Background - In Feb 2014 Mark Bolles was observed at a public library viewing images of nude children and photographed a computer screen with his cell phone; police seized his phone. - Two phone images were admitted: a full reproduction of Robert Mapplethorpe’s 1976 photograph “Rosie,” and a zoomed-in cropped photo focusing on the child’s genital area that Bolles produced by photographing the computer screen. - Bolles was indicted on three counts of possession of child pornography; one count dropped pre-trial, one count resulted in acquittal, and Count 1 alleged possession of material depicting a child (<18) engaging in sexual conduct (lewd exhibition of the genitals) based on the cropped image. - The trial court convicted Bolles on Count 1 and sentenced him to two years’ imprisonment, treating the cropped image as a distinct, lewd depiction. - The court of appeals reversed, holding the full Mapplethorpe image was not lewd and that the cropped image, made in 2014, did not depict a person under 18 at the time that image was "made." - The Texas Court of Criminal Appeals reversed the court of appeals, holding (1) the cropping/zoomed image is a new visual depiction but the child’s age is assessed as of the original photograph date (1976), and (2) the cropped image satisfies the elements of a “lewd exhibition” under Texas law. ### Issues | Issue | Plaintiff's Argument (State) | Defendant's Argument (Bolles) | Held | |---|---:|---|---| | Whether the zoomed-in cropped image constitutes child pornography ("lewd exhibition" of genitals) | Cropping/zooming produced a distinct image that focuses on the child’s genitals and was intended to elicit sexual response; therefore it is lewd and punishable | The original full Mapplethorpe photograph is artistic, not lewd, and a portion of a legal photo cannot be transformed into illegal child pornography | Held: The cropped image is a lewd exhibition under the Dost-guided analysis; all six Dost factors are satisfied and the conviction is supported | | Whether the cropped image "depicts a child younger than 18 at the time the image was made" given it was created in 2014 from a 1976 photo | The age of the child is fixed at the date the original photograph was made (1976); manipulation does not reset when the child depicted was a minor | Court of appeals: if the cropped image is a distinct image made in 2014, it does not depict a person under 18 at the time that image was made, so it cannot be child pornography | Held: Manipulation creates a new visual material but does not change the date the underlying image of the child was made; the child was under 18 in 1976, so the cropped image depicts a minor | ### Key Cases Cited Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review) New York v. Ferber, 458 U.S. 747 (child pornography exception to First Amendment protections) United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (factors for determining lascivious/lewd exhibition) United States v. Stewart, 729 F.3d 517 (6th Cir. 2013) (image manipulation can create unprotected child pornography) * United States v. McCall, 833 F.3d 560 (5th Cir. 2016) (application of Dost factors; focus on depiction rather than actor)