Turenne v. State

488 Md. 239

321 A.3d 697

Roseberline TURENNE

v.STATE of Maryland

No. 20, Sept. Term, 2023

Supreme Court of Maryland.

August 16, 2024

Circuit Court for Wicomico County, Case No.: C-22-CR-21-000263, Matthew A. Maciarello, Judge.

Argued by Michele D. Hall, Assigned Public Defender (Brown, Goldstein & Levy, LLP of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Gary E. O’Connor, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Amicus Curiae Maryland Criminal Defense Attorneys’ Association: Steven M. Klepper, Esquire, Kramon & Graham, P.A., One South Street, Suite 2600, Baltimore, MD 21202-3201, Megan E. Coleman, Esquire, MarcusBonsib LLC, 6411 Ivy Lane, Suite 116, Greenbelt, MD 20770.

Argued before: Fader, C.J., Watts, ^*Hotten, Booth, Biran, Gould, Eaves, JJ.

Biran, J.

The General Assembly has enacted criminal laws that can result in serious penalties for those who create and possess child pornography. In addition, when a parent, household member, or permanent or temporary caregiver exploits a child by using the child as a subject for child pornography, that person can be prosecuted for child sexual abuse, an offense that also carries serious potential penalties. The General Assembly has created this regime of criminal laws because it strives to protect children from such abuse.

Of course, not all photos of naked children are pornographic. For example, when children are very young, it is not uncommon for parents to take photos or make videos of their children taking baths. Those types of innocent photos are not pornographic. But, unfortunately, some adults create images of children that are not innocent. In many cases, whether an image constitutes child pornography cannot seriously be disputed. For example, if a child is videotaped engaging in a sex act, the resulting video will constitute child pornography. However, where sexual contact is not depicted – and especially where a child is too young to express an attitude that in someone older would seem to express coyness or sexual desire – it may be more difficult to discern whether an image is innocent or pornographic.

Petitioner Roseberline Turenne took eight photographs of very young girls who were in her care when she worked as an aide at a daycare facility. All eight photos showed the children’s naked genitals and pubic areas. None of the photos showed the children’s faces. None of the photos depicted any sexual contact. On the day the photographs were discovered, Ms. Turenne told investigators that she took the photos for "no reason" and that the photos had "no meaning."

Based on the eight photos, Ms. Turenne was charged with: eight counts of child sex abuse, in violation of Md. Code, Crim. Law ("CR") § 3-602(b)(1) (2021 Repl. Vol.); eight counts of production of child pornography, in violation of CR § 11-207(a)(1); and eight counts of possession of child pornography, in violation of CR § 11-208(b)(2).¹ The State’s theory was that the photos were child pornography because they constituted lascivious exhibitions of the children’s genitals. With respect to the child sex abuse charges, the State contended that Ms. Turenne sexually exploited the children by taking the photos to obtain sexual gratification.

At her jury trial, Ms. Turenne testified that the reason she took the photos had nothing to do with sexual gratification. Rather, she told the jury, she took the photos to document diaper rashes that she saw on each of the children. The jury found Ms. Turenne guilty on all counts. The Appellate Court of Maryland affirmed Ms. Turenne’s convictions.

As discussed below, we conclude that the evidence was sufficient for the jury to conclude that Ms. Turenne took the photos of the children for the purpose of sexual gratification. Therefore, we shall affirm Ms. Turenne’s convictions for child sexual abuse.

With respect to the child pornography charges, we hold that whether an image constitutes a "lascivious exhibition" of a child’s genitals or pubic area is determined by applying a "content-plus-context" test under which the trier of fact considers: (1) the contents of the image; and (2) the context of the image, i.e., the totality of the circumstances that directly relate to the exhibition of the genitals or pubic area. After reviewing the contents and context of a contested image, the trier of fact must determine whether the image is objectively sexual in nature.

Applying that analysis to this case, we conclude that the evidence was sufficient for the jury to conclude that the photos at issue depicted the lascivious exhibition of the children’s genitals and pubic areas. Accordingly, we also affirm Ms. Turenne’s convictions for production and possession of child pornography.

I Background

A. Facts

We provide the following factual summary, based on the evidence introduced at trial and viewed in the light most favorable to the State, as the prevailing party. See, e.g., State v. Krikstan, 483 Md. 43, 63, 290 A.3d 974 (2023).

1. The Discovery of the Photographs

On June 10, 2021, Ms. Turenne was working at a daycare center ("the Center"), in Salisbury, Maryland, as a teacher’s aide. The Center cares for children between eight weeks and five years old and groups the children into classrooms based on age. Teachers’ aides "float" between classrooms and assist the teachers as needed. Teachers and aides change children’s diapers throughout the course of the day.

Ms. Turenne, who was 18 years old on June 10, 2021, worked primarily in the toddler area of the Center, but also floated among different classrooms, particularly in the afternoon as teachers left for the day. On the afternoon of June 10, Ms. Turenne handed her cellphone to Nadasia Miller, another aide at the Center, while the two women were together in the Center’s break room. Ms. Turenne gave Ms. Miller her phone so that Ms. Miller could view an adult pornographic video on the phone. After watching a portion of the video that Ms. Turenne wanted her to see, Ms. Miller noticed several photographs in the camera roll of Ms. Turenne’s phone. As Ms. Miller described them at trial, those photos displayed chil- dren’s "vaginas." One of the images that Ms. Miller saw showed a child on what Ms. Miller recognized as one of the Center’s changing tables. Another image showed a child standing in one of the Center’s bathrooms; Ms. Miller recognized the bathroom floor. After realizing that these photos had been taken at the Center, Ms. Miller gave Ms. Turenne her phone back, left the break room, and immediately reported what she had seen to the Center’s manager, Barbara Brittingham. Ms. Brittingham then contacted Child Protective Services.

2. The Interview of Ms. Turenne

Later in the afternoon on June 10, Detective M. Rockwell² of the Salisbury City Police Department and Amy Kelly, a social worker, arrived at the Center and interviewed Ms. Turenne.³ Detective Rockwell obtained Ms. Turenne’s consent to make an audio recording of the interview. At the outset of the interview, Ms. Turenne denied that there were any pictures of children in her phone. Ms. Turenne unlocked her cellphone and consented to Detective Rockwell viewing the images on the phone. Detective Rockwell then inspected the camera roll of Ms. Turenne’s phone.

The first image that Detective Rockwell asked Ms. Turenne about was, according to Ms. Turenne, not an image of a child. Ms. Turenne said that item was created on TikTok and sent by another person to her as part of a group message. Detective Rockwell seemed to agree that this TikTok item did not involve a child, because he then explained that he "just want[ed] to make sure there’s no little kids on [Ms. Turenne’s] phone."

However, as Detective Rockwell continued to scroll through Ms. Turenne’s camera roll, he discovered several pictures displaying the genitals and pubic areas of children who looked to be of infant or toddler age. When Detective Rockwell showed Ms. Turenne the picture of a "baby" that he saw in the camera roll, Ms. Turenne claimed that the image was not of a baby and that she had obtained it from Google. Detective Rockwell then showed Ms. Turenne another picture of a child in her camera roll and said, "See, that’s a child." Ms. Turenne claimed that picture also was not of a child. Ms. Turenne said the pictures had been sent to her by others through the application WhatsApp and automatically downloaded to her camera.

After Ms. Turenne offered these explanations, Detective Rockwell left the room, taking Ms. Turenne’s phone with him. He then walked around the Center with Ms. Brittingham and photographed several of the Center’s changing tables. Only one changing table was located in a bathroom in the Center; the top of that changing table was fitted with a red mat. It appeared to Detective Rockwell that some of the children in the photos on Ms. Turenne’s phone had been photographed while lying on changing tables that he saw while walking around the Center.

Detective Rockwell then returned to the room where Ms. Turenne and Ms. Kelly were located. He asked Ms. Turenne, "Were any of the nude pictures of the children taken in this building?" Ms. Turenne replied, "To tell you the truth, yes." Ms. Turenne told Detective Rockwell and Ms. Kelly several times that she did not know why she had taken the pictures, that she had taken them for "no reason," and that there was "no meaning" to the pictures. Ms. Turenne also repeatedly told the investigators that she had intended to delete the photos from her phone but had forgotten to do so. Ms. Turenne stated that she never sent the images of the children to anyone else or sold them, and that the pictures were just for herself.

Ms. Turenne was terminated from her job at the Center on June 10, 2021. Detective Rockwell retained Ms. Turenne’s cellphone as evidence. A forensic extraction of data from Ms. Turenne’s cellphone yielded eight distinct images of very young nude girls, all of which focused on the...