Turenne v. State

Roseberline Turenne v. State of Maryland, No. 20, September Term, 2023. Opinion by Biran, J. CRIMINAL LAW – SEXUAL ABUSE OF A MINOR – SUFFICIENCY OF THE EVIDENCE – Petitioner took eight photographs of very young girls who were in her care when she worked as an aide at a daycare facility. All eight photos showed the children’s naked genitals and pubic areas. The Supreme Court of Maryland held that the evidence was sufficient to conclude that Petitioner committed child sexual abuse, in violation of Md. Code, Crim.

Law (“CR”) § 3-602(b)(1) (2021 Repl. Vol.), by sexually exploiting the children whom she photographed. A rational juror could conclude, based on the content of the photographs and the totality of the circumstances surrounding the photographs, that Petitioner took the photographs to obtain sexual gratification. CRIMINAL LAW – CHILD PORNOGRAPHY OFFENSES – SUFFICIENCY OF THE EVIDENCE – The Supreme Court held that whether an image constitutes a “lascivious exhibition” of a child’s genitals or pubic area is determined by applying a “content-plus-context” test under which the trier of fact considers: (1) the contents of the image; and (2) the context of the image, i.e., the totality of the circumstances that directly relate to the exhibition of the genitals or pubic area.

After reviewing the contents and context of a contested image, the trier of fact must determine whether the image is objectively sexual in nature. Under that standard, a rational juror could have found that the eight photos at issue depicted lascivious exhibitions of the children’s genitals or pubic areas. Thus, the Court held that the evidence was sufficient to support Petitioner’s convictions for production of child pornography, in violation of CR § 11-207(a)(1), and possession of child pornography, in violation of CR § 11-208(b)(2). Circuit Court for Wicomico County Case No.: C-22-CR-21-000263 Argued: April 5, 2024 IN THE SUPREME COURT OF MARYLAND No. 20 September Term, 2023 ROSEBERLINE TURENNE v. STATE OF MARYLAND Fader, C.J. Watts *Hotten Booth Biran Gould Eaves, JJ.

Opinion by Biran, J. Fader, C.J. and Booth, J., concur and dissent. Watts, J., dissents. Filed: August 16, 2024 *Hotten, J., now a Senior Justice, participated in Pursuant to the Maryland Uniform Electronic Legal the hearing and conference of this case while an Materials Act (§§ 10-1601 et seq. of the State active member of this Court. After being recalled Government Article) this document is authentic. pursuant to Maryland Constitution, Article IV, 2025.02.25 § 3A, she also participated in the decision and 14:35:54 -05'00' adoption of this opinion.

Gregory Hilton, Clerk The General Assembly has enacted criminal laws that can result in serious penalties for those who create and possess child pornography. In addition, when a parent, household member, or permanent or temporary caregiver exploits a child by using the child as a subject for child pornography, that person can be prosecuted for child sexual abuse, an offense that also carries serious potential penalties. The General Assembly has created this regime of criminal laws because it strives to protect children from such abuse. Of course, not all photos of naked children are pornographic.

For example, when children are very young, it is not uncommon for parents to take photos or make videos of their children taking baths. Those types of innocent photos are not pornographic. But, unfortunately, some adults create images of children that are not innocent. In many cases, whether an image constitutes child pornography cannot seriously be disputed.

For example, if a child is videotaped engaging in a sex act, the resulting video will constitute child pornography. However, where sexual contact is not depicted – and especially where a child is too young to express an attitude that in someone older would seem to express coyness or sexual desire – it may be more difficult to discern whether an image is innocent or pornographic. Petitioner Roseberline Turenne took eight photographs of very young girls who were in her care when she worked as an aide at a daycare facility. All eight photos showed the children’s naked genitals and pubic areas.

None of the photos showed the children’s faces. None of the photos depicted any sexual contact. On the day the photographs were discovered, Ms. Turenne told investigators that she took the photos for “no reason” and that the photos had “no meaning.” Based on the eight photos, Ms. Turenne was charged with: eight counts of child sex abuse, in violation of Md. Code, Crim. Law (“CR”) § 3-602(b)(1) (2021 Repl.

Vol.); eight counts of production of child pornography, in violation of CR § 11-207(a)(1); and eight counts of possession of child pornography, in violation of CR § 11-208(b)(2).1 The State’s theory was that the photos were child pornography because they constituted lascivious exhibitions of the children’s genitals. With respect to the child sex abuse charges, the State contended that Ms. Turenne sexually exploited the children by taking the photos to obtain sexual gratification. At her jury trial, Ms. Turenne testified that the reason she took the photos had nothing to do with sexual gratification. Rather, she told the jury, she took the photos to document diaper rashes that she saw on each of the children.

The jury found Ms. Turenne guilty on all counts. The Appellate Court of Maryland affirmed Ms. Turenne’s convictions. As discussed below, we conclude that the evidence was sufficient for the jury to conclude that Ms. Turenne took the photos of the children for the purpose of sexual gratification. Therefore, we shall affirm Ms. Turenne’s convictions for child sexual abuse.

With respect to the child pornography charges, we hold that whether an image constitutes a “lascivious exhibition” of a child’s genitals or pubic area is determined by applying a “content-plus-context” test under which the trier of fact considers: (1) the contents of the image; and (2) the context of the image, i.e., the totality of the circumstances 1 CR § 11-208(b)(2) was renumbered without any change to the text as CR § 11-208(b)(1)(ii) when the statute was amended in 2023. We will refer to the section under which Ms. Turenne was charged with possession of child pornography as CR § 11-208(b)(2). 2 that directly relate to the exhibition of the genitals or pubic area. After reviewing the contents and context of a contested image, the trier of fact must determine whether the image is objectively sexual in nature. Applying that analysis to this case, we conclude that the evidence was sufficient for the jury to conclude that the photos at issue depicted the lascivious exhibition of the children’s genitals and pubic areas.

Accordingly, we also affirm Ms. Turenne’s convictions for production and possession of child pornography. I Background A. Facts We provide the following factual summary, based on the evidence introduced at trial and viewed in the light most favorable to the State, as the prevailing party. See, e.g., State v. Krikstan, 483 Md. 43, 63 (2023). 1. The Discovery of the Photographs On June 10, 2021, Ms. Turenne was working at a daycare center (“the Center”), in Salisbury, Maryland, as a teacher’s aide.

The Center cares for children between eight weeks and five years old and groups the children into classrooms based on age. Teachers’ aides “float” between classrooms and assist the teachers as needed. Teachers and aides change children’s diapers throughout the course of the day. Ms. Turenne, who was 18 years old on June 10, 2021, worked primarily in the toddler area of the Center, but also floated among different classrooms, particularly in the afternoon as teachers left for the day.

On the afternoon of June 10, Ms. Turenne handed 3 her cellphone to Nadasia Miller, another aide at the Center, while the two women were together in the Center’s break room. Ms. Turenne gave Ms. Miller her phone so that Ms. Miller could view an adult pornographic video on the phone. After watching a portion of the video that Ms. Turenne wanted her to see, Ms. Miller noticed several photographs in the camera roll of Ms. Turenne’s phone. As Ms. Miller described them at trial, those photos displayed children’s “vaginas.” One of the images that Ms. Miller saw showed a child on what Ms. Miller recognized as one of the Center’s changing tables.

Another image showed a child standing in one of the Center’s bathrooms; Ms. Miller recognized the bathroom floor. After realizing that these photos had been taken at the Center, Ms. Miller gave Ms. Turenne her phone back, left the break room, and immediately reported what she had seen to the Center’s manager, Barbara Brittingham. Ms. Brittingham then contacted Child Protective Services. 2. The Interview of Ms. Turenne Later in the afternoon on June 10, Detective M. Rockwell2 of the Salisbury City Police Department and Amy Kelly, a social worker, arrived at the Center and interviewed Ms. Turenne.3 Detective Rockwell obtained Ms. Turenne’s consent to make an audio recording of the interview.

At the outset of the interview, Ms. Turenne denied that there were any pictures of children in her phone. Ms. Turenne unlocked her cellphone and 2 Only the first initial of Detective Rockwell’s first name is included in the record. 3 Detective Rockwell and Ms. Kelly worked together at the Wicomico County Child Advocacy Center (“CAC”). The CAC is comprised of therapists, law enforcement officers, and social workers who investigate allegations of physical and sexual abuse of minors in Wicomico County. 4 consented to Detective Rockwell viewing the images on the phone. Detective Rockwell then inspected the camera roll of Ms. Turenne’s phone.

The first image that Detective Rockwell asked Ms. Turenne about was, according to Ms. Turenne, not an image of a child. Ms. Turenne said that item was created on TikTok and sent by another person to her as part of a group message. Detective Rockwell seemed to agree that this TikTok item did not involve a child, because he then explained that he “just want[ed] to make sure there’s no little kids on [Ms. Turenne’s] phone.” However, as Detective Rockwell continued to scroll through Ms. Turenne’s camera roll, he discovered several pictures displaying the genitals and pubic areas of children who looked to be of infant or toddler age. When Detective Rockwell showed Ms. Turenne the picture of a “baby” that he saw in the camera roll, Ms. Turenne claimed that the image was not of a baby and that she had obtained it from Google.

Detective Rockwell then showed Ms. Turenne another picture of a child in her camera roll and said, “See, that’s a child.” Ms. Turenne claimed that picture also was not of a child. Ms. Turenne said the pictures had been sent to her by others through the application WhatsApp and automatically downloaded to her camera. After Ms. Turenne offered these explanations, Detective Rockwell left the room, taking Ms. Turenne’s phone with him. He then walked around the Center with Ms. Brittingham and photographed several of the Center’s changing tables.

Only one changing table was located in a bathroom in the Center; the top of that changing table was fitted with a red mat. It appeared to Detective Rockwell that some of the children in the photos on Ms. 5 Turenne’s phone had been photographed while lying on changing tables that he saw while walking around the Center. Detective Rockwell then returned to the room where Ms. Turenne and Ms. Kelly were located. He asked Ms. Turenne, “Were any of the nude pictures of the children taken in this building?” Ms. Turenne replied, “To tell you the truth, yes.” Ms. Turenne told Detective Rockwell and Ms. Kelly several times that she did not know why she had taken the pictures, that she had taken them for “no reason,” and that there was “no meaning” to the pictures.

Ms. Turenne also repeatedly told the investigators that she had intended to delete the photos from her phone but had forgotten to do so. Ms. Turenne stated that she never sent the images of the children to anyone else or sold them, and that the pictures were just for herself. Ms. Turenne was terminated from her job at the Center on June 10, 2021. Detective Rockwell retained Ms. Turenne’s cellphone as evidence.

A forensic extraction of data from Ms. Turenne’s cellphone yielded eight distinct images of very young nude girls, all of which focused on the girls’ genitals and pubic areas. B. Trial On June 28, 2021, a grand jury in Wicomico County charged Ms. Turenne in a 24-count indictment relating to the eight photographs of nude children found on her phone. Each photograph was the basis for three charges: Counts 1-8 charged Ms. Turenne with sexual abuse of a minor, in violation of CR § 3-602(b)(1);4 Counts 9-16 charged Ms. CR § 3-602(b)(1) provides: “A parent or other person who has permanent or 4 temporary care or custody or responsibility for the supervision of a minor may not cause 6 Turenne with producing child pornography, in violation of CR § 11-207(a)(1);5 and Counts 17-24 charged Ms. Turenne with possession of child pornography, in violation of CR § 11-208(b)(2).6 Ms. Turenne’s trial went forward in the Circuit Court for Wicomico County on March 29 and 30, 2022. In his opening statement, Ms. Turenne’s attorney told the jury that they would see pictures of children with “rashes in their private parts” and “with diaper cream on.” He further stated that Ms. Turenne took the photos in question because she was “afraid of being accused of any kind of rashes that she wasn’t taking care of, she wasn’t wiping.” In the State’s case-in-chief, Ms. Miller testified that she saw the images of nude children on Ms. Turenne’s camera roll and that she reported what she saw to the Center’s manager, Ms. Brittingham.

Ms. Brittingham testified about the Center’s operations, and explained that the Center prohibits its staff from taking photographs of the children in the Center. Ms. Brittingham stated that there were no cameras located in the Center’s sexual abuse to the minor.” “Sexual abuse” is defined as “an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not.” Id. § 3-602(a)(4)(i). 5 CR § 11-207(a)(1) provides: “A person may not … cause … a minor to engage as a subject in the production of … a visual representation … that depicts a minor engaged as a subject in … sexual conduct[.]” As relevant here, “sexual conduct” includes “lascivious exhibition of the genitals or pubic area of any person.” Id. § 11-101(d)(4). 6 At the time Ms. Turenne was charged, CR § 11-208(b)(2) provided: “A person may not knowingly possess and intentionally retain a … photograph, or other visual representation showing an actual child … under the age of 16 years … engaged in sexual conduct[.]” For purposes of CR § 11-208(b)(2), “sexual conduct” also included “lascivious exhibition of the genitals or pubic area of any person.” Id. § 11-101(d)(4). 7 bathrooms. Ms. Brittingham further testified that she has never asked staff to document diaper rash on any children by taking pictures, and she confirmed that taking a picture of a child at the Center for that purpose would be contrary to the Center’s policy prohibiting the taking of pictures of children. Detective Rockwell testified about the interview of Ms. Turenne that he and Ms. Kelly conducted at the Center on June 10, 2021.

Among other things, he recounted how Ms. Turenne initially claimed that other people had sent her the images of the nude children. Detective Rockwell’s photographs of the changing tables were admitted in evidence, including photographs of a changing table with a red mat that was located in the Center’s two- and three-year-old bathroom. Detective Rockwell also testified that Ms. Turenne eventually admitted that she had taken the photos of the nude children. The State introduced into evidence the audio recording of Detective Rockwell’s and Ms. Kelly’s interview of Ms. Turenne, and played portions of it for the jury.

Detective Rockwell also testified about receiving the extraction of Ms. Turenne’s cellphone. He explained that the data he received in the extraction contained 145,047 pictures, and that he viewed all of those pictures. Detective Rockwell testified that, among the extracted photos, he was able to locate the same images he had seen while looking through the phone’s camera roll during the interview of Ms. Turenne. The State introduced into evidence eight images of nude children found in the extraction of Ms. Turenne’s cellphone.

The eight photographs were taken between February 8, 2021 and April 22, 2021. All but one of the photographs were taken in the late 8 afternoon or early evening hours. Several of the photographs were taken in a bathroom at the Center. We provide the following additional details about each photograph: Photograph of child designated as J-1: The photograph of J-1 shows her lying on her back on what appears to be the changing table with the red mat,7 which was located in the two- and three-year-old bathroom.

J-1’s naked genitals and pubic area are located in the center of the picture. Some redness appears to be visible on both sides of the vulva. J-1’s face and upper body are not included in the picture. Just above J-1’s bellybutton, the bottom portion of a pink sweater or shirt is visible.

Portions of J-1’s legs are visible, as are portions of pink socks she is wearing. Photograph of child designated as J-2: The photograph of J-2 shows her standing up in one of the Center’s bathrooms. J-2 is naked from approximately her sternum to her knees. Her face and upper body are not included in the picture.

J-2’s genitals and pubic area are located in the center of the picture. No rash or redness is visible on J-2’s body. Black pants and pink underwear are pulled down below J-2’s knees. Photograph of child designated as J-3: The photograph of J-3 shows her lying on her back on what appears to be a brown paper towel, which has been placed on what appears to be a changing table with a white or beige surface.

J-3’s naked genitals and pubic area are located in the center of the picture. There appears to be diaper cream spread around J-3’s anal area. J-3’s face is not visible in the photograph. Photograph of child designated as J-4: The photograph of J-4 shows her lying on her back on what appears to be a portion of a diaper.

The surface underneath the diaper appears to be beige in color. J-4’s naked genitals and pubic area are located in the center of the picture. No rash is visible, but there appears to be some slight redness in the genital area. J-4’s face is not visible in the picture.

The picture appears to be zoomed in to focus on J-4’s genitals. Located a short distance from J-4’s genitals is an unidentified object, the surface of which appears to be covered in blue fabric. 7 Based on all the evidence admitted at trial, the jury could conclude that Ms. Turenne took seven of the eight photos at issue in this case while the child in question was lying on a changing table. However, based on the contents of the images alone, it would be impossible to determine with respect to several of the photos that the children were lying on a changing table, as opposed to another type of surface. 9 Photograph of child designated as J-5: The photograph of J-5 shows her lying on her back on what appears to be a brown paper towel, which has been placed on what appears to be the red-matted changing table in the two- and three-year-old bathroom. J-5’s naked genitals and pubic area are located in the center of the picture.

No rash is visible, but some slight redness appears to be visible on both sides of the genital area and around the anal area. J-5’s face and most of the rest of her body are not included in the picture. The picture appears to be zoomed in to focus on J-5’s genitals. Photograph of child designated as J-6: The photograph of J-6 shows her lying on her back on what appears to be the red-matted changing table located in the two- and three-year-old bathroom.

J-6’s naked genitals and pubic area are displayed in the center of the picture. No rash is visible, but some slight redness appears to be visible on both sides of the genital area and around the anal area. J-6’s face and most of the rest of her body are not included in the picture. The picture appears to be zoomed in to focus on J-6’s genitals.8 Photograph of child designated as J-7: The photograph of J-7 shows her lying on her back on what appears to be the red-matted changing table located in the two- and three-year-old bathroom.

J-7’s naked genitals and pubic area are displayed in the center of the picture. J-7’s thighs are visible in the picture. No rash or redness is visible in the photo. J-7’s face and upper body are not included in the picture.

The top of the image ends below J-7’s bellybutton; the bottom portions of a blue shirt that J-7 is wearing are visible on the sides of her body, near her hips. The bottom of the picture ends above J-7’s kneecaps. Photograph of child designated as J-8: The photograph of J-8 shows her lying on her back on what appears to be a paper towel, which has been placed on what appears to be the red-matted changing table in the two- and three-year-old bathroom. J-8’s naked genitals are the focus of the picture.

No rash or redness is visible in the picture. J-8’s face and most of the rest of her body are not included in the picture. The picture appears to be zoomed in to focus on J-8’s genitals. This picture was taken at 11:08 a.m., 8 The photographs of J-5 and J-6, including the slight redness in the pubic area, are very similar.

Both images are close-ups of a child’s genitals, but the photograph of J-5 shows a little more of the child’s body than does the photo of J-6. In addition, J-5 is lying on top of a brown paper towel. No brown paper towel is visible in the photo of J-6. Detective Rockwell testified that, according to the metadata for the images of J-5 and J-6, both photographs were taken on April 14, 2021 at 5:28 p.m.

It may well be that J-5 and J-6 are the same child, but the photos do not appear to be duplicates. 10 the only one of the eight photos that was taken before approximately 4:30 p.m. No images of nude boys were found on Ms. Turenne’s phone. Detective Rockwell testified that both male and female children attended the Center during the time that Ms. Turenne worked there. Detective Rockwell also testified on direct examination, without objection, that the cellphone extraction revealed the existence of adult pornography – with both male and female subjects – on Ms. Turenne’s phone.

On cross-examination, Ms. Turenne’s attorney elicited from Detective Rockwell that there were a “handful” of adult nude females and a “handful” of adult nude males in images contained on Ms. Turenne’s phone. Detective Rockwell also testified that investigators found no messages from Ms. Turenne to anyone else concerning the images of the children on her phone, nor did investigators find any evidence that Ms. Turenne had conducted any internet searches for child pornography. Ms. Turenne testified in her own defense. She told the jury that she took the pictures of the children because they had diaper rashes, and she wanted to “protect [her]self so [she] [would not] get in trouble.” That is, she wanted to be able “to prove that this child had the rash before I started watching the child.” Ms. Turenne further testified that, when she told Detective Rockwell that she had received images via the Internet, she thought he was asking about the adult pornographic pictures in her phone.

She said that she did not tell Detective Rockwell during the interview that she had taken the pictures of the children to document diaper rash because: “I was 11 scared, ... he [was] saying child pornography, ... I’m guessing am I in trouble because, like, am I gonna get deported?”9 On cross-examination, Ms. Turenne testified that she only took a picture of a child if she saw a rash, and she did not recall any boys having a diaper rash. Ms. Turenne acknowledged that she would not be able to identify any of the children based on the photos she took because she did not include any of their faces in the images. The prosecutor also asked Ms. Turenne, without objection, if she told Ms. Miller that she was attracted to females.

Ms. Turenne answered that she did not recall telling Ms. Miller that. The prosecutor then asked, again without objection: “Is it a fair statement that you are attracted to women?” Ms. Turenne replied: “I wouldn’t say attracted to women, like, I will say, … like, I’m bisexual, like, I’m still confused about what I like between men or women. But not children, no.” The prosecutor then asked, without objection, more questions about the adult pornography on Ms. Turenne’s phone. In response to being asked whether she received “some kind of sexual gratification” from watching the adult pornography that was on her phone, Ms. Turenne testified: “I’m kind of attracted to them but not really because, like I say, I’m still confused about what I like or not.” In its rebuttal case, the State recalled Ms. Miller, who testified (without objection) that Ms. Turenne told her “that she was gay.” The State also recalled Ms. Brittingham, who testified that no teacher or aide was ever reprimanded or otherwise got in trouble for a child having a diaper rash. 9 Ms. Turenne is an immigrant. 12 In her closing argument, the prosecutor observed, among other things, that none of the pictures Ms. Turenne took were of boys, that she included no faces in the pictures, and that she did not mention any concern about diaper rash in her interview with the investigators.

The prosecutor also stated, without objection from the defense: It’s interesting that apparently no boys had rashes at the time. She told [Ms. Miller] that she was gay or bisexual, which, obviously doesn’t matter, but it matters when you’re looking at whether she had any sexual gratification for taking these pictures, holding on to these pictures for as long as she did. In his closing argument, defense counsel contended that the State had not proved that Ms. Turenne had a “sexually-based intent” in taking the photos of the children or that the photos contained any “sexual exhibition.” Defense counsel stated that the Center was correct to terminate Ms. Turenne’s employment for having taken the photos, but that the jury should credit Ms. Turenne’s account that she took the photos to document instances of diaper rash. With respect to the evidence of adult pornography and the evidence concerning Ms. Turenne’s sexual orientation, defense counsel told the jury: I could have said, you know what, it’s going to be prejudicial to the jury, the jury is going to be so blinded by the fact that she was looking at pornography, I don’t want them to even know about that, I could have made that argument.

But I wanted to, I wanted you all to see that because, again, there’s nothing to hide in this case. Her preferences are in men and women. Now, the State is saying that she was gay and look at the pictures and they’re trying to imply that because you’re gay somehow you then become an abuser. But here’s the thing they don’t mention.

There’s pictures of male genitalia, too, of adult male genitalia. They don’t mention that. They’re making the argument that she’s gay, but she has male genitalia in these pictures. And she even said herself, I’m bisexual.

(Paragraph breaks omitted). 13 In her rebuttal argument, responding to defense counsel’s claim that the State was arguing that “because you’re gay somehow you then become an abuser,” the prosecutor stated (again with no objection): There’s no inference made by the fact that she would be gay or bisexual. That’s irrelevant. The only reason we’re considering that is the inference that she has sexual gratification and that that connects to the pictures themselves. That’s why it becomes relevant.

Nobody is making any inference from it. … These pictures may not mean anything to us other than just make us uncomfortable, but obviously to some people out there who are voyeurs or pedophiles, they bring a gratification and we can only infer that from the pictures themselves because the children can’t tell us what her intent, and really it’s hard to know what anybody’s intent is, so we look at the evidence itself. The jury found Ms. Turenne guilty on all counts. The court subsequently sentenced Ms. Turenne to a total of 280 years of imprisonment, suspending all but 126 years,10 to be followed by five years of supervised probation. 10 The court imposed consecutive statutory-maximum 25-year sentences on each of the child sex abuse counts (Counts 1-8). With respect to Counts 1 and 7, the court suspended no portion of the 25-year sentences.

With respect to Counts 2-6 and 8, the court suspended all but 10 years of each 25-year sentence. The court imposed consecutive statutory-maximum 10-year sentences on each of the production-of-child-pornography counts (Counts 9-16), suspending all but two years of each of those sentences. The court properly determined that, for sentencing purposes, the convictions for possession of child pornography merged into the convictions for production of child pornography. Ms. Turenne’s sentence is not before us in this case.

The docket reflects that, although Ms. Turenne was advised of post-trial rights, she did not file a request for review of her sentence by a three-judge panel. See Md. Code, Crim. Proc. § 8-102; Md. Rule 4-344(a). Nor did she file a motion for modification of her sentence under Maryland Rule 4-345(e). 14 C. Appeal In a reported opinion, the Appellate Court of Maryland affirmed Ms. Turenne’s convictions.

Turenne v. State, 258 Md. App. 224 (2023). With respect to the child pornography charges, the Appellate Court considered the approach of multiple courts around the country in interpreting the meaning of “lascivious exhibition” of children’s genitals and pubic areas in statutes using the same or substantially similar language. Id. at 240-46 . The Appellate Court found most persuasive the position of those courts that “rely on the plain meaning of ‘lascivious exhibition’ and apply a totality of the circumstances approach, which is most appropriate given the varied and nuanced contexts of child pornography.” Id. at 247 .

The Appellate Court reasoned that “[t]he plain meaning of ‘lascivious exhibition’ requires that we ask whether the [image] depicts the minor’s genitals or pubic area in order to excite lustfulness or sexual stimulation in the viewer.” Id. (cleaned up) (citations omitted). The Appellate Court continued: “Answering this question requires consideration of all circumstances surrounding a depiction; not just the image itself, but the actions and preferences of the defendant.” Id. Applying a totality-of-the-circumstances test, the Appellate Court affirmed Ms. Turenne’s convictions for production and possession of child pornography.

Id. at 249-52 . Among other things, the Appellate Court opined: Regarding the content of the photos themselves, all are taken of female infants. Each photo is zoomed in to focus, indisputably, on the child’s unclothed vagina as she lies on a changing pad or stands in a bathroom. The photos contain nothing else, aside from, in a few photos, the child’s stomach and upper thighs.

Most photos, if not all, do not depict any apparent diaper rash. None of the photos contain faces. 15 Regarding Turenne’s motive for taking the photos, seven of the eight photos were taken at times in the evening after teachers would begin to leave the daycare for the day. Some were taken in the bathroom. No teacher would be in the bathroom if an aide, such as Turenne, was already in there with a child, because the teacher would be in the classroom with the rest of the children.

Turenne initially lied to the investigators by stating that the photos were from the internet, not of children in the daycare. The reasoning she ultimately alleged for taking the photos – that she was documenting diaper rash – was not offered at the initial interview. Turenne also testified that she would be unable to identify a child based on the photos…. The camera roll on Turenne’s phone on which the photos were contained also contained adult pornography.

It was an adult pornographic video that Turenne was showing to a co-worker when the co-worker discovered the eight photos at issue. Based on the times and places the photos were taken, a reasonable juror could conclude that Turenne surreptitiously took the photos, and that she was discreet because she knew taking and possessing pictures of the children’s vaginas was impermissible. A reasonable juror could infer Turenne’s knowledge that what she did was impermissible and even morally – and perhaps legally – wrong, based on her initial lies to investigators about where the photos came from. A reasonable factfinder could conclude that Turenne was not credible when she claimed she took the photos to document diaper rash….

A reasonable juror could also infer that Turenne took these photos for sexual gratification, based on the photos’ exclusive focus on the children’s vaginas and the absence of any credible, innocuous reason for taking and storing such photos, and the photos’ location among other pornographic images on Turenne’s phone. Id. at 249-50 . The Appellate Court also affirmed Ms. Turenne’s convictions for sexual abuse of a minor through sexual exploitation of the children in the images. Id. at 252-57 .

The Appellate Court concluded that the State introduced sufficient circumstantial evidence to allow a rational juror to conclude that Ms. Turenne derived sexual gratification from taking the photos. See id. at 255 . In this regard, the Appellate Court pointed to “the combination 16 of the surreptitious manner in which she took the photos, the photos’ location in her camera roll among adult pornography, that she shared some of that adult pornography on her phone with a co-worker, and the absence of any credible, innocuous reason for taking photos of children’s genitalia in violation of the daycare’s policy.” Id. The court noted that, although Ms. Turenne at trial provided an explanation for taking the photos (documenting diaper rash), a rational juror “could have found it incredible …, which is, in fact, what the jury did.” Id. at 256 .

The Appellate Court further held that the circuit court did not commit plain error by: (1) failing to instruct the jury on the meaning of “lascivious exhibition” for purposes of the child pornography-related charges; and (2) failing to explain what constitutes “sexual exploitation” for purposes of the child sexual abuse charges. Id. at 259-61 . Finally, the Appellate Court held that the trial court did not plainly err by allowing the prosecutor to make comments in her closing argument and rebuttal argument concerning Ms. Turenne’s sexual orientation. Id. at 263 .

The Appellate Court explained: [T]he impact of the prosecutor’s comments, particularly her rebuttal, though mentioning Turenne’s sexual orientation, focused on explaining Turenne’s interest in female children. In other words, the prosecutor was not arguing that Turenne was probably a child abuser because she was lesbian or bisexual, but rather that her sexual attraction to women might mean that she was sexually attracted to girls – which in turn, would explain the photos she took exclusively of female infants’ genitalia. Though this point is debatable, it is not plainly wrong, particularly in the absence of an objection and given the substantial latitude that lawyers have in closing argument. Id. at 263-64 .

The Appellate Court cautioned, however, “that the prosecutor’s comments could be misinterpreted. Linking one’s sexual orientation, particularly a same-sex orientation, to 17 sexually abusing children is a canard that reinforces a terrible stereotype of gay and lesbian people.” Id. at 264 . The Appellate Court observed that “the prosecutor’s comments, though perhaps unintentional, came dangerously close to perpetrating a pernicious falsehood about same-sex orientation and should be avoided.” Id. On August 14, 2023, Ms. Turenne filed a petition for writ of certiorari, seeking review of several issues.

On October 23, 2023, we granted Ms. Turenne’s petition in part, Turenne v. State, 486 Md. 147 (2023), agreeing to review the following question and its two subparts: Is the evidence insufficient to sustain the child pornography convictions under [CR] §§ 11-207(a)(1) and -208(b) and child sex abuse convictions under [CR] § 3-602(b)? (A) What is the appropriate test to determine whether an image constitutes “lascivious exhibition of the genitals” under the child pornography statutes? (B) What role, if any, does evidence of possession of adult pornography play in assessing the sufficiency of the evidence?[11] II Standard of Review When reviewing whether evidence is sufficient to support a conviction, “we view the evidence in the light most favorable to the State and assess whether any rational trier 11 Ms. Turenne’s petition also requested that we review whether the trial court plainly erred “by allowing the prosecutor to impermissibly appeal to the prejudices of the jury by invoking homophobic tropes based on testimony, elicited by the prosecutor, that Petitioner was gay or bisexual[.]” Ms. Turenne’s petition also sought plain error review concerning the jury instructions and a jury note. We declined to grant review of these additional issues. 18 of fact could have found the essential elements of the crime beyond a reasonable doubt.” Krikstan, 483 Md. at 63 (internal quotation marks and citations omitted).

We do not “undertake a review of the record that would amount to, in essence, a retrial of the case,” Rivers v. State, 393 Md. 569, 580 (2006) (internal quotation marks and citation omitted), and we do not “re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence.” Walker v. State, 432 Md. 587, 614 (2013) (internal quotation marks and citations omitted). Instead, we defer to “reasonable inferences drawn by the fact-finder” and “resolve conflicting possible inferences in the State’s favor.” Krikstan, 483 Md. at 64 . Part of our inquiry in this case involves the interpretation of statutory language. That presents a question of law, which we review de novo.

Id. III Discussion A. Counts 1-8: Sexual Abuse of a Minor We first consider the sufficiency of the evidence in support of Ms. Turenne’s convictions on Counts 1-8 for sexual abuse of a minor, in violation of CR § 3-602(b)(1). Section 3-602(b)(1) prohibits someone “who has permanent or temporary care or custody or responsibility for the supervision of a minor” from causing “sexual abuse to the minor.” “Sexual abuse” is defined as “an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not.” Id. § 3-602(a)(4)(i). The State proceeded under the sexual exploitation prong of the definition of “sexual abuse.” Thus, to convict Ms. Turenne under § 3-602(b)(1), the State was required to prove with respect to each count that: (1) Ms. Turenne had care, custody, or responsibility for the 19 victim’s supervision; (2) the victim was a minor at the time of Ms. Turenne’s conduct; and (3) Ms. Turenne sexually exploited the victim by means of a specific act.

See Schmitt v. State, 210 Md. App. 488, 496 (2013). The only statutory element that Ms. Turenne disputes is whether her conduct in taking the photographs constituted sexual exploitation. Ms. Turenne contends that, in reviewing the sufficiency of the evidence supporting these convictions, we should not consider the evidence that the State introduced concerning her sexual orientation and her possession of adult pornography. Without such evidence, Ms. Turenne argues, the evidence was insufficient to sustain her child sexual abuse convictions because the State failed to prove that she took the photographs for her own sexual gratification.

According to Ms. Turenne, nothing within the four corners of the photos makes it self-evident that she created the images for the purpose of sexual gratification. The State argues that the evidence was sufficient to show that Ms. Turenne took the photographs for the purpose of sexual gratification. According to the State, a rational juror could reach this conclusion from the photographs themselves, which showed that Ms. Turenne “put a number of the children in stereotypically sexual poses …, laying them on their backs, with legs spread, and genitals prominent.” In addition, the State observes, all eight of the photos clearly focused on the children’s genitalia and omitted their faces, which could be interpreted by the jury as treating the children as sexual objects. Finally, according to the State, Ms. Turenne’s diaper-rash explanation was thoroughly discredited at trial.

We recently reaffirmed that sexual exploitation in the context of child sexual abuse “is not limited to incidents involving physical contact and can include a wide range of 20 behavior.” Krikstan, 483 Md. at 51 (citation omitted). We have “continually construed § 3-602 in an expansive manner,” among other things, clarifying that its coverage “is not limited to the enumerated acts” listed in the statute as examples of sexual abuse. 12 Walker, 432 Md. at 622; see also Tribbitt v. State, 403 Md. 638, 643, 645 (2008) (holding that “sexual contact that does not constitute a sexual offense in any degree or otherwise violate any provision of Maryland law” can nevertheless provide the basis for sexual abuse under CR § 3-602). To prove sexual abuse by sexual exploitation, the State must show that the defendant “took advantage of or unjustly or improperly used the child for his or her own benefit.” Degren v. State, 352 Md. 400, 426 (1999) (quoting Brackins v. State, 84 Md. App. 157, 162 (1990)). This benefit need not be sexual; in other words, the State is not required to prove that the defendant personally received sexual gratification from the conduct.

Walker, 432 Md. at 625 . For example, in Walker, we explained that it did not matter whether the 38-year-old defendant “became sexually aroused or received sexual gratification” from exchanging notes containing sexual undertones with an eight-year-old girl. Id. The “great pleasure” that the defendant described deriving from the notes led us to conclude that the defendant “received a benefit from his actions and therefore exploited” the child.

Id. (internal quotation marks omitted). Additionally, the State is not required to prove an 12 CR § 3-602(a)(4)(ii) lists four examples of “sexual abuse”: incest, rape, sexual offense in any degree, and “any other sexual conduct that is a crime.” Given that “the purpose of the child abuse statute [is] to protect minors from abuse,” Degren v. State, 352 Md. 400, 428 (1999), we have explained that “the Legislature intended [this] list of items … to be illustrative,” not exhaustive. See Tribbitt v. State, 403 Md. 638 , 657 n.14 (2008). 21 adverse impact on the victim or that the victim was aware of the exploitation.

See Schmitt, 210 Md. App. at 502-03 . A benefit to the defendant, whether it is sexual, financial, or otherwise, is all that is required. See Walker, 432 Md. at 625 .13 In assessing whether the State has sufficiently proved an act of sexual exploitation, we examine not only the specifics of the alleged act itself, but also the pertinent circumstances relating to the act. See Walker, 432 Md. at 622 (“The context in which the abuse occurs matters[.]”).

We view the facts surrounding alleged sexual exploitation “in their totality[.]” Id. at 623 (explaining that the context in which a male paraeducator wrote notes to an elementary school student “certainly informs the interpretation” of the notes). This “content-plus-context” approach is consistent with the General Assembly’s clear intent to protect child abuse victims. Since Maryland’s first child abuse statute was enacted in 1963, the General Assembly has repeatedly broadened the statutory definition of abuse. See Krikstan, 483 Md. at 68-70 (detailing changes in Maryland’s child abuse statutes over time).

This “concern for the welfare of children, and the myriad ways in which abusers can sexually exploit minors, militates against unduly narrowing the scope of a statute that is reasonably worded so as to reach a wide swath of behaviors.” Walker, 432 Md. at 623 . Considering the context in which allegedly sexually exploitative acts were committed, as well as the acts themselves, furthers the Legislature’s purpose to protect children from sexual abuse. 13 The State’s theory at trial was that the benefit from taking the photos of the children was Ms. Turenne’s own sexual gratification. Accordingly, that is our focus here as well. We do not consider whether the evidence admitted at trial showed that Ms. Turenne received any other kind of benefit from taking the photos. 22 In Scriber v. State, the Appellate Court applied a content-plus-context approach to a sexual exploitation case involving photographs. 236 Md. App. 332 (2018).

The defendant in Scriber was a high school teacher who took pictures of students’ clothed buttocks in a classroom. See id. at 337-39 . After being found guilty in a non-jury trial of child sexual abuse under CR § 3-602(b)(1), the defendant argued on appeal that the “mere taking of a picture of a fully clothed individual” was not sufficient to prove sexual exploitation. Id. at 349.

The Appellate Court affirmed the defendant’s conviction. The Appellate Court opined that the defendant’s “framing of the issue, whether the mere taking of a picture of a fully clothed individual is sufficient to prove sexual exploitation, is too narrow.” Id. (cleaned up). Rather, the court stated, “our analysis requires consideration of all the circumstances, including the context in which the pictures were taken, i.e., [the defendant] was a high school teacher and the [victim] was his student, and the content of the pictures, which the circuit court accurately described as multiple images of [the victim] ‘bending over, taking the picture from the back to the virtual exclusion of every other part of her body.’” Id.

(emphasis added). Applying that broader analytical approach, the Appellate Court agreed with the trial court that the evidence was sufficient to show that the defendant’s actions were sexually exploitative: Based on the context of the actions, a teacher taking multiple photos of a student during school, and the content of the photos, which depicted primarily the buttocks of a student bending over what appears to be a table, as well as other photos depicting only a “young woman’s legs and buttocks,” a rational trier of fact could conclude that [the defendant]’s actions in taking 23 these photos were for his own benefit and constituted exploitation of a sexual nature. Id. at 350; see also id. at 349-50 (agreeing with the trial court’s conclusion that the photographs’ focus on the victim’s buttocks was “not an accident”). Applying the appropriate content-plus-context approach to this case leads to the same result.

A reasonable juror could have determined that Ms. Turenne took photographs of multiple naked children for her own benefit. First, like the photos in Scriber that focused on students’ buttocks, id. at 337-39, Ms. Turenne’s photos focused on the children’s genitals. That all eight photos focused on the children’s genitals could allow a reasonable factfinder, as in Scriber, to conclude that the composition of any one or more of the photos was not an accident, id. at 349-50, but rather was designed for sexual gratification. Second, a reasonable juror could have concluded that Ms. Turenne purposely put several of the children in poses that resemble what one might see in some adult pornography: the subject on her back, her legs spread, displaying her genitals.

This also could have caused a reasonable juror to infer that Ms. Turenne took those photos for her own sexual gratification. Third, as the State points out, the fact that Ms. Turenne omitted the children’s faces from all the photos could support a reasonable juror’s determination that Ms. Turenne treated the children as sexual objects. Indeed, there have been many cases around the country where images of child pornography (or suspected child pornography) have similarly omitted faces. See, e.g., United States v. Hammond, 779 F. App’x 835 , 839 (3d Cir. 2019) (noting that “[no] faces can be seen in the images” of child pornography); State 24 v. Sewell, No. 22-798, 2023 WL 2592018 , at ² (La.

Ct. App. Mar. 22, 2023) (“Agents asked whether he saw child porn when he downloaded, and he said it was hard to tell because there were no faces, but he confirmed there were vaginas and undeveloped prepubescent [breasts] shown.”); People v. Olsen, No. 4-22-0738, 2023 WL 5049096 , ¶¶ 19-20 (Ill. App. Ct. Aug. 7, 2023) (noting video of child pornography where no faces can be seen); Anderson v. Clarke, No. 7:22-cv-00272, 2023 WL 6456489 , at ⁴ (W.D. Va. Sept. 30, 2023) (noting that some of the purported images of child pornography “only revealed genitalia, with ‘no faces,’…”); United States v. Jones, 748 F.3d 64, 66 (1st Cir. 2014) (undercover agent agreeing with target that target would commit sex acts on a child, while the agent would “perhaps film what [the target] did – ‘close up’ shots only, … ‘no face’ shots”). Fourth, Ms. Turenne violated the Center’s no-photograph policy to take these pictures and took most of them after teachers began leaving for the day, when there were fewer staff members in the building.

She also took several pictures in a bathroom, secluding herself and the children from other adults and from the Center’s cameras. Fifth, Ms. Turenne initially lied to the investigators about whether two of the images were photos of children and falsely denied having taken those pictures. After admitting that she did take the pictures of the nude children that were on her phone, Ms. Turenne repeatedly told the investigators that she took the pictures for “no reason,” and that she had meant to delete the pictures but had forgotten to do so. And, as the State notes, Ms. Turenne’s diaper-rash explanation, which she raised for the first time at trial, was 25 thoroughly discredited.14 All of these circumstances provide additional support for the jury’s determination that Ms. Turenne indeed took the pictures and retained them for a reason: sexual gratification.15 14 One of the photos shows diaper cream applied to a child’s anal area.

No rashes are visible in several photos. A few photos show, at most, redness of varying degrees. One child is shown with a pair of underwear below her knees, indicating that she is no longer wearing diapers. Regardless of what a rational juror may have concluded about the number of pictures in which a rash was visible, such a juror could have concluded that Ms. Turenne did not take any of the photos to document a rash or an incipient rash.

For one thing, a rational juror could have found Ms. Turenne’s claim that she saw no diaper rashes on boys to be far-fetched. In addition, as Ms. Turenne acknowledged in her trial testimony, she would not have been able to identify any of the children in the faceless images if a parent had complained about a diaper rash. Moreover, it is difficult to understand how most of these photos, even if they had included the children’s faces, would have helped Ms. Turenne respond to a complaint about a diaper rash. She took most of the photos at the end of day, at a time when the pictured child presumably would have been at the Center for several hours.

If, as Ms. Turenne testified, she wanted “to prove that this child had the rash before I started watching the child,” presumably she would have taken pictures of rashes that were visible during the child’s first diaper change of the day. In addition, only one photo showed the application of diaper cream. If, as defense counsel said in his opening statement, Ms. Turenne’s goal was to show that she was “afraid of being accused of any kind of rashes that she wasn’t taking care of, she wasn’t wiping,” presumably Ms. Turenne would have taken more photos that documented her use of diaper cream. Finally, a rational juror could have concluded from the fact that Ms. Turenne retained the photos on her phone long after a parent or guardian likely would have complained about any rash or redness shown in any of the photos, that Ms. Turenne took them for a purpose other than to protect herself against a claim of substandard care. 15 Contrary to Ms. Turenne’s assertion, our decision in Bible v. State does not compel a different result.

In Bible, we overturned the defendant’s convictions for sexual offenses in the third and fourth degrees. 411 Md. 138 (2009). The alleged victim in that case, who was seven years old at the time of the offense, testified that the defendant touched her “behind” more than once for “like two seconds.” Id. at 146 . The State introduced no other evidence regarding the alleged touching and the surrounding circumstances. Id. at 145 .

A three-judge plurality of the Court joined an opinion holding that: (1) a person’s buttocks are an “intimate area” for purposes of the third- and fourth-degree sex offense statutes, id. at 152-56 ; but (2) the evidence was insufficient to prove beyond a reasonable 26 Note that we have not yet discussed the evidence of the adult pornography found on Ms. Turenne’s phone as part of our sufficiency analysis. That is not because evidence of a defendant’s possession of adult pornography is never relevant in a child sex abuse case. As Ms. Turenne acknowledges in her briefing, in some instances such evidence is relevant. See, e.g., Commonwealth v. Wallace, 877 N.E.2d 260, 262-63, 267-68 (Mass.

App. Ct. 2007) (in prosecution for indecent assault and battery on 12-year-old girl, affirming admission of adult pornography that was found in defendant’s car commingled with photographs of fully clothed young girls and other items that collectively showed a “voyeuristic interest in sexual matters and young females”; such evidence was probative of “whether the defendant intentionally squeezed the victim’s breast or accidentally touched her while in the performance of a good deed”); Ortiz v. Commonwealth, 667 S.E.2d 751, 755 (Va. 2008) (in prosecution for rape of the defendant’s step-grandchild, affirming admission of adult pornographic videos found in search of the defendant’s home, where they were relevant to corroborate the child’s testimony that, during the period of the doubt that the defendant’s intent in touching the girl’s buttocks was to obtain sexual arousal or gratification. Id. at 156-60. The Honorable Lynne A. Battaglia and the Honorable John C. Eldridge joined in the judgment only. Id. at 161.

(The Honorable Glenn T. Harrell, Jr., joined by the Honorable Joseph F. Murphy, Jr., filed a dissenting opinion. The dissenters would have affirmed the convictions. Id. at 161-63 (Harrell, J., dissenting.)) Thus, we cannot conclude that a majority of the Court in Bible determined the evidence was insufficient to support the jury’s finding regarding the defendant’s intent. Regardless, the evidence of sexual gratification was more robust in this case than it was in Bible.

As the State points out, “there is a big difference between touching for ‘like two seconds’ on top of clothing, and several naked, sexually posed, genitalia-focused photos taken on different dates.” 27 alleged sexual abuse, the defendant “showed her movies of ‘grownups doing something’ without clothes on”). Here, the evidence of adult pornography on Ms. Turenne’s phone – all of which came in without objection – was relevant to the jury’s understanding of how Ms. Miller first came to see the photos of the children. It also was relevant insofar as it was a topic of discussion during Ms. Turenne’s interview with the investigators, a recording of which was introduced into evidence. However, it is a closer question whether the evidence of adult pornography, as offered by the State, had probative value with respect to whether Ms. Turenne obtained sexual gratification from the photos of the children.

The jury arguably could infer from Ms. Miller’s testimony that she viewed an adult pornographic video and the photos of naked children in quick succession, and therefore that Ms. Turenne stored the photos of the children near where she stored at least one adult pornographic video in her phone. And, if the jury made those inferences, the jury possibly could have also inferred that the photos of the children provided sexual gratification to Ms. Turenne in the same way that the nearby adult pornographic video presumably provided her with sexual gratification. In addition, Ms. Turenne told the investigators that, when others sent her adult pornographic materials, they would automatically be downloaded to her camera. This arguably also could have supported an inference that the video Ms. Miller saw was located on Ms. Turenne’s camera roll – the same part of the phone where Ms. Miller saw the pictures of the children.

However, as Ms. Turenne points out, the State did not offer forensic evidence showing that her phone was organized in such a way to demonstrate a relationship between the adult pornography and the photos of the children. 28 We need not decide whether the evidence of Ms. Turenne’s possession of adult pornography provides additional support for her child sexual abuse convictions.16 The context that we have discussed above – how, where, and when Ms. Turenne took the photos and her statements concerning the photos – combined with the content of the photos, would 16 We also need not decide whether the evidence that was introduced concerning Ms. Turenne’s sexual orientation supports her convictions in this case. First, our grant of certiorari was expressly limited to the first question presented, which did not raise the issue of Ms. Turenne’s sexual orientation. And we declined to grant review with respect to a question concerning the sexual orientation evidence. Second, the evidence is sufficient to sustain Ms. Turenne’s child sexual abuse convictions (as well as her child pornography- related convictions, as discussed below) without consideration of such evidence.

However, nothing in this opinion should be construed as predetermining the outcome of any post-conviction petition that Ms. Turenne may subsequently file. A few additional observations about the sexual orientation evidence are also in order. We agree with the Appellate Court that the prosecutor was not arguing that Ms. Turenne was probably a child abuser because she was gay. See Turenne, 258 Md. App. at 263-64.

However, both counsel seemed to be of the view that Ms. Turenne’s sexual orientation could shed light on whether the photos of the children were sexual in nature and whether Ms. Turenne took them for sexual gratification. Thus, the prosecutor elicited from Ms. Miller that Ms. Turenne told her she was gay and argued to the jury: “She told [Ms. Miller] that she was gay or bisexual, which, obviously doesn’t matter, but it matters when you’re looking at whether she had any sexual gratification for taking these pictures, holding on to these pictures for as long as she did.” For his part, defense counsel elicited from Detective Rockwell that there was both male and female adult pornography on Ms. Turenne’s phone, and argued to the jury: “There’s pictures of male genitalia, too, of adult male genitalia. [The State doesn’t] mention that. They’re making the argument that she’s gay, but she has male genitalia in these pictures.” Without data to support a correlation of this sort, litigants should avoid eliciting such evidence and making such arguments, regardless of the defendant’s particular sexual orientation and regardless of the genders of the defendant and victim. However, where the defendant is gay or lesbian and is of the same gender as the alleged victim, an attempt to make such a connection is particularly concerning, because it “could be misinterpreted” as “reinforc[ing] a terrible stereotype of gay and lesbian people” and “perpetrating a pernicious falsehood about same-sex orientation.” Turenne, 258 Md. App. at 264. 29 allow a rational juror to conclude that the photos were sexually exploitative.

Thus, we affirm Ms. Turenne’s convictions for child sexual abuse under CR § 3-602(b)(1). B. The Child Pornography Counts We turn now to the sufficiency of the evidence in support of Counts 9-16 and 17-24, which charged Ms. Turenne with production of child pornography and possession of child pornography, respectively. The validity of these convictions turns on whether the State proved that the photos depicted “lascivious exhibitions” of the children’s genitals or pubic areas. 1. Production of Child Pornography Under CR § 11-207(a)(1), a person may not “cause, induce, solicit, or knowingly allow a minor to engage as a subject in the production of obscene matter or a visual representation or performance that depicts a minor engaged as a subject in … sexual conduct[.]” As relevant here, “sexual conduct” is defined as the “lascivious exhibition of the genitals or pubic area of any person.” Id. § 11-101(d)(4).

The Criminal Law Article does not define the phrase “lascivious exhibition,” as used in § 11-104(d)(4). Ms. Turenne urges us to adopt an objective test to determine whether an image depicts a lascivious exhibition of a child’s genitals, relying on United States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022). Ms. Turenne contends that, in adding “lascivious exhibition” of the genitals or pubic area to the definition of “sexual conduct,” the General Assembly intended to criminalize only those exhibitions that are objectively sexual and connote sexual activity or sexual desire. According to Ms. Turenne, a factfinder should be limited to analyzing the “four corners” of an image in determining whether the image meets that 30 standard.

However, Ms. Turenne also asserts that even under other standards adopted by courts interpreting the phrase “lascivious exhibition,” the evidence was insufficient to convict her of production of child pornography. The State argues that the evidence was sufficient to convict Ms. Turenne of production of child pornography, regardless of whether this Court applies Hillie, the Dost factors used by many courts,17 or the totality-of-the-circumstances approach employed by the Appellate Court of Maryland. The State asks us to adopt a test that permits a factfinder to look beyond the four corners of an image and to consider the defendant’s subjective intent as a factor in determining whether an image depicts a lascivious exhibition. As we explain below, we decline to adopt a test that prohibits the trier of fact from looking beyond the four corners of an image.

Instead, similar to our analysis of whether an act is sexually exploitative for purposes of the child sexual abuse statute, we adopt a content-plus-context test that considers both the contents of an image and the totality of circumstances that directly relate to the exhibition of a child’s genitals or pubic area. However, unlike the inquiry concerning a child sexual abuse charge, where the content- plus-context test is used to determine whether the defendant subjectively derived sexual gratification or another benefit from the alleged act of abuse, the content-plus-context test that we adopt for purposes of child pornography charges is used to determine whether an image is objectively sexual in nature. 17 We discuss United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), below. 31 a. The Constitutional Limits on Criminalization of Depictions of Child Nudity The First Amendment imposes limits on government’s ability to regulate pornography. Adult pornography is subject to an obscenity standard.

States can regulate depictions of sexual conduct involving adults without violating the First Amendment if the depiction, “taken as a whole, appeal[s] to the prurient interest in sex,” “portray[s] sexual conduct in a patently offensive way,” and “do[es] not have serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973). Child pornography is not subject to the same standard. In New York v. Ferber, the Supreme Court held that child pornography can be regulated without infringing on the First Amendment, even if the depiction is not obscene. 458 U.S. 747, 756, 764 (1982). The Ferber Court identified several reasons for this “greater leeway” to regulate non-obscene content involving minors, including: (1) the compelling state interest in “safeguarding the physical and psychological well-being” of children; (2) the fact that child pornography creates a harmful, permanent record of the child’s participation; and (3) the need for states to restrict the distribution of child pornography to effectively restrict its creation.

See id. at 756-62 (quoting Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 607 (1982)). According to the Ferber Court, if the prohibited conduct was “adequately defined by … state law, as written or authoritatively construed,” and the category of “sexual conduct” was “suitably limited and described,” a statute regulating child pornography would be neither underinclusive nor overinclusive and would not violate the First Amendment. Id. at 764-65, 766-73. 32 Images that depict the genitalia of nude children are not per se lascivious exhibitions. That is the case based on the language of CR § 11-101(d)(4).

See, e.g., United States v. Villard, 885 F.2d 117, 121 (3d Cir. 1989) (“The language of the statute makes clear that the depictions must consist of more than merely nudity; otherwise, inclusion of the term ‘lascivious’ would be meaningless.”) (analyzing the similarly worded federal statute). It is also the case because criminalizing all depictions of child nudity – including innocent pictures of children playing in a bathtub in their home and other nonsexual depictions of nude children – would be unconstitutionally overbroad, in violation of the First Amendment. See Osborne v. Ohio, 495 U.S. 103, 113-14 (1990) (Ohio Supreme Court’s limiting construction of statute as prohibiting “the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals” rendered the statute permissible under the First Amendment because it “avoided penalizing persons for viewing or possessing innocuous photographs of naked children”); Commonwealth v. Davidson, 938 A.2d 198, 214-15 (Pa. 2007) (Pennsylvania statute criminalizing depictions of minors engaged in nudity for the purpose of sexual stimulation or gratification not unconstitutionally overbroad; “[t]he qualifier to the term ‘nudity’ narrows and limits the reach of the statute. In doing so, the General Assembly made clear that it did not seek to punish individuals for viewing or possessing innocent materials containing naked minors … e.g., a photograph of a baby’s bath.”); State v. Whited, 506 S.W.3d 416, 431 (Tenn. 2016) (“[C]riminalizing conduct that involves a depiction of ‘mere nudity’ may have constitutional implications.”). 33 b.

Courts’ Differing Approaches Regarding “Lascivious Exhibition” Federal law and many states’ laws prohibit the production of images that depict the “lascivious exhibition” of children’s genitals, pubic areas, and other private parts. However, federal courts, as well as state courts, have varied in their approaches to determining whether an image constitutes a lascivious exhibition. We summarize four existing approaches: the Dost factors, the totality-of-the-circumstances test, the “limited context” modification of the Dost factors, and the Hillie standard. i. The Dost Factors The closest thing to a majority approach comes from a federal district court opinion issued almost 40 years ago.

United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). The court in Dost articulated a list of six factors to use in determining whether an image is a “lascivious exhibition” of the genitals:18 1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; 18 Dost analyzed the predecessor statute to 18 U.S.C. § 2256 , which defines “sexually explicit conduct” as including actual or simulated “lascivious exhibition of the anus, genitals, or pubic area of any person[.]” 18 U.S.C. § 2256 (2)(A)(v). As we describe below, Maryland’s definition of “sexual conduct” was amended in 2019 to add “lascivious exhibition” language that resembles the language of this federal statute.

Thus, Dost, Hillie, and other cases that interpret the federal “lascivious exhibition” language are useful comparisons. See Harris v. State, 331 Md. 137, 156-57 (1993) (“The interpretation given a federal statute ordinarily is persuasive in interpreting a state statute patterned upon the federal statute.”); see also State v. Whited, 506 S.W.3d 416, 426 (Tenn. 2016) (explaining that “[f]ederal decisions on the question of lasciviousness are useful for comparison because federal law is similar to Tennessee law in the area of child sexual exploitation”). 34 2) whether 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 inappropriate attire, considering the age of the 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; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Id. at 832. The Dost Court further stated that: (1) all six factors need not be present for an image to be lascivious; (2) in addition to the listed factors, the trier of fact should consider any other factors that may be relevant in a particular case; and (3) the determination of lasciviousness must be made “based on the overall content of the visual depiction, taking into account the age of the minor.” Id.

At least seven of the federal appellate circuits have adopted or approved of the Dost factors to varying degrees. See, e.g., United States v. Amirault, 173 F.3d 28 (1st Cir. 1999); United States v. Spoor, 904 F.3d 141 (2d Cir. 2018); United States v. Villard, 885 F.2d 117 (3d Cir. 1989); United States v. McCall, 833 F.3d 560 (5th Cir. 2016); United States v. Brown, 579 F.3d 672 (6th Cir. 2009)19; United States v. Lohse, 797 F.3d 515 (8th Cir. 2015); United States v. Boam, 69 F.4th 601 (9th Cir. 2023). Some courts have opined that the Dost factors “are neither comprehensive nor necessarily applicable in every situation.” Amirault, 173 F.3d at 32 . Other courts use the Dost factors as a “starting point.” Boam, 69 19 As discussed below, Brown can be viewed as articulating a test that is distinct from other courts’ understandings of the Dost factors. 35 F.4th at 608; see also United States v. Perkins, 850 F.3d 1109, 1121 (9th Cir. 2017) (opining that the Dost factors “are neither exclusive nor conclusive,” and courts may consider “any other factor that may be relevant in a particular case”) (internal quotation marks and citation omitted).

In addition to the variation that exists in courts applying the Dost factors, there has also been criticism of the factors, even among the circuits that have adopted or applied them. See, e.g., United States v. Frabizio, 459 F.3d 80, 88 (1st Cir. 2006) (“There are many reasons for the need for caution about the use of the Dost factors[.]”). In particular, the fifth factor – “whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity” – has been repeatedly criticized. Courts have noted that “[c]hildren do not characteristically have countenances inviting sexual activity,” id. at 89 , and recognized that “[c]hildren posing for pornographic pictures may suffer dramatic harm regardless of whether they have an ‘adult’ look of sexual invitation or coyness on their face.” United States v. Knox, 32 F.3d 733, 747 (3d Cir. 1994).

This factor’s emphasis on the conduct of the child victim means that its application can be “over-generous to the defendant,” Wiegand, 812 F.2d at 1244 , and courts applying the Dost factors have sometimes declined to consider it. See, e.g., United States v. Johnson, 639 F.3d 433, 440 (8th Cir. 2011) (“The fact that the young women in the videos were not acting in an obviously sexual manner, suggesting coyness or a willingness to engage in sexual activity, does not necessarily indicate that the videos themselves were not or were not intended to be lascivious.”); United States v. Wolf, 890 F.2d 241, 246 (10th Cir. 1989) (requiring a child “to exhibit lust, wantonness, sexual coyness or other inappropriate precocity” “would pervert both the 36 language and the logic of the [child pornography] legislation and the case law”); United States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999) (“The lascivious exhibition is not the work of the child, whose innocence is not in question, but of the producer or editor of the video.”) (cleaned up). In addition, the sixth Dost factor – “whether the visual depiction is intended or designed to elicit a sexual response in the viewer” – has confounded many courts. As the First Circuit commented: Is this a subjective or objective standard, and should we be evaluating the response of an average viewer or the specific defendant in this case?

Moreover, is the intent to elicit a sexual response analyzed from the perspective of the photograph’s composition, or from extrinsic evidence (such as where the photograph was obtained, who the photographer was, etc.)? Amirault, 173 F.3d at 34 . Some courts view this factor subjectively and find the sixth factor satisfied when the image appeals to the defendant’s sexual desires, while others view the factor as informing an objective inquiry. Compare Wiegand, 812 F.2d at 1244 (“It was a lascivious exhibition because the photographer arrayed it to suit his peculiar lust.”), with Spoor, 904 F.3d at 150 (clarifying that the sixth Dost factor “should be considered by the jury in a child pornography production case only to the extent that it is relevant to the jury’s analysis of the five other factors and the objective elements of the image”). ii.

The Totality-of-the-Circumstances Test A second approach is the one articulated by the Appellate Court in deciding this case: a totality-of-the-circumstances test. Turenne, 258 Md. App. at 246-47. Arguably, this approach is consistent with what the Dost Court had in mind when it said that, “in 37 determining whether a visual depiction of a minor constitutes a ‘lascivious exhibition of the genitals or pubic area[,] . . .’ the trier of fact should look to the [six enumerated] factors, among any others that may be relevant in the particular case[.]” Dost, 636 F. Supp. at 832 (emphasis added). However, reading Dost and some subsequent cases to suggest that some or all of the Dost factors must be considered in every case, the Appellate Court and several other courts have explicitly rejected the Dost factors as a test and instead have “rel[ied] on the plain meaning of ‘lascivious exhibition’ and appl[ied] a totality of the circumstances approach.” Turenne, 258 Md. App. at 247.

The Appellate Court opined that this approach “is most appropriate given the varied and nuanced contexts of child pornography.” Id. After framing the question of whether a visual representation “depicts the minor’s genitals or pubic area in order to excite lustfulness or sexual stimulation in the viewer,” id. (cleaned up), the Appellate Court stated: “Answering this question requires consideration of all circumstances surrounding a depiction; not just the image itself, but the actions and preferences of the defendant.” Id. iii. The Sixth Circuit’s “Limited Context” Approach In United States v. Brown, 579 F.3d 672 (6th Cir. 2009), the Sixth Circuit took a narrower approach than the Dost Court and the Appellate Court in determining whether a photograph constitutes a lascivious exhibition.

Construing the sixth Dost factor, the Sixth Circuit opted for a “limited context” test, which allows a factfinder to consider 38 “circumstances directly related to the taking of the images” along with the content of the images. Id. at 683 . The Brown Court undertook its analysis because only one of the images that bore on a contested federal Sentencing Guidelines issue was lascivious based on the four corners of the image. Id. at 681 .

The question thus became whether the sentencing court “could have properly looked beyond the four corners of the [other] photographs.” Id. at 682 . Recognizing that the Sixth Circuit had previously applied the Dost factors in assessing lasciviousness, see id. at 680 , the court determined that the answer to the question before it depended on the proper interpretation of the sixth Dost factor. See id. at 682 . The court noted the disagreement among other courts about the meaning of the sixth factor’s phrase “intended to elicit a sexual response in the viewer,” id. at 682-83 , and said that “[t]he lack of consensus among our sister circuits is understandable, given that there are important considerations weighing in favor of both” a subjective and an objective approach.

Id. at 683 . On the one hand, the court observed that “[t]he use of the word ‘intended’ seems to establish that the subjective intent of the photographer is relevant.” Id. at 682 . On the other hand, the court explained that because “the word ‘intended’ is found in the Dost court’s test, and not in a criminal statute,” it is appropriate “to determine if the element of intent should be examined in determining whether the image is lascivious.” Id. The Brown Court rejected the idea that “lasciviousness should be determined from the image alone.” Id.

Rather, the court emphasized the need to consider an image’s context: “Ignoring the contextual evidence construes the statute too narrowly as it inevitably fails to capture behavior that is ‘intended’ to exploit children.” Id. at 683 . 39 However, the court also saw peril in placing “too much emphasis on the subjective intent of the photographer or viewer[.]” Id. In doing so, “a seemingly innocuous photograph might be considered lascivious based solely upon the subjective reaction of the person who is taking or viewing it.” Id. This, in turn, “could invoke the constitutional concerns associated with criminalizing protected expressive activity.” Id. In addition, the court reasoned, “a rule that considers too much prejudicial context – e.g., facts such as the past behavior of the defendant, other alleged deviancies of the defendant, and criminal conduct that is not directly related to the charge at hand – could pose due process concerns and could be used to convict defendants for acts other than those for which he or she is prosecuted.” Id.

These considerations led the Sixth Circuit to conclude that the best way to apply the sixth Dost factor is to take a sort of hybrid approach that neither ignores the context surrounding the four corners of an image, nor considers a particular defendant’s subjective preferences in the abstract, as divorced from how those preferences are manifested in the image: In sum, while the context in which an image was taken likely helps a factfinder understand whether an image was intended to elicit a sexual response in the viewer, there is a countervailing and significant risk that a context-specific test could reach too broadly and “over-criminalize” behavior. In light of these competing concerns, we find that it is appropriate to apply a “limited context” test that permits consideration of the context in which the images were taken, but limits the consideration of contextual evidence to the circumstances directly related to the taking of the images. Id. Under the Brown Court’s limited context test, a factfinder can consider “evidence about (1) where, when, and under what circumstances the photographs were taken, (2) the 40 presence of other images of the same victim(s) taken at or around the same time, and (3) any statements a defendant made about the images.” Id. at 683-84 (footnote omitted).

However, “past bad acts of the defendant, the defendant’s possession of other pornography (pornography of another type or of other victims), and other generalized facts that would relate only to the general ‘unseemliness’ of the defendant” are off-limits and cannot be considered. Id. at 684 . iv. The Hillie Standard A fourth approach, and the one advocated by Ms. Turenne, comes from United States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022). Hillie held that “‘lascivious exhibition of the anus, genitals, or pubic area of any person’ . . . mean[s] that the minor displayed his or her anus, genitalia, or pubic area in a manner connoting that the minor, or any person or thing appearing with the minor in the image, exhibits sexual desire or an inclination to engage in any type of sexual activity.” Id. at 685 .

The Hillie Court reasoned that this interpretation of the federal statute was required under New York v. Ferber, which in turn referenced the Supreme Court’s earlier cases that purportedly equated “sexual conduct” with “hard core” sexual activity, even in the context of “lewd exhibition” of the genitals. Id. at 681-85 . The Hillie Court also relied on the canon of noscitur a sociis, “which counsels that a word is given more precise content by the neighboring words with which it is associated,” to determine that the lascivious exhibition “must be performed in a manner that connotes the commission of a sexual act.” Id. at 685 (internal quotation marks and citation omitted). The court reasoned that because all the other acts that qualified as 41 “sexually explicit conduct” under the federal statute were specific sexual acts, “lascivious exhibition” should likewise be construed in a way that connotes a sexual act.

Id. c. Our Interpretation of “Lascivious Exhibition” Maryland’s child pornography statutes do not define what a “lascivious” exhibition is. When a term is not defined, we must determine what the term means, applying Maryland’s well-established rules for statutory interpretation. The “cardinal rule of statutory interpretation” is to “ascertain and effectuate the General Assembly’s purpose and intent when it enacted the statute.” Wheeling v. Selene Fin.

LP, 473 Md. 356, 376 (2021). We do so by first examining the “normal, plain meaning” of the statute’s language. Id. Where, as here, a term is not defined by the statute, “we may refer to the dictionary and give the words their ordinary meaning.” State v. Wilson, 471 Md. 136, 160 (2020).

We “read the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Johnson v. State, 467 Md. 362, 372 (2020) (internal quotation marks and citations omitted). “Where statutory language is ambiguous and thus subject to more than one reasonable interpretation, or where the language is unambiguous when read in isolation, but ambiguous when considered in the context of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process.” Buarque de Macedo v. Automobile Ins. Co. of Hartford, Conn., 480 Md. 200, 216 (2022) (internal quotation marks and citation omitted). In addition, we “check our 42 interpretation against the consequences of alternative readings of the text,” Bell v. Chance, 460 Md. 28, 53 (2018), which “grounds the analysis.” In re O.P., 470 Md. 225, 255 (2020). i. An Image Need Not Connote or Show Desire or Sexual Activity to Be a Lascivious Exhibition.

As discussed above, because the phrase “exhibition of the genitals or pubic area” is qualified by the word “lascivious,” more than mere nudity is required. See Villard, 885 F.2d at 124 ; United States v. Courtade, 929 F.3d 186, 191 (4th Cir. 2019) (“[T]hat Jane Doe appears nude in the video cannot suffice to prove that the video meets the statutory definition [of lascivious exhibition]. If that were so, the word lascivious would become superfluous.”). “Lascivious” is defined as “tending to excite lust; lewd; indecent; obscene.” Lascivious, Black’s Law Dictionary (11th ed. 2019). Thus, nudity is lascivious if it is depicted in a sexual, indecent, or lewd manner or otherwise tends to arouse sexual desire.

See, e.g., Knox, 32 F.3d at 750 (“Nudity must be coupled with other circumstances that make the visual depiction lascivious or sexually provocative in order to fall within the parameters of the statute.”). Like the Hillie Court, Ms. Turenne relies on the associated-words canon to assert that the meaning of “lascivious exhibition” is informed by the other terms listed in the definition of “sexual conduct.”20 Ms. Turenne contends that because these other terms are 20 Subtitle 11 of the Criminal Law Article defines “sexual conduct” as: (1) human masturbation; (2) sexual intercourse; 43 affirmative sexual acts, a display of genitals or pubic area must also “connote or show desire or sexual activity” to be a lascivious exhibition. We disagree. As the Seventh Circuit said in rejecting the same argument: “We … do not believe that the associated-words canon can be invoked here to limit this term….

The term ‘lascivious exhibition’ has its own meaning that is plainly related to, but distinct from, the other terms in [18 U.S.C.] § 2256(2)(A).” United States v. Donoho, 76 F.4th 588, 600 (7th Cir. 2023). That meaning is not limited to sexual acts or displays of sexual desire. While a lascivious exhibition must be sexual in nature, it need not connote or show sexual desire or sexual activity. Put another way, the exhibition must depict more than innocent nudity, but it need not show the child or anyone else doing anything sexual.

The producer of an image may create a lascivious exhibition by depicting a child as a sexual object without forcing the child to engage in a sexual act or causing the child to reflect or simulate sexual desire. See Spoor, 904 F.3d at 149 (reasonable juror could find that video of nude boy’s genitalia, filmed while boy was “in bed and without any other context,” was (3) whether alone or with another individual or animal, any touching of or contact with: (i) the genitals, buttocks, or pubic areas of an individual; or (ii) breasts of a female individual; or (4) lascivious exhibition of the genitals or pubic area of any person. CR § 11-101(d). 44 lascivious because it served “no obvious purpose other than to present the child as a sexual object”).21 Our interpretation of the statutory language is consistent with the General Assembly’s purpose in adding “lascivious exhibition” to the definition of “sexual conduct” in 2019. See 2019 Md. Laws, ch. 325 (House Bill 1027), ch. 326 (Senate Bill 736).

The purpose of this amendment was to “update the standard for ‘sexual conduct’ so that it was consistent with the federal standard and to close a loophole that prevented the prosecution of certain individuals in Maryland.” In re S.K., 466 Md. 31 , 56 n.22 (2019); see also Letter from Del. Lesley J. Lopez in Support of H.B. 1027 (“Lopez Letter”) (“HB 1027 will strengthen our current child porn laws by elevating them to that of the federal standard.”). Testimony from advocates supporting the amendment indicates that it was intended to allow the prosecution of “child pornographers who produce or possess images that are undeniably sexually explicit, but do not show active touching.” Maryland Coalition Against Sexual Assault, Testimony Supporting H.B. 1027 with Amendment; see also Lopez Letter (“Specifically, we seek to include the phrase ‘lascivious exhibition’ to the definition of what constitutes sexual conduct. Lascivious exhibition essentially involves a sexual act or exhibition that does not involve actual physical or sexual contact with the victim.”).

This legislative history demonstrates that the purpose of the amendment was to expand the categories of conduct that could be punished under Maryland’s child 21 We also agree with the Donoho Court that Hillie misinterpreted Ferber’s reference to “lewd exhibition” being directed at the “hard core” of child pornography. See Donoho, 76 F.4th at 599-600 . 45 pornography statutes. Hillie’s interpretation of “lascivious exhibition” is inconsistent with the General Assembly’s goal of increasing protection for children who are the subjects of sexually explicit images that do not show active touching. Adoption of the Hillie standard would also lead to an absurd interpretation of CR § 11-101(d)(4) and by extension CR § 11-207(a)(1), by making it virtually impossible to prosecute someone