State v. Cannon

                                        29

    Argued and submitted June 5, 2023, convictions on Counts 1 through 4
 reversed, remanded for resentencing, otherwise affirmed September 13, 2023


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                        DAVID LEE CANNON,
                         Defendant-Appellant.
                     Lincoln County Circuit Court
                         18CR08044; A176436
                                   

     Defendant appeals from a judgment convicting him of two counts of first-degree encouraging child sexual abuse (Counts 1 and 3), ORS 163.684, two counts
of second-degree encouraging child sexual abuse (Counts 2 and 4), ORS 163.686,
and one count of bribe giving (Count 11), ORS 162.015, raising 11 assignments
of error. In his first and second assignments of error, defendant contends that
the trial court erred in denying his motion for judgment of acquittal on Counts
1 through 4 because the images those counts related to did not depict lewd exhibitions of sexual or other intimate parts and, therefore, did not show “sexually
explicit conduct involving a child” as required under ORS 163.684 and ORS
163.686. Held: Applying the Court of Appeal’s recent decision in State v. Parra-Sanchez, 

, 

 (2023), and considering the objective elements of the images in light of that decision and the Dost factors, the court agreed
that the state failed to present legally sufficient evidence that the two images in
question were “objectively lewd” or “salacious or focused on sex.” Parra-Sanchez,

. Therefore, the images did not depict “[l]ewd exhibition[s]
of sexual or other intimate parts” constituting “sexually explicit conduct involving a child,” and the trial court erred in denying defendant’s motion for a judgment of acquittal on Counts 1 through 4 relating to those images. That conclusion
was dispositive and obviated the need to consider defendant’s other assignments.
    Convictions on Counts 1 through 4 reversed; remanded for resentencing;
otherwise affirmed.



    Thomas O. Branford, Senior Judge.
   Laura A. Frikert, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
30                                     State v. Cannon

  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
     SHORR, P. J.
   Convictions on Counts 1 through 4 reversed; remanded
for resentencing; otherwise affirmed.
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           SHORR, P. J.
         Defendant appeals from a judgment convicting
him of two counts of first-degree encouraging child sexual
abuse (Counts 1 and 3), ORS 163.684, two counts of second-degree encouraging child sexual abuse (Counts 2 and 4),
ORS 163.686, and one count of bribe giving (Count 11), ORS
162.015.1 Defendant received sentences of life imprisonment
without the possibility of parole on Counts 1 through 4.
Although defendant raises 11 assignments of error in total,
we only address his first and second assignments of error, in
which he contends that the trial court erred when it denied
his motion for judgment of acquittal on Counts 1 through 4.
Applying our recent decision in State v. Parra-Sanchez, 

, 

 (2023), we agree that the state
failed to present legally sufficient evidence that the two
images in question depicted “[l]ewd exhibition[s] of sexual
or other intimate parts” constituting “sexually explicit conduct involving a child.”2 ORS 163.665(3)(f); ORS 163.684;
ORS 163.686. That conclusion is dispositive and obviates
the need to consider defendant’s other assignments.3 Thus,
we reverse defendant’s convictions on Counts 1 through 4
and remand for resentencing on the remaining bribe giving
count.
        On review of the denial of a motion for judgment
of acquittal, we view the facts in the light most favorable
to the state and evaluate whether a rational trier of fact
could have found the essential elements of the crime beyond

    1
      Defendant does not raise any assignments of error that concern the bribe
giving conviction, and thus we do not review that conviction. The state dismissed
Counts 5 and 6 during trial. The jury could not reach a verdict on Counts 7
through 10, and the state ultimately dismissed those counts as well.
    2
      Defendant presents other arguments in support of those assignments of
error, but we need not consider them due to our conclusion that the images in
question did not constitute sexually explicit conduct involving a child.
    3
      In defendant’s third through ninth assignments of error, he asserts that the
trial court erred in admitting evidence regarding a partial watermark present
on Exhibits 40 and 42, in admitting evidence of defendant’s prior sexual abuse
convictions as well as the facts and circumstances of those convictions, and in
admitting a postcard defendant had written to Governor Kate Brown. Because
we conclude that the trial court erred in denying defendant’s motion for judgment of acquittal on Counts 1 through 4, we need not consider those assignments
of error. Likewise, we need not consider defendant’s tenth and eleventh assignments of error, which assert alleged sentencing errors relevant to those counts.
32                                                  State v. Cannon

a reasonable doubt. State v. Bates, 

, 

 (2020). We recount the relevant facts in accordance
with that standard.
         This case originated when defendant purchased a
laptop computer from a pawn shop in Newport and returned
it two weeks later. During the shop’s routine process of “wiping” the computer for resale, they discovered several images
of children in no or little clothing. A shop employee reported
the images to the Newport Police Department. The discovery
of those images ultimately resulted in a warrant for defendant’s arrest and his indictment for the charges described
above.
        Before considering the evidence admitted at trial
and the specific content of the images at issue, we briefly
recount the legal framework applicable to first- and second-degree encouraging child sexual abuse. As relevant here,
        “(1) A person commits the crime of encouraging child
     sexual abuse in the first degree if the person:
        “(a)(A) Knowingly … duplicates … a visual recording of sexually explicit conduct involving a child …; [and]
        “…
        “(b) Knows or is aware of and consciously disregards
     the fact that creation of the visual recording of sexually
     explicit conduct involved child abuse.”
ORS 163.684(1). Additionally, as relevant here,
        “(1) A person commits the crime of encouraging child
     sexual abuse in the second degree if the person:
         “(a)(A)(i) Knowingly possesses … a visual recording
     of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person; [and]
        “…
        “(B) Knows or is aware of and consciously disregards
     the fact that creation of the visual recording of sexually
     explicit conduct involved child abuse[.]”
ORS 163.686(1)(a). ORS 163.665 further defines several of
the key terms used in those statutes. As relevant here, it
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defines “[c]hild abuse” as “conduct that constitutes, or would
constitute if committed in this state, a crime in which the
victim is a child.” ORS 163.665(2). It also defines “[s]exually
explicit conduct” in the following way:
      “(3) ‘Sexually explicit conduct’ means actual or
   simulated:
      “(a) Sexual intercourse or deviant sexual intercourse;
       “(b) Genital-genital, oral-genital, anal-genital or oralanal contact, whether between persons of the same or opposite sex or between humans and animals;
      “(c) Penetration of the vagina or rectum by any object
   other than as part of a medical diagnosis or treatment or as
   part of a personal hygiene practice;
      “(d) Masturbation;
      “(e)   Sadistic or masochistic abuse; or
      “(f) Lewd exhibition of sexual or other intimate parts.”
ORS 163.665(3) (emphases added). Here, the state contended
that the images depicted sexually explicit conduct because
they showed “[l]ewd exhibition[s] of sexual or other intimate
parts.” ORS 163.665(3)(f).
         At the time defendant moved for a judgment of
acquittal on the charges of first- and second-degree encouraging child sexual abuse, a “lewd exhibition” was understood to mean an “exhibition with the intent of stimulating
the lust or sexual desires of the person who views it.” State
v. Meyer, 

, 

 (1993). In the
typical case involving photographic images, the focus of that
element was on the intent of the photographer and whether
the photographs were “taken with the intention of arousing
the sexual desire of people viewing them.” State v. Mross,

, 

 (2015), rev den, 

 (2016); see also State v. Navaie, 

,

 (2015), rev den, 

 (2016) (“[W]hether
a photograph depicts a ‘lewd exhibition’ depends upon the
circumstances of the photograph’s creation.”). In opposing
defendant’s motion for a judgment of acquittal, the state
relied on Meyer, Mross, and Navaie.
34                                           State v. Cannon

         Two other cases that controlled at that time elaborated on that standard. In State v. Evans, 

,

 (2001), overruled by Parra-Sanchez, 

, we considered whether the state had presented
sufficient evidence that a “lewd exhibition” occurred when
the defendant encouraged his fiancée, children, and fiancée’s eight-year-old daughter to “get naked” before the family watched a movie together, volunteered to teach the eight-year-old how to dance, and then proceeded to slow-dance
with the child when both were naked in such a way that
his un-erect genitals “were pressed into her stomach.” Id. at
441. No photographs were taken and the dance itself was the
alleged “lewd exhibition.” Id. at 441-42. In concluding that
the evidence was sufficient for a jury to conclude that a lewd
exhibition had occurred, we focused on evidence that supported an inference as to the “defendant’s scienter”; in other
words, the defendant’s sexual purpose was the deciding factor in our conclusion that a lewd exhibition had occurred.
Id. at 445-47.
         Then, in State v. Smith, 

, 

 (2014), overruled by Parra-Sanchez, 

, we cited favorably to Evans and defined “a lewd
exhibition [as] one that would produce lust or sexual desire
in the viewer, as determined from the perspective of the
person charged under the statute.” That case involved photographs of a child that the defendant had taken himself,
and we emphasized the evidence from which a jury could
infer the defendant’s sexual purpose in taking the photographs. 

 Although the state here did not cite Evans or
Smith in the trial court, those cases were nevertheless part
of the controlling legal landscape at the time of trial and
further focused the question of whether a “lewd exhibition”
had occurred on whether the creator of the exhibition had a
sexual purpose.
         With that legal background in mind, we return to
the facts adduced at trial. The specific images that resulted
in defendant’s convictions were admitted as state’s Exhibits
40 and 42. The state did not admit any evidence regarding the creation of the images, and thus the only evidence
before the jury was the images themselves. See Mross, 274
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Or App at 306 (explaining that circumstantial evidence and
reasonable inferences flowing from the photograph itself are
sufficient to establish the “lewd exhibition” element).
         Exhibit 40 is a screenshot of a photo, taken on an
Android device and later saved to defendant’s computer,
that depicts a girl of approximately “ten to twelve years
of age,” standing with her legs slightly apart and eating a
piece of cake outside. She is not directly facing the photographer but is instead turned slightly to the side approximately
45 degrees. The girl’s plate of cake is at the center of the
portrait-orientation image, which is cropped on all sides
to focus on the girl and not her surroundings. The image
shows the girl’s body from the top of her head down to her
mid-thighs, with only the very top of her head and a small
portion of one arm cropped out of the image. She has evidently been swimming, as she is wearing a two-piece swimsuit and has a pair of swim goggles looped through one arm.
Her hair, skin and swimsuit are visibly wet. Although her
hands, arms, and plate of cake cover much of her chest area,
her swim bottoms are in full view. The outline of her covered
labia is visible through the fabric of the bottoms. Her eyes
are focused on the plate of cake and not the photographer.
A pink star and the words “Prime J” are visible in the right
bottom corner of the image.
         Exhibit 42 is also a screenshot of a photo, taken on
an Android device and later saved to defendant’s computer.
It depicts a girl of approximately the same age, in a red
t-shirt and a pair of short, light-blue shorts,4 laying on her
right side in grass outdoors. She is facing the photographer
and has propped herself up with her right arm. The portrait-orientation image is centered on the girl rather than her
surroundings, with her head on the left side of the image
and the top of her thighs on the right side of the image.
Although the lower portion of her legs are cropped out of the
image, it is evident from her positioning that her right leg is
laying on the grass while her left leg is propped up. In other
words, her legs are spread open, exposing her clothed pubic
area. The thin fabric of her shorts are riding up into her
     4
       Testimony from Special Agent Page McBeth proposed that the girl’s shorts
may in fact be underwear. Regardless, they provide coverage equivalent to that
of a pair of short shorts.
36                                                          State v. Cannon

labia, making the outline of her labia visible through her
shorts. Her head is tilted slightly to her left and down while
her eyes are looking up one or two feet at the photographer.
She is not smiling. In the bottom right of the image, the
same pink star and the text “Pr” are visible.
          Additionally, the state presented the testimony
of Special Agent Page McBeth, an agent with the Oregon
Department of Justice who conducted a forensic examination of defendant’s computer. He testified that he recognized the star and text displayed on the bottom right of
Exhibits 40 and 42 as being part of a watermark.5 In an
effort to identify the full watermark, McBeth contacted the
Homeland Security Child Exploitation Unit. That unit sent
him a full watermark that was consistent with the partial
watermarks on Exhibits 40 and 42 and that read “primejailbait.com.” After receiving that tip, McBeth accessed an
archived version of primejailbait.com that contained images
displaying the full watermark, although neither Exhibits 40
nor 42 were among the images on the archived site. McBeth
testified that, as far as he could tell from his investigation,
primejailbait.com appeared to “collect[ ] photographs and
then publish[ ] them on the internet.” He also agreed that
the presence of the partial watermark did not provide any
information “about what individual actually created the
photograph” or show that defendant had personally visited
primejailbait.com. McBeth testified that he had viewed
thousands of images of child exploitation and had not seen
other images of the girls pictured in Exhibits 40 and 42.6
    5
       McBeth explained that, in his experience with “child exploitation cases,”
watermarks were put on images “to identify the group of people who are putting
these images together” and to make the images searchable online. He added that
a watermark was “kind of like, uh, graffiti on a wall. It’s identifying the person
who puts the graffiti up.” He reiterated: “The people or person who puts these
watermarks in is identifying to the people that are seeking these particular photographs that, hey, these belong to me or this is mine or this is where you can get
them.”
    6
       In defendant’s third and fourth assignments of error, he contends that the
trial court erred in admitting evidence of the primejailbait.com watermark and
website. Specifically, defendant contends that the watermark was not authenticated in that the state did not present a prima facie case that the watermark was
added to the images by the photographer, that the watermark was inadmissible
hearsay, that the watermark and website were not relevant to the photographer’s
or defendant’s intent, that the watermark and website should have been excluded
because they were substantially more prejudicial than probative, and that those
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         After the above was received into evidence and
the state rested its case, defendant moved for a judgment
of acquittal on the basis that Exhibits 40 and 42 did not
show a “lewd exhibition of sexual or other intimate parts.”
Defendant argued that the images were “so mainstream for
what’s out there in the world every day” and that “a reasonable jury could not conclude beyond a reasonable doubt that
the intention of the photographer was to create lust or desire
on the part of the viewer.” The court denied the motion. As
to Exhibits 40 and 42, the court stated:
    “[O]n Exhibit 40, it has the characteristics, but it also has
    the Prime J. And with that testimony about what that
    means, which helps to ratify the intent of the creator to create an image of sexually explicit conduct[.] Once again, it’s
    full frontal. If the child were not in that position, uh, then
    the image—the outline of the vagina wouldn’t be clear. Um,
    but it appears that the photographer deliberately selected
    a view.
        “And even with this, if you will, the right leg is slightly
    behind the left leg, which makes the vagina more visible. If
    the right leg were in front of the left, it might conceal a portion of it. But it’s like maximum exposure for a girl simply
    in a standing pose.
      “When I say maximum exposure, I’m talking about
    maximum exposure of the outline of her vagina.
       “It also has the Prime J on it, which, uh, helps identify
    the purpose of the photographer.
       “In Number 42 it has [Pr]. Um, again, it’s a photo with
    a girl’s legs spread. It’s clearly a pose. It’s not simply a girl
    in a field. Uh, her head is down in what may have been
    intended to depict a provocative pose or a come hither pose.
    But it’s—it absolutely appears to be intended to elicit sexual urges.”

errors were not harmless. Because we ultimately conclude that the state did not
present legally sufficient evidence that Exhibits 40 and 42 depicted lewd exhibitions constituting sexually explicit conduct, we need not consider those asserted
errors. However, we note that, even though the trial court admitted the watermark evidence in limine on the basis that it was probative of the photographer’s
sexual purpose, McBeth ultimately testified that the watermark did not provide
any information “about what individual actually created the photograph.” Thus,
as we discuss below, the watermark evidence was not ultimately relevant for that
purpose.
38                                                           State v. Cannon

Defendant was subsequently convicted of the charges
described above by a unanimous jury7 and this timely
appeal followed. As explained above, defendant’s first and
second assignments of error assign error to the trial court’s
denial of his motion for judgment of acquittal on Counts 1
through 4, pertaining to Exhibits 40 and 42.
         Having summarized the controlling legal landscape
at the time of the trial as well as the evidence presented
regarding Exhibits 40 and 42, we lastly review the development in our case law that has occurred since that time.
After briefing in this case was submitted, we decided Parra-Sanchez, 

. In that case, the defendant
had been convicted of five counts of using and attempting
to use a child in a display of sexually explicit conduct, ORS
163.670, based on his conduct in observing his daughter “in
a state of full or partial undress” while she was showering
and in her bedroom after showering on various occasions.

. The main issue on appeal was whether the state
had presented legally sufficient evidence that a “[l]ewd exhibition of sexual or other intimate parts” as set forth in ORS
163.665(3)(f) had occurred. 

.
          Considering the text, context, and legislative history of ORS 163.670 and ORS 163.665, we concluded that
“the state must prove that the exhibition of a child’s sexual
or intimate parts was objectively lewd, not simply that defendant found it to be sexually gratifying.” 

 (emphasis
in original). Further, we explained that to be “objectively
lewd,” the exhibition must be “itself salacious or focused on
sex. Thus, mere nudity can be encompassed in the definition of ‘lewd exhibition’ when it can be said to be lascivious

      7
        Consistent with the legal standard for a “lewd exhibition” that controlled at
the time of trial, the jury was instructed that a “lewd exhibition” was an “exhibition with the intent of stimulating the sexual desires of the person who views
it,” that “[t]he State must prove that the photographer intended the image itself
to arouse the sexual desires of people who view it[,]” and that “[t]he law does not
require that the subject of the photograph be nude.” In a supplemental assignment of error, defendant contends that, in light of Parra-Sanchez, the trial court
also erred in instructing the jury in that manner. In its supplemental brief, the
state agrees that the instruction did not correctly state the law as it is now understood under Parra-Sanchez. However, as we ultimately conclude that the trial
court erred in denying defendant’s motion for judgment of acquittal, we need not
consider the supplemental assignment of error.
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or salacious—not simply nudity in the context of ordinary,
daily activities such as showering or dressing.” Id. at 721.
         We then turned to our prior case law defining a
“lewd exhibition,” noting that Evans and Smith had treated
evidence that the defendants received sexual gratification
from the displays as sufficient to establish that lewd exhibitions had occurred. Id. at 731-32. We disavowed the suggestion those cases presented that “the objective nature of the
display at issue is not a necessary consideration to determine
whether there has been a ‘lewd exhibition,’ ” and explained
that our decisions in Evans and Smith “were based on a misreading of Meyer and … contrary to the plain meaning of
the text of the statute.” Id. at 732. We clarified:
   “Meyer’s standard was an objective one, based on the characteristics of the particular exhibition alleged to have been
   lewd. In Evans and Smith, we purported to apply that standard by echoing it, but instead, without analysis, we transmuted it into a new standard, holding that an exhibition of
   a child’s sexual or other intimate parts meets the statutory
   definition so long as the subjective purpose of the defendant
   allowing or creating the display is to elicit a sexual response
   from the defendant or someone else. In so doing, though, we
   gave the statute a meaning that is not communicated to the
   ordinary reader by its terms, and that risks generating the
   constitutional problems the Oregon legislature was intentionally trying to avoid by drafting the Oregon statutes to
   comport with [the United States Supreme Court’s decisions
   in [Miller v. California, 

, 

, 

 (1973), and New York v. Ferber, 

, 

, 

 (1982)]. Under those circumstances,
   we decline to afford Evans and [Smith] the weight of stare
   decisis, to the extent they can be read to interpret ‘lewd
   exhibition’ to include visual perception of a nude child without any other implication of explicit sex, simply because a
   defendant who observed the child’s exposed sexual or other
   intimate parts in those contexts did so for the defendant’s
   own sexual gratification.”
Id. at 732-33.
         Finally, we summarized that
   “ ‘lewd exhibition’ means the showing of a child’s sexual or
   other intimate parts that is itself salacious or focused on sex.
   Further, because of the deep ties between child pornography
40                                                         State v. Cannon

     on one side, and constitutional obscenity law on the other,
     whether something constitutes a lewd exhibition is determined by reference to objective standards. That is something that must be assessed through an examination of the
     characteristics of the exhibition as it would be perceived by a
     viewer of the display or recording, and not through an examination of the subjective intentions of the child, the intended
     viewer, or the person creating the display, if that person is
     someone other than the child or the viewer.”
Id. at 733. We pointed to a set of six factors, described in
United States v. Dost, 

 (SD Cal 1986),
aff’d sub nom United States v. Wiegand, 812 F2d 1239 (9th
Cir) and aff’d 813 F2d 1231 (9th Cir), cert den, 

 (1987), that could assist factfinders and trial courts
in assessing whether a “lewd exhibition” had occurred.
Id. at 733-34. We cautioned against treating the factors “as
a checklist or as additional necessary elements of the crime,”
clarifying that
     “[t]he Dost factors are simply guideposts for a factfinder; a
     set of ‘neutral references and considerations to avoid decisions based on individual values or the revulsion potentially
     raised in a child pornography prosecution.’ [United States v.
     Rivera, 

 (2d Cir 2008), cert den, 

     (2009)]. A factfinder does not have to find all of them before
     concluding that there was a lewd exhibition; conversely, the
     absence of one does not require an acquittal. Further, some
     of the factors may not be relevant or useful in any given
     case. What weight should be given to any specific factor will
     depend ultimately on the circumstances of the trial.”
Id. at 735. We reiterated that the overriding purpose and
benefit of the factors is to “focus the inquiry on what is
presented in the depiction itself—not the defendant’s subjective state of mind.” Id. at 736. Returning to the facts of
the case and applying the correct legal standard, we concluded that the child’s conduct—showering and dressing in
“various states of nudity”—did not meet the standard for a
“lewd exhibition.” Id. at 736-37.8 We discuss the Dost factors,
    8
      We note that the trial court’s decision to deny the motion for judgment of
acquittal in the instant case predated our decision in Parra-Sanchez. The court
understandably ruled based on the law in effect at the time it ruled. On appeal,
however, we must apply the current law and not the law in effect at the time
that the trial court ruled. State v. Jury, 

, 

 (2002),
rev den, 

 (2003).
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as well as their application to the facts here, later in this
opinion.
         After we decided Parra-Sanchez, defendant submitted a memorandum of additional authorities to us, asserting
that, as in Parra-Sanchez, Exhibits 40 and 42 did not meet
the standard for a “lewd exhibition”:
   “The girls were not costumed for seduction or posed in a
   manner that was sexually exploitive or connoted sexual
   readiness. The girls’ acts of standing to have a picture
   tak[en] (Exhibit 40) or laying in the grass (Exhibit 42)
   were age appropriate. The mere visibility of the outline of
   their labia through their swimsuit and short bottoms while
   engaging in ordinary activities—like playing outside—is
   not a fact sufficient to make their conduct ‘lascivious or
   salacious.’ ”
At oral argument, the state conceded that Parra-Sanchez
“clearly makes it more difficult for the state.” Nevertheless,
the state posited that the presence of the partial watermark on the images could be inferential evidence that
primejailbait.com was the creator or source of the images,
which in turn could be inferential evidence that the images
were intended or designed to elicit a sexual response in the
viewer, which, as we will discuss, is the consideration raised
by the sixth Dost factor.
         With that background in mind, we return to defendant’s contention on appeal that the trial court erred in
denying his motion for judgment of acquittal on Counts 1
through 4, because Exhibits 40 and 42 did not depict a “lewd
exhibition of sexual or other intimate parts” and therefore
did not show “sexually explicit conduct involving a child” as
required under ORS 163.684 and ORS 163.686. Considering
Exhibits 40 and 42 in light of our decision in Parra-Sanchez
and the Dost factors, we agree.
         As explained above, Parra-Sanchez clarified that
for an image to constitute a “lewd exhibition of sexual or
other intimate parts,” the image must be “objectively lewd”
or “itself salacious or focused on sex.” 

. Further, whether an image is objectively lewd cannot
be determined solely on the sexual purpose of the creator or
photographer. See 

. Instead, that determination
42                                                  State v. Cannon

must be made “through an examination of the characteristics of the exhibition as it would be perceived by a viewer of
the display or recording, and not through an examination of
the subjective intentions of the child, the intended viewer,
or the person creating the display.” 

. In conducting
that examination, we consider the Dost factors:
     “ ‘1) whether the focal point of the visual depiction is on the
     child’s genitalia or pubic area; 2) whether the setting of the
     visual depiction is sexually suggestive, i.e., 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; 6) whether the visual depiction
     is intended or designed to elicit a sexual response in the
     viewer.’ ”

 at 734 (quoting Dost, 

). Those considerations are not “a checklist or … additional necessary
elements of the crime,” but are “simply guideposts” to help
“focus the inquiry on what is presented in the depiction
itself—not the defendant’s subjective state of mind.” Id. at
735-36.
         We apply that standard, along with the Dost considerations, to the images at issue in this case, beginning
with Exhibit 40, the image of the girl in the swimsuit eating
cake. First, the girl is in a swimsuit and her pubic area and
breasts are fully covered. Although the girl is the focal point
of the image, the image is not focused on her genitalia or
pubic area and the girl’s plate of cake is at the center of the
image. Second, the setting of the image is not sexually suggestive. The girl is standing outside in what appears to be a
backyard pool area rather than a place generally associated
with sexual activity, such as a bedroom. She is standing and
eating cake, which is not a pose generally associated with
sexual activity. Although the position in which she is standing may have exposed more of the outline of her labia than if
she had been alternatively standing with her feet together,
that alone is not sufficient for us to conclude that she is posed
in a manner that is generally associated with sexual activity. Third, the child is not depicted in an unnatural pose or
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in inappropriate attire for her age. Indeed, the photo appears
to have been a candid one, capturing a child who is engaged
in regular behavior for her age. Again, even if her stance is
such that the outline of her covered labia is somewhat more
pronounced than it would be in other stances, that alone
does not render her pose unnatural for her age. Although
the child is only partially clothed, her dress, a swimsuit,
is appropriate for her age and activities. Additionally, the
image does not suggest sexual coyness or a willingness to
engage in sexual activity. The child is not looking at the
camera and nothing about her pose or demeanor suggests
such coyness or willingness.
         Finally, the sixth Dost factor, whether the visual
depiction is intended or designed to elicit a sexual response
in the viewer, is at most ambiguous in this case. While it is
possible that the photo was taken to elicit a sexual response
in a certain type of viewer, it is just as likely that the image
was taken by a parent documenting a birthday party or
other festivities. In other words, on this record, we can only
speculate as to the intentions of the photographer, the creator of the image. Further, we disagree with the state’s contention that the presence of the partial “Prime J” watermark supports an inference that the image was intended or
designed to elicit a sexual response in the viewer. Although
the trial court admitted the watermark evidence in part
because “[t]he fact that it ends up on a place called Prime
Jailbait is probative [of] whether or not the photographer
intended it to be … sexual,” McBeth ultimately testified
that the presence of the partial watermark did not provide
any information “about what individual actually created the
photograph.” Thus, the evidence did not ultimately establish any connection between the original photographer
and primejailbait.com, meaning the presence of the partial
“Prime J” watermark cannot support the inference that the
photo was intended or designed to elicit a sexual response
in the viewer—even if the presence of the watermark might
indicate that at least someone believed that the image may
be of interest to those seeking child pornography.
       Considering those objective elements of Exhibit 40,
the image is not “objectively lewd” or “itself salacious or
44                                                        State v. Cannon

focused on sex.” Parra-Sanchez, 

.
As a result, the state’s evidence was insufficient to prove
that Exhibit 40 showed sexually explicit conduct involving
a child, and the trial court erred in denying defendant’s
motion for a judgment of acquittal on Counts 1 and 2 relating to that image.
          Next, we consider Exhibit 42, the image of the girl
in the red shirt and blue shorts. The focal point of this image
is also not the child’s genitalia or pubic area; although the
child is the focus of the image, her covered pubic area is just
barely in frame and is covered by a shadow. The setting, a
grass lawn, is also not sexually suggestive. The child is fully
clothed in a t-shirt and shorts, which is appropriate attire
for a child of her age. Although the child is posed in a manner that could be sexually suggestive under some circumstances, it is also not an unnatural pose for a child her age
or one that is generally associated with sexual activity. The
child’s expression, which the trial court described as a “come
hither” look, combined with her physical positioning, could
suggest sexual coyness. Similarly, those elements of the photograph could support an inference that the photographer
intended or designed the image to elicit a sexual response in
a certain type of viewer.9 However, on balance, those slightly
suggestive elements of the image are insufficient to render
the image “objectively lewd” or “itself salacious or focused on
sex.” Notably, the child’s covered pubic area is not the focal
point of the image and is in fact barely in frame, and the
child is fully clothed in appropriate attire in a nonsexual
setting, engaged in behavior that is not inherently sexual
or inappropriate for her age. For those reasons, we conclude
that Exhibit 42 does not depict a “lewd exhibition of sexual
or intimate parts” as a matter of law, and the state’s evidence was therefore insufficient to establish that Exhibit 42
depicted “sexually explicit conduct involving a child.” As a
result, the trial court erred in denying defendant’s motion
for a judgment of acquittal on Counts 3 and 4.
          Because the trial court erred in denying defendant’s
motion for judgment of acquittal on Counts 1 through 4, we
    9
      As with Exhibit 40, the partial “Pr” watermark does not support an inference that the photographer or the creator of the image intended or designed the
image to elicit a sexual response in the viewer, for the reasons explained above.
Cite as 

 (2023)                              45

reverse those convictions and remand the case for resentencing on the bribe giving count.
         Convictions on Counts 1 through 4 reversed; remanded
for resentencing; otherwise affirmed.