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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v BRIAN LEE HILL, Defendant-Appellant.

FOR PUBLICATION January 24, 2006 9:05 a.m. No. 264361 Muskegon Circuit Court LC No. 04-051083-FH Official Reported Version

Before: Zahra, P.J., and Murphy and Neff, JJ. MURPHY, J. Defendant Brian Lee Hill appeals by leave granted the circuit court's order denying his motion to quash the information in this criminal prosecution that involves, in relevant part, charges related to child pornography. In determining whether the circuit court erred in denying the motion to quash, we are required, as were the district and circuit courts, to interpret MCL 750.145c(2) of the Michigan Penal Code, in particular the language regarding the making and producing of child sexually abusive material. We hold that the circuit court correctly interpreted the statute and that the evidence presented at the preliminary examination supports the felony charges pursued by the prosecution under MCL 750.145c(2). There is sufficient evidence to support the information charging that defendant was involved in the making and producing of child sexually abusive material as contemplated by the plain language of MCL 750.145c(2). We additionally hold that MCL 750.145c(2) is not unconstitutionally vague. Accordingly, the circuit court did not commit error in denying the motion to quash the information, and we affirm. I. Basic Facts and Procedural History Defendant was charged with multiple counts of installation of a device for observing, photographing, or eavesdropping in a private place, MCL 750.539d; multiple counts of arranging for, producing, making, or financing child sexually abusive material, MCL 750.145c(2); and multiple counts of using a computer to commit a crime, MCL 752.796. Two witnesses testified on behalf of the prosecution during defendant's preliminary examination. The first witness was a male foreign exchange student who had previously stayed at defendant's home, and the second witness was Dean Lohman, a detective who participated in a

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search of defendant's home. The exchange student's testimony focused on the charges against defendant related to the installation of a device for observing in a private place. He identified several videotapes taken of him without his knowledge while he was showering in defendant's bathroom. Detective Lohman later identified a CD (compact disc) player seized from defendant's bathroom in which defendant had allegedly hidden a video camera in order to monitor and tape individuals, including foreign exchange students, while they used his shower. The charges related to this activity are not at issue in this appeal. Detective Lohman testified with respect to his participation in a search of defendant's home. He explained that he had advised defendant that the police had information that defendant was videotaping foreign exchange students and others who used his bathroom. Lohman indicated that he followed defendant to his home as voluntarily arranged and that defendant was very cooperative with the police. In fact, defendant pointed out the CD player and hidden camera to the police during the search. Beyond the CD player, video camera, and numerous videotapes allegedly depicting persons using his bathroom and shower, Lohman also found approximately 50 CD-Rs in defendant's bedroom. Detective Lohman explained that a CD-R1 is a blank compact disc that an individual can purchase, and onto which pictures, movie or video files, and various other digital images, information, and data can be "burned,"2 or saved, through the use of a computer. According to Lohman, defendant told him that the CD-Rs contained pornographic pictures of minors, preteens, and teenagers. The detective further testified that defendant admitted that he had downloaded3 the child pornography, including pictures and videos of mostly male individuals, from Russian websites and then made or compiled the CD-Rs. Lohman agreed that the police had no information or evidence that defendant took any of the original pictures or made any of the original videos found on the CD-Rs. Detective Lohman estimated that, on the 22 CD-Rs that he had inspected so far, he found over 3,000 deviant photographs depicting nude children, children engaged, alone or with other children, in sexual acts and conduct, and children posed in sexually explicit positions. Several photographs printed from the CD-Rs were admitted into evidence. The detective additionally testified that the police had opened five videos from the CD-Rs that depicted 12- to 13-year-old boys engaged in sexual acts. The prosecutor submitted several CD-Rs as evidence against defendant, alleging that he had made or produced child sexually abusive material in violation of MCL 750.145c(2), through the use of a computer in violation of MCL 752.796 and MCL 752.797(3)(f).

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CD-R stands for "compact disc--recordable."

One definition of the term "burn" is "to record data on (a compact disc)." Random House Webster's College Dictionary (2001). "Download" means "to transfer (software or data) from a computer to a smaller computer or a peripheral device." Random House Webster's College Dictionary (2001).
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Before addressing the arguments made by the prosecution and defendant relative to the preliminary examination, bindover, and the subsequent motion to quash, it is necessary to quote the language from the pertinent statutes in order to give context to the parties' arguments. MCL 750.145c(2) provides: A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, 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 material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. [Emphasis added.] MCL 750.145c(1)(m) defines "child sexually abusive material" as follows: "Child sexually abusive material" means any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording. [Emphasis added.] MCL 752.796 and MCL 752.797(3)(f) criminalize the use of a computer in committing a crime and punishes offenders according to the underlying felony, which, in this case, is punishable by up to 20 years in prison pursuant to MCL 750.145c(2). The prosecutor requested the district court to bind defendant over on all counts. Regarding the counts related to the CD-Rs, the prosecutor argued that MCL 750.145c(2) encompassed activity where an individual arranges for, produces, makes, or finances child sexually abusive material, and when defendant took the blank CD-Rs and burned images on them, he clearly created child sexually abusive material. The prosecutor noted that the statute defines "child sexually abusive material" as including any reproduction, copy, or print of a photograph depicting a child engaged in a sexual act. The prosecutor argued that defendant

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"made" or "produced" child sexually abusive material by copying, reproducing, or burning the images onto a CD-R. Defendant argued against bindover on the counts related to the CD-Rs, contending that the burning or saving of images or data onto a CD-R does not rise to the level of producing, creating, manufacturing, or making child sexually abusive material. Defendant further argued that the transference of the images from the Internet to his computer's hard drive and then to the CD-Rs constituted nothing more than the storage of data. Defendant maintained that, at most, there was only evidence of possession of child pornography pursuant to MCL 750.145c(4), which provides in relevant part: 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, 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.[4] The district court bound defendant over for trial on all counts. Defendant then filed a motion in circuit court to quash the bindover or information on the counts related to the CD-Rs. Defendant argued that MCL 750.145c(2) does not apply to simple possession of child pornography by a private individual who was not involved in the creation of the original images. Defendant further maintained that the denial of his motion to quash would effectively and wrongfully extend the 20-year felony provided in MCL 750.145c(2) to individuals who had no contact with the abused children, who did not produce the original child pornography, and who did not distribute child pornography to others. Defendant argued that the district court erred as a matter of law by concluding that defendant's actions fit within

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