DocketNumber: NO. PD-0791-16
Citation Numbers: 541 S.W.3d 128
Judges: Richardson
Filed Date: 10/18/2017
Status: Precedential
Modified Date: 1/21/2022
*130Appellant, Mark Bolles, was found guilty of the offense of possession of child pornography
BACKGROUND
According to witnesses who testified at Appellant's bench trial, on February 14, 2014, Appellant was seen using one of the Corpus Christi Library computers to browse the internet. Alex Hatley, the library's technology manager, noticed Appellant viewing images of what looked like "partially clothed" children. FBI agent Brian Johnson was asked by the library secretary to check on what Appellant was viewing on the library's computer. He observed Appellant viewing and taking cell phone pictures of a computer screen of "nude children." Agent Johnson approached Appellant and asked what he was looking at on the computer. Appellant accompanied Agent Johnson upstairs, chose not to speak to him or to the police, but allowed Agent Johnson to take his cell phone. Agent Johnson then released Appellant and turned the phone over to the Corpus Christi Police Department's computer forensic division.
Among the images discovered on Appellant's cell phone and admitted into evidence was one that he photographed from the computer screen of a famous portrait by photographer Robert Mapplethorpe. It is a portrait of a young girl of about three years old, sitting on a stone bench. The court of appeals's opinion accurately describes this image in detail:
The first-0214041031.jpg-is a complete reproduction of a photograph entitled Rosie by the nationally-known photographer Robert Mapplethorpe. Rosie depicts a young female child seated on a stone bench. She sits with her left leg drawn inwards towards her body while her right leg is vertical and bent at the knee. She touches the side of the bench with her right arm while her left arm reaches down in the direction of her left foot. She wears a dress but no underwear. As a result, her vagina is visible in a small part of the extreme lower portion of the image. The parties stipulated in writing that Mapplethorpe created the photograph in 1976 and that the original photograph is in the collection of the Guggenheim Museum in New York City.
*131Another image taken from Appellant's cell phone and admitted into evidence is a zoomed-in cropped image of that same portrait (0214041031a.jpg). It appears that Appellant created this second image by using the zoom or magnification function on his camera. The cropped image is a close-up image of the child's genitals and part of her right leg. Part of her dress and part of her left hand are also visible.
The Appellant viewed other images of naked children while logged on to the library computer, and some were copied to his cell phone. Appellant also had several images of what appeared to be his own penis on his cell phone.
Appellant was indicted for three counts of possession of child pornography related to several of the images found on his phone. Count 3 was abandoned by the State before the trial began because, according to the record, the parties and the judge agreed that it was based on an image of a young adult woman. Count 2 alleged possession of an image depicting the lewd exhibition of a child's breast. After the trial, and upon reviewing the image of a young nude girl touching her breast, which was the basis for Count 2, the trial court found Appellant "not guilty" on Count 2.
This appeal involves only Count 1, which alleged that Appellant,
on or about February 18, 2014, in Nueces County, Texas, did then and there intentionally and knowingly possess visual material that visually depicted, and which the defendant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, lewd exhibition of the genitals.
At trial, the State repeatedly emphasized that Count 1 was based only on Appellant's possession of the zoomed-in cropped image of the child's genitals. In fact, the prosecutor signed a "Stipulation of Evidence" clarifying that: "The image complained of in Count 1 of the indictment is a portion of a larger photograph entitled 'Rosie' taken by photographer, Robert Mapplethorpe in 1976, and can be viewed at the Guggenheim Museum in New York City."
In finding Appellant guilty on Count 1, it was clear that the trial court judge agreed with the State's position that, by zooming in and cropping out an image of only the child's genitals, Appellant created an image that was distinct from the original photograph taken by Robert Mapplethorpe. The trial court convicted Appellant on Count 1 and assessed a sentence of two years' imprisonment.
The court of appeals reversed Appellant's conviction. It held that "the evidence was insufficient to support the conviction on Count 1 because (1) the full image does not depict a lewd exhibition of the genitals, and (2) the cropped image does not depict a person who was under the age of eighteen at the time the image was made."
ANALYSIS
A. Section 43.26(a) -Possession of Child Pornography
Texas Penal Code section 43.26(a) provides that a person commits the offense of possession of child pornography if:
(1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually *132depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct ...; and
(2) the person knows that the material depicts the child as described by Subdivision (1).4
According to section 43.26(b)(2), the term "sexual conduct" has the meaning assigned by Penal Code section 43.25(a)(2), which defines the term as including, among other things, the "lewd exhibition of the genitals."
B. On Direct Appeal
On direct appeal, Appellant asserted that the evidence was legally insufficient to sustain the trial court's guilty verdict that Appellant intentionally and knowingly possessed material that visually depicted, and which the Appellant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, namely, the lewd exhibition of the genitals. Specifically, Appellant argued that the evidence was insufficient to prove that the cropped image is "lewd" because the original photograph taken by Robert Mapplethorpe is not "lewd." Appellant's position was that a portion of a "legal photograph cannot be considered illegal."
The State countered with the argument that the original full image of the child does involve the "lewd exhibition" of the child's genitals, and therefore, the cropped image of the child's genitals is also a "lewd exhibition of the genitals." The State claimed that, because the original full photograph was in Appellant's possession and was entered into evidence, that image alone was sufficient to support the present charge concerning possession of child pornography. We note that this was not the position taken by the prosecuting attorneys at trial.
In addition, the State presented an argument on direct appeal anticipating an *133argument that was never presented by Appellant:
Although [Appellant] has failed to raise this issue, the State feels compelled, in candor to the Court, to note that the parties' stipulation that the photograph, from which the cropped image was created, was taken in 1976, [and] conclusively shows that the child of 1976 must have been much older than 18 at the time the image was manipulated or cropped by [Appellant] in 2014.8
The State theorized that Appellant could have argued "that the cropped image was 'made' when [Appellant] cropped it in 2014,"
In its memorandum opinion, the court of appeals stated that it was addressing the lewdness of both images (the original full image and the zoomed-in cropped image) as part of its sufficiency analysis-despite the State's clear representation at trial that Count 1 was based only on the cropped image, and notwithstanding the trial court's explanation that Appellant was guilty on Count 1 because he created a different image when he took a zoomed-in picture of the child's genitals: "Regardless of whether the State proceeded on both images, each image was admitted into evidence, and so each is part of our sufficiency analysis."
The court of appeals reversed Appellant's conviction on Count 1, holding that the evidence was insufficient to support the conviction. As to the original full image of the child, the court of appeals decided that the full image is not child pornography because it does not depict a "lewd exhibition of the genitals." Following that holding, the court of appeals then held that the cropped image could not support the conviction on Count 1 because, having been "made" in 2014 at the time of cropping, that image does not depict a person who was under the age of eighteen at the time the image was made, and thus could not be child pornography.
C. Standard of Review
Considering only the zoomed-in cropped image, the trial court held that the image constituted possession of child pornography as alleged in Count 1. The court of appeals disagreed, and held that the zoomed-in cropped image did not constitute child pornography and was thus insufficient to support Appellant's conviction for possession of child pornography. We conduct our sufficiency review by examining all the evidence in the record in the light most favorable to the verdict to determine whether "any rational trier of fact could have found the essential elements *134of the crime beyond a reasonable doubt."
D. The Zoomed-In Cropped Image, Standing Alone, Is Sufficient Evidence of Child Pornography
Appellant argued on direct appeal, and argues before this Court, that because the original full image is not child pornography, but is a work of art and a form of expression by Robert Mapplethorpe, and is thus protected by the First Amendment, a magnified and cropped portion of that photograph, although a separate and distinct image, cannot be considered child pornography. We disagree.
(1) The cropped image depicts the genitals of a child under the age of 18
The court of appeals concluded that if it were to "accept the State's argument that the cropped image is distinct from the full image and thus has distinct content," then it would have to also conclude that the cropped image was "made at a different time."
Zooming in and taking a magnified picture of a small portion of an existing photograph of a child-even a work of art-constitutes the creation of a new and separate visual depiction of that child. But such image re-creation does not reset the date that the original image of that same underage child "was made," such that the newly created image is no longer of a child under the age of 18. The manipulation of an existing image of a child is simply the creation of a different piece of visual material of that child at that age. We agree *135with the State's argument that the court of appeals failed to properly distinguish between when the image of the child was made and when the visual material was created. A photograph captures a moment in time. The date that a photograph is taken does not change, and a photograph of a child is "made" on the date the photograph was taken. The age of the child at the time the image is made will always stay the same.
The full image of this child was made on the day that photograph was taken in 1976 when the child was three years old. The cropped image of just the child's genitals was created as a new depiction
The State is correct that this interpretation is consistent with the overall purpose of child pornography statutes to protect, among other things, the present reputation of the child who is the subject of the image.
We conclude that the court of appeals erred in holding that the cropped image was not child pornography because it did not depict a child under the age of 18. Even had we not known of or viewed the full original Mapplethorpe image, it is obvious from viewing the cropped image that it is an image of the genitals of a child under the age of 18.
(2) Child pornography can result from image manipulation of an original image that may not be considered child pornography
A new and different image can be created from an existing photograph, depending on how the original image is edited, cropped, or manipulated. "Morphing" an image into child pornography occurs when someone "alter[s] innocent pictures of real children so that the children appear to be engaged in sexual activity."
*136Several courts in other jurisdictions have held that cropping or editing an otherwise innocent picture can result in child pornography. In United States v. Stewart ,
We found only one case that has held differently, but the facts of that case differ from the facts in this case. In Commonwealth v. Rex ,
the cropped photocopy cannot be disassociated from the source photograph.... The fact that one could take an innocently framed photograph [of several nude children and adults] and crop it so that a child's genitalia appear more central cannot transform the photograph into child pornography.... [T]he court is of the opinion that an individual cannot be found to have committed a felony by cutting out part of a photograph, the possession of which is not a crime.41
Significantly, we note that the Commonwealth v. Rex court concluded that, "in any event, even as cropped, none of the photocopies focus on the genitalia or pubic areas."
We recognize that Commonwealth v. Rex illustrates how our holding today might potentially be interpreted to extend to such a fact situation. However, we find the facts of this case, which involve digital image manipulation and recreation, sufficiently distinguishable from what took place in Commonwealth v. Rex . Thus, we find Commonwealth v. Rex unpersuasive here. In this case, the cropped image was recreated as a separate image, no longer seen in its original context. The cropped image of the child's genital area is a magnification and manipulation of the original photograph, morphed into a separate image. Computer access and cell phone photography and editing add a different perspective to this issue.
We emphasize that the determination of whether an image is a lewd exhibition of the genitals must be done on a case-by-case, picture-by-picture basis. Under these facts, we are not persuaded to decide this case differently because a court in another state has held that pictures cut out of a National Geographic magazine and *138a sociology textbook do not constitute child pornography. Rather, we join the majority of courts cited above that have held that a lascivious or lewd exhibition can be created by an individual who manipulates an existing photograph of a minor into a different image even when the original depiction is one of an innocent child acting innocently.
(3) Determining whether the cropped image depicts the "lewd exhibition" of the child's genitals
In this case, whether the cropped image constitutes child pornography under section 43.26 of the Texas Penal Code depends upon whether such image depicts a child who is engaging in the "lewd exhibition" of the child's genitals under Texas Penal Code section 43.25(a)(2).
We may also turn to case law-both state and federal-for assistance in interpreting the meaning of an undefined term. Some jurisdictions have held that a nude depiction of a child, absent any explicit sexual conduct on the child's part, is not a depiction of a child engaging in "sexual conduct" by way of a lewd exhibition of the child's genitals.
The federal child pornography statute is worded similarly to the pertinent portions of sections 43.26 and 43.25,
In United States v. Dost,
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, 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.
The Dost court concluded that all of the photographs depicted a minor engaged in the lascivious exhibition of her genitals or pubic area.
The Fifth Circuit has defined "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."
Although this Court has never addressed the meaning of "lewd exhibition," several intermediate appellate courts in Texas have done so, and all of them have utilized the Dost factors to assist them in evaluating whether an image is a "lewd exhibition" for purposes of the child pornography laws. In Perkins v. State ,
These factors have been adopted by many state courts for analyzing analogous issues arising under state child pornography laws, including courts in Texas which have treated the term "lascivious" as used in the federal statute as synonymous with "lewd" as used in the Texas statute.... We agree with the other Texas courts of appeals which have applied the Dost factors as a framework for analyzing whether images could be considered "lewd" for purposes of the child pornography laws.68
In Tovar v. State ,
Tovar argues that the evidence is legally insufficient because the photographs do not show a lewd exhibition of genitals by the child. We disagree. In determining whether a visual depiction of a child constitutes a lewd exhibition of genitals, courts should consider whether (1) the focal point of the visual depiction is the child's genitalia, (2) the place or pose of the child in the photograph is sexually suggestive, (3) the child is depicted in an unnatural pose or inappropriate attire, (4) the child is fully or partially clothed or nude, (5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity, or (6) the visual depiction is intended or designed to elicit a sexual response in the viewer.
* * *
In considering the factors noted above, the focal point of many of the visual depictions are the child's genitalia. The child's poses are sexually suggestive. The child is completely nude. Many of the visual depiction suggest sexual coyness or a willingness to engage in sexual activity. And, the visual depictions do appear to be intended or designed to elicit a sexual response in the viewer.70
In Dawes v. State ,
We acknowledge that we are not bound by Dost when assessing whether an image depicts a "lewd exhibition."
(4) The zoomed-in cropped image satisfies all six Dost factors
First, the child's genital area is the focal point of the cropped image. There is very little else in the image to view except the child's genitals. Regarding the second and third factors, since the image is of only the child's genital area, it could be viewed as unnatural and sexually suggestive. The genitals are exposed and the child's legs are clearly apart. Creating an image of only the child's genitals in this pose is definitely sexually suggestive. Fourth, since the image is a close-up of the child's genitals, it is an image depicting a child who is at least partially nude. The fifth factor, whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity, can be presumed because of how the image was manipulated-although little can be seen of the child's legs, they appear to be spread apart. Finally, the visual depiction created by Appellant appears to have been intended and designed by Appellant to elicit a sexual response in the viewer.
As the court stated in United States v. McCall , "it is the depiction -not the minor-that must bring forth the genitals or pubic area to excite or stimulate."
*144The magnified cropped image is not a work of art hanging in a museum or depicted in books containing Robert Mapplethorpe's work. The magnified and cropped image is a picture of a child's genitals, legs spread open. We find that this image constitutes a "lewd exhibition" of her genitals. It would be difficult to conclude otherwise since all six Dost factors have been satisfied.
CONCLUSION
In sum, we hold that child pornography can result from image editing and manipulation. In this case, the act of zooming in, magnifying, and retaking the image as cropped is a form of image editing. The act of image manipulation combined with the particular composition of the edited image-i.e., a close-up of the child's genital area-resulted in the creation of a different image that constitutes the "lewd exhibition" of a child's genitals.
We therefore hold that the evidence is sufficient to support the Appellant's conviction on Count 1 because the zoomed-in cropped image depicting a child's genitals constitutes child pornography as that term is defined in Texas Penal Code sections 43.26 and 43.25(a)(2).
Tex. Penal Code § 43.26(a) provides that "A person commits an offense if: (1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct ...; and (2) the person knows that the material depicts the child as described by subdivision (1)."
Bolles v. State ,
Bolles ,
Tex. Penal Code § 43.26(a)(1), (2).
Tex. Penal Code § 43.25(a)(2). "Sexual conduct" is defined as "sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola."
In her opening statement, the prosecutor explained, "You will hear that these images are images that, yes, do hang in the Guggenheim Museum but with the cropping of those pictures we believe that the evidence will show that the Defendant knew what he was doing and that he was purposing [sic ] cropping those shots to focus on the children's private areas."
And the prosecutor further stated in her closing argument to the court that, "Count 1 specifically dealing [sic ] with lewd exhibition of the genitals and I believe that it's clear that we're dealing with the photograph of the young girl on the front porch where her labia had been cropped out from the original picture and made into a picture by the zoom function of a camera or from the phone of the computer screen, and that is in fact lewd exhibition of the genitalia.... Count 1 is the bottom left image on page 4 of 12 in State's Exhibit No. 5."
In the prosecutor's summation she stated that, "[I]t's the State's position that the original image, the original image that we stipulated to having been taken by Robert Mapplethorpe ... [is] wholly inappropriate, but the image by this Defendant by cropping-in the first photo by cropping out everything that could be considered artistic, leaving only the genitalia of maybe a six-year-old child ... [is] in fact child pornography. It's the State's position that when [that photograph was] cropped by this Defendant he knew exactly what he was doing and had every intention of creating [an] image that would be sexually arousing involving [a] young [child]...."
See supra note 6.
Brief for State, at *18 n.4, Bolles v. State ,
Bolles ,
Bolles ,
See Villa v. State ,
E.g. , Rivera v. State ,
Cary v. State ,
See State v. Duran ,
Bolles ,
See, e.g., United States v. McCall ,
See New York v. Ferber ,
Boykin v. State ,
Ashcroft v. Free Speech Coalition ,
See Alexander v. State ,
United States v. Stewart ,
Shoemaker v. Taylor ,
United States v. Brown ,
United States v. Johnson ,
United States v. Horn ,
United States v. Hotaling ,
United States v. Holmes ,
United States v. Knox ,
Commonwealth v. Rex , No. 12-049,
Id. at *4-5.
Id. at *4.
We first note that the court of appeals said that it expresses "no opinion" on the issue of whether the cropped image depicts a lewd exhibition of the genitals. However, in holding that the cropped image is insufficient to support Appellant's conviction on Count 1, the court of appeals actually did address that issue by implication. In stating that its "holding regarding the cropped image is dictated by [its] holding the full image is not lewd," the court of appeals addressed indirectly what it could have and should have addressed directly. Moreover, that statement is somewhat inconsistent with the court of appeals's holding that the cropped image is a separate image that was "made" in 2014. We see no benefit to remanding this case to the court of appeals to address an issue that it said it was not addressing, but was actually an issue that was very much intertwined with the issues the court of appeals did address. The issue of whether the cropped image constitutes a lewd exhibition of the genitals was sufficiently raised and briefed before this Court, and thus is properly before us.
Tex. Gov't Code § 311.011(a) ; Kirsch v. State ,
Kirsch ,
See Shoemaker ,
Ex parte Ingram , No. PD-0578-16,
Lewd , Black's Law Dictionary (10th ed. 2014).
Lewdness , Black's Law Dictionary (10th ed. 2014).
See State v. Gates ,
See Knox ,
Boykin v. State ,
See Wiegand ,
The district court in United States v. Dost (see infra note 52) explained that, in 1984, Congress enacted the Child Protection Act of 1984, Pub. L. No. 98-292,
United States v. Dost ,
Dost ,
Rivera ,
Dost ,
United States v. Franz ,
Franz ,
Dost ,
McCall ,
McCall ,
Perkins v. State ,
Perkins ,
Tovar v. State ,
Dawes v. State , No. 05-07-01544-CR,
See State v. Hill ,
Since they are not incorporated into our statute, it would be inappropriate to include the Dost factors in a jury charge when defining an offense involving the term "lewd exhibition." See Andrews v. State ,
See United States v. Larkin ,
Jacobellis v. Ohio ,
See
McCall ,
The Fifth Circuit has held that in deciding whether photos were lascivious, the courts are not limited to the four corners of the photographs, but could consider surrounding circumstances. United States v. Barry ,
Although we granted review on two issues raised by the State, we need not reach the State's first ground.