By By JOHN EBY / Dowagiac Daily News
The Michigan Court of Appeals has affirmed Gary E. Marchbanks' jury convictions on three counts of first-degree criminal sexual conduct and three counts of second-degree CSC.
The appellate court disagreed with the defendant's contention that Cass County Circuit Court erred in deviating upward by six months from minimum sentence guidelines.
Because his offenses occurred on or after Jan. 1, 1999, legislative sentencing guidelines stipulate that the trial court could only depart from the minimum sentencing range if it had a substantial and compelling reason.
The minimum sentence, according to the guidelines, was 126 to 210 months.
The actual minimum sentence the court ordered was 216 months - primarily because the guidelines failed to adequately address the number and severity of the CSC offenses.
Marchbanks forced a 10-year-old girl to strip and get into graphic poses while he took pictures, which he stated he was going to sell on the Internet.
To make the photographs more explicit, according to court records, the defendant manipulated her buttocks and genitalia.
Each instance of sexual abuse involved multiple pictures, in multiple poses, with at least two separate manipulations of the victim's privates.
Concluding that the trial court did not abuse its discretion, the panel of Bill Schuette, E. Thomas Fitzgerald and Richard A. Bandstra found there was no error warranting a sentence reduction or a remand for a new sentencing hearing.
Marchbanks also contended that evidence of other pictures found on his hard drive and discs should have been excluded. The court disagreed.
Statements and exhibits were offered to rebut statements by the defendant that he did not know there was any child pornography on the computer, that he was unfamiliar with labels of the pictures of the victim and that he did not download, view or get aroused by pictures of child pornography.
The trial court barred admission of the photographs, but permitted admission of the fact that there were such photographs and admission of the labels and other technical information. "The trial court did not err in permitting this evidence to be admitted," the judges said.