People Of The State Of Mich. v. Hill

• Decision Date: 23 July 2010
• Docket Number: Docket No. 138668.,Calendar No. 7.
• Citation: 786 N.W.2d 601,486 Mich. 658
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee,v.Brian Lee HILL, Defendant-Appellant.
• Court: Michigan Supreme Court

486 Mich. 658

786 N.W.2d 601

PEOPLE of the State of Michigan, Plaintiff-Appellee,v.Brian Lee HILL, Defendant-Appellant.

Docket No. 138668.

Calendar No. 7.

Supreme Court of Michigan.

Argued Jan. 13, 2010.

Decided July 23, 2010.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Tony Tague, Prosecuting Attorney, and Charles F. Justian, Assistant Prosecuting Attorney, for the people.

Frank Stanley, Grand Rapids, for defendant.

Opinion

MARKMAN, J.

This case presents the question whether a defendant who downloads child sexually abusive material from the Internet and “burns” that material to a CD-R ¹ may be convicted of violating MCL 750.145c(2), which provides that any person who “arranges for, produces, makes, or finances ... any ... child sexually abusive material,” is guilty of a felony punishable by imprisonment for not more than 20 years or whether the defendant may only be convicted of violating MCL 750.145c(4), which makes the knowing possession of child sexually abusive material a felony punishable by imprisonment for not more than 4 years.

The Court of Appeals held that a defendant, even if his intent in burning the prohibited images to a CD-R was to retain those images for personal use, may be convicted of the 20-year felony under MCL 750.145c(2). We respectfully disagree. MCL 750.145c has a graduated scheme of offenses and punishments. It punishes (1) those who are responsible for the origination of child sexually abusive material (a 20-year felony), (2) those who are responsible for the distribution and promotion of the prohibited material (a 7-year felony), and (3) those who are responsible for the knowing possession of the prohibited material (a 4-year felony). From these three tiers of offenses and punishments, we conclude that the Legislature did not intend the imposition of the same maximum punishment on a person who downloads a prohibited image from the Internet and burns it to a CD-R for personal use as on the person who is responsible in the first instance for the creation and existence of the pornographic images of minors. The person who is responsible for bringing the prohibited images into existence is obviously more morally, and under the statute, more criminally, culpable than the person who downloads an image and saves it to another medium for personal use.

We hold that when the terms “produces” and “makes” in MCL 750.145c(2) are construed in accordance with their immediately surrounding text and with a view toward the statute's overall organization, including a graduated scheme of offenses and punishments, a defendant may not be convicted of the 20-year felony when there is not proof beyond a reasonable doubt that he had a criminal intent to do something other than possess the CD-Rs for his own personal use. Just as a person who downloads a song from the Internet and burns it to a CD-R is not considered to have produced or made a song, so a person who burns a prohibited image to a CD-R for his personal use has not produced or made the image.

It is clear that the Legislature intended only that defendant could be convicted of the 4-year felony of knowingly possessing child sexually abusive material under MCL 750.145c(4). Those who copy or duplicate existing prohibited images for personal use do not produce or make child sexually abusive material under MCL 750.145c(2); rather, they are only in possession of it. MCL 750.145c(2) is primarily applicable to those who originate child sexually abusive material. Therefore, we reverse in part the judgment of the Court of Appeals, vacate defendant's convictions under MCL 750.145c(2), and remand for further proceedings not inconsistent with this opinion.²

I. FACTS AND HISTORY

As relevant here, defendant was charged with five counts of “arrang[ing] for, produc[ing], mak[ing], or financ[ing]” child sexually abusive material, in violation of MCL 750.145c(2), after a search of his two laptop computers and approximately 50 CD-Rs found in his bedroom. After being bound over for trial, defendant moved to quash the information with regard to these charges, arguing that the burning or saving of images or data to a CD-R does not rise to the level of producing or making child sexually abusive material. He further argued that the transfer of images from the Internet to his computer's hard drive and then to the CD-Rs constituted nothing more than the storage of data. Thus, he contended that he should only be charged with “knowingly possess[ing]” child sexually abusive material under MCL 750.145c(4) because he had not originated the prohibited images.

The trial court denied this motion, stating:

[T]he only question, one of apparent first impression, is whether the act of downloading the image from the internet and “burning” (recording) the image to a CD constitutes the “making” or “production” of such materials.

The dictionary ... contains several definitions of the word “make.” Among them are:

To cause to exist, occur, or appear; create; to fit, intend, or destine by, or as if by creating; to bring into being by forming, shaping, or altering material; to put together from components.

Applying this definition here, the “bottom line” is that, after the requisite, mechanical, and technical functions, some things exist (CD-Rs with these images on them) that did not exist prior to that act.

Defendant appealed by leave granted, and the Court of Appeals affirmed in a published opinion, stating:

The term “make” is defined as follows: “to bring into existence by shaping, changing, or combining material[.]” Random House Webster's College Dictionary (2001). Defendant acquired child sexually abusive material through the Internet, and he shaped, formed, and combined the material through placement of various selected pictures, videos, and images onto specific CD-Rs, bringing into existence something that had not previously existed, i.e., distinctly created and compiled child-pornography CD-Rs [People v. Hill, 269 Mich.App. 505, 518, 715 N.W.2d 301 (2006).]

The Court of Appeals also stated:

Regardless of whether defendant's actions are viewed as copying the original photographs and videos, or copying electronic or computer visual images of the downloaded photographs and videos, the fact remains that copies and reproductions were made. Defendant's argument that use of the CD-Rs was just a mechanism by which to store possessed child pornography ignores the reality that the storing of the images was accomplished through the copying or duplication of already existing images that continued to exist after the images were burned onto the CD-Rs. The language of the statute is clear and unambiguous. The decision by the Legislature to specifically include reproductions or copies in defining “child sexually abusive material,” which term is then incorporated into [MCL 750.145c(2) ], leaves no room for a contrary judicial construction. [ Id. at 517, 715 N.W.2d 301.]

We denied defendant's application for leave to appeal, with three justices indicating that they would grant leave to appeal. 477 Mich. 897, 722 N.W.2d 665 (2006). We also denied defendant's motion for reconsideration, with three justices indicating that they would grant reconsideration and, on reconsideration, would grant leave to appeal. ³ 477 Mich. 1016, 726 N.W.2d 416 (2007). Defendant next unsuccessfully sought relief in federal court. Hill v. People, 2007 WL 1893911, 2007 U.S. Dist LEXIS 47700 (WD Mich, July 2, 2007, Case No 1:07-CV-271), and then proceeded to a bench trial. As relevant to the convictions under review, the evidence demonstrated that defendant had downloaded and copied to CD-Rs five specific images depicting child sexually abusive material. ⁴ The trial court found defendant guilty of five counts of violating MCL 750.145c(2), stating:

The proofs show a repeated pattern of taking an image off the computer and moving it or saving it somewhere else where it did not previously exist.... Mr. Hill is guilty of ... making, producing etc. child sexually abusive materials ... [that] were created by affirmative action by the user.

Defendant appealed in the Court of Appeals, which affirmed his convictions and declined his request to reconsider its earlier published decision holding that the downloading and burning of child sexually abusive material to a CD-R constitutes making or producing child sexually abusive material. People v. Hill, unpublished opinion per curiam of the Court of Appeals, issued February 19, 2009 (Docket No. 281055) 2009 WL 416790.⁵ This Court then granted leave to appeal. 485 Mich. 911, 773 N.W.2d 27 (2009).

II. STANDARD OF REVIEW

Whether conduct falls within the scope of a penal statute, in this case MCL 750.145c(2), is a question of statutory interpretation that we review de novo. People v. Stone, 463 Mich. 558, 561, 621 N.W.2d 702 (2001).

III. RULES OF INTERPRETATION

MCL 750.145c is a relatively lengthy statute. Most relevant for present purposes are subsections (2) through (4), which provide:

(2) A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material ^[6] is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that 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.

(3) A person who distributes or promotes, or finances the distribution or promotion of,

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