27 A.3d 713
N.H.2011Background
- Lopez was convicted after a jury trial of one felony count of endangering the welfare of a child (RSA 639:3, III) and seven misdemeanor counts (RSA 639:3, I).
- The victim, L.P., was eleven years old during the relevant period (June–September 2007).
- Lopez photographed L.P. from June 2007, including sexually suggestive images in clothing and lingerie; he warned her not to tell anyone.
- On September 20, 2007, L.P.’s mother discovered the photographs; police recovered 155 images, 116 of L.P., from Lopez’s phone and memory cards.
- At trial, Lopez moved to dismiss the felony count for insufficiency of evidence, which the court denied; the jury returned a guilty verdict on the felony count.
- The issue on appeal was whether there was sufficient evidence to sustain the felony conviction and whether the evidence supported a finding of solicitation of a lewd exhibition of the genitals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for felony endangering welfare (solicitation of lewd exhibition) | Lopez argues evidence insufficient to show solicitation of a lewd exhibition. | Lopez contends the request to undress did not specify genitals or pose; insufficient standalone evidence. | Affirmed; evidence sufficient under Dost analysis to prove solicitation and lewd exhibition. |
| Application of Dost factors to determine lewdness | State contends Dost factors apply; photos show progression to sexually suggestive imagery. | Lopez argues lack of explicit targeting of genitals; context insufficient. | Dost factors applied; trier of fact could find a lewd exhibition. |
| Meaning of solicitation and whether evidence supports claim of enticement | State argues Lopez enticed L.P. by leveraging her modeling ambitions and progression of photos. | Lopez argues the term means “to ask” rather than entice. | Evidence supports solicitation under the defendant’s alternative definition of entice; sufficient under RSA 639:3, III and RSA 649-A:2, III. |
Key Cases Cited
- Dost, 636 F. Supp. 828 (N.D. Cal. 1986) (used to assess lewdness of visual depictions of minors)
- United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) (affirmed Dost framework for lewdness analysis)
- State v. Laporte, 157 N.H. 229 (2008) (plain meaning of solicitation includes enticing or urging)
- People v. Braddock, 348 Ill.App.3d 115 (Ill. App. 2004) (subsequent acts can give meaning to solicitation)
- People v. Martinez, 53 Cal.App.4th 1212 (Cal. App. 1997) (subsequent acts can give meaning to threats)
- Tovar v. State, 165 S.W.3d 785 (Tex.App. 2005) (recongizes lewd exhibition standard not merely nudity)
- Pfaffle, 246 Mich.App. 282 (Mich. App. 2001) (definition of solicitation to entice)