People v. Tombs

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion 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 abusive material, requires that the

distribution or promotion be performed with criminal

intent. If criminal intent is an element of the offense,

we must determine 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. We also agree

that the evidence presented to the trial court was
insufficient to prove that intent. Therefore, we affirm

the decision of the Court of 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 that sells cable Internet access to

business and residential customers. Field 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 computer for employment-related use. Before the

laptop was issued to defendant, the hard drive was

reformatted so that it contained only company-sanctioned

software programs.

On August 9, 2000, a Wednesday, defendant quit his

employment with Comcast. He told Christopher Williams,

another Comcast employee, that he would return the

company's equipment and van on the weekend. 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 laptop to Comcast’s office and began to

reformat it. Although it was not required in the

formatting, he ran a search for JPG files, files containing

pictures, "[j]ust to see what was on it." He found several

and opened one. 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. He eventually

found "a series of child pornography." Radcliff indicated

that the pornographic material was not in a readily

available location, but was "buried inside of what's known

as a user profile."

The laptop was later turned over to the police.

Detective Edward Stack of the St. Clair 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 Department, counted over five hundred

images on the computer that he believed qualified "as

either child sexually abusive material or child erotica."

3

 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 that defendant told him that, when a

Comcast employee leaves employment, new programs are

installed in that employee’s computer. 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 "from the Internet and from sharing with

others." 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 In a

published opinion, the Court of Appeals reversed

defendant's conviction for distributing or promoting child

sexually abusive material under MCL 750.145c(3) and

affirmed his other convictions. 260 Mich App 201; 679 NW2d

77 (2003). The prosecutor appeals the reversal to this

Court. 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 liability for all their

elements are not favored. Quinn, 440 Mich at 187. 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 IS AN ELEMENT OF MCL 750.145C(3)

The statutory provision under consideration, MCL

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
 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 evil-
meaning 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. Id at 265-269.

The Morissette Court noted the longstanding

presumption that all crimes require criminal intent. It

held that Congress’s failure to include 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. Id. at 272-273.

Since the Morissette decision, the United States

Supreme Court has reiterated that offenses not requiring

criminal intent are disfavored. The Court will infer the

presence of the element unless a statute contains an

9

express or implied indication that the legislative body

wanted to dispense with it. Moreover, the 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 an

unregistered weapon capable of automatic firing. 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 605-
606 (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 to obtain a conviction, there being no clear

4
513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994).

11

congressional intent that strict liability should be

imposed. 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. X-

Citement Video, 513 US at 78. 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 OF PRECEDENT TO RESOLVE THE CRIMINAL INTENT QUESTION

We apply this Supreme Court precedent to the case

before us. 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 of Appeals correctly reached this

conclusion. The most applicable dictionary definition of

"distribute" implies putting items in the hands of others

as a knowing and intentional act.5 Likewise, the terms

5
“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 we held otherwise, not only would it be

illogical, we would create a questionable scheme of

punishment: One who, with criminal intent, possessed child

sexually abusive material would be subject to a lesser

punishment than someone who, without criminal intent,

passed along such material to others.6

The Court of Appeals holding that the prosecution must

prove criminal intent to distribute or promote fully

implements the goal of the legislative scheme. It also

(…continued)
The Random House College Dictionary (2001) "[T]o give out
or deliver especially to members of a group ." Merriam-Webster OnLine Dictionary
(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)
(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 X-

Citement 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 e-

mail sent to another. The person might intend to send an

innocent photograph, but accidentally send a pornographic

photograph of a child instead. Also, the person might not

intend that the recipient 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
513 US at 69.
8
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 violated MCL 750.145c(3). It would be

immaterial that they had no criminal intent. Such 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 FOR
DISTRIBUTING CHILD SEXUALLY ABUSIVE MATERIAL

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 elements of the crime were proven as

required. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748

(1992).

A. RETURN OF THE LAPTOP TO COMCAST

Although defendant intended to distribute the laptop

containing child sexually abusive material to his former

employer, no evidence suggests that he distributed the

material with a criminal intent. There was no evidence

that defendant made anyone at Comcast aware, or attempted

to make anyone aware, of the presence of the material. To

the contrary, there is evidence that defendant 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 material with a criminal intent.

Obviously, if defendant distributed the material not

intending anybody to discover or view it, he 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 to search for the material defendant

purposefully concealed does not affect the 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 could draw an inference beyond a reasonable doubt

that, when returning the laptop, defendant 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, 282; 577 NW2d 462 (1998) (“‘[i]f there is an

interpretation of the evidence that provides a logical

explanation for the findings of the jury, the verdict is

not inconsistent.’”) (Citation omitted.)

There is no disagreement that, here, the jury

specifically acquitted defendant of using a computer to

distribute child sexually abusive material, and it

20

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 verdicts are consistent, we conclude that the jury

convicted defendant of distributing the material by

returning the computer to Comcast.10

VII. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT A

CONVICTION FOR PROMOTING CHILD SEXUALLY ABUSIVE MATERIAL

It is without dispute that defendant possessed child

sexually abusive material that he had obtained over the

Internet. The prosecution contends that possessing the

material is the legal equivalent of promoting it 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 language of the Legislature that created a

graduated scheme of offenses and punishments 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 expressly separated the crimes of

production of child sexually abusive material,12

distribution or promotion of the material, and simple

possession. 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 it, MCL 750.145c(4) would have

included promotion. Alternatively, the Legislature would

have equated 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 child sexually abusive material

with criminal intent. Therefore, we affirm the Court of

Appeals decision reversing defendant’s conviction of

distribution or promotion under MCL 750.145c(3).

Marilyn Kelly
Michael F. Cavanagh
Stephen J. Markman

24

 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.

_______________________________

TAYLOR, C.J. (concurring).

I concur in the result of Justice Kelly’s opinion and

with her analysis in all but part VI(B). I write

separately to explain my own reasons for reaching the

conclusion that defendant’s conviction for “distributing or

promoting” child sexually abusive material was properly

reversed by the Court of Appeals. I agree with Justice

Kelly regarding the intent required to establish a

violation of this statute. 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 People v Roby, 52

1
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.). The United

States Supreme Court has spoken extensively on this,

holding that when a criminal statute is totally silent

about state of mind (as is 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 the element that

criminalizes otherwise innocent conduct. 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 not “distribute” the material when he

returned the computer to Comcast because he did not

“intend[] for anyone to see or receive child sexually

abusive material.” 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. Ante at

20. 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 by merely acquiring or possessing it.

Justice Kelly properly concludes that 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 material is not supported by the

prosecutor’s third theory—that defendant committed the

3

crime by uploading or sharing child sexually abusive

material through the Internet—I do not find her analysis of

this issue persuasive. Although the jury found defendant

not guilty of using 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 alleged acts of sharing the

material, and this is sufficient to convict. 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 rendered on the several

counts need not be consistent. 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 viewed in the light most

favorable to the prosecution.2 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. The

Michigan Constitution requires the jury’s verdict to be

unanimous to comply with minimal due process. 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 act that could have been committed in various

ways. 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 separate and distinct offenses, jury

unanimity is not required with regard to the alternate

theories.” 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 that it must unanimously

agree on the same specific act. Cooks, supra at 530.

Here, at least two of the alleged criminal acts

required materially different evidence. The act of

6

returning the computer to Comcast involved a separate and

different set of facts from those concerning defendant’s

alleged involvement in facilitating the exchange of

Internet child pornography. 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 was not done, and this deprived

defendant of due process.4 Schad, supra at 650.

Complicating this, however, is the fact that the error was

unpreserved because defendant did not request such an

instruction and did not object to the 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. The jury

could have convicted, and most likely did convict,

defendant on the basis of his act of turning in the

computer. Alternatively, it could have convicted on the

theory the prosecutor presented that acquiring and

possessing the material equates with “promotion.” Finally,

it could have convicted him on the basis of a single piece

of testimony from which one may infer that defendant

8

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. This is

a violation of the unanimity requirement. Moreover, it is

impossible to say that, had the jury been properly

instructed, the outcome would be the same. This

constitutes plain error that affected 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 conviction for distributing or promoting

child sexually abusive material and I agree with her

analysis in all but part VI(B).

Clifford W. Taylor

9

 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 application of intentionality. Under the

majority view, the intentionality of defendant’s act 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 child sexually abusive material.

Testimony adduced at trial reveals that, on the day

defendant resigned his employment with Comcast, defendant

was informed that he would have to return the company

automobile and computer the same day. His supervisor,

Christopher Williams, testified that he waited “45 minutes

to an hour” before proceeding to defendant’s residence.

While en route to defendant’s residence, defendant

telephoned Williams and told Williams that “everything was

ready.” The evidence revealed that, although given less

time than requested, defendant voluntarily returned 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 the time the computer was returned. Joseph

testified that defendant was not concerned that the

material would be discovered on the Comcast 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, the opinion concludes

1
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.” Ante at 18.

The lead opinion requires a heightened mens rea

element that is not supported in the language of the

statute and that is not constitutionally required. The

opinion cites Morissette v United States,2 Staples v United

States,3 and United States v X-Citement Video, Inc,4 in

support of the claim that this additional element is

required. However, those cases do not 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 steal shell casings. In this case, the

prosecution must prove that defendant had the general

intent to distribute child pornography. See 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 intend his or her recipient to

“discover or view” the prurient material in order to

“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” as “[t]o deal or divide out in

proportion or in shares.” As the Court of 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 files” shortened the

7

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 in the

continuation of this so-called “practice.”7 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 the requirement of unanimity in a

conviction. Under this constitutional requirement,

individual jurors must rely on the same actus reus, despite

the presence of alternative acts, when they convict a

defendant. 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 the statute and might have resulted in

defendant’s conviction: (1) defendant’s return of 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 that the burden of persuasion for a

showing of prejudice was on the defendant). 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, the day that defendant

relinquished his employment. 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 and not argued before this Court.

In conclusion, the prosecutor presented sufficient

evidence to convict defendant of distribution of child

sexually abusive material under MCL 750.145c(3). While I

agree that an intent requirement is properly imputed to the

“distributes or promotes” element of the statute, the

prosecution put forward sufficient evidence to sustain

defendant’s conviction. Defendant intentionally delivered

10

the computer to his employer, knowing that the computer

contained child sexually abusive material at the time of

its return. The majority errs in imputing a heightened

requirement that defendant intend his 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