# Turenne v. State

> Court of Appeals of Maryland · August 16, 2024 · 488 Md. 239

URL: https://www.frixlaw.com/law-library/cases/11080278

## Case

- **Court:** Court of Appeals of Maryland
- **Decided:** August 16, 2024
- **Citations:** 488 Md. 239
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Biran
- **Cited by:** 6 later opinions in the Frix Law Library

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## Opinion text

Roseberline Turenne v. State of Maryland, No. 20, September Term, 2023.
Opinion by Biran, J.

CRIMINAL LAW – SEXUAL ABUSE OF A MINOR – SUFFICIENCY OF THE
EVIDENCE – Petitioner took eight photographs of very young girls who were in her care
when she worked as an aide at a daycare facility. All eight photos showed the children’s
naked genitals and pubic areas. The Supreme Court of Maryland held that the evidence was
sufficient to conclude that Petitioner committed child sexual abuse, in violation of Md.
Code, Crim. Law (“CR”) § 3-602(b)(1) (2021 Repl. Vol.), by sexually exploiting the
children whom she photographed. A rational juror could conclude, based on the content of
the photographs and the totality of the circumstances surrounding the photographs, that
Petitioner took the photographs to obtain sexual gratification.

CRIMINAL LAW – CHILD PORNOGRAPHY OFFENSES – SUFFICIENCY OF
THE EVIDENCE – The Supreme Court held that whether an image constitutes a
“lascivious exhibition” of a child’s genitals or pubic area is determined by applying a
“content-plus-context” test under which the trier of fact considers: (1) the contents of the
image; and (2) the context of the image, i.e., the totality of the circumstances that directly
relate to the exhibition of the genitals or pubic area. After reviewing the contents and
context of a contested image, the trier of fact must determine whether the image is
objectively sexual in nature. Under that standard, a rational juror could have found that the
eight photos at issue depicted lascivious exhibitions of the children’s genitals or pubic
areas. Thus, the Court held that the evidence was sufficient to support Petitioner’s
convictions for production of child pornography, in violation of CR § 11-207(a)(1), and
possession of child pornography, in violation of CR § 11-208(b)(2).
Circuit Court for Wicomico County
Case No.: C-22-CR-21-000263
Argued: April 5, 2024

IN THE SUPREME COURT

OF MARYLAND

No. 20

September Term, 2023

ROSEBERLINE TURENNE

v.

STATE OF MARYLAND

Fader, C.J.
Watts
*Hotten
Booth
Biran
Gould
Eaves,

JJ.

Opinion by Biran, J.
Fader, C.J. and Booth, J., concur and dissent.
Watts, J., dissents.

Filed: August 16, 2024

*Hotten, J., now a Senior Justice, participated in
Pursuant to the Maryland Uniform Electronic Legal
the hearing and conference of this case while an
Materials Act (§§ 10-1601 et seq. of the State active member of this Court. After being recalled
Government Article) this document is authentic.
pursuant to Maryland Constitution, Article IV,
2025.02.25 § 3A, she also participated in the decision and
14:35:54 -05'00' adoption of this opinion.
Gregory Hilton, Clerk
The General Assembly has enacted criminal laws that can result in serious penalties

for those who create and possess child pornography. In addition, when a parent, household

member, or permanent or temporary caregiver exploits a child by using the child as a

subject for child pornography, that person can be prosecuted for child sexual abuse, an

offense that also carries serious potential penalties. The General Assembly has created this

regime of criminal laws because it strives to protect children from such abuse.

Of course, not all photos of naked children are pornographic. For example, when

children are very young, it is not uncommon for parents to take photos or make videos of

their children taking baths. Those types of innocent photos are not pornographic. But,

unfortunately, some adults create images of children that are not innocent. In many cases,

whether an image constitutes child pornography cannot seriously be disputed. For example,

if a child is videotaped engaging in a sex act, the resulting video will constitute child

pornography. However, where sexual contact is not depicted – and especially where a child

is too young to express an attitude that in someone older would seem to express coyness

or sexual desire – it may be more difficult to discern whether an image is innocent or

pornographic.

Petitioner Roseberline Turenne took eight photographs of very young girls who

were in her care when she worked as an aide at a daycare facility. All eight photos showed

the children’s naked genitals and pubic areas. None of the photos showed the children’s

faces. None of the photos depicted any sexual contact. On the day the photographs were

discovered, Ms. Turenne told investigators that she took the photos for “no reason” and

that the photos had “no meaning.”
Based on the eight photos, Ms. Turenne was charged with: eight counts of child sex

abuse, in violation of Md. Code, Crim. Law (“CR”) § 3-602(b)(1) (2021 Repl. Vol.); eight

counts of production of child pornography, in violation of CR § 11-207(a)(1); and eight

counts of possession of child pornography, in violation of CR § 11-208(b)(2).1 The State’s

theory was that the photos were child pornography because they constituted lascivious

exhibitions of the children’s genitals. With respect to the child sex abuse charges, the State

contended that Ms. Turenne sexually exploited the children by taking the photos to obtain

sexual gratification.

At her jury trial, Ms. Turenne testified that the reason she took the photos had

nothing to do with sexual gratification. Rather, she told the jury, she took the photos to

document diaper rashes that she saw on each of the children. The jury found Ms. Turenne

guilty on all counts. The Appellate Court of Maryland affirmed Ms. Turenne’s convictions.

As discussed below, we conclude that the evidence was sufficient for the jury to

conclude that Ms. Turenne took the photos of the children for the purpose of sexual

gratification. Therefore, we shall affirm Ms. Turenne’s convictions for child sexual abuse.

With respect to the child pornography charges, we hold that whether an image

constitutes a “lascivious exhibition” of a child’s genitals or pubic area is determined by

applying a “content-plus-context” test under which the trier of fact considers: (1) the

contents of the image; and (2) the context of the image, i.e., the totality of the circumstances

1
CR § 11-208(b)(2) was renumbered without any change to the text as
CR § 11-208(b)(1)(ii) when the statute was amended in 2023. We will refer to the section
under which Ms. Turenne was charged with possession of child pornography as
CR § 11-208(b)(2).

2
that directly relate to the exhibition of the genitals or pubic area. After reviewing the

contents and context of a contested image, the trier of fact must determine whether the

image is objectively sexual in nature.

Applying that analysis to this case, we conclude that the evidence was sufficient for

the jury to conclude that the photos at issue depicted the lascivious exhibition of the

children’s genitals and pubic areas. Accordingly, we also affirm Ms. Turenne’s convictions

for production and possession of child pornography.

I

Background

A. Facts

We provide the following factual summary, based on the evidence introduced at

trial and viewed in the light most favorable to the State, as the prevailing party. See, e.g.,

State v. Krikstan, 483 Md. 43, 63 (2023).

1. The Discovery of the Photographs

On June 10, 2021, Ms. Turenne was working at a daycare center (“the Center”), in

Salisbury, Maryland, as a teacher’s aide. The Center cares for children between eight weeks

and five years old and groups the children into classrooms based on age. Teachers’ aides

“float” between classrooms and assist the teachers as needed. Teachers and aides change

children’s diapers throughout the course of the day.

Ms. Turenne, who was 18 years old on June 10, 2021, worked primarily in the

toddler area of the Center, but also floated among different classrooms, particularly in the

afternoon as teachers left for the day. On the afternoon of June 10, Ms. Turenne handed

3
her cellphone to Nadasia Miller, another aide at the Center, while the two women were

together in the Center’s break room. Ms. Turenne gave Ms. Miller her phone so that Ms.

Miller could view an adult pornographic video on the phone. After watching a portion of

the video that Ms. Turenne wanted her to see, Ms. Miller noticed several photographs in

the camera roll of Ms. Turenne’s phone. As Ms. Miller described them at trial, those photos

displayed children’s “vaginas.” One of the images that Ms. Miller saw showed a child on

what Ms. Miller recognized as one of the Center’s changing tables. Another image showed

a child standing in one of the Center’s bathrooms; Ms. Miller recognized the bathroom

floor. After realizing that these photos had been taken at the Center, Ms. Miller gave Ms.

Turenne her phone back, left the break room, and immediately reported what she had seen

to the Center’s manager, Barbara Brittingham. Ms. Brittingham then contacted Child

Protective Services.

2. The Interview of Ms. Turenne

Later in the afternoon on June 10, Detective M. Rockwell2 of the Salisbury City

Police Department and Amy Kelly, a social worker, arrived at the Center and interviewed

Ms. Turenne.3 Detective Rockwell obtained Ms. Turenne’s consent to make an audio

recording of the interview. At the outset of the interview, Ms. Turenne denied that there

were any pictures of children in her phone. Ms. Turenne unlocked her cellphone and

2
Only the first initial of Detective Rockwell’s first name is included in the record.
3
Detective Rockwell and Ms. Kelly worked together at the Wicomico County Child
Advocacy Center (“CAC”). The CAC is comprised of therapists, law enforcement officers,
and social workers who investigate allegations of physical and sexual abuse of minors in
Wicomico County.

4
consented to Detective Rockwell viewing the images on the phone. Detective Rockwell

then inspected the camera roll of Ms. Turenne’s phone.

The first image that Detective Rockwell asked Ms. Turenne about was, according

to Ms. Turenne, not an image of a child. Ms. Turenne said that item was created on TikTok

and sent by another person to her as part of a group message. Detective Rockwell seemed

to agree that this TikTok item did not involve a child, because he then explained that he

“just want[ed] to make sure there’s no little kids on [Ms. Turenne’s] phone.”

However, as Detective Rockwell continued to scroll through Ms. Turenne’s camera

roll, he discovered several pictures displaying the genitals and pubic areas of children who

looked to be of infant or toddler age. When Detective Rockwell showed Ms. Turenne the

picture of a “baby” that he saw in the camera roll, Ms. Turenne claimed that the image was

not of a baby and that she had obtained it from Google. Detective Rockwell then showed

Ms. Turenne another picture of a child in her camera roll and said, “See, that’s a child.”

Ms. Turenne claimed that picture also was not of a child. Ms. Turenne said the pictures had

been sent to her by others through the application WhatsApp and automatically

downloaded to her camera.

After Ms. Turenne offered these explanations, Detective Rockwell left the room,

taking Ms. Turenne’s phone with him. He then walked around the Center with Ms.

Brittingham and photographed several of the Center’s changing tables. Only one changing

table was located in a bathroom in the Center; the top of that changing table was fitted with

a red mat. It appeared to Detective Rockwell that some of the children in the photos on Ms.

5
Turenne’s phone had been photographed while lying on changing tables that he saw while

walking around the Center.

Detective Rockwell then returned to the room where Ms. Turenne and Ms. Kelly

were located. He asked Ms. Turenne, “Were any of the nude pictures of the children taken

in this building?” Ms. Turenne replied, “To tell you the truth, yes.” Ms. Turenne told

Detective Rockwell and Ms. Kelly several times that she did not know why she had taken

the pictures, that she had taken them for “no reason,” and that there was “no meaning” to

the pictures. Ms. Turenne also repeatedly told the investigators that she had intended to

delete the photos from her phone but had forgotten to do so. Ms. Turenne stated that she

never sent the images of the children to anyone else or sold them, and that the pictures were

just for herself.

Ms. Turenne was terminated from her job at the Center on June 10, 2021. Detective

Rockwell retained Ms. Turenne’s cellphone as evidence. A forensic extraction of data from

Ms. Turenne’s cellphone yielded eight distinct images of very young nude girls, all of

which focused on the girls’ genitals and pubic areas.

B. Trial

On June 28, 2021, a grand jury in Wicomico County charged Ms. Turenne in a

24-count indictment relating to the eight photographs of nude children found on her phone.

Each photograph was the basis for three charges: Counts 1-8 charged Ms. Turenne with

sexual abuse of a minor, in violation of CR § 3-602(b)(1);4 Counts 9-16 charged Ms.

CR § 3-602(b)(1) provides: “A parent or other person who has permanent or
4

temporary care or custody or responsibility for the supervision of a minor may not cause

6
Turenne with producing child pornography, in violation of CR § 11-207(a)(1);5 and Counts

17-24 charged Ms. Turenne with possession of child pornography, in violation of

CR § 11-208(b)(2).6

Ms. Turenne’s trial went forward in the Circuit Court for Wicomico County on

March 29 and 30, 2022. In his opening statement, Ms. Turenne’s attorney told the jury that

they would see pictures of children with “rashes in their private parts” and “with diaper

cream on.” He further stated that Ms. Turenne took the photos in question because she was

“afraid of being accused of any kind of rashes that she wasn’t taking care of, she wasn’t

wiping.”

In the State’s case-in-chief, Ms. Miller testified that she saw the images of nude

children on Ms. Turenne’s camera roll and that she reported what she saw to the Center’s

manager, Ms. Brittingham. Ms. Brittingham testified about the Center’s operations, and

explained that the Center prohibits its staff from taking photographs of the children in the

Center. Ms. Brittingham stated that there were no cameras located in the Center’s

sexual abuse to the minor.” “Sexual abuse” is defined as “an act that involves sexual
molestation or exploitation of a minor, whether physical injuries are sustained or not.” Id.
§ 3-602(a)(4)(i).
5
CR § 11-207(a)(1) provides: “A person may not … cause … a minor to engage as
a subject in the production of … a visual representation … that depicts a minor engaged as
a subject in … sexual conduct[.]” As relevant here, “sexual conduct” includes “lascivious
exhibition of the genitals or pubic area of any person.” Id. § 11-101(d)(4).
6
At the time Ms. Turenne was charged, CR § 11-208(b)(2) provided: “A person
may not knowingly possess and intentionally retain a … photograph, or other visual
representation showing an actual child … under the age of 16 years … engaged in sexual
conduct[.]” For purposes of CR § 11-208(b)(2), “sexual conduct” also included “lascivious
exhibition of the genitals or pubic area of any person.” Id. § 11-101(d)(4).

7
bathrooms. Ms. Brittingham further testified that she has never asked staff to document

diaper rash on any children by taking pictures, and she confirmed that taking a picture of a

child at the Center for that purpose would be contrary to the Center’s policy prohibiting

the taking of pictures of children.

Detective Rockwell testified about the interview of Ms. Turenne that he and Ms.

Kelly conducted at the Center on June 10, 2021. Among other things, he recounted how

Ms. Turenne initially claimed that other people had sent her the images of the nude

children. Detective Rockwell’s photographs of the changing tables were admitted in

evidence, including photographs of a changing table with a red mat that was located in the

Center’s two- and three-year-old bathroom. Detective Rockwell also testified that Ms.

Turenne eventually admitted that she had taken the photos of the nude children. The State

introduced into evidence the audio recording of Detective Rockwell’s and Ms. Kelly’s

interview of Ms. Turenne, and played portions of it for the jury.

Detective Rockwell also testified about receiving the extraction of Ms. Turenne’s

cellphone. He explained that the data he received in the extraction contained 145,047

pictures, and that he viewed all of those pictures. Detective Rockwell testified that, among

the extracted photos, he was able to locate the same images he had seen while looking

through the phone’s camera roll during the interview of Ms. Turenne.

The State introduced into evidence eight images of nude children found in the

extraction of Ms. Turenne’s cellphone. The eight photographs were taken between

February 8, 2021 and April 22, 2021. All but one of the photographs were taken in the late

8
afternoon or early evening hours. Several of the photographs were taken in a bathroom at

the Center. We provide the following additional details about each photograph:

Photograph of child designated as J-1: The photograph of J-1 shows her
lying on her back on what appears to be the changing table with the red
mat,7 which was located in the two- and three-year-old bathroom. J-1’s
naked genitals and pubic area are located in the center of the picture. Some
redness appears to be visible on both sides of the vulva. J-1’s face and upper
body are not included in the picture. Just above J-1’s bellybutton, the
bottom portion of a pink sweater or shirt is visible. Portions of J-1’s legs
are visible, as are portions of pink socks she is wearing.

Photograph of child designated as J-2: The photograph of J-2 shows her
standing up in one of the Center’s bathrooms. J-2 is naked from
approximately her sternum to her knees. Her face and upper body are not
included in the picture. J-2’s genitals and pubic area are located in the center
of the picture. No rash or redness is visible on J-2’s body. Black pants and
pink underwear are pulled down below J-2’s knees.

Photograph of child designated as J-3: The photograph of J-3 shows her
lying on her back on what appears to be a brown paper towel, which has
been placed on what appears to be a changing table with a white or beige
surface. J-3’s naked genitals and pubic area are located in the center of the
picture. There appears to be diaper cream spread around J-3’s anal area.
J-3’s face is not visible in the photograph.

Photograph of child designated as J-4: The photograph of J-4 shows her
lying on her back on what appears to be a portion of a diaper. The surface
underneath the diaper appears to be beige in color. J-4’s naked genitals and
pubic area are located in the center of the picture. No rash is visible, but
there appears to be some slight redness in the genital area. J-4’s face is not
visible in the picture. The picture appears to be zoomed in to focus on J-4’s
genitals. Located a short distance from J-4’s genitals is an unidentified
object, the surface of which appears to be covered in blue fabric.

7
Based on all the evidence admitted at trial, the jury could conclude that Ms.
Turenne took seven of the eight photos at issue in this case while the child in question was
lying on a changing table. However, based on the contents of the images alone, it would be
impossible to determine with respect to several of the photos that the children were lying
on a changing table, as opposed to another type of surface.

9
Photograph of child designated as J-5: The photograph of J-5 shows her
lying on her back on what appears to be a brown paper towel, which has
been placed on what appears to be the red-matted changing table in the two-
and three-year-old bathroom. J-5’s naked genitals and pubic area are
located in the center of the picture. No rash is visible, but some slight
redness appears to be visible on both sides of the genital area and around
the anal area. J-5’s face and most of the rest of her body are not included in
the picture. The picture appears to be zoomed in to focus on J-5’s genitals.

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

Photograph of child designated as J-7: The photograph of J-7 shows her
lying on her back on what appears to be the red-matted changing table
located in the two- and three-year-old bathroom. J-7’s naked genitals and
pubic area are displayed in the center of the picture. J-7’s thighs are visible
in the picture. No rash or redness is visible in the photo. J-7’s face and upper
body are not included in the picture. The top of the image ends below J-7’s
bellybutton; the bottom portions of a blue shirt that J-7 is wearing are visible
on the sides of her body, near her hips. The bottom of the picture ends above
J-7’s kneecaps.

Photograph of child designated as J-8: The photograph of J-8 shows her
lying on her back on what appears to be a paper towel, which has been
placed on what appears to be the red-matted changing table in the two- and
three-year-old bathroom. J-8’s naked genitals are the focus of the picture.
No rash or redness is visible in the picture. J-8’s face and most of the rest
of her body are not included in the picture. The picture appears to be
zoomed in to focus on J-8’s genitals. This picture was taken at 11:08 a.m.,

8
The photographs of J-5 and J-6, including the slight redness in the pubic area, are
very similar. Both images are close-ups of a child’s genitals, but the photograph of J-5
shows a little more of the child’s body than does the photo of J-6. In addition, J-5 is lying
on top of a brown paper towel. No brown paper towel is visible in the photo of J-6.
Detective Rockwell testified that, according to the metadata for the images of J-5 and J-6,
both photographs were taken on April 14, 2021 at 5:28 p.m. It may well be that J-5 and J-6
are the same child, but the photos do not appear to be duplicates.

10
the only one of the eight photos that was taken before approximately 4:30
p.m.

No images of nude boys were found on Ms. Turenne’s phone. Detective Rockwell

testified that both male and female children attended the Center during the time that Ms.

Turenne worked there.

Detective Rockwell also testified on direct examination, without objection, that the

cellphone extraction revealed the existence of adult pornography – with both male and

female subjects – on Ms. Turenne’s phone. On cross-examination, Ms. Turenne’s attorney

elicited from Detective Rockwell that there were a “handful” of adult nude females and a

“handful” of adult nude males in images contained on Ms. Turenne’s phone. Detective

Rockwell also testified that investigators found no messages from Ms. Turenne to anyone

else concerning the images of the children on her phone, nor did investigators find any

evidence that Ms. Turenne had conducted any internet searches for child pornography.

Ms. Turenne testified in her own defense. She told the jury that she took the pictures

of the children because they had diaper rashes, and she wanted to “protect [her]self so [she]

[would not] get in trouble.” That is, she wanted to be able “to prove that this child had the

rash before I started watching the child.”

Ms. Turenne further testified that, when she told Detective Rockwell that she had

received images via the Internet, she thought he was asking about the adult pornographic

pictures in her phone. She said that she did not tell Detective Rockwell during the interview

that she had taken the pictures of the children to document diaper rash because: “I was

11
scared, ... he [was] saying child pornography, ... I’m guessing am I in trouble because, like,

am I gonna get deported?”9

On cross-examination, Ms. Turenne testified that she only took a picture of a child

if she saw a rash, and she did not recall any boys having a diaper rash. Ms. Turenne

acknowledged that she would not be able to identify any of the children based on the photos

she took because she did not include any of their faces in the images.

The prosecutor also asked Ms. Turenne, without objection, if she told Ms. Miller

that she was attracted to females. Ms. Turenne answered that she did not recall telling Ms.

Miller that. The prosecutor then asked, again without objection: “Is it a fair statement that

you are attracted to women?” Ms. Turenne replied: “I wouldn’t say attracted to women,

like, I will say, … like, I’m bisexual, like, I’m still confused about what I like between men

or women. But not children, no.” The prosecutor then asked, without objection, more

questions about the adult pornography on Ms. Turenne’s phone. In response to being asked

whether she received “some kind of sexual gratification” from watching the adult

pornography that was on her phone, Ms. Turenne testified: “I’m kind of attracted to them

but not really because, like I say, I’m still confused about what I like or not.”

In its rebuttal case, the State recalled Ms. Miller, who testified (without objection)

that Ms. Turenne told her “that she was gay.” The State also recalled Ms. Brittingham, who

testified that no teacher or aide was ever reprimanded or otherwise got in trouble for a child

having a diaper rash.

9
Ms. Turenne is an immigrant.

12
In her closing argument, the prosecutor observed, among other things, that none of

the pictures Ms. Turenne took were of boys, that she included no faces in the pictures, and

that she did not mention any concern about diaper rash in her interview with the

investigators. The prosecutor also stated, without objection from the defense:

It’s interesting that apparently no boys had rashes at the time. She told [Ms.
Miller] that she was gay or bisexual, which, obviously doesn’t matter, but it
matters when you’re looking at whether she had any sexual gratification for
taking these pictures, holding on to these pictures for as long as she did.

In his closing argument, defense counsel contended that the State had not proved

that Ms. Turenne had a “sexually-based intent” in taking the photos of the children or that

the photos contained any “sexual exhibition.” Defense counsel stated that the Center was

correct to terminate Ms. Turenne’s employment for having taken the photos, but that the

jury should credit Ms. Turenne’s account that she took the photos to document instances

of diaper rash.

With respect to the evidence of adult pornography and the evidence concerning Ms.

Turenne’s sexual orientation, defense counsel told the jury:

I could have said, you know what, it’s going to be prejudicial to the jury, the
jury is going to be so blinded by the fact that she was looking at pornography,
I don’t want them to even know about that, I could have made that argument.
But I wanted to, I wanted you all to see that because, again, there’s nothing
to hide in this case. Her preferences are in men and women. Now, the State
is saying that she was gay and look at the pictures and they’re trying to imply
that because you’re gay somehow you then become an abuser. But here’s the
thing they don’t mention. There’s pictures of male genitalia, too, of adult
male genitalia. They don’t mention that. They’re making the argument that
she’s gay, but she has male genitalia in these pictures. And she even said
herself, I’m bisexual.

(Paragraph breaks omitted).

13
In her rebuttal argument, responding to defense counsel’s claim that the State was

arguing that “because you’re gay somehow you then become an abuser,” the prosecutor

stated (again with no objection):

There’s no inference made by the fact that she would be gay or
bisexual. That’s irrelevant. The only reason we’re considering that is the
inference that she has sexual gratification and that that connects to the
pictures themselves. That’s why it becomes relevant. Nobody is making any
inference from it.

…

These pictures may not mean anything to us other than just make us
uncomfortable, but obviously to some people out there who are voyeurs or
pedophiles, they bring a gratification and we can only infer that from the
pictures themselves because the children can’t tell us what her intent, and
really it’s hard to know what anybody’s intent is, so we look at the evidence
itself.

The jury found Ms. Turenne guilty on all counts. The court subsequently sentenced

Ms. Turenne to a total of 280 years of imprisonment, suspending all but 126 years,10 to be

followed by five years of supervised probation.

10
The court imposed consecutive statutory-maximum 25-year sentences on each of
the child sex abuse counts (Counts 1-8). With respect to Counts 1 and 7, the court
suspended no portion of the 25-year sentences. With respect to Counts 2-6 and 8, the court
suspended all but 10 years of each 25-year sentence. The court imposed consecutive
statutory-maximum 10-year sentences on each of the production-of-child-pornography
counts (Counts 9-16), suspending all but two years of each of those sentences. The court
properly determined that, for sentencing purposes, the convictions for possession of child
pornography merged into the convictions for production of child pornography. Ms.
Turenne’s sentence is not before us in this case.

The docket reflects that, although Ms. Turenne was advised of post-trial rights, she
did not file a request for review of her sentence by a three-judge panel. See Md. Code,
Crim. Proc. § 8-102; Md. Rule 4-344(a). Nor did she file a motion for modification of her
sentence under Maryland Rule 4-345(e).

14
C. Appeal

In a reported opinion, the Appellate Court of Maryland affirmed Ms. Turenne’s

convictions. Turenne v. State, 258 Md. App. 224 (2023). With respect to the child

pornography charges, the Appellate Court considered the approach of multiple courts

around the country in interpreting the meaning of “lascivious exhibition” of children’s

genitals and pubic areas in statutes using the same or substantially similar language. Id. at

240-46. The Appellate Court found most persuasive the position of those courts that “rely

on the plain meaning of ‘lascivious exhibition’ and apply a totality of the circumstances

approach, which is most appropriate given the varied and nuanced contexts of child

pornography.” Id. at 247. The Appellate Court reasoned that “[t]he plain meaning of

‘lascivious exhibition’ requires that we ask whether the [image] depicts the minor’s

genitals or pubic area in order to excite lustfulness or sexual stimulation in the viewer.” Id.

(cleaned up) (citations omitted). The Appellate Court continued: “Answering this question

requires consideration of all circumstances surrounding a depiction; not just the image

itself, but the actions and preferences of the defendant.” Id.

Applying a totality-of-the-circumstances test, the Appellate Court affirmed Ms.

Turenne’s convictions for production and possession of child pornography. Id. at 249-52.

Among other things, the Appellate Court opined:

Regarding the content of the photos themselves, all are taken of female
infants. Each photo is zoomed in to focus, indisputably, on the child’s
unclothed vagina as she lies on a changing pad or stands in a bathroom. The
photos contain nothing else, aside from, in a few photos, the child’s stomach
and upper thighs. Most photos, if not all, do not depict any apparent diaper
rash. None of the photos contain faces.

15
Regarding Turenne’s motive for taking the photos, seven of the eight photos
were taken at times in the evening after teachers would begin to leave the
daycare for the day. Some were taken in the bathroom. No teacher would be
in the bathroom if an aide, such as Turenne, was already in there with a child,
because the teacher would be in the classroom with the rest of the children.
Turenne initially lied to the investigators by stating that the photos were from
the internet, not of children in the daycare. The reasoning she ultimately
alleged for taking the photos – that she was documenting diaper rash – was
not offered at the initial interview. Turenne also testified that she would be
unable to identify a child based on the photos….

The camera roll on Turenne’s phone on which the photos were contained also
contained adult pornography. It was an adult pornographic video that
Turenne was showing to a co-worker when the co-worker discovered the
eight photos at issue.

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

A reasonable juror could also infer that Turenne took these photos for sexual
gratification, based on the photos’ exclusive focus on the children’s vaginas
and the absence of any credible, innocuous reason for taking and storing such
photos, and the photos’ location among other pornographic images on
Turenne’s phone.

Id. at 249-50.

The Appellate Court also affirmed Ms. Turenne’s convictions for sexual abuse of a

minor through sexual exploitation of the children in the images. Id. at 252-57. The

Appellate Court concluded that the State introduced sufficient circumstantial evidence to

allow a rational juror to conclude that Ms. Turenne derived sexual gratification from taking

the photos. See id. at 255. In this regard, the Appellate Court pointed to “the combination

16
of the surreptitious manner in which she took the photos, the photos’ location in her camera

roll among adult pornography, that she shared some of that adult pornography on her phone

with a co-worker, and the absence of any credible, innocuous reason for taking photos of

children’s genitalia in violation of the daycare’s policy.” Id. The court noted that, although

Ms. Turenne at trial provided an explanation for taking the photos (documenting diaper

rash), a rational juror “could have found it incredible …, which is, in fact, what the jury

did.” Id. at 256.

The Appellate Court further held that the circuit court did not commit plain error

by: (1) failing to instruct the jury on the meaning of “lascivious exhibition” for purposes

of the child pornography-related charges; and (2) failing to explain what constitutes “sexual

exploitation” for purposes of the child sexual abuse charges. Id. at 259-61.

Finally, the Appellate Court held that the trial court did not plainly err by allowing

the prosecutor to make comments in her closing argument and rebuttal argument

concerning Ms. Turenne’s sexual orientation. Id. at 263. The Appellate Court explained:

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

Id. at 263-64.

The Appellate Court cautioned, however, “that the prosecutor’s comments could be

misinterpreted. Linking one’s sexual orientation, particularly a same-sex orientation, to

17
sexually abusing children is a canard that reinforces a terrible stereotype of gay and lesbian

people.” Id. at 264. The Appellate Court observed that “the prosecutor’s comments, though

perhaps unintentional, came dangerously close to perpetrating a pernicious falsehood about

same-sex orientation and should be avoided.” Id.

On August 14, 2023, Ms. Turenne filed a petition for writ of certiorari, seeking

review of several issues. On October 23, 2023, we granted Ms. Turenne’s petition in part,

Turenne v. State, 486 Md. 147 (2023), agreeing to review the following question and its

two subparts:

Is the evidence insufficient to sustain the child pornography convictions
under [CR] §§ 11-207(a)(1) and -208(b) and child sex abuse convictions
under [CR] § 3-602(b)?

(A) What is the appropriate test to determine whether an image
constitutes “lascivious exhibition of the genitals” under the child
pornography statutes?

(B) What role, if any, does evidence of possession of adult
pornography play in assessing the sufficiency of the
evidence?[11]

II

Standard of Review

When reviewing whether evidence is sufficient to support a conviction, “we view

the evidence in the light most favorable to the State and assess whether any rational trier

11
Ms. Turenne’s petition also requested that we review whether the trial court
plainly erred “by allowing the prosecutor to impermissibly appeal to the prejudices of the
jury by invoking homophobic tropes based on testimony, elicited by the prosecutor, that
Petitioner was gay or bisexual[.]” Ms. Turenne’s petition also sought plain error review
concerning the jury instructions and a jury note. We declined to grant review of these
additional issues.

18
of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Krikstan, 483 Md. at 63 (internal quotation marks and citations omitted). We do not

“undertake a review of the record that would amount to, in essence, a retrial of the case,”

Rivers v. State, 393 Md. 569, 580 (2006) (internal quotation marks and citation omitted),

and we do not “re-weigh the credibility of witnesses or attempt to resolve any conflicts in

the evidence.” Walker v. State, 432 Md. 587, 614 (2013) (internal quotation marks and

citations omitted). Instead, we defer to “reasonable inferences drawn by the fact-finder”

and “resolve conflicting possible inferences in the State’s favor.” Krikstan, 483 Md. at 64.

Part of our inquiry in this case involves the interpretation of statutory language. That

presents a question of law, which we review de novo. Id.

III

Discussion

A. Counts 1-8: Sexual Abuse of a Minor

We first consider the sufficiency of the evidence in support of Ms. Turenne’s

convictions on Counts 1-8 for sexual abuse of a minor, in violation of CR § 3-602(b)(1).

Section 3-602(b)(1) prohibits someone “who has permanent or temporary care or

custody or responsibility for the supervision of a minor” from causing “sexual abuse to the

minor.” “Sexual abuse” is defined as “an act that involves sexual molestation or

exploitation of a minor, whether physical injuries are sustained or not.” Id. § 3-602(a)(4)(i).

The State proceeded under the sexual exploitation prong of the definition of “sexual

abuse.” Thus, to convict Ms. Turenne under § 3-602(b)(1), the State was required to prove

with respect to each count that: (1) Ms. Turenne had care, custody, or responsibility for the

19
victim’s supervision; (2) the victim was a minor at the time of Ms. Turenne’s conduct; and

(3) Ms. Turenne sexually exploited the victim by means of a specific act. See Schmitt v.

State, 210 Md. App. 488, 496 (2013). The only statutory element that Ms. Turenne disputes

is whether her conduct in taking the photographs constituted sexual exploitation.

Ms. Turenne contends that, in reviewing the sufficiency of the evidence supporting

these convictions, we should not consider the evidence that the State introduced concerning

her sexual orientation and her possession of adult pornography. Without such evidence,

Ms. Turenne argues, the evidence was insufficient to sustain her child sexual abuse

convictions because the State failed to prove that she took the photographs for her own

sexual gratification. According to Ms. Turenne, nothing within the four corners of the

photos makes it self-evident that she created the images for the purpose of sexual

gratification.

The State argues that the evidence was sufficient to show that Ms. Turenne took the

photographs for the purpose of sexual gratification. According to the State, a rational juror

could reach this conclusion from the photographs themselves, which showed that Ms.

Turenne “put a number of the children in stereotypically sexual poses …, laying them on

their backs, with legs spread, and genitals prominent.” In addition, the State observes, all

eight of the photos clearly focused on the children’s genitalia and omitted their faces, which

could be interpreted by the jury as treating the children as sexual objects. Finally, according

to the State, Ms. Turenne’s diaper-rash explanation was thoroughly discredited at trial.

We recently reaffirmed that sexual exploitation in the context of child sexual abuse

“is not limited to incidents involving physical contact and can include a wide range of

20
behavior.” Krikstan, 483 Md. at 51 (citation omitted). We have “continually construed

§ 3-602 in an expansive manner,” among other things, clarifying that its coverage “is not

limited to the enumerated acts” listed in the statute as examples of sexual abuse.12 Walker,

432 Md. at 622; see also Tribbitt v. State, 403 Md. 638, 643, 645 (2008) (holding that

“sexual contact that does not constitute a sexual offense in any degree or otherwise violate

any provision of Maryland law” can nevertheless provide the basis for sexual abuse under

CR § 3-602).

To prove sexual abuse by sexual exploitation, the State must show that the defendant

“took advantage of or unjustly or improperly used the child for his or her own benefit.”

Degren v. State, 352 Md. 400, 426 (1999) (quoting Brackins v. State, 84 Md. App. 157,

162 (1990)). This benefit need not be sexual; in other words, the State is not required to

prove that the defendant personally received sexual gratification from the conduct. Walker,

432 Md. at 625. For example, in Walker, we explained that it did not matter whether the

38-year-old defendant “became sexually aroused or received sexual gratification” from

exchanging notes containing sexual undertones with an eight-year-old girl. Id. The “great

pleasure” that the defendant described deriving from the notes led us to conclude that the

defendant “received a benefit from his actions and therefore exploited” the child. Id.

(internal quotation marks omitted). Additionally, the State is not required to prove an

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

21
adverse impact on the victim or that the victim was aware of the exploitation. See Schmitt,

210 Md. App. at 502-03. A benefit to the defendant, whether it is sexual, financial, or

otherwise, is all that is required. See Walker, 432 Md. at 625.13

In assessing whether the State has sufficiently proved an act of sexual exploitation,

we examine not only the specifics of the alleged act itself, but also the pertinent

circumstances relating to the act. See Walker, 432 Md. at 622 (“The context in which the

abuse occurs matters[.]”). We view the facts surrounding alleged sexual exploitation “in

their totality[.]” Id. at 623 (explaining that the context in which a male paraeducator wrote

notes to an elementary school student “certainly informs the interpretation” of the notes).

This “content-plus-context” approach is consistent with the General Assembly’s clear

intent to protect child abuse victims. Since Maryland’s first child abuse statute was enacted

in 1963, the General Assembly has repeatedly broadened the statutory definition of abuse.

See Krikstan, 483 Md. at 68-70 (detailing changes in Maryland’s child abuse statutes over

time). This “concern for the welfare of children, and the myriad ways in which abusers can

sexually exploit minors, militates against unduly narrowing the scope of a statute that is

reasonably worded so as to reach a wide swath of behaviors.” Walker, 432 Md. at 623.

Considering the context in which allegedly sexually exploitative acts were committed, as

well as the acts themselves, furthers the Legislature’s purpose to protect children from

sexual abuse.

13
The State’s theory at trial was that the benefit from taking the photos of the
children was Ms. Turenne’s own sexual gratification. Accordingly, that is our focus here
as well. We do not consider whether the evidence admitted at trial showed that Ms. Turenne
received any other kind of benefit from taking the photos.

22
In Scriber v. State, the Appellate Court applied a content-plus-context approach to

a sexual exploitation case involving photographs. 236 Md. App. 332 (2018). The defendant

in Scriber was a high school teacher who took pictures of students’ clothed buttocks in a

classroom. See id. at 337-39. After being found guilty in a non-jury trial of child sexual

abuse under CR § 3-602(b)(1), the defendant argued on appeal that the “mere taking of a

picture of a fully clothed individual” was not sufficient to prove sexual exploitation. Id. at

349.

The Appellate Court affirmed the defendant’s conviction. The Appellate Court

opined that the defendant’s “framing of the issue, whether the mere taking of a picture of

a fully clothed individual is sufficient to prove sexual exploitation, is too narrow.” Id.

(cleaned up). Rather, the court stated, “our analysis requires consideration of all the

circumstances, including the context in which the pictures were taken, i.e., [the defendant]

was a high school teacher and the [victim] was his student, and the content of the pictures,

which the circuit court accurately described as multiple images of [the victim] ‘bending

over, taking the picture from the back to the virtual exclusion of every other part of her

body.’” Id. (emphasis added).

Applying that broader analytical approach, the Appellate Court agreed with the trial

court that the evidence was sufficient to show that the defendant’s actions were sexually

exploitative:

Based on the context of the actions, a teacher taking multiple photos of a
student during school, and the content of the photos, which depicted
primarily the buttocks of a student bending over what appears to be a table,
as well as other photos depicting only a “young woman’s legs and buttocks,”
a rational trier of fact could conclude that [the defendant]’s actions in taking

23
these photos were for his own benefit and constituted exploitation of a sexual
nature.

Id. at 350; see also id. at 349-50 (agreeing with the trial court’s conclusion that the

photographs’ focus on the victim’s buttocks was “not an accident”).

Applying the appropriate content-plus-context approach to this case leads to the

same result. A reasonable juror could have determined that Ms. Turenne took photographs

of multiple naked children for her own benefit. First, like the photos in Scriber that focused

on students’ buttocks, id. at 337-39, Ms. Turenne’s photos focused on the children’s

genitals. That all eight photos focused on the children’s genitals could allow a reasonable

factfinder, as in Scriber, to conclude that the composition of any one or more of the photos

was not an accident, id. at 349-50, but rather was designed for sexual gratification.

Second, a reasonable juror could have concluded that Ms. Turenne purposely put

several of the children in poses that resemble what one might see in some adult

pornography: the subject on her back, her legs spread, displaying her genitals. This also

could have caused a reasonable juror to infer that Ms. Turenne took those photos for her

own sexual gratification.

Third, as the State points out, the fact that Ms. Turenne omitted the children’s faces

from all the photos could support a reasonable juror’s determination that Ms. Turenne

treated the children as sexual objects. Indeed, there have been many cases around the

country where images of child pornography (or suspected child pornography) have

similarly omitted faces. See, e.g., United States v. Hammond, 779 F. App’x 835, 839 (3d

Cir. 2019) (noting that “[no] faces can be seen in the images” of child pornography); State

24
v. Sewell, No. 22-798, 2023 WL 2592018, at *2 (La. Ct. App. Mar. 22, 2023) (“Agents

asked whether he saw child porn when he downloaded, and he said it was hard to tell

because there were no faces, but he confirmed there were vaginas and undeveloped

prepubescent [breasts] shown.”); People v. Olsen, No. 4-22-0738, 2023 WL 5049096,

¶¶ 19-20 (Ill. App. Ct. Aug. 7, 2023) (noting video of child pornography where no faces

can be seen); Anderson v. Clarke, No. 7:22-cv-00272, 2023 WL 6456489, at *4 (W.D. Va.

Sept. 30, 2023) (noting that some of the purported images of child pornography “only

revealed genitalia, with ‘no faces,’…”); United States v. Jones, 748 F.3d 64, 66 (1st Cir.

2014) (undercover agent agreeing with target that target would commit sex acts on a child,

while the agent would “perhaps film what [the target] did – ‘close up’ shots only, … ‘no

face’ shots”).

Fourth, Ms. Turenne violated the Center’s no-photograph policy to take these

pictures and took most of them after teachers began leaving for the day, when there were

fewer staff members in the building. She also took several pictures in a bathroom, secluding

herself and the children from other adults and from the Center’s cameras.

Fifth, Ms. Turenne initially lied to the investigators about whether two of the images

were photos of children and falsely denied having taken those pictures. After admitting that

she did take the pictures of the nude children that were on her phone, Ms. Turenne

repeatedly told the investigators that she took the pictures for “no reason,” and that she had

meant to delete the pictures but had forgotten to do so. And, as the State notes, Ms.

Turenne’s diaper-rash explanation, which she raised for the first time at trial, was

25
thoroughly discredited.14 All of these circumstances provide additional support for the

jury’s determination that Ms. Turenne indeed took the pictures and retained them for a

reason: sexual gratification.15

14
One of the photos shows diaper cream applied to a child’s anal area. No rashes
are visible in several photos. A few photos show, at most, redness of varying degrees. One
child is shown with a pair of underwear below her knees, indicating that she is no longer
wearing diapers. Regardless of what a rational juror may have concluded about the number
of pictures in which a rash was visible, such a juror could have concluded that Ms. Turenne
did not take any of the photos to document a rash or an incipient rash. For one thing, a
rational juror could have found Ms. Turenne’s claim that she saw no diaper rashes on boys
to be far-fetched. In addition, as Ms. Turenne acknowledged in her trial testimony, she
would not have been able to identify any of the children in the faceless images if a parent
had complained about a diaper rash. Moreover, it is difficult to understand how most of
these photos, even if they had included the children’s faces, would have helped Ms.
Turenne respond to a complaint about a diaper rash. She took most of the photos at the end
of day, at a time when the pictured child presumably would have been at the Center for
several hours. If, as Ms. Turenne testified, she wanted “to prove that this child had the rash
before I started watching the child,” presumably she would have taken pictures of rashes
that were visible during the child’s first diaper change of the day. In addition, only one
photo showed the application of diaper cream. If, as defense counsel said in his opening
statement, Ms. Turenne’s goal was to show that she was “afraid of being accused of any
kind of rashes that she wasn’t taking care of, she wasn’t wiping,” presumably Ms. Turenne
would have taken more photos that documented her use of diaper cream. Finally, a rational
juror could have concluded from the fact that Ms. Turenne retained the photos on her phone
long after a parent or guardian likely would have complained about any rash or redness
shown in any of the photos, that Ms. Turenne took them for a purpose other than to protect
herself against a claim of substandard care.
15
Contrary to Ms. Turenne’s assertion, our decision in Bible v. State does not
compel a different result. In Bible, we overturned the defendant’s convictions for sexual
offenses in the third and fourth degrees. 411 Md. 138 (2009). The alleged victim in that
case, who was seven years old at the time of the offense, testified that the defendant touched
her “behind” more than once for “like two seconds.” Id. at 146. The State introduced no
other evidence regarding the alleged touching and the surrounding circumstances. Id. at
145. A three-judge plurality of the Court joined an opinion holding that: (1) a person’s
buttocks are an “intimate area” for purposes of the third- and fourth-degree sex offense
statutes, id. at 152-56; but (2) the evidence was insufficient to prove beyond a reasonable

26
Note that we have not yet discussed the evidence of the adult pornography found on

Ms. Turenne’s phone as part of our sufficiency analysis. That is not because evidence of a

defendant’s possession of adult pornography is never relevant in a child sex abuse case. As

Ms. Turenne acknowledges in her briefing, in some instances such evidence is relevant.

See, e.g., Commonwealth v. Wallace, 877 N.E.2d 260, 262-63, 267-68 (Mass. App. Ct.

2007) (in prosecution for indecent assault and battery on 12-year-old girl, affirming

admission of adult pornography that was found in defendant’s car commingled with

photographs of fully clothed young girls and other items that collectively showed a

“voyeuristic interest in sexual matters and young females”; such evidence was probative

of “whether the defendant intentionally squeezed the victim’s breast or accidentally

touched her while in the performance of a good deed”); Ortiz v. Commonwealth, 667

S.E.2d 751, 755 (Va. 2008) (in prosecution for rape of the defendant’s step-grandchild,

affirming admission of adult pornographic videos found in search of the defendant’s home,

where they were relevant to corroborate the child’s testimony that, during the period of the

doubt that the defendant’s intent in touching the girl’s buttocks was to obtain sexual arousal
or gratification. Id. at 156-60.

The Honorable Lynne A. Battaglia and the Honorable John C. Eldridge joined in
the judgment only. Id. at 161. (The Honorable Glenn T. Harrell, Jr., joined by the
Honorable Joseph F. Murphy, Jr., filed a dissenting opinion. The dissenters would have
affirmed the convictions. Id. at 161-63 (Harrell, J., dissenting.)) Thus, we cannot conclude
that a majority of the Court in Bible determined the evidence was insufficient to support
the jury’s finding regarding the defendant’s intent. Regardless, the evidence of sexual
gratification was more robust in this case than it was in Bible. As the State points out, “there
is a big difference between touching for ‘like two seconds’ on top of clothing, and several
naked, sexually posed, genitalia-focused photos taken on different dates.”

27
alleged sexual abuse, the defendant “showed her movies of ‘grownups doing something’

without clothes on”).

Here, the evidence of adult pornography on Ms. Turenne’s phone – all of which

came in without objection – was relevant to the jury’s understanding of how Ms. Miller

first came to see the photos of the children. It also was relevant insofar as it was a topic of

discussion during Ms. Turenne’s interview with the investigators, a recording of which was

introduced into evidence. However, it is a closer question whether the evidence of adult

pornography, as offered by the State, had probative value with respect to whether Ms.

Turenne obtained sexual gratification from the photos of the children. The jury arguably

could infer from Ms. Miller’s testimony that she viewed an adult pornographic video and

the photos of naked children in quick succession, and therefore that Ms. Turenne stored the

photos of the children near where she stored at least one adult pornographic video in her

phone. And, if the jury made those inferences, the jury possibly could have also inferred

that the photos of the children provided sexual gratification to Ms. Turenne in the same

way that the nearby adult pornographic video presumably provided her with sexual

gratification. In addition, Ms. Turenne told the investigators that, when others sent her adult

pornographic materials, they would automatically be downloaded to her camera. This

arguably also could have supported an inference that the video Ms. Miller saw was located

on Ms. Turenne’s camera roll – the same part of the phone where Ms. Miller saw the

pictures of the children. However, as Ms. Turenne points out, the State did not offer

forensic evidence showing that her phone was organized in such a way to demonstrate a

relationship between the adult pornography and the photos of the children.

28
We need not decide whether the evidence of Ms. Turenne’s possession of adult

pornography provides additional support for her child sexual abuse convictions.16 The

context that we have discussed above – how, where, and when Ms. Turenne took the photos

and her statements concerning the photos – combined with the content of the photos, would

16
We also need not decide whether the evidence that was introduced concerning
Ms. Turenne’s sexual orientation supports her convictions in this case. First, our grant of
certiorari was expressly limited to the first question presented, which did not raise the issue
of Ms. Turenne’s sexual orientation. And we declined to grant review with respect to a
question concerning the sexual orientation evidence. Second, the evidence is sufficient to
sustain Ms. Turenne’s child sexual abuse convictions (as well as her child pornography-
related convictions, as discussed below) without consideration of such evidence. However,
nothing in this opinion should be construed as predetermining the outcome of any
post-conviction petition that Ms. Turenne may subsequently file.

A few additional observations about the sexual orientation evidence are also in
order. We agree with the Appellate Court that the prosecutor was not arguing that Ms.
Turenne was probably a child abuser because she was gay. See Turenne, 258 Md. App. at
263-64. However, both counsel seemed to be of the view that Ms. Turenne’s sexual
orientation could shed light on whether the photos of the children were sexual in nature
and whether Ms. Turenne took them for sexual gratification. Thus, the prosecutor elicited
from Ms. Miller that Ms. Turenne told her she was gay and argued to the jury: “She told
[Ms. Miller] that she was gay or bisexual, which, obviously doesn’t matter, but it matters
when you’re looking at whether she had any sexual gratification for taking these pictures,
holding on to these pictures for as long as she did.” For his part, defense counsel elicited
from Detective Rockwell that there was both male and female adult pornography on Ms.
Turenne’s phone, and argued to the jury: “There’s pictures of male genitalia, too, of adult
male genitalia. [The State doesn’t] mention that. They’re making the argument that she’s
gay, but she has male genitalia in these pictures.”

Without data to support a correlation of this sort, litigants should avoid eliciting
such evidence and making such arguments, regardless of the defendant’s particular sexual
orientation and regardless of the genders of the defendant and victim. However, where the
defendant is gay or lesbian and is of the same gender as the alleged victim, an attempt to
make such a connection is particularly concerning, because it “could be misinterpreted” as
“reinforc[ing] a terrible stereotype of gay and lesbian people” and “perpetrating a
pernicious falsehood about same-sex orientation.” Turenne, 258 Md. App. at 264.

29
allow a rational juror to conclude that the photos were sexually exploitative. Thus, we

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

B. The Child Pornography Counts

We turn now to the sufficiency of the evidence in support of Counts 9-16 and 17-24,

which charged Ms. Turenne with production of child pornography and possession of child

pornography, respectively. The validity of these convictions turns on whether the State

proved that the photos depicted “lascivious exhibitions” of the children’s genitals or pubic

areas.

1. Production of Child Pornography

Under CR § 11-207(a)(1), a person may not “cause, induce, solicit, or knowingly

allow a minor to engage as a subject in the production of obscene matter or a visual

representation or performance that depicts a minor engaged as a subject in … sexual

conduct[.]” As relevant here, “sexual conduct” is defined as the “lascivious exhibition of

the genitals or pubic area of any person.” Id. § 11-101(d)(4). The Criminal Law Article

does not define the phrase “lascivious exhibition,” as used in § 11-104(d)(4).

Ms. Turenne urges us to adopt an objective test to determine whether an image

depicts a lascivious exhibition of a child’s genitals, relying on United States v. Hillie, 39

F.4th 674 (D.C. Cir. 2022). Ms. Turenne contends that, in adding “lascivious exhibition”

of the genitals or pubic area to the definition of “sexual conduct,” the General Assembly

intended to criminalize only those exhibitions that are objectively sexual and connote

sexual activity or sexual desire. According to Ms. Turenne, a factfinder should be limited

to analyzing the “four corners” of an image in determining whether the image meets that

30
standard. However, Ms. Turenne also asserts that even under other standards adopted by

courts interpreting the phrase “lascivious exhibition,” the evidence was insufficient to

convict her of production of child pornography.

The State argues that the evidence was sufficient to convict Ms. Turenne of

production of child pornography, regardless of whether this Court applies Hillie, the Dost

factors used by many courts,17 or the totality-of-the-circumstances approach employed by

the Appellate Court of Maryland. The State asks us to adopt a test that permits a factfinder

to look beyond the four corners of an image and to consider the defendant’s subjective

intent as a factor in determining whether an image depicts a lascivious exhibition.

As we explain below, we decline to adopt a test that prohibits the trier of fact from

looking beyond the four corners of an image. Instead, similar to our analysis of whether an

act is sexually exploitative for purposes of the child sexual abuse statute, we adopt a

content-plus-context test that considers both the contents of an image and the totality of

circumstances that directly relate to the exhibition of a child’s genitals or pubic area.

However, unlike the inquiry concerning a child sexual abuse charge, where the content-

plus-context test is used to determine whether the defendant subjectively derived sexual

gratification or another benefit from the alleged act of abuse, the content-plus-context test

that we adopt for purposes of child pornography charges is used to determine whether an

image is objectively sexual in nature.

17
We discuss United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), below.

31
a. The Constitutional Limits on Criminalization of Depictions of Child
Nudity

The First Amendment imposes limits on government’s ability to regulate

pornography. Adult pornography is subject to an obscenity standard. States can regulate

depictions of sexual conduct involving adults without violating the First Amendment if the

depiction, “taken as a whole, appeal[s] to the prurient interest in sex,” “portray[s] sexual

conduct in a patently offensive way,” and “do[es] not have serious literary, artistic,

political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973).

Child pornography is not subject to the same standard. In New York v. Ferber, the

Supreme Court held that child pornography can be regulated without infringing on the First

Amendment, even if the depiction is not obscene. 458 U.S. 747, 756, 764 (1982). The

Ferber Court identified several reasons for this “greater leeway” to regulate non-obscene

content involving minors, including: (1) the compelling state interest in “safeguarding the

physical and psychological well-being” of children; (2) the fact that child pornography

creates a harmful, permanent record of the child’s participation; and (3) the need for states

to restrict the distribution of child pornography to effectively restrict its creation. See id. at

756-62 (quoting Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 607 (1982)).

According to the Ferber Court, if the prohibited conduct was “adequately defined by …

state law, as written or authoritatively construed,” and the category of “sexual conduct”

was “suitably limited and described,” a statute regulating child pornography would be

neither underinclusive nor overinclusive and would not violate the First Amendment. Id.

at 764-65, 766-73.

32
Images that depict the genitalia of nude children are not per se lascivious

exhibitions. That is the case based on the language of CR § 11-101(d)(4). See, e.g., United

States v. Villard, 885 F.2d 117, 121 (3d Cir. 1989) (“The language of the statute makes

clear that the depictions must consist of more than merely nudity; otherwise, inclusion of

the term ‘lascivious’ would be meaningless.”) (analyzing the similarly worded federal

statute). It is also the case because criminalizing all depictions of child nudity – including

innocent pictures of children playing in a bathtub in their home and other nonsexual

depictions of nude children – would be unconstitutionally overbroad, in violation of the

First Amendment. See Osborne v. Ohio, 495 U.S. 103, 113-14 (1990) (Ohio Supreme

Court’s limiting construction of statute as prohibiting “the possession or viewing of

material or performance of a minor who is in a state of nudity, where such nudity

constitutes a lewd exhibition or involves a graphic focus on the genitals” rendered the

statute permissible under the First Amendment because it “avoided penalizing persons for

viewing or possessing innocuous photographs of naked children”); Commonwealth v.

Davidson, 938 A.2d 198, 214-15 (Pa. 2007) (Pennsylvania statute criminalizing depictions

of minors engaged in nudity for the purpose of sexual stimulation or gratification not

unconstitutionally overbroad; “[t]he qualifier to the term ‘nudity’ narrows and limits the

reach of the statute. In doing so, the General Assembly made clear that it did not seek to

punish individuals for viewing or possessing innocent materials containing naked minors

… e.g., a photograph of a baby’s bath.”); State v. Whited, 506 S.W.3d 416, 431 (Tenn.

2016) (“[C]riminalizing conduct that involves a depiction of ‘mere nudity’ may have

constitutional implications.”).

33
b. Courts’ Differing Approaches Regarding “Lascivious Exhibition”
Federal law and many states’ laws prohibit the production of images that depict the

“lascivious exhibition” of children’s genitals, pubic areas, and other private parts.

However, federal courts, as well as state courts, have varied in their approaches to

determining whether an image constitutes a lascivious exhibition. We summarize four

existing approaches: the Dost factors, the totality-of-the-circumstances test, the “limited

context” modification of the Dost factors, and the Hillie standard.

i. The Dost Factors

The closest thing to a majority approach comes from a federal district court opinion

issued almost 40 years ago. United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d

sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). The court in Dost

articulated a list of six factors to use in determining whether an image is a “lascivious

exhibition” of the genitals:18

1) whether the focal point of the visual depiction is on the
child’s genitalia or pubic area;

18
Dost analyzed the predecessor statute to 18 U.S.C. § 2256, which defines
“sexually explicit conduct” as including actual or simulated “lascivious exhibition of the
anus, genitals, or pubic area of any person[.]” 18 U.S.C. § 2256(2)(A)(v). As we describe
below, Maryland’s definition of “sexual conduct” was amended in 2019 to add “lascivious
exhibition” language that resembles the language of this federal statute. Thus, Dost, Hillie,
and other cases that interpret the federal “lascivious exhibition” language are useful
comparisons. See Harris v. State, 331 Md. 137, 156-57 (1993) (“The interpretation given
a federal statute ordinarily is persuasive in interpreting a state statute patterned upon the
federal statute.”); see also State v. Whited, 506 S.W.3d 416, 426 (Tenn. 2016) (explaining
that “[f]ederal decisions on the question of lasciviousness are useful for comparison
because federal law is similar to Tennessee law in the area of child sexual exploitation”).

34
2) whether the setting of the visual depiction is sexually
suggestive, i.e., in a place or pose generally associated with
sexual activity;

3) whether the child is depicted in an unnatural pose, or in
inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a
willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit
a sexual response in the viewer.

Id. at 832. The Dost Court further stated that: (1) all six factors need not be present for an

image to be lascivious; (2) in addition to the listed factors, the trier of fact should consider

any other factors that may be relevant in a particular case; and (3) the determination of

lasciviousness must be made “based on the overall content of the visual depiction, taking

into account the age of the minor.” Id.

At least seven of the federal appellate circuits have adopted or approved of the Dost

factors to varying degrees. See, e.g., United States v. Amirault, 173 F.3d 28 (1st Cir. 1999);

United States v. Spoor, 904 F.3d 141 (2d Cir. 2018); United States v. Villard, 885 F.2d 117

(3d Cir. 1989); United States v. McCall, 833 F.3d 560 (5th Cir. 2016); United States v.

Brown, 579 F.3d 672 (6th Cir. 2009)19; United States v. Lohse, 797 F.3d 515 (8th Cir.

2015); United States v. Boam, 69 F.4th 601 (9th Cir. 2023). Some courts have opined that

the Dost factors “are neither comprehensive nor necessarily applicable in every situation.”

Amirault, 173 F.3d at 32. Other courts use the Dost factors as a “starting point.” Boam, 69

19
As discussed below, Brown can be viewed as articulating a test that is distinct
from other courts’ understandings of the Dost factors.

35
F.4th at 608; see also United States v. Perkins, 850 F.3d 1109, 1121 (9th Cir. 2017)

(opining that the Dost factors “are neither exclusive nor conclusive,” and courts may

consider “any other factor that may be relevant in a particular case”) (internal quotation

marks and citation omitted).

In addition to the variation that exists in courts applying the Dost factors, there has

also been criticism of the factors, even among the circuits that have adopted or applied

them. See, e.g., United States v. Frabizio, 459 F.3d 80, 88 (1st Cir. 2006) (“There are many

reasons for the need for caution about the use of the Dost factors[.]”). In particular, the fifth

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

in sexual activity” – has been repeatedly criticized. Courts have noted that “[c]hildren do

not characteristically have countenances inviting sexual activity,” id. at 89, and recognized

that “[c]hildren posing for pornographic pictures may suffer dramatic harm regardless of

whether they have an ‘adult’ look of sexual invitation or coyness on their face.” United

States v. Knox, 32 F.3d 733, 747 (3d Cir. 1994). This factor’s emphasis on the conduct of

the child victim means that its application can be “over-generous to the defendant,”

Wiegand, 812 F.2d at 1244, and courts applying the Dost factors have sometimes declined

to consider it. See, e.g., United States v. Johnson, 639 F.3d 433, 440 (8th Cir. 2011) (“The

fact that the young women in the videos were not acting in an obviously sexual manner,

suggesting coyness or a willingness to engage in sexual activity, does not necessarily

indicate that the videos themselves were not or were not intended to be lascivious.”);

United States v. Wolf, 890 F.2d 241, 246 (10th Cir. 1989) (requiring a child “to exhibit lust,

wantonness, sexual coyness or other inappropriate precocity” “would pervert both the

36
language and the logic of the [child pornography] legislation and the case law”); United

States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999) (“The lascivious exhibition is not the

work of the child, whose innocence is not in question, but of the producer or editor of the

video.”) (cleaned up).

In addition, the sixth Dost factor – “whether the visual depiction is intended or

designed to elicit a sexual response in the viewer” – has confounded many courts. As the

First Circuit commented:

Is this a subjective or objective standard, and should we be evaluating the
response of an average viewer or the specific defendant in this case?
Moreover, is the intent to elicit a sexual response analyzed from the
perspective of the photograph’s composition, or from extrinsic evidence
(such as where the photograph was obtained, who the photographer was,
etc.)?

Amirault, 173 F.3d at 34. Some courts view this factor subjectively and find the sixth factor

satisfied when the image appeals to the defendant’s sexual desires, while others view the

factor as informing an objective inquiry. Compare Wiegand, 812 F.2d at 1244 (“It was a

lascivious exhibition because the photographer arrayed it to suit his peculiar lust.”), with

Spoor, 904 F.3d at 150 (clarifying that the sixth Dost factor “should be considered by the

jury in a child pornography production case only to the extent that it is relevant to the jury’s

analysis of the five other factors and the objective elements of the image”).

ii. The Totality-of-the-Circumstances Test

A second approach is the one articulated by the Appellate Court in deciding this

case: a totality-of-the-circumstances test. Turenne, 258 Md. App. at 246-47. Arguably, this

approach is consistent with what the Dost Court had in mind when it said that, “in

37
determining whether a visual depiction of a minor constitutes a ‘lascivious exhibition of

the genitals or pubic area[,] . . .’ the trier of fact should look to the [six enumerated] factors,

among any others that may be relevant in the particular case[.]” Dost, 636 F. Supp. at 832

(emphasis added).

However, reading Dost and some subsequent cases to suggest that some or all of the

Dost factors must be considered in every case, the Appellate Court and several other courts

have explicitly rejected the Dost factors as a test and instead have “rel[ied] on the plain

meaning of ‘lascivious exhibition’ and appl[ied] a totality of the circumstances approach.”

Turenne, 258 Md. App. at 247. The Appellate Court opined that this approach “is most

appropriate given the varied and nuanced contexts of child pornography.” Id. After framing

the question of whether a visual representation “depicts the minor’s genitals or pubic area

in order to excite lustfulness or sexual stimulation in the viewer,” id. (cleaned up), the

Appellate Court stated: “Answering this question requires consideration of all

circumstances surrounding a depiction; not just the image itself, but the actions and

preferences of the defendant.” Id.

iii. The Sixth Circuit’s “Limited Context” Approach

In United States v. Brown, 579 F.3d 672 (6th Cir. 2009), the Sixth Circuit took a

narrower approach than the Dost Court and the Appellate Court in determining whether a

photograph constitutes a lascivious exhibition. Construing the sixth Dost factor, the Sixth

Circuit opted for a “limited context” test, which allows a factfinder to consider

38
“circumstances directly related to the taking of the images” along with the content of the

images. Id. at 683.

The Brown Court undertook its analysis because only one of the images that bore

on a contested federal Sentencing Guidelines issue was lascivious based on the four corners

of the image. Id. at 681. The question thus became whether the sentencing court “could

have properly looked beyond the four corners of the [other] photographs.” Id. at 682.

Recognizing that the Sixth Circuit had previously applied the Dost factors in assessing

lasciviousness, see id. at 680, the court determined that the answer to the question before

it depended on the proper interpretation of the sixth Dost factor. See id. at 682.

The court noted the disagreement among other courts about the meaning of the sixth

factor’s phrase “intended to elicit a sexual response in the viewer,” id. at 682-83, and said

that “[t]he lack of consensus among our sister circuits is understandable, given that there

are important considerations weighing in favor of both” a subjective and an objective

approach. Id. at 683. On the one hand, the court observed that “[t]he use of the word

‘intended’ seems to establish that the subjective intent of the photographer is relevant.” Id.

at 682. On the other hand, the court explained that because “the word ‘intended’ is found

in the Dost court’s test, and not in a criminal statute,” it is appropriate “to determine if the

element of intent should be examined in determining whether the image is lascivious.” Id.

The Brown Court rejected the idea that “lasciviousness should be determined from

the image alone.” Id. Rather, the court emphasized the need to consider an image’s context:

“Ignoring the contextual evidence construes the statute too narrowly as it inevitably fails

to capture behavior that is ‘intended’ to exploit children.” Id. at 683.

39
However, the court also saw peril in placing “too much emphasis on the subjective

intent of the photographer or viewer[.]” Id. In doing so, “a seemingly innocuous

photograph might be considered lascivious based solely upon the subjective reaction of the

person who is taking or viewing it.” Id. This, in turn, “could invoke the constitutional

concerns associated with criminalizing protected expressive activity.” Id. In addition, the

court reasoned, “a rule that considers too much prejudicial context – e.g., facts such as the

past behavior of the defendant, other alleged deviancies of the defendant, and criminal

conduct that is not directly related to the charge at hand – could pose due process concerns

and could be used to convict defendants for acts other than those for which he or she is

prosecuted.” Id.

These considerations led the Sixth Circuit to conclude that the best way to apply the

sixth Dost factor is to take a sort of hybrid approach that neither ignores the context

surrounding the four corners of an image, nor considers a particular defendant’s subjective

preferences in the abstract, as divorced from how those preferences are manifested in the

image:

In sum, while the context in which an image was taken likely helps a
factfinder understand whether an image was intended to elicit a sexual
response in the viewer, there is a countervailing and significant risk that a
context-specific test could reach too broadly and “over-criminalize”
behavior. In light of these competing concerns, we find that it is appropriate
to apply a “limited context” test that permits consideration of the context in
which the images were taken, but limits the consideration of contextual
evidence to the circumstances directly related to the taking of the images.

Id. Under the Brown Court’s limited context test, a factfinder can consider “evidence about

(1) where, when, and under what circumstances the photographs were taken, (2) the

40
presence of other images of the same victim(s) taken at or around the same time, and

(3) any statements a defendant made about the images.” Id. at 683-84 (footnote omitted).

However, “past bad acts of the defendant, the defendant’s possession of other pornography

(pornography of another type or of other victims), and other generalized facts that would

relate only to the general ‘unseemliness’ of the defendant” are off-limits and cannot be

considered. Id. at 684.

iv. The Hillie Standard

A fourth approach, and the one advocated by Ms. Turenne, comes from United

States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022). Hillie held that “‘lascivious exhibition of

the anus, genitals, or pubic area of any person’ . . . mean[s] that the minor displayed his or

her anus, genitalia, or pubic area in a manner connoting that the minor, or any person or

thing appearing with the minor in the image, exhibits sexual desire or an inclination to

engage in any type of sexual activity.” Id. at 685. The Hillie Court reasoned that this

interpretation of the federal statute was required under New York v. Ferber, which in turn

referenced the Supreme Court’s earlier cases that purportedly equated “sexual conduct”

with “hard core” sexual activity, even in the context of “lewd exhibition” of the genitals.

Id. at 681-85. The Hillie Court also relied on the canon of noscitur a sociis, “which counsels

that a word is given more precise content by the neighboring words with which it is

associated,” to determine that the lascivious exhibition “must be performed in a manner

that connotes the commission of a sexual act.” Id. at 685 (internal quotation marks and

citation omitted). The court reasoned that because all the other acts that qualified as

41
“sexually explicit conduct” under the federal statute were specific sexual acts, “lascivious

exhibition” should likewise be construed in a way that connotes a sexual act. Id.

c. Our Interpretation of “Lascivious Exhibition”

Maryland’s child pornography statutes do not define what a “lascivious” exhibition

is. When a term is not defined, we must determine what the term means, applying

Maryland’s well-established rules for statutory interpretation. The “cardinal rule of

statutory interpretation” is to “ascertain and effectuate the General Assembly’s purpose

and intent when it enacted the statute.” Wheeling v. Selene Fin. LP, 473 Md. 356, 376

(2021). We do so by first examining the “normal, plain meaning” of the statute’s language.

Id. Where, as here, a term is not defined by the statute, “we may refer to the dictionary and

give the words their ordinary meaning.” State v. Wilson, 471 Md. 136, 160 (2020). We

“read the statute as a whole to ensure that no word, clause, sentence or phrase is rendered

surplusage, superfluous, meaningless or nugatory.” Johnson v. State, 467 Md. 362, 372

(2020) (internal quotation marks and citations omitted).

“Where statutory language is ambiguous and thus subject to more than one

reasonable interpretation, or where the language is unambiguous when read in isolation,

but ambiguous when considered in the context of a larger statutory scheme, a court must

resolve the ambiguity by searching for legislative intent in other indicia, including the

history of the legislation or other relevant sources intrinsic and extrinsic to the legislative

process.” Buarque de Macedo v. Automobile Ins. Co. of Hartford, Conn., 480 Md. 200,

216 (2022) (internal quotation marks and citation omitted). In addition, we “check our

42
interpretation against the consequences of alternative readings of the text,” Bell v. Chance,

460 Md. 28, 53 (2018), which “grounds the analysis.” In re O.P., 470 Md. 225, 255 (2020).

i. An Image Need Not Connote or Show Desire or Sexual Activity
to Be a Lascivious Exhibition.

As discussed above, because the phrase “exhibition of the genitals or pubic area” is

qualified by the word “lascivious,” more than mere nudity is required. See Villard, 885

F.2d at 124; United States v. Courtade, 929 F.3d 186, 191 (4th Cir. 2019) (“[T]hat Jane

Doe appears nude in the video cannot suffice to prove that the video meets the statutory

definition [of lascivious exhibition]. If that were so, the word lascivious would become

superfluous.”). “Lascivious” is defined as “tending to excite lust; lewd; indecent; obscene.”

Lascivious, Black’s Law Dictionary (11th ed. 2019). Thus, nudity is lascivious if it is

depicted in a sexual, indecent, or lewd manner or otherwise tends to arouse sexual desire.

See, e.g., Knox, 32 F.3d at 750 (“Nudity must be coupled with other circumstances that

make the visual depiction lascivious or sexually provocative in order to fall within the

parameters of the statute.”).

Like the Hillie Court, Ms. Turenne relies on the associated-words canon to assert

that the meaning of “lascivious exhibition” is informed by the other terms listed in the

definition of “sexual conduct.”20 Ms. Turenne contends that because these other terms are

20
Subtitle 11 of the Criminal Law Article defines “sexual conduct” as:

(1) human masturbation;

(2) sexual intercourse;

43
affirmative sexual acts, a display of genitals or pubic area must also “connote or show

desire or sexual activity” to be a lascivious exhibition.

We disagree. As the Seventh Circuit said in rejecting the same argument: “We …

do not believe that the associated-words canon can be invoked here to limit this term….

The term ‘lascivious exhibition’ has its own meaning that is plainly related to, but distinct

from, the other terms in [18 U.S.C.] § 2256(2)(A).” United States v. Donoho, 76 F.4th 588,

600 (7th Cir. 2023). That meaning is not limited to sexual acts or displays of sexual desire.

While a lascivious exhibition must be sexual in nature, it need not connote or show sexual

desire or sexual activity. Put another way, the exhibition must depict more than innocent

nudity, but it need not show the child or anyone else doing anything sexual. The producer

of an image may create a lascivious exhibition by depicting a child as a sexual object

without forcing the child to engage in a sexual act or causing the child to reflect or simulate

sexual desire. See Spoor, 904 F.3d at 149 (reasonable juror could find that video of nude

boy’s genitalia, filmed while boy was “in bed and without any other context,” was

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

(i) the genitals, buttocks, or pubic areas of an individual; or

(ii) breasts of a female individual; or

(4) lascivious exhibition of the genitals or pubic area of any person.

CR § 11-101(d).

44
lascivious because it served “no obvious purpose other than to present the child as a sexual

object”).21

Our interpretation of the statutory language is consistent with the General

Assembly’s purpose in adding “lascivious exhibition” to the definition of “sexual conduct”

in 2019. See 2019 Md. Laws, ch. 325 (House Bill 1027), ch. 326 (Senate Bill 736). The

purpose of this amendment was to “update the standard for ‘sexual conduct’ so that it was

consistent with the federal standard and to close a loophole that prevented the prosecution

of certain individuals in Maryland.” In re S.K., 466 Md. 31, 56 n.22 (2019); see also Letter

from Del. Lesley J. Lopez in Support of H.B. 1027 (“Lopez Letter”) (“HB 1027 will

strengthen our current child porn laws by elevating them to that of the federal standard.”).

Testimony from advocates supporting the amendment indicates that it was intended to

allow the prosecution of “child pornographers who produce or possess images that are

undeniably sexually explicit, but do not show active touching.” Maryland Coalition

Against Sexual Assault, Testimony Supporting H.B. 1027 with Amendment; see also

Lopez Letter (“Specifically, we seek to include the phrase ‘lascivious exhibition’ to the

definition of what constitutes sexual conduct. Lascivious exhibition essentially involves a

sexual act or exhibition that does not involve actual physical or sexual contact with the

victim.”). This legislative history demonstrates that the purpose of the amendment was to

expand the categories of conduct that could be punished under Maryland’s child

21
We also agree with the Donoho Court that Hillie misinterpreted Ferber’s
reference to “lewd exhibition” being directed at the “hard core” of child pornography. See
Donoho, 76 F.4th at 599-600.

45
pornography statutes. Hillie’s interpretation of “lascivious exhibition” is inconsistent with

the General Assembly’s goal of increasing protection for children who are the subjects of

sexually explicit images that do not show active touching.

Adoption of the Hillie standard would also lead to an absurd interpretation of

CR § 11-101(d)(4) and by extension CR § 11-207(a)(1), by making it virtually impossible

to prosecute someone 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. 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.” 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). 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. 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11080278. Public record. Not legal advice.