RILEY, J.
. . . Indiana Code section 35-42-4-4 defines two separate crimes: child exploitation, a Class C felony, and possession of child pornography, a Class D felony. Specifically, subsection (b) provides: A person who knowingly or intentionally: (1) manages, produces, sponsors, presents, exhibits, photographs, films, videotapes, or creates a digitized image of any performance or incident that includes sexual conduct by a child under eighteen (18) years of age; (2) disseminates, exhibits to another person, offers to disseminate or exhibit to another person, or sends or brings into Indiana for dissemination or exhibition matter that depicts or describes sexual conduct by a child under eighteen (18) years of age; or (3) makes available to another person a computer, knowing that the computer’s fixed drive or peripheral device contains matter that depicts or describes sexual conduct by a child less than eighteen (18) years of age; commits child exploitation, a Class C felony. Meanwhile, subsection (c) provides:
A person who knowingly or intentionally possesses:
(1) a picture;
(2) a drawing;
(3) a photograph;
(4) a negative image;
(5) undeveloped film;
(6) a motion picture;
(7) a videotape;
(8) a digitized image; or
(9) any pictorial representation;
that depicts or describes sexual conduct by a child who the person knows is less than sixteen (16) years of age or who appears to be less than sixteen (16) years of age, and that lacks serious literary, artistic, political, or scientific value commits possession of child pornography, a Class D felony.
Our legislature has, for good reason, decided to punish the production and distribution of child pornography more broadly-extending to matter portraying sixteen and seventeen year olds-and more severely-Class C felony-than mere possession of child pornography, which concerns only children under sixteen and is a Class D felony.
Here, the State charged Salter with forty-six counts of child exploitation based on two different groups of pictures. M.B. e-mailed thirty-eight pictures of herself to Salter, which Salter downloaded to his computer and saved to a CD. Salter also downloaded eight pictures of naked children from various nudist websites and saved them on a CD. The State contends that a person who uses a computer to download an electronic image and save it on a CD “creates a digitized image” as that phrase is used in Indiana Code subsection 35-42-4-4(b). We disagree.
. . . .
Regardless of the language used-“create,” “reproduce,” or “depict or describe”-the aim of statutes like ours, New Jersey’s, and Maryland’s is the same: to stop the creation of child pornography. Here, Salter did not “create” any of the images underlying Counts 1-46; M.B. created the thirty-eight pictures of herself, and some unknown person created the eight images of the other children before they were posted on the nudist websites visited by Salter. By downloading the images of M.B. and the other children and burning them onto CDs, Salter only saved copies of them, i.e., he possessed them. We therefore reverse Salter’s convictions for child exploitation.
. . . .
Indiana Code section 35-49-3-3 provides, in pertinent part:
(a) Except as provided in subsection (b), a person who knowingly or intentionally:
(1) disseminates matter to minors that is harmful to minors;
(2) displays matter that is harmful to minors in an area to which minors have visual, auditory, or physical access, unless each minor is accompanied by the minor’s parent or guardian; . . .
commits a Class D felony.
“Matter” includes “any picture, drawing, photograph, motion picture, digitized image, or other pictorial representation,” and “minor” is defined as “any individual under the age of eighteen (18) years.” I.C. §§ 35-49-1-3, -4. Salter does not deny that he disseminated or displayed “matter” to M.B. or that M.B. was a “minor” for purposes of the statute. [Footnote omitted.]  Rather, he contends that “[n]o person of ordinary intelligence would think that he could legally have sexual relations with another person, but could not send that same person an electronic image of his genitals.” . . .We understand Salter’s argument to be that he had no way of knowing that pictures of his genitals would be considered “harmful” to M.B., given that, under Indiana law, he could have been naked in front of M.B. and had sex with her without violating any law. Again, we must agree. [Footnote omitted.]
The question is whether Indiana Code section 35-49-3-3 would give a person of ordinary intelligence fair notice that sending a picture of his or her genitals to a sixteen-year-old is forbidden. See Brown, 868 N.E.2d at 467. The statute targets matter that is “harmful” to minors, and matter is “harmful to minors” if:
(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse;
(2) considered as a whole, it appeals to the prurient interest in sex of minors;
(3) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors; and
(4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.
I.C. § 35-49-2-2. As applied to Salter’s case, even assuming, arguendo, that elements (1), (2), and (4) are satisfied, the issue still remains whether Salter had fair notice that pictures of his genitals are “patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors[.]” We conclude that he did not.
Salter sent the pictures of his genitals to M.B., who, at sixteen, was old enough to consent to sexual relations in Indiana. See I.C. § 35-42-4-9; see also Williams v. State, 178 Ind. App. 554, 383 N.E.2d 416, 418 (1978) (“Only when a female reaches the age of consent, i.e. sixteen years old . . . .” (emphasis added)). [Footnote omitted.] Such sexual activity could involve varying degrees of nudity and necessarily involves some exposure of the genitals. By setting the legal age of consent at sixteen, the Indiana legislature has made an implied policy choice that in-person viewing of another person’s genitals is “suitable matter” for a sixteen- or seventeen-year-old child. That being so, how could Salter have known that a picture of his genitals would be “harmful,” that is, not “suitable,” for M.B.? Asked another way, if such images are harmful to sixteen- and seventeen-year-old children, then why would our legislature allow those children to view the same matter in-person, in the course of sexual activity? [Footnote omitted.] These questions reveal the flaw in Indiana Code section 35-49-3-3 as applied to Salter: when read in light of well-established Indiana law setting the age of consent to sexual relations, it did not provide him with fair notice that the State would consider pictures of his genitals harmful to or unsuitable for a sixteen-year-old girl.
DARDEN, J., concurs.
VAIDIK, J., concurs in part and dissents in part with separate opinion:
I respectfully dissent from the majority’s conclusion that Indiana Code § 35-49-3-3 is void for vagueness and with its decision to reverse Salter’s convictions for dissemination of matter harmful to minors (Counts 47-51). I otherwise concur with the majority.
. . . .
In sum, I believe that Indiana Code § 35-49-3-3 is clear: a person who knowingly or intentionally disseminates or displays matter to minors that is harmful to minors is guilty of a Class D felony. M.B. is a minor, and Indiana Code § 35-49-2-2 sufficiently defines “harmful to minors.” Accordingly, I do not believe that “harmful to minors” is void for vagueness. I would therefore affirm Salter’s convictions for dissemination of matter harmful to minors.