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Brief Summary: Defendant was bound over for trial on various charges, including "the making and producing of child sexually abusive material." The charges stemmed from police discovery of CD-Rs created by defendant that contained images and movies of children engaged in sexual activity. Defendant moved to quash the charges based on the CD-Rs, arguing that copying files to CD-Rs was merely an extension of his possession of child pornography, and did not constitute "making or producing." The trial court denied the motion to quash and defendant appealed.

Facts: During the course of an investigation of surreptitious videotaping, police searched defendant's home. In addition to a hidden camera and taping system, police found 22 CD-Rs. An examination of the CD-Rs revealed thousands of images of child pornography, which defendant admitted downloading on his computer and "burning" to disk. In addition to charges relating to the surreptitious videotaping, defendant was charged with "making or producing" child pornography in violation of MCL 750.145c(2), through the use of a computer in violation of MCL 752.796 and MCL 752.797(3)(f).

Mere possession of child pornography under Michigan law is punishable by up to 4 years in prison; conviction for the making or producing of child pornography carries a potential prison term of up to 20 years. Defendant moved to quash the production indictments, on the grounds that copying files to CD-Rs without some other evidence of intent to distribute is not what the Michigan legislature had in mind when it criminalized the making or production of child pornography. Hill also argued that the intent of the statute was to punish the original producers of child pornography (i.e., those who directly exploit children) and not those who merely copy files.

The trial court bound Hill over on all counts, including the "making and producing" of child pornography. Hill appealed the decision to the Muskegon Circuit Court, which upheld the trial court's decision. Hill then appealed the circuit court decision to the Michigan Court of Appeals.

On appeal, defendant raised several challenges, including the argument that the prosecution failed to offer sufficient evidence to support the convictions. Specifically, King argued that the prosecution failed to offer: (1) eyewitness testimony that he downloaded the images; (2) testimony that he was in control of the computer at the time the images were downloaded; and (3) evidence that he had knowledge of the character of the images.

Issue(s): Whether the trial court erred in denying Hill's motion to quash the information charging him with violation of MCL 750.145c(2) of the Michigan Penal Code stemming from the copying of child pornography to CD-Rs.

Ruling: No, the trial court did not err.

Rationale: When Hill downloaded child sexually abusive content from the Internet and copied it to the CD-Rs, "he was making or producing copies or reproductions of images depicting children engaged in sexual acts, or in other words, he was making child sexually abusive material as contemplated by MCL 750.145c(2)." Hill's argument that the transfer to CD-R is simply an extension of his "possession" of the material (a separate offense) is not persuasive, because Hill consciously created a new copy or version of the contraband material. As a matter of plain language, the CD-Rs were Hill's own creation; they did not exist until he made them. The Appeals Court analogized to a situation where someone receives a child pornography magazine from someone and proceeds to make copies of the images in the magazine. That too, the Court said, would be a violation MCL 750.145c(2).

The Court rejected Hill's argument that the Legislature only intended to apply the 20-year prison penalty to individuals who were directly involved in the original production of the child pornography. Under the plain language of the statute, the Court said, an individual who makes a copy of a child pornography image is as guilty as the individual who takes the original photograph.

The Court also distinguished its earlier decision in People v. Tombs, 472 Mich 446, 697 NW2d 494 (2005), in which the Michigan Supreme Court overturned a conviction of a man who was convicted of "distributing" child pornography when he returned a laptop containing child pornography images to his former employer. In that case, the Supreme Court concluded that he did not have the requisite criminal intent in order to sustain a conviction for "distribution." In the instant case, the Appeals Court concluded that the requirements of the statute were met because Hill had the requisite intent to make the CD-Rs. As in Tombs, where "possession" did not equal "distribution," the Appeals Court made it clear that "possession" does not equal "making" or "production." In Hill's case, however, the prosecution presented evidence of activity beyond mere possession.