People v. Tombs, No. 236858 (Mich. App. 12/30/2003)
| Decision Date | 30 December 2003 |
| Docket Number | No. 236858.,236858. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RUSSELL DOUGLAS TOMBS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan (US) |
Appeal from Macomb Circuit Court, LC No. 00-003534-FH.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Robert John Berlin, Chief Appellate Lawyer, and Beth Naftaly Kirshner, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Peter Jon Van Hoek) for the defendant on appeal.
Before: Cavanagh, P.J., and Gage and Zahra, JJ.
A jury convicted defendant of distributing or promoting child sexually abusive material, MCL 750.145c(3); possession of child sexually abusive material, MCL 750.145c(4); and using the Internet or a computer to communicate with any person to commit conduct proscribed under MCL 750.145c(4) (), MCL 750.145d. The trial court sentenced1 defendant to concurrent prison terms of seventeen to eighty-four months' imprisonment for his conviction of distributing or promoting child sexually abusive material, sixteen to twenty-four months' imprisonment for his conviction of using the Internet or a computer to possess child sexually abusive material, and 365 days in jail for his conviction of possession of child sexually abusive material. Defendant appeals as of right. The most significant issue presented on appeal is whether defendant may be found to have distributed child sexually abusive material in violation of MCL 750.145c(3) on the basis that he returned to his employer a laptop computer that contained within it child sexually abusive material. We hold that this conduct did not violate MCL 750.145c(3). We therefore reverse defendant's conviction and sentence for distributing or promoting child sexually abusive material. We affirm defendant's remaining convictions and sentences.
Defendant was a field technician for Comcast OnLine (Comcast), a branch of the Comcast cable company that provides cable Internet access. Comcast provided defendant with a laptop computer for employment-related use. Before the computer was issued to defendant, the hard drive was "cleaned" of its prior contents.
On August 9, 2000, defendant unilaterally terminated his employment with Comcast. Defendant called Christopher Williams, an employee of Comcast, and stated that he would return Comcast's equipment and work van the ensuing weekend. However, Williams advised defendant that the equipment would be collected that day. Defendant informed Williams that the work van would be parked in front of defendant's house, and that the keys and the Comcast equipment would be inside the van. Williams picked up the van and the equipment, including the laptop computer.
Williams returned to Comcast's office and began assessing whether the computer needed to be reformatted before being issued to another technician. Williams found files on the computer that contained pictures of a partially naked young girl. Williams gave the computer to Carl Radcliff, a data support technician for Comcast. Radcliff testified that he eventually found "a series of child pornography" when he was searching picture files known as "JPG" files on the computer. Radcliff indicated that the pornographic material on the computer was not in a readily available location because it was "buried inside of what's known as a user profile." Radcliff then took the computer to Stephen Hill, a Comcast system engineer, informed Hill what he had found on the computer, and recommended turning the matter over to the authorities. Hill forwarded the computer to Danielle Kolomyjec, who worked in the personnel department of Comcast. Kolomyjec turned the computer over to Ronald Hanoka, Comcast's security director for the Midwest division. Hanoka immediately took the computer to Detective Edward Stack of the St. Clair Shores Police Department.
Detective Stack testified that he and another detective accessed JPG files in the computer and, in short, found images of child pornography. Sergeant Jospeh Duke, the supervisor of the Computer Crimes Unit of the Oakland County Sheriff's Department, found over five hundred images that he believed qualified "as either child sexually abusive material or child erotica" on the computer. Sergeant Duke believed that the photographs originated from the Internet. Sergeant Duke also indicated that although the hard drive of the computer could have been reformatted so that its files would not be accessible, the files were difficult to find and he "had to go down 7 directory levels from the root to get to the images that were shown to the jury."
Defendant was arrested and a search of defendant's home revealed additional child sexually abusive material. In sum, Sergeant Duke's investigation discovered over 6,500 photographs that qualified as child sexually abusive material or "child erotica," and books and computer text files that described "fantasy stories about the molestation of children." At the time of defendant's arrest, defendant denied knowledge of child pornography on the computer.
David Joseph, a children's protective services worker with the Family Independence Agency, interviewed defendant because there was evidence of defendant's involvement with child pornography and there were two minor children in defendant's home. Joseph indicated that defendant initially denied responsibility for the child pornography found on the computer. Joseph testified that defendant eventually stated that defendant's wife had been "emotionally unavailable" to defendant and that "he turned to the Internet and began exploring pornography which initially started out as adult material." Joseph indicated that defendant told him that
at some point he encountered child pornography; and I remember specifically he likened it to something of a train wreck or a car accident where he couldn't really account for why it is that he found this materials [sic] attractive, but had developed sort of an appetite for these things and began accumulate [sic] photographs on the Internet, downloading and sharing pornography involving children.
Joseph also testified in regard to other statements that defendant made to him about child pornography:
If I recall he had several computers in the house; and he said he had basically amassed quite a collection over a period of four years; and that he was growing more concerned about whether or not his children or his wife would stumble upon these computers—these images on the computer; and he had begun basically a systematic sort of disassembly of the computers so that they wouldn't be accessible to other family members, and that he would store the materials for his own use on the laptop, the Comcast computer. And I inquired of him at that point, was he concerned about somebody else finding the Comcast computers, and he indicated that typically when a Comcast employee leaves the employment, the laptop is basically reinstalled with new programs, and that he didn't feel as though there would be anybody that would go through those individual files—that his belief was that the Comcast computer would just sort of be—and I'm not a computer expert, but that the hard drive would sort of just be wiped out. The necessary Comcast programs would be reinstalled, and that no one would discover his images of the pornography on the computer.
Joseph indicated that defendant said he found child pornography sexually gratifying. Defendant replied, "[c]orrect" when asked if "he had gotten these [child pornography] images from the Internet and from sharing with others." Joseph also said that it was his impression from talking with defendant that "he was a part of a club, if you will, of people that found images of children sexually gratifying and would exchange and get and give material." When asked if this was "a computer Internet club type thing," Joseph replied, "[c]orrect."
Defendant argues that there was insufficient evidence to establish that he distributed child sexually abusive material in violation of MCL 750.145c(3). Due process requires that a prosecutor introduce evidence sufficient to justify a trier of fact to conclude that the defendant is guilty beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). "'[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.'" People v Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002), quoting People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992). Underlying issues of statutory interpretation are reviewed de novo. People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).
Defendant was convicted of distributing child sexually abusive material in violation of MCL 750.145c(3), which provided2 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 . . . .
At trial, the prosecution argued that defendant distributed child sexually abusive material by returning to Comcast the computer that contained such material. The prosecutor also argues on appeal that defendant promoted and distributed child sexually...
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