Circuit Court for Charles County Case No. 08-J-17-000023
Arthur, Fader, Thieme, Raymond G., Jr. (Senior Judge,
Specially Assigned), JJ.
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. 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.
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
Sherriff'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.
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
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.
apply the same evidentiary standard in juvenile delinquency
cases that we apply in criminal cases. In re Elrich
S., 416 Md. 15, 30 (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." Brown v. State, 234
Md.App. 145, 152 (2017) (quoting Dixon v. State, 302
Md. 447, 450 (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 (2004)
(quoting Walter v. Gunter, 367 Md. 386, 392 (2002)).
The Juvenile Court Did Not Err in Finding S.K.
Involved in the Distribution of Child Pornography.
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." 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
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.
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. 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.
resolving this question of interpretation, we apply the
standard tools of statutory construction. State v.
Bey, 452 Md. 255, 265 (2017). We ascertain legislative
intent by affording "words their natural and ordinary
meaning, " Davis v. State, 426 Md. 211, 218
(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
(quoting State v. Johnson, 415 Md. 413, 421 (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 (2005).
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 (quoting Johnson, 415 Md. at 421-22).
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 (2018) (quoting
Huffman v. State, 356 Md. 622, 628 (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 (2015). Our
"interpretation must be reasonable, not 'absurd,
illogical or incompatible with common sense.'"
Neiswanger Mgmt. Servs., 457 Md. at 459 (quoting
Lockshin v. Semsker, 412 Md. 257, 276 (2010)).
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
(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.
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).
not dispositive, dictionary definitions "provide a
useful starting point" for statutory interpretation.
Montgomery Cty. v. Deibler, 423 Md. 54, 67 (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 ...