Brackins v. State

GILBERT, Chief Judge. The overriding question presented by this appeal is what is meant by the use of the word “exploitation” within the ambit of the child abuse statute, Md.Ann.Code art. 27, § 35A(a)(4)(i). The facts of this case are simple. Robert Paul Brackins is married to the mother of the then twelve-year-old victim. ¹⁶⁰ On the date of the alleged offense, Brackins was at home with the child.

The mother was at work. Mrs. Brackins testified that Mr. Brackins lived at the same residence as the victim, and that Mr. Brackins was responsible for the care of the victim while she worked. Mrs. Brackins also told the trial judge that her husband was the only male present in the household or, for that matter, the only other person present when the abuse occurred. At a non-jury trial in the Circuit Court for Harford County (Carr, J.), Brackins was convicted of child abuse.

He was sentenced to three years imprisonment. That sentence was suspended, and he was placed on five years supervised probation. We shall discuss the three issues raised in this Court by Brackins, although not necessarily in the order posited to us by him. We shall supply any necessary additional facts.

I. “Did the Trial Court err in determining that there was sufficient evidence to support a finding of sexual exploitation of the child?” The evidence disclosed that Brackins requested the victim, a twelve-year-old female, to unbutton her blouse and expose her breasts to him in order for him to take a semi-nude Polaroid snapshot of her. When she refused to do so, Brackins “did it for her.” After taking the photograph, Brackins, by his own admission, discarded it approximately 30 seconds later. Appellant argues that “[t]he only act ... upon which the conviction can rest is his looking at the partially exposed body of this girl. The photograph is merely evidence of his having looked.” Of course the photograph is clear, positive evidence that he exposed her breasts for his own gratification, amusement, or interest.

Maryland Ann.Code art. 27, § 35A(a)(4)(i) defines “sexual child abuse” to mean “any act that involves sexual ¹⁶¹ molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child.” Physical injury need not be shown in order to prove sexual abuse. Runge v. State, 78 Md.App. 23 , 552 A.2d 560 , reversed on other grounds, State v. Runge, 317 Md. 613 , 566 A.2d 88 (1989). The Legislature, in enacting child abuse statutes, recognizes society’s interest in protecting the privacy, health, and emotional and psychological welfare of its children. Exploitation of children, through child pornography or sexual molestation and abuse, victimizes the children and possibly causes future psychological harm.

See New York v. Ferber, 458 U.S. 747 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982); Ex Parte Felton, 526 So.2d 638 (1988); The People v. Green, 94 Cal.App.3rd Supp. 1, 156 Cal.Rptr. 713 (1979); Florida v. Beckman, 547 So.2d 210 (1989); Ohio v. Meadows, 28 Ohio St.3d 43 , 503 N.E.2d 697 (1986); Pennsylvania v. Ludwig, 366 Pa.Super. 361 , 531 A.2d 459 (1987). The word “exploitation” is defined as: “To take advantage of____ To make use of meanly or unjustly for one’s own advantage or profit____ Unjust or improper use of another person for one’s own profit or advantage.” Webster’s Third New International Dictionary, 1976 Edition. “To make use of____ To make unethical use of for one’s own advantage or profit.” Webster’s New World Dictionary, Third College Edition (1988). “Taking unjust advantage of another for one’s own advantage or benefit.” Black’s Law Dictionary (5th Ed., 1979). “The utilization of another person for selfish purposes____ To employ to the greatest possible advantage (exploit)____ To make use of selfishly or unethically.” The American Heritage Dictionary of the English Language (1969). Brackins maintains that there was no indication that any advantage was taken of the victim after the picture was ¹⁶² taken or that she was threatened or coerced as a result of the existence of the photograph. Brackins seems to reason that because he discarded the photograph within a few seconds of his having taken it he did not “exploit” the child.

What Brackins apparently fails to comprehend is that he “exploited” the child when he partially disrobed her for his own pleasure or amusement or gratification or interest. The Polaroid snapshot was not a necessary element of the exploitation although it was damning evidence of the act of exploitation. To be convicted of exploitation and, therefore, child abuse, threats, coercion, or subsequent use of the fruits of the acts are not necessary. The State need only prove, beyond a reasonable doubt, that the parent or person having temporary or permanent custody of a child took advantage of or unjustly or improperly used the child for his or