_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion 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 evilmeaning 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. XCitement 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 <distribute

newspapers>." Merriam-Webster OnLine Dictionary

<http://www.m-w.com> (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)

<http://www.dictionary.cambridge.org> (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 XCitement 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 email 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
 
_______________________________ 

 

 

v 

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, 

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
 
_______________________________ 

v 

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, 

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