerequisites for the admission of expert witness
       testimony. The rule provides:

                       If the court determines that scientific, technical, or other
               specialized knowledge will assist the trier of fact to understand the
               evidence or to determine a fact in issue, a witness qualified as an
               expert by knowledge, skill, experience, training, or education may
               testify thereto in the form of an opinion or otherwise if (1) the
               testimony is based on sufficient facts or data, (2) the testimony is
               the product of reliable principles and methods, and (3) the witness
               has applied the principles and methods reliably to the facts of the
               case.

       A court considering whether to admit expert testimony under MRE 702 acts as a
       gatekeeper and has a fundamental duty to ensure that the proffered expert
       testimony is both relevant and reliable. The overarching goal is “to make certain
       that the expert . . . employs in the courtroom the same level of intellectual rigor
       that characterizes the practice of an expert in the relevant field.” Because there
       are many different kinds of experts and expertise, this inquiry is, by necessity, a
       flexible one, and a court determining the admissibility of expert testimony may
       consider reliability factors pertinent to the particular type of expert testimony
       offered and its connection to the particular facts of the case.

               Whatever the pertinent factors may be, however, a court evaluating
       proposed expert testimony must ensure that the testimony (1) will assist the trier
       of fact to understand a fact in issue, (2) is provided by an expert qualified in the
       relevant field of knowledge, and (3) is based on reliable data, principles, and
       methodologies that are applied reliably to the facts of the case. Although these
       considerations are separate and distinct and must be satisfied independently, they
       are, in fact, overlapping in nature. For example, “[a]n expert who lacks
       ‘knowledge’ in the field at issue cannot ‘assist the trier of fact.’ ” Likewise,
       expert testimony without a credible foundation of scientific data, principles, and
                                                -2-
       methodologies is unreliable and, thus, unhelpful to the trier of fact. Indeed,
       proposed expert testimony must meet all the other requirements of MRE 702 in
       order to “assist the trier of fact to understand the evidence or to determine a fact in
       issue . . . .”

                However, the threshold inquiry—whether the proposed expert testimony
       will “assist the trier of fact to understand the evidence or to determine a fact in
       issue”—is also not satisfied if the proffered testimony is not relevant or does not
       involve a matter that is beyond the common understanding of the average
       juror . . . . These considerations of relevancy and the need for expertise are
       independent of the other requirements of MRE 702. Thus, even proposed expert
       testimony that is offered by a qualified expert and based on reliable scientific data
       and methods may be properly excluded if it is not relevant to the facts of the case
       or is offered for a proposition that does not require the aid of expert interpretation.
       [Footnote citations omitted; alterations in original.]

         Stumpmier was charged with violating MCL 750.145c(4). That statute prohibits the
possession of child sexually abusive material, and it defines “child” as “a person who is less than
18 years of age.” MCL 750.145(c)(4); MCL 750.145c(1)(c). Accordingly, the determination of
the age of the persons depicted in the photographs was “a fact in issue” and was relevant to the
matters at issue in the trial, and thus was properly a subject for which expert testimony could be
admitted. Kowalski, 492 Mich at 121. While jurors may be perfectly capable of determining the
apparent age of individuals in photographs where those photographs depict sexually immature
individuals, it becomes more difficult after the person has passed through puberty. Assuming
that a qualified witness can, by reason of “knowledge, skill, experience, training, or education,”
assist the jurors in determining the relevant fact of the age of the persons in the photographs, the
witness’s testimony would be appropriate under MRE 702. Furthermore, presuming the issue of
an expert’s qualification is properly presented, the trial court is called upon to determine if “(1)
the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.” MRE 702.
        On appeal, Stumpmier cites People v Dobek, 274 Mich App 58, 94; 732 NW2d 546
(2007), for the proposition that the trial court has a responsibility to “ensure that any expert
testimony admitted at trial is reliable.” Stumpmier then challenges the fact that Dr. Schlievert
was allowed to testify as an expert in childhood growth and maturity “despite it not being his
area of expertise.” However, Dr. Schlievert listed his qualifications and background, and based
on this “knowledge, skill, experience, training, or education,” the doctor established the basis of
his claimed expertise. It was not necessary that he demonstrate that he possessed some type of
degree or certification in order to present himself as an expert. Dr. Schlievert testified that he
was board certified as a general pediatrician and in child abuse and neglect. He was a professor
at three medical schools. He was the head of the child abuse program at Toledo Mercy Hospital
and was a consultant to the Lucas County Children’s Services, a position in which he provided
medical evaluations for suspected child abuse and neglect. Although he had not published in the
area of pediatric growth and maturity, he testified that practicing in the field of pediatric
medicine and child abuse pediatrics involved having familiarity with the different stages of
growth and development in normal children. Dr. Schlievert stated that over the previous 13

                                                -3-
years he had examined “thousands upon thousands” of children “[f]rom all stages of infancy,
newborns to [age] 18.” He explained that in his current full-time child abuse practice, he mainly
dealt with children from infancy to early adolescence. Dr. Schlievert was familiar with the
Tanner staging method and with a study done by Marcia Herman-Giddens concerning
application of the Tanner method to show a statistical correspondence between different Tanner
stages and chronological age. Dr. Schlievert testified that the Tanner method was generally
adopted within the pediatrics community; he used it to “stage” sexual abuse evaluations and he
used it approximately 100 times a year for these evaluations. Dr. Schlievert explained that the
Tanner method was not the only tool that was used to estimate age and he described other
physical characteristics that would be examined to make an age determination. Dr. Schlievert
testified that he had previously assisted law enforcement to determine if a photograph or video
recording of an unknown individual depicted a child who was still a minor. He acknowledged
that it was much easier to evaluate a live person than a photographic depiction. However, he
stated that if there was not enough information in a photograph to make a determination, then he
would have to “pass” on that photograph and conclude that the age could not be evaluated. Dr.
Schlievert stated that he had previously testified in court regarding growth and the development
of an individual, although he admitted his primary testimony as an expert involved child abuse
and neglect. He had previously used the Tanner method about 10 times in child pornography
case evaluations. Dr. Schlievert claimed that by using the Tanner method in some cases he had
been able to pinpoint a child’s age; that is, he was able to determine that the child was under age
18. Based on that testimony, we conclude that the trial court did not abuse its discretion in
determining that he was an expert in child growth and development.

         Moreover, at trial, Stumpmier chose to deal with the prosecutor’s expert witness by
presenting an expert witness of his own—one who would assert that it was not possible to
determine the general age of the subjects in the prosecutor’s photographic exhibits. Essentially
this left the question of the age of the individuals in the photographs to the jury’s determination,
as assisted by whichever expert’s testimony the jurors found more credible.1 Therefore, based on
the record before us, the trial court did not abuse its discretion by qualifying Dr. Schlievert as an
expert witness.




1
  It should be noted that the statute does not require proof beyond a reasonable doubt that the
person depicted in a photograph is in fact younger than 18. Presumably recognizing the
difficulty in anyone determining the age of a person in a photograph, the Legislature has
provided that the statute requires proof that a defendant:

       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. [MCL 750.145c(4) (emphasis added).]



                                                -4-
                   III. OTHER ACTS EVIDENCE UNDER MCL 768.27A

                                A. STANDARD OF REVIEW

        Stumpmier next claims that the trial court abused its discretion by admitting other acts
evidence pursuant to MCL 768.27a because the evidence was more prejudicial than probative.
This Court reviews issues concerning the admission of other acts evidence for an abuse of
discretion. People v Watkins, 491 Mich 450, 467; 818 NW2d 296 (2012).

                                        B. ANALYSIS

        “When a defendant is charged with a sexual offense against a minor, MCL 768.27a
allows prosecutors to introduce evidence of a defendant’s uncharged sexual offenses against
minors without having to justify their admissibility under MRE 404(b).” People v Pattison, 276
Mich App 613, 618-619; 741 NW2d 558 (2007). Stumpmier was accused of violating MCL
750.145(c)(4), which is a “listed offense,” MCL 28.722(s)(i). The relevant other acts offenses
that the prosecutor sought to present through the testimony of WK and NN constituted violations
of MCL 750.145a, which penalizes accosting, enticing, or soliciting a child for immoral
purposes; this is also a listed offense. MCL 28.722 (u)(i). Therefore, because Stumpmier was
accused of committing a listed offense against a minor, evidence that he committed another
listed offense against a minor is admissible and may be considered for its bearing on any matter
to which it is relevant. Pattison, 276 Mich App at 618-619.

        Evidence offered under MCL 768.27a nevertheless remains subject to review under the
balancing test of MRE 403. Watkins, 491 Mich at 481. “Accordingly, when applying MRE 403
to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor
of the evidence’s probative value rather than its prejudicial effect.” Id. at 487.

       There are several considerations that may lead a court to exclude such evidence.
       These considerations include (1) the dissimilarity between the other acts and the
       charged crime, (2) the temporal proximity of the other acts to the charged crime,
       (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the
       lack of reliability of the evidence supporting the occurrence of the other acts, and
       (6) the lack of need for evidence beyond the complainant’s and the defendant’s
       testimony. This list of considerations is meant to be illustrative rather than
       exhaustive. [Id. at 487-488.]

       Here, one of the other acts witnesses, WK, testified that while he was a minor working
for Stumpmier at his music store, Stumpmier discovered that WK believed himself to be
bisexual. Stumpmier thereafter encouraged WK to engage in sexual relations with other boys or
young men. This culminated in Stumpmier arranging for and enabling WK and another
employee to meet in a practice room in the store and have oral sexual relations. Subsequently
Stumpmier took a photograph of WK’s penis. WK also testified that Stumpmier encouraged him
to have sexual relations with the other witness, NN. Similarly, NN testified that after Stumpmier
learned that he was “bi-curious,” Stumpmier encouraged him to have oral sexual relations with
WK. Stumpmier had even driven WK and NN to NN’s house for an overnight visit, and on the
way encouraged them to have oral sex and not to wear any clothes while doing it.

                                               -5-
        Stumpmier’s encouragement of WK and NN to have oral sexual relations was somewhat
dissimilar to his act of possessing photographs of naked boys or young men engaging in sexual
acts or displaying their genitals. At the same time, his act of forcing WK to take down his pants
to allow Stumpmier to photograph his penis (and thus possess a photograph of the penis of a
child under 18) was very similar to the charged offense. Nevertheless, it seems clear that the
purpose behind both Stumpmier’s encouragement of sexual relations between WK and NN and
his possession of photographs depicting similar behavior was to stimulate Stumpmier’s sexual
imagination. Both acts shared this similarity. The other acts occurred beginning in late 2012 and
continued for some time; the police were informed of WK’s allegations in February of 2014, so
the prior acts happened relatively close in time to the discovery of the charged offenses. WK’s
and NN’s testimony suggests that the other acts occurred relatively frequently during the time
frame of late 2012 through 2013. There was no testimony concerning any intervening acts. The
accounts of Stumpmier’s behavior related by WK and NN provided support for each other’s
testimony. Their testimony also derived some independent support from the fact that they both
met Stumpmier through the Monroe Music Maker’s group that Stumpmier led, and both of them
interacted with Stumpmier at his music store. Additionally, the nature of the interaction that
Stumpmier had with the boys was similar to the passive act of possessing the photographs; that
is, Stumpmier did not physically or sexually interact with the boys but encouraged them to
interact with each other, presumably as a sexual stimulus. That is similar to how possession of
pornographic photographs of young boys did not involve active interaction with the subjects of
the photographs but presumably provided a sexual stimulus.

        Therefore, properly considering the propensity inference presented by this testimony in
conjunction with the non-exhaustive list of considerations given in Watkins, it appears more
likely that Stumpmier was aware of the apparent ages of the persons depicted in the photographs
he possessed, and that, in fact, the reason he possessed them was precisely the subjects’ young
ages. The other acts testimony supported the conclusion that Stumpmier was interested in sex
involving young boys. It also made it more probable that he was intentionally obtaining nude
photographs of young boys displaying their genitalia or engaging in sexual relations. We
therefore conclude that the trial court did not abuse its discretion by admitting the prior acts
testimony.

                       IV. CORRECTION OF PRESENTENCE REPORT

                                 A. STANDARD OF REVIEW

        Stumpmier finally claims that this case must be remanded to the trial court for correction
of the presentence investigation report (PSIR). “There is a presumption that the information
contained in the PSIR is accurate unless the defendant raises an effective challenge. When a
defendant challenges the accuracy of the information, the defendant bears the burden of going
forward with an effective challenge. If an effective challenge has been raised, the prosecution
must prove by a preponderance of the evidence that the facts are as the prosecution asserts.”
People v Lloyd, 284 Mich App 703, 705; 774 NW2d 347 (2009) (citations omitted). A trial
court’s determination that a PSIR is accurate is reviewed for an abuse of discretion. People v
Waclawski, 286 Mich App 634, 689; 780 NW2d 321 (2009). Plain error contained in the PSIR
that does not affect the defendant’s substantial rights does not necessitate a remand for correction
of the PSIR. People v McCrady, 244 Mich App 27, 32; 624 NW2d 761 (2000). A preserved

                                                -6-
claim of inaccuracy in a PSIR is reviewed to determine if it is harmless beyond a reasonable
doubt. People v Harper, 479 Mich 599, 642-644; 739 NW2d 523 (2007).

                                         B. ANALYSIS

        Stumpmier proffers nothing on appeal that establishes that there is an error requiring any
action by this Court. Stumpmier bears the burden of raising an effective challenge to the PSIR.
Lloyd, 284 Mich App at 705. In order to make an effective challenge, he must provide support
for his claims. People v Lucey, 287 Mich App 267, 277; 787 NW2d 133 (2010). And he must
also show that failure to correct the alleged inaccuracies will cause him harm; that is, Stumpmier
must show that the inaccurate information deprives him of a substantial right. McCrady, 244
Mich App at 32. Stumpmier failed to provide support for his challenges and has also failed to
demonstrate that the claimed inaccurate information has deprived him of a substantial right.
Accordingly, Stumpmier has failed to demonstrate prejudicial error that would require this Court
to remand this case for a hearing at which the trial court would consider and resolve each
challenge.

       Affirmed.

                                                            /s/ William B. Murphy
                                                            /s/ Christopher M. Murray
                                                            /s/ Michael J. Kelly




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