FILED JULY 23, 2010 

S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 138668

BRIAN LEE HILL, 

 Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

MARKMAN, J. 

This case presents the question whether a defendant who downloads child sexually 

abusive material from the Internet and “burns” that material to a CD-R1

 may be convicted 

of violating MCL 750.145c(2), which provides that any person who “arranges for, 

produces, makes, or finances . . . any . . . child sexually abusive material,” is guilty of a 

 1

 CD stands for “compact disc.” A CD-R (compact disk-recordable) 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,” or saved 

permanently, through the use of a computer. One definition of the term “burn” is “to 

record data on (a compact disc).” Random House Webster’s College Dictionary (2001). 

Michigan Supreme Court

Lansing, Michigan

Opinion Chief Justice: 

Marilyn Kelly 

Justices: 

Michael F. Cavanagh 

Elizabeth A. Weaver 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

Diane M. Hathaway
2

felony punishable by imprisonment for not more than 20 years or whether the defendant 

may only be convicted of violating MCL 750.145c(4), which makes the knowing 

possession of child sexually abusive material a felony punishable by imprisonment for 

not more than 4 years. 

The Court of Appeals held that a defendant, even if his intent in burning the 

prohibited images to a CD-R was to retain those images for personal use, may be 

convicted of the 20-year felony under MCL 750.145c(2). We respectfully disagree. 

MCL 750.145c has a graduated scheme of offenses and punishments. It punishes (1) 

those who are responsible for the origination of child sexually abusive material (a 20-

year felony), (2) those who are responsible for the distribution and promotion of the 

prohibited material (a 7-year felony), and (3) those who are responsible for the knowing 

possession of the prohibited material (a 4-year felony). From these three tiers of offenses 

and punishments, we conclude that the Legislature did not intend the imposition of the 

same maximum punishment on a person who downloads a prohibited image from the 

Internet and burns it to a CD-R for personal use as on the person who is responsible in the 

first instance for the creation and existence of the pornographic images of minors. The 

person who is responsible for bringing the prohibited images into existence is obviously 

more morally, and under the statute, more criminally, culpable than the person who 

downloads an image and saves it to another medium for personal use. 

We hold that when the terms “produces” and “makes” in MCL 750.145c(2) are 

construed in accordance with their immediately surrounding text and with a view toward 

the statute’s overall organization, including a graduated scheme of offenses and 
3

punishments, a defendant may not be convicted of the 20-year felony when there is not 

proof beyond a reasonable doubt that he had a criminal intent to do something other than 

possess the CD-Rs for his own personal use. Just as a person who downloads a song 

from the Internet and burns it to a CD-R is not considered to have produced or made a 

song, so a person who burns a prohibited image to a CD-R for his personal use has not 

produced or made the image. 

It is clear that the Legislature intended only that defendant could be convicted of 

the 4-year felony of knowingly possessing child sexually abusive material under MCL 

750.145c(4). Those who copy or duplicate existing prohibited images for personal use do 

not produce or make child sexually abusive material under MCL 750.145c(2); rather, 

they are only in possession of it. MCL 750.145c(2) is primarily applicable to those who 

originate child sexually abusive material. Therefore, we reverse in part the judgment of 

the Court of Appeals, vacate defendant’s convictions under MCL 750.145c(2), and 

remand for further proceedings not inconsistent with this opinion.2

 

I. FACTS AND HISTORY 

As relevant here, defendant was charged with five counts of “arrang[ing] for, 

produc[ing], mak[ing], or financ[ing]” child sexually abusive material, in violation 

of MCL 750.145c(2), after a search of his two laptop computers and approximately 50 

 2

 Defendant was also convicted of five counts of using a computer to commit a 

crime, MCL 752.796 and MCL 752.797(3)(f), and three counts of installing a device for 

observing, photographing, or eavesdropping in a private place, MCL 750.539d. These 

convictions are not before us. 
4

CD-Rs found in his bedroom. After being bound over for trial, defendant moved to 

quash the information with regard to these charges, arguing that the burning or saving of 

images or data to a CD-R does not rise to the level of producing or making child sexually 

abusive material. He further argued that the transfer of images from the Internet to his 

computer’s hard drive and then to the CD-Rs constituted nothing more than the storage of 

data. Thus, he contended that he should only be charged with “knowingly possess[ing]” 

child sexually abusive material under MCL 750.145c(4) because he had not originated 

the prohibited images. 

The trial court denied this motion, stating: 

[T]he only question, one of apparent first impression, is whether the 

act of downloading the image from the internet and “burning” (recording) 

the image to a CD constitutes the “making” or “production” of such 

materials. 

The dictionary . . . contains several definitions of the word “make.” 

Among them are: 

To cause to exist, occur, or appear; create; to fit, intend, or destine 

by, or as if by creating; to bring into being by forming, shaping, or altering 

material; to put together from components. 

Applying this definition here, the “bottom line” is that, after the 

requisite, mechanical, and technical functions, some things exist (CD-Rs 

with these images on them) that did not exist prior to that act. 

Defendant appealed by leave granted, and the Court of Appeals affirmed in a published 

opinion, stating: 

The term “make” is defined as follows: “to bring into existence by 

shaping, changing, or combining material[.]” Random House Webster’s 

College Dictionary (2001). Defendant acquired child sexually abusive 

material through the Internet, and he shaped, formed, and combined the 

material through placement of various selected pictures, videos, and images 

onto specific CD-Rs, bringing into existence something that had not 
5

previously existed, i.e., distinctly created and compiled child-pornography 

CD-Rs. [People v Hill, 269 Mich App 505, 518; 715 NW2d 301 (2006).] 

The Court of Appeals also stated: 

Regardless of whether defendant’s actions are viewed as copying the 

original photographs and videos, or copying electronic or computer visual 

images of the downloaded photographs and videos, the fact remains that 

copies and reproductions were made. Defendant’s argument that use of the 

CD-Rs was just a mechanism by which to store possessed child 

pornography ignores the reality that the storing of the images was 

accomplished through the copying or duplication of already existing images 

that continued to exist after the images were burned onto the CD-Rs. The 

language of the statute is clear and unambiguous. The decision by the 

Legislature to specifically include reproductions or copies in defining 

“child sexually abusive material,” which term is then incorporated into 

[MCL 750.145c(2)], leaves no room for a contrary judicial construction. 

[Id. at 517.] 

We denied defendant’s application for leave to appeal, with three justices 

indicating that they would grant leave to appeal. 477 Mich 897 (2006). We also denied 

defendant’s motion for reconsideration, with three justices indicating that they would 

grant reconsideration and, on reconsideration, would grant leave to appeal.3

 477 Mich 

1016 (2007). Defendant next unsuccessfully sought relief in federal court. Hill v People, 

2007 US Dist LEXIS 47700 (WD Mich, July 2, 2007, Case No 1:07-CV-271), and then 

proceeded to a bench trial. As relevant to the convictions under review, the evidence 

demonstrated that defendant had downloaded and copied to CD-Rs five specific images 

 3

 See also People v Hartman, 480 Mich 1058 (2008), in which three justices 

indicated that they would grant leave to appeal to consider whether someone who 

downloaded child sexually abusive material from the Internet and saved it to a “flash 

drive” could properly be convicted of violating MCL 750.145c(2). 
6

depicting child sexually abusive material.4

 The trial court found defendant guilty of five 

counts of violating MCL 750.145c(2), stating: 

The proofs show a repeated pattern of taking an image off the 

computer and moving it or saving it somewhere else where it did not 

previously exist. . . . Mr. Hill is guilty of . . . making, producing etc. child 

sexually abusive materials . . . [that] were created by affirmative action by 

the user. 

Defendant appealed in the Court of Appeals, which affirmed his convictions and declined 

his request to reconsider its earlier published decision holding that the downloading and 

burning of child sexually abusive material to a CD-R constitutes making or producing 

child sexually abusive material. People v Hill, unpublished opinion per curiam of the 

Court of Appeals, issued February 19, 2009 (Docket No. 281055).5

 This Court then 

granted leave to appeal. 485 Mich 911 (2009). 

II. STANDARD OF REVIEW 

Whether conduct falls within the scope of a penal statute, in this case MCL 

750.145c(2), is a question of statutory interpretation that we review de novo. People v 

Stone, 463 Mich 558, 561; 621 NW2d 702 (2001). 

 4

 Although the convictions under review pertained only to 5 images, the evidence 

here showed that defendant possessed 50 CD-Rs containing approximately 100,000 

images and that an estimated 70 percent of these constituted child sexually abusive 

material. 

5

 The Court of Appeals did, however, identify errors in the scoring of defendant’s 

offense variables under the sentencing guidelines and remanded for resentencing. 
7

III. RULES OF INTERPRETATION 

MCL 750.145c is a relatively lengthy statute. Most relevant for present purposes 

are subsections (2) through (4), which provide: 

(2) 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[6] 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. 

(3) 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 

 6

 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 computergenerated image, or picture, other visual or print or printable medium, or 

sound recording. 
8

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. This subsection does not 

apply to the persons described in section 7 of 1984 PA 343, MCL 752.367. 

(4) 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. 

The issue here is how the terms “produces” and “makes” in subsection (2) should be 

interpreted. 

The rules of statutory construction are well established. As this Court explained in 

G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 420-422; 662 NW2d 710 

(2003): 

When construing a statute, the Court's primary obligation is to 

ascertain the legislative intent that may be reasonably inferred from the 

words expressed in the statute. If the language of the statute is 

unambiguous, the Legislature is presumed to have intended the meaning 

expressed. 

* * * 

The doctrine of noscitur a sociis, i.e., that “a word or phrase is given 

meaning by its context or setting,” affords us assistance in interpreting 

[statutes]. . . . 

. . . “[Statutes] exist[] and must be read in context with the entire act, 

and the words and phrases used there must be assigned such meanings as 

are in harmony with the whole of the statute . . . .” “[W]ords in a statute 

should not be construed in the void, but should be read together to 

harmonize the meaning, giving effect to the act as a whole.” Although a 
9

phrase or a statement may mean one thing when read in isolation, it may 

mean something substantially different when read in context. “In seeking 

meaning, words and clauses will not be divorced from those which precede 

and those which follow.” “It is a familiar principle of statutory 

construction that words grouped in a list should be given related meaning.” 

[Citations omitted.] 

We are also instructed to give undefined statutory terms their plain and ordinary meaning 

unless the undefined word or phrase is a term of art.7

 

The Legislature did not specifically define the terms “produces” or “makes.” 

Therefore, it is appropriate to consider dictionary definitions to discern the meanings of 

these terms. Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456 

Mich 590, 604; 575 NW2d 751 (1998). 

 From all of this, it is clear that what a court should do in construing a term in a 

criminal statute for which there are a variety of potential definitions is to determine from 

among those definitions which the Legislature most reasonably intended by the specific 

context in which the term is found. 

IV. APPLICATION 

 This Court first considered MCL 750.145c in People v Tombs, 472 Mich 446; 697 

NW2d 494 (2005). In Tombs, the defendant turned in a company laptop computer, and 

more than 500 images of child pornography were found on it in a file location not readily 

 7 MCL 8.3a provides: 

All words and phrases shall be construed and understood according 

to the common and approved usage of the language; but technical words 

and phrases, and such as may have acquired a peculiar and appropriate 

meaning in the law, shall be construed and understood according to such 

peculiar and appropriate meaning.
10

or easily locatable. The defendant was convicted of violating MCL 750.145c(3), 

promoting or distributing child sexually abusive material. This Court first recognized the 

longstanding principle that a criminal statute is presumed to include a criminal intent or 

mens rea absent an express or implied indication that the Legislature wanted to dispense 

with it. Id. at 456-457 (opinion by KELLY, J.); id. at 466 (TAYLOR, C.J., concurring).8

 

We then held that the criminal intent to possess child sexually abusive material was not 

the same as the criminal intent to promote or distribute child sexually abusive material. 

Id. at 448 (opinion by KELLY, J.). We affirmed the decision of the Court of Appeals that 

reversed the defendant’s conviction for distributing or promoting child sexually abusive 

material, stating: “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.” Id. at 459-460. 

The lead opinion in Tombs examined MCL 750.145c and proceeded to summarize 

the Court’s position as follows: “The Legislature expressly separated the crimes of 

 8

 As explained in People v Beaudin, 417 Mich 570, 574; 339 NW2d 461 (1983): 

“Performance of the physical act proscribed in the statute is not enough to sustain a 

conviction. The act must be coincident with an intent to bring about the particular result 

the statute seeks to prohibit.” It is also the case that common-law defenses are “read 

into” criminal statutes. See, e.g., United States v Panter, 688 F2d 268, 271 (CA 5, 1982), 

which explained that a legislature’s 

failure to provide specifically for a common-law defense in drafting a 

criminal statute does not necessarily preclude a defendant charged with 

violating that statute from relying on such a defense. This conclusion is 

unassailable; statutes rarely enumerate the defenses to the crimes they 

describe. 
11

production of child sexually abusive material, distribution or promotion of the material, 

and simple possession.” Id. at 464. It further stated: 

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. [Id.][9]

Tombs recognized that MCL 750.145c clearly establishes three tiers in its graduated 

scheme of both offenses and punishments. Those who are involved in the production of 

child sexually abusive material are subject to a maximum sentence of 20 years, those who 

distribute or promote such material are subject to a maximum sentence of 7 years, and 

those who knowingly possess such material are subject to a maximum sentence of 4 

years. 

There is an inherent logic to this scheme. The Legislature reasonably concluded 

that those who distribute or promote child sexually abusive material are more morally 

and criminally culpable than those who possess such material and that those who create 

or originate such material are the most morally and criminally culpable. The case at bar 

requires us to determine whether defendant’s act of downloading and burning child 

 9

 Accord People v Adkins, 272 Mich App 37, 40; 724 NW2d 710 (2006) (“We 

conclude that the language of [MCL 750.145c(2)] clearly and unambiguously imposes 

criminal liability on three distinct groups of ‘person[s],’ provided that at the time of their 

actions, the persons met the requisite knowledge element.”). See also People v Ward, 

206 Mich App 38, 42-43; 520 NW2d 363 (1994), in which the Court of Appeals observed 

that MCL 750.145c(2) “focuses on protecting children from sexual exploitation, 

assaultive or otherwise” and that the purpose of the statute is “to combat the use of 

children in pornographic movies and photographs, and to prohibit the production and 

distribution of child pornography.” 
12

sexually abusive material to CD-Rs falls within the top tier or the bottom tier; it is not 

argued by either party that it falls within the middle tier, and we also do not believe that it 

does, for what defendant has done does not constitute the promotion or distribution of 

child sexually abusive material. That is, unlike Tombs, this case does not involve 

determining whether a defendant’s conduct falls within adjacent tiers and whether it is 

punishable as a 4-year or 7-year felony. Rather, this case involves determining whether 

defendant’s conduct falls within the lowest or the highest tier and thus whether defendant 

has committed a 4- or 20-year felony. 

 We keep the graduated scheme of MCL 750.145c and the magnitude of the 

potential disparity in defendant’s criminal liability in mind as we attempt to discern the 

most reasonable definitions for “produces” and “makes” as used in MCL 750.145c(2). 

Again, the pertinent language of that subsection is “arranges for, produces, makes, or 

finances” any child sexually abusive material. On the basis of the previously stated 

principles, we must consider MCL 750.145c as a whole in determining the meaning of 

“produces” and “makes” in this statutory context. Pursuant to the maxim of noscitur a 

sociis, these words must be viewed in light of the surrounding terms employed in MCL 

750.145c(2), i.e., “arranges for” and “finances,” because the latter supply guidance 

regarding what the former mean in context. 

 “Makes” and “produces” are used in MCL 750.145c(2) as verbs that may 

communicate a variety of different concepts. The Court of Appeals adopted the first 

definition of “make” in the Random House Webster’s College Dictionary (2001)-- “to 

bring into existence by shaping, changing, or combining material[.]” Hill, 269 Mich App 
13

at 518. But this is only one of many definitions for “make” in that dictionary. The 

second and third definitions are as follows: “2. to cause to exist or happen . . . . 3. to 

cause to become . . . .” The same dictionary also provides the following relevant 

definitions of “produce”: “1. to cause to exist; give rise to . . . . 2. to bring into 

existence . . . . 7. to bring (a play, movie, opera, etc.) before the public.” We also 

consider the surrounding words, “arranges for” and “finances.” The dictionary offers the 

following relevant definitions of “arrange” as in “arranges for”: “3. to prepare or 

plan . . . . 5. to make plans or preparations . . . .” For “finances,” it offers the following 

relevant definition: “3. to supply with money or capital . . . .” 

The definitions of “arranges for,” “finances,” and “produce” afford obvious insight 

into how the adjoining term “make” should be interpreted. When these four words are 

viewed together, their relatedness or common meaning becomes increasingly apparent-- 

each constitutes a verb selected by the Legislature to communicate that persons included 

within this subsection are those who are somehow responsible for the creation or 

origination of child sexually abusive material. Those who arrange for child sexually 

abusive material are involved at the front end of the process by identifying and 

coordinating the participants, equipment, and locations. That is, the arranger has 

undertaken actions that lead to the actual production of the child sexually abusive 

material. Those who finance child sexually abusive material provide funding that leads 

to the same result. The terms “arranges for” and “finances” suggest that the most 

reasonable understanding of “produce” is “to bring (a play, movie, opera, etc.) before the 

public.” In other words, one should envision a producer as a person similar to the 
14

producer of a play, movie, or opera who is directly responsible for the creation or 

origination of a particular production, in this case child sexually abusive material. 

“Produce” refers to the conduct of those persons but for whom the production (the 

material) would not exist in the first place, i.e., those who have transformed an idea into a 

reality. Without those who have arranged for, financed, or produced, there would be no 

child sexually abusive material at all. 

This leaves the term “makes.” Given the related definitions and understandings of 

“arranges,” “produces,” and “finances,” we believe that “makes” should be interpreted in 

a similar manner as meaning “to cause to exist or happen” or “to cause to become.”10 

That is, “makes” should be interpreted in the common fashion as referring to someone 

who is primarily involved in the creation or origination of the child sexually abusive 

material.11 

 10 While we agree with the first part of the definition adopted by the Court of 

Appeals, “to bring into existence,” we reject the second half of that definition, “by 

shaping, changing, or combining material,” Hill, 269 Mich App at 518, because it adds a 

limiting dimension to “makes” that is inconsistent with the meanings of the surrounding 

terms, “arranges for,” “produces,” or “finances.” 

11 This understanding of “produces” and “makes” is consistent with the opening 

clause of MCL 750.145c(2), which describes other individuals subject to punishment 

under that subsection: “[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[.]” The terms used in the opening clause 

clearly refer to those who have had direct contact with a minor, either through the 

minor’s recruitment or through the minor’s “performance” in the prohibited material. 

While those identified in the opening clause definitely are persons who directly deal with 

the children, those identified in the second clause, the arrangers, producers, makers, and 

financers, may also on frequent occasion have direct contact with the children. 
15

When the terms “produces” and “makes” are understood in this light, it is simply 

untenable to conclude that downloading an existing image from the Internet and burning 

it to a CD-R for personal use constitutes producing or making child sexually abusive 

material under MCL 750.145c(2). While such conduct certainly constitutes proof of 

knowing possession of such material, it does not constitute sufficient proof of the making 

or producing of that material. Thus, when we consider the statute as a whole, especially 

the maxim of noscitur a sociis in conjunction with the graduated scheme of offenses and 

punishment, we conclude that MCL 750.145c(2) is primarily concerned with punishing 

those who are involved in the creation or origination of child sexually abusive material 

and not those who download and maintain that material for personal use.12 

The Court of Appeals held that defendant had made child sexually abusive 

material, in violation of MCL 750.145c(2), because he brought into existence something 

that had not previously existed. We respectfully disagree with this analysis. While the 

 12 Indeed, we note that before the instant Court of Appeals opinion, all published 

Michigan caselaw only applied the portion of MCL 750.145c(2) concerning a person who 

“produces” or “makes” child sexually abusive material to those involved in the creation 

or origination of prohibited images. See, e.g., People v Heim, 206 Mich App 439; 522 

NW2d 675 (1994) (defendant who photographed his 16-year-old niece), People v Hack, 

219 Mich App 299; 556 NW2d 187 (1996) (defendant who coerced two children to 

engage in sexual acts that he videotaped), People v Riggs, 237 Mich App 584; 604 NW2d 

68 (1999) (defendant who photographed and videotaped four young girls), People v 

Harmon, 248 Mich App 522, 526-528; 640 NW2d 314 (2001) (defendant who 

photographed two minors engaged in sexual acts), and People v Wilkens, 267 Mich App 

728; 705 NW2d 728 (2005) (defendant who recorded himself and two minors engaging 

in sexual acts). Thus, those who originate or create child pornography are guilty of 

violating MCL 750.145c(2), even if they only intend to keep the material for personal 

use. 
16

burned CD-Rs may not have previously existed, this does not mean, in our judgment, that 

defendant made child sexually abusive material within the scope of MCL 750.145c(2). 

The fact that defendant placed prohibited images from different websites onto CD-Rs 

does not by itself rise to the level of making child sexually abusive material within the 

scheme enacted by the Legislature.13 Rather, such a reading of the statute can only be 

reached if one fails to give full consideration to the statute’s graduated scheme of 

offenses and punishments and if the term “makes” is read in isolation and without 

considering the immediately surrounding words. When “makes” is given a meaning 

reasonably compatible with those companion terms, its most reasonable interpretation 

pertains to the creation or origination of the child sexually abusive material in the first 

instance. 

 13 In Tombs, we held that the criminal intent to knowingly possess child sexually 

abusive material was not the same as the criminal intent to promote or distribute child 

sexually abusive material. Tombs, 472 Mich at 448 (opinion by KELLY, J.). Similarly, 

we hold here that the criminal intent to knowingly possess child sexually abusive 

material, when the possession is accomplished by burning a CD-R for the purpose of 

possessing the prohibited images and not for future distribution or promotion, does not 

establish the criminal intent to produce or make child sexually abusive material. In 

Tombs, we also held that one who handed a computer containing child pornography to 

someone else did not distribute child pornography, even though the act of handing a 

computer to another person would satisfy a dictionary definition of “distribute.” The 

Court held that the act of intentionally handing a computer over to another was 

insufficient by itself to constitute distributing child pornography. Rather, there had to be 

some criminal intent to distribute, and the defendant in Tombs did not possess that intent. 

Similarly, defendant here burned CD-Rs, and these acts by themselves did not constitute 

making or producing child pornography because there was no proof beyond a reasonable 

doubt that this was defendant’s intent when he burned the CD-Rs for his personal use. 
17

We believe our conclusion is reinforced by consideration of the manner in which 

most persons ordinarily think about other types of Internet downloading. It is common 

today for computer users to legally, and sometimes illegally, download songs, movies, 

television shows, music videos, and books from the Internet. When such materials are 

subsequently burned to a CD-R or recordable DVD or some other storage device, as they 

often are, few would be inclined to characterize that conduct as the making or producing 

of that song, movie, television show, music video, or book. Such a characterization 

would, to say the least, be strained and incompatible with the “common and approved 

usage of the language . . . .” MCL 8.3a.14 

The Court of Appeals and the dissents focus on the fact that MCL 750.145c(1)(m) 

defines “child sexually abusive material” as “any depiction,” including any “reproduction 

[or] copy,” of a “computer-generated image, or picture . . . .” Thus, they read the 

prohibition against making or producing child sexually abusive material in conjunction 

with the fact that a reproduction or copy of a computer-generated image falls within the 

ambit of prohibited images in concluding that burning a prohibited image to a CD-R 

 14 We further believe the Court of Appeals’ analysis produces highly anomalous 

results. Consider two persons, one of whom downloads and burns child sexually abusive 

material to a CD-R for his personal possession and one of whom takes that CD-R and 

attempts to sell it. Under the dissents and the Court of Appeals’ decision, the downloader 

has committed a 20-year felony while the seller has committed only a 7-year felony. We 

do not believe that this is consistent with the Legislature’s intentions because the three 

tiers of MCL 750.145c instead suggest that the distributor is more criminally culpable 

than the downloader who, in order to obtain possession, has burned the prohibited images 

to a CD-R. When the Legislature has deemed the maker more culpable than the 

distributor, we disagree with the dissents’ broad interpretation of “make,” which we 

believe casts a far broader net than intended by the Legislature. 
18

constitutes making prohibited material. Again, we respectfully disagree. If an image 

constitutes child sexually abusive material, this is true without regard to whether a 

defendant is someone who arranges for, produces, makes, or finances, or who distributes 

or promotes, or who only knowingly possesses. In other words, once it is determined that 

an image constitutes child sexually abusive material, it must then be determined into 

which of the statute’s three tiers the defendant’s conduct falls. 

The fact that the definition of “child sexually abusive material” in MCL 

750.145c(1)(m) includes copies of computer-generated images does not provide 

particular insight into what either “makes” or “produces” means in MCL 750.145c(2). 

Rather, the fact that child sexually abusive material includes not just originals but also 

copies simply communicates that a person may be charged with knowingly possessing a 

copy of a computer-generated image, or with promoting or distributing a copy of a 

computer-generated image, or with arranging for, producing, making, or financing a copy 

of a computer-generated image, in a manner indistinguishable from the person engaged in 

those same activities in connection with an original image. 

Defendant here was convicted of five counts of producing or making child 

sexually abusive material on the basis of 5 specific images. A review of his 2 laptop 

computers and 50 CD-Rs revealed 5 copies of one of the images and fewer, or no, 

duplicates of the other images that sustained his convictions. The fact that 5 copies of a 

single prohibited image were found after searching 52 different locations containing 

approximately 70,000 images is insufficient, in our judgment, in the absence of other 

evidence to establish beyond a reasonable doubt a criminal intent on defendant’s part to 
19

produce or make this material.15 Since a common definition of “child sexually abusive 

material” applies to all three tiers of MCL 750.145c, we conclude that the Legislature did 

not intend that burning, or copying, images to a CD-R would have any special 

significance when determining which particular tier had been violated by that burning or 

copying. 

We are persuaded that the Legislature did not intend to impose the same maximum 

penalty on a person who downloads a prohibited image from the Internet and burns it to a 

CD-R for personal use as on the person who is responsible for the creation of the 

pornographic images of children. The latter is obviously more morally and criminally 

culpable than the person who downloads an image and saves it to another medium for 

personal use; at least, this is what the Legislature, in our judgment, has communicated by 

its enactment of MCL 750.145c. Those who arrange for, produce, make, or finance child 

sexually abusive material are punished more severely because they are the reason the 

images exist in the first place. 

While the Court of Appeals’ definition of “makes” has some dictionary support, 

its analysis was incomplete because it did not consider the statute as a whole and because 

it did not consider that “makes” should be given a meaning compatible with its 

 15 Cf. People v Peterson, 63 Mich App 538, 548; 234 NW2d 692 (1975): 

[T]he quantity of [marijuana] seeds possessed was so slight that we 

are constrained to find that reasonable jurors could not infer the intent to 

deliver from that quantity. There was no other evidence on the question of 

defendant's intent. It was therefore error for the trial judge to deny 

defendant's motion for a directed verdict of acquittal on the charged 

offense.
20

surrounding words. When properly construed, the terms “produces” and “makes” are 

best understood as addressing those who are involved in the creation or origination of 

child pornography, and not those who download and burn a CD-R of prohibited images 

for personal use. 

V. RESPONSE TO THE DISSENTS 

The dissents obscure the issue before the Court by emphasizing the large quantity 

of prohibited images found in defendant’s possession. There is no doubt that defendant 

possessed a very considerable amount of child sexually abusive material. However, the 

question before this Court is not whether defendant was a committed user of child 

sexually abusive material-- he was-- or whether he criminally violated MCL 750.145c-- 

he did-- but whether burning even a single prohibited image to a CD-R constitutes 

producing or making child sexually abusive material in violation of MCL 750.145c(2).16 

The dissents fail to adequately consider the statute’s overall organization and 

graduated scheme of offenses and punishments. As a consequence, the dissents end up 

blurring, and eventually ignoring altogether, the very distinct criminal definitions and 

requisite states of mind necessary to obtain a conviction under MCL 750.145c when they 

interpret “makes” as encompassing the conduct of a person who burns a prohibited image 

to a CD-R for the purpose of storing, or making permanent, his possession of that image. 

 16 Even Justice YOUNG recognizes this in asserting in his dissent that “[m]aking 

even a single copy of child pornography violates the statute.” Whether there is a large 

number of prohibited images in defendant’s possession may well be a factor for the trial 

court to consider at sentencing; however, this does not transform a violation of subsection 

(4) of MCL 750.145c into a violation of subsection (2) of that statute. 
21

Contrary to Justice YOUNG’s assertion that the majority “would prefer that the statute 

cease” after its most severe violation has been defined, it is the dissenting justices who 

inappropriately read this language in isolation, ignoring the overall structure and 

organization of the statute, ignoring the distinct offenses that the statute defines, and 

ignoring the gradations of punishment that the statute establishes. It is the dissents that 

distort what is manifest in the statute-- that distinctions are to be made among criminal 

violators, distinctions predicated on whether the violator has created or originated the 

material, distributed the material, or merely possessed the material. 

The dissents would compress nearly every criminal violator into the category of 

“creator” or “originator” on the basis of their having made a copy of material created or 

originated by others. Thus, to the dissenters, there is no distinction, as we believe is 

manifest in the statute, between a person who downloads and burns child sexually 

abusive material to a storage device and the person who procures the seven-year-old girl, 

pays her parents, and then produces a film or image in which she is depicted in sexual 

poses.17 However, these are distinctions that the Legislature has made, and they are 

reasonable distinctions. The dissents notwithstanding, we do not “relieve[] . . . of 

criminal responsibility” the computer downloader when we recognize that the Legislature 

drew distinctions in MCL 750.145c between types of misconduct. No criminal 

responsibilities are being “relieved” when legislative distinctions are respected and the 

 17 The question of what offense a mass producer of copies of a single prohibited 

image would be guilty is not before us, and we do not address it in this case. 
22

computer downloader of prohibited material is made subject to a 4-year term of 

imprisonment and the distributor of the same material is made subject to a 7-year term of 

imprisonment instead of the 20-year term of imprisonment reserved for the producer of 

the material, but for whose actions the material would never have existed in the first 

place. The Legislature is entitled to draw distinctions in its definitions of criminal 

activity, and this Court is obligated as a general matter to abide by those distinctions. 

Given that various things can be downloaded from the Internet and burned to other 

media, the dissents’ strained interpretation of the term “makes” would have consequences 

far beyond the instant case. A person can download-- legally or illegally-- songs, books, 

music videos, television shows, or movies from the Internet and burn them to another 

medium such as a CD-R or recordable DVD. Yet virtually no one beyond the dissenting 

justices would consider such a person to have “made” or “produced” those songs, books, 

music videos, television shows, or movies. The legal or illegal downloader of Star Wars

is not the equivalent of Stephen Spielberg, the legal or illegal downloader of The Da 

Vinci Code is not the equivalent of Dan Brown, and the legal or illegal downloader of the 

Sgt. Pepper’s Lonely Hearts Club Band album is not the equivalent of John Lennon or 

Paul McCartney. Even if these downloaders preserve the materials on a CD or DVD, 

they have not “made” those movies, “made” those books, or “made” that music in the 

same way as the creators of the materials.18 Similarly, we are satisfied that a person who 

 18 That the illegal downloading and burning of a song, movie, or book may 

constitute a violation of federal copyright law, as Justice YOUNG asserts, post at 9 n 8, 

bears little relevance to whether a person who downloads and burns for personal use a 
23

burns a prohibited image to a CD-R or recordable DVD for his personal use is not the 

equivalent of the person who procured the child, placed the cameras in front of her, and 

created or originated child sexually abusive material. While both are criminally liable, 

they are liable under different sections of the statute. 

Indeed, under the dissents’ interpretations, one might argue that someone who 

only viewed a prohibited image on a computer screen is guilty of making child 

pornography, given that computers themselves automatically store viewed images in 

temporary files. In other words, if Justice YOUNG genuinely believes that burning even a 

single prohibited image to a CD-R always constitutes making child pornography because 

it increases “the net amount of child pornographic images in existence,” it would seem 

that consistency would require that a defendant who is merely aware of such temporary 

files would also be guilty of making child sexually abusive material whenever he views 

those images. 

Finally, the dissents also assert that the majority has created “out of whole cloth” 

an “additional hurdle” by requiring proof of a defendant’s intent. This is plainly 

incorrect. There is nothing at all remarkable in a court’s reading a criminal intent into a 

criminal statute, given that such statutes are generally presumed to include a criminal 

intent. See Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 288 (1952); 

Staples v United States, 511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994); Tombs, 

 

song, movie, or book and thereby infringes on the copyright is making or producing the 

song, movie, or book under MCL 750.145c(2). 
24

472 Mich at 452-456 (opinion by KELLY, J.); id. at 465-468 (TAYLOR, C.J., concurring). 

Absent any state-of-mind requirement, a wife who transported her husband’s laptop to 

the police station because she suspected that it contained child sexually abusive material 

would herself arguably be a possessor and distributor of the material. See Tombs, 472 at 

458-459 (opinion by KELLY, J.). Similarly in this case, absent any state-of-mind 

requirement, a wife who downloaded a child sexually abusive image from her husband’s 

computer and brought it to the police would herself run the risk of being characterized as 

a maker of the material under the dissents’ interpretations of MCL 750.145c. Contrary to 

the dissents, it does not create an “additional hurdle” to prosecutions, or create a new 

statute “out of whole cloth,” to require proof of a criminal intent in a criminal statute. 

VI. CONCLUSION 

A defendant who downloads child sexually abusive material from the Internet and 

burns the images to a CD-R, when there is no evidence the defendant had a criminal 

intent to do something other than possess the CD-R for his own personal use, may not be 

convicted of violating MCL 750.145c(2), which makes it a 20-year felony for any person 

who “arranges for, produces, makes, or finances” “any child sexually abusive 

material . . . .” Rather, that person is properly convicted of knowing possession of child 

sexually abusive material in violation of MCL 750.145c(4), a 4-year felony. The three 

tiers of offenses and punishments in MCL 750.145c compellingly indicate the Legislature 

did not intend to impose the same maximum penalty on a person who downloads a 

prohibited image from the Internet and burns it to a CD-R for personal use as on a person 

who is involved in the creation or origination of child sexually abusive material. 
25

Therefore, we reverse in part the judgment of the Court of Appeals, vacate defendant’s 

convictions under MCL 750.145c(2), and remand for further proceedings not inconsistent 

with this opinion. 

KELLY, C.J., and CAVANAGH and HATHAWAY, JJ., concurred with MARKMAN, J. 
S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 138668 

BRIAN LEE HILL, 

 Defendant-Appellant. 

WEAVER, J. (dissenting). 

I dissent from the majority opinion, which reverses in part the judgment of the 

Court of Appeals and vacates defendant’s convictions under MCL 750.145c(2). I would 

affirm defendant’s convictions under MCL 750.145c(2) because defendant intentionally 

made copies of child sexually abusive material. 

In this case, police officers obtained two laptop computers and numerous 

recordable compact discs from defendant’s home containing approximately 70,000 to 

80,000 pornographic images of boys ranging in age from “toddlers to teens.” Within 

defendant’s immense collection of pornographic images, authorities found multiple 

copies of a single pornographic image. The copies created the basis for charging 

defendant with making child sexually abusive material. 

I agree with Justice YOUNG’s statement in his dissent: “[T]he majority opinion 

relieves a defendant of criminal responsibility for making copies of child pornography 
2

‘for personal use’ and creates out of whole cloth an additional hurdle for those 

prosecuting individuals who make child pornography . . . .” 

 Elizabeth A. Weaver 
S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 138668 

BRIAN LEE HILL, 

 Defendant-Appellant. 

YOUNG, J. (dissenting). 

In this case, defendant admitted making 50 recordable compact discs (CD-Rs) 

containing approximately 70,000 to 80,000 pornographic pictures depicting boys from 

“toddlers to teens,” as well as videos depicting 12- to 13-year-old boys engaged in sexual 

acts. Within this compendious library of child pornography, multiple copies of one 

particular pornographic image formed the basis of the charges that were lodged against 

defendant for making child sexually abusive material.1

 1

 Five images, described as “Jeff0015.jpg,” were created on defendant’s laptop 

computer on October 5, 2002, and September 9, 2003, and found on three separate 

CD-Rs created April 15, 2003, April 26, 2003, and June 11, 2003. The record also 

indicates that the Jeff0015.jpg file was attached to a November 28, 2003, e-mail. 

However, a computer forensic examiner testified that she was unable to determine 

whether defendant sent the e-mail or received it. 
2

The statute under which defendant was convicted plainly applies to any person 

who “makes” copies of child pornography.2

 Here, despite the uncontested proof that 

defendant made numerous copies of one particular pornographic image, the majority 

opinion reverses defendant’s convictions because it contends that he merely intended to 

possess the copied images “for personal use” and because the majority opinion finds it 

“simply untenable” that the Legislature would punish “those who download and maintain 

that material for personal use” as harshly as those involved in the “creation or 

origination” of child pornography. 

However, the straightforward language of the statute is not limited to the original 

creator of the child pornography. Rather, MCL 750.145c(2) explicitly criminalizes 

making copies of child pornography, without requiring the prosecution to prove what the 

defendant intended to do with the child pornography once the crime had been committed, 

that is, once the copies had been made. Because the majority opinion relieves a 

defendant of criminal responsibility for making copies of child pornography “for personal 

use” and creates out of whole cloth an additional hurdle for those prosecuting individuals 

who make child pornography, I vigorously dissent. 

The relevant portions of MCL 750.145c provide: 

(2) 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 

 2

 MCL 750.145c(1)(m); MCL 750.145c(2). 
3

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 . . . . 

(3) 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 . . . . 

(4) 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 . . . . [Emphasis 

added.] 

Also critical to interpreting the prohibition against making child pornography is 

the statutory definition of two relevant terms. “Child sexually abusive activity” is 

defined as “a child engaging in a listed sexual act,”3

 while “child sexually abusive 

material” is statutorily defined as 

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.[4] 

 3

 MCL 750.145c(1)(l). When defendant created the images at issue, the definition 

was codified at MCL 750.145c(1)(k). 

4

 MCL 750.145c(1)(m) (emphasis added). When defendant created the images, 

this definition was codified at MCL 750.145c(1)(l). 
4

I agree with the majority opinion that MCL 750.145c establishes a graduated 

scheme of offenses and punishments. Broken down into its simplest terms, the statute 

provides a 20-year maximum sentence for those who make child pornography, a 7-year 

maximum sentence for those who distribute child pornography, and a 4-year maximum 

sentence for those who knowingly possess child pornography. It is the most severe 

sanction—the 20-year maximum sentence for those who make child pornography—that 

is at issue in this case. 

MCL 750.145c(2) contains two distinct clauses, separated by the conjunction “or.” 

The first clause covers 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 . . . .” This clause penalizes those who 

cause a child to engage in a sexual act for the purpose of producing child pornography. 

These are the “creators” or “originators” of the child pornography, those whom the 

majority opinion acknowledges as having “direct contact with a minor.” 

While the majority would prefer that the statute cease at the creators or originators 

of the child pornography, it does not. The second clause of MCL 750.145c(2) imposes 

criminal sanctions on a person who “arranges for, produces, makes, or finances . . . any 

child sexually abusive activity or child sexually abusive material . . . .”

5

 (Emphasis 

added.) The latter portion of the statutory provision pertains to more than the child 

 5

 The statute also imposes criminal sanctions on one who “attempts or prepares or 

conspires to” arrange for, produce, make, or finance any child sexually abusive activity or 

child sexually abusive material. MCL 750.145c(2). 
5

sexually abusive activity—significantly, it also relates to the child sexually abusive 

material. And that is a critical point in any effort to give full meaning to this statute. 

As noted, “child sexually abusive material” is statutorily defined as any depiction

of a child engaged in a sexual act. The statute uses broad language to cover a wide range 

of image formats, including images produced by electronic, mechanical, or other means, 

photographs, pictures, films, slides, videos, electronic visual images, books, and 

magazines. It also includes depictions on a computer diskette, a computer, or a computer 

storage device. Significantly, “child sexually abusive material” includes “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.”6

 

The definitive question in this case is quite simple: did defendant “produce [or] 

make” a “reproduction [or] copy” of an “electronic visual image,” a “computer, or 

computer-generated image,” or other “visual or print” medium when he took the 

deliberate action of copying “Jeff0015.jpg” to his computer hard drive? Unquestionably, 

the answer is yes. Defendant then took the additional, volitional steps of copying that 

image to his computer a second time, as well as copying it to several CD-Rs. 

The majority opinion’s conclusion that MCL 750.145c(2) is “primarily concerned” 

with punishing “the creation or origination” of child pornography and “not those who 

download” it “for personal use” has no basis in the language of the statute. Indeed, the 

 6

 MCL 750.145c(1)(m). 
6

majority opinion takes great pains to avoid noting or giving significance to the fact that 

by downloading and successively copying child pornography, defendant intentionally 

produced or made a “reproduction [or] copy” of the same illicit pornographic image five 

distinct times. 

Forced to acknowledge that the plain language of the statute says what it says and 

that “a person may be charged with” “producing, making, or financing a copy of a 

computer-generated image” in a “manner indistinguishable from the person” who created 

the original image, the majority opinion nevertheless proceeds to write the second clause 

of MCL 750.145c(2) out of existence by concluding that a defendant’s ultimate plans for 

the child pornography negate the criminal prohibition regarding the method of 

acquisition.7

 Presumably, a defendant copying child pornography would only ever do so 

for one of two purposes—either to possess it for himself or to distribute it to others. Both 

of these purposes are reflected in MCL 750.145c(3) and (4), which provide for a 7-year 

maximum sentence for those who distribute child pornography and a 4-year maximum 

sentence for those who possess child pornography. Under the majority opinion, despite 

the clear mandate imposing a 20-year sentence on those who make copies of child 

 7

 Our criminal code is replete with examples of crimes that have heightened 

consequences because of a defendant’s chosen method of committing the crime. For 

example, one who commits an assault is generally subject to a 93-day jail term for that 

misdemeanor. MCL 750.81. However, if the same assault is committed with a 

dangerous weapon, the crime is a four-year felony. MCL 750.82. If the analysis used in 

the majority opinion were applied to a felonious assault case, one would be forced to 

conclude that the defendant merely intended to commit a 93-day misdemeanor, not a 

four-year felony, despite the uncontested evidence that a dangerous weapon was used 

during the assault. 
7

pornography, a defendant who makes copies of child pornography will never face more 

than either 4 or 7 years’ imprisonment. 

By holding that a defendant who makes copies of child pornography is guilty of 

only a 4-year felony when the copies are made “for personal use,” the majority opinion 

essentially holds that defendant’s criminal liability is limited to that of a mere possessor 

under MCL 750.145c(4). However, under the plain language of the statute, defendant is 

more than a mere possessor of child pornography. The majority’s holding is especially 

hard to square with the fact that defendant took the additional, volitional steps of copying 

the images to his computer and separately to CD-Rs. I believe that these actions fall 

squarely under MCL 750.145c(2) rather than MCL 750.145c(4). As the Court of Appeals 

opinion noted, it is certainly possible to possess child pornography without copying or 

reproducing the images. Indeed, defendant could have satisfied his yen for “personal 

use” of child pornography and “merely possessed” the images by viewing them on the 

Internet without actually copying the images to his computer twice and recopying the 

images to several entirely separate compact discs. However, once he copied an image, he 

clearly violated MCL 750.145c(2). While the majority opinion maintains that the 

originator of child pornography is “obviously more morally” and “more criminally” 

culpable than the copier of child pornography, nothing in the statutory scheme indicates 

that the Legislature shares the majority’s culpability assessment. Indeed, the clear 

language of the statute indicates that the Legislature has deemed that both are equally 

culpable, and certainly more culpable than a defendant who possesses an illicit image 

without having taken the additional step of copying it. 
8

The majority opinion also indicates that defendant’s making “5 copies of a single 

prohibited image” is insufficient as a matter of law to sustain defendant’s convictions. 

This is a conclusion that has absolutely no basis in the text of the statute. It is unclear to 

me why making five copies of an identical pornographic image of a minor is insufficient 

to sustain defendant’s convictions because the entirety of MCL 750.145c(2) contains no 

numerical minimum requirement concerning copies of child pornography. Making even 

a single copy of child pornography violates the statute. The reason the majority opinion 

makes no effort to explain the calculus involved in determining that making five copies is 

insufficient is because it simply cannot justify such a conclusion. 

The majority opinion runs far afield in responding to this dissent—and naturally so 

because the statutory language is clear and the majority is forced to strain in order to 

justify its conclusion. Central to the majority opinion’s argument is its false conclusion 

that MCL 750.145c(2) is limited to the originator of child pornography. Thus, only those 

defendants having “direct contact with a minor” may be charged with violating MCL 

750.145c(2). Not surprisingly, the majority opinion gives absolutely no meaning to the 

fact that the statute also encompasses those who make copies of child pornography, not 

merely those who “procured the child” and “placed the cameras in front of her.” 

While the hyperbole comparing child pornography to downloading materials from 

the Internet in violation of federal copyright laws certainly makes for entertaining 

reading, it is equivalent to comparing apples to orangutans. The federal copyright laws 

encompass those who willfully infringe a copyright, which includes making copies of the 
9

creator’s copyrighted material.8

 By including a “reproduction [or] copy” of pornographic 

child images in the definition of “child sexually abusive material,” the very material 

prohibited under MCL 750.145c(2), the Legislature has unambiguously indicated that 

one need not be the Cecil B. DeMille of child pornography in order to run afoul of MCL 

750.145c(2) for "mak[ing]" child sexually abusive material.

I find nothing vexing, much less “simply untenable,” about our Legislature’s 

decision to place an increased sanction on defendants who make copies of child 

pornography, thereby increasing the net amount of child pornographic images in 

existence. Because there is no question that defendant intentionally made multiple copies 

of child pornography, his convictions were proper and should be affirmed. Because the 

 8

 Title 17 of the United States Code establishes a creator's intellectual property 

rights in original works. 17 USC 102(a). The owner of the copyright has “the exclusive 

rights to do and to authorize . . . to reproduce the copyrighted work in copies,” 17 USC 

106(1), and “to distribute copies” of the copyrighted work, 17 USC 106(3). Federal law 

also establishes penalties for copyright infringement. It allows the copyright owner “to 

institute an action for any infringement,” 17 USC 501(b), including injunctive relief (17 

USC 502), impounding prohibited material (17 USC 503), and damages (17 USC 504). 

Federal law also criminalizes an intentional copyright infringement committed 

“for purposes of commercial advantage or private financial gain[.]” 17 USC 

506(a)(1)(A). There is a three-tiered system of punishment, as provided in 18 USC 

2319(b): a 5-year maximum sentence for reproducing or distributing at least 10 copies 

of one or more copyrighted works whose total retail value is greater than $2,500, a 10-

year maximum for repeat felony offenders, and a 1-year maximum for any other case. 

Thus, making unauthorized “copies” is precisely the nature of a copyright infringement 

claim. 
10

majority opinion concludes otherwise, and because it creates additional hurdles to the 

prosecution of those who copy child pornography, I dissent. 

CORRIGAN, J., concurred with YOUNG, J.