State v. Mross

The standard of determining whether content is a "lewd exhibition" is whether a reasonable fact finder could find, beyond a reasonable doubt, that the content was created "with the intent of stimulating the lust or sexual desires of the person who views it."

Defendant’s parole officer was notified that Defendant had child pornography on his cell phone. The officer asked permission to search Defendant’s phone. The officer found a photograph of child which the officer considered pornographic, seized the phone, and arrested Defendant for violating his parole. The police conducted a further search of the phone and found six photographs of children. Defendant was charged with six counts of second-degree encouraging child sex abuse. During trial, Defendant argued that the State had the burden to prove that the photographs were taken with sexual intent. The trial court disagreed and convicted Defendant of four counts of second-degree encouraging child sex abuse. Defendant appealed, arguing that the trial court erred when it determined that four photographs of children he had on his cell phone were “lewd exhibitions of sexual portions of the children’s bodies” for the purposes of determining whether the photographs were “sexually explicit conduct.” Defendant’s contention was that the term “lewd exhibition” was unconstitutionally vague. The Court explained that in State v. Meyer, the term “lewd exhibition” means “exhibition with the intent of stimulating the lust or sexual desires of the person who views it.” The Court held that the photographs could be construed as “lewd” based on their nature, and found that the trial court did not err when it convicted Defendant of four counts of second-degree encouraging child sex abuse. Affirmed.