State v. Bagnes , 322 P.3d 719 ( 2014 )

This opinion is subject to revision before final
publication in the Pacific Reporter.
2014 UT 4
IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
STATE OF UTAH,
Plaintiff and Appellee,
v.
BARTON JASON BAGNES,
Defendant and Appellant.
———————
No. 20100882
Filed February 14, 2014
———————
Third District, West Jordan
The Honorable Terry L. Christiansen
No. 091401264
———————
Attorneys:
Sean D. Reyes, Att‘y Gen., Ryan D. Tenney, Michelle I. Young,
Asst. Att‘ys Gen., Salt Lake City, for plaintiff
Joanna E. Landau, Kimberly A. Clark, Neal G. Hamilton,
Noella A. Sudbury, Salt Lake City, for defendant
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
———————
JUSTICE LEE, opinion of the Court:
¶1 Barton Bagnes challenges the sufficiency of the evidence to
support his convictions for lewdness involving a child and sexual
exploitation of a minor by distribution of child pornography.
Bagnes‘s offense was in dropping his pants in front of two young
girls, exposing a toddler-sized diaper he wore underneath, and in
distributing a flyer depicting images of diaper-clad children and
adolescents. We reverse. Bagnes‘s conduct was strange, and so-
cially inappropriate. But it did not fall to the level of criminal
lewdness or sexual exploitation under the criminal definition of
those terms as clarified below.
STATE v. BAGNES
Opinion of the Court
I
¶2 The charges against Bagnes arose out of an encounter he
had with two nine-year-old girls, T. and K., in May 2009. T. and K.
were riding their bikes in the neighborhood of their homes when
they saw Bagnes, who was sucking on a candy binky, and greeted
him. When Bagnes approached, the girls noticed that his shorts
were too low, exposing part of a diaper he was wearing under-
neath. T. asked Bagnes about the diaper, and Bagnes indicated
that he wore it ―for fun.‖ He also went on to suggest that he wore
the diaper because his ―parents never potty trained him‖ and he
would ―pee his pants‖ without one.
¶3 Bagnes then dropped his shorts to his knees, exposing the
diaper in full. It was a diaper made for 40+ pound toddlers with a
cartoon image of the Sesame Street character Elmo on the front.
Although Bagnes is a small man, the diaper was still too small,
leaving a ―large gap‖ between ―the front and back‖ of the diaper.
The diaper was held together by clear plastic tape. It did not com-
pletely cover his buttocks, but it did cover his pubic area and ap-
parently the girls ―couldn‘t see the back‖ of his diaper or his but-
tocks
¶4 Bagnes had a fanny pack with diapers and flyers inside.
The flyers contained images of children and adolescents wearing
diapers. In some of the images the children were shown in argua-
bly suggestive poses or lying on beds, but in none of them were
they engaged in sexual conduct or exposing their private parts.
On the back of the flyer the URLs of two websites were written in
colored crayon, and identified as ―cool kids sites‖ or ―best kids
sites.‖
¶5 One of the URLs was for a site that displayed suggestive
images of children in sheer underwear, with blinking stars cover-
ing their private parts. A click on those images would, in turn,
lead to pornographic images of children and adults. The other
URL was connected to a Russian search engine that then led to a
number of pornographic websites.
¶6 There is no indication in the record that the girls ever saw
or became aware of the contents of the websites in question. But
they did find one of the flyers, which Bagnes had folded into a
paper airplane, and they also asked him for another copy after
their encounter with him.
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Opinion of the Court
¶7 Bagnes gave K. another copy of the flyer, while suggesting
that she shouldn‘t tell her parents about it because they would
think it was a joke and laugh at her. T. and K. left the flyers at T.‘s
house, and T.‘s mother later discovered them. She then called the
police. And she called once more a few days later when T. and K.
saw Bagnes in the neighborhood again.
¶8 Bagnes was arrested and ultimately charged with two
counts of lewdness involving a child under Utah Code section 76-
9-702.5 and one count of sexual exploitation of a minor under
Utah Code section 76-5a-3(1)(a).1 At trial, Bagnes asserted that he
showed children his diaper in order to help those who might be
struggling with incontinence or similar problems. He also admit-
ted to having shown his diaper to children ―a lot,‖ while denying
that he did so for sexual gratification. As to his encounter with T.
and K., Bagnes acknowledged displaying his diaper, but denied
fully pulling down his shorts. Defense counsel also argued that
Bagnes‘s shorts may have accidentally fallen off because of their
poor fit.
¶9 The jury found Bagnes guilty on all three counts. Bagnes
filed this appeal, asserting three principal grounds for reversal: (a)
that the evidence was insufficient to sustain convictions for lewd-
ness or sexual exploitation of a minor; (b) that the district court
erred in declining to give a lesser-included offense instruction on
a charge of disorderly conduct; and (c) that the district court erred
in admitting testimony of five other children regarding similar in-
cidents involving Bagnes.
¶10 We reach only the first of these three grounds, because we
deem it sufficient to sustain a judgment of reversal. In addressing
a sufficiency of the evidence claim, we may reverse only when ―it
is apparent that there is not sufficient competent evidence as to
1 The lewdness statute has been amended, and the relevant sex-
ual exploitation provisions have been amended and renumbered,
since the time of Bagnes‘s convictions. See UTAH CODE § 76-9-702.5
(lewdness) (amended 2011); UTAH CODE § 76-5b-201 (sexual ex-
ploitation of a minor) (amended 2011); UTAH CODE § 76-5b-103
(definitions) (amended 2011). None of the amendments appear to
affect our analysis, however, and we cite to the statutes in effect at
the time of Bagnes‘s convictions.
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STATE v. BAGNES
Opinion of the Court
each element of the crime charged.‖ State v. Boyd, 2001 UT 30,
¶ 13, 25 P.3d 985 (internal quotation marks omitted). Our review
of the evidence itself is deferential. See State v. Dunn, 850 P.2d
1201, 1212 (Utah 1993). We may reverse a verdict ―only when the
evidence, so viewed, is sufficiently inconclusive or inherently im-
probable such that reasonable minds must have entertained a rea-
sonable doubt that defendant committed the crime for which he
or she was convicted.‖ Id. At the same time, a review of a suffi-
ciency of the evidence argument may also present a threshold
question of law—of the elements of the underlying offense. And
on that question, of course, our review is non-deferential, as our
interpretation of the terms of the criminal law is ours to make de
novo. State v. Parduhn, 2011 UT 57, ¶16, 266 P.3d 765.
II
¶11 The two counts of lewdness involving a child arose under
Utah Code section 76-9-702.5. That provision criminalizes certain
forbidden conduct intentionally or knowingly done ―in the pres-
ence of a child who is under 14 years of age.‖ UTAH CODE § 76-9-
702.5(1). The forbidden acts include ―sexual intercourse or sodo-
my‖; exposure of the ―genitals, the female breast . . . the buttocks,
the anus, or the pubic area‖; masturbation; causing a child to ex-
pose herself; and ―any other act of lewdness.‖2 Id.
2 The statute provides in full as follows:
(1) A person is guilty of lewdness involving a child if
the person under circumstances not amounting to
rape of a child, object rape of a child, sodomy upon a
child, sexual abuse of a child, aggravated sexual
abuse of a child, or an attempt to commit any of those
offenses, intentionally or knowingly does any of the
following to, or in the presence of, a child who is un-
der 14 years of age:
(a) performs an act of sexual intercourse or
sodomy;
(b) exposes his or her genitals, the female
breast below the top of the areola, the buttocks, the
anus, or the pubic area:
(i) in a public place; or
(ii) in a private place:
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Opinion of the Court
¶12 Bagnes was charged under this latter provision—with an
―other act of lewdness.‖ Thus, the threshold question for us con-
cerns the definition of this term. We then consider the sufficiency
of the evidence to sustain a conviction under this definition.
A
¶13 The term ―lewdness‖ is not defined by statute. We must ac-
cordingly look elsewhere to derive its meaning—to either the or-
dinary meaning of the word,3 or to its technical sense as a legal
term of art.4
¶14 A starting point for our assessment of ordinary meaning is
the dictionary. See Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT
33, ¶ 19, 304 P.3d 851. The dictionary is ―useful in cataloging a
range of possible meanings that a statutory term may bear.‖ Id. ―It
provides ‗an historical record, not necessarily all-inclusive, of the
meanings which words in fact have borne.‘‖ Id. Yet the dictionary
alone is often inadequate to the task of interpretation, as the range
of possible meanings it identifies may encompass both parties‘
positions.
¶15 That is the case here. A lewd act is sometimes defined in
general terms of impropriety—as something vulgar, base, or vile.
See THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE
(A) under circumstances the person should
know will likely cause affront or alarm; or
(B) with the intent to arouse or gratify the sex-
ual desire of the actor or the child;
(c) masturbates;
(d) under circumstances not amounting to sex-
ual exploitation of a child under Section 76-5a-3,
causes a child under the age of 14 years to expose his
or her genitals, anus, or breast, if female, to the actor,
with the intent to arouse or gratify the sexual desire of
the actor or the child; or
(e) performs any other act of lewdness.
UTAH CODE § 76-9-702.5(1).
3 See State v. Canton, 2013 UT 44, ¶ 13, 308 P.3d 517; Hi-Country
Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 19, 304 P.3d 851.
4 See Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647.
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STATE v. BAGNES
Opinion of the Court
1106 (2d ed. 1987) (defining lewd as ―base, vile, or wicked, esp. of
a person‖); WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY
1301 (2002) (defining the term as ―base, evil, wicked—used of per-
sons and their conduct‖). Alternatively, the term is also defined
more narrowly to be limited to matters of a sexual, lascivious na-
ture. See THE RANDOM HOUSE DICTIONARY OF THE ENGLISH
LANGUAGE 1106 (2d ed. 1987) (―[i]nclined to, characterized by, or
inciting to lust or lechery; lascivious‖); WEBSTER‘S THIRD NEW
INTERNATIONAL DICTIONARY 1301 (2002) (―[s]exually unchaste or
licentious: dissolute, lascivious‖). The distinction may be signifi-
cant here (as developed more below), as Bagnes‘s conduct is more
easily characterized as generally improper than as lascivious.
¶16 We read the statute to incorporate the narrower notion of
lascivious lewdness—of lewdness involving misconduct of a sex-
ual nature. First, the more general notion of lewdness as mere
general baseness or vulgarity is identified in the cited dictionaries
as obsolete. See THE RANDOM HOUSE DICTIONARY OF THE ENGLISH
LANGUAGE 1106 (2d ed. 1987) (identifying general definitions of
lewd as obsolete); WEBSTER‘S THIRD NEW INTERNATIONAL
DICTIONARY 1301 (2002) (same). Thus, because our role in inter-
preting the statute is to give its words the meaning they would
have had in the minds of the general public at the time of enact-
ment, see Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d
465, we can discard mere obsolete notions of the statutory text as
beyond its reach.
¶17 Second, a statutory standard turning on subjective assess-
ments of general impropriety would implicate constitutional con-
cerns. The specific problem here is one of vagueness. See In re
L.G.W., 641 P.2d 127, 131 (Utah 1982) (plurality opinion of Oaks,
J.) (noting that ―[u]ncertainties about the perimeters of the com-
mon-law definition of lewdness have . . . resulted in some lewd-
ness statutes being held void for vagueness‖). If the criminality of
a defendant‘s act depends on each judge‘s—or each jury‘s—
private sense of the bounds of social propriety, the due process
guarantee of notice will be jeopardized. The more limited, con-
temporary notion of lewdness avoids that constitutional concern,
and is thus preferred on constitutional avoidance grounds.
¶18 Third, the structure of the statute reinforces this construc-
tion. The phrase ―any other act of lewdness‖ does not appear in
isolation. It is a catchall term at the end of an exemplary list. Such
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Opinion of the Court
phrasing implicates a semantic canon of construction—ejusdem
generis—that captures a principle of ordinary usage under a fancy
Latin name. In essence, this canon posits that general catchall
terms appearing at the beginning or end of an exemplary statuto-
ry list are understood to be informed by the content of the terms
of the list. See State ex rel. A.T., 2001 UT 82, ¶ 12, 34 P.3d 228. And
as applied here, the canon reinforces a more limited notion of
lewdness in the sense of lascivious misconduct of a sexual nature.
¶19 Under the ejusdem generis canon, catchall elements of statu-
tory lists may be ―understood as restricted to include things of the
same kind, class, character, or nature as those specifically enu-
merated, unless there is something to show a contrary intent.‖ Id.
Here the statute‘s enumerated acts of lewdness (sex acts, exposure
of private parts, masturbation) suggest a limiting principle for the
catchall ―any other act of lewdness.‖ The limiting principle is this:
To qualify as an ―other act of lewdness,‖ the defendant‘s conduct
must be ―similar in kind‖—involving an element of lascivious-
ness—to acts enumerated in the statute. Id. ¶ 13. That does not
mean that catchall ―lewdness‖ must be ―as seriously offensive as‖
the listed acts; but the charged conduct must be ―similar in kind,
class, character, or nature as the others.‖ Id.
¶20 The facts and holding of A.T. (a case decided under a paral-
lel criminal provision for lewdness involving a person 14 years of
age or older, Utah Code section 76-9-702) illustrate the point. In
A.T. we upheld the extension of the term ―other act of lewdness‖
to circumstances in which the defendant ―stood in public view, on
the walk in front of the convenience store,‖ and ―with the intent to
offend his identified victim, clutched at his clothed genitals, rub-
bing them up and down in a sexually suggestive manner for ten
to fifteen seconds like ‗someone playing with themselves.‘‖ Id.
¶ 10. In affirming A.T.‘s conviction, we endorsed a limited con-
struction of lewdness, informed by the ejusdem canon. Specifically,
we held that the catchall category of lewdness ―includes the simu-
lation of masturbation in a public place with the intent to offend,
just as it would the simulation of sexual intercourse or sodomy
under the same circumstances.‖ Id. ¶ 13.
¶21 Finally, and perhaps most importantly, the statute‘s terms
sustain this same interpretation. The statutory definition of lewd-
ness is circular: Lewdness is defined to encompass not just the
enumerated acts but ―any other act of lewdness.‖ This circularity
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STATE v. BAGNES
Opinion of the Court
suggests that the legislature ―conveyed its acceptance‖ of a ―wide-
ly shared meaning‖ of the notion of lewdness. Hughes Gen. Con-
tractors, Inc. v. Utah Labor Comm’n, 2014 UT 3, ¶ 14, __ P.3d __ (cit-
ing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992)).
And the common-law, term-of-art notion of lewdness incorpo-
rates a principle of lasciviousness. It defines lewdness as ―a specif-
ic kind of public indecency, defined as ‗unlawful indulgence of
lust.‘‖ 3 WHARTON‘S CRIMINAL LAW § 307 (15th ed. 1995); see also
In re L.G.W., 641 P.2d at 131 (―At common law, the crime of lewd-
ness consisted of the irregular indulgence of lust or other sexually
oriented behavior that is indecent or offensive in a public place.‖).
¶22 For all these reasons, we reject the broad notion of lewd-
ness generally encompassing any act of impropriety. We interpret
the statute instead to partake of a narrower notion of lewdness
marked by lasciviousness—in the common-law sense of the irreg-
ular indulgence of lust.
¶23 In other words, ―other act[s] of lewdness‖ encompasses
conduct similar to, but not falling precisely within, the enumerat-
ed acts. The similarity, moreover, must be in terms of lascivious-
ness or indulgence of lust. So the catchall term applies to conduct
that does not precisely amount to one of the enumerated lewd acts
but that ―dramatize[s], gesticulate[s], imitate[s], or . . . simulate[s]‖
such acts. State v. Piep, 2004 UT App 7, ¶ 9, 84 P.3d 850 (reversing
conviction for an ―other act of lewdness‖ in connection with
charge of display and discussion of book containing sexual con-
tent). Thus, simulated masturbation qualifies as an ―other act of
lewdness.‖ In re A.T., 2001 UT 82, ¶ 11. And a parallel principle
would extend to the other lewd acts enumerated by statute: A
simulated sex act could amount to an ―other act of lewdness,‖ as
could an act of virtual exposure of private parts (for example, by
an effective exposure through clothing that literally covers the
body but is sheer enough to enable its public perception).
B
¶24 We reverse for lack of sufficient evidence under this stand-
ard. There was no evidence at trial that Bagnes simulated any sex
act or masturbation, or that he effectively exposed his private
parts.
¶25 In exposing his diaper, Bagnes undoubtedly startled those
around him. A diaper in this context would certainly have been
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Opinion of the Court
perceived as unusual, even disturbing. But it in no way resulted in
the effective exposure of Bagnes‘s private parts. The closest it
came was in its failure to fully cover his buttocks; but the record
indicates that Bagnes never turned to show either of the girls the
backside of his diaper, so there was no virtual exposure of the but-
tocks.
¶26 A diaper is one of the most opaque, bulky articles of cloth-
ing one could imagine wearing as an undergarment. If virtual ex-
posure is the question, we cannot deem the public display of a di-
aper to qualify unless we are prepared to also criminalize a range
of other clothing that is much less opaque and far less obscuring
(such as certain swimwear, or even athletic or workout attire). The
difference between the former and the latter is social acceptabil-
ity—not lasciviousness in the form of virtual exposure. And the
statutory definition of the crime has nothing to do with the former
and only to do with the latter.
¶27 The State suggests that Bagnes‘s conduct betrays a sort of
―infantilism,‖ a sexual fetish that ―manifests itself in a desire to
wear diapers.‖ United States v. Mood, 741 F. Supp. 2d 821, 823 (E.D.
Mich. 2010). But there was no evidence of such a fetish presented
at trial. Nor does the evidence identify any words or gestures
from Bagnes that could be deemed to contextualize his conduct as
the enactment of a lascivious fetish. The closest Bagnes came is in
his distribution of the flyers, but the flyers are insufficient to
transform a mere oddity (display of an adult diaper) into a crimi-
nal act of lewdness (by virtual exposure).
¶28 A defendant‘s internal lust for sexual gratification alone is
insufficient to establish lewdness. The threshold question is
whether the defendant‘s conduct consisted of a lascivious act
amounting to the virtual exposure of his private parts. Absent any
indication of that, the private realization of a fetishized sexual fan-
tasy alone would not make his conduct criminal.
¶29 Finding no evidence of lascivious, virtual exposure, we re-
verse Bagnes‘s convictions for lewdness involving a child.
III
¶30 The sexual exploitation charge against Bagnes arose under
Utah Code section 76-5a-3(1). That provision defines sexual ex-
ploitation of a minor to encompass (a) the knowing production,
possession, distribution, or possession with intent to distribute of
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STATE v. BAGNES
Opinion of the Court
―child pornography‖; and (b) the knowing consent or permission
of a minor‘s parent or legal guardian for the minor to be sexually
exploited under subsection (a). UTAH CODE § 76-5a-3(1). ―Child
pornography‖ is defined by statute as ―the visual depiction . . . of
a minor engaging in sexually explicit conduct.‖ Id. § 76-5a-2(1).
And ―sexually explicit conduct‖ is defined, in turn, as ―actual or
stimulated‖:
(a) sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether be-
tween persons of the same or opposite sex;
(b) masturbation;
(c) bestiality;
(d) sadistic or masochistic activities;
(e) lascivious exhibition of the genitals or pubic area
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 the genitals, pubic
region, buttocks, or female breast; or
(h) the explicit representation of the defecation or
urination functions.
UTAH CODE § 76-5a-(2)(8)(a-h).
¶31 Bagnes‘s conviction rested on subsection (e). The State‘s ev-
idence and arguments to the jury centered on the assertion that he
had distributed ―child pornography‖ in that the diaper-clad chil-
dren on his flyers constituted a ―lascivious exhibition‖ of the ―pu-
bic region‖ of children.
¶32 The threshold legal question for us is the interpretation of
the statutory term ―lascivious exhibition.‖ We first provide our
construction of the statute and then consider Bagnes‘s challenge to
the sufficiency of the evidence thereunder.
A
¶33 Some of the same principles invoked in interpreting the
lewdness statute also extend to our construction of the ―lascivious
exhibition‖ element of the definition of child pornography incor-
porated in the sexual exploitation statute. As with lewdness, ―ex-
hibition‖ is defined to encompass a range of meanings. Dictionary
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definitions of the verb ―exhibit‖ include the notion of making
something visible, on one hand, or more generally manifesting or
flaunting it, on the other. See THE RANDOM HOUSE DICTIONARY OF
THE ENGLISH LANGUAGE 678 (2d ed. 1987) (defining ―exhibit‖ as
―to offer or expose to view,‖ ―to manifest or display,‖ or ―to place
on show‖); WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 796
(2002) (defining the term as ―to present to view‖ or to ―show off‖).
The noun ―exhibition‖ encompasses the same range of definitions.
See THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE
678 (2d ed. 1987) (defining ―exhibition‖ as ―an exhibiting, show-
ing, or presenting to view‖); WEBSTER‘S THIRD NEW
INTERNATIONAL DICTIONARY 796 (2002) (defining the term as ―an
act or instance of showing, evincing, or showing off‖).
¶34 Again, the choice between these alternative formulations
could make all the difference here, since (as explained more be-
low) Bagnes‘s flyers can more easily be understood to manifest or
flaunt the pubic region of diaper-clad children than to make those
regions visible. And again, a range of contextual cues point in fa-
vor of a more limited conception of this statutory term.
¶35 First and foremost is the principle of constitutional avoid-
ance. This statute implicates not just notice but also free speech
concerns, in that a broad construction of exhibition could raise not
just due process (void for vagueness) issues but also First
Amendment (overbreadth) considerations.5 These constitutional
5 See, e.g., Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) (strik-
ing down as overbroad two definitional provisions of Child Por-
nography Prevention Act of 1996 because they intruded on ex-
pression protected by the First Amendment); United States v.
Handley, 564 F. Supp. 2d 996, 1005–07 (S.D. Iowa 2008) (statutes
prohibiting the receipt or possession of what appears to be a mi-
nor engaged in obscene or sexually explicit conduct were imper-
missibly overbroad in violation of the First Amendment since they
did not contain limiting construction that would avoid the prohi-
bition of images that involved neither actual minors nor obsceni-
ty); DLS, Inc. v. City of Chattanooga, 914 F. Supp. 193, 197 (E.D.
Tenn. 1995) (city ordinance prohibiting dressing or undressing
within adult-oriented establishment so as to evince intent to
arouse sexual desires was likely to be deemed overbroad and void
for vagueness, for purposes of injunctive relief).
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STATE v. BAGNES
Opinion of the Court
concerns counsel against an overbroad construction of our crimi-
nal laws regulating visual displays of arguably communicative
acts.
¶36 Our Victorian past is well behind us. We no longer live in a
society where our style conventions and social mores clamor for
head-to-toe cover-up. The opposite is closer to the truth. Right or
wrong, our society roundly tolerates—and often encourages—
ever-less sartorial coverage of the human body. Whether at the
gym, the pool, the beach, or even the public square, we routinely
encounter those who would flaunt or manifest their (heretofore)
private parts, including their pubic regions. And depictions of
these sorts of ―exhibitions‖ are peppered across the pages of our
mainstream magazines, catalogs, newspapers, etc. (in print and
online).
¶37 Purveyors of this material would hardly expect to face
criminal charges for child pornography or sexual exploitation.
And if they were so charged, they could undoubtedly maintain
strong constitutional defenses under the Free Speech and Due
Process Clauses.6
¶38 We therefore reject a broad conception of exhibition in the
sense of mere flaunting or manifesting. To avoid the overbreadth
and vagueness problems noted above, we construe the term in-
stead in its more narrow sense of making the pubic region visible
to public perception.
¶39 In so doing, we do not limit exhibition to the display of out-
right nudity. That construction, in fact, is undermined by the stat-
utory text and structure, which defines child pornography to en-
compass not just depictions of ―lascivious exhibition‖ of the ―pu-
bic region‖ but also, separately, depictions of ―the visual depiction
of nudity or partial nudity for the purpose of causing sexual
6 See, e.g., Jenkins v. Georgia, 418 U.S. 153, 161 (1974) (reversing
conviction for distribution of film depicting nudity and in which
sexual conduct was ―understood to be taking place‖); Jacobellis v.
Ohio, 378 U.S. 184 (1964) (Brennan, J., plurality opinion) (reversing
obscenity conviction based on film that contained a single explicit
sex scene); United States v. Steen, 634 F.3d 822, 828 (5th Cir. 2011)
(reversing conviction for lascivious exhibition where defendant
filmed minor in tanning booth).
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arousal of any person.‖ UTAH CODE § 76-5a-2(8)(f). The implica-
tion is that ―lascivious exhibition‖ is distinct from a ―visual depic-
tion of nudity.‖
¶40 With this in mind, we construe exhibition in a manner in
line with our interpretation of lewdness above: A person exhibits
the pubic region (or another of the private parts identified in the
statute) in making that area virtually visible even if not entirely
naked. This standard would be met, for example, by a depiction of
a pubic region covered only by a nearly transparent fabric, leaving
the pubic region literally covered but virtually visible; or only by
an ultra-thin, form-fitting fabric, leaving the contours of the geni-
tals virtually discernible.7
¶41 Finally, we emphasize that a depiction of an exhibition
alone is not sufficient; the statute requires a depiction of a lascivi-
ous exhibition. On this important point we read the statute to in-
voke a limiting legal principle. Thus, we adopt a widely endorsed
standard of ―lascivious exhibition‖ as ―a depiction which displays
or brings forth to view in order to attract notice to the genitals or
pubic area of children, in order to excite lustfulness or sexual
stimulation in the viewer.‖ United States v. Knox, 32 F.3d 733, 745
(3d Cir. 1994). The standard ―look[s] to the materials themselves‖
rather than to the subjective intentions of those distributing the
image. State v. Morrison, 2001 UT 73, ¶ 10, 31 P.3d 547. It also con-
siders the relevant context, however, and that context includes an
appropriate concern for the ―sexual innocence of children,‖ rec-
ognizing that that ―which constitutes a ‗lascivious exhibition‘ of a
child[] will be different from that . . . of an adult[].‖ United States v.
Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).
¶42 In defining the concept of lascivious exhibition of the ―geni-
tals or pubic area‖ of a child, we adopt the widely endorsed Dost
test, as previously invoked by this court in Morrison. 2001 UT 73,
¶¶ 18–20. Dost does not establish a ―rigid test,‖ id. ¶ 18, but instead
identifies a range of factors relevant to the inquiry into lascivious-
ness. Those factors include: (1) ―whether the focal point of the vis-
7 See United States v. Wallenfang, 568 F.3d 649, 658 (8th Cir. 2009)
(upholding conviction for child pornography where photograph
featured young girl whose ―pubic area [was] clearly visible
through . . . pantyhose‖ (emphasis omitted)).
13
STATE v. BAGNES
Opinion of the Court
ual depiction is on the child‘s genitalia or pubic area‖; (2) ―wheth-
er 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 inap-
propriate attire, considering the age of a 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‖; and (6) ―whether the visual depiction is intended
or designed to elicit a sexual response in the viewer.‖ Dost, 636 F.
Supp. at 832.8
¶43 Dost provides a ―qualitative‖ framework to guide the in-
quiry into lasciviousness. Knox, 32 F.3d at 746 n.10. Thus, there is
no single dispositive factor under Dost, and no requirement that
any particular number of factors weigh in one direction or anoth-
er. See United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989). In-
stead Dost offers an illustrative list of considerations that may in-
form the court‘s determination of whether a particular depiction
crosses the line of ―lascivious exhibition.‖ The inquiry ultimately
focuses on the question whether the exhibition ―‘[depicts] a child‘s
sex organs displayed lasciviously—that is, so presented by the
photographer as to arouse or satisfy the sexual cravings‘‖ of an
intended audience. United States v. Wolf¸ 890 F.2d 241, 245 (10th
Cir. 1989) (quoting United States v. Wiegand, 812 F.2d 1239, 1244
(9th Cir. 1989)).
8 In Morrison, the defendant was charged under a predecessor to
Utah Code section 76-5b-103(10)(f), which requires that the images
be created ―for the purpose of causing sexual arousal of any per-
son.‖ Under that section of the statute, we treated the sixth Dost
factor—―whether the visual depiction is intended or designed to
elicit a sexual response in the viewer‖—as a mere summation of
the others, and not as a separate factor. Morrison, 2001 UT 73, ¶ 19.
The provision before us today presents no such complication.
Bagnes is charged under Utah Code section 76-5b-103(10)(e),
which does not require that the depiction be for purposes of caus-
ing sexual arousal. Accordingly, we apply Dost as originally con-
ceived, with the sixth factor considered independently.
14
Cite as: 2014 UT 4
Opinion of the Court
B
¶44 We reverse Bagnes‘s sexual exploitation conviction under
this standard. Bagnes‘s flyers in no way depicted any exhibition of
the pubic region. The children and adolescents depicted in the fly-
ers were wearing diapers, and the diapers did not make their pu-
bic regions visible in any way. It completely obscured them.
¶45 Thus, this is not a case involving literal exposure of the pu-
bic area by actual nudity, or even virtual exposure through a near-
ly transparent cover. Absent evidence of exhibition, there can be
no child pornography and thus no basis for a conviction for sexual
exploitation.9 We accordingly reverse without reaching or apply-
ing the Dost factors, since a lack of proof of exhibition forecloses a
need to consider the element of lasciviousness.
IV
¶46 Barton Bagnes undoubtedly startled the young girls he en-
countered in their neighborhood. And his conduct was certainly
deplorable. But the evidence did not sustain the charges against
him.
¶47 Some forms of antisocial behavior are simply beyond the
reach of the criminal law. That appears to be the case here, at least
insofar as the charges of lewdness and sexual exploitation are
concerned.
———————
9 The URLs that Bagnes identified on his flyers did ultimately
link to websites containing pornographic images. But the sexual
exploitation charge against Bagnes was not for any depiction or
display of those images, but only for the images on the flyer.
15