Order Michigan Supreme Court
Lansing, Michigan
February 1, 2008 Clifford W. Taylor,
Chief Justice
135038 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 135038
COA: 279313
St. Joseph CC: 06-013606-FH
TONY LEE HARTMAN,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the August 20, 2007
order of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
MARKMAN, J., dissents and states as follows:
Defendant pleaded guilty of three counts of making child sexually abusive
material. The factual basis for this guilty plea was defendant’s admission that he
downloaded child sexually abusive material from the Internet and saved it to a flash
drive. MCL 750.145c(2) provides, in pertinent part, “A person who . . . produces, makes
or finances . . . child sexually abusive material is guilty of a felony.” I question whether
defendant’s admission constitutes a sufficient factual basis to support a guilty plea to a
charge of “producing or making” child sexually abusive material. While such admission
is clearly sufficient to establish the “possession” of such material, it is less clear that it is
sufficient to establish the “producing or making” of such material.
As in People v Hill, 477 Mich 897 (2006), I would grant leave to appeal to
determine: (a) whether the reasonable meaning of MCL 750.145c(2) is to punish those
who create or originate child sexually abusive material; (b) whether the majority's
interpretation essentially renders nugatory the prohibition in MCL 750.145c(4)
concerning the “possession” of child sexually abusive materials, imposing the same
penalty on a person who downloads such material as on a person who actually entices the
child to pose and who thereby creates or originates the material; and (c) whether the
majority’s interpretation of “makes or produces” has legal consequences in other digital
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contexts. For example, does a person who downloads a pirated movie from the Internet
“make or produce” this movie and would such person be subject to the same penalty as a
person who originally pirated the movie and placed it on the Internet? Does a person
who downloads a pirated song from the Internet “make or produce” this song and would
such person be subject to the same penalty as a person who originally pirated the song
and made it available on the Internet? Does a person who downloads a defamatory
article from the Internet “make or produce” this article and would such person be subject
to the same penalty as an original publisher of the defamation?
There is a substantial question whether the Legislature in MCL 750.145c(2)
intended to punish a person who downloads pornographic images of children from the
Internet and then places or burns these onto a flash drive or compact disc for personal use
the same as a person who coerces children into posing for sexual activities in order to
create pornographic images. Moreover, there are significant legal implications arising
from this question for other forms of Internet use.
CAVANAGH and KELLY, JJ., join the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 1, 2008 _________________________________________
d0129 Clerk