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Statutory Interpretation: Sometimes It Is Easier Than It Appears.

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The 2002 amendment was created for two purposes.45 First, the legislature wanted to increase the punishment for possessing child sexually abusive material from a misdemeanor to a felony.46 Second, the legislature worried about the creation of life-like versions of children engaging in sexual abusive conduct because of the difficulty in determining the legitimacy of computer generated images.47 The legislature, therefore, drafted the definition of computer generated images in light of the United States Supreme Court opinion in Ashcroft v. Free Speech Coalition.48

The Michigan Court of Appeals explained that the legislature intended to protect and prohibit the sexual exploitation of children.49 The prosecution does not have to necessarily show that the depiction involved a child engaging in a sexual activity, rather the prosecution need only show that the defendant made “a visual image that is [of the] likeness or representation of a child engaging in one of the listed sexual acts” noted in § 750.145c.50

The court, in People v. Riggs, further explained that the missappropriation of an innocent image, containing a child, does not always rise to the level of indecency.51 It inevitably held that a defendant “produces” child sexually abusive material when he or she missappropriates an otherwise innocent depiction of a child.52 The Michigan Court of Appeals was faced with a similar question that it answered in Riggs;53 however, in People v. Turner, the defendant did not edit the material to reveal specific sexual areas of the body more than once nor was the video slowed down.54Therefore, Turner was different than Riggs because the defendant did not formally “produce” abusive material; he instead merely “possessed” material that contained decpitons of child sexually abusive material.55

The Michigan Supreme Court denied leave in People v. Hartman where the defendant had plead guilty to three counts of making child sexually abusive material.56 The defendant “downloaded child sexually abusive material . . . and saved it to a flash drive.”57 However, the majority explained that it was “not persuaded [by] the question presented” nor should it be reviewed by the Court,58 and thus concluded that the defendant “produced” child sexually abusive material. Three Justices dissented and explained that they would have granted leave because they failed to believe that the factual basis of his plea properly substantiated a charge of “production.”59

  iii.     People v. Hill – Procedural History:

1.    Hill’s First Appeal:

The Michigan Supreme Court recently determined the scope of § 750.145c(2) by defining a key term in the statute, “production.”60 To fully understand Hill’s history it is best to see where it began.

Hill’s first appeal focused on the circuit court’s denial of his motion to quash on grounds that the evidence presented did not substantiate a crime under § 750.145c(2) and that the statute was unconstitutionally vague.61 Ultimately, the Court of Appeals rejected his arguments, and inevitably so did the Michigan Supreme Court when it denied hearing his case on two separate appeals.62 The denial for leave and reconsideration were 4-3 splits—the Justices voted the same each time63—however, Justice Hathaway flipped sides three years later creating a “new” majority.64

Prior to Hill filing his second appeal with the Michigan Court of Appeals for determination on the circuit court’s findings, Hill sought relief in the Federal Court where he argued, as applied to him, that § 750.145c(2) was vague, and thus unconstitutional.65 Federal courts will not become involved in state proceedings unless there are extraordinary circumstances demanding its attention.66 The court also noted that “an attempt to dismiss an indictment or otherwise prevent a prosecution protects the defendant from prejudice,” but normally it is not attainable during a pretrial motion—the issue in that case.67

2.    Hill’s Second Appeal

a.    Court of Appeals’ Opinion

The second time around, the Court of Appeals determined that Hill was correctly convicted during a bench trial; however, the court remanded the case for resentencing.68 The Court of Appeals reaffirmed its 2006 opinion where it interpreted the applicability of § 750.145c(2).69

The facts of Hill’s case are as followed: two witnesses, or foreign exchange students, that lived with Hill testified and informed officers that Hill videotaped them while they used Hill’s bathroom.70 When law enforcement investigated Hill’s home they found twenty-two CD-R’s that contained over 3,000 photographs of children in “sexually deviant positions.”71 The issue for the court was whether the act of “copying” or “burning” images to the CD-R’s amounted to the acts described in § 750.145c(2),72 which states that “an individual [who] arranges for, produces, makes, or finances child sexually abusive material” is guilty of a felony.73

When interpreting § 750.145c, as applied to Hill and in light of § 750.145c(1)(m)—the definition of child sexually abusive material,74 the court explained that:

[when r]eading the two provisions together [it] concluded that [the l]egislature intended to subject a person to a maximum term of [twenty] years’ imprisonment, where the individual arranges for, produces, or makes . . . any reproduction, copy, or print of a photograph, picture, film slide, video, electronic generated image depicting a child engaging in sexual acts.75

Therefore, Hill inevitably made a reproduction of children engaging in sexually abusive acts because he downloaded the material from the Internet and then copied (or burned) that material onto CD-R’s.76 The court rejected the argument that a CD-R was simply a mechanism for storing data.77 Hill did more than merely possess child sexually abusive material because the act of storing and possessing the images was brought on by the act of “copying” or “reproducing” the images.78 The court explained that the plain definition of “make” states: “to bring into existence by shaping, changing, or combining material,” and thus it encompasses the act of copying and reproducing.79

The court was concerned with whether its holding would conflict with its decision in People v. Tombs, where it was determined that the specific intent to commit the crime must be shown.80 The court wanted to make it clear that it was not holding, as Hill believed, that possession “equates [to] the making and production of” something, but rather “two distinct crimes” are stated within § 750.145c(2).81 Therefore, there was a showing of more than mere “possession,” or in other words, Hill produced child sexually abusive material.82

  1. b.   Michigan Supreme Court – Majority Opinion

Prior to the Michigan Supreme Court’s ultimate decision in Hill, the Court had seen the case on two prior occasions; therefore, it was very familiar with the factual background.83 The Court granted leave on a narrow set of issues, which included whether the Court of Appeals correctly interpreted § 750.145c(2) and whether the facts of Hill’s case substantiate an act of “production.”84 The Court reviewed the Court of Appeals’ decision under a de novo standard,85 and it inevitably overruled the Court of Appeals, explaining that Hill’s act of “copying” did not constitute a “production” pursuant to § 750.145c(2).86

The Court began its analysis by explaining that the legislature clearly intended to have three distinct and separate crimes involving child sexually abusive material.87 The Court then explained that because of the  words “arranges for” and “finances,” their given definitions, and the definitions of “make” and “produce,” it is clear that the legislature intended to only include the original creator within the scope of § 750.145c(2).88

The Court explained that the intended meaning of the words “produce” and “make” should be inferred from the context and phrases used in the statute—also known as the “doctrine of noscitur a sociis.”89 It then explained that someone who downloads a video or song and then burns (or copies) it to a CD-R or DVD-R would not ordinarily be considered as the producer or creator of the copied or reproduced material.90

The Court then went on to explain that just because “the definition of child sexually abusive material . . . includes” material that is copied or reproduced “does not provide particular insight into what ‘make’ or ‘produce’ means” within the confines of § 750.145c(2).91 Therefore, copies or reproductions can only be associated with crimes of knowingly possessing, distributing, or “arranging for, producing, making or financing a copy of” child sexually abusive material.92 The factual content of the charge against Hill only revealed five counts of production—or five copies of a single image—after officers searched through approximately 70,000 photos in fifty-two different locations.93 The Supreme Court held that this evidence was not adequate to prove, beyond a reasonable doubt, that Hill had a criminal intent to “produce” child sexually abusive material.94

  1. c.    Michigan Supreme Court – Dissenting Opinion

There were three dissenters in this opinion;95 the same Justices that voted to deny Hill’s first two appeals to the Supreme Court, minus Justice Hathaway who decided with the “new” majority.96 The dissenting justices believed that Hill had intentionally created a copy or reproduction, and thus could be charged under § 750.145c(2).97

The dissent believed that the statute allowed for Hill to be charged under § 750.145c(2) because he admitted to making copies of child sexually abusive material (or pornography that appeared to be child sexually abusive material).98 Further, it believed that the language of the statute does not limit “production” to the orignal creator or producer; therefore, it allowes for those who “produce” copies of child sexually abusive material, for personal-use, to be convicted under § 750.145c(2).99The dissent agreed with the majority when it explained that § 750.145c is a graduated scheme.100

However, it pointed out that § 750.145c(2) contains a conjunction between the clause “a person who ‘persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a’” sexually abusive act and the clause a “person ‘who arranges for, produces, makes, or finances any child sexually abusive material.’”101 Therefore, the first clause encompasses those individuals who originally create child sexually abusive material (through the use of enticement or coercion), and the second clause encompasses those individuals who “produce” or “make” child sexually abusive material through any other means.102 Further, by statutorily indicating that any depiction can amount to child sexually abusive material, the legislature intended for § 750.145c to be construed broadly.103

The dissent explained that the question proposed is “quite simple: did [Hill] ‘produce or make’ a ‘reproduction or copy’ of an ‘electronic visual,’ or other ‘visual’ . . . medium when he” deliberately created a copy of the material later discovered?104 The dissent further stressed that the majority failed to recognize that Hill took additional steps of burning the copied image to a CD-R for his personal use, and it also failed to show that the legislature did not intend for those who originally create child sexually abusive material to be the only individuals guilty of production.105

 iv.     Post–People v. Hill

The Michigan Supreme Court has issued two separate opinions reaffirming its holding in Hill.106 The Court vacated the conviction of a defendant and remanded the case back to the circuit court for new proceedings in People v. Twichell and explained that the circuit court’s opinion should be consistent with the opinion set forth in Hill.107In People v. Carpenter, the Court again remanded a defendant’s case back to the circuit court and granted his plea to vacate for lack of evidence substantiating that he was the original creator of the material in question.108 Carpenter was, therefore, held to be inconsistent with the decision in Hill.109 In both Twichell and Carpenter, Justice Corrigan and Justice Young concurred with the majority’s opinion; however, they both reiterated that they disagreed with the majority opinion in Hill.110

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