In re S.K.

• Decision Date: 28 August 2019
• Docket Number: No. 41, Sept. Term, 2018,41, Sept. Term, 2018
• Citation: 215 A.3d 300,466 Md. 31
• Parties: IN RE: S.K.
• Court: Court of Special Appeals of Maryland

466 Md. 31

215 A.3d 300

IN RE: S.K.

No. 41, Sept. Term, 2018

Court of Appeals of Maryland.

August 28, 2019

Argued by Claudia Cortese, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner-Cross-Respondent.

Argued by Sarah Page Pritzlaff, Asst. Atty. Gen. (Brian E. Frosh, Attorney General of Maryland, Baltimore, MD), on brief, for Respondent-Cross-Petitioner.

Argued before: Barbera, C.J. ^* Greene, McDonald, Watts, Hotten, Getty, Glenn T. Harrell (Senior Judge, Specially Assigned) JJ.

Getty, J.

Like all teenagers, S.K. sought to impress and humor her closest friends. During the 2016–17 school year at Maurice J. McDonough High School in Charles County, Maryland, the sixteen-year-old female maintained a group chat on her cellphone for text messages with her best high school friends, A.T., another sixteen-year-old female, and K.S., a seventeen-year-old male. The group chat was used, among other things, to send silly photos and videos in an effort to "one-up" each other. The trio hung out together and trusted one another to keep their group messages private.

As part of the "one-up" competition, S.K. sent a one-minute video of herself performing fellatio on a male. Later in the school year, when there was a falling-out among the trio of friends, the video was distributed to other students at the school and shared with the school resource officer. As a result, the State's Attorney for Charles County filed a juvenile petition alleging criminal charges against S.K. under Maryland's child pornography and obscenity statutes, Maryland Code, Criminal Law ("CR"), § 11-207(a)(4) and § 11-203(b)(1)(ii) respectively.

As a matter of first impression, the main issue before this Court is whether a minor may be adjudicated delinquent under the current statutory scheme as the "person" who is a distributor of child pornography and a displayer of obscene matter when she is also the minor participant in the sex act. Put more dramatically, can a minor legally engaged in consensual sexual activity be his or her own pornographer through the act of sexting? For the reasons explained above, the language of CR § 11-207 in its plain meaning is all-encompassing. The General Assembly has not updated the statute's language since the advent of sexting and thus we may not read into the statute an exception for minors. As to a second issue, a cellphone video is a digital file that is broadly captured under the term "film" in the enumerated "items" set forth in CR § 11-203. Therefore, S.K.'s conduct is covered by the language of the obscenity statute.

BACKGROUND

During the 2016–17 school year, two sixteen-year-old females, A.T. and S.K., and a seventeen-year-old male, K.S., were best friends attending Maurice J. McDonough High School in Charles County, Maryland. S.K. and A.T. had been friends since elementary school. The trio had a group chat on their cellphones in which they would communicate with one another by text message. A.T. stated the group chat was used, among other things, to send silly photos and videos to "one-up" each other. The trio frequently hung out together and trusted one another to keep their group text messages private.

In October, A.T. and K.S. received a text message containing a video recording from S.K.'s cellphone number. The video was approximately one minute in length and showed S.K. performing fellatio on a male. The male's identity and age were not established in the testimony at the adjudication hearing although A.T. testified that she knew him. In the video, S.K. is nude and her upper torso, including an exposed breast, is visible throughout most of the video. The nude male's mid-torso and erect penis are shown during the majority of the video although an unfocused view of his face is visible momentarily at the video's conclusion. The male appears to be the one filming the video through an extended reach of his arm similar to taking a selfie.¹

In December, S.K. and K.S. had a falling out.² Commenting on the falling out, A.T. testified:

We all used to be friends. And at the time [K.S.] just really dislikes her. And you can ask anybody in his sixth period class. Cause we used to eat lunch together. And he would always write on the board like, saying she's a slut or saying any type of thing.

K.S. began urging A.T. to go with him to the school resource officer to report the video of S.K. Eventually, A.T. relented. K.S. testified he was worried about S.K. and wanted her to receive help. However, A.T. testified that the motives of K.S. were not so pure. A.T. testified that K.S. was bragging around school about S.K. going to jail if he were to report the text message to the school resource officer. She stated, "he has a strong hate towards her.

And he kinda [sic] just pulled me along with him because he knew I would be on his side."

A.T. and K.S. went to the school resource officer, Officer Eugene Caballero of the Charles County Sheriff's Office. At the meeting, A.T. and K.S. told Officer Caballero about the video. At that point, K.S. possessed the video as an email attachment. He displayed the email and video on Officer Caballero's computer. Officer Caballero then instructed K.S. to delete the video from his email account.

After receiving a copy of the video from K.S., Officer Caballero met with S.K. at the Robert D. Stethem Educational Center in Charles County. S.K. was read her Miranda rights and agreed to speak with Officer Caballero. In his police report, Officer Caballero stated S.K. cried during their meeting and was upset that the video was going around the school.³ S.K. was under the impression that Officer Caballero met with her to stop the video from further distribution to other students. At no point during this meeting did Officer Caballero inform S.K. that she was considered a suspect for criminal activity. S.K. provided Officer Caballero with a written statement admitting that she was in the video and had only sent it to her two friends.

The police report was referred to the State's Attorney for Charles County who had discretion as to whether to file the criminal charges. After review, the State charged S.K., as a juvenile, with three counts as follows: Count 1: filming a minor engaging in sexual conduct in violation of CR § 11-207(a)(2) ; Count 2: distributing child pornography in violation of CR § 11-207(a)(4) ; and Count 3: displaying an obscene item to a minor in violation of CR § 11-203(b)(1)(ii).

The adjudicatory hearing was held on April 27, 2017 before the Circuit Court of Charles County sitting as a juvenile court. S.K. was represented by the Office of the Public Defender. A.T., K.S., and Officer Caballero testified during the hearing. At the conclusion of the hearing, Count 1, filming a minor engaging in sexual conduct, was dismissed because there was no evidence presented that S.K. was filming the video. At the end of closing argument, the juvenile court found S.K. involved as to Counts 2 and 3.⁴

At a subsequent disposition hearing on May 18, 2017, S.K. was placed on electronic monitoring until June 9, 2017 and supervised probation administered by the Department of Juvenile Services. S.K.'s probation was subject to several terms and conditions such as: (1) reporting to the Probation Officer; (2) obtaining permission before changing her home address or leaving the State; (3) permitting the Probation Officer to visit her home; (4) submitting to weekly drug urinalysis; (5) attending and completing anger management class; (6) submitting to a substance abuse assessment and following any recommendations; and (7) "level 1 treatment"⁵ as recommended. S.K. was not ordered to register as a sex offender. On September 27, 2018, after fulfilling her probation requirements, this case was ordered closed and sealed.

S.K. appealed the delinquency finding and subsequent disposition to the Court of Special Appeals. In a reported opinion, the Court of Special Appeals held, relevant to the issue before us, that a minor legally engaged in consensual sexual activity is not exempted from CR § 11-207(a)(4) and thus is in violation of the child pornography statute. In re S.K. , 237 Md. App. 458, 473, 186 A.3d 181 (2018). As to CR § 11-203(b)(1)(ii), the statute prohibiting displaying of obscene items to minors as applied to juveniles, the Court of Special Appeals held a digital file did not come within the meaning of the statutory term "item." Id. at 487, 186 A.3d 181.

In reaching its conclusion, the Court of Special Appeals first examined the plain language of CR § 11-207(a).

Id. at 466, 186 A.3d 181. Based on its reading of what it deemed to be the plain language of the statute, "a minor is ‘engaged as a subject’ in sexual conduct if she or he is a participant in, or the object of, such conduct" and the statute provided no exemption for minors engaging in the conduct themselves. Id. at 469, 470–471, 186 A.3d 181. The Court of Special Appeals also considered the government's interest in combating child pornography, citing the government's concern for preventing children from becoming the subjects of child pornography. Id. at 472, 186 A.3d 181 (citing Outmezguine v. State , 335 Md. 20, 37, 641 A.2d 870 (1994) (hereinafter "Outmezguine II " ) ("The State unquestionably has a significant interest in protecting children, and in prohibiting the use of children as subjects in pornographic material."). The Court of Special Appeals engaged in a review of the legislative history bolstering its conclusion as to the plain meaning of the statute. Id. at 470, 186 A.3d 181. Further, the Court of Special Appeals found no exceptions in the statute such as a limitation to non-consensual or abusive conduct or an exception when the minor depicted is also the distributor. Id. at 471, 186 A.3d 181.

As to the second delinquency finding, the Court of Special Appeals held that the digital file S.K. sent by text message was not an "item" covered within the statute. Id. at 482, 186 A.3d 181. The...