PEOPLE v HILL
Docket No. 138668
Supreme Court of Michigan
Argued January 13, 2010. Decided July 23, 2010.
486 Mich 658
In an opinion by Justice MARKMAN, joined by Chief Justice KELLY and Justices CAVANAGH and HATHAWAY, the Supreme Court held:
A person who downloads child sexually abusive material from the Internet and copies the images to a CD-R may not be convicted of making or producing child sexually abusive material, in violation of
In MCL 750.145c , the Legislature established a three-tiered scheme of offenses and punishments: (1) a felony punishable by a maximum sentence of 20 years for a person who “arranges for, produces, makes, or finances” child sexually abusive material, (2) a felony punishable by a maximum sentence of 7 years for those who distribute or promote that material, and (3) a felony punishable by a maximum sentence of 4 years for those who knowingly possess that material. The three-tiered scheme of offenses and punishments reflects the Legislature‘s determination that those who distribute or promote child sexually abusive material are more morally and criminally culpable than those who knowingly possess it and that those who create or originate the material are more morally and criminally culpable than those who distribute or promote it or who knowingly possess it. Those who create or originate child sexually abusive material are punished more severely because they are the reason the prohibited images exist in the first place.- The pertinent language in
MCL 750.145c(2) is “a person who arranges for, produces, makes, or finances” any child sexually abusive material. Consideration of the verbs “produces” and “makes” in light of their placement with “arranges for” and “finances” leads to the interpretation that one who produces child sexually abusive material is the person directly responsible for the creation or origination of the material and that one who makes child sexually abusive material is the person who is primarily involved in the creation or origination of the material. - Given that the terms “produce or makes” are best understood as primarily addressing those who are involved in the creation or origination of the material, and in light of the three-tiered scheme of offenses and punishments under the statute, it is untenable to conclude that downloading an existing image from the Internet and copying it to a CD-R for personal use constitutes making or producing child sexually abusive material, just as it would be unreasonable to characterize the conduct of a person who downloads songs, movies, television shows, music videos, or books from the Internet and copies them to a CD-R or other storage device as making or producing the song, movie, show, video, or book.
MCL 750.145c(2) is primarily concerned with punishing those involved in the creation or origination of child sexually abusive material, not those who download and maintain such material for personal use.
Reversed in part; convictions vacated and case remanded for further proceedings.
Justice WEAVER, dissenting, would affirm defendant‘s convictions under
Justice YOUNG, joined by Justice CORRIGAN, dissenting, stated that
CRIMINAL LAW - CHILD SEXUALLY ABUSIVE MATERIAL - MAKING OR PRODUCING CHILD SEXUALLY ABUSIVE MATERIAL.
A person who downloads child sexually abusive material from the Internet and saves the images to a recordable storage medium may not be convicted of a violation of
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 for defendant.
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
We hold that when the terms “produces” and “makes” in
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
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
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.
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 NW2d 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.]
We denied defendant‘s application for leave to appeal, with three justices indicating that they would grant leave to appeal. 477 Mich 897 (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 (2007). Defendant next unsuccessfully
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).5 This Court then granted leave to appeal. 485 Mich 911 (2009).
II. STANDARD OF REVIEW
Whether conduct falls within the scope of a penal
III. RULES OF INTERPRETATION
(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 material6 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, 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 .(4) 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 reasonable precautions to determine the age of the child.
The issue here is how the terms “produces” and “makes” in subsection (2) should be interpreted.
The rules of statutory construction are well established. As this Court explained in G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 420-422; 662 NW2d 710 (2003):
When construing a statute, the Court‘s primary obligation is to ascertain the legislative intent that may be reasonably inferred from the words expressed in the stat-
ute. If the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed. * * *
The doctrine of noscitur a sociis, i.e., that “a word or phrase is given meaning by its context or setting,” affords us assistance in interpreting [statutes]. . . .
. . . “[Statutes] exist[] and must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute . . . .” “[W]ords in a statute should not be construed in the void, but should be read together to harmonize the meaning, giving effect to the act as a whole.” Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context. “In seeking meaning, words and clauses will not be divorced from those which precede and those which follow.” “It is a familiar principle of statutory construction that words grouped in a list should be given related meaning.” [Citations omitted.]
We are also instructed to give undefined statutory terms their plain and ordinary meaning unless the undefined word or phrase is a term of art.7
The Legislature did not specifically define the terms “produces” or “makes.” Therefore, it is appropriate to consider dictionary definitions to discern the meanings of these terms. Oakland Co Bd of Co Rd Comm‘rs v Mich Prop & Cas Guaranty Ass‘n, 456 Mich 590, 604; 575 NW2d 751 (1998).
IV. APPLICATION
This Court first considered
The lead opinion in Tombs examined
Possession is not the same as promotion. The prosecutor blurs the two, asserting that by obtaining the material from the Internet, defendant promoted it. To accept that argument, this Court would have to ignore the express language of the Legislature that created a graduated scheme of offenses and punishments regarding child sexually abusive material. [Id.]9
Tombs recognized that
There is an inherent logic to this scheme. The Legislature reasonably concluded that those who distribute or promote child sexually abusive material are more morally and criminally culpable than those who possess such material and that those who create or originate such material are the most morally and criminally culpable. The case at bar requires us to determine whether defendant‘s act of downloading and burning child sexually abusive material to CD-Rs falls within the top tier or the bottom tier; it is not argued by either party that it falls within the middle tier, and we also do not believe that it does, for what defendant has done does not constitute the promotion or distribution of child sexually abusive material. That is, unlike Tombs, this case does not involve determining whether a defendant‘s conduct falls within adjacent tiers and whether it is punishable as a 4-year or 7-year felony. Rather, this case involves determining whether defendant‘s conduct falls within the lowest or the highest tier and thus whether defendant has committed a 4- or 20-year felony.
We keep the graduated scheme of
“Makes” and “produces” are used in
The definitions of “arranges for,” “finances,” and “produce” afford obvious insight into how the adjoining term “make” should be interpreted. When these four words are viewed together, their relatedness or common meaning becomes increasingly apparent-each constitutes a verb selected by the Legislature to communicate that persons included within this subsection are those who are somehow responsible for the creation or origination of child sexually abusive material. Those who arrange for child sexually abusive material are involved at the front end of the process by identifying and
This leaves the term “makes.” Given the related definitions and understandings of “arranges,” “produces,” and “finances,” we believe that “makes” should be interpreted in a similar manner as meaning “to cause to exist or happen” or “to cause to become.”10 That is, “makes” should be interpreted in the common fashion as referring to someone who is primarily involved in the creation or origination of the child sexually abusive material.11
We believe our conclusion is reinforced by consideration of the manner in which most persons ordinarily think about other types of Internet downloading. It is common today for computer users to legally, and sometimes illegally, download songs, movies, television shows, music videos, and books from the Internet. When such materials are subsequently burned to a CD-R or recordable DVD or some other storage device, as they often are, few would be inclined to characterize that conduct as the making or producing of that song, movie, television show, music video, or book. Such a characterization would, to say the least, be strained and incompatible with the “common and approved usage of the language . . . .”
The Court of Appeals and the dissents focus on the fact that
The fact that the definition of “child sexually abusive material” in
Defendant here was convicted of five counts of producing or making child sexually abusive material on the basis of 5 specific images. A review of his 2 laptop computers and 50 CD-Rs revealed 5 copies of one of the images and fewer, or no, duplicates of the other images that sustained his convictions. The fact that 5 copies of a single prohibited image were found after searching 52
We are persuaded that the Legislature did not intend to impose the same maximum penalty 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 for the creation of the pornographic images of children. The latter is obviously more morally and criminally culpable than the person who downloads an image and saves it to another medium for personal use; at least, this is what the Legislature, in our judgment, has communicated by its enactment of
While the Court of Appeals’ definition of “makes” has some dictionary support, its analysis was incomplete because it did not consider the statute as a whole and because it did not consider that “makes” should be
V. RESPONSE TO THE DISSENTS
The dissents obscure the issue before the Court by emphasizing the large quantity of prohibited images found in defendant‘s possession. There is no doubt that defendant possessed a very considerable amount of child sexually abusive material. However, the question before this Court is not whether defendant was a committed user of child sexually abusive material—he was—or whether he criminally violated
The dissents fail to adequately consider the statute‘s overall organization and graduated scheme of offenses and punishments. As a consequence, the dissents end up blurring, and eventually ignoring altogether, the very distinct criminal definitions and requisite states of mind necessary to obtain a conviction under
The dissents would compress nearly every criminal violator into the category of “creator” or “originator” on the basis of their having made a copy of material created or originated by others. Thus, to the dissenters, there is no distinction, as we believe is manifest in the statute, between a person who downloads and burns child sexually abusive material to a storage device and the person who procures the seven-year-old girl, pays her parents, and then produces a film or image in which she is depicted in sexual poses.17 However, these are distinctions that the Legislature has made, and they are reasonable distinctions. The dissents notwithstanding, we do not “relieve[] . . . of criminal responsibility” the computer downloader when we recognize that the Legislature drew distinctions in
Given that various things can be downloaded from the Internet and burned to other media, the dissents’ strained interpretation of the term “makes” would have consequences far beyond the instant case. A person can download—legally or illegally—songs, books, music videos, television shows, or movies from the Internet and burn them to another medium such as a CD-R or recordable DVD. Yet virtually no one beyond the dissenting justices would consider such a person to have “made” or “produced” those songs, books, music videos, television shows, or movies. The legal or illegal downloader of Star Wars is not the equivalent of George Lucas, the legal or illegal downloader of The Da Vinci Code is not the equivalent of Dan Brown, and the legal or illegal downloader of the Sgt. Pepper‘s Lonely Hearts Club Band album is not the equivalent of John Lennon or Paul McCartney. Even if these downloaders preserve the materials on a CD or DVD, they have not “made” those movies, “made” those books, or “made” that music in the same way as the creators of the materials.18 Similarly, we are satisfied that a person who burns a prohibited image to a CD-R or recordable DVD for his
Indeed, under the dissents’ interpretations, one might argue that someone who only viewed a prohibited image on a computer screen is guilty of making child pornography, given that computers themselves automatically store viewed images in temporary files. In other words, if Justice YOUNG genuinely believes that burning even a single prohibited image to a CD-R always constitutes making child pornography because it increases “the net amount of child pornographic images in existence,” it would seem that consistency would require that a defendant who is merely aware of such temporary files would also be guilty of making child sexually abusive material whenever he views those images.
Finally, the dissents also assert that the majority has created “out of whole cloth” an “additional hurdle” by requiring proof of a defendant‘s intent. This is plainly incorrect. There is nothing at all remarkable in a court‘s reading a criminal intent into a criminal statute, given that such statutes are generally presumed to include a criminal intent. See Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 288 (1952); Staples v United States, 511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994); Tombs, 472 Mich at 452-456 (opinion by KELLY, J.); id. at 465-468 (TAYLOR, C.J., concurring). Absent any state-of-mind requirement, a wife who transported her husband‘s laptop to the police station because she suspected that it contained child sexually abusive material would herself arguably be a possessor and distributor of the material. See Tombs, 472 at 458-459 (opinion by KELLY, J.). Similarly in this
VI. CONCLUSION
A defendant who downloads child sexually abusive material from the Internet and burns the images to a CD-R, when there is no evidence the defendant had a criminal intent to do something other than possess the CD-R for his own personal use, may not be convicted of violating
KELLY, C.J., and CAVANAGH and HATHAWAY, JJ., concurred with MARKMAN, J.
WEAVER, J. (dissenting). I dissent from the majority opinion, which reverses in part the judgment of the Court of Appeals and vacates defendant‘s convictions under
In this case, police officers obtained two laptop computers and numerous recordable compact discs from defendant‘s home containing approximately 70,000 to 80,000 pornographic images of boys ranging in age from “toddlers to teens.” Within defendant‘s immense collection of pornographic images, authorities found multiple copies of a single pornographic image. The copies created the basis for charging defendant with making child sexually abusive material.
I agree with Justice YOUNG‘s statement in his dissent: “[T]he majority opinion relieves a defendant of criminal responsibility for making copies of child pornography ‘for personal use’ and creates out of whole cloth an additional hurdle for those prosecuting individuals who make child pornography . . . .”
YOUNG, J. (dissenting). In this case, defendant admitted making 50 recordable compact discs (CD-Rs) containing approximately 70,000 to 80,000 pornographic pictures depicting boys from “toddlers to teens,” as well as videos depicting 12- to 13-year-old boys engaged in sexual acts. Within this compendious library of child pornography, multiple copies of one particular pornographic image formed the basis of the charges that were lodged against defendant for making child sexually abusive material.1
The statute under which defendant was convicted plainly applies to any person who “makes” copies of child pornography.2 Here, despite the uncontested proof that defendant made numerous copies of one particular pornographic image, the majority opinion reverses defendant‘s convictions because it contends that he merely intended to possess the copied images “for personal use” and because the majority opinion finds it “simply untenable” that the Legislature would punish “those who download and maintain that material for personal use” as harshly as those involved in the “creation or origination” of child pornography.
However, the straightforward language of the statute is not limited to the original creator of the child pornography. Rather,
The relevant portions of
(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 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 . . . . (3) 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 . . . .
(4) 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 . . . . [Emphasis added.]
Also critical to interpreting the prohibition against making child pornography is the statutory definition of two relevant terms. “Child sexually abusive activity” is defined as “a child engaging in a listed sexual act,”3 while “child sexually abusive material” is statutorily defined as
any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction,
copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording.4
I agree with the majority opinion that
While the majority would prefer that the statute cease at the creators or originators of the child pornography, it does not. The second clause of
As noted, “child sexually abusive material” is statutorily defined as any depiction of a child engaged in a sexual act. The statute uses broad language to cover a wide range of image formats, including images produced by electronic, mechanical, or other means, photographs, pictures, films, slides, videos, electronic visual images, books, and magazines. It also includes depictions on a computer diskette, a computer, or a computer storage device. Significantly, “child sexually abusive material” includes “any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording.”6
The definitive question in this case is quite simple: did defendant “produce [or] make” a “reproduction [or] copy” of an “electronic visual image,” a “computer, or computer-generated image,” or other “visual or print” medium when he took the deliberate action of copying “Jeff0015.jpg” to his computer hard drive? Unquestionably, the answer is yes. Defendant then took the additional, volitional steps of copying that image to his computer a second time, as well as copying it to several CD-Rs.
Forced to acknowledge that the plain language of the statute says what it says and that “a person may be charged with” “producing, making, or financing a copy of a computer-generated image” in a “manner indistinguishable from the person” who created the original image, the majority opinion nevertheless proceeds to write the second clause of
By holding that a defendant who makes copies of child pornography is guilty of only a 4-year felony when the copies are made “for personal use,” the majority opinion essentially holds that defendant‘s criminal liability is limited to that of a mere possessor under
The majority opinion runs far afield in responding to this dissent—and naturally so because the statutory language is clear and the majority is forced to strain in order to justify its conclusion. Central to the majority opinion‘s argument is its false conclusion that
While the hyperbole comparing child pornography to downloading materials from the Internet in violation of federal copyright laws certainly makes for entertaining reading, it is equivalent to comparing apples to orangutans. The federal copyright laws encompass those who willfully infringe a copyright, which includes making
I find nothing vexing, much less “simply untenable,” about our Legislature‘s decision to place an increased sanction on defendants who make copies of child pornography, thereby increasing the net amount of child pornographic images in existence. Because there is no question that defendant intentionally made multiple copies of child pornography, his convictions were proper and should be affirmed. Because the majority opinion concludes otherwise, and because it creates additional hurdles to the prosecution of those who copy child pornography, I dissent.
CORRIGAN, J., concurred with YOUNG, J.
Notes
“Child sexually abusive material” means any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording.
Our criminal code is replete with examples of crimes that have heightened consequences because of a defendant‘s chosen method of committing the crime. For example, one who commits an assault is generally subject to a 93-day jail term for that misdemeanor.All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
Title 17 of the United States Code establishes a creator‘s intellectual property rights in original works.failure to provide specifically for a common-law defense in drafting a criminal statute does not necessarily preclude a defendant charged with violating that statute from relying on such a defense. This conclusion is unassailable; statutes rarely enumerate the defenses to the crimes they describe.
Federal law also criminalizes an intentional copyright infringement committed “for purposes of commercial advantage or private financial gain[.]”
[T]he quantity of [marijuana] seeds possessed was so slight that we are constrained to find that reasonable jurors could not infer the intent to deliver from that quantity. There was no other evidence on the question of defendant‘s intent. It was therefore error for the trial judge to deny defendant‘s motion for a directed verdict of acquittal on the charged offense.