Court of Appeals regarding what it means to “make or produce” child sexually abusive material under MCL 750.145c(2) when a defendant downloads child pornography from the internet and then simply copies those images to CD’s, where no proof exists to suggest the defendant had the intent to do anything other than retain the images for his own personal use. In People v. Hill, the defendant was charged with five counts of making child sexually abusive material, a twenty (20) year felony, and a Class B offense under the guidelines. Hill, represented on appeal by Grand Rapids attorney, Frank Stanley, contended he was merely guilty of the four (4) year felony for knowing possession of the prohibited material pursuant to MCL 750.145c(3), a much less serious Class D offense.
In 2006, police discovered 50 CD-Rs in Hill’s bedroom with over 70,000 images of child pornography. Justice Markman wrote for the majority and held, “that when the terms ‘produces’ and ‘makes’ in MCL 750.145c(2) are construed in accordance with their immediately surrounding text and with a view toward the statute’s overall organization, including a graduated scheme of offenses and punishments, a defendant may not be convicted of the 20-year felony when there is not proof beyond a reasonable doubt that he had a criminal intent to do something other than possess the CD-Rs for his own personal use.”
For any of you that have handled such cases, it seems the Court has finally rendered an opinion that takes the totality of the statute into account. It has never made any sense to me to punish someone who copies a picture from the internet with the same severity as the guy who set up the lights, recruited the victim and snapped the photos of the child. Justice Markman aptly pointed out the correct definition of the term “make” with the following illustration: “Just as a person who downloads a song from the Internet and burns it to a CD-R is not considered to have produced or made a song, so a person who burns a prohibited image to a CD-R for his personal use has not produced or made the image.” Just as the prosecution must prove an intent to deliver to differentiate between a drug user and a drug trafficker, now, it appears same must be said for child sexually abusive material cases. The prosecutor now bears the burden of proving the defendant possesses an intent to do something other than merely possessing the material for personal use.
Justices Young wrote the dissent with Justice Corrigan joining. (Justice Weaver authored her own dissent). There, he argued, “the 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.” Justice Markman responded to the dissent, by pointing out the distinctions in the statute that go from a twenty (20) year felony to a seven (7) year felony to a four (4) year felony. He wrote, “we do not ‘relieve …of criminal responsibility’ the computer downloader when we recognize that the Legislature drew distinctions in MCL 750.145c between types of misconduct. No criminal responsibilities are being ‘relieved’ when the legislative distinctions are respected and the computer downloader of prohibited material is made subject to a 4-year term of imprisonment and the distributor of the same material is made subject to a 7-year term of imprisonment instead of the 20-year term of imprisonment reserved for the producer of the material, but for whose actions the material would never have existed in the first place. The Legislature is entitled to draw distinctions in its definitions of criminal activity, and this Court is obligated as a general matter to abide by those distinctions.”
Daniel Corrigan Grano contributed to this post.