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Possession of Child Pornography, § 948.12(1m) – Sufficiency of Evidence – Full Nudity not Required

State v. James F. Lala, 2009 WI App 137, PFR filed 9/1/09
For Lala: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding:

¶11      Sexually explicit conduct as defined in Wis. Stat. § 948.01(7)(e) includes actual or simulated “lewd exhibition of intimate parts.” The term “lewd,” however, is not statutorily defined, nor has a single definition been established by cases interpreting similar child pornography laws. See State v. Petrone, 161 Wis. 2d 530, 561, 468 N.W.2d 676 (1991). …¶12      … Lala admits that in each of the photos, the child is positioned so that her “crotch is visible,” but maintains that because the child appears to be wearing nylons or “nylon underwear,” as evidenced by a nylon seam, the intimate parts of the child are not unclothed and therefore the pictures are not lewd. Lala’s arguments are not persuasive.

¶13      When the Petrone court established guidelines for defining “lewd” or “sexually explicit,” it did not require that a child be “unclothed” in order for a picture to be lewd. Instead the supreme court stated that visible display of the child’s pubic area and posing the child as a sex object with an unnatural or unusual focus on the child’s genitalia should inform the common sense determination by the trier of fact regarding the pornographic nature of the image. See Petrone, 161 Wis. 2d at 561. It follows that where a child’s pubic area is visibly displayed, as is it is here, the lack of a full opaque covering is a proper consideration that should inform the common sense determination by the trier of fact.

¶17      In sum, despite the arguable presence of nylons which provided less than a full opaque covering and left the child’s intimate parts visibly displayed, the evidence was sufficient to support the trial court’s conclusion that the photographs depicted a child engaged in sexually explicit conduct. [7]

The court leaves open the issue of “whether the presence of a full opaque covering would be sufficient to avoid a violation of Wis. Stat. § 948.12(1m),” ¶17 n. 7. Evidence of scienter held sufficiently proven, ¶18.

 

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