People v. Tombs
| Decision Date | 01 June 2005 |
| Docket Number | Docket No. 125483. Calendar No. 1. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. Russell Douglas TOMBS, Defendant-Appellee. |
| Court | Michigan Supreme Court |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Robert Berlin, Chief Appellate Lawyer, and Beth Naftaly Kirshner, Assistant Prosecuting Attorney, Mt. Clemens, MI, for the people.
State Appellate Defender (by Peter Jon Van Hoek), Detroit, MI, for the defendant.
This case requires us to consider whether MCL 750.145c(3), which prohibits the distribution or promotion of child sexually abusive material, requires that the distribution or promotion be performed with criminal intent. If criminal intent is an element of the offense, we must determine also whether the prosecutor presented sufficient evidence to prove that defendant possessed it.
We agree with the Court of Appeals that MCL 750.145c(3) requires that an accused be shown to have had criminal intent to distribute or promote. We also agree that the evidence presented to the trial court was insufficient to prove that intent. Therefore, we affirm the decision of the Court of Appeals that reversed defendant's conviction for distributing and promoting child sexually abusive material.
Defendant was a field technician for Comcast OnLine, an organization that sells cable Internet access to business and residential customers. Field technicians install Internet cable service and perform troubleshooting when a customer encounters difficulty in accessing the Internet.
Comcast furnished defendant with a company van and a laptop computer for employment-related use. Before the laptop was issued to defendant, the hard drive was reformatted so that it contained only company-sanctioned software programs.
On August 9, 2000, a Wednesday, defendant quit his employment with Comcast. He told Christopher Williams, another Comcast employee, that he would return the company's equipment and van on the weekend. Williams initially told defendant that this would be acceptable, but called defendant a second time and advised him that the equipment had to be returned that day.
Williams retrieved the items from defendant approximately an hour after the telephone conversation. He returned the laptop to Comcast's office and began to reformat it. Although it was not required in the formatting, he ran a search for JPG files, files containing pictures, "[j]ust to see what was on it." He found several and opened one. It contained adult pornography. Williams looked further and came across a picture of a partially naked young girl.
Because of his discovery, Williams gave the computer to Carl Radcliff, a data support technician for Comcast. Radcliff also ran a search for JPG files. He eventually found "a series of child pornography." Radcliff indicated that the pornographic material was not in a readily available location, but was "buried inside of what's known as a user profile."
The laptop was later turned over to the police. Detective Edward Stack of the St. Clair Shores Police Department testified that he and another detective found images of child pornography on it. Sergeant Joseph Duke, the supervisor of the Computer Crimes Unit of the Oakland County Sheriff's Department, counted over five hundred images on the computer that he believed qualified "as either child sexually abusive material or child erotica."
Sergeant Duke believed that the photographs had been downloaded from the Internet. He indicated that the files had been difficult for him to find because they were buried in subfolders seven directory levels down. He testified that "[a]s an investigator and as an examiner, it's kind of a red flag when I have to go down through 7 directory levels to get to evidence." When asked why this raises a red flag, Sergeant Duke said it indicates that the data are being hidden.
Because of the discovery of child pornography, and because there were two minor children living in defendant's home, David Joseph, a children's protective services worker with the Family Independence Agency,1 interviewed defendant. Joseph testified that defendant told him that, when a Comcast employee leaves employment, new programs are installed in that employee's computer. Defendant indicated that he did not think anybody would go through the files he had created there. He presumed that the hard drive would simply be wiped clean before installation of new software.
Defendant admitted to Joseph that he had obtained the photographs "from the Internet and from sharing with others." Joseph also said that it was his impression from talking with defendant that defendant had taken part in an Internet club that exchanged child pornography.
A jury convicted defendant of (1) distributing or promoting child sexually abusive material, MCL 750.145c(3); (2) possessing the material, MCL 750.145c(4); and (3) using the Internet or a computer to communicate with people for the purpose of possessing the material, MCL 750.145d.2 In a published opinion, the Court of Appeals reversed defendant's conviction for distributing or promoting child sexually abusive material under MCL 750.145c(3) and affirmed his other convictions. 260 Mich.App. 201, 679 N.W.2d 77 (2003). The prosecutor appeals the reversal to this Court. 470 Mich. 889, 682 N.W.2d 99 (2004).
Issues of statutory interpretation, like questions of law, are reviewed de novo. People v. Koonce, 466 Mich. 515, 518, 648 N.W.2d 153 (2002). In interpreting a statute, our goal is to ascertain and give effect to the Legislature's intent. People v. Morey, 461 Mich. 325, 330, 603 N.W.2d 250 (1999). Where the language of the statute is unambiguous, the Court presumes that the Legislature intended the meaning expressed. Id.
Accordingly, to determine whether a statute imposes strict liability or requires proof of a guilty mind, the Court first searches for an explicit expression of intent in the statute itself. See People v. Quinn, 440 Mich. 178, 185, 487 N.W.2d 194 (1992).
Normally, criminal intent is an element of a crime. People v. Rice, 161 Mich. 657, 664, 126 N.W. 981 (1910). Statutes that create strict liability for all their elements are not favored. Quinn, 440 Mich. at 187, 487 N.W.2d 194. Hence, we tend to find that the Legislature wanted criminal intent to be an element of a criminal offense, even if it was left unstated.
The statutory provision under consideration, MCL 750.145c(3), reads in relevant part:
A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than 7 years, or a fine of not more than $50,000.00, 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. This subsection does not apply to the persons described in section 7 of 1984 PA 343, MCL 752.367.
The question presented is whether, to be convicted under the statute, a defendant must possess the criminal intent to distribute or promote child pornography.
Considering solely the statute's words, it is apparent that criminal intent, mens rea, is not explicitly required. The only specific knowledge requirement is that the defendant knew that the sexually abusive material included or appeared to include a child.
The United States Supreme Court has addressed the issue whether a criminal intent element should be read into a statute where it does not appear. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). In Morissette, the defendant took spent shell casings from a government bombing range and sold them for salvage. The defendant was convicted of converting government property despite evidence suggesting that he had no criminal intent to steal anything and thought the property abandoned. The trial court instructed the jury that a lack of criminal intent was not a defense to the charge. Id. at 247-249, 72 S.Ct. 240.
In reviewing the case, the Morissette Court began with the proposition that criminal offenses that do not require a criminal intent are disfavored. Liability without criminal intent will not be found in the absence of an express or implied indication of congressional intent to dispense with the criminal intent element. Id. at 250-263, 72 S.Ct. 240. Morissette stated:
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