News & Notices

From the Committee of Model Criminal Jury Instructions February 2025

February 2026

Michigan Bar Journal

From the Committee on Model Criminal Jury Instructions

The Committee proposes two new instructions, M Crim JI 11.30a (Manufacture, Sale, or Possession of Semiautomatic Firearm Conversion Device) and M Crim JI 11.30b (Demonstrating How to Manufacture or Install Semiautomatic Firearm Conversion Device), to address the crimes set forth in MCL 750.224e. These instructions are entirely new.

[NEW] M Crim JI 11.30a

Manufacture, Sale, or Possession of Semiautomatic Firearm Conversion Device

(1) The defendant is charged with the crime of [manufacturing / selling / distributing / possessing / attempting to (manufacture / sell / distribute / possess)] a device to convert a semiautomatic firearm into a fully automatic firearm. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [manufactured¹ / sold² / distributed / possessed / attempted to (manufacture / sell / distribute / possess)] a device that was [designed / intended to be used] to convert a semiautomatic firearm into a fully automatic firearm.

A “firearm” includes any weapon which will, or is designed to, or may readily be converted to expel a projectile by action of an explosive.³

A “fully automatic firearm” uses gas pressure or force of recoil to mechanically eject an empty cartridge from the firearm after a shot and to load the next cartridge from the magazine without renewed pressure on the trigger for each successive shot.⁴

A “semiautomatic firearm,” in contrast, requires the shooter to renew pressure on the trigger for every shot.⁵

(3) Second, that at the time [he / she] [manufactured / sold / distributed / possessed / attempted to (manufacture / sell / distribute / possess)] the conversion device, the defendant knew that it was [designed / intended to be used] to convert a semiautomatic firearm into a fully automatic firearm.

[(4) Third, that when the defendant (manufactured / sold / distributed / possessed / attempted to [manufacture / sell / distribute / possess]) the conversion device, (he / she) was not acting in the course of (his / her) official duties as (an employee / a member) of (identify law enforcement agency or branch of the armed services).]⁶

[(5) [Third / Fourth], that the defendant did not lawfully obtain possession of the conversion device as a licensed collector on or before March 27, 1991.]⁷

Use Notes

When appropriate, define this term using M Crim JI 11.31, Definition of Manufacture.
When appropriate, define this term using M Crim JI 11.32, Definition of Sell.
Firearm is defined in MCL 750.222(e).
Fully automatic firearm is defined in MCL 750.224e(4)(a).
Semiautomatic firearm is defined in MCL 750.224e(4)(c).
Use the bracketed material in this paragraph only when there is evidence that the defendant is an employee or member of a law enforcement agency or a branch of the armed services. See MCL 750.224e(3)(a)-(d).
Use the bracketed material in this paragraph only when there is evidence that the defendant is a licensed collector and he or she is not charged with manufacturing, selling, or distributing the conversion device. See MCL 750.224e(3)(e). Licensed collector is defined in MCL 750.224e(4)(b)

[NEW] M Crim JI 11.30b

Demonstrating How to Manufacture or Install Semiautomatic Firearm Conversion Device

(1) The defendant is charged with the crime of [demonstrating / attempting to demonstrate] how to [manufacture / install] a device to convert a semiautomatic firearm into a fully automatic firearm. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [demonstrated / attempted to demonstrate] to [another person / (name person)] how to [manufacture¹ / install] a device to convert a semiautomatic firearm into a fully automatic firearm.

A “firearm” includes any weapon which will, or is designed to, or may readily be converted to expel a projectile by action of an explosive.²

A “semiautomatic firearm,” in contrast, requires the shooter to renew pressure on the trigger for every shot.⁴

(3) Second, that at the time of the [demonstration / attempted demonstration], the defendant knew that the device would convert a semiautomatic firearm into a fully automatic firearm.

(4) [Third, that when the defendant (conducted / attempted to conduct) this demonstration, (he / she) was not acting in the course of (his / her) official duties as (an employee / a member) of (identify law enforcement agency or branch of the armed services).]⁵

Use Notes

When appropriate, define this term using M Crim 11.31, Definition of Manufacture.
Firearm is defined in MCL 750.222(e).
Fully automatic firearm is defined in MCL 750.224e(4)(a).
Semiautomatic firearm is defined in MCL 750.224e(4)(c).
Use the bracketed material in this paragraph only when there is evidence that the defendant is an employee or member of a law enforcement agency or a branch of the armed services. See MCL 750.224e(3)(a)-(d).

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by May 1, 2026. Comments may be sent in writing to Christopher M. Smith, Reporter, Committee on Model Criminal Jury Instructions, Michigan Hall of Justice, P.O. Box 30052, Lansing, MI 48909-7604, or electronically to MCrimJI@courts.mi.gov.

PROPOSED

The Committee proposes amending M Crim JI 17.6 (Assault and Infliction of Serious Injury) to make the mens rea element more consistent with MCL 750.81a(1), as well as to account for the Legislature’s recent addition of an enhanced fine for aggravated assaults against healthcare professionals. Deletions are in ~~strikethrough~~, and new language is underlined.

[AMENDED] M Crim JI 17.6

Assault and Infliction of Serious Injury (Aggravated Assault)

(1) [The defendant is charged with the crime of ~~______________________~~ / You may also consider the lesser charge of¹] assault and infliction of serious injury. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant ~~tried to physically injure another person~~ [assaulted² / assaulted and battered]³ [name complainant].

A battery is the forceful, violent, or off\ensive touching of a person or something closely connected with him or her.⁴

The touching must have been intended by the defendant, that is, not accidental, and it must have been against [name complainant]’s will.

An assault is an attempt to commit a battery or an act that would cause a reasonable person to fear or apprehend an immediate battery. The defendant must have intended either to commit a battery or to make [name complainant] reasonably fear an immediate battery.5 [An assault cannot happen by accident.] At the time of an assault, the defendant must have had the ability to commit a battery, or must have appeared to have the ability, or must have thought [he / she] had the ability.

~~(3) Second, that the defendant intended to injure [name complainant] [or intended to make (name complainant) reasonably fear an immediate battery].~~

(4) (43) ~~Third~~ Second, that the [assault / assault and battery] caused a serious or aggravated injury. A serious or aggravated injury is a physical injury that requires immediate medical treatment or that causes disfigurement, impairment of health, or impairment of a part of the body.⁶

(5) [(4) Third, that the assault occurred when (name complainant) was performing (his / her) duties as a health professional or medical volunteer, and the defendant was not a patient receiving treatment from (name complainant).⁷]

Use Notes

Use when instructing on this crime as a lesser included offense.
Rarely, serious injury will result from an attempt to frighten. In that instance, a further or substitute instruction on assault should be given: “An assault is also any forceful or violent act done with the intention of frightening someone else. The act must be such as would cause a reasonable person to be afraid of being injured.”
Use either or both as warranted by the evidence.
If the victim’s consent or nature of the touching is at issue, use of M Crim JI 17.14, Definition of Force and Violence, or M Crim JI 17.15, Definition of Touching, is recommended.
All assaults are specific intent crimes. People v Johnson, 407 Mich 196; 284 NW2d 718 (1979).
This definition of serious or aggravated injury was approved in People v Norris, 236 Mich App 411, 415 n3; 600 NW2d 658 (1999).
Read this element when the prosecution seeks the enhanced fine under MCL 750.81a(1). See Southern Union Co v United States, 567 US 343, 356 (2012). Health professional and medical volunteer are defined in MCL 750.81a(5).

PROPOSED

The Committee proposes creating M Crim JI 20.16b (Mental Health Professional) for fourth-degree criminal sexual conduct arising out of a patient-therapist relationship. See MCL 750.520e(1)(e). This instruction is entirely new. The Committee also proposes amending M Crim JI 20.13 (Criminal Sexual Conduct in the Fourth Degree) to cross-reference the new instruction. Deletions are in ~~strikethrough~~, and new language is underlined.

[NEW] M Crim JI 20.16b

Mental Health Professional

(1) Third, that the defendant was a mental health professional, that is, [he / she] was [a physician / a psychologist / authorized to engage in the practice of (nursing / social work at the master’s level / counseling / marriage and family therapy)] and had training and experience in the area of mental illness or developmental disabilities.¹

(2) Fourth, that the touching occurred during the time when [name complainant] was the defendant’s [client / patient] or no more than two years after the end of their professional relationship.²

(3) [Fifth, that (name complainant) was not the defendant’s spouse when the touching occurred.]³

(4) It does not matter whether [name complainant] gave consent when the defendant [touched (him / her) / made, permitted, or caused (name complainant) to touch (him / her)].

Use Notes

Use this instruction only in conjunction with M Crim JI 20.13, Criminal Sexual Conduct in the Fourth Degree.

MCL 750.520a(g) defines mental health professional by incorporating the definition found in MCL 330.1100b.
MCL 750.520e(1)(e) directs that “[a] prosecution under this subsection shall not be used as evidence that the victim is mentally incompetent.”
Use this paragraph only when there is a question of fact concerning whether the defendant and the complainant were married at the time of the alleged sexual contact.

[AMENDED] M Crim JI 20.13

Criminal Sexual Conduct in the Fourth Degree

(1) The defendant is charged with the crime of fourth-degree criminal sexual conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant intentionally [touched (name complainant)’s / made, permitted, or caused (name complainant) to touch (his / her)] [genital area / groin / inner thigh / buttock / (or) breast] or the clothing covering that area.

(3) Second, that when the defendant [touched (name complainant) / made, permitted, or caused (name complainant) to touch (him / her)] it could reasonably be construed as being done for any of these reasons: (a) for sexual arousal or gratification,

(b) for a sexual purpose, or

(ii) to inflict humiliation or

(iii) out of anger.

(4) [Follow this instruction with M Crim JI 20.14a, M Crim JI 20.14b, M Crim JI 20.14c, M Crim JI 20.14d, M Crim JI 20.15, M Crim JI 20.16, or M Crim JI 20.16a, or M Crim JI 20.16b as warranted by the charges and evidence.]

Use Note

Use this instruction where the facts describe an offensive touching not included under criminal sexual conduct in the second degree.

PROPOSED

The Committee proposes amending M Crim JI 20.38 (Child Sexually Abusive Activity – Causing or Allowing), M Crim JI 20.38a (Child Sexually Abusive Activity – Producing), M Crim JI 20.38b (Child Sexually Abusive Activity – Distributing), and M Crim JI 20.38c (Child Sexually Abusive Activity – Possessing or Accessing) to account for the sentencing enhancements added by the Legislature in 2019. This proposal would also modify the title of each instruction to more accurately describe the offense at issue. Deletions are in ~~strikethrough~~, and new language is underlined.

[AMENDED] M Crim JI 20.38

Child Sexually Abusive ~~Activity~~ Material– Causing or Allowing

(1) The defendant is charged with the crime of causing or allowing a child to engage in sexually abusive activity in order to create or produce child sexually abusive material. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [persuaded / induced / enticed / coerced / caused / knowingly allowed] a child under 18 years old to engage in child sexually abusive activity.

(3) Child sexually abusive activity includes:

[Choose any of the following that apply:]¹

(a) sexual intercourse, which is genital-genital, oral-genital, anal-genital, or oral-anal penetration, whether the intercourse is real or simulated, and whether it is between persons of the same or opposite sex, or between a person and an animal, or with an artificial genital, [and / or]

(b) erotic fondling, which is the touching of a person’s clothed or unclothed genitals, pubic area, buttocks, female breasts, or the developing or undeveloped breast area of a child for the purpose of sexual gratification or stimulation of any person involved, but does not include other types of touching, even if affectionate, [and / or]

(c) sadomasochistic abuse, which is restraining or binding a person with rope, chains, or any other kind of binding material; whipping; or torturing for purposes of sexual gratification or stimulation, [and / or]

(d) masturbation, which is stimulation by hand or by an object of a person’s clothed or unclothed genitals, pubic area, buttocks, female breasts, or the developing or undeveloped breast area of a child for sexual gratification or stimulation, [and / or]

(e) passive sexual involvement, which is watching, drawing attention to, or exposing someone to persons who are performing real or simulated sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, sexual excitement, or erotic nudity for the purpose of sexual gratification or stimulation of any person involved, [and / or]

(e) sexual excitement, which is the display of someone’s genitals in a state of stimulation or arousal, [and / or]

(f) erotic nudity, which is showing the genital, pubic, or rectal area of someone in a way that tends to produce lewd or lustful emotions.

(4) Second, that the defendant caused or allowed the person to engage in child sexually abusive activity for the purpose of producing or making child sexually abusive material. Child sexually abusive materials are pictures, movies, or illustrations, made or produced by any means,² of [a person under 18 years old / the representation of a person under 18 years old] engaged in sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, and/or erotic nudity.²

(5) (Third, that the defendant knew or reasonably should have known that the person was less than 18 years old, or failed to take reasonable precautions to determine whether the person was less than 18 years old.³

[Add the following paragraph if appropriate:]⁴

(6) Fourth, that the child sexually abusive activity or the child sexually abusive material involved

[Choose any of the following that apply:]

(a) a child who has not yet reached puberty, or

(b) sadomasochistic abuse, which [I have already defined / is restraining or binding a person with rope, chains, or any other kind of binding material; whipping; or torturing for purposes of sexual gratification or stimulation], or

(d) a video or more than 100 images of child sexually abusive material.

Use Notes

The statute prohibits both real and simulated sexual acts. Where the acts are simulated, or simulated acts are included, the instructions should be modified accordingly.
The statute, MCL 750.145c(1)(o), provides a list of forms that child sexually abusive materials can take:

. . . 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.

The Committee on Model Criminal Jury Instructions believes that the phrase, “pictures, movies, or illustrations, made or produced by any means,” will generally suffice to describe such materials. However, the court may prefer to select a more specific term or phrase from the statutory list.

(3) The statute lists several alternatives for this element of the offense in MCL 750.145c(2), (3), and (4):

. . . 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.

Generally, the language of the instruction will suffice. However, in appropriate cases, the court may select some or all of the other statutory language for this element.

(4) Paragraph (6) applies when the prosecution seeks the enhanced sentence set forth in MCL 750.145c(2)(b). It need not be given when sadomasochistic abuse is the only type of child sexually abusive activity being alleged because, in that scenario, the jury will have already found the facts pertaining to the sentence enhancement.

(5) MCL 750.145c uses the term bestiality but does not define it. In People v Carrier, 74 Mich App 161, 165-166; 254 NW2d 35 (1977), the Court of Appeals indicated that bestiality encompasses sexual acts between a man or woman and an animal. These acts are not limited to anal copulation.

[AMENDED] M Crim JI 20.38a

Child Sexually Abusive ~~Activity~~ Material – Producing

(1) The defendant is charged with the crime of producing child sexually abusive material. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [arranged for / produced / made¹ / copied / reproduced / financed / (attempted / prepared / conspired) to (arrange for / produce / make / copy / reproduce / finance)] child sexually abusive [activity / material].

(3) Child sexually abusive materials are pictures, movies, or illustrations, made or produced by any means,² of [a person under 18 years old / the representation of a person under 18 years old] engaged in one or more of the following sexual acts:

[Choose any of the following that apply:]³

(f) sexual excitement, which is the display of someone’s genitals in a state of stimulation or arousal, [and / or]

(g) erotic nudity, which is showing the genital, pubic, or rectal area of someone in a way that tends to produce lewd or lustful emotions.

[Choose either (4) or (5), depending on whether the depiction is an actual person or is a created representation of a person under the age of 18:]

(1) Second, that the defendant knew or should reasonably have known that the person shown in the sexually abusive material was less than 18 years old, or failed to take reasonable precautions to determine whether the person was less than 18 years old.⁴

(2) Second, that the defendant produced a portrayal of a person appearing to be less than 18 years old, knowing that the person portrayed appeared to be less than 18 years old, and all of the following conditions apply:⁴

(a) An average person, applying current community standards, would find that the material appealed to an unhealthy or shameful interest in nudity, sex, or excretion.⁵

(b) A reasonable person would not find any serious literary, artistic, political, or scientific value in the material.

(c) The material shows or describes sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity, as previously described for you.

[Add the following paragraph if appropriate:]⁶

(6) Third, that the child sexually abusive activity or the child sexually abusive material involved

[Choose any of the following that apply:]

(a) a child who has not yet reached puberty, or

(d) a video or more than 100 images of child sexually abusive material.

Use Notes

Make is defined in MCL 750.145c(1)(j) as:

. . . to bring into existence by copying, shaping, changing, or combining material, and specifically includes, but is not limited to, intentionally creating a reproduction, copy, or print of child sexually abusive material, in whole or part. Make does not include the creation of an identical reproduction or copy of child sexually abusive material within the same digital storage device or the same piece of digital storage media.

2. The statute, MCL 750.145c(1)(o), provides a list of forms that child sexually abusive materials can take:

(3) The statute prohibits both real and simulated sexual acts. Where the acts are simulated, the instructions should be modified accordingly.

(4) The statute lists several alternatives for this element of the offense in MCL 750.145c(2), (3), and (4):

(5)

Generally, the language of the instruction will suffice. However, in appropriate cases, the court may select some or all of the other statutory language for this element.

(5) If necessary, excretion may be defined as the act or product of urinating or defecating.

(6) Paragraph (6) applies when the prosecution seeks the enhanced sentence set forth in MCL 750.145c(2)(b). It need not be given when sadomasochistic abuse is the only type of child sexually abusive material being alleged because, in that scenario, the jury will have already found the facts pertaining to the sentence enhancement.

(7) MCL 750.145c uses the term bestiality but does not define it. In People v Carrier, 74 Mich App 161, 165-166; 254 NW2d 35 (1977), the Court of Appeals indicated that bestiality encompasses sexual acts between a man or woman and an animal. These acts are not limited to anal copulation.

[AMENDED] M Crim JI 20.38b

Child Sexually Abusive ~~Activity~~ Material – Distributing

(1) The defendant is charged with the crime of distributing child sexually abusive material. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [distributed / promoted / financed the (distribution / promotion) of / received for the purpose of (distributing / promoting) / (conspired / attempted / prepared) to (distribute / receive / finance / promote)] child sexually abusive [material / activity].

(3) Child sexually abusive materials are pictures, movies, or illustrations¹ of [a person under 18 years old / the representation of a person under 18 years old] engaged in one or more of the following sexual acts:

[Choose any of the following that apply:]²

(f) sexual excitement, which is the display of someone’s genitals in a state of stimulation or arousal, [and / or]

(g) erotic nudity, which is showing the genital, pubic, or rectal area of someone in a way that tends to produce lewd or lustful emotions.

[Choose either (4) or (5), depending on whether the depiction is an actual person or is a created representation of a person under the age of 18:]

(5) Second, that the defendant knew or should reasonably have known3 that the person shown in the sexually abusive material was less than 18 years old, or failed to take reasonable precautions to determine whether the person was less than 18 years old.

(6) Second, that the defendant distributed a portrayal of a person appearing to be less than 18 years old, knowing that the person portrayed appeared to be less than 18 years old, and all of the following conditions apply:

(a) An average person, applying current community standards, would find that the material appealed to an unhealthy or shameful interest in nudity, sex, or excretion.⁴

(b) A reasonable person would not find any serious literary, artistic, political, or scientific value in the material.

[Add the following paragraph if appropriate:]⁵

(7) Third, that the child sexually abusive activity or the child sexually abusive material involved

[Choose any of the following that apply:]

(a) a child who has not yet reached puberty, or

(d) a video or more than 100 images of child sexually abusive material.

Use Notes

(1) The statute, MCL 750.145c(1)(o), provides a list of forms that child sexually abusive materials can take:

(2) The statute prohibits both real and simulated sexual acts. Where the acts are simulated, the instructions should be modified accordingly.

(3) The statute lists several alternatives for this element of the offense in MCL 750.145c(2), (3), and (4):

Generally, the language of the instruction will suffice. However, in appropriate cases, the court may select some or all of the other statutory language for this element.

(4) If necessary, excretion may be defined as the act or product of urinating or defecating.

(5) Paragraph (6) applies when the prosecution seeks the enhanced sentence set forth in MCL 750.145c(3)(b). It need not be given when sadomasochistic abuse is the only type of child sexually abusive material being alleged because, in that scenario, the jury will have already found the facts pertaining to the sentence enhancement.

(6) MCL 750.145c uses the term bestiality but does not define it. In People v Carrier, 74 Mich App 161, 165-166; 254 NW2d 35 (1977), the Court of Appeals indicated that bestiality encompasses sexual acts between a man or woman and an animal. These acts are not limited to anal copulation.

[AMENDED] M Crim JI 20.38c

Child Sexually Abusive ~~Activity~~ Material – Possessing or Accessing

(1) The defendant is charged with the crime of possessing or accessing child sexually abusive material. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [possessed child sexually abusive material / intentionally looked for child sexually abusive material to view it, or to cause it to be sent to or seen by another person].

(3) Child sexually abusive materials are pictures, movies, or illustrations1 of [a person under 18 years old / the representation of a person under 18 years old] engaged in one or more of the following sexual acts:

[Choose any of the following that apply:]²

(f) sexual excitement, which is the display of someone’s genitals in a state of stimulation or arousal, [and / or]

(g) erotic nudity, which is showing the genital, pubic, or rectal area of someone in a way that tends to produce lewd or lustful emotions.

[Choose either (4) or (5), depending on whether the depiction is an actual person or is a created representation of a person under the age of 18:]

(4) Second, that the defendant knew or should reasonably have known that the person shown in the sexually abusive material was less than 18 years old or failed to take reasonable precautions to determine whether the person was less than 18 years old.³

(5) Second, that the defendant produced a portrayal of a person appearing to be less than 18 years old, knowing that the person portrayed appeared to be less than 18 years old, and all of the following conditions apply:

(a) An average person, applying current community standards, would find that the material appealed to an unhealthy or shameful interest in nudity, sex, or excretion.⁴

(b) A reasonable person would not find any serious literary, artistic, political, or scientific value in the material.

(6) Third, that the defendant [knew that (he / she) possessed / knowingly looked for] the material.

[Add the following paragraph if appropriate:]⁵

(7) Fourth, that the child sexually abusive activity or the child sexually abusive material involved

[Choose any of the following that apply:]

(a) a child who has not yet reached puberty, or

(d) a video or more than 100 images of child sexually abusive material.

Use Notes

The statute, MCL 750.145c(1)(o), provides a list of forms that child sexually abusive materials can take:

(2) The statute prohibits both real and simulated sexual acts. Where the acts are simulated, the instructions should be modified accordingly.

(3) The statute lists several alternatives for this element of the offense in MCL 750.145c(2), (3), and (4):

Generally, the language of the instruction will suffice. However, in appropriate cases, the court may select some or all of the other statutory language for this element.

(4) If necessary, excretion may be defined as the act or product of urinating or defecating.

(5) Paragraph (7) applies when the prosecution seeks the enhanced sentence set forth in MCL 750.145c(4)(b). It need not be given when sadomasochistic abuse is the only type of child sexually abusive material being alleged because, in that scenario, the jury will have already found the facts pertaining to the sentence enhancement.