People Of The State Of Mich. v. Flick
| Citation | 790 N.W.2d 295,487 Mich. 1 |
| Decision Date | 27 July 2010 |
| Docket Number | 138261.,Calendar No. 6.,Docket No. 138258 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Edward FLICK, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Douglas Brent Lazarus, Defendant-Appellant. |
| Court | Supreme Court of Michigan |
487 Mich. 1
790 N.W.2d 295
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Steven Edward FLICK, Defendant-Appellant.
People of the State of Michigan, Plaintiff-Appellee,
v.
Douglas Brent Lazarus, Defendant-Appellant.
Docket Nos. 138258, 138261.
Calendar No. 6.
Supreme Court of Michigan.
Argued Jan. 13, 2010.
Decided July 27, 2010.
COPYRIGHT MATERIAL OMITTED.
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Henry C. Zavislak, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.
Rappleye & Rappleye, P.C. (by Robert K. Gaecke, Jr.), Jackson, for defendant Flick.
Dungan, Kirkpatrick & Dungan, PLLC (by Michael Dungan), for defendant Lazarus.
Brian A. Peppler, Jeffrey L. Sauter, and William M. Worden, Charlotte, for Amicus Curiae the Prosecuting Attorneys Association of Michigan.
In these consolidated cases, we consider the scope of the Michigan Penal Code provision that criminalizes the “knowing possession” of child sexually
abusive material, MCL 750.145c(4). Defendants intentionally accessed and purposely viewed depictions of child sexually abusive material on the Internet. The only child sexually abusive material later found on their computers, however, had been automatically stored in temporary Internet files. 1
Defendants contend that because the prosecution failed to establish that they knowingly possessed child sexually abusive material, the district courts erred by binding them over for trial. We hold that the term “possesses” in the phrase “[a] person who knowingly possesses any child sexually abusive material” in MCL 750.145c(4) includes both actual and constructive possession. Contrary to defendants' arguments, the evidence presented at the preliminary examinations established that defendant Flick and defendant Lazarus did more than passively view child sexually abusive material on the Internet. When any depiction of child sexually abusive material was displayed on each defendant's computer screen, he knowingly had the power and the intention to exercise dominion or control over that depiction. As a result, each defendant constructively possessed those images, which amounts to possession of child sexually abusive material. Consequently, we affirm
the Court of Appeals judgment and remand for further proceedings consistent with this opinion.
Federal agents identified defendant Steven Edward Flick as a purchaser of access to a website containing child pornography during April, September, and October 2002. In May 2006, federal agents and Jackson County Sheriff's Detective Dwaine Pittman obtained a search warrant for defendant Flick's computer and seized it. A forensic examination of the computer revealed child pornographic images on the hard drive. In a subsequent interview with Detective Pittman, defendant Flick acknowledged that he paid by credit card to access websites containing child pornography. Defendant Flick also admitted that he had downloaded child pornographic images on his computer. Defense forensic computer analyst Larry Dalman also examined the computer. Dalman corroborated the results of the forensic examination performed by a specially trained federal agent, which located “numerous” child pornographic images on defendant Flick's hard drive. However, Dalman reported that each image had been deleted or was located in the computer's temporary Internet files.
The prosecution charged defendant Flick with possession of child sexually abusive material in violation of MCL 750.145c(4). Defendant Flick moved to dismiss in the district court, arguing that he had not “possessed” child pornography as required by the statute. The district court denied the motion, observing that “it stretches the imagination somewhat to argue that a person does not possess child pornography where he admits he purchased it and downloaded it no matter
where it appears on his computer system.” Defendant Flick subsequently moved to quash the information in the circuit court, contending that the evidence established that he merely viewed, rather than knowingly possessed, child pornography. The circuit court denied the motion and refused to dismiss the case.
Defendant Flick filed a delayed application for leave to appeal. After granting the application and consolidating defendant Flick's appeal with the prosecution's appeal in People v. Lazarus, 2 the Court of Appeals affirmed the circuit court order
denying defendant Flick's motion to quash the information and dismiss the case in an unpublished opinion per curiam. 3 Defendant Flick then applied for leave to appeal in this Court.
Federal agents linked defendant Douglas Brent Lazarus's e-mail information to an online child pornography subscription purchased using his credit card. In September 2006, Detective Pittman interviewed defendant Lazarus. During the interview, defendant Lazarus stated that he knew that his former spouse had turned over to federal agents the computer that the couple had purchased together. Defendant Lazarus admitted that he looked at child pornography and acknowledged that he paid by credit card to access websites containing child pornographic images.
Joshua Edwards, a specially trained federal agent, searched defendant Lazarus's computer. The forensic search revealed “a large number of websites that contained
titles indicative of child pornography” and approximately 26 “banners strung together” of child pornographic images. Edwards explained that “there would be more images if you counted each one from the banner.” Among the 26 banner images, either 12 or 14 images resided in the “allocated space” of defendant Lazarus's computer. The allocated space of defendant Lazarus's computer also housed two pornographic movies in which the persons depicted “appeared to be under the age of 18.” According to Edwards, allocated space meant “files that are not deleted and are still on a hard drive that the user could access.” Edwards testified that the images found in the unallocated space of the computer also remained accessible until the file is “overwritten with new data,” which he analogized to a person's setting aside a video cassette recording of a television show. Edwards acknowledged, however, that each depiction was located in the computer's temporary Internet files.
The prosecution charged defendant Lazarus with possession of child sexually abusive material in violation of MCL 750.145c(4). Defendant Lazarus moved to quash the information in the district court, arguing that the existence of child pornographic images in his computer's temporary Internet files did not establish “knowing possession.” The district court denied defendant Lazarus's motion. Defendant Lazarus renewed his motion to quash in the circuit court, asserting that he had “simply engaged in the passive viewing of the images on his computer screen,” and that passive viewing did not constitute possession of child pornography. The circuit court agreed and granted the motion to quash.
The prosecution appealed as of right. After consolidating the prosecution's appeal with defendant Flick's appeal, the Court of Appeals reversed the circuit court order quashing the information and dismissing the case
against defendant Lazarus in an unpublished opinion per curiam. 4 The Court of Appeals also interpreted MCL 750.145c(4). The panel concluded that although child sexually abusive images were located in defendants' temporary Internet files, “[b]ecause defendants unquestionably possessed the computers in which the detectives found multiple contraband images of child pornography,” the
prosecution established probable cause that defendants possessed child sexually abusive material. The Court of Appeals further held that “the evidence that defendants sought, paid for, received and viewed the child pornographic images, and that the images continued to reside in their computers, suffices to establish a reasonable inference that defendants knowingly possessed the contraband.” Defendant Lazarus then applied for leave to appeal in this Court.
We granted both applications for leave to appeal and directed the parties to address:
(1) whether intentionally accessing and viewing child sexually abusive material on the Internet constitutes ‘knowing possession’ of such material under MCL 750.145c(4); and (2) whether the presence of automatically created “temporary internet files” on a computer hard drive may amount to “knowing possession” of child sexually abusive material or may be circumstantial evidence that defendant ‘knowingly possessed’ such material in the past.[ 5 ]
Whether conduct falls within the scope of a penal statute is a question of statutory interpretation. We
review questions of statutory interpretation de novo. People v. Idziak, 484 Mich. 549, 554, 773 N.W.2d 616 (2009). When reviewing a district court's bindover decision, we review the court's determination regarding the sufficiency of the evidence for an abuse of discretion, but we review the court's rulings concerning questions of law de novo. People v. Schaefer, 473 Mich. 418, 427, 703 N.W.2d 774 (2005).
Both defendants were charged under MCL 750.145c(4), which provides in pertinent part:
A person who knowingly possesses any child sexually abusive material is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or both, 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...
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