PEOPLE v TOMBS
Docket No. 125483
Supreme Court of Michigan
June 1, 2005
472 MICH 446
Argued December 8, 2004 (Calendar No. 1).
In separate opinions, the Supreme Court held:
In order to convict a defendant of distributing or promoting child sexually abusive material under
Justice KELLY, joined by Justices CAVANAGH and MARKMAN, stated that there was insufficient evidence for a jury to conclude beyond a reasonable doubt that the defendant distributed or promoted child sexually abusive material with criminal intent. Defendant returned his employer-provided computer with the expectation that child sexually abusive material on the computer and that had been obtained on the Internet would not be viewed because all the computer files would be routinely erased by the employer without first examining them. But the employer examined the computer files and discovered the child sexually abusive material. These facts were insufficient to prove the defendant possessed criminal
Chief Justice TAYLOR concurred in the result and the analysis of the lead opinion except part VI(B) of that opinion, and wrote separately to explain his reasons for concluding that reversal of the defendant‘s conviction for “distributing or promoting” child sexually abusive material was proper. The statute required an intent to distribute or promote the child sexually abusive material. As the lead opinion concluded, there was insufficient evidence to prove that the defendant had this intent under two of the three theories offered by the prosecution, which involved distinct incidents. While there was barely sufficient evidence to support the third prosecution theory, the jury was not instructed that all jurors must agree on which incident included all elements of the crime. Although the defendant did not request an instruction on unanimity, it is impossible to determine if the outcome would have been the same had the jury been properly instructed. This instructional error was a plain error that affected the defendant‘s substantial rights and that requires reversal of the conviction.
Justice CORRIGAN, joined by Justices WEAVER and YOUNG, concurring in part and dissenting in part, stated that the majority correctly concluded that the distribution of child sexually abusive material must be an intentional act. The Legislature articulated in
Affirmed.
CRIMINAL LAW — DISTRIBUTING OR PROMOTING CHILD SEXUALLY ABUSIVE MATERIAL — INTENT.
A conviction for distributing or promoting child sexually abusive material requires evidence that the defendant distributed or promoted child sexually abusive material, knew the material to be child sexually abusive material at the time of distribution or promotion, and distributed or promoted the material with criminal intent; the mere acquisition and possession of child sexually
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, for the people.
State Appellate Defender (by Peter Jon Van Hoek) for the defendant.
KELLY, J. This case requires us to consider whether
We agree with the Court of Appeals that
I. FACTS AND PROCEDURAL HISTORY
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.
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,
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,
II. STANDARD OF REVIEW AND STATUTORY CONSTRUCTION
Issues of statutory interpretation, like questions of law, are reviewed de novo. People v Koonce, 466 Mich 515, 518; 648 NW2d 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 NW2d 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 NW2d 194 (1992).
Normally, criminal intent is an element of a crime. People v Rice, 161 Mich 657, 664; 126 NW 981 (1910). Statutes that create strict liability for all their elements are not favored. Quinn, 440 Mich at 187. 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,
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.
IV. UNITED STATES SUPREME COURT PRECEDENT
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 US 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 con-
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. Morissette stated:
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child‘s familiar exculpatory “But I didn‘t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone‘s sweeping statement that to constitute any crime there must first be a “vicious will.” Common-law commentators of the Nineteenth Century early pronounced the same principle. . . .
Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.
Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” “scienter,” to denote guilty knowledge, or “mens rea,” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes. [Id. at 250-252.]
The Court then considered the history and purpose of the federal statute at issue and determined that there was no indication that Congress wanted criminal intent eliminated from the offense. Id. at 265-269.
The Morissette Court noted the longstanding presumption that all crimes require criminal intent. It held that Congress‘s failure to include a criminal intent element did not signal a desire to preclude the need to prove criminal intent. Rather, the omission of any mention of criminal intent was not to be construed as eliminating the element from the crime. Id. at 272-273.
Since the Morissette decision, the United States Supreme Court has reiterated that offenses not requiring criminal intent are disfavored. The Court will infer the presence of the element unless a statute contains an express or implied indication that the legislative body wanted to dispense with it. Moreover, the Court has expressly held that the presumption in favor of a
In Staples v United States,3 the Court interpreted a federal statute that makes it a crime to possess an unregistered weapon capable of automatic firing. The Court noted that silence with respect to criminal intent does not, by itself, “necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal.” Staples, 511 US at 605.
The Court observed that the existence of mens rea “‘is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.‘” Id., quoting United States v United States Gypsum Co, 438 US 422, 436; 98 S Ct 2864; 57 L Ed 2d 854 (1978). It held that silence did not suggest that Congress intended to eliminate a mens rea requirement from the National Firearms Act. Staples said:
On the contrary, we must construe the statute in light of the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded. . . .
There can be no doubt that this established concept has influenced our interpretation of criminal statutes. Indeed, we have noted that the common-law rule requiring mens rea has been “followed in regard to statutory crimes even where the statutory definition did not in terms include it.” Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea generally are disfavored, and have suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime. [Staples, 511 US at 605-606 (citations omitted).]
The X-Citement Video Court presumed that mens rea must be shown to obtain a conviction, there being no clear congressional intent that strict liability should be imposed. It held that Congress must have intended that an accused transported the material knowingly and had knowledge of its nature to be guilty of the crime. X-Citement Video, 513 US at 78. The Court noted that this reading was necessary because “some form of scienter is to be implied in a criminal statute even if not expressed” and because “a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.” Id. at 69.
V. APPLICATION OF PRECEDENT TO RESOLVE THE CRIMINAL INTENT QUESTION
We apply this Supreme Court precedent to the case before us. No mens rea with respect to distribution or promotion is explicitly required in
The Court of Appeals correctly reached this conclusion. The most applicable dictionary definition of “distribute” implies putting items in the hands of others as a knowing and intentional act.5 Likewise, the terms “promote” and “finance,” and the phrase “receives for the purpose of distributing or promoting” contemplate knowing, intentional conduct on the part of the accused.
The use of these active verbs supports the presumption that the Legislature intended that the prosecution prove that an accused performed the prohibited act with criminal intent. If we held otherwise, not only would it be illogical, we would create a questionable scheme of punishment: One who, with criminal intent, possessed child sexually abusive material would be subject to a lesser punishment than someone who, without criminal intent, passed along such material to others.6
The Court of Appeals holding that the prosecution must prove criminal intent to distribute or promote fully implements the goal of the legislative scheme. It
As the United States Supreme Court explained in X-Citement Video,7 if there were no mens rea element respecting the distribution of the material, the statute could punish otherwise innocent conduct. For instance, a person might accidentally attach the wrong file to an e-mail sent to another. The person might intend to send an innocent photograph, but accidentally send a pornographic photograph of a child instead. Also, the person might not intend that the recipient recognize or even see the material that he transferred.
If the statute contained no mens rea element, a person lacking any criminal intent could be convicted and sentenced to seven years in prison and a fine of $50,000. Or, as in the present case, he could be found criminally liable for returning a laptop owned by his employer, intending only that the offending material be destroyed.8
If this were the law, Comcast employees who transferred defendant‘s JPG computer files among them-
For all of the reasons given, we conclude that the Legislature intended that criminal intent to distribute be an element of
VI. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION FOR DISTRIBUTING CHILD SEXUALLY ABUSIVE MATERIAL
The next question is whether the prosecution proved that defendant had the criminal intent to distribute or promote child sexually abusive material. Due process requires proof of intent beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268; 380 NW2d 11 (1985). When determining if sufficient evidence was presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution. It must determine whether any rational trier of fact could have found that the essential elements of the crime were proven as required. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992).
A. RETURN OF THE LAPTOP TO COMCAST
Although defendant intended to distribute the laptop containing child sexually abusive material to his former
Comcast witnesses acknowledged that the computer hard drive could be erased and reformatted without any of its files being reviewed. Mr. Williams admitted that this was the practice at Comcast and that defendant himself may have previously performed such erasures on returned computers.
Williams admitted that he looked through defendant‘s files because “I just wanted to see what was on there,” not because it was necessary. Williams further testified that he did not tell defendant when he arranged to pick up the computer that he intended to look at any of his files. Another witness testified that the practice at Comcast was simply to wipe the hard drives of all information and reformat them.
From the testimony, one could reasonably conclude that defendant anticipated that no one at Comcast would review his files. His statement to FIA investigators was that he thought the entire hard drive would be merely erased and reformatted. Viewed most favorably to the prosecution, the record contains nothing from which to reasonably infer that defendant intentionally left the material on the laptop for Comcast‘s employees to discover.
The dissent questions the relevancy of the fact that defendant did not intend anybody to discover or view the material. As explained above, defendant could be convicted of distributing child sexually abusive material only if he distributed the material with a criminal
Defendant returned the computer, as he was required to do, to individuals who possibly knew how to find the information. This does not change the fact that defendant concealed the images. Nor does it change the fact that, on the basis of past company practice, defendant legitimately believed that those individuals would not search the computer for picture files. That someone had the ability and desire to search for the material defendant purposefully concealed does not affect the analysis of defendant‘s state of mind. The actions of a third party could not create a criminal intent in the mind of defendant.
In addition to defendant‘s statement to the FIA, substantiation for the inference that there was no mens rea is found in the testimony of prosecution witness Radcliffe. He said that the photos were buried deep in a user profile, not in a readily available location. Likewise, Sergeant Duke testified that, in his opinion, the location, seven directory levels down, indicated that defendant intended to keep the material secret.
Hence, insufficient evidence existed from which the jury could draw an inference beyond a reasonable doubt that, when returning the laptop, defendant distributed child sexually abusive material with criminal intent. We avoid the dissent‘s error of conflating the criminal intent to distribute child sexually abusive material with the simple intent to return the laptop.
B. DEFENDANT‘S INTERNET ACTIVITY
The prosecutor made the alternative argument that defendant distributed child sexually abusive material over the Internet. However, the jury acquitted him of
We apply the same reasoning regarding this argument as did the Court of Appeals:
Given the prosecutor‘s theory that defendant distributed child sexually abusive material by returning to Comcast the computer containing such material and the jury‘s verdict of acquittal on the charge of using a computer to distribute or promote such material, we conclude that defendant‘s conviction solely rests upon the theory primarily advanced by the prosecution at trial: that defendant distributed child sexually abusive material by returning to Comcast a computer that contained such material. Accordingly, our review of the sufficiency of the evidence is limited to the theory that resulted in defendant‘s conviction. [260 Mich App at 208.] [Emphasis added.]
In his concurrence, Chief Justice TAYLOR concludes that there was sufficient evidence for the jury to convict defendant of distributing child sexually abusive material. The basis for the conviction could have been that he shared such material with others on the Internet. The concurrence acknowledges that the jury specifically acquitted defendant of using a computer to distribute such material, but it observes that jury verdicts need not be consistent.
We reason that, although inconsistent jury verdicts may be legally permissible, it does not follow that we should find verdicts inconsistent when it is possible to find them consistent. See Lagalo v Allied Corp, 457 Mich 278, 282; 577 NW2d 462 (1998) (“‘[i]f there is an interpretation of the evidence that provides a logical
There is no disagreement that, here, the jury specifically acquitted defendant of using a computer to distribute child sexually abusive material, and it convicted him of distributing such material. It could have found him guilty of distributing the material in one of two ways: (a) finding that he shared the material with others on the Internet, or (b) finding that he distributed it by returning the computer to Comcast. The former would be inconsistent with the jury‘s verdict concerning the “use of a computer to distribute child sexually abusive material” charge; the latter would not be. Because we presume that the verdicts are consistent, we conclude that the jury convicted defendant of distributing the material by returning the computer to Comcast.10
VII. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR PROMOTING CHILD SEXUALLY ABUSIVE MATERIAL
It is without dispute that defendant possessed child sexually abusive material that he had obtained over the Internet. The prosecution contends that possessing the material is the legal equivalent of promoting it for purposes of
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. . . . [Emphasis added.]
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,11 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. [Emphasis added.]
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.
The Legislature expressly separated the crimes of production of child sexually abusive material,12 distribution or promotion of the material, and simple possession. It would not have made the distinction had it intended to equate mere possession with promotion.
If the Legislature had wanted end-users of the material to be guilty of promoting such material merely because they possess it,
VIII. CONCLUSION
We hold that, to convict a defendant of distribution or promotion under
There was insufficient evidence in this case for a jury to conclude beyond a reasonable doubt that defendant distributed or promoted child sexually abusive material with criminal intent. Therefore, we affirm the Court of Appeals decision reversing defendant‘s conviction of distribution or promotion under
CAVANAGH and MARKMAN, JJ., concurred with KELLY, J.
TAYLOR, C.J. (concurring). I concur in the result of Justice KELLY‘s opinion and with her analysis in all but part VI(B). I write separately to explain my own reasons for reaching the conclusion that defendant‘s conviction
for “distributing or promoting” child sexually abusive material was properly reversed by the Court of Appeals. I agree with Justice KELLY regarding the intent required to establish a violation of this statute. In addition, I believe such an intent is required because without it, otherwise innocent conduct could be criminalized. As a general rule there can be no crime without a criminal intent.1 People v Roby, 52 Mich 577, 579; 18 NW 365 (1884) (COOLEY, C.J.). The United States Supreme Court has spoken extensively on this, holding that when a criminal statute is totally silent about state of mind (as is often the case), courts nonetheless assume that Congress intended to require some kind of guilty knowledge with respect to certain elements of the crime. See Liparota v United States, 471 US 419, 426; 105 S Ct 2084; 85 L Ed 2d 434 (1985) (courts should not read criminal statutes as requiring no mens rea); Morissette v United States, 342 US 246, 255-256, 263; 72 S Ct 240; 96 L Ed 288 (1952).
Under Justice CORRIGAN‘S interpretation, the only element requiring criminal intent is that the material is child pornography, because this is the element that criminalizes otherwise innocent conduct. However, a person may be aware of the existence of such material without taking the criminal step of distributing it or promoting it. Such a person would be engaging only in innocent conduct until the element of distributing or promoting is met. What Justice CORRIGAN seems to be arguing here is that defendant possessed the material, and then went one step further and handed the computer to Comcast employees, and thus he had not engaged in only innocent conduct before distributing. However, possession is not an element of distributing or
Thus, I agree with Justice KELLY‘S conclusion that there was insufficient evidence to prove defendant had this intent when he returned the computer to Comcast. Ante at 461. I also agree with her analysis and conclusion that there was insufficient evidence supporting the prosecutor‘s second theory, i.e., that defendant promoted child sexually abusive material by merely acquiring or possessing it. Justice KELLY properly concludes that acquisition or possession of the material is not legally equivalent to promoting it for the purposes of
Finally, while I agree with her conclusion that defendant‘s conviction for distributing or promoting child sexually abusive material is not supported by the prosecutor‘s third theory—that defendant committed the crime by uploading or sharing child sexually abusive material through the Internet—I do not find her analysis of this issue persuasive. Although the jury found defendant not guilty of using a computer or the Internet to distribute or promote child sexually abusive material, the elements of the more general distribution crime are also satisfied by defendant‘s alleged acts of sharing the material, and this is sufficient to convict. When a defendant is convicted under a multicount indictment, we must consider whether the elements of each charge have been met. People v Vaughn, 409 Mich 463, 465; 295 NW2d 354 (1980). Each count is regarded as if it were a separate indictment, and jury verdicts rendered on the several counts need not be consistent. Id.
In contrast to Justice KELLY‘S analysis, I believe the evidence supporting this theory is sufficient (but barely) when the evidence presented at trial, and the reasonable inferences taken from it, is viewed in the light most favorable to the prosecution.2 See People v Tanner, 469 Mich 437, 444 n 6; 671 NW2d 728 (2003).
However, the fact is that the prosecutor presented to the jury distinct factual situations, each of which could have been seen by individual jurors as satisfying the actus reus of the single charge.3 This is permissible, but only if the jurors are instructed that they all must unanimously agree that defendant committed at least one of the criminal acts. That unanimity requirement, not having been presented to the jury, is fatal to this conviction. The Michigan Constitution requires the jury‘s verdict to be unanimous to comply with minimal due process.
Here, at least two of the alleged criminal acts required materially different evidence. The act of returning the computer to Comcast involved a separate and different set of facts from those concerning defendant‘s alleged involvement in facilitating the exchange of Internet child pornography. To have a valid conviction, the jurors had to be instructed that they all had to agree on the incident in which all elements of the crime had been established. This was not done, and this deprived
For the reasons I have stated, I agree with Justice KELLY‘S result of affirming the Court of Appeals reversal of defendant‘s conviction for distributing or promoting child sexually abusive material and I agree with her analysis in all but part VI(B).
CORRIGAN, J. (concurring in part and dissenting in part). I agree with the majority that the distribution or promotion of child sexually abusive material must be an intentional act. I respectfully dissent, however, from the majority‘s application of intentionality. Under the majority view, the intentionality of defendant‘s act is negated because he allegedly and erroneously believed that Comcast‘s computer technicians would not “discover or view” the child sexually abusive material. The
I believe that the prosecution presented sufficient evidence that defendant distributed child sexually abusive material. Defendant distributed child sexually abusive material when he deliberately returned the company-owned computer to his employer, with full knowledge that the computer contained images that he knew to be child sexually abusive material. Accordingly, I would reverse the decision of the Court of Appeals and reinstate defendant‘s conviction of distributing child sexually abusive material,
While the majority properly imputes an intent to the distribution or promotion element contained in the statute, it is undisputed that defendant intentionally distributed the computer to his employer with the knowledge that the computer contained child sexually abusive material. Testimony adduced at trial reveals that, on the day defendant resigned his employment with Comcast, defendant was informed that he would have to return the company automobile and computer the same day. His supervisor, Christopher Williams, testified that he waited “45 minutes to an hour” before proceeding to defendant‘s residence. While en route to defendant‘s residence, defendant telephoned Williams and told Williams that “everything was ready.” The evidence revealed that, although given less time than requested, defendant voluntarily returned the computer to Comcast.
Moreover, the testimony of David Joseph revealed that defendant was aware that the prurient material was on the computer at the time the computer was returned. Joseph testified that defendant was not concerned that the material would be discovered on the
The lead opinion casts the issue as whether defendant‘s distribution of child sexually abusive material must be an intentional act; however, the opinion ignores the uncontroverted evidence that the distribution was in fact an intentional act. Instead, the opinion concludes that defendant did not intentionally distribute the child sexually abusive material because “defendant neither intended nor expected anyone at Comcast to discover or view the material.” Ante at 460 (emphasis added).
The lead opinion requires a heightened mens rea element that is not supported in the language of the statute and that is not constitutionally required. The opinion cites Morissette v United States,2 Staples v United States,3 and United States v X-Citement Video, Inc,4 in support of the claim that this additional element
Under the lead opinion, it is not enough that defendant intentionally distribute the computer, nor is it enough that defendant be aware of the presence of child pornography on the computer at the time of distribution. Rather, the opinion requires proof that defendant specifically intended a particular action or response on the part of the recipient.6
Moreover, the lead opinion makes no effort to rationalize why defendant‘s erroneous belief that no one at Comcast would “discover or view” the child pornography converts defendant‘s volitional act into a nonvolitional act. Likewise, the opinion fails to explain why defendant‘s criminal intent to distribute turns on how he believed Comcast would respond after the intentionally distributed material was received. While the lead opinion relies heavily on the claim that “the practice” at Comcast was to reformat the hard drive of the computer without reviewing any of the files, the testimony of Christopher Williams indicated that this practice was only done “on some of” the company computers. Williams testified that he inspected the contents of the computer “to see what it needed” before being “issued to another technician.” Cliff Radcliff testified that the process of completely erasing the contents of the hard drive was “lengthy,” and that “just cleaning out the unneeded files” shortened the cleaning process. The record does not reveal any company “policy” requiring the automatic erasure of computer hard drives without inspection. Indeed, even if such a “policy” did exist, the lead opinion fails to explain why defendant enjoyed any type of expectation interest in the continuation of this so-called “practice.”7 That defendant believed that the material would not be discovered in the computer does not alter the fact that he knew that his employer would in fact receive the material. Thus, the prosecutor presented sufficient evidence for a conviction under
Apart from the sufficiency of the evidence, Chief Justice TAYLOR raises in his concurrence for the first time in these proceedings the requirement of unanimity
While it may be possible that the jury could have failed to reach unanimity here, the issue has not been raised by defendant and is not before our Court. Additionally, as Chief Justice TAYLOR notes, this issue is unpreserved. Defendant neither requested a unanimity instruction nor objected to the instructions given.
An unpreserved constitutional error comes within the standard of review articulated in People v Carines, 460 Mich 750, 763-765; 597 NW2d 130 (1999). As the Chief Justice noted when he listed the requirements for showing that a plain error occurred that affected a substantial right, the defendant bears the evidentiary burden. Id. at 763 (recognizing that the burden of persuasion for a showing of prejudice was on the defendant). However, defendant has not established entitlement to relief under Carines because, at a minimum, defendant did not identify or argue the issue. Moreover, prejudice requires showing that the error affected the outcome. This differs from showing the possibility that the jury improperly failed to meet the unanimity requirement and requires a showing that the error did affect the outcome.
Here, the jury was instructed to consider only acts occurring on August 9, 2000, the day that defendant
In conclusion, the prosecutor presented sufficient evidence to convict defendant of distribution of child sexually abusive material under
WEAVER and YOUNG, JJ., concurred with CORRIGAN, J.