Case Information
*1 This opinion is subject to revision before final publication in the Pacific Reporter.
I N T HE S UPREME C OURT OF THE S TATE OF U TAH ——————— TATE OF U TAH ,
Plaintiff and Appellee,
v. ARTON J ASON B ,
Defendant and Appellant.
——————— No. 20100882 Filed February 14, 2014 ——————— Third District, West Jordan The Honorable Terry L. Christiansen No. 091401264 ——————— Attorneys: Sean D. Reyes, Att‘y Gen., Ryan D. Tenney, Michelle I. Young, Asst. Att‘ys Gen., Salt Lake City, for plaintiff Joanna E. Landau, Kimberly A. Clark, Neal G. Hamilton, Noella A. Sudbury, Salt Lake City, for defendant ———————
J USTICE L EE authored the opinion of the Court, in which HIEF J USTICE D URRANT , A SSOCIATE C HIEF J USTICE N EHRING , J USTICE D URHAM , and J USTICE P ARRISH joined.
———————
J USTICE L EE , opinion of the Court: Barton Bagnes challenges the sufficiency of the evidence to support his convictions for lewdness involving a child and sexual exploitation of a minor by distribution of child pornography. Bagnes‘s offense was in dropping his pants in front of two young girls, exposing a toddler-sized diaper he wore underneath, and in distributing a flyer depicting images of diaper-clad children and adolescents. We reverse. Bagnes‘s conduct was strange, and so- cially inappropriate. But it did not fall to the level of criminal lewdness or sexual exploitation under the criminal definition of those terms as clarified below.
I
¶2 The charges against Bagnes arose out of an encounter he had with two nine-year-old girls, T. and K., in May 2009. T. and K. were riding their bikes in the neighborhood of their homes when they saw Bagnes, who was sucking on a candy binky, and greeted him. When Bagnes approached, the girls noticed that his shorts were too low, exposing part of a diaper he was wearing under- neath. T. asked Bagnes about the diaper, and Bagnes indicated that he wore it ―for fun.‖ He also went on to suggest that he wore the diaper because his ―parents never potty trained him‖ and he would ―pee his pants‖ without one. Bagnes then dropped his shorts to his knees, exposing the
diaper in full. It was a diaper made for 40+ pound toddlers with a cartoon image of the Sesame Street character Elmo on the front. Although Bagnes is a small man, the diaper was still too small, leaving a ―large gap‖ between ―the front and back‖ of the diaper. The diaper was held together by clear plastic tape. It did not com- pletely cover his buttocks, but it did cover his pubic area and ap- parently the girls ―couldn‘t see the back‖ of his diaper or his but- tocks Bagnes had a fanny pack with diapers and flyers inside.
The flyers contained images of children and adolescents wearing diapers. In some of the images the children were shown in argua- bly suggestive poses or lying on beds, but in none of them were they engaged in sexual conduct or exposing their private parts. On the back of the flyer the URLs of two websites were written in colored crayon, and identified as ―cool kids sites‖ or ―best kids sites.‖ One of the URLs was for a site that displayed suggestive
images of children in sheer underwear, with blinking stars cover- ing their private parts. A click on those images would, in turn, lead to pornographic images of children and adults. The other URL was connected to a Russian search engine that then led to a number of pornographic websites. There is no indication in the record that the girls ever saw
or became aware of the contents of the websites in question. But they did find one of the flyers, which Bagnes had folded into a paper airplane, and they also asked him for another copy after their encounter with him. Bagnes gave K. another copy of the flyer, while suggesting
that she shouldn‘t tell her parents about it because they would think it was a joke and laugh at her. T. and K. left the flyers at T.‘s house, and T.‘s mother later discovered them. She then called the police. And she called once more a few days later when T. and K. saw Bagnes in the neighborhood again. Bagnes was arrested and ultimately charged with two
counts of lewdness involving a child under Utah Code section 76- 9-702.5 and one count of sexual exploitation of a minor under Utah Code section 76-5a-3(1)(a). At trial, Bagnes asserted that he showed children his diaper in order to help those who might be struggling with incontinence or similar problems. He also admit- ted to having shown his diaper to children ―a lot,‖ while denying that he did so for sexual gratification. As to his encounter with T. and K., Bagnes acknowledged displaying his diaper, but denied fully pulling down his shorts. Defense counsel also argued that Bagnes‘s shorts may have accidentally fallen off because of their poor fit. The jury found Bagnes guilty on all three counts. Bagnes
filed this appeal, asserting three principal grounds for reversal: (a) that the evidence was insufficient to sustain convictions for lewd- ness or sexual exploitation of a minor; (b) that the district court erred in declining to give a lesser-included offense instruction on a charge of disorderly conduct; and (c) that the district court erred in admitting testimony of five other children regarding similar in- cidents involving Bagnes. We reach only the first of these three grounds, because we
deem it sufficient to sustain a judgment of reversal. In addressing a sufficiency of the evidence claim, we may reverse only when ―it is apparent that there is not sufficient competent evidence as to The lewdness statute has been amended, and the relevant sex- ual exploitation provisions have been amended and renumbered, since the time of Bagnes‘s convictions. See U TAH C ODE § 76-9-702.5 (lewdness) (amended 2011); U TAH C ODE § 76-5b-201 (sexual ex- ploitation of a minor) (amended 2011); U TAH ODE § 76-5b-103 (definitions) (amended 2011). None of the amendments appear to affect our analysis, however, and we cite to the statutes in effect at the time of Bagnes‘s convictions.
each element of the crime charged.‖
State v. Boyd
, 2001 UT 30,
¶ 13,
II The two counts of lewdness involving a child arose under
Utah Code section 76-9-702.5. That provision criminalizes certain forbidden conduct intentionally or knowingly done ―in the pres- ence of a child who is under 14 years of age.‖ U TAH ODE § 76-9- 702.5(1). The forbidden acts include ―sexual intercourse or sodo- my‖; exposure of the ―genitals, the female breast . . . the buttocks, the anus, or the pubic area‖; masturbation; causing a child to ex- pose herself; and ―any other act of lewdness.‖ Id .
The statute provides in full as follows: (1) A person is guilty of lewdness involving a child if the person under circumstances not amounting to rape of a child, object rape of a child, sodomy upon a child, sexual abuse of a child, aggravated sexual abuse of a child, or an attempt to commit any of those offenses, intentionally or knowingly does any of the following to, or in the presence of, a child who is un- der 14 years of age:
(a) performs an act of sexual intercourse or sodomy;
(b) exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area:
(i) in a public place; or (ii) in a private place: Bagnes was charged under this latter provision—with an ―other act of lewdness.‖ Thus, the threshold question for us con- cerns the definition of this term. We then consider the sufficiency of the evidence to sustain a conviction under this definition.
A The term ―lewdness‖ is not defined by statute. We must ac-
cordingly look elsewhere to derive its meaning—to either the or- dinary meaning of the word, [3] or to its technical sense as a legal term of art. [4] A starting point for our assessment of ordinary meaning is
the dictionary. See Hi-Country Prop. Rights Grp. v. Emmer , 2013 UT 33, ¶ 19, 304 P.3d 851. The dictionary is ―useful in cataloging a range of possible meanings that a statutory term may bear.‖ Id . ―It provides ‗an historical record, not necessarily all-inclusive, of the meanings which words in fact have borne.‘‖ Id . Yet the dictionary alone is often inadequate to the task of interpretation, as the range of possible meanings it identifies may encompass both parties‘ positions. That is the case here. A lewd act is sometimes defined in
general terms of impropriety—as something vulgar, base, or vile. See T HE R ANDOM H OUSE D ICTIONARY OF THE E NGLISH L ANGUAGE (A) under circumstances the person should know will likely cause affront or alarm; or (B) with the intent to arouse or gratify the sex- ual desire of the actor or the child; (c) masturbates;
(d) under circumstances not amounting to sex- ual exploitation of a child under Section 76-5a-3, causes a child under the age of 14 years to expose his or her genitals, anus, or breast, if female, to the actor, with the intent to arouse or gratify the sexual desire of the actor or the child; or
(e) performs any other act of lewdness.
U TAH ODE § 76-9-702.5(1).
See State v. Canton
,
Prop. Rights Grp. v. Emmer
,
ments of general impropriety would implicate constitutional con-
cerns. The specific problem here is one of vagueness.
See In re
L.G.W.
, 641 P.2d 127, 131 (Utah 1982) (plurality opinion of Oaks,
J.) (noting that ―[u]ncertainties about the perimeters of the com-
mon-law definition of lewdness have . . . resulted in some lewd-
ness statutes being held void for vagueness‖). If the criminality of
a defendant‘s act depends on each judge‘s—or each jury‘s—
private sense of the bounds of social propriety, the due process
guarantee of notice will be jeopardized. The more limited, con-
temporary notion of lewdness avoids that constitutional concern,
and is thus preferred on constitutional avoidance grounds.
Third, the structure of the statute reinforces this construc-
tion. The phrase ―any other act of lewdness‖ does not appear in
isolation. It is a catchall term at the end of an exemplary list. Such
phrasing implicates a semantic canon of construction—
ejusdem
generis
—that captures a principle of ordinary usage under a fancy
Latin name. In essence, this canon posits that general catchall
terms appearing at the beginning or end of an exemplary statuto-
ry list are understood to be informed by the content of the terms
of the list.
See State ex rel. A.T.
,
lel criminal provision for lewdness involving a person 14 years of age or older, Utah Code section 76-9-702) illustrate the point. In A.T. we upheld the extension of the term ―other act of lewdness‖ to circumstances in which the defendant ―stood in public view, on the walk in front of the convenience store,‖ and ―with the intent to offend his identified victim, clutched at his clothed genitals, rub- bing them up and down in a sexually suggestive manner for ten to fifteen seconds like ‗someone playing with themselves.‘‖ Id . ¶ 10. In affirming A.T.‘s conviction, we endorsed a limited con- struction of lewdness, informed by the ejusdem canon. Specifically, we held that the catchall category of lewdness ―includes the simu- lation of masturbation in a public place with the intent to offend, just as it would the simulation of sexual intercourse or sodomy under the same circumstances.‖ Id . ¶ 13. Finally, and perhaps most importantly, the statute‘s terms
sustain this same interpretation. The statutory definition of lewd-
ness is circular: Lewdness is defined to encompass not just the
enumerated acts but ―any other act of lewdness.‖ This circularity
suggests that the legislature ―conveyed its acceptance‖ of a ―wide-
ly shared meaning‖ of the notion of lewdness.
Hughes Gen. Con-
tractors, Inc. v. Utah Labor Comm’n
,
conduct similar to, but not falling precisely within, the enumerat-
ed acts. The similarity, moreover, must be in terms of lascivious-
ness or indulgence of lust. So the catchall term applies to conduct
that does not precisely amount to one of the enumerated lewd acts
but that ―dramatize[s], gesticulate[s], imitate[s], or . . . simulate[s]‖
such acts.
State v. Piep
,
B We reverse for lack of sufficient evidence under this stand-
ard. There was no evidence at trial that Bagnes simulated any sex act or masturbation, or that he effectively exposed his private parts. In exposing his diaper, Bagnes undoubtedly startled those
around him. A diaper in this context would certainly have been perceived as unusual, even disturbing. But it in no way resulted in the effective exposure of Bagnes‘s private parts. The closest it came was in its failure to fully cover his buttocks; but the record indicates that Bagnes never turned to show either of the girls the backside of his diaper, so there was no virtual exposure of the but- tocks.
¶26 A diaper is one of the most opaque, bulky articles of cloth- ing one could imagine wearing as an undergarment. If virtual ex- posure is the question, we cannot deem the public display of a di- aper to qualify unless we are prepared to also criminalize a range of other clothing that is much less opaque and far less obscuring (such as certain swimwear, or even athletic or workout attire). The difference between the former and the latter is social acceptabil- ity—not lasciviousness in the form of virtual exposure. And the statutory definition of the crime has nothing to do with the former and only to do with the latter. The State suggests that Bagnes‘s conduct betrays a sort of
―infantilism,‖ a sexual fetish that ―manifests itself in a desire to
wear diapers.‖
United States v. Mood
,
insufficient to establish lewdness. The threshold question is whether the defendant‘s conduct consisted of a lascivious act amounting to the virtual exposure of his private parts. Absent any indication of that, the private realization of a fetishized sexual fan- tasy alone would not make his conduct criminal. Finding no evidence of lascivious, virtual exposure, we re-
verse Bagnes‘s convictions for lewdness involving a child.
III The sexual exploitation charge against Bagnes arose under
Utah Code section 76-5a-3(1). That provision defines sexual ex- ploitation of a minor to encompass (a) the knowing production, possession, distribution, or possession with intent to distribute of ―child pornography‖; and (b) the knowing consent or permission of a minor‘s parent or legal guardian for the minor to be sexually exploited under subsection (a). U TAH C ODE § 76-5a-3(1). ―Child pornography‖ is defined by statute as ―the visual depiction . . . of a minor engaging in sexually explicit conduct.‖ Id . § 76-5a-2(1). And ―sexually explicit conduct‖ is defined, in turn, as ―actual or stimulated‖:
(a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether be- tween persons of the same or opposite sex; (b) masturbation;
(c) bestiality;
(d) sadistic or masochistic activities; (e) lascivious exhibition of the genitals or pubic area of any person;
(f) the visual depiction of nudity or partial nudity for the purpose of causing sexual arousal of any person;
(g) the fondling or touching of the genitals, pubic region, buttocks, or female breast; or (h) the explicit representation of the defecation or urination functions.
U TAH ODE § 76-5a-(2)(8)(a-h). Bagnes‘s conviction rested on subsection (e). The State‘s ev-
idence and arguments to the jury centered on the assertion that he had distributed ―child pornography‖ in that the diaper-clad chil- dren on his flyers constituted a ―lascivious exhibition‖ of the ―pu- bic region‖ of children. The threshold legal question for us is the interpretation of
the statutory term ―lascivious exhibition.‖ We first provide our construction of the statute and then consider Bagnes‘s challenge to the sufficiency of the evidence thereunder.
A Some of the same principles invoked in interpreting the
lewdness statute also extend to our construction of the ―lascivious exhibition‖ element of the definition of child pornography incor- porated in the sexual exploitation statute. As with lewdness, ―ex- hibition‖ is defined to encompass a range of meanings. Dictionary definitions of the verb ―exhibit‖ include the notion of making something visible, on one hand, or more generally manifesting or flaunting it, on the other. See T HE R ANDOM H OUSE D ICTIONARY OF THE E NGLISH L ANGUAGE 678 (2d ed. 1987) (defining ―exhibit‖ as ―to offer or expose to view,‖ ―to manifest or display,‖ or ―to place on show‖); W EBSTER ‘ S T HIRD N EW I NTERNATIONAL D ICTIONARY 796 (2002) (defining the term as ―to present to view‖ or to ―show off‖). The noun ―exhibition‖ encompasses the same range of definitions. See T HE R ANDOM H OUSE D ICTIONARY OF THE E NGLISH L ANGUAGE 678 (2d ed. 1987) (defining ―exhibition‖ as ―an exhibiting, show- ing, or presenting to view‖); W EBSTER ‘ S T HIRD N EW I NTERNATIONAL D ICTIONARY 796 (2002) (defining the term as ―an act or instance of showing, evincing, or showing off‖). Again, the choice between these alternative formulations
could make all the difference here, since (as explained more be- low) Bagnes‘s flyers can more easily be understood to manifest or flaunt the pubic region of diaper-clad children than to make those regions visible . And again, a range of contextual cues point in fa- vor of a more limited conception of this statutory term. First and foremost is the principle of constitutional avoid-
ance. This statute implicates not just notice but also free speech
concerns, in that a broad construction of
exhibition
could raise not
just due process (void for vagueness) issues but also First
Amendment (overbreadth) considerations. These constitutional
See, e.g., Ashcroft v. Free Speech Coal.
,
concerns counsel against an overbroad construction of our crimi- nal laws regulating visual displays of arguably communicative acts. Our Victorian past is well behind us. We no longer live in a
society where our style conventions and social mores clamor for head-to-toe cover-up. The opposite is closer to the truth. Right or wrong, our society roundly tolerates—and often encourages— ever-less sartorial coverage of the human body. Whether at the gym, the pool, the beach, or even the public square, we routinely encounter those who would flaunt or manifest their (heretofore) private parts, including their pubic regions. And depictions of these sorts of ―exhibitions‖ are peppered across the pages of our mainstream magazines, catalogs, newspapers, etc. (in print and online). Purveyors of this material would hardly expect to face
criminal charges for child pornography or sexual exploitation. And if they were so charged, they could undoubtedly maintain strong constitutional defenses under the Free Speech and Due Process Clauses. We therefore reject a broad conception of exhibition in the
sense of mere flaunting or manifesting. To avoid the overbreadth and vagueness problems noted above, we construe the term in- stead in its more narrow sense of making the pubic region visible to public perception. In so doing, we do not limit exhibition to the display of out-
right nudity. That construction, in fact, is undermined by the stat-
utory text and structure, which defines child pornography to en-
compass not just depictions of ―lascivious exhibition‖ of the ―pu-
bic region‖ but also, separately, depictions of ―the visual depiction
of nudity or partial nudity for the purpose of causing sexual
See, e.g., Jenkins v. Georgia
, 418 U.S. 153, 161 (1974) (reversing
conviction for distribution of film depicting nudity and in which
sexual conduct was ―understood to be taking place‖);
Jacobellis v.
Ohio
,
arousal of any person.‖ U TAH ODE § 76-5a-2(8)(f). The implica- tion is that ―lascivious exhibition‖ is distinct from a ―visual depic- tion of nudity.‖ With this in mind, we construe exhibition in a manner in
line with our interpretation of lewdness above: A person exhibits the pubic region (or another of the private parts identified in the statute) in making that area virtually visible even if not entirely naked. This standard would be met, for example, by a depiction of a pubic region covered only by a nearly transparent fabric, leaving the pubic region literally covered but virtually visible; or only by an ultra-thin, form-fitting fabric, leaving the contours of the geni- tals virtually discernible. Finally, we emphasize that a depiction of an exhibition
alone is not sufficient; the statute requires a depiction of a
lascivi-
ous exhibition
. On this important point we read the statute to in-
voke a limiting legal principle. Thus, we adopt a widely endorsed
standard of ―lascivious exhibition‖ as ―a depiction which displays
or brings forth to view in order to attract notice to the genitals or
pubic area of children, in order to excite lustfulness or sexual
stimulation in the viewer.‖
United States v. Knox
,
tals or pubic area‖ of a child, we adopt the widely endorsed
Dost
test, as previously invoked by this court in
Morrison
.
ual depiction is on the child‘s genitalia or pubic area‖; (2) ―wheth- er the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity‖; (3) ―whether the child is depicted in an unnatural pose, or in inap- propriate attire, considering the age of a child‖; (4) ―whether the child is fully or partially clothed, or nude‖; (5) ―whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity‖; and (6) ―whether the visual depiction is intended or designed to elicit a sexual response in the viewer.‖ Dost , 636 F. Supp. at 832. Dost provides a ―qualitative‖ framework to guide the in-
quiry into lasciviousness.
Knox
,
In
Morrison
, the defendant was charged under a predecessor to
Utah Code section 76-5b-103(10)(f), which requires that the images
be created ―for the purpose of causing sexual arousal of any per-
son.‖ Under that section of the statute, we treated the sixth
Dost
factor—―whether the visual depiction is intended or designed to
elicit a sexual response in the viewer‖—as a mere summation of
the others, and not as a separate factor.
Morrison,
B We reverse Bagnes‘s sexual exploitation conviction under
this standard. Bagnes‘s flyers in no way depicted any exhibition of the pubic region. The children and adolescents depicted in the fly- ers were wearing diapers, and the diapers did not make their pu- bic regions visible in any way. It completely obscured them. Thus, this is not a case involving literal exposure of the pu- bic area by actual nudity, or even virtual exposure through a near- ly transparent cover. Absent evidence of exhibition, there can be no child pornography and thus no basis for a conviction for sexual exploitation. We accordingly reverse without reaching or apply- ing the Dost factors, since a lack of proof of exhibition forecloses a need to consider the element of lasciviousness.
IV Barton Bagnes undoubtedly startled the young girls he en-
countered in their neighborhood. And his conduct was certainly deplorable. But the evidence did not sustain the charges against him. Some forms of antisocial behavior are simply beyond the
reach of the criminal law. That appears to be the case here, at least insofar as the charges of lewdness and sexual exploitation are concerned.
———————
The URLs that Bagnes identified on his flyers did ultimately link to websites containing pornographic images. But the sexual exploitation charge against Bagnes was not for any depiction or display of those images, but only for the images on the flyer.