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

the hearing and conference of this case while an

Pursuant to the Maryland Uniform Electronic Legal

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,

2024.08.16

14:35:50

§ 3A, she also participated in the decision and

'00'04- 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 for producing an image of a young child’s genitals or pubic area that

does not depict someone performing a sex act. As discussed above, the fifth Dost factor –

“whether the visual depiction suggests sexual coyness or a willingness to engage in sexual

activity” – has been repeatedly criticized and often found not to be relevant to the

determination of lasciviousness when the victim is a young child. See, e.g., Frabizio, 459

F.3d at 89; Knox, 32 F.3d at 747; Wiegand, 812 F.2d at 1244; Johnson, 639 F.3d at 440;

Wolf, 890 F.2d at 246; Horn, 187 F.3d at 790. If we adopted Hillie’s reasoning, we

essentially would be requiring the State to prove the existence of the fifth Dost factor in

every case where a lascivious exhibition is alleged but no sexual activity is shown – even

in cases involving children too young to be coaxed into simulating sexual coyness or a

willingness to engage in sexual activity. That would run the risk of allowing pedophiles to

avoid criminal liability by creating images depicting the genitals or pubic areas of children

without showing their faces. We are confident that such absurd results were not what the

General Assembly had in mind when it added the “lascivious exhibition” language to the

definition of “sexual conduct.” See State v. Bolles, 541 S.W.3d 128, 139 (Tx. Crim. App.

2017) (“[T]o suggest that a child has to be doing something sexual in order for the image

to be considered lewd would effectively exclude from the definition of child pornography

46

all images of children who are too young to understand what ‘sexual’ even means. To

interpret the statute as requiring some form of mens rea on the part of the child would be

an absurd result the legislature could not have intended.”).

ii. We Adopt a Content-Plus-Context Test for Determining Whether

an Image Constitutes a Lascivious Exhibition.

Our rejection of the Hillie standard does not resolve the question of what test should

be used in determining whether an image depicts a lascivious exhibition. After considering

the various formulations that other courts have used in assessing whether an image is

lascivious, we choose to adopt a content-plus-context standard that is similar to the Sixth

Circuit’s “limited context” formulation in Brown. Under this content-plus-context

standard, whether an image depicts a “lascivious exhibition of the genitals or pubic area”

is determined by: (1) the contents of the image; and (2) the totality of the circumstances

that directly relate to the exhibition of the genitals or pubic area. After reviewing the

content and context of an image that is alleged to be a lascivious exhibition, the jury must

determine whether the image is objectively sexual in nature.22

Our test is designed to avoid being both underinclusive and overinclusive. An

approach that considers only the content within the four corners of an image and ignores

the context of the exhibition is underinclusive, in that it is more likely to fail to capture

behavior that is intended to exploit children. This concern is heightened “in a context where

young children are at risk.” Brown, 579 F.3d at 683. In cases involving young children, a

22

Because this case involves photographs, we have found it expedient to refer to

“photographs,” “photos,” and “images” throughout this opinion. To be clear, the test we

adopt today applies to all types of visual representations.

47

trier of fact who considers only the four corners of an image may not get the message that

the creator of the image is trying to send. When the exhibition is less overtly sexual within

the four corners of the image, and the subject of the image is a young child who is incapable

of feigning or expressing sexual coyness or desire, an ordinary person who cannot consider

circumstances related to the image is more likely to find the image not lascivious, even

where many pedophiles would likely consider it lascivious. When the context surrounding

the exhibition is considered, a trier of fact who is not a pedophile is more likely to

understand the image as its creator meant it to be understood.

At the same time, our approach avoids being overinclusive by reducing the risk that

an innocent depiction will be deemed child pornography. Allowing a factfinder to consider

contextual evidence related to the exhibition permits defendants to introduce evidence

outside the four corners of the image that tends to show the picture is not sexual in nature.

See Brown, 579 F.3d at 683. This goes a long way toward ensuring that legitimate

expressive activity is not criminalized merely because it contains an image of a child’s

nude genitals or pubic area. See id.

A recent Fourth Circuit case helps illustrate the limitations of a content-only

approach. In United States v. Courtade, the Fourth Circuit affirmed the child pornography

conviction of a defendant who pled guilty to creating a video of his teenage stepdaughter

in the shower. 929 F.3d 186 (4th Cir. 2019). The court declined to “venture into the thicket

surrounding the Dost factors or define the parameters of any subjective-intent inquiry,”

because it was able to decide the question of lasciviousness “based on the objective

characteristics of the video alone.” Id. at 192. The video depicted the victim undressing,

48

getting in the shower, showering, drying off, and getting dressed, and her breasts and

genitals were visible throughout the video. Id. The video also recorded the defendant lying

to the victim that the camera was turned off, bribing the victim with ice cream in exchange

for “testing” whether the camera was waterproof, and instructing the victim how to hold

the camera so that her breasts and genitals would be visible. Id. at 192-93.

The Fourth Circuit concluded that the video was a “lascivious exhibition” because

its contents (both the images and the audio) “make clear that the video’s purpose was to

excite lust or arouse sexual desire in the viewer.” Id. at 193. The court explained that “[t]his

conclusion requires no probing of [the defendant’s] subjective intent or any sustained

examination of his motives; it follows from the video itself, and would thus be apparent to

any reasonable viewer.” Id.

We have no quarrel with the way the Courtade Court analyzed the video at issue in

that case. However, there will be instances where the contents of an image alone will not

“make clear that [its] purpose [is] to excite lust or arouse sexual desire in the viewer,” id.,

but where the addition of contextual evidence directly relating to the exhibition will do so.

The depiction in Courtade “reveal[ed] a young girl deceived and manipulated by an adult

man into filming herself nude in the shower.” Id. That deception and manipulation was

obvious from the four corners of the video because the audio revealed what the defendant

said to the victim. If the video had been silent, it might have been a closer call whether the

depiction was a lascivious exhibition, based solely on its contents. Under a four-corners

approach involving such a hypothetical video, the victim’s testimony about what the

defendant told her to do in the shower would not be relevant to the question of

49

lasciviousness. A difference in outcome depending on the format of the depiction – video

with sound, silent video, or still images – surely cannot be what the General Assembly

intended when it added the “lascivious exhibition” language to the definition of “sexual

conduct.”

Another hypothetical helps bring into focus what type of contextual evidence is

appropriate to admit concerning the question of whether an image is a lascivious exhibition.

Suppose a search of a man’s computer for evidence of an unrelated crime reveals an image

of the man’s 12-year-old son that shows the boy clothed from the waist up but naked from

the waist down. He is sitting on a bed, his face turned away from the camera, but his body

positioned to fully display his pubic area, which appears to be bruised. A forensic analysis

of the computer shows that the image of the son has been stored next to multiple images of

adult pornography. The man is charged with sexual abuse of a minor, as well as production

and possession of child pornography.

At trial, the defendant testifies that he took the photo to document an injury that his

son had suffered earlier that day at school when he was kicked in the groin in a fight. Under

our content-plus-context approach, that evidence would provide permissible context to

help the trier of fact understand whether the photo was sexual in nature.

However, it would not be appropriate for the State to admit evidence that the

defendant stored the photo near adult pornography as substantive evidence of the photo’s

50

lasciviousness. An image is either lascivious or not lascivious at the moment it is created.

Where a person chooses to store an image does not change the nature of the exhibition.23

Where a defendant is charged with both sexual abuse of a minor and production of

child pornography based on the creation of an image that depicts a minor’s genitals or pubic

area, a particular piece of contextual evidence may be relevant to prove both that the

defendant obtained sexual gratification for purposes of the sexual abuse charge and that the

photo is sexual in nature for purposes of the child pornography charge. However, it is

possible that some contextual evidence may be relevant only to the child sexual abuse

charge and not to the child pornography charge. With respect to the former, any contextual

evidence that is relevant to prove the defendant’s subjective sexual gratification (or other

benefit) is fair game, subject to objections under Maryland Rule 5-403. As for the latter,

contextual evidence must be directly related to the exhibition. That is, it must tend to shed

light on the meaning of the exhibition – i.e., whether the exhibition is sexual in nature –

when viewed objectively. Put another way, contextual evidence must be probative of

whether or not “the [image]’s purpose was to excite lust or arouse sexual desire in the

viewer,” Courtade, 929 F.3d at 193, viewed objectively.

To prove that an image is lascivious, the State must do more than simply show that

its creator subjectively found it to be sexual in nature. The State must show that the image

is objectively sexual in nature. The defendant’s subjective motivations may be apparent in

23

We do not rule out the possibility that evidence of storage of alleged child

pornography near adult pornography may be admissible with respect to a child

pornography charge for a different purpose, such as impeachment. See also note 24 below.

51

contextual evidence that sheds light on the objective nature of the image. But evidence that

only shows the defendant’s subjective reaction to an exhibition and does not directly relate

to the exhibition itself is not probative of whether the exhibition is objectively sexual in

nature.24

d. The Evidence Was Sufficient to Convict Ms. Turenne of Producing Child

Pornography.

Applying the content-plus-context test to the evidence in this case, viewed in the

light most favorable to the State, we conclude that a rational juror could find beyond a

reasonable doubt that Ms. Turenne’s photos depicted lascivious exhibitions of the

24

Our content-plus-context standard, unlike Brown’s limited-context approach, is

not a gloss on one or more of the Dost factors. We do not adopt the Dost factors in whole

or in part as the test for determination of lasciviousness in Maryland. That is not to say,

however, that Dost was off base in identifying factors that are often relevant in determining

whether an image depicts a lascivious exhibition. We suspect that, in many cases involving

alleged lascivious exhibitions under Maryland’s child pornography statutes, the parties will

end up making arguments concerning points that are also covered in the Dost factors.

In addition, to the extent that the Brown Court suggested that a defendant’s creation

or possession of pornographic images of other children may not be considered in

determining whether a particular image of a child is a lascivious exhibition, we disagree.

As we discuss below, comparing the images of different children in this case could help

inform the factfinder’s determination of whether, viewed objectively, the purpose of one

or more of the images was to excite lust or to arouse sexual desire in the viewer. In addition,

we do not adopt a bright-line prohibition of consideration of pornography of “another

type,” such as legal, adult pornography. We can imagine circumstances both where

evidence of other forms of pornography would be relevant, or in the alternative not relevant

to whether a contested image of a child is sexual in nature. Thus, while the mere storing of

an image of a child near an adult pornographic image does not bear on whether the child

image is lascivious, the particular characteristics of the adult pornography could make the

adult image relevant to the analysis. We leave such admissibility determinations to the

sound discretion of our trial courts.

52

children’s genitals and pubic areas. That is, a rational juror could have concluded that the

photos are not examples of “mere nudity” but rather are objectively sexual in nature.

We begin by considering the contents of the photos. When looking at a photograph,

the subject of the image is of course relevant. Here, all eight girls were partially or fully

nude. All had nude genitals and pubic areas on display.

The way in which the image has been framed or edited is also important for a

factfinder to consider. See, e.g., United States v. Stewart, 729 F.3d 517, 528 (6th Cir. 2013)

(noting that the jury “may consider evidence of composition, framing, and focus to support

a finding of lasciviousness”); Horn, 187 F.3d at 790 (“By focusing the viewer’s attention

on the pubic area, freeze-framing can create an image intended to elicit a sexual response

in the viewer.”). Indeed, images have been found to be child pornography even when the

picture has been adapted from a larger, non-lascivious image. See Bolles, 541 S.W.3d at

131, 143-44 (photo showing a close-up of a toddler’s pubic area was child pornography

even though it was a zoomed-in and cropped version of a famous, non-pornographic Robert

Mapplethorpe portrait).

Here, Ms. Turenne focused on the children’s genitals and pubic areas in all the

images. In a few of the photographs, there is very little else displayed besides the child’s

genitals. None of the children’s faces are visible in the photographs. Courts have found a

lascivious exhibition of the genitals where the photographer chose to focus on the genitals

and omitted other body parts. For example, in Brown, the defendant took several

photographs of his toddler granddaughters in which their genitals were “prominently

visible at the center of the photographs” and their faces were omitted. Brown, 579 F.3d at

53

681. The Sixth Circuit viewed this decision not to include the girls’ heads as “odd” and as

suggesting that “there may have been an inappropriate or lascivious focus.” Id.; see also

Johnson, 639 F.3d at 440 (reasonable jury could have determined that video clips showing

nude teenage girls from their shoulders to their calves were designed to portray them as

“sexual objects”).25

In addition, as discussed above, a rational juror could conclude that Ms. Turenne

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 contribute to a finding that the photos were sexual in nature.26

25

In the dissenting portion of his separate opinion, Chief Justice Fader

acknowledges that “the framing of the photographs is a relevant consideration,” but asserts

that “the framing here still makes clear that the pictures are of children during the process

of a diaper change.” Dissenting Op. of Fader, C.J., at 17. Viewed in the light most favorable

to the State, a rational juror could conclude that these photos were not framed to

memorialize an innocent diaper change. Indeed, a diaper is visible only in one image and

the only reason the jurors knew the pictures were taken on changing tables was because of

the contextual evidence that revealed Ms. Turenne had placed the children on changing

tables. Perhaps if the photos had showed the children’s faces and their entire bodies on

what was obviously a changing table, instead of focusing on their genitals to the exclusion

of most everything else, the photos would have been similar in kind to innocent bathtub

pictures (or, more to the point, innocent changing table pictures). In any event, even if

reasonable minds can differ about whether the focus on the genitals of the children tends

to render the photos objectively sexual in nature, our deferential standard of review requires

us to resolve any conflict on this point in favor of the State.

26

Our dissenting colleagues assert that the children shown in the photos “are

situated in the midst of diaper changes,” “not posed in sexual positions.” Dissenting Op. of

Fader, C.J., at 17; see also Dissenting Op. of Watts, J., at 4 (“The photos show the pubic

or external genital area of the children, … with their legs in the position that one would

hold a child to change a diaper.”). Notably, in recounting the legislative history of the bill

that added the “lascivious exhibition” language to the definition of “sexual conduct,” Chief

Justice Fader quotes testimony of the Maryland Coalition Against Sexual Assault that the

amended statute would reach images or videos of “naked toddlers and infants, propped up,

54

Several pieces of contextual evidence also support the jury’s finding that the photos

are lascivious. One relevant contextual factor is that the photos were all very similar to one

another. See Brown, 579 F.3d at 684 (photographs showed the two young girls “from a

variety of angles, with a general tendency to focus on the girls’ genitals,” leading the court

to observe: “If there were a handful of photographs of a naked child playing in the bathtub,

it could be believed that a picture inadvertently focused on a child’s genitalia. Here,

however, the sheer number of photographs in which the girls’ genitals are prominently

visible suggests that photographs were taken to elicit a sexual response in the viewer.”).27

Another contextual factor is that the photos were taken in a daycare center. While it

is normal at a daycare center for a toddler’s genitals and pubic area to be exposed

periodically for diaper changing, a rational juror could find that it is not normal for a toddler

to remain naked at a daycare center longer than necessary for a diaper change to be made.

bent over in sexual poses in beds or spread eagle on the floor[.]” Dissenting Op. of Fader,

C.J., at 12. The jury could have concluded that the photos taken on changing tables showed

the visible portion of the children’s bodies in a “spread-eagle” position. Reasonable minds

again can possibly differ whether the poses of the children in the images objectively convey

the message “diaper change in progress” or “sexual object.” If we accept that reasonable

minds can differ on this point, it follows that the jury was not required to interpret these

poses as our dissenting colleagues do.

27

Chief Justice Fader asserts that the similarities in the framing of seven of the eight

images is not relevant to understanding the message contained in any one of the images.

See Dissenting Op. of Fader, C.J., at 18-19. Respectfully, we disagree. The focus on

multiple children’s genitals and pubic areas without showing any of their faces tended to

make it more likely that each individual image was objectively sexual in nature – as an

example of a “no face” child pornographic image, see, e.g., United States v. Jones, 748

F.3d 64, 66 (1st Cir. 2014) – rather than a nonsexual image of a diaper rash, as Ms. Turenne

claimed.

55

In addition, Ms. Turenne took several of the photographs in the Center’s bathroom,

where she was secluded from the rest of the Center’s employees and not visible on one of

the Center’s cameras, and she took all but one of the photographs toward the end of the

day. These contextual facts rebutted Ms. Turenne’s own contextual testimony that the

pictures documented diaper rashes. In addition, Ms. Turenne’s repeated statements at the

interview that the photographs had “no meaning” – in conjunction with the diaper rash

explanation that the jury did not believe – could contribute to a rational juror’s finding that

the photos indeed had a meaning, and that the meaning was to show the children as sexual

objects. See Brown, 579 F.3d at 684 (considering statements attributed to the defendant in

his Presentence Report and admissions in his plea agreement, which suggested that “the

images at issue were intended or designed to elicit a sexual response in the viewer”)

(internal quotation marks and citation omitted).

In short, based on the content of the photos and the contextual evidence that directly

relates to the exhibitions, a rational juror could conclude beyond a reasonable doubt that

the eight photos depicted lascivious exhibitions of the minors’ genitals and pubic areas.

Accordingly, the evidence was sufficient to support Ms. Turenne’s convictions on Counts

9-16.

2. Possession of Child Pornography

Finally, we consider Ms. Turenne’s convictions for possession of child pornography

in Counts 17-24. Under CR § 11-208(b)(2), 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.” As is the case with

56

respect to the statute prohibiting the production of child pornography, “sexual conduct” for

purposes of the possession statute includes the “lascivious exhibition of the genitals or

pubic area of any person.” Id. § 11-101(d)(4).

Our analysis above regarding the production statute applies to the possession statute

as well. That is, we consider the sufficiency of the evidence supporting Ms. Turenne’s

convictions on Counts 17-24 using the same content-plus-context test. Just as a rational

juror could have concluded that Ms. Turenne created eight visual representations of

children engaged in sexual conduct (lascivious exhibitions of their genitals or pubic areas),

a rational juror could have concluded that Ms. Turenne possessed and intentionally retained

those same photographs.

IV

Conclusion

For the reasons stated above, the evidence was sufficient to convict Roseberline

Turenne of child sexual abuse, production of child pornography, and possession of child

pornography. A rational juror could have found that Ms. Turenne sexually exploited the

children in her care by taking photos of their nude genitals and pubic areas for her own

sexual gratification.

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

57

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.

Accordingly, we affirm Ms. Turenne’s convictions.

JUDGMENT OF THE APPELLATE

COURT OF MARYLAND AFFIRMED.

COSTS TO BE PAID BY PETITIONER.

58

Circuit Court for Wicomico County

Case No. C-22-CR-21-000263 IN THE SUPREME COURT

Argued: April 5, 2024

OF MARYLAND

No. 20

September Term, 2023

______________________________________

ROSEBERLINE TURENNE

v.

STATE OF MARYLAND

______________________________________

Fader, C.J.,

Watts,

*Hotten,

Booth,

Biran,

Gould,

Eaves,

JJ.

______________________________________

Concurring and Dissenting Opinion

by Fader, C.J., which Booth, J., joins.

______________________________________

Filed: August 16, 2024

*Hotten, J., now a Senior Justice, participated in

the hearing and conference of this case while an

active member of this Court. After being recalled

pursuant to Maryland Constitution, Article IV, §

3A, she also participated in the decision and

adoption of this opinion.

Respectfully, I concur in part and dissent in part.

I agree with much in the Majority’s thoughtful and well-written opinion, so I will

start there. First, I concur in the Majority’s resolution regarding the most serious criminal

offenses at issue, Ms. Turenne’s eight convictions for child sexual abuse under § 3-602(b)

of the Criminal Law Article.1 Specifically, I agree with the Majority that there was

sufficient evidence for the jury to infer that Ms. Turenne took the eight pictures at issue for

her own benefit. Slip op. at 24-26. I reach that conclusion based on: (1) the focus of the

images, which include the genitals and omit the faces of the infant children; (2) the relevant

circumstances, including that Ms. Turenne took the photos in violation of the daycare

center’s policies and generally late in the afternoon when she was alone with the children

and no other adults would intrude; and (3) as the Appellate Court aptly put it, “the absence

of any credible, innocuous reason for taking and storing such photos[.]”2 Turenne v. State,

1

Ms. Turenne’s convictions for child sexual abuse under § 3-602(b) each carry a

maximum term of incarceration of 25 years. Md. Code Ann., Crim. Law § 3-602(c) (2021

Repl.). Her convictions for creation and possession of child pornography were each subject

to a maximum term of incarceration of ten and five years, respectively, for a first-time

offender. Id. §§ 11-207(b)(1) (creation of child pornography); 11-208(c)(1) (possession of

child pornography).

2

Although I agree with most of the reasons the Majority identifies in support of its

conclusion that “[a] reasonable juror could have determined that Ms. Turenne took

photographs of multiple naked children for her own benefit,” I disagree with the second

reason in the Majority’s list, which is that “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.” Slip op. at 24. As discussed further below, the infant children in the pictures

taken by Ms. Turenne are situated as infants amid a diaper change, not posed in sexual

positions. What appearance might be conveyed by adults posed in the same manner is

irrelevant because the pictures are of infants, not adults.

258 Md. App. 224, 250 (2023). I therefore join the Majority’s holding affirming

Ms. Turenne’s convictions for child sexual abuse under § 3-602(b)(1).3,4

3

The Majority correctly observes that Ms. Turenne was advised of her post-trial

rights and yet failed to file a request for a review of her sentence by a three-judge panel

pursuant to Rule 4-344(a), or a motion for modification of her sentence pursuant to Rule

4-345(e). Slip op. at 14 n.10. The crime of child sexual abuse covers a wide range of

conduct that “involves sexual molestation or exploitation of a minor,” including incest and

rape. Crim. Law § 3-602(a)(4). The maximum penalty for child sexual abuse, applicable

to the entire range of conduct prohibited by that offense, is 25 years’ imprisonment. Id.

§ 3-602(c). For taking and keeping the eight photographs at issue, the court imposed the

maximum sentences on all eight counts, to be served consecutively, for a total of 200 years’

imprisonment, with 90 years suspended. The resulting 110-year active-time sentence is

more time than Ms. Turenne, who was 18 years old at the time of her offenses, could have

received had she been found guilty of kidnapping five of the children, see Crim. Law

§ 3-503(b)(1) (establishing maximum sentence for child kidnapping as 20 years’

imprisonment); or engaging in sex trafficking of four of the children, see Crim. Law

§ 3-1102(c)(2) (establishing maximum sentence for sex trafficking a minor as 25 years’

imprisonment). Without minimizing in any way the severity of the crimes committed by

Ms. Turenne or her egregious breach of trust with the families of the children she

photographed and with her employer, the record does not suggest any reason why she might

have knowingly and intelligently chosen not to pursue her post-trial rights.

4

The Majority explains that the issue of whether the evidence that was introduced

concerning Ms. Turenne’s sexual orientation supports her convictions in this case is not

before us. Slip op. at 29 n.16. I agree that the issue is not before us because we did not

grant certiorari on it, and it was not preserved in the circuit court. Indeed, as the Majority

points out, Ms. Turenne’s counsel in the circuit court not only did not object to that

evidence but also seemed to accept that it could be relevant. Id. That made this case a

poor one in which to address the issue. And I agree that identifying a connection between

adult sexual orientation and any aspect of sexual attraction to children is wrong and could

“reinforc[e] a terrible stereotype of gay and lesbian people” and “perpetrat[e] a pernicious

falsehood about same-sex orientation.” Id. (quoting Turenne, 258 Md. App. at 264); see

also, e.g., Sean Cahill & Sarah Tobias, Policy Issues Affecting Lesbian, Gay, Bisexual, and

Transgender Families 107 (2006) (“The claim that homosexuals are more likely to molest

children has been definitively refuted by peer-reviewed social science research.”). And

although the question is not before us, I note that courts around the country have rejected

the proposition that there might be a link between a pedophile’s adult sexual orientation

and the pedophile’s sexual attraction to children. See, e.g., Commonwealth v. Christie, 53

2

Second, with respect to Ms. Turenne’s convictions for the creation and possession

of child pornography, I largely agree with the Majority’s articulation of the standard by

which we should judge whether an image or video constitutes a “lascivious exhibition.”

The Majority does an admirable job of setting forth the sundry approaches that courts in

other jurisdictions have taken to assess whether images or videos of children are lascivious.

That includes the many courts that have applied some version of the Dost factors in a

variety of different ways, some entirely objective and some subjective; the totality of the

circumstances test applied by the Appellate Court; and the one federal appellate court that

has adopted a purely objective approach limited to the four corners of the image or video

at issue. Slip op. at 34-42. It is safe to say that there is no single approach to determining

N.E.3d 1268, 1274 (Mass. App. Ct. 2016) (“The use of evidence of an adult’s

homosexuality to demonstrate a sexual interest in underage boys (or, indeed, underage

children of either gender) is thus impermissible.”); State v. Blomquist, 178 P.3d 42, 50

(Kan. Ct. App. 2008) (“It is [not] reasonable to assume that a preference for same gender

adult sexual partners establishes a proclivity for sexual gratification with same gender

children[.]” (quoting State v. Ellis, 820 S.W.2d 699, 702 (Mo. Ct. App. 1991))); People v.

Garcia, 177 Cal. Rptr. 3d 231, 240 (Ct. App. 2014) (“[A] defendant’s sexual attraction to

adults of the same sex has nothing to do with whether they are sexually attracted to children

of the same sex.”); Blakeney v. State, 911 S.W.2d 508, 515 (Tex. App. 1995) (observing

that the inference that “homosexual men are also molesters of little boys” is “unsupported

by evidence or logic”); Sias v. State, 416 So.2d 1213, 1217 (Fla. Dist. Ct. App. 1982)

(finding that “there is absolutely no showing that homosexuals as a group are disposed to

engage in” “homosexual battery” of minors); Mary E. Becker, The Abuse Excuse and

Patriarchal Narratives, 92 Nw. U.L. Rev. 1459, 1467 (1998) (“[T]here is no evidence that

lesbians are especially likely to abuse girls.”). See generally Gregory Herek, Facts About

Homosexuality and Child Molestation, available at

http://psychology.ucdavis.edu/rainbow/html/facts_molestation.html (last visited July 16,

2024), archived at https://perma.cc/WF3A-JAWD (summarizing studies and concluding

that the “mainstream view” is that there is no link between adult sexual orientation and

sexual attraction to children).

3

whether images or videos of unclothed children are lascivious that is consistently applied

(or applied consistently) by a majority of jurisdictions.

With some differences that I will explain, I ultimately agree with the Majority that

it is most appropriate to apply a “content-plus-context” test that considers both the contents

of an image and context that bears directly on “whether an image is objectively sexual in

nature.” Id. at 31. As I will also explain, I part ways with the Majority in the application

of that test to the images at issue. But I begin, as all exercises in statutory interpretation

must, with the language of the statute. See, e.g., Comptroller v. FC-GEN Operations Invs.

LLC, 482 Md. 343, 379 (2022) (“Our goal is to ascertain and effectuate the intention of the

legislature and we begin that exercise by reviewing the statutory language itself.” (quoting

Comptroller v. Citicorp Int’l Commc’ns, Inc., 389 Md. 156, 165 (2005))).

STATUTORY INTERPRETATION PRINCIPLES

“The goal of statutory construction is to discern and carry out the intent of the

Legislature.” Westminster Mgmt., LLC v. Smith, 486 Md. 616, 644 (2024) (quoting Blue

v. Prince George’s County, 434 Md. 681, 689 (2013)). We begin our search with the text

of the provision at issue, viewed “within the context of the statutory scheme to which it

belongs.” Id. (quoting Nationstar Mortg. LLC v. Kemp, 476 Md. 149, 169 (2021)). “Our

review of the text is wholistic, seeking to give effect to all of what the General Assembly

included and not to add anything that the General Assembly omitted.” Westminster Mgmt.,

486 Md. at 644. We take the language of the statute as we find it, without adding to or

deleting from it and without superimposing forced or subtle interpretations onto it. Id.

4

“When statutory terms are undefined, we often look to dictionary definitions as a starting

point, to identify the ‘ordinary and popular meaning’ of the terms,” id. (quoting FC-GEN

Operations Invs. LLC, 482 Md. at 390), before “broadening our analysis to consider the

other language of the provisions in which the terms appear and the statutory scheme as a

whole, including any legislative purpose that is discernible from the statutory text,”

Westminster Mgmt., 486 Md. at 644.

THE STATUTES UNDER REVIEW

Ms. Turenne was convicted of eight counts of violating § 11-207(a)(1) of the

Criminal Law Article. That statute, as relevant here, provides that “[a] person may not . . .

cause, induce, solicit, or knowingly allow a minor to engage as a subject in the production

of . . . a visual representation or performance that depicts a minor engaged as a subject in

. . . sexual conduct.” Section 11-207(a)(1) also prohibits “allow[ing] a minor to engage as

a subject in the production of obscene matter” and the creation of depictions of minors

“engaged as a subject in sadomasochistic abuse[.]” Other provisions of § 11-207 generally

prohibit other types of conduct related to the creation or distribution of materials depicting

minors engaged as subjects in obscene acts, sadomasochistic abuse, and sexual conduct.

See Crim. Law § 11-207(a)(2), (3), (4), (5).

Ms. Turenne was also convicted of eight counts of violating § 11-208(b)(2) of the

Criminal Law Article. That statute, as relevant here, provides that “[a] person may not

knowingly possess and intentionally retain a film, videotape, photograph, or other visual

representation showing an actual child . . . under the age of 16 years . . . engaged in sexual

5

conduct[.]”5 Section 11-208(b) also prohibits the possession of depictions of a child under

the age of 16 “engaged as a subject of sadomasochistic abuse” or “in a state of sexual

excitement.”6

The focus of both § 11-207(a)(1) and § 11-208(b)(2), as well as the other

prohibitions contained in §§ 11-207 and 11-208, is solely on the content of the depictions

at issue, not the subjective motivations, perception, purpose, or desires of the individuals

creating, distributing, or possessing them.7

The State contends that the photographs on Ms. Turenne’s phone violated both

§ 11-207(a)(1) and § 11-208(b)(2) because they depict children engaged in “sexual

conduct.” That term, in turn, is defined in § 11-101(d) of the Criminal Law Article to

encompass:

(1) human masturbation;

(2) sexual intercourse;

(3) whether alone or with another individual or animal, any touching of or

contact with:

5

Section 11-208(b)(2) was renumbered without any change to the text as

§ 11-208(b)(1)(ii) when the statute was amended in 2023. 2023 Md. Laws, ch. 759. Like

the Majority, I refer to the section under which Ms. Turenne was charged with possession

of child pornography as § 11-208(b)(2).

6

Section 11-208(d) provides a limited safe harbor: “[n]othing in this section may

be construed to prohibit a parent from possessing visual representations of the parent’s own

child in the nude” unless the representations depict the child as a subject of sadomasochistic

abuse or both engaged in sexual conduct and in a “state of sexual excitement.”

7

As discussed below, that is in contrast to child pornography laws adopted by

several other states.

6

(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.

All parties agree that the photographs at issue do not depict any of the conduct identified

in subsections (1) through (3) of § 11-101(d). The question is whether they depict the

“lascivious exhibition of the genitals” of the children.

The General Assembly has not defined “lascivious exhibition of the genitals,”

although its inclusion of the adjective “lascivious” necessarily precludes an interpretation

that would qualify nudity itself as “sexual conduct.” See Slip op. at 33 (“Images that depict

the genitalia of nude children are not per se lascivious exhibitions.”). The statute thus

instructs that an exhibition of the genitals can be “sexual conduct” only if the exhibition is

“lascivious.” So, what qualifies an exhibition as “lascivious”? Where a term is not defined

by statute, we often begin with dictionaries to give words their ordinary meaning. State v.

Krikstan, 483 Md. 43, 65 (2023).

The Majority quotes Black’s Law Dictionary’s definition of lascivious: “tending to

excite lust; lewd; indecent; obscene.” Slip op. at 43 (quoting Lascivious, Black’s Law

Dictionary 1053 (11th ed. 2019)). Other definitions are similar. See, e.g., Lascivious, New

Oxford American Dictionary 984 (3d ed. 2010) (defining “lascivious” to mean “feeling or

revealing an overt and often offensive sexual desire”). I therefore do not quibble with the

Majority’s understanding that “nudity is lascivious if it is depicted in a sexual, indecent, or

lewd manner or otherwise tends to arouse sexual desire.” Slip op. at 43. Notably, however,

7

we are still concerned with what is depicted in the image itself, not the perception of the

defendant. Nothing in the statutory text suggests that mere nudity can be lascivious in the

hands of a defendant who is sexually aroused by it but not lascivious in the hands of a

defendant who is not. The plain language of the statute unambiguously requires that the

lascivious character of an exhibition must exist within the image or video, not the mind of

the defendant.

THE “CONTENT-PLUS-CONTEXT” STANDARD

For several reasons, I join the Majority in rejecting the State’s contention that we

should adopt an interpretation of “lascivious exhibition” that considers, if not turns on, the

subjective motivations of the person creating, distributing, or possessing the image or video

at issue. First and foremost, that definition is inconsistent with the plain language of the

statutes, which, as discussed, focuses on what is depicted, rather than anyone’s subjective

reaction to it or purpose in creating or distributing it. Both § 11-207(a)(1) and

§ 11-208(b)(2) criminalize conduct involving the creation or possession of images and

videos depicting children in certain circumstances, including being engaged as subjects in

“sexual conduct.” No language in either provision invokes the subjective viewpoint of the

defendant. And “sexual conduct,” as defined in § 11-101(d)(4), encompasses the

“lascivious exhibition of the genitals” (emphasis added), not any exhibition of the genitals

8

that a particular defendant or category of individuals (such as pedophiles) might find

sexually arousing, even if that exhibition is not objectively lascivious.8

Second, the General Assembly knows how to craft statutes where criminal liability

depends on the defendant’s subjective motivations. Indeed, § 3-602(b), which criminalizes

child sexual exploitation (as applied here), is such a statute, because exploitation requires

the State to 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)). Similarly, for example, the General

Assembly has prohibited certain acts of voyeurism, which prohibit a person, “with prurient

intent,” from “conduct[ing] or procur[ing] another to conduct visual surveillance of” an

individual “in a private place” without their consent. Crim. Law § 3-902(c)(1). Here,

neither § 11-207(a)(1) nor § 11-208(b)(2), by themselves or through their incorporation of

the definition of “sexual conduct” in § 11-101(d), references a defendant’s subjective

motivation.

That aspect of Maryland’s child pornography laws stands in contrast to laws in

several other jurisdictions whose legislatures have adopted definitions of “sexual conduct”

or related phrases that encompass any exhibition or nudity of a minor for the purpose of

8

Nor, in our focus on the language of § 11-101(d)(4) and its use of the word

“lascivious,” should we lose sight of what the phrase “lascivious exhibition of the genitals”

defines: a type of “sexual conduct.” The phrase encompasses the conduct displayed in the

depiction, not how someone subjectively views it.

9

obtaining sexual arousal or gratification.9 Maryland’s General Assembly, rather than

joining those states in adopting a subjective, defendant-dependent standard, instead

9

See Ariz. Rev. Stat. Ann. § 13-3551 (2024) (defining “[e]xploitive exhibition” as

“the actual or simulated exhibition of the genitals or pubic or rectal areas of any person for

the purpose of sexual stimulation of the viewer”); Cal. Penal Code § 311.3(b)(5) (West

2024) (defining “sexual conduct” as “[e]xhibition of the genitals or the pubic or rectal area

of any person for the purpose of sexual stimulation of the viewer”); Colo. Rev. Stat. § 18-

6-403(2)(e) (2024) (defining “[e]xplicit sexual conduct” to include various actions that are

“for the purpose of real or simulated overt sexual gratification”); Del. Code Ann. tit. 11,

§ 1100(7)(i) (2024) (defining “[p]rohibited sexual act” as “[n]udity, if such nudity is to be

depicted for the purpose of the sexual stimulation or the sexual gratification of any

individual who may view such depiction”); Idaho Code Ann. § 18-1507(1)(d), (e) (West

2024) (defining “[e]xplicit sexual conduct” as including “the display of the human male or

female genitals or pubic area” among other body parts “for the purpose of real or simulated

overt sexual gratification or stimulation of one (1) or more of the persons involved”); Ind.

Code § 35-42-4-4(a)(5)(C) (2024) (defining “[s]exual conduct” as “exhibition of the: (i)

uncovered genitals; or (ii) female breast . . . intended to satisfy or arouse the sexual desires

of any person”); Iowa Code Ann. § 728.1(7)(g) (West 2024) (defining “prohibited sexual

act” as “[n]udity of a minor for the purpose of arousing or satisfying the sexual desires of

a person who may view a visual depiction of the nude minor”); Mont. Code Ann. § 45-5-

625(5)(b)(ii) (2024) (defining “[s]exual conduct” as “depiction of a child in the nude . . .

to arouse or gratify the person’s own sexual response or desire or the sexual response or

desire of any person”); Neb. Rev. Stat. § 28-1463.02(3), (5)(e) (2024) (defining “[s]exually

explicit conduct” as including “the display of” certain body parts “for the purpose of real

or simulated overt sexual gratification or sexual stimulation of one or more of the persons

involved”); N.J. Stat. Ann. § 2C:24-4(b)(1) (West 2024) (defining “[p]rohibited sexual act”

as including “[n]udity, if depicted for the purpose of sexual stimulation or gratification of

any person who may view such depiction”); 18 Pa. Cons. Stat. § 6312(g) (2024) (defining

“[p]rohibited sexual act” as including “nudity if such nudity is depicted for the purpose of

sexual stimulation or gratification of any person who might view such depiction”); Utah

Code Ann. § 76-5b-103(10)(f) (West 2024) (defining “[s]exually explicit conduct” as

including “the visual depiction of nudity or partial nudity for the purpose of causing sexual

arousal of any individual”); Wash. Rev. Code § 9.68A.011(4)(f) (2024) (defining

“[s]exually explicit conduct” as including the “[d]epiction of” certain body parts “for the

purpose of sexual stimulation of the viewer . . . [and] it is not necessary that the minor

know that he or she is participating in the described conduct, or any aspect of it”).

10

adopted an objective standard focused on the content of the depiction.10

Third, although we need not look beyond the unambiguous, plain language of the

statutory provisions at issue, Westminster Mgmt., 486 Md. at 645 & n.17, the legislative

history supports my interpretation of “lascivious exhibition” as focusing on the objective

characteristics of the image. The General Assembly added the “lascivious exhibition”

meaning of “sexual conduct” to § 11-101(d) in 2019. 2019 Md. Laws, chs. 325 & 326.11

The General Assembly did so “to update the standard for ‘sexual conduct’ so that it was

consistent with the federal standard[.]” In re S.K., 466 Md. 31, 56 n.22 (2019). Then-

Senator Susan C. Lee advocated the change because Maryland’s “standards [were] out of

10

Although the General Assembly’s decision not to enact legislation that it

considered is often of limited value in interpreting the meaning of legislation it did enact,

Westminster Management, 486 Md. at 651, we note that before the General Assembly

added “lascivious exhibition of the genitals” to the definition of “sexual conduct” in 2019,

it rejected attempts to add subjective language to the relevant statutory scheme. In 1978,

in adopting the statute that would eventually become § 11-207, the General Assembly

considered a number of alternative bills, some of which would have applied a subjective

standard to one or more elements of the law. See, e.g., H.B. 262, 1978 Gen. Assemb., Reg.

Sess. (Md. 1978) (defining “Prohibited Sexual Conduct” as “nudity when such nudity is to

be depicted for the purpose of sexual stimulation or gratification of any person who may

view the nude depiction”); H.B. 868, 1978 Gen. Assemb., Reg. Sess. (Md. 1978) (bill

would have added a defendant’s subjective intent (“for the purpose of sexual stimulation”)

into the “sadomasochistic abuse” definition of sexually explicit conduct, but not into the

“lewd exhibition” definition). Also, in 2007, 2008, and 2009, the General Assembly

considered but did not adopt bills that would have expanded the definition of “sexual

conduct” in Subtitle 2 of the Criminal Law Article to include “the display of the genitals

of an individual for purposes of sexual arousal or gratification.” See, e.g., S.B. 1003, 2007

Gen. Assemb., Reg. Sess. (Md. 2007); S.B. 75/H.B. 574 & H.B. 436, 2008 Gen. Assemb.,

Reg. Sess. (Md. 2008); S.B. 99, 2009 Gen. Assemb., Reg. Sess. (Md. 2009).

11

The change was added through the adoption of the cross-filed House Bill 1027

and Senate Bill 736, both of which were signed by Governor Lawrence J. Hogan, Jr. and

became, respectively, Chapters 325 and 326 of the 2019 Laws of Maryland.

11

date with other states and the federal government, specifically with the inclusion of images

that are considered lewd or lascivious.” Bill File for S.B. 736, Sen. Susan C. Lee Letter

to Jud. Proc. Committee, SB 736-Criminal Law-Child Pornography (Feb. 22, 2019)

(emphasis added). Senator Lee lamented that under existing law, “a child appearing alone

in a photo must touch their own body in some way in order to meet the definition of sexual

conduct.” Id. The addition of the “lascivious exhibition” language would “remove[] that

touching requirement.” Id.

Other materials in the Bill Files reflect an understanding that the addition would

encompass only images that are objectively sexual. The Maryland Coalition Against

Sexual Assault testified that the change would allow the prosecution of “child

pornographers who produce or possess images that are undeniably sexually explicit, but

do not show active touching.” Bill File for H.B. 1027, 2019 Gen. Assemb., Reg. Sess.

(Md. 2019), Maryland Coalition Against Sexual Assault, Testimony Supporting H.B. 1027

with Amendment (Mar. 6, 2019) (emphasis added). The Coalition said that the amended

statute would therefore reach images or videos of “naked toddlers and infants, propped up,

bent over in sexual poses in beds or spread eagle on the floor,” and an actual case “where

an adult male put his erect penis next to the baby and created pornographic images[.]” Bill

File for S.B. 736, 2019 Gen. Assemb., Reg. Sess. (Md. 2019), Maryland Coalition Against

Sexual Assault, Testimony Supporting S.B. 736 with Amendment, at 1-2 (Mar. 27, 2019).

And a statement in support of the Bill from Delegate Lesley J. Lopez stated that

“[l]ascivious exhibition essentially involves a sexual act or exhibition that does not involve

12

actual physical or sexual contact with the victim.” Bill File for H.B. 1027, 2019 Gen.

Assemb., Reg. Sess. (Md. 2019), Del. Lesley J. Lopez Letter to the Maryland House of

Delegates, Support: HB 1027-Criminal Law-Child Pornography. The parties have not

pointed us to anything in the legislative history, nor have I found anything, that reflects a

legislative intention that the lasciviousness of an exhibition should be gauged from the

perspective or intent of an individual defendant, as opposed to an objective view of the

image.12

For all those reasons, I agree with the Majority that an image or video depicts

“lascivious exhibition of the genitals or pubic area of a person” only if it is objectively

sexual in nature, a standard that is not dependent on the subjective viewpoint of the

defendant or another individual or category of individuals. See Slip op. at 47. I also agree

with the Majority that the inquiry should account for context, but only to the extent that it

bears directly on “whether an image is objectively sexual in nature.” Id. at 31. For

example, it is not always possible to determine only from an image or video itself the entire

12

In its own analysis, the Majority draws the conclusion that the legislative history

from 2019 “demonstrates that the purpose of the amendment was to expand the categories

of conduct that could be punished under Maryland’s child pornography statutes.” Slip op.

at 45-46. I agree. The General Assembly accomplished that by extending the law to a

category of sexual images that do not involve touching, which, as reflected in statements

in the Bill File, was a goal of those who supported the change. That the General Assembly

intended to expand the reach of the statute justifies interpreting it to have done so, but not

more broadly than reflected in the change the General Assembly made. Regardless of

whether we think the current General Assembly may support an even broader

criminalization of conduct in this area, it is not our role to expand existing law to reach

conduct that the General Assembly has not, to date, made criminal.

13

nature of what is depicted within it. A close-up image might appear to depict an entirely

different scene than it would if it were zoomed out further or if it also included what was

on the other side of the camera. Context indicating whether a close-up image of a child’s

genitals was taken, for example, on a physician’s examination table with parents present,

or on a floor surrounded by objects suggestive of sexual or sadomasochistic activity may

help inform a jury concerning whether the image itself, including any expression appearing

on the face of the subject, is objectively sexual.

Similarly, things that are within the frame of an image or video might strike a viewer

differently with context. For example, context may help identify an object in an image or

video that is either unclear or that appears to be something different than it is. Context may

also help explain why an object in an image or video was present at the time the image or

video was made when a juror might otherwise be inclined to incorrectly conclude that it

was present for innocent or, alternatively, nefarious reasons.

In all these examples, context can help a jury understand what the image or video

actually depicts, unrelated to whether the defendant—the creator, distributor, or

possessor—themself might derive sexual pleasure from it or think that others may do so.

As the Majority explains, such context is also important to ensure that the statute is not

applied in an over-inclusive or under-inclusive manner, either by criminalizing the creation

or possession of images or videos that, understood in context, are not sexual in nature, or

by allowing defendants to evade responsibility for images or videos that, understood in

context, are. Id. at 47-48. But, as the Majority also explains—and critical to the proper

14

application of the standard—“contextual evidence must be directly related to the

exhibition. That is, it must tend to shed light on the meaning of the exhibition – i.e.,

whether the exhibition is sexual in nature – when viewed objectively.” Id. at 51.

Consequently, “the State must do more than simply show that its creator subjectively found

[the image] to be sexual in nature. The State must show that the image is objectively sexual

in nature.” Id. Adhering to those core principles, I agree with the Majority that the

“content-plus-context” standard is appropriate where context “directly relate[s] to the

exhibition of a child’s genitals or pubic area.” Id. at 31.

Although I agree in significant part with the Majority’s articulation of the “content-

plus-context,” I differ in a few respects. The Majority describes the “context” portion of

its test as “the totality of the circumstances that directly relate to the exhibition of the

genitals or pubic area.” Slip op. at 47. I would describe the “context” portion of the test

as “limited to those circumstances that directly relate to the exhibition of the genitals or

pubic area in the image.” Given that both phrasings limit the inquiry to circumstances

directly related to the exhibition, the difference between these two statements may be only

semantic—the Majority’s emphasis on breadth by using the phrase “totality of the

circumstances” versus my emphasis on the limited nature of the inquiry. Given our

different application of the standard, however, it is possible that it is a difference of

significance. Context is relevant only to the extent it sheds light on the objective nature of

the image or video itself. Id. at 51-52. Evidence that goes too far beyond that risks turning

15

the inquiry from what is depicted in the image, which is the focus of the statutory provisions

at issue, to what was in the mind of the photographer or videographer.

Perhaps relatedly, in distinguishing its “content-plus-context” standard from that

applied by the United States Court of Appeals for the Sixth Circuit in United States v.

Brown, 579 F.3d 672 (6th Cir. 2009), the Majority makes statements that open the door for

consideration of context reflecting only on the subjective motivations of the viewer or

creator of images. For example, the Majority disavows the Sixth Circuit’s “suggest[ion]

that a defendant’s creation or possession of pornographic images of other children may not

be considered in determining whether a particular image of a child is a lascivious

exhibition” because, the Majority states, comparing such images “could help inform the

factfinder’s determination of whether, viewed objectively, the purpose of one or more of

the images was to excite lust or to arouse sexual desire in the viewer.” Slip op. at 52 n.24.

But although such comparisons may reflect on the viewer or creator’s subjective purpose

with respect to all of the images, they do not add context that “shed[s] light on the meaning

of the exhibition – i.e., whether the exhibition is sexual in nature – when viewed

objectively.” See id. at 51.

APPLICATION OF THE “CONTENT-PLUS-CONTEXT” STANDARD

I disagree with the Majority’s application of the “content-plus-context” standard

here. I would conclude that none of the eight photographs at issue depicts a “lascivious

exhibition of the genitals.” As the Majority correctly identifies, the question before us is

16

whether a reasonable jury could determine that the images themselves were “objectively

sexual in nature.” I conclude that the answer is no.

With respect to content, the Majority opinion describes each of the photographs in

detail. Id. at 9-11. Seven of the photographs depict a child on a diaper-changing table,

naked, in a position that is fully consistent with a child having her diaper changed. The

final picture depicts a child in a standing position in a bathroom, naked from sternum to

the knees. None of the children are posed in anything resembling a sexual position. There

are no other people in any of the photographs, nor are there any objects that are sexual in

nature or that change the nature of the images from children getting diaper changes to

anything objectively sexual.

In its own analysis of the content of the photographs, the Majority focuses on two

primary considerations. First, the images are framed so that they include the children’s

genitals at or near the center of the photographs, and do not include their faces. Id. at 53.

Although I agree that the framing of the photographs is a relevant consideration, the

framing here still makes clear that the pictures are of children during the process of a diaper

change. Second, the Majority contends that “a rational juror could conclude that

Ms. Turenne put several of the children in poses that resemble what one might see in some

adult pornog

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