In re S.K., 617, Sept. Term, 2017

• Decision Date: 05 June 2018
• Docket Number: No. 617, Sept. Term, 2017,617, Sept. Term, 2017
• Parties: IN RE: S.K.
• Court: Court of Special Appeals of Maryland

237 Md.App. 458

186 A.3d 181

IN RE: S.K.

No. 617, Sept. Term, 2017

Court of Special Appeals of Maryland.

June 5, 2018

Argued by: Claudia Cortese (Rachel Simmonsen, Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.

Argued by: Sarah P. Pritzlaff (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.

Panel: Arthur, Fader, Raymond G. Thieme, Jr. (Senior Judge, Specially Assigned), JJ.

Fader, J.

The appellant, then–16–year–old S.K., sent a text message to two friends, both juveniles, containing an approximately one-minute-long digital video file of herself performing fellatio on a presumably-adult male. The Circuit Court for Charles County, sitting as a juvenile court, found S.K. involved in the offenses of distribution of child pornography and displaying an obscene item to a minor.¹ We affirm the juvenile court's finding on distribution of child pornography because we conclude that: (1) S.K. was a "subject" of the video; (2) the law contains no exception applicable when the juvenile is both the subject and distributor of the pornographic material; and (3) S.K.'s conduct is not protected by the First Amendment. We vacate the finding that S.K. was involved in displaying an obscene item to a minor because the statute, which expressly delineates the forms of media it covers, does not cover an electronically-transmitted digital video file.

BACKGROUND

S.K. sent the digital file at issue to A.T., another 16–year–old girl, and K.S., a 17–year–old boy. A.T. and K.S. each received the video and viewed at least part of it. The three then-friends, who regularly exchanged "silly" videos and attempted to "outdo" one another, trusted each other to keep these group messages private. Two months later, after the three had a falling out, K.S. and A.T. reported the incident to, and shared a copy of the video with, Officer Eugene Caballero of the Charles County Sheriff's Office, their school resource officer. Officer Caballero met with S.K., who acknowledged having sent the video to K.S. and A.T. S.K. expressed concern to Officer Caballero that other people had seen the video because, according to both S.K. and A.T., K.S. had by that time shared the video with other students.

The State charged S.K. with (1) filming a minor engaging in sexual conduct in violation of § 11–207(a)(2) of the Criminal Law Article (2012 Repl.), (2) distributing child pornography in violation of § 11–207(a)(4) of the Criminal Law Article, and (3) displaying an obscene item to a minor in violation of § 11–203(b)(1)(ii) of the Criminal Law Article.²

At the adjudicatory hearing, after taking testimony from A.T., K.S., and Officer Caballero and viewing the video, the juvenile court granted S.K.'s motion for acquittal as to the offense of filming a minor engaged in sexual conduct, but found S.K. involved in distributing child pornography and displaying an obscene item to a minor. In a subsequent disposition hearing, the court found S.K. to be delinquent and placed her on probation with several conditions, including that she undergo a psychiatric evaluation. S.K. appeals those findings.

DISCUSSION

We apply the same evidentiary standard in juvenile delinquency cases that we apply in criminal cases. In re Elrich S. , 416 Md. 15, 30, 5 A.3d 27 (2010). "[T]he judgment of the [trial court] will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the [trial] court to judge the credibility of the witnesses." Brownv. State , 234 Md. App. 145, 152, 170 A.3d 829 (2017) (quoting Dixon v. State , 302 Md. 447, 450, 488 A.2d 962 (1985) ). "When the trial court's order ‘involves an interpretation and application of Maryland statutory and case law,’ " we review the trial court's legal conclusions de novo. Nesbit v. Gov't Employees Ins. Co. , 382 Md. 65, 72, 854 A.2d 879 (2004) (quoting Walter v. Gunter , 367 Md. 386, 392, 788 A.2d 609 (2002) ).

I. THE JUVENILE COURT DID NOT ERR IN FINDING S.K. INVOLVED IN THE DISTRIBUTION OF CHILD PORNOGRAPHY .

As relevant here, § 11–207(a)(4)(i) prohibits a "person" from knowingly distributing "any matter, visual representation, or performance ... that depicts a minor engaged as a subject in ... sexual conduct."³ S.K. argues that her conduct does not fall within the prohibition of this statute both because she was not a "subject" of the video and because the provision's legislative history suggests that it was not intended to cover the distribution by a minor of material depicting his or her own consensual sexual conduct. Based on the plain language of the statute, neither of these arguments has merit. We also reject S.K.'s contention that her conduct is protected by the First Amendment to the United States Constitution.

A. The Plain Meaning of "Engaged as a Subject" in § 11–207(a)(4)(i) Requires That a Minor Must Appear in the Material at Issue.

S.K. first contends that her conduct did not run afoul of § 11–207(a)(4)(i) because she was not "engaged as a subject" in the video. According to S.K., "subject," in the context of this statute, means "a minor who is unable to lawfully consent to sexual relations or who is forced to engage in sexual conduct against his or her will." Because she consented to the sexual conduct depicted, she argues, the statute is not implicated.⁴ The State contends that "subject" instead means a person or thing of concern, and that S.K. was a "subject" of the video because she was featured in it. Both parties rely on dictionary definitions for support.

In resolving this question of interpretation, we apply the standard tools of statutory construction. State v. Bey , 452 Md. 255, 265, 156 A.3d 873 (2017). We ascertain legislative intent by affording "words their natural and ordinary meaning," Davis v. State , 426 Md. 211, 218, 43 A.3d 1044 (2012), and "neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute," Bey , 452 Md. at 265, 156 A.3d 873 (quoting State v. Johnson , 415 Md. 413, 421, 2 A.3d 368 (2010) ). In doing so, we interpret the "statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory." Moore v. State , 388 Md. 446, 453, 879 A.2d 1111 (2005).

We do not interpret statutory language in isolation, but view it "within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute." Bey , 452 Md. at 266, 156 A.3d 873 (quoting Johnson , 415 Md. at 421–22, 2 A.3d 368 ). Where the legislative intent "is clear from the words of the statute, our inquiry normally ends and we apply the plain meaning of the statute." State v. Neiswanger Mgmt.Servs., LLC , 457 Md. 441, 458–59, 179 A.3d 941 (2018) (quoting Huffman v. State , 356 Md. 622, 628, 741 A.2d 1088 (1999) ). But if a statute is ambiguous, "we consult other indicia of legislative intent, including ... legislative history, the context of the statute within the broader legislative scheme, and the rationality of competing constructions."

In re Tyrell A. , 442 Md. 354, 362, 112 A.3d 468 (2015). Our "interpretation must be reasonable, not ‘absurd, illogical or incompatible with common sense.’ " Neiswanger Mgmt. Servs. , 457 Md. at 459, 179 A.3d 941 (quoting Lockshin v. Semsker , 412 Md. 257, 276, 987 A.2d 18 (2010) ).

Applying these principles, we consider the plain language of "engaged as a subject" in the context of the entirety of § 11–207(a), which provides that "[a] person may not":

(1) cause, induce, solicit, or knowingly allow a minor to engage as a subject in the production of obscene matter or a visual representation or performance that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct;

(2) photograph or film a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct;

(3) use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct;

(4) knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute any matter, visual representation, or performance:

(i) that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; or

(ii) in a manner that reflects the belief, or that is intended to cause another to believe, that the matter, visual representation, or performance depicts a minor engaged as a subject of sadomasochistic abuse or sexual conduct; or

(5) use a computer to knowingly compile, enter, transmit, make, print, publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate any notice, statement, advertisement, or minor's name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for the purpose of engaging in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or sexual conduct of or with a minor.

The phrase "engage(d) as a subject" appears four times: twice in § 11–207(a)(1), and once each in § 11–207(a)(4)(i) & (ii).

Although not dispositive, dictionary definitions "provide[ ] a useful starting point" for statutory interpretation. Montgomery Cty. v. Deibler , 423 Md. 54, 67, 31 A.3d 191 (2011) (quotation omitted). S.K. relies on definition (1) of "subject" from Merriam–Webster (online) as meaning "one that is placed under authority or control," but she fails to cite the remainder of the definition. The full definition (1) of "subject" is:

1: one that is placed under authority or control: such as

a : VASSAL

b (1) : one subject to a monarch and governed by the monarch's law (2) : one who lives in the territory of, enjoys the protection of, and owes allegiance to a sovereign power or state

Merriam–Webster (online) , "subject," available at https://www.merriam-webster.com/dictionary/subject (last visited May 30, 2018). S.K. also cites definition (1) from Black's Law Dictionary, which provides: "Someone...