People v. Riggs

• Citation: 237 Mich. App. 584,604 N.W.2d 68
• Decision Date: 10 January 2000
• Docket Number: Docket No. 212440.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Brett Scott RIGGS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

604 N.W.2d 68

237 Mich. App. 584

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Brett Scott RIGGS, Defendant-Appellee.

Docket No. 212440.

Court of Appeals of Michigan.

Submitted May 4, 1999, at Detroit.

Decided September 17, 1999, at 9:30 a.m.

Released for Publication January 10, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Olga Agnello, Assistant Prosecuting Attorney, for the people.

Calligaro & Meyering, P.C. (by Herbert E. Pritzker and Susan S. Pushman) (Robert A. Sedler, of Counsel), Taylor, for the defendant.

Before: GAGE, P.J., and SMOLENSKI and ZAHRA, JJ.

ZAHRA, J.

Defendant was charged with four counts of child sexually abusive activity pursuant to M.C.L. § 750.145c(2); MSA 28.342a(2) arising from the photographing and videotaping of four young girls. After defendant was bound over for trial on the charges, he filed a motion to quash the information in the circuit court. The circuit court granted the motion, finding no evidence to establish that at the time of the photographing and videotaping the girls were engaged in "child sexually abusive activity" as defined by the statute. MCL 750.145c(l)(h); MSA 28.342a(l)(h). The prosecutor now appeals as of right the dismissal of two of the four counts.¹ We reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.

Defendant videotaped and photographed several children, always with the consent of the children's parents. This appeal concerns two videotapes that for the most part depict several hours of innocuous behavior. Portions of the tapes depict play between and among children. Other portions of the tapes depict a more formal taping session with the children posing at defendant's direction. Often, these sessions featured the children wearing adult cosmetics and were conducted with a parent present and observable on the videotape. The prosecutor claims as offensive and violative of law approximately six minutes of activity depicted on these two tapes.

One tape, identified as people's exhibit 3, depicts two young girls, twins aged ten, playing while defendant is allegedly videotaping their play. The camera is focused exclusively on the girls' crotch areas; their faces cannot be seen. At one point, one of the children exposes her vaginal area. Defendant is alleged to have edited the tape to focus on, slow down, and replay this scene. The image of the girl's genital area was depicted on the screen for over two minutes. Defendant is alleged to have made copies of his edited version of the original tape.

The second tape, identified as people's exhibit 2, depicts two sisters aged eight and ten watching themselves on a television monitor. One child lifts her shirt. This child asks the other child whether she wants to "see what is under here" referring to her underpants. The child then exposes her vaginal area and laughs. The child's full body is observed on the tape. Nothing suggests the child acted at defendant's request. No editing of this scene occurred except that it was replayed twice more on the tape at regular speed.

I. STANDARD OF REVIEW

We review the district court's decision to bind over a defendant, as well as the trial court's decision regarding a motion to quash an information, to determine whether the district court abused its discretion. People v. Hamblin, 224 Mich. App. 87, 91, 568 N.W.2d 339 (1997). However, the decision whether alleged conduct falls within the statutory scope of a criminal law involves a question of law that we review de novo. Id. Similarly, statutory interpretation is a question of law reviewed de novo on appeal. People v. Williams, 226 Mich.App. 568, 570, 576 N.W.2d 390 (1997). Because the gravamen of this appeal is a question of statutory interpretation, whether the act of editing a videotape of otherwise nonoffensive child nudity can give rise to the creation of "child sexually abusive activity" as that term is defined by M.C.L. § 750.145c(2); MSA 28.342a(2), our review is de novo.

II. ANALYSIS

The prosecution argues that defendant's editing of the tape constituted a violation of the statute because by so editing, defendant turned apparently innocent child play into images depicting erotic nudity. By contrast, defendant contends that because the children were not engaged in sexual activity at the time the original videotape was made, but instead ordinary nudity, defendant's conduct did not violate the statute.

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. People v. Humphreys, 221 Mich.App. 443, 451, 561 N.W.2d 868 (1997). To ascertain that intent, this Court must first turn to the language contained within the challenged statutory provision. People v. Pitts, 216 Mich.App. 229, 232, 548 N.W.2d 688 (1996). The Legislature is presumed to have intended the meaning it plainly expressed. People v. Roseburgh, 215 Mich.App. 237, 239, 545 N.W.2d 14 (1996). If the language is clear and unambiguous, statutory construction by this Court is precluded. People v. Armstrong, 212 Mich. App. 121, 123, 536 N.W.2d 789 (1995). Adhering to these principles, we conclude that the plain language of the statute encompasses, in part, the conduct that defendant is alleged to have committed.

The statute at issue provides:

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 is guilty of a felony . ... [MCL 750.145c(2); MSA 28.342a(2) (emphasis added).]

Thus, under M.C.L. § 750.145c(2); MSA 28.342a(2), a person is guilty of child sexually abusive activity if, among other things, the person prepares or makes "child sexually abusive material."² People v. Smith, 205 Mich.App. 69, 71, 517 N.W.2d 255 (1994).

Child sexually abusive material means a developed or undeveloped photograph, film, slide, electronic visual image, computer diskette, or sound recording of a child engaging in a listed sexual act.... [MCL 750.145c(l)(i); MSA 28.342a(1)(i) (emphasis added).]

"Erotic nudity," is identified as one of several "listed sexual act[s.]." M.C.L. § 750.145c(1)(e); MSA 28.342a(1)(e). Erotic nudity is defined as "the lascivious exhibition of the genital, pubic, or rectal area of any person." MCL 750.145c(1)(d); MSA 28.342a(1)(d). The statute further defines "lascivious" to mean "wanton, lewd, and lustful and tending to produce voluptuous or lewd emotions." Id. "Electronic visual image" is not defined in the statute; however, under these circumstances reference to dictionary definitions is appropriate in construing the language. People v. Seeburger, 225 Mich.App. 385, 392, 571 N.W.2d 724 (1997). We note that the definition of image includes a "physical likeness or representation of a person, animal, or thing, photographed, painted, sculptured, or otherwise made visible." Random House Webster's College Dictionary (1997).

On the basis of our reading of the plain language of the statute, we conclude that the use of an otherwise benign image of a child exhibiting ordinary nudity to create what could fall within the definition of erotic nudity, is conduct proscribed by the statute. Contrary to defendant's position, the statute does not require that the children actually be engaging in sexual activity at the time the activity is memorialized on tape. Rather, the statute prohibits the making of a visual image that is a likeness or representation of a child engaging in one of the listed sexual acts.

Our interpretation of the plain language of the statute is consistent with the intent of the Legislature. In People v. Ward, 206 Mich.App. 38, 42-43, 520 N.W.2d 363 (1994), this Court noted that the act prohibiting child sexually abusive activity "focuses on protecting children from sexual exploitation, assaultive or otherwise" and that the purpose "of the statute is to combat the use of children in pornographic movies and photographs, and to prohibit the production and distribution of child pornography." Misappropriating the innocent image of a child for purposes of creating the appearance of a child engaging in a listed sexual act while different in kind from the damage that arises from actually subjecting a child to the actual act is nonetheless exploitative and, arguably, equally as damaging. A child whose innocuous image has been altered to create sexually explicit pictures has its innocence violated. Moreover, ordinary nudity that has been enhanced to depict something lewd and preserved on tape has the potential of being a source of great humiliation, embarrassment, and mental and emotional distress to the child who may be unable to appreciate her innocent role in the creation and only able to focus on the end product.

The dangers of child pornography are not limited to its effect on the children actually used in its creation. Congress has found that virtual pornography created without the involvement of real minors is increasingly used by pedophiles and child molesters to seduce or entice children into participating in sexual activity by breaking down their natural inhibitions. United States v. Hilton, 167 F.3d 61, 67 (C.A.1, 1999). Moreover, manipulations of innocent pictures of real children to show sexual conduct can be used to blackmail that child to submit to abuse and remain silent. Id. Under either situation, it is irrelevant whether the child depicted in the videotape is actually performing sexually explicit activities as long as the video depiction gives the appearance that such activities are being conducted. In...