PEOPLE OF MI V RUSSELL DOUGLAS TOMBS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
December 30, 2003
9:00 a.m.
Plaintiff-Appellee,
v
No. 236858
Macomb Circuit Court
LC No. 00-003534-FH
RUSSELL DOUGLAS TOMBS,
Defendant-Appellant.
Updated Copy
March 12, 2004
Before: Cavanagh, P.J., and Gage and Zahra, JJ.
ZAHRA, J.
A jury convicted defendant of distributing or promoting child sexually abusive material,
MCL 750.145c(3); possession of child sexually abusive material, MCL 750.145c(4); and using
the Internet or a computer to communicate with any person to commit conduct proscribed under
MCL 750.145c(4) (possession of child sexually abusive material), MCL 750.145d. The trial
court sentenced1 defendant to concurrent prison terms of seventeen to eighty-four months'
imprisonment for his conviction of distributing or promoting child sexually abusive material,
sixteen to twenty-four months' imprisonment for his conviction of using the Internet or a
computer to possess child sexually abusive material, and 365 days in jail for his conviction of
possession of child sexually abusive material. Defendant appeals as of right. The most
significant issue presented on appeal is whether defendant may be found to have distributed child
sexually abusive material in violation of MCL 750.145c(3) on the basis that he returned to his
employer a laptop computer that contained within it child sexually abusive material. We hold
that this conduct did not violate MCL 750.145c(3). We therefore reverse defendant's conviction
and sentence for distributing or promoting child sexually abusive material. We affirm
defendant's remaining convictions and sentences.
I. Basic Facts and Proceedings
1
This Court previously remanded this case for resentencing. People v Tombs, unpublished order
of the Court of Appeals, entered July 16, 2002 (Docket No. 236858).
-1-
Defendant was a field technician for Comcast OnLine (Comcast), a branch of the
Comcast cable company that provides cable Internet access. Comcast provided defendant with a
laptop computer for employment-related use. Before the computer was issued to defendant, the
hard drive was "cleaned" of its prior contents.
On August 9, 2000, defendant unilaterally terminated his employment with Comcast.
Defendant called Christopher Williams, an employee of Comcast, and stated that he would return
Comcast's equipment and work van the ensuing weekend. However, Williams advised defendant
that the equipment would be collected that day. Defendant informed Williams that the work van
would be parked in front of defendant's house, and that the keys and the Comcast equipment
would be inside the van. Williams picked up the van and the equipment, including the laptop
computer.
Williams returned to Comcast's office and began assessing whether the computer needed
to be reformatted before being issued to another technician. Williams found files on the
computer that contained pictures of a partially naked young girl. Williams gave the computer to
Carl Radcliff, a data support technician for Comcast. Radcliff testified that he eventually found
"a series of child pornography" when he was searching picture files known as "JPG" files on the
computer. Radcliff indicated that the pornographic material on the computer was not in a readily
available location because it was "buried inside of what's known as a user profile." Radcliff then
took the computer to Stephen Hill, a Comcast system engineer, informed Hill what he had found
on the computer, and recommended turning the matter over to the authorities. Hill forwarded the
computer to Danielle Kolomyjec, who worked in the personnel department of Comcast.
Kolomyjec turned the computer over to Ronald Hanoka, Comcast's security director for the
Midwest division. Hanoka immediately took the computer to Detective Edward Stack of the St.
Clair Shores Police Department.
Detective Stack testified that he and another detective accessed JPG files in the computer
and, in short, found images of child pornography. Sergeant Jospeh Duke, the supervisor of the
Computer Crimes Unit of the Oakland County Sheriff 's Department, found over five hundred
images that he believed qualified "as either child sexually abusive material or child erotica" on
the computer. Sergeant Duke believed that the photographs originated from the Internet.
Sergeant Duke also indicated that although the hard drive of the computer could have been
reformatted so that its files would not be accessible, the files were difficult to find and he "had to
go down 7 directory levels from the root to get to the images that were shown to the jury."
Defendant was arrested and a search of defendant's home revealed additional child
sexually abusive material. In sum, Sergeant Duke's investigation discovered over 6,500
photographs that qualified as child sexually abusive material or "child erotica," and books and
computer text files that described "fantasy stories about the molestation of children." At the time
of defendant's arrest, defendant denied knowledge of child pornography on the computer.
David Joseph, a children's protective services worker with the Family Independence
Agency, interviewed defendant because there was evidence of defendant's involvement with
child pornography and there were two minor children in defendant's home. Joseph indicated that
defendant initially denied responsibility for the child pornography found on the computer.
-2-
Joseph testified that defendant eventually stated that defendant's wife had been "emotionally
unavailable" to defendant and that "he turned to the Internet and began exploring pornography
which initially started out as adult material." Joseph indicated that defendant told him that
at some point he encountered child pornography; and I remember specifically he
likened it to something of a train wreck or a car accident where he couldn't really
account for why it is that he found this materials [sic] attractive, but had
developed sort of an appetite for these things and began accumulate [sic]
photographs on the Internet, downloading and sharing pornography involving
children.
Joseph also testified in regard to other statements that defendant made to him about child
pornography:
If I recall he had several computers in the house; and he said he had
basically amassed quite a collection over a period of four years; and that he was
growing more concerned about whether or not his children or his wife would
stumble upon these computers—these images on the computer; and he had begun
basically a systematic sort of disassembly of the computers so that they wouldn't
be accessible to other family members, and that he would store the materials for
his own use on the laptop, the Comcast computer. And I inquired of him at that
point, was he concerned about somebody else finding the Comcast computers,
and he indicated that typically when a Comcast employee leaves the employment,
the laptop is basically reinstalled with new programs, and that he didn't feel as
though there would be anybody that would go through those individual files—that
his belief was that the Comcast computer would just sort of be—and I'm not a
computer expert, but that the hard drive would sort of just be wiped out. The
necessary Comcast programs would be reinstalled, and that no one would
discover his images of the pornography on the computer.
Joseph indicated that defendant said he found child pornography sexually gratifying. Defendant
replied, "[c]orrect" when asked if "he had gotten these [child pornography] images from the
Internet and from sharing with others." Joseph also said that it was his impression from talking
with defendant that "he was a part of a club, if you will, of people that found images of children
sexually gratifying and would exchange and get and give material." When asked if this was "a
computer Internet club type thing," Joseph replied, "[c]orrect."
II. Analysis
A. Sufficiency of the Evidence
Defendant argues that there was insufficient evidence to establish that he distributed child
sexually abusive material in violation of MCL 750.145c(3). Due process requires that a
prosecutor introduce evidence sufficient to justify a trier of fact to conclude that the defendant is
guilty beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999).
"'[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a
-3-
court must view the evidence in a light most favorable to the prosecution and determine whether
any rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt.'" People v Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002), quoting
People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992). Underlying issues of statutory
interpretation are reviewed de novo. People v Morey, 461 Mich 325, 329; 603 NW2d 250
(1999).
Defendant was convicted of distributing child sexually abusive material in violation of
MCL 750.145c(3), which provided2 in relevant part:
A person who distributes or promotes, or finances the distribution or
promotion of, or receives for the purpose of distributing or promoting, or
conspires, attempts, or prepares to distribute, receive, finance, or promote any
child sexually abusive material or child sexually abusive activity is guilty of a
felony, punishable by imprisonment for not more than 7 years, or a fine of not
more than $50,000.00, or both, if that person knows, has reason to know, or
should reasonably be expected to know that the child is a child . . . .
At trial, the prosecution argued that defendant distributed child sexually abusive material
by returning to Comcast the computer that contained such material. The prosecutor also argues
on appeal that defendant promoted and distributed child sexually abusive material to others over
the Internet. While there is evidence supporting this theory of distribution through the Internet,
the jury specifically found defendant not guilty of using a computer to promote or distribute
child sexually abusive material. Moreover, the jury verdict indicated that defendant used the
Internet or a computer only to possess child sexually abusive material. 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.
On appeal, defendant argues that the prosecutor's case relies on a construction of the
statute that is inconsistent with the common and accepted meaning of the word "distributes."
Defendant maintains that, given the common and accepted meaning of the word "distributes," he
did not distribute child sexually abusive material because he did not intend for anyone to see the
material on the computer.
To ascertain the meaning of the word "distributes" in MCL 750.145c(3), we apply the
following rules of statutory interpretation.
2
MCL 750.145c(3) was amended after the conclusion of the lower court proceedings in this
case. 2002 PA 629. The relevant language of the statute is unchanged.
-4-
The primary goal of statutory interpretation is to ascertain and give effect
to the intent of the Legislature. In re MCI Telecom Complaint, 460 Mich 396,
411; 596 NW2d 164 (1999); Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456
Mich 511, 515; 573 NW2d 611 (1998). Initially, we review the language of the
statute itself. House Speaker v State Admin Bd, 441 Mich 547, 567; 495 NW2d
539 (1993). If the statute is unambiguous on its face, the Legislature is presumed
to have intended the meaning plainly expressed and further judicial interpretation
is not permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844
(1992).
"Only where the statutory language is ambiguous may a court properly go
beyond the words of the statute to ascertain legislative intent." Sun Valley Foods
Co v Ward, 460 Mich 230, 236;596 NW2d 119 (1999). An ambiguity of statutory
language does not exist merely because a reviewing court questions whether the
Legislature intended the consequences of the language under review. An
ambiguity can be found only where the language of a statute as used in its
particular context has more than one common and accepted meaning. Thus,
where common words used in their ordinary fashion lead to one reasonable
interpretation, a statute cannot be found ambiguous. [Colucci v McMillin, 256
Mich App 88, 94; 662 NW2d 87 (2003).]
The word "distributes" is not defined in the statute, nor is there any published cases
interpreting the meaning of "distributes" in MCL 750.145c(3). "Where the Legislature has not
expressly defined the common terms used in a statute, this Court may turn to dictionary
definitions 'to aid our goal of construing those terms in accordance with their ordinary and
generally accepted meanings.'" In re Certified Question from United States Court of Appeals for
Sixth Circuit, 468 Mich 109, 113; 659 NW2d 597 (2003), quoting People v Morey, 461 Mich
325, 330; 603 NW2d 250 (1999). "Distribute" has several definitions, including: "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." (emphasis
in original). Random House Webster's College Dictionary (2nd ed) (1997). As applied here, one
definition of "distributes," i.e., delivers, describes defendant's conduct. However, the remaining
definitions are not applicable to defendant's conduct. Thus, because the word "distributes"
comprises several definitions that each describes different conduct, we conclude that a single
common meaning of the word "distributes" cannot be ascertained.
The ambiguity of the word "distributes" was further shown during the jury's deliberations
in this case. The record reflects that the jury expressed confusion in applying the word
"distributes" without regard to a mens rea requirement corresponding to the act of distribution.3
The jury requested clarification on the definition and meaning of the word "distributes." The
3
The jury specifically asked the trial court whether intent is a factor in applying the word
"distributes."
-5-
trial court declined to define the word "distributes" for the jury, and, instead, left it to the jurors
to define and give meaning to the word.
The prosecution's construction of the statute interprets the word "distributes" broadly.
Applied here, the prosecution claims that the act of delivering the computer with the
objectionable material contained within it constitutes distribution of child sexually abusive
material in contravention of MCL 750.145c(3). The prosecution advocates a construction of the
statute that does not require that defendant possessed a mens rea for the act of distribution.
Defendant argues that the word "distributes" should be construed to imply a mens rea
requirement that narrows the scope of the word "distributes." Specifically, he argues that each of
the definitions of the word "distributes" implies an intent to disseminate with a purpose.
Defendant argues that his interpretation of "distributes" is supported by the statute, which
contains terms and phrases indicative of commercial or purposeful distribution: "finances the
distribution or promotion," or "receives for the purpose of distributing or promoting," or
"conspires," "attempts," or "prepares to distribute, receive, finance, or promote."
We conclude that the word "distributes" is ambiguous as used in this statute. Reasonable
minds can differ concerning the meaning of this statute, and therefore judicial construction of the
statute is appropriate. Colucci, supra at 94. The prosecution's construction of the word
"distributes" is exceedingly broad, only requiring as evidence to support a conviction that an
actor in possession of child sexually abusive material transfers possession of such material to
another person. On the other hand, defendant's construction, while rational, relies on implication
of a mens rea requirement that is not expressly stated in the statute.
When faced with an ambiguity in a statute, "we should give effect to the interpretation
that more faithfully advances the legislative purpose behind the statute." People v Adair, 452
Mich 473, 479-480; 550 NW2d 505 (1996). In doing so, we consider "the object of the statute in
light of the harm it is designed to remedy, and strive to apply a reasonable construction that will
best accomplish the Legislature's purpose." Marquis v Hartford Accident & Indemnity (After
Remand), 444 Mich 638, 644; 513 NW2d 799 (1994), and People v Rehkopf, 422 Mich 198, 207;
370 NW2d 296 (1985).
The purpose of this statute is to prohibit the dissemination of child sexually abusive
material in the state of Michigan. Without reference to an actor's intent in regard to the act of
distribution, the statute prohibits all transfers of such material, including transfers to proper
authorities or the disposal of the material. Clearly, the Legislature did not intend to prohibit
these transfers of child sexually abusive material. In addition, construing the word "distributes"
in a way that would prohibit transfers of child sexually abusive material to proper authorities is
not related to any plausible harm that the statute is designed to prevent. Therefore, we seek a
narrowing construction of the word "distributes" to best accomplish the purpose of the statute.
-6-
In United States v X-Citement Video, Inc, 513 US 64; 115 S Ct 464; 130 L Ed 2d 372
(1994), the United States Supreme Court interpreted a statute similar to MCL 750.145c(3).4 In
X-Citement Video, Inc, the owner and operator of X-Citement Video, Inc (Rubin Gottesman),
sold an undercover police officer forty-nine pornographic videotapes featuring an underage
participant. Evidence at trial suggested that Gottesman was fully aware of the underage
participant. He was convicted for knowingly transporting or distributing a visual depiction that
involved the use of a minor engaging in sexually explicit conduct in violation of 18 USC 2252.
On appeal, Gottesman argued that 18 USC 2252 was unconstitutional on its face because it
lacked a necessary scienter requirement. Apparently, without a scienter requirement, a defendant
could be convicted of knowingly transporting or distributing a visual depiction involving the use
of a minor engaging in sexually explicit conduct without knowing that the depiction was of a
minor. For instance, the Court noted that a Federal Express courier may knowingly transport a
package containing such a depiction and violate the statute, even though the courier did not know
the contents of the film. X-Citement Video, Inc, supra at 66-70.
4
In X-Citement Video, Inc, the Court addressed a similar statute that at that time stated:
"(a) Any person who—
"(1) knowingly transports or ships in interstate or foreign commerce by
any means including by computer or mails, any visual depiction, if-"(A) the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and
"(B) such visual depiction is of such conduct;
"(2) knowingly receives, or distributes, any visual depiction that has been
mailed, or has been shipped or transported in interstate or foreign commerce, or
which contains materials which have been mailed or so shipped or transported, by
any means including by computer, or knowingly reproduces any visual depiction
for distribution in interstate or foreign commerce or through the mails, if—
"(A) the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and
"(B) such visual depiction is of such conduct;
* * *
"shall be punished . . . . [X-Citement Video, Inc, supra at 68, quoting 18
USC 2252 (1988 ed and Supp V).]
-7-
Initially, the Court found that 18 USC 2252 was akin to the "common-law offenses
against the 'state, the person, property, or public morals,'" X-Citement Video, Inc, supra, at 71,
quoting Morissette v United States, 342 US 246, 255; 72 S Ct 240; 96 L Ed 288 (1952), "that
presume a scienter requirement in the absence of express contrary intent." X-Citement Video,
Inc, supra at 71-72. The Court then addressed the issue as whether the scienter requirement
"knowingly," which expressly modified the acts of transporting or distributing, also modified the
element that required that the prohibited material depict a minor engaging in sexually explicit
conduct. Id. at 68. The Court held that due process required that the word "knowingly" modify
this phrase, in part because of "the respective presumptions that some form of scienter is to be
implied in a criminal statute even if not expressed, and that a statute is to be construed where
fairly possible so as to avoid substantial constitutional questions." Id. at 69. Moreover, the
Court indicated its concern that without such a interpretation, the statute "'criminalize[s] a broad
range of apparently innocent conduct.'" Id. at 71, quoting Liparota v United States, 471 US 419,
426; 105 S Ct 2084; 85 L Ed 2d 434 (1985).
The analysis employed by the United States Supreme Court in X-Citement Video, Inc, is
instructive here. MCL 750.145c(3), which is similar to 18 USC 2252, is likewise akin to the
"common-law offenses against the 'state, the person, property, or public morals,'" X-Citement
Video, Inc, supra, at 71, quoting Morissette, supra, at 255.5 Consequently, a mens rea
requirement may be presumed in the absence of an express contrary intent. X-Citement Video,
Inc, supra at 71-72.6 Further, MCL 750.145c(3) presents concerns that it "'criminalize[s] a broad
5
Similarly, MCL 750.145c(3) is not a public welfare offense. "Persons do not harbor settled
expectations that the contents of magazines and film are generally subject to stringent public
regulation. In fact, First Amendment constraints presuppose the opposite view." X-Citement
Video, Inc, supra at 71
6
MCL 750.145c(3) has been amended three times over several years. However, the 1988
amendment may explain why the act of distribution contains no express mens rea requirement.
MCL 750.145c(3), as added by 1977 PA 301, effective March 30, 1978, stated:
A person who commercially distributed or promotes, or finances the
distribution or promotion of, or receives for the purpose of commercially
distributing or promoting, or conspires, attempts, or prepares to so distribute,
receive, finance, or promote any child abusive commercial material or child
abusive commercial activity is guilty of a felony . . . .
Child abusive commercial material or child abusive commercial activity was defined solely in
relation to a "commercial purpose." MCL 750.145c(3) (1978). "Commercial purpose" was
defined in 1977 PA 301 to mean "any purpose for which monetary gain or other remuneration
could reasonably be expected or anticipated, or has already been received or arranged for." MCL
750.145c(1)(b).
In 1988, the Legislature substantially amended the statute and eliminated all references to
"commercial purpose." 1988 PA 110. This amendment of MCL 750.145c(3) thus reflects an
intent to eliminate the requirement of a "monetary gain or other remuneration . . . ." However,
(continued…)
-8-
range of apparently innocent conduct.'" X-Citement Video, Inc, supra at 71, quoting Liparota,
supra at 426. Here, several of the prosecution's witnesses, including Williams, Radcliff, Hill,
Kolomyjec, and perhaps, Hanoka, "distributed" child sexually abusive material by handing over
the computer to another person.7 Indeed, the conduct of the prosecution's witnesses may more
fairly be characterized as distribution of offensive material than defendant's conduct; the
prosecution's witnesses distributed the computer with instructions on how to make child sexually
abusive material accessible, while the material that defendant distributed was not accessible to
the average person. Thus, the absence of a mens rea requirement permits the statute to be
construed in a manner that "'criminalize[s] a broad range of apparently innocent conduct.'" XCitement Video, Inc, supra at 71, quoting Liparota, supra at 426.
Consistent with X-Citement Video, Inc, we conclude that MCL 750.145c(3) requires an
intent to disseminate child sexually abusive material to others.8 We first note that a mens rea
requirement is easily implied in this statute because it contains terms and phrases indicative of
purposeful conduct. Also, this requirement of intent serves to separate those who understand the
wrongful nature of their act from those who do not, United States v Feola, 420 US 671, 685; 95
S Ct 1255; 43 L Ed 2d 541 (1975), which resolves the ambiguity in the statute so as to avoid
substantial constitutional questions.
Therefore, we resolve the ambiguity of the word "distributes" by giving effect to the
Legislature's intention to prevent the dissemination of child sexually related material by
requiring an intent to disseminate child sexually abusive material to others. Our construction of
the word "distributes," on one hand, addresses the dissemination of child sexually abusive
material regardless of the size of such dissemination, while, on the other hand, resolves the
uncertainly of guilt through the incorporation of a mens rea requirement in cases where an actor's
conduct is inconsistent with an intent to disseminate.
Applying our construction of MCL 750.145c(3) to this case, we conclude that the
prosecution failed to present evidence that defendant intended for anyone to see or receive child
(…continued)
the elimination of the "commercial purpose" requirement does not mean that the Legislature also
intended to eliminate all mens rea in regard to the act of distribution.
7
We recognize that, "outside the context of the First Amendment, 'one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that impliedly it
might also be taken as applying to other persons or other situations in which its application might
be unconstitutional.'" People v Lynch, 410 Mich 343, 352; 301 NW2d 796 (1981), quoting
United States v Raines, 362 US 17, 21; 80 S Ct 519; 4 L Ed 2d 524 (1960). Here, however, we
are merely relying on evidence contained in the lower court to resolve a statutory ambiguity.
8
We are cognizant of our Supreme Court's numerous admonitions to avoid reading into a statute
matters not clearly supported by the language of the statute. We do so here because (1) we
conclude the statute is ambiguous, and (2) where we can fairly do so, we are bound to interpret
the statute so as to avoid substantial constitutional questions. Reading the word "distributes" to
require a mens rea eliminates all constitutional doubts. See X-Citement Video supra, Inc, supra
at 78.
-9-
sexually abusive material when returning the computer to his employer. Therefore, insufficient
evidence was presented that defendant distributed child sexually abusive material in violation of
MCL 750.145c(3). We reverse defendant's conviction and sentence for distributing or promoting
child sexually abusive material in violation of MCL 750.145c(3).
B. Vagueness
Defendant next argues that his conviction of using the Internet or a computer to
communicate with any person to possess child sexually abusive material is invalid because the
phrase "communicate with" found in MCL 750.145d(1) is unconstitutionally vague.9 "This
Court reviews de novo a challenge to the constitutionality of a statute under the void-forvagueness doctrine." People v Beam, 244 Mich App 103, 105; 624 NW2d 764 (2000).
A statute may be challenged for vagueness on three grounds: (1) It does not provide fair
notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited
discretion to determine whether an offense has been committed; (3) its coverage is overbroad and
impinges on First Amendment freedoms. People v Howell, 396 Mich 16, 20; 238 NW2d 148
(!976), citing Grayned v Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972).
"[V]agueness challenges to statutes which do not involve First Amendment freedoms must be
examined in the light of the facts of the case at hand." Howell, supra at 21, citing United States v
Nat'l Dairy Products Corp, 372 US 29; 83 S Ct 594; 9 L Ed 2d 561 (1963).
Due regard for principles of standing, and recognition that declaring a
statute unconstitutional is "'the gravest and most delicate duty that this Court is
called on to perform,'" mandate that, outside the context of the First Amendment,
"one to whom application of a statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might also be taken as applying to other
persons or other situations in which its application might be unconstitutional."
[People v Lynch, 410 Mich 343, 352; 301 NW2d 796 (1981), quoting United
States v Raines, 362 US 17, 20; 80 S Ct 519; 4 L Ed 2d 524 (1960), quoting
Blodgett v Holden, 275 US 142, 148; 48 S Ct 105; 72 L Ed 206 (1927), and
quoting Raines, supra at 21.]
Because defendant does not claim that the conduct of which he is accused is constitutionally
protected by the First Amendment, we examine defendant's vagueness challenges in light of the
facts of this case.
9
Defendant also argues that his conviction of distributing or promoting child sexually abusive
material is invalid because the words "distributes" and "promotes" found in MCL 750.145c(3)
render the statute unconstitutionally vague. However, in light of our interpretation of MCL
750.145c(3), earlier in this opinion, this issue need not be addressed. We nonetheless note that a
similar statute was interpreted and found constitutional by the United States Supreme Court.
New York v Ferber, 458 US 747; 102 S Ct 3348; 73 L Ed 2d 1113 (1982).
-10-
MCL 750.145d provides, in relevant part:
A person shall not use the internet or a computer, computer program,
computer network, or computer system to communicate with any person for the
purpose of doing any of the following:
(a) Committing, attempting to commit, conspiring to commit, or soliciting
another person to commit conduct proscribed under . . . [MCL 750.145c] . . . .
[MCL 750.145d(1).][10]
MCL 750.145c(4) provided at the time relevant to this action:
A person who knowingly possesses any child sexually abusive material is
guilty of a misdemeanor . . . .[11]
When this statute is examined in light of defendant's admitted possession of child
sexually abusive material, which he acquired by downloading it onto the computer, we conclude
that this statute is not unconstitutionally vague. The common meaning of the phrase,
"communicate with," adequately encompasses defendant's actions in receiving child sexually
abusive material through the use of a computer. Defendant's receipt of child sexually abusive
material through the computer indicates that he communicated his desire to receive such material
through the computer. Moreover, the phrase, "communicates with," does not confer unlimited
discretion to the trier of fact to determine whether the statute has been violated. The phrase,
"communicate with" is fairly ascertainable by persons of ordinary intelligence and may be
readily applied in the context of using a computer. Moreover, the statute's mens rea requirement
limits the trier of fact's discretion in determining whether the statute has been violated. See New
York v Ferber, 458 US 747, 765, 766; 102 S Ct 3348; 73 L Ed 2d 1113 (1982); People v PerezDeLeon, 224 Mich App 43, 49-51; 568 NW2d 324 (1997). Therefore, MCL 750.145d is not
unconstitutionally vague as applied to defendant.
C. Other Issues
Defendant next argues that his convictions of distributing child sexually abusive material
and possessing child sexually abusive material violated his double jeopardy rights. In light of
our prior conclusion in regard to defendant's conviction of distributing child sexually abusive
material, this issue need not be addressed. People v Bearss, 463 Mich 623, 631; 632-633; 625
NW2d 10 (2001). Defendant last argues that the trial court improperly assessed defendant ten
10
MCL 750.145d was amended after the conclusion of the lower court proceedings in this case.
2000 PA 185. The amendments are not relevant to this case.
11
MCL 750.145c(4) was amended after the conclusion of the lower court proceedings in this
case. 2002 PA 629. The amendments are not relevant to this case. We do note that a violation
of former MCL 750.145c(4) was punishable as a misdemeanor, but that a violation of the current
MCL 750.145c(4) is punishable as a felony.
-11-
points under Offense Variable 9, in establishing his sentencing guideline range. However,
defendant has already served his minimum sentence. Therefore, because this Court is unable to
provide a remedy for the alleged error, the issue is moot and need not be addressed. People v
Rutherford, 208 Mich App 198, 204; 526 NW2d 620 (1994).
III. Conclusion
We construe MCL 750.145c(3) to require evidence of an intent to disseminate child
sexually abusive material to others. The prosecution failed to present sufficient evidence that
defendant intended to disseminate child sexually abusive material to others. We reverse
defendant's conviction and sentence for a violation of MCL 750.145c(3). We affirm defendant's
remaining convictions and sentences.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Hilda R. Gage
-12-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
