PEOPLE OF MI V RUSSELL DOUGLAS TOMBS
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 1, 2005
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 125483
RUSSELL DOUGLAS TOMBS,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
This
case
requires
us
to
consider
whether
MCL
750.145c(3), which prohibits the distribution or promotion
of
child
sexually
distribution
or
abusive
promotion
material,
be
requires
performed
with
that
the
criminal
intent.
If criminal intent is an element of the offense,
we
determine
must
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.
that
the
evidence
presented
to
the
We also agree
trial
court
was
insufficient to prove that intent.
the
decision
of
the
Court
of
Therefore, we affirm
Appeals
that
reversed
defendant’s conviction for distributing and promoting child
sexually abusive material.
I. FACTS
AND
PROCEDURAL HISTORY
Defendant was a field technician for Comcast OnLine,
an
organization
business
and
that
sells
residential
cable
Internet
customers.
Field
access
to
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
laptop
computer
was
for
issued
employment-related
to
defendant,
use.
the
Before
hard
the
drive was
reformatted so that it contained only company-sanctioned
software programs.
On August 9, 2000, a Wednesday, defendant quit his
employment
another
company's
with
Comcast
Comcast.
He
employee,
equipment
and
told
that
van
on
Christopher
he
the
would
weekend.
Williams,
return
the
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.
2
Williams
retrieved
the
items
from
defendant
approximately an hour after the telephone conversation.
He
returned
the
began
to
reformat
it.
in
the
laptop
to
Comcast’s
Although
it
was
office
not
and
required
formatting, he ran a search for JPG files, files containing
pictures, "[j]ust to see what was on it."
and opened one.
He found several
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.
found "a series of child pornography."
that
the
pornographic
material
was
He eventually
Radcliff indicated
not
in
a
readily
available location, but was "buried inside of what's known
as a user profile."
The
Detective
laptop
was
Edward
later
Stack
of
turned
the
over
St.
to
Clair
the
police.
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
images
on
the
Department,
computer
that
counted
he
over
believed
five
hundred
qualified
either child sexually abusive material or child erotica."
3
"as
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
Comcast
employee
that
defendant
leaves
told
him
that,
employment,
new
programs
installed in that employee’s computer.
when
a
are
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
others."
"from
the
Internet
and
from
sharing
with
Joseph also said that it was his impression from
1
Family Independence Agency is now the Department of
Human Services.
4
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
published
opinion,
the
Court
of
Appeals
In a
reversed
defendant's conviction for distributing or promoting child
sexually
abusive
material
under
affirmed his other convictions.
77 (2003).
Court.
MCL
750.145c(3)
and
260 Mich App 201; 679 NW2d
The prosecutor appeals the reversal to this
470 Mich 889 (2004).
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,
2
On appeal to us, defendant did not challenge his
convictions
under
MCL
750.145c(4)
or
MCL
750.145d.
Therefore, this Court takes no position on whether the
facts are sufficient to support convictions under those
provisions.
5
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 NW2d 981 (1910).
Statutes
that
create
strict
elements are not favored.
liability
for
all
Quinn, 440 Mich at 187.
their
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.
III. CRIMINAL INTENT
The
statutory
IS AN
provision
ELEMENT
under
OF
MCL 750.145C(3)
consideration,
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
6
MCL
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 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.
In reviewing the case, the Morissette Court began with
the proposition that criminal offenses that do not require
7
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 evilmeaning 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
8
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.
The
Id at 265-269.
Morissette
Court
noted
the
longstanding
presumption that all crimes require criminal intent.
held that Congress’s failure to include
It
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.
Since
the
Morissette
Id. at 272-273.
decision,
the
United
States
Supreme Court has reiterated that offenses not requiring
criminal intent are disfavored.
presence
of
the
element
unless
9
The Court will infer the
a
statute
contains
an
express
wanted
or
to
implied
dispense
indication
with
that
it.
the
legislative
Moreover,
the
body
Court
has
expressly held that the presumption in favor of a criminal
intent or mens rea requirement applies to each element of a
statutory crime.
In Staples v United States,3 the Court interpreted a
federal
statute
that
makes
it
a
crime
to
possess
unregistered weapon capable of automatic firing.
an
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
3
511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994).
10
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 605606 (citations omitted).]
In United States v X-Citement Video, Inc,4 the United
States Supreme Court applied the mens rea rule to a federal
statute prohibiting child pornography.
The statute made it
illegal to “knowingly transport[] or ship[]” or “knowingly
receive[] or distribute[]” any visual depiction involving
the use of a minor engaging in sexually explicit conduct.
18 USC 2252.
The Court was required to determine whether
the term “knowingly” as used in the section also modified
the
phrase
“use
of
a
minor.”
The
Court
undertook
to
determine whether the defendant must knowingly transport
the material and must know that it depicted a minor engaged
in sexually explicit conduct.
The X-Citement Video Court presumed that mens rea must
be
shown
4
to
obtain
a
conviction,
there
being
no
513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994).
11
clear
congressional
imposed.
intent
that
strict
liability
should
be
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.
Citement Video, 513 US at 78.
X-
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
We
apply
before us.
OF
PRECEDENT
this
TO
RESOLVE
Supreme
THE
Court
CRIMINAL INTENT QUESTION
precedent
to
the
case
No mens rea with respect to distribution or
promotion
is
explicitly
required
in
MCL
750.145c(3).
Absent some clear indication that the Legislature intended
to dispense with the requirement, we presume that silence
suggests the Legislature’s intent not to eliminate mens rea
in MCL 750.145c(3).
The
Court
conclusion.
of
Appeals
correctly
reached
this
The most applicable dictionary definition of
"distribute" implies putting items in the hands of others
as
a
knowing
5
and
intentional
act.5
Likewise,
the
terms
“Distribute:
to divide and give out in shares;
allot. To pass out or deliver: to distribute pamphlets.”
(continued…)
12
"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
illogical,
punishment:
sexually
we
we
would
otherwise,
create
a
not
only
would
be
scheme
questionable
it
of
One who, with criminal intent, possessed child
abusive
punishment
held
than
material
someone
would
who,
be
subject
without
to
a
criminal
lesser
intent,
passed along such material to others.6
The Court of Appeals holding that the prosecution must
prove
criminal
implements
the
intent
goal
of
to
the
distribute
or
legislative
promote
scheme.
It
fully
also
(…continued)
The Random House College Dictionary (2001) "[T]o give out
or deliver especially to members of a group <distribute
newspapers>."
Merriam-Webster
OnLine
Dictionary
<http://www.m-w.com> (accessed April 15, 2005). "[T]o
divide (something) among several or many people, or to
spread or scatter (something) over an area."
Cambridge
Dictionary
of
American
English
(Online
version)
<http://www.dictionary.cambridge.org> (accessed April 15,
2005).
6
The maximum penalty for violating MCL 750.145c(3),
distributing or promoting child sexually abusive material,
is seven years in prison and a fine of $50,000.
The
maximum penalty for possessing child sexually abusive
material, MCL 750.145c(4), is four years in prison and a
$10,000
fine.
When
defendant
was
convicted,
MCL
750.145c(4) provided for imprisonment of one year.
13
avoids substantial constitutional questions.
The fact,
standing alone, that the Legislature did not affix the term
"knowingly" to the distribution or promotion element does
not mean that the Legislature intended a strict liability
standard.
As the United States Supreme Court explained in XCitement
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 email sent to another.
The person might intend to send an
innocent photograph, but accidentally send a pornographic
photograph of a child instead.
intend
that
the
recipient
Also, the person might not
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
7
8
513 US at 69.
The dissent claims that evidence of intent is found
in the fact that defendant returned the laptop containing
(continued…)
14
If
this
were
the
law,
Comcast
employees
who
transferred defendant’s JPG computer files among themselves
and ultimately to the police, knowing what was in them,
would
have
immaterial
violated
that
they
MCL
had
750.145c(3).
no
criminal
It
would
intent.
Such
be
a
reading of the statute would frustrate its purpose.9
For all of the reasons given, we conclude that the
Legislature intended that criminal intent to distribute be
an element of MCL 750.145c(3).
(…continued)
the offending material.
There is evidence that defendant
intended to distribute the laptop to Comcast, but there is
no evidence of a criminal intent on his part to distribute
child sexually abusive material. In fact, all the evidence
points to the contrary conclusion, that defendant did not
distribute the material with a criminal intent.
He
returned the laptop to his former employer as required and
with the expectation that his former employer would not
search for and find the child sexually abusive material.
This is further supported by the fact that the material was
hidden in subfolders seven directory levels down.
9
The dissent insists that these Comcast employees
could be convicted under our reading of MCL 750.145c(3),
post at 5 n 6. It appears to miss the distinction between
intent to commit an act, such as returning another's
personal property, and intent to commit a crime, a "guilty
mind.”
The Comcast employees intended to report a
suspected
crime.
They
did
not
intend
to
illegally
distribute child sexually abusive material.
The dissent states that, in other statutes, the
Legislature has taken steps to prevent the prosecution of
people who lack criminal intent. But it fails to show how
those statutes are relevant to the issue before us, which
is whether MCL 750.145c(3) includes criminal intent as an
element.
15
VI. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION
DISTRIBUTING CHILD SEXUALLY ABUSIVE MATERIAL
FOR
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
required.
elements
of
the
crime
were
proven
as
People v Wolfe, 440 Mich 508, 515; 489 NW2d 748
(1992).
A. RETURN
OF THE
LAPTOP
COMCAST
TO
Although defendant intended to distribute the laptop
containing child sexually abusive material to his former
employer,
no
evidence
suggests
that
material with a criminal intent.
he
distributed
the
There was no evidence
that defendant made anyone at Comcast aware, or attempted
to make anyone aware, of the presence of the material.
the
contrary,
there
is
evidence
that
defendant
To
neither
intended nor expected anyone at Comcast to discover or view
the material.
16
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
17
of distributing child sexually abusive material only if he
distributed
the
Obviously,
if
intending
material
defendant
anybody
to
with
a
criminal
distributed
discover
or
the
view
intent.
material
it,
he
not
did
not
distribute it with a criminal intent.
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
purposefully
to
search
concealed
for
does
not
the
material
affect
the
defendant
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
18
directory levels down, indicated that defendant intended to
keep the material secret.
Hence, insufficient evidence existed from which the
jury
that,
could
when
draw
an
returning
inference
the
beyond
laptop,
a
reasonable
defendant
doubt
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 that
crime. It specifically found that defendant did not use a
computer or the Internet to communicate with another person
to distribute or promote child sexually abusive material.
MCL 750.145d. It found him guilty only of using a computer
or the Internet to communicate with another person in order
to possess child sexually abusive material. Id.
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
19
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,
462
282;
577
interpretation
NW2d
of
the
(1998)
evidence
(“‘[i]f
that
there
provides
a
is
an
logical
explanation for the findings of the jury, the verdict is
not inconsistent.’”) (Citation omitted.)
There
specifically
distribute
is
no
disagreement
acquitted
child
defendant
sexually
that,
of
abusive
20
here,
using
a
the
jury
computer
material,
and
to
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
conclude
verdicts
convicted
are
consistent,
defendant
of
we
distributing
the
that
the
material
jury
by
returning the computer to Comcast.10
VII. THERE
CONVICTION
FOR
IS
INSUFFICIENT EVIDENCE
TO
SUPPORT
A
PROMOTING CHILD SEXUALLY ABUSIVE MATERIAL
It is without dispute that defendant possessed child
sexually abusive material that he had obtained over the
Internet.
material
The
is
the
prosecution
legal
contends
equivalent
that
of
possessing
promoting
it
the
for
purposes of MCL 750.145c(3).
MCL 750.145c(3) reads:
10
The concurring justice mistakes defense of our
analysis for a criticism of his unanimity argument. Rather
than criticize the argument, we simply find that there is
no reason to consider the unanimity issue.
The jury
specifically acquitted defendant of using a computer or the
Internet to distribute child sexually abusive material.
This conclusive determination precludes reliance on the
rationale that the conviction for distribution was based on
defendant’s Internet activity. We need go no further.
21
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.]
MCL 750.145c(4) reads:
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
graduated
language
scheme
of
of
the
Legislature
offenses
and
that
punishments
created
a
regarding
child sexually abusive material.
11
MCL 740.145c(4) was amended after defendant's trial.
Formerly, a violation of this provision was punishable as a
misdemeanor.
22
The
Legislature
production
of
distribution
or
possession.
expressly
child
separated
sexually
promotion
of
the
crimes
material,12
abusive
the
material,
of
and
simple
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
included promotion.
have
equated
it,
MCL
750.145c(4)
would
have
Alternatively, the Legislature would
possession
with
both
distribution
and
promotion in MCL 750.145c(3) instead of creating a separate
provision for possession in § 145c(4).
The statute on its
face makes the mere possession of child sexually abusive
material a different and less severe offense than either
distribution or promotion of the material.
VIII. CONCLUSION
We hold that, to convict a defendant of distribution
or promotion under MCL 750.145c(3), the prosecution must
prove that (1) the defendant distributed or promoted child
sexually
abusive
material,
(2)
the
defendant
knew
the
material to be child sexually abusive material at the time
of
distribution
or
promotion,
and
(3)
the
defendant
distributed or promoted the material with criminal intent.
12
MCL 750.145c(2).
23
Also, we hold that the mere obtaining and possessing of
child sexually abusive material using the Internet does not
constitute a violation of MCL 750.145c(3).
There was insufficient evidence in this case for a
jury to conclude beyond a reasonable doubt that defendant
distributed
or
promoted
with criminal intent.
Appeals
decision
child
sexually
abusive
material
Therefore, we affirm the Court of
reversing
defendant’s
conviction
distribution or promotion under MCL 750.145c(3).
Marilyn Kelly
Michael F. Cavanagh
Stephen J. Markman
24
of
S T A T E
M I C H I G A N
O F
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 125483
RUSSELL DOUGLAS TOMBS,
Defendant-Appellee.
_______________________________
TAYLOR, C.J. (concurring).
I concur in the result of Justice Kelly’s opinion and
with
her
separately
analysis
to
in
explain
all
my
but
own
part
reasons
VI(B).
for
I
write
reaching
the
conclusion that defendant’s conviction for “distributing or
promoting”
child
sexually
abusive
reversed by the Court of Appeals.
Kelly
regarding
the
intent
violation of this statute.
material
was
properly
I agree with Justice
required
to
establish
a
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
1
People v Roby, 52
Strict liability crimes present a very limited
exception to this rule, but I do not believe this crime is
in that category.
Mich 577, 579; 18 NW 365 (1884) (Cooley, C.J.).
States
Supreme
holding
about
that
state
Court
when
of
a
has
spoken
criminal
mind
(as
is
The United
extensively
on
this,
statute
is
totally
silent
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
criminalizes otherwise innocent conduct.
the
element
that
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
2
distributing or promoting, and we must look at the elements
of the charged crime, not the facts of the case before us,
in determining the required intent. The Court of Appeals
correctly applied this law in its analysis, finding that
defendant
did
returned
the
“intend[]
not
“distribute”
computer
for
anyone
abusive material.”
to
to
the
Comcast
see
or
material
because
receive
he
child
when
he
did
not
sexually
260 Mich App 201, 217; 679 NW2d 77
(2003).
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.
20.
Ante at
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
Justice
Kelly
by
merely
properly
acquiring
concludes
or
that
possessing
it.
acquisition
or
possession of the material is not legally equivalent to
promoting it for the purposes of MCL 750.145c(3).
Ante at
22.
Finally,
while
I
agree
with
her
conclusion
that
defendant’s conviction for distributing or promoting child
sexually
abusive
prosecutor’s
third
material
is
theory—that
3
not
supported
defendant
by
the
committed
the
crime
by
uploading
or
sharing
child
sexually
abusive
material through the Internet—I do not find her analysis of
this issue persuasive.
not
guilty
of
using
Although the jury found defendant
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
material,
and
this
is
alleged
sufficient
acts
to
of
sharing
convict.
the
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
counts need not be consistent.
rendered
on
the
several
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
favorable to the prosecution.2
viewed
in
the
light
most
See People v Tanner, 469
Mich 437, 444 n 6; 671 NW2d 728 (2003).
2
At trial, Mr. David Joseph, the children’s protective
services
worker,
testified
that
defendant
admitted
“sharing” child pornography through the Internet.
When
pressed as to what defendant meant by “sharing,” Mr. Joseph
(continued…)
4
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.
Michigan
Constitution
requires
the
jury’s
verdict
unanimous to comply with minimal due process.
The
to
be
Const 1963,
art 1, § 14; see People v Cooks, 446 Mich 503, 510-511; 521
NW2d 275 (1994); Schad v Arizona, 501 US 624, 649-652; 111
S Ct 2491; 115 L Ed 2d 555 (1991) (Scalia, J., concurring).
Unanimity is not a difficulty if there is a single charged
criminal
ways.
act
that
could
have
been
committed
in
various
In such a case, jurors need not agree on the mode of
commission.
Thus, submitting a charge of murder in which
the defendant either killed with premeditation or committed
the murder during the course of a felony does not violate
(…continued)
first admitted he was not an expert, then stated that his
“impression” was that defendant was part of a club. He did
not testify that defendant “stated” he was part of a club.
3
That is, although defendant was charged only once,
the alleged acts could have resulted in three separate
charges.
5
due process because the jury still determines what crime
was committed as a result of the single, unlawful act.
Likewise,
“when
a
statute
lists
alternative
means
of
committing an offense, which means in and of themselves do
not
constitute
unanimity
is
theories.”
separate
not
required
and
distinct
with
regard
offenses,
to
the
jury
alternate
People v Gadomski, 232 Mich App 24, 31; 592
NW2d 75 (1998).
For example, in Gadomski, an instruction
on unanimity was not necessary when the jury was required
to find that the defendant engaged in a specific act of
sexual penetration alleged by the prosecution and that this
act was accompanied by one of three alternative aggravating
circumstances:
(1)
that
the
act
occurred
during
the
commission of a home invasion, see MCL 750.520b(1)(c); (2)
that it involved aiding and abetting and force or coercion,
see MCL 750.520b(1)(d)(ii); or (3) that it caused personal
injury to the victim and involved force or coercion, MCL
750.520b(1)(f).
Id. at 29-31.
But if discrete, specific
acts were committed, each of which is claimed to satisfy
all the elements of the charged crime, the trial court is
required
to
instruct
the
jury
agree on the same specific act.
Here,
required
at
least
materially
two
of
different
6
that
it
must
unanimously
Cooks, supra at 530.
the
alleged
evidence.
criminal
The
act
acts
of
returning the computer to Comcast involved a separate and
different set of facts from those concerning defendant’s
alleged
involvement
in
facilitating
Internet child pornography.
the
exchange
of
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
defendant
due
of
was
not
done,
process.4
and
Schad,
this
supra
deprived
at
650.
Complicating this, however, is the fact that the error was
unpreserved
because
instruction
and
did
defendant
not
did
object
to
not
the
request
such
an
instructions
as
given.
MCL 768.29 provides that “[t]he failure of the court
to instruct on any point of law shall not be ground for
4
The lead opinion in responding to this position
misunderstands it. My position is that all the jurors must
agree on the same incident that establishes the crime. You
cannot, to use this case as the example, have some jurors
using the facts of one incident (the return of the
computer) and others using another incident (the alleged
distribution of pornography over the Internet) to establish
a crime of distribution.
To prevent this, an instruction
telling the jurors that they must agree on not only the
bottom line but also on which incident establishes the
crime was necessary. This was not done here and thus error
requiring reversal occurred. My argument is not predicated
on the consistency of the several verdicts themselves.
Indeed, the verdicts could be consistent and the unanimity
requirement still be violated. Nothing in the lead opinion
responds to this simple point.
7
setting
aside
the
verdict
of
the
jury
unless
such
an
instruction is requested by the accused,” but this statute
can only control if enforcing it would not run afoul of the
Constitution.
In an effort to make such incompatibilities
of statutes and the Constitution as infrequent as possible,
a canon of construction has developed that constrains us to
construe the statute at issue, if possible, in a manner
that does not conflict with the Constitution.
People v
Bricker, 389 Mich 524, 528; 208 NW2d 172 (1973).
People v
Carines, 460 Mich 750, 763-765; 597 NW2d 130 (1999), has
outlined our approach to these cases and holds that with
unpreserved, constitutional error, such as we have here,
the defendant, to secure a reversal, must show that three
requirements are met: “1) error must have occurred, 2) the
error was plain, i.e., clear or obvious, 3) and the plain
error affected substantial rights.”
Id. at 763.
The error here meets all these elements.
could
have
defendant
on
computer.
theory
convicted,
the
basis
and
of
most
his
likely
act
of
The jury
did
convict,
turning
in
the
Alternatively, it could have convicted on the
the
prosecutor
presented
that
acquiring
possessing the material equates with “promotion.”
and
Finally,
it could have convicted him on the basis of a single piece
of
testimony
from
which
one
8
may
infer
that
defendant
distributed the material by uploading it and sending it to
others through the Internet.
While two of these three
theories were impermissible as a matter of law (having no
proof of criminal intent) and the third was permissible, as
I have discussed, there is simply no showing, nor can there
be, that the jurors all agreed on the same incident as the
one in which all elements of the crime were shown.
a violation of the unanimity requirement.
impossible
instructed,
constitutes
to
the
say
that,
outcome
plain
error
had
the
would
that
Moreover, it is
jury
be
This is
been
the
properly
same.
affected
This
defendant’s
substantial rights and the conviction must be reversed.
For the reasons I have stated, I agree with Justice
Kelly’s result of affirming the Court of Appeals reversal
of
defendant’s
child
sexually
conviction
abusive
for
distributing
material
and
I
or
agree
analysis in all but part VI(B).
Clifford W. Taylor
9
promoting
with
her
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 125483
RUSSELL DOUGLAS TOMBS,
Defendant-Appellee.
_______________________________
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
majority
application
view,
the
of
intentionality.
intentionality
of
Under
defendant’s
act
the
is
negated because he allegedly and erroneously believed that
Comcast’s computer technicians would not “discover or view”
the
child
sexually
abusive
material.
The
majority’s
erroneous analysis adds a heightened intent element that is
not constitutionally required and is not found in the plain
language of the statute.
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,
MCL 750.145c(3).
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
Testimony
child
adduced
at
sexually
trial
reveals
abusive
that,
material.
on
the
day
defendant resigned his employment with Comcast, defendant
was
informed
automobile
that
and
he
would
computer
have
the
to
same
return
day.
the
His
company
supervisor,
Christopher Williams, testified that he waited “45 minutes
to
an
hour”
While
en
before
route
proceeding
to
to
defendant’s
residence.
defendant’s
residence,
defendant
telephoned Williams and told Williams that “everything was
ready.”
time
The
than
evidence
requested,
revealed
defendant
that,
although
voluntarily
given
returned
less
the
computer to Comcast.
Moreover, the testimony of David Joseph revealed that
defendant was aware that the prurient material was on the
2
computer
at
testified
material
the
that
would
time
the
defendant
be
computer
was
discovered
was
not
on
returned.
concerned
the
Comcast
Joseph
that
the
computer
because defendant “didn’t feel as though there would be
anybody
that
would
go
through
those
individual
files”
because defendant believed that “the hard drive would sort
of just be wiped out.” Defendant further stated to Joseph
that
he
“didn’t
get
the
opportunity”
to
“expunge
the
material that he knew was offensive.”1 The evidence adduced
clearly
establishes
that
defendant
deliberately
returned
the computer to Comcast, knowing that it contained child
sexually abusive material. Because the statute requires no
more, this should end the inquiry.
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,
1
the
opinion
concludes
While defendant maintained to Joseph that he did not
have the “opportunity” to “expunge” the child pornography,
the testimony in the record indicates otherwise. The
testimony of Sgt. Joseph Duke revealed that a “wiping
program” was installed on the hard drive of defendant’s
computer. Duke further testified that it would have taken
less than fifteen minutes to completely eradicate the child
pornography files from the computer.
3
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.”
The
Ante at 18.
lead
opinion
element
that
is
not
statute
and
that
is
requires
supported
not
a
in
heightened
the
mens
language
constitutionally
rea
of
the
required.
The
opinion cites Morissette v United States,2 Staples v United
States,3
and
support
of
required.
United
the
States
claim
However,
that
those
v
X-Citement
this
cases
additional
do
not
Inc,4
in
element
is
Video,
hold
that
a
defendant’s criminal intent is dependent on the particular
response or reaction of a third party. In each case, the
Supreme Court held that the prosecution was required to
prove a defendant possessed criminal intent,5 either with
regard to the nature of the volitional act (Morissette) or
with regard to the nature of the prohibited goods (Staples
2
342 US 246; 72 S Ct 240; 96 L Ed 288 (1952).
3
511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994).
4
513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994).
5
“Criminal intent” is defined as “[t]he intent to
commit a crime . . . .” Black’s Law Dictionary (5th ed). In
this case, defendant intended to commit a crime, as defined
by our Legislature: he knowingly delivered a computer that
he knew to contain child pornography. The only intent
defendant lacked in this case was the intent to get caught.
4
and
X-Citement).
In
Morissette,
for
example,
the
Court
required the prosecution to prove that the defendant had
the
intent
to
prosecution
intent
to
steal
must
shell
prove
distribute
casings.
that
child
In
defendant
this
had
pornography.
case,
the
See
the
general
People
v
Nowack, 462 Mich 392, 405; 614 NW2d 78 (2000) (requiring
“'the intent to do the physical act'” for a general intent
crime)
(citation
omitted).
The
lead
opinion
transforms
defendant’s admittedly volitional act into a nonvolitional
act on the basis of what defendant expected his employer to
do.
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
6
Those on the lead opinion believe that this specific
intent is required, else “[a]ll the Comcast employees” who
handled the computer files could be convicted of violating
the statute, despite having “no criminal intent.” Ante at
15. However, even under the standard articulated in the
lead opinion, all the witnesses could still be convicted of
violating the statute. Each one of the Comcast employees
intentionally distributed the computer to his superior,
(continued…)
5
It is unclear why the lead opinion requires that a
defendant
specifically
“discover
or
view”
intend
the
his
prurient
or
her
material
recipient
to
in
to
order
“distribute” the material. The plain meaning of the word
“distribute”
does
not
support
such
a
requirement.
The
dictionary definition of “distribute” is: "1. to divide and
give out in shares; allot. 2. to spread throughout a space
or over an area; scatter. 3. to pass out or deliver: to
distribute
pamphlets.
4.
to
sell
(merchandise)
in
a
specified area." Random House Webster's College Dictionary
(2d ed, 1997). Likewise, Black’s Law Dictionary (6th ed)
defines
“distribute”
proportion
or
in
as
“[t]o
shares.”
deal
As
the
or
divide
Court
of
out
in
Appeals
(…continued)
knowing that the computer contained child pornography, and
intending for the recipient to “discover or view” the
material.
Although not directly applicable here, the Legislature
has already taken steps to prevent the prosecution of
people deemed to have no criminal intent. For example, MCL
752.367 contains several exemptions to MCL 750.145c(3). MCL
750.145c has been amended by 2002 PA 629 and 2004 PA 478.
The most recent amendments of MCL 750.145c provide both
civil and criminal immunity from a charge of possession to
computer technicians acting within the scope of their
employment. MCL 750.145c(4)(a) and (9). The Legislature has
also taken steps to provide criminal immunity to police
officers acting within the scope of their employment. MCL
750.145c(4)(b).
It
is
within
the
purview
of
the
Legislature, not the judiciary, to extend this immunity to
the distribution of child pornography.
6
correctly
stated,
the
most
applicable
definition
of
“distribute” is to “pass out or deliver.” Nothing in either
the
lay
dictionary
or
the
legal
dictionary
gives
any
indication that “distribution” requires the recipient to
view
or
appreciate
the
prurient
nature
of
the
material
intentionally distributed.
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
7
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
continuation of this so-called “practice.”7
in
the
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 MCL 750.145c(3).
Apart
from
the
sufficiency
of
the
evidence,
Chief
Justice Taylor raises in his concurrence for the first time
in
these
proceedings
conviction.
Under
the
requirement
this
of
unanimity
constitutional
in
a
requirement,
individual jurors must rely on the same actus reus, despite
the
presence
defendant.
of
alternative
acts,
when
they
convict
a
See People v Cooks, 446 Mich 503, 510-511; 521
7
The lead opinion also notes that defendant had “no
expectation” that defendant’s employer would “search for
and find” the child pornography. Yet this ignores the
uncontroverted evidence that defendant knowingly delivered
the company computer to computer technicians, who would
have no difficulty locating the images “in subfolders seven
directory levels down.” Indeed, one officer located the
materials without difficulty, despite his inexperience with
computer investigations.
8
NW2d 275 (1994).
Here, the Chief Justice’s concern is that
the jury heard evidence regarding two different “acts” that
might
have
met
defendant’s
the
statute
conviction:
and
(1)
might
have
defendant’s
resulted
return
of
in
the
computer to his employer and (2) defendant’s participation
in an Internet club that traded in child sexually abusive
material.
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
showing
of
that
prejudice
the
was
burden
on
the
of
persuasion
defendant).
for
a
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
9
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,
relinquished his employment.
the
day
that
defendant
The social worker’s testimony
did not link defendant’s admission that he participated in
an Internet club to any particular date.
Also, the jury
was instructed to consider only the evidence presented, and
that the arguments made by the attorneys were not evidence.
Thus, I believe that the Chief Justice has established, at
best, the possibility of error; however, it has not been
shown that claimed error affected the outcome of the case.
More fundamentally, defendant must make this showing rather
than rely on the Chief Justice to make it on an issue not
preserved below
In
evidence
and not argued before this Court.
conclusion,
to
convict
the
prosecutor
defendant
of
presented
sufficient
distribution
of
sexually abusive material under MCL 750.145c(3).
child
While I
agree that an intent requirement is properly imputed to the
“distributes
or
promotes”
prosecution
put
defendant’s
conviction.
forward
element
of
sufficient
Defendant
10
the
evidence
statute,
to
intentionally
the
sustain
delivered
the computer to his employer, knowing that the computer
contained child sexually abusive material at the time of
its
return.
requirement
The
that
majority
errs
defendant
in
imputing
intend
his
a
heightened
recipient
to
“discover or view” the material. Because this requirement
is
neither
constitutionally
nor
statutorily
required,
I
dissent from its adoption. I would reverse the decision of
the Court of Appeals and reinstate defendant’s conviction.
Maura D. Corrigan
Elizabeth A. Weaver
Robert P. Young, Jr.
11
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