State v. Hatfield , 2020 UT 1 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 1IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
MICHAEL SCOTT HATFIELD,
Appellant.
No. 20180386
Heard September 20, 2019
Filed January 27, 2020
On Certification from the Court of Appeals
Third District, Salt Lake
The Honorable Judge L. Douglas Hogan
No. 171401406
Attorneys:
Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Solic. Gen.,
Ryan N. Holtan, Asst. Att’y Gen., Salt Lake City, for appellee
Lori J. Seppi, Heather J. Chesnut, Salt Lake City, for appellant
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 The State charged Michael Scott Hatfield with four counts of
sexual exploitation of a minor after he was caught in the middle
school classroom where he taught with “scrapbooks” containing
homemade collages comprised of pornographic images of adults and
images of underage, and sometimes nude, girls. Hatfield moved the
district court to dismiss these charges arguing that the collages did
not meet the definition of child pornography in the Sexual
Exploitation Act (Act). The court denied Hatfield’s motion. Hatfield
STATE v. HATFIELD
Opinion of the Court
then entered a Sery plea of no contest to preserve his right to bring
this appeal.
¶2 Hatfield’s appeal presents two primary questions. First,
Hatfield asks us to interpret the Act, and, specifically, the Act’s
definition of child pornography. See UTAH CODE § 76-5b-103(1).
Second, he asks us to hold that the Act, properly interpreted, does
not criminalize his possession of the collages and that the district
court therefore erred by failing to dismiss the charges founded on
those images.
¶3 We affirm the district court’s denial of his motion to dismiss
two of the counts of sexual exploitation of a minor and affirm the
convictions based upon those charges. However, we reverse the
district court on the remaining two charges.
BACKGROUND 1
¶4 Hatfield taught English at a charter school in West Valley
City. A school employee found two homemade scrapbooks in
Hatfield’s classroom desk. 2 Although both scrapbooks contain
collages with photographs of minors that were cut and pasted to
create the appearance that the minors were engaging in sexual
activities, the State based the charges against Hatfield on three pages
in a single scrapbook.
¶5 The first collage page (First Page) contains a partial profile
of an adult male, mostly clothed, but with his erect penis visible.
Above the penis is a cut-out of an open hand. There is also a
photograph of a nude pre-pubescent girl facing forward. The
photographs of the hand and penis do not touch the photograph of
the nude minor, but the effect of the collage is to suggest that the girl
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1 Because Hatfield entered a Sery plea, we confine our review to
the facts Hatfield admitted in the plea agreement and the images in
the record. This constrains the way in which we can describe the
factual background. By way of example, we know that Hatfield
admitted possessing the scrapbook, but we do not have a record
basis for asserting that Hatfield created it. This causes us to
excessively employ the passive voice to describe the collages’
creation.
2 While identified in the briefing as “scrapbooks,” these are small
plastic photo albums that can hold approximately twenty four–by-
six inch pages.
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is reaching to touch the man’s erection. The page is also decorated
with heart and bow stickers.
¶6 The second collage page (Second Page) is also comprised of
a partial profile of an adult male with his erect penis extending from
his unzipped pants. On the right side of the page is a cut-out of a
fully clothed young girl with her arm in reaching motion so that it
appears that she is holding the man’s penis. A typed text bubble that
says, “Is this right, mister?” hovers above the girl. In the bottom left
corner are the typed words, “Teach her well.”
¶7 The third collage page (Third Page) contains multiple
images. Photographs of two young girls are cut and pasted in the
center of the page. Both girls are fully clothed. One of the girls has
been positioned so that she appears to be hugging an erect penis—a
penis that appears to be taller than she is. In the upper right and left
corners of the page are two explicit images of adults engaging in
sexual congress. In the bottom right corner is a photograph of a nude
pre-pubescent girl facing forward.
¶8 The images of adults appear to have been cut from
pornographic magazines. The images of the nude pre-pubescent
girls, as well as the clothed smiling girl on the Second Page, were
taken from art and photography books. The images of the clothed
minors on the Third Page were clipped from personal photographs.
¶9 The State ultimately charged Hatfield with four counts of
sexual exploitation of a minor based on the three collage pages.
Count one is based on the First Page. Count two is based on the
Second Page. Counts three and four are based on the Third Page. 3
¶10 Hatfield filed a “Motion to Quash the Bindover
(Preservation of the Motion Made on Record and Stipulated by the
State).” Hatfield argued the three collage pages did not depict
minors engaging in sexually explicit conduct and therefore did not
meet the statutory definition of child pornography set out in Utah
Code section 76-5b-103(1). Hatfield also argued that if the Act
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3 It is not entirely clear from the record, but it appears that count
three focuses on the nude minor and count four is based on the
clothed minor appearing to hug the exaggerated penis. It is also
unclear if count four includes the second clothed minor on the Third
Page. For the reasons discussed infra, even assuming the State based
a charge on both clothed girls on the Third Page, that collage would
still not meet the statutory definition of child pornography.
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STATE v. HATFIELD
Opinion of the Court
criminalized his possession of the collages, then it violates the First
Amendment and due process provision of the United States
Constitution.
¶11 After a hearing, the district court denied Hatfield’s motion.
The district court found that none of the photographs constituted
child pornography on their own, but when the photographs on a
page were considered part of a single collage, each page constituted
child pornography under the Act. Specifically, the district court
concluded that the pages reflected the “visual depiction of nudity or
partial nudity for the purpose of causing sexual arousal of any
person” within the meaning of section 76-5b-103(10)(f). The district
court also concluded that the statutory definitions of child
pornography in sections 76-5b-103(1) and 76-5b-103(10)(f) were
constitutional.
¶12 Hatfield then entered a Sery plea of no contest to all four
counts of sexual exploitation of a minor. The district court sentenced
Hatfield to one to fifteen years in prison on each charge of sexual
exploitation of a minor. 4 The court ordered that the sentences run
concurrently. The court of appeals certified the case to us for
decision.
ISSUES AND STANDARD OF REVIEW
¶13 As noted above, this appeal presents two primary issues.
The first involves the Act’s interpretation. “A district court’s
interpretation of a statute is a question of law, which we . . . review
for correctness.” Bell Canyon Acres Homeowners Ass’n v. McLelland,
2019 UT 17, ¶ 7, 443 P.3d 1212 (alteration in original) (citation
omitted) (internal quotation marks omitted).
¶14 The second asks if there was sufficient evidence to sustain
four counts of sexual exploitation of a minor. Hatfield appeals the
district court’s conclusion that sufficient evidence existed to convict
him. Hatfield claims he raised the issue by way of a Motion to Quash
the Bindover. The State argues that there was no bindover for the
district court to quash but acknowledges that Hatfield’s motion
sought dismissal of the charges based upon a lack of evidence. No
matter what label the motion bore, we review whether there was
sufficient evidence underlying the four sexual exploitation charges.
When “addressing a sufficiency of the evidence claim, we may
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4 Hatfield also pled guilty to three counts of accessing
pornographic or indecent material on school property. Hatfield
received credit for time served for these three counts.
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reverse only when it is apparent that there is not sufficient
competent evidence as to each element of the crime charged.” State v.
Bagnes, 2014 UT 4, ¶ 10, 322 P.3d 719 (citation omitted) (internal
quotation marks omitted).
ANALYSIS
I. Interpretation of the Act
¶15 The State charged Hatfield with sexual exploitation of a
minor based upon his possession of child pornography. Hatfield
claims that the district court misinterpreted the statute and that this
misinterpretation caused the district court to erroneously conclude
that the images he possessed met the statutory definition of child
pornography. This requires us to determine what the Act considers
child pornography.
¶16 When interpreting the meaning of a statute, we first look to
the statute itself. “The point of statutory interpretation is to
understand what the Legislature intended.” State v. Sanders, 2019 UT
25, ¶ 17, 445 P.3d 453. We do this by looking first to the statute’s
plain language. Id. “As we examine the text, ‘[w]e presume that the
legislature used each word advisedly.’” Id. (alteration in original)
(citation omitted). However, “we do not view individual words and
subsections in isolation; instead, our statutory interpretation
‘requires that each part or section be construed in connection with
every other part or section so as to produce a harmonious whole.’”
Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984(emphasis in original) (citation omitted).
¶17 We begin our interpretive task by “examining the ordinary
meaning or usually accepted interpretation” of the statutory
language. Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40,
¶ 18, 238 P.3d 1035. “When interpreting statutes, we look to the
ordinary meaning of the words, using the dictionary as our starting
point. After determining our starting point, we then must look to the
‘context of the language in question.’” State v. Lambdin, 2017 UT 46,
¶ 22, 424 P.3d 117 (citation omitted). 5
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5 We are also mindful of the Legislature’s stated intent and
purpose in creating the Act. The Act codifies a statement of intent
indicating that the Legislature concluded that “sexual exploitation of
a minor is excessively harmful to the minor’s physiological,
emotional, social, and mental development.” UTAH CODE § 76-5b-
102(1)(a). Further, the Legislature indicated that the purpose of the
(continued ...)
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STATE v. HATFIELD
Opinion of the Court
A. Sexual Exploitation of a Minor and Child Pornography
¶18 A person is guilty of sexual exploitation of a minor if he,
among other things, “(i) knowingly produces, possesses, or
possesses with intent to distribute child pornography; or
(ii) intentionally distributes or views child pornography.” UTAH
CODE § 76-5b-201(1)(a).
¶19 Section 76-5b-103(1)(c) defines child pornography as “any
visual depiction . . . whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct, where . . .
the visual depiction has been created, adapted, or modified to
appear that an identifiable minor is engaging in sexually explicit
conduct.”
¶20 The Act defines sexually explicit conduct as actual or
simulated:
(a) sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex;
(b) masturbation;
(c) bestiality;
(d) sadistic or masochistic activities;
(e) lascivious exhibition of the genitals, pubic region,
buttocks, or female breast of any person;
(f) the visual depiction of nudity or partial nudity for
the purpose of causing sexual arousal of any
person;
(g) the fondling or touching of genitals, pubic region,
buttocks, or female breast; or
(h) the explicit representation of the defecation or
urination functions.
Id. § 76-5b-103(10).
¶21 The Legislature criminalized both actual and simulated
sexual conduct. See id. The Legislature did not separately define
“actual” when it provided that child pornography portrays actual or
simulated sexually explicit conduct. Nor did it tell us what “actual”
means when it later defined simulated sexually explicit conduct to
Act is to prohibit “the production, possession, possession with intent
to distribute, and distribution of materials that sexually exploit a
minor.” Id. § 76-5b-102(2).
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require duplication of an “actual act.” See id. § 76-5b-103(11). But we
can construe “actual” consistent with its ordinary meaning.
¶22 “Actual” means “existing in fact or reality” or “not false or
apparent.” Actual, MERRIAM-WEBSTER DICTIONARY ONLINE,
www.merriam-webster.com/dictionary/actual; see also Actual,
WEBSTER’S NEW INTERNATIONAL DICTIONARY (2d ed. 1934) (defining
actual as “[e]xisting in act or reality; really acted or acting or being;
in fact; real”); Actual, AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE (5th ed. 2011) (defining actual as “[e]xisting in
reality and not potential, possible, simulated, or false; [b]ased on
fact”); Actual, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(2002) (defining actual as “existing in fact or reality; really acted or
acting or carried out”). Hence, “actual” sexually explicit conduct
requires that one of the activities listed in subsection 103(10)
occurred and that the minor engaged in the activity.
¶23 The Act defines “simulated sexually explicit conduct” as “a
feigned or pretended act of sexually explicit conduct which
duplicates, within the perception of an average person, the
appearance of an actual act of sexually explicit conduct.” UTAH CODE
§ 76-5b-103(11) (emphases added). Simulated sexually explicit
conduct requires that even though the depiction does not record one
of the activities in subsection 103(10), an average person would
perceive the image as duplicating an “actual act” of sexually explicit
conduct.
¶24 “Duplicate” is ordinarily understood to mean “to make a
copy of” or “to produce something equal to.” Duplicate, MERRIAM-
WEBSTER DICTIONARY ONLINE, https://www.merriam-
webster.com/dictionary/duplicate; see also Duplicate, WEBSTER’S NEW
INTERNATIONAL DICTIONARY (2d ed. 1934) (defining duplicate (v) as
“[t]o double; to fold; [t]o render double; to make a duplicate, copy,
or transcript of”; and duplicate (n) as “[t]hat which exactly resembles
or corresponds to something else; another, correspondent to the first;
hence, a copy; transcript; counterpart”); Duplicate, AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2011)
(defining duplicate (v) as “[t]o make an exact copy of; to make
twofold; double”; and duplicate (adj) as “[i]dentically copied from
an original”); Duplicate, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY (2002) (defining duplicate (v) as “to be or make a
duplicate, copy, or transcript of”; and duplicate (n) as “either of two
things that exactly resemble or correspond to each other”).
¶25 Thus, subsection 103(11)’s reference to a simulated actual act
requires that the image reflect an act that did not in fact happen but
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Opinion of the Court
would cause an average person to conclude that the sexually explicit
conduct appears to have occurred. See UTAH CODE § 76-5b-103(11).
Therefore, the Act prohibits all visual depictions of identifiable
minors 6 engaging in an actual act of sexually explicit conduct, as
well as those simulated acts that appear as if the minors were
engaging in an actual act of sexually explicit conduct.
¶26 In short, section 103 defines child pornography as sexually
explicit conduct involving identifiable minors. Id. § 76-5b-103. This
conduct can be actual or simulated. Id. § 76-5b-103(10). Actual
conduct requires a depiction of one of subsection 103(10)’s activities
that actually occurred and requires that the minor engaged in that
activity. See id. Simulated conduct requires the duplication of an
actual act such that the average person would believe that the
activity appears to have occurred. See id. § 76-5b-103(11). This
reading of the Act both reflects the plain language and keeps faith
with the Legislature’s stated intent and purpose of protecting minors
from the physiological, emotional, and social harm that child
pornography inflicts. Id. § 76-5b-102.
B. Hatfield’s Arguments
¶27 Hatfield argues that the district court erred in four ways
when it interpreted the Act. First, Hatfield contends that the district
court erred by looking at each collage as a whole and not as
individual images. Second, Hatfield argues that the district court
erred by concluding that the images had been created for the
purpose of causing sexual arousal of any person. Third, Hatfield
posits that the district court erred in determining that subsection
103(10)(f) of the Act applied to images of clothed minors. Finally,
Hatfield argues that the district court erred by not employing the
constitutional avoidance canon of statutory construction to read the
Act in a manner that kept any of the collages from falling into the
Act’s orbit.
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6 The inclusion of the words “identifiable minor” in the Act
requires that an actual child be portrayed in the image. That
language appears to be a nod to the United States Supreme Court’s
decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). There,
the Court found that the prohibition of non-obscene images
depicting “virtual child pornography”—images created without
using actual or identifiable minors—violated the First Amendment.
Id. at 241; see also State v. Alinas, 2007 UT 83, ¶¶ 12–15, 171 P.3d 1046.
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¶28 Hatfield first contends that when determining whether
something is child pornography under the Act, the material “must
be considered as a part of the whole work.” But, it appears that by
“whole work” Hatfield refers to the work from which the images
were cut and not the “whole work” into which they were pasted. For
example, Hatfield argues that the pages containing nude children
cannot be child pornography because they were taken from an “art
and photography book” where the child had been “posed nude for
the purpose of artistic study.”
¶29 The district court found that “[n]one of these images, taken
alone, constitute child pornography.” But, the district court also
found that, “cut-and-pasted together, the pages constitute child
pornography,” and specifically that the images showed the minor
engaged in the sexually explicit conduct of “the visual depiction of
nudity or partial nudity for the purpose of causing sexual arousal of
any person.”
¶30 The district court did not err in considering the images as a
“cut-and-pasted” collage. The Act specifically states that “[i]n
determining whether material is in violation of this chapter, the
material need not be considered as a whole, but may be examined by
the trier of fact in part only.” Id. § 76-5b-301(1) (emphasis added).
This statement presumes that the trier of fact can consider the
“material” as a “whole.” Thus, the district court did not err in
concluding that images that might not meet the definition of child
pornography in one context, could in another. Even assuming that
Hatfield is right about the images’ origins and that the images in
their original context did not depict nudity for the purpose of sexual
arousal, the inclusion of an image in a collage could convert the
image into one depicting child nudity for the purpose of causing
sexual arousal. See, e.g., id. § 76-5b-103(1) (stating “any visual
depiction” includes images “made or produced by electronic,
mechanical, or other means”).
¶31 Hatfield next contends that the district court erred in
concluding that his collage pages depicted nudity for the purpose of
causing sexual arousal of any person. Hatfield relies on the so-called
Dost factors to support his argument. See United States v. Dost, 636
F. Supp. 828, 832 (S.D. Cal. 1986). These factors are 1) “whether the
focal point of the visual depiction is on the child’s genitalia or pubic
area”; 2) “whether the setting of the visual depiction is sexually
suggestive”; 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
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STATE v. HATFIELD
Opinion of the Court
willingness to engage in sexual activity”; and 6) “whether the visual
depiction is intended or designed to elicit a sexual response in the
viewer.” Id.; see also State v. Morrison, 2001 UT 73, ¶ 18, 31 P.3d 547.
¶32 We borrowed the Dost factors from the Southern District of
California. See Dost, 636 F. Supp. at 832. And we applied them to
help us determine whether a depiction was designed “for the
purpose of sexual arousal of any person.” See Morrison, 2001 UT 73,
¶¶ 18, 20. We injected these factors into our jurisprudence with a
healthy dose of caveat. We noted that because Dost involved the
lascivious exhibition of genitals or pubic areas that some of the
factors may not be helpful. See id. We also specifically cautioned that
“not all of [the factors] are applicable.” Id. ¶ 20; see also State v. Jordan,
2018 UT App 187, ¶ 42 n.10, 438 P.3d 862 (finding counsel was not
ineffective for failing to object that the images were sexually explicit
based on the Dost factors because criminal liability turned on the
depiction of nudity for the purpose of causing sexual arousal of any
person). And we warned that the “inquiry will always be
case-specific” and that there “may be other factors that are equally if not
more important” in determining whether an image is intended or
designed to elicit a sexual response in the viewer. Morrison, 2001 UT
73, ¶ 18 (emphasis in original) (quoting United States v. Amirault, 173
F.3d 28, 32 (1st Cir. 1999)). 7
¶33 Hatfield acknowledges these caveats, but nevertheless
argues that when viewed through the Dost lens, the collages are not
child pornography. Primarily, Hatfield contends that because the
images of the girls are not sexually suggestive, some of the girls are
clothed, and the girls are not in unnatural poses, application of the
Dost factors leads to the conclusion that the images are not
pornographic.
¶34 The district court did not analyze the collage pages with
reference to the Dost factors. But this does not automatically translate
into error. The Dost factors are a tool that a district court can use to
assist in answering the ultimate question: does the material fall
under the Act’s definition of child pornography? As analyzed more
fully below, for the two counts based on the nudity of a minor, the
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7 As we have done in other contexts, we stress that our reference
to the Dost factors was not meant to serve as a definitive multifactor
test or checklist to determine whether an image constitutes child
pornography. See, e.g., Met v. State, 2016 UT 51, ¶¶ 89–90, 388 P.3d
447; State v. Cuttler, 2015 UT 95, ¶¶ 2, 18–21, 367 P.3d 981.
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district court correctly concluded that the images were designed to
promote sexual arousal. For the images involving clothed minors,
the district court erred. As evidenced below, we can reach those
conclusions without resorting to Dost. Thus, the district court did not
err simply by failing to utilize the Dost factors in its analysis.
¶35 Hatfield next contends that the district court erred by
interpreting the Act in a fashion that did not require the child to be
nude when she engages in “the visual depiction of nudity or partial
nudity for the purpose of causing sexual arousal.” 8 See UTAH CODE
§ 76-b-103(10)(f).
¶36 Subsection 103(1)(c) requires that the minor “appear” to be
“engaging in sexually explicit conduct.” Engage is defined as “[t]o
involve oneself or become occupied; participate.” Engage, AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2012); see
also Engage, MERRIAM-WEBSTER DICTIONARY ONLINE,
https://www.merriam-webster.com/dictionary/engage (defining
“engage” as “to do or take part in something—used with in”).
Participation or taking part in something requires more than just
being present or nearby the activity. Accordingly, the Act’s plain
language requires that to “engage in” nudity the minor must be
nude.
¶37 Thus, we agree with Hatfield that a minor cannot “appear”
to be engaging in the depiction of nudity without being or seeming
to be nude. 9 Therefore, subsection 103(10)(f)—which includes “the
visual depiction of nudity or partial nudity for the purpose of
causing sexual arousal of any person” in the definition of “sexually
explicit conduct”—does not apply to fully clothed minors. 10 Thus, as
explained more fully below, the district court erred when it applied
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8 The State appears to agree implicitly with Hatfield on this point.
Although the State does not concede that the district court erred in
applying subsection 76-5b-103(10)(f) to collages containing images of
clothed children, the State contends that we should analyze the
images under subsection (b)—which includes masturbation in the
Act’s definition of sexually explicit conduct—and subsection (g)—
which includes “the fondling or touching of the genitals, pubic
region, buttocks, or female breast” in the definition.
9 See supra ¶ 27.
10To be clear, the minor need not be nude for the other parts of
subsection 103(10) to apply.
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STATE v. HATFIELD
Opinion of the Court
an incorrect interpretation of subsection 103(10)(f) to images of
clothed minors.
¶38 Lastly, Hatfield argues that the Act is ambiguous and we
should employ the constitutional avoidance canon to give the Act a
meaning that would not criminalize Hatfield’s possession of the
collages. Hatfield alleges the Act, if applied to his collages, is
overbroad under the First Amendment and would sweep in
protected speech. He also contends the Act is vague under the
federal due process clause and does not provide adequate warning
as to what conduct or materials are prohibited. Hatfield implores us
to avoid these potential issues by interpreting the Act in a manner
that leaves his collage pages out of the Act’s grasp.
¶39 The mere presence of potential constitutional issues does
not trigger the canon of constitutional avoidance. “Constitutional
avoidance rests ‘on the reasonable presumption’ that where there is
more than one plausible interpretation of a statute, the legislature
‘did not intend the [interpretation] which raises serious
constitutional doubts.’” State v. Garcia, 2017 UT 53, ¶ 59, 424 P.3d 171(alteration in original) (quoting Clark v. Martinez, 543 U.S. 371, 381
(2005)). “Principles of constitutional avoidance are not an invitation
for us to break faith with the statute’s text.” Id. “Even when we are
trying to save a statute from constitutional concerns, we are not at
liberty to rewrite the statute . . . . Our job is to interpret the statute as
the legislature wrote it.” Id.¶40 We first look to see if the Act is ambiguous; if it is
unambiguous, the analysis ends, and the plain language prevails. If,
on the other hand, the statute lends itself to multiple plausible
interpretations, we look to see if there is a plausible reading that
avoids the constitutional issue. See Clark, 543 U.S. at 385. Stated
differently, to invoke the canon, Hatfield must convince us that there
are two plausible readings of the statute.
¶41 Hatfield has failed to do this. Hatfield focuses his ambiguity
argument on the word “appear” in section 76-5b-103. Hatfield
contends that the Legislature may have employed “appear” in one of
two different ways. First, Hatfield proposes that the plain language
of the statute indicates that to “appear” means that it “must look like
or seem to be that the child is participating in the visual depiction of
nudity for the purpose of causing sexual arousal.” In other words,
the sexual act must appear realistic. Second, Hatfield suggests that
“appear” could also mean that a person could look at an image and
understand what it is trying to depict without it looking realistic or
the event actually having occurred. And Hatfield posits that the
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second reading could lead to unconstitutional applications of the
statute.
¶42 We do not agree with Hatfield that the Legislature’s use of
the undefined “appear” renders the statute ambiguous. This is
because, as explained above, we conclude that the Act
unambiguously requires the depiction of an act of sexually explicit
conduct that in reality occurred or a depiction of simulated sexually
explicit conduct that an average person would perceive as something
that appears to have occurred. See supra ¶¶ 22–26.
¶43 Because we are not presented with two plausible
constructions, we need not engage the canon of constitutional
avoidance nor address the validity of the constitutional issues
Hatfield alleges. See Steiner v. Utah State Tax Comm’n, 2019 UT 47,
¶ 60 n.21, 449 P.3d 189 (stating that the canon of constitutional
avoidance applies only when the statute is genuinely susceptible to
two constructions and finding the statute at issue was
unambiguous); see also Utah Dep’t of Transp. v. Carlson, 2014 UT 24,
¶ 24, 332 P.3d 900 (“Where possible, we decide cases ‘on the
preferred grounds of statutory construction,’ thereby avoiding
analysis of underlying constitutional issues ‘unless required to do
so.’” (citation omitted)).
II. Hatfield’s Collages
¶44 Hatfield next contends that there was insufficient evidence
to convict him on the four charges of exploitation of a minor. To
prove a claim of sexual exploitation of a minor, the State must show
Hatfield “knowingly produce[d], possesse[d], or possesse[d] with
intent to distribute child pornography” or that he “intentionally
distribute[d] or view[ed] child pornography.” UTAH CODE § 76-5b-
201(1)(a). The depictions of child pornography must be “created,
adapted, or modified to appear that an identifiable minor is
engaging in sexually explicit conduct” as defined in the Act. Id. § 76-
5b-103(1), (10), (11).
¶45 As detailed above, the Act requires that child pornography
depict identifiable minors. An identifiable minor is one who “was a
minor at the time the visual depiction was created, adapted, or
modified” and “who is recognizable as an actual person by the
person’s face, likeness, or other distinguishing characteristic, such as
a birthmark, or other recognizable feature.” Id. § 76-5b-103(3).
Hatfield does not contend that the minors whose images appear in
the collages are not identifiable.
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STATE v. HATFIELD
Opinion of the Court
¶46 There is also no dispute that Hatfield possessed and viewed
the pornographic images in his scrapbook. And the images qualify as
“any visual depiction” as they are a collage of photographs and
pictures made by mechanical or other means. Id. § 76-5b-103(1).
¶47 The remaining issue is whether these minors are engaging
in or appear to be engaging in sexually explicit conduct. The State
charged Hatfield under the Act’s subsection that criminalizes the
possession of images “created, adapted, or modified to appear that
an identifiable minor is engaging in sexually explicit conduct.” Id.
§ 76-5b-103(1)(c). The sexually explicit conduct underlying counts
one and three is the “visual depiction of nudity or partial nudity for
the purpose of causing sexual arousal of any person.” Id. § 76-5b-
103(1)(c), (10)(f). As such, to convict on counts one and three, the
State must show that the images 1) depict actual nudity or partial
nudity of a minor and 2) did so for the purpose of causing sexual
arousal. See State v. Mills, 2012 UT App 367, ¶ 41, 293 P.3d 1129. As
to counts two and four, the State must show the images “duplicate[ ],
within the perception of an average person, the appearance of an
actual act” of masturbation or the fondling or touching of genitals.
UTAH CODE § 76-5b-103(10)(b), (10)(g), (11).
A. Count One: First Page
¶48 The district court found the First Page was arranged to
appear that an identifiable minor was engaging in sexually explicit
conduct—nudity for the purpose of causing sexual arousal. See id.
§ 76-5b-103(10)(f). The First Page contains a cut-out of an adult male
with an erect penis and an open hand pasted above the male figure.
There is also a photograph of a nude pre-pubescent girl facing
forward. This meets subsection 103(10)(f)’s definition of “nudity”
since the girl is in a state of undress and her genitals, pubic region,
and breasts are “less than completely and opaquely covered.” Id.
§ 76-5b-103(8).
¶49 We agree with the district court that the First Page was
created for the purpose of causing sexual arousal. Here, the nude
minor was placed next to other sexually explicit images. This causes
us to agree with the district court and conclude there was sufficient
evidence that the depiction of the nude minor on the scrapbook
collage page was for the purpose of causing sexual arousal. The
district court did not err in denying Hatfield’s motion as to count
one regarding the First Page.
B. Count Two: Second Page
¶50 The district court found the Second Page was arranged to
appear that an identifiable minor was engaging in sexually explicit
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conduct, namely nudity for the purpose of causing sexual arousal of
any person. See id. § 76-5b-103(10)(f). However, the Second Page does
not depict a nude or partially nude minor. As described above, for
subsection 103(10)(f) to apply, the minor must “engage” in the
nudity by being nude. Because no minor is engaged in nudity on the
Second Page, the district court erred in finding that the page met the
Act’s definition of child pornography.
¶51 The State implicitly acknowledges this but argues that we
can affirm on any basis apparent in the record and that it is apparent
that the collage is child pornography under the Act because it
reflects simulated masturbation or fondling of genitals. See id. § 76-
5b-103(10)(b), (g). To prevail on this argument, the State would need
to show that the image “duplicates, within the perception of an
average person, the appearance of an actual act” of masturbation or
the fondling or touching of genitals. Id. § 76-5b-103(10)(b), (10)(g),
(11).
¶52 The Second Page contains a partial profile of an adult male
on the left side of the page, with his erect penis visible from his
unzipped pants. A young, fully-clothed girl’s hand is in a reaching
motion and pasted over the man’s penis so she appears to be holding
his penis. Above the girl is a typed text bubble that says, “Is this
right, mister?” In the bottom left corner are the typed words, “Teach
her well.”
¶53 The Second Page does not meet the requirements of
“simulated sexually explicit conduct” because a reasonable viewer
would not believe that the image depicts an “actual act.” See id. § 76-
5b-103(11). The cut and pasted collage is rudimentary. The minor girl
is plainly not in the same location as the man. A reasonable viewer
would not perceive that the girl was actually engaged in the
depicted conduct. In short, the image does not duplicate the
appearance of the actual act of masturbation or fondling or touching
of the genitals. This does not meet the definition of child
pornography under the Act. Therefore, we reverse as to count two.
C. Counts Three and Four: Third Page
¶54 The district court found the Third Page was arranged to
appear that an identifiable minor was engaging in sexually explicit
conduct, namely nudity for the purpose of causing sexual arousal of
any person. See id. § 76-5b-103(10)(f). The Third Page contains
multiple images including photographs of two clothed girls which
were cut and pasted in the center of the page. One of the girls has
been positioned so that she appears to have her arms around an erect
penis that is taller than she. Pasted in the upper corners are images
15
STATE v. HATFIELD
Opinion of the Court
of adults having sex. The bottom right corner contains a photograph
of a nude pre-pubescent girl. 11
1. Count Three
¶55 We presume count three relates to the image of the nude
minor on the Third Page with many other pornographic images. The
photograph of the nude minor constitutes “actual” sexually explicit
conduct. Id. § 76-5b-103(10)(f). The photograph depicts nudity
because the girl’s genitals, pubic region, and breasts are less than
completely and opaquely covered. Id. § 76-5b-103(8).
¶56 We agree with the district court that the depiction of the
nude child is for the purpose of causing sexual arousal. Given the
juxtaposition of the image of the nude minor with images of adults
engaged in sexual activities, there was sufficient evidence to permit
the court to conclude that the purpose of the depiction of the nude
girl on the page was to cause sexual arousal. We affirm as to count
three.
2. Count Four
¶57 We presume count four relates to the image of the clothed
girl appearing to hug an enlarged penis. The State argues this is
simulated masturbation and fondling or touching of the genitals. See
id. § 76-5b-103(10)(b), (g). To prove count four, the State must show
the image “duplicates, within the perception of an average person,
the appearance of an actual act” of masturbation or the fondling or
touching of genitals. Id. § 76-5b-103(10)(b), (10)(g), (11).
¶58 This image does not duplicate an actual act of masturbation
or fondling or touching of the genitals. The girl does not appear to be
_____________________________________________________________
11 It is unclear exactly which count refers to which minor. As
previously stated, for the purposes of our review, we assume count
three relates to the naked minor included in the collage, and count
four relates to the clothed girl appearing to hug the penis. It is also
unclear from the charges and briefing if count four relates to just one
clothed girl or both clothed girls. Count four discusses a page
“which depicts multiple lascivious exhibitions of the genitals of
several individuals, two female children.” Hatfield briefed the issue
addressing only the fully clothed girl appearing to hug the penis.
The State briefed the issue regarding simulated masturbation
involving “two of the girls” and the “girls’ portrayed fondness for a
penis.” Because both girls are clothed, the distinction does not
change our analysis.
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in the same location as the penis. And given the relative sizes of the
images in the collage, it would be impossible for an average person
to perceive that the girl is engaged in an actual act of masturbation.
Even the State concedes that “no one would think that the two girls
are masturbating an actual oversized penis.”
¶59 The State contends that the collage nevertheless meets the
Act’s definition of child pornography because “the average person
would see what appears to be an act of masturbation . . . .” But the
Act requires more than this; it requires the depiction of an “actual
act” of sexually explicit conduct. 12
¶60 The girl in the collage does not appear to be engaged in the
actual act of hugging or fondling the penis. This is impossible given
the relative proportion of the images; the girl is smaller than the
penis by a couple of feet. Since this image does not depict or
duplicate the appearance of the actual act of masturbation or
fondling or touching the genitals, it does not meet section 76-5b-
103(11)’s definition of “simulated sexually explicit conduct.” We
reverse the district court’s decision that sufficient evidence existed to
convict Hatfield on count four.
CONCLUSION
¶61 The Act requires that an image depicting child pornography
be “created, adapted, or modified to appear that an identifiable
minor is engaging in sexually explicit conduct.” UTAH CODE § 76-5b-
103(1)(c). This can be actual or simulated conduct. Any “simulated
sexually explicit conduct” must duplicate “within the perception of
an average person, the appearance of an actual act of sexually explicit
conduct.” Id. § 76-5b-103(11) (emphasis added).
¶62 The images underlying counts one and three depict actual
sexually explicit conduct, specifically, actual nudity of a minor “for
the purpose of causing sexual arousal of any person.” Id. § 76-5b-
103(10)(f). Thus, there was sufficient evidence to convict Hatfield on
_____________________________________________________________
12 To be clear, this image, like that on the Second Page, is
disturbing and undoubtedly exists for the purpose of sexual
stimulation. But we are not applying the standard that Justice Potter
Stewart propounded in his famous concurrence in Jacobellis v. Ohio,
378 U.S. 184 (1964) (Stewart, J., concurring). That is we cannot say
that these collages are child pornography just because we “know it
when [we] see it.” Id. at 197. We apply the definition the Act
provides, and under that standard, those collages cannot be
considered child pornography.
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STATE v. HATFIELD
Opinion of the Court
these counts, and we affirm the district court’s denial of Hatfield’s
motion and his conviction on those two counts of sexual exploitation
of a minor.
¶63 However, the second and fourth counts represent simulated
sexually explicit conduct. These images do not meet the Act’s
definition of simulated sexually explicit conduct because they do not
duplicate the appearance of an actual act of sexually explicit conduct.
We therefore reverse as to counts two and four and remand to the
district court.
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