People v. Gagnon, 98CA1632.

• Citation: 997 P.2d 1278
• Decision Date: 09 December 1999
• Docket Number: No. 98CA1632.,98CA1632.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wayne H. GAGNON, Defendant-Appellant.
• Court: Court of Appeals of Colorado

997 P.2d 1278

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wayne H. GAGNON, Defendant-Appellant.

No. 98CA1632.

Colorado Court of Appeals, Div. IV.

December 9, 1999.

As Modified on Denial of Rehearing January 20, 2000.¹

Certiorari Denied May 15, 2000.

Ken Salazar, Attorney General, Kim L. Montagriff, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Michael D. Brown, Arvada, Colorado; Devra K. Carmichael, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, Wayne H. Gagnon, appeals the judgment of conviction entered following a bench trial for the crimes of felony sexual exploitation of a child, attempted sexual exploitation of a child, and misdemeanor sexual exploitation of a child. We affirm the convictions and the felony sentence, but remand the cause to the trial court for reconsideration of defendant's misdemeanor sentence.

Defendant met a sixteen-year-old girl through an electronic bulletin board commonly used by children at school as an internet chatline. During one of the chat sessions, defendant advised the girl that he was a photographer. They exchanged phone numbers and later arranged for the girl to pose for photographs at a park near her home.

During the photo session, the girl agreed to pose for photos with her bra removed, her blouse completely unbuttoned, and her breasts partially exposed. In two photos, her back was arched and her arms were spread, and in a third her hands appeared to be opening the blouse. She also agreed to pose in a skirt with her legs spread, exposing her underwear. She declined defendant's requests that she pose in lingerie, topless, without underwear, or completely naked.

A woman in the park with her children observed defendant taking the photos and contacted the police. The police obtained a search warrant and, during a search of defendant's home, found three rolls of undeveloped film. When developed, the film produced the photos defendant had taken of the girl in the park. The police also found other sexually explicit materials.

The trial court found defendant guilty of the felony, based on the photos displaying portions of the girl's breasts, and sentenced him to twelve years imprisonment. The court found him guilty of the misdemeanor, based on his possession of the photos, and sentenced him to a concurrent three-year sentence.

I.

Defendant first contends the trial court erred when it found him guilty of the sexual exploitation of a child charges without finding that the photographs which served as the basis for his convictions were obscene. We do not agree.

Defendant argues that, if the photos were not obscene under the standard articulated by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), his conviction violates his right to free speech. However, the Supreme Court concluded in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), that the Miller standard does not reflect the particular and more compelling interests that states have in preventing the sexual exploitation of children.

The Court in Ferber recognized that there remain limits on the category of child pornography that is outside the protection of the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. In addition, the conduct to be prohibited must correlate to the harm to be prevented. Thus, the state offense must be limited to works that visually depict "sexual conduct" by children below a specified age, and the "sexual conduct" proscribed must be suitably limited and described. See New York v. Ferber, supra; see also Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990)

; People v. Batchelor, 800 P.2d 599 (Colo.1990).

Nevertheless, within these limits, the Miller standard may be adjusted. For example, the material in question need not be considered as a whole; that part of the material which is considered need not appeal to the prurient interest of the average person; and the sexual conduct need not be portrayed in a patently offensive manner. See New York v. Ferber, supra.

We therefore reject defendant's contention that he could not be prosecuted for sexual exploitation of a child unless the trial court found that the photos he took were obscene under the Miller test.

II.

Defendant contends that because the photographs upon which his convictions were based were located in his residence, they are protected by the United States Supreme Court's decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). In that decision, the Supreme Court concluded that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.

However, in Osborne v. Ohio, supra,

the Supreme Court expressly refused to extend the holding in Stanley to child pornography. It reasoned that a state's interests in prohibiting child pornography exceed the interests upon which the Stanley decision was based. It therefore concluded that a state may constitutionally proscribe the possession and viewing of child pornography.

Defendant has not suggested any basis for distinguishing the Supreme Court's holding in Osborne v. Ohio, supra.

We therefore find no basis for setting aside his convictions merely because the photos were found in his home.

III.

Defendant next makes several combined arguments that address whether § 18-6-403, C.R.S.1999, which makes sexual exploitation of children a crime, applies to his conduct and, if so, whether the statute is unconstitutionally vague or overbroad. While the concerns raised interrelate and overlap, we address each separately.

A.

Defendant in effect argues that the statute should not be construed to apply to his conduct because the photos, although admittedly showing portions of the girl's breasts, do not display a whole breast or include the nipple. We are not persuaded.

A person commits sexual exploitation of a child under § 18-6-403(3)(a) by knowingly causing a child to engage in the making of any "sexually exploitative material." The statute separately defines "sexually exploitative material" to include photographs of children engaged in, participating in, or being used for "explicit sexual conduct." Section 18-6-403(2)(j), C.R.S.1999. "Explicit sexual conduct" includes "erotic nudity." Section 18-6-403(2)(e), C.R.S.1999.

Section 18-6-403(2)(d) defines "erotic nudity" as:

the display of the human male or female genitals or pubic area, the undeveloped or developing genitals or pubic area of the human male or female child, the human breasts, or the undeveloped or developing breast area of the human child, for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.

A display or picture qualifies as "erotic nudity" upon finding that the display or picture meets two separate conditions. First, in the context of this case, the display or picture must depict the human breasts or undeveloped or developing breast area of a child. Second, this display or picture must be for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved. No more is required. See § 18-6-403(2)(d); People v. Batchelor, supra.

Besides grafting additional terms into the statute, defendant's construction overemphasizes the first requirement, to the exclusion of the second. Instead, the determination of whether the statute applies requires consideration of both.

As to the second requirement, some courts have looked to a more concrete test, first articulated in United States v. Dost, 636 F.Supp. 828 (S.D.Cal.1986). Factors considered include: 1) whether the focal point of the visual depiction is on the child's breasts, genitals, or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, such as 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; and 6) whether the visual depiction appears to be intended or designed to elicit a sexual response in the viewer. See also United States v. Knox, 32 F.3d 733 (3d Cir.1994)

; People v. Kongs, 30 Cal.App.4th 1741, 37 Cal.Rptr.2d 327 (Cal.App.1994).

The harm the statute is intended to address is described in § 18-6-403(1), C.R.S. 1999:

(1) The general assembly hereby finds and declares: That the sexual exploitation of children constitutes a wrongful invasion of the child's right of privacy and results in social, developmental, and emotional injury to the child; that a child below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose; and that to protect children from sexual exploitation it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.

Thus, in the context of this case, the focus is not merely on the harm the material may produce, but also on the harm to a child who is induced to engage in the process of producing such materials. The two requirements focus on both kinds of harm.

Defendant has not argued, and we know of no reason to conclude, that the latter harm is avoided merely by being careful to display only a portion of a breast, or a particular portion, when inducing a child to pose for photos. Indeed, equal or greater harm to a child can result from the type of poses to which a child is subjected and the process of taking the photos than from the amount of the human breast actually depicted in the...