May, J.
. . . Delagrange, outfitted with video camera mounted to his shoe and controlled through an apparatus in his pants, traveled to Castleton Square Mall in Indianapolis. Once at the mall, Delagrange recorded images of the area beneath the skirts of several females, four of whom were minors. . . . The State subsequently charged Delagrange with four counts of Class C felony attempted child exploitation . . . .
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The child exploitation statute states, in relevant part, “(b) 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 . . . commits child exploitation, a Class C felony.” Ind. Code § 35-42-4-4(b)(1) (emphasis added). “Sexual conduct” means:
sexual intercourse, deviate sexual conduct, exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person, sadomasochistic abuse, sexual intercourse or deviate sexual conduct with an animal, or any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person.
Ind. Code § 35-42-4-4(a)(4).
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The portion of the child exploitation statute relevant to the instant appeal required the State to prove Delagrange attempted to photograph, film, videotape or created a digitized image of any performance or incident that includes sexual conduct, here the “exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person,” Ind. Code § 35-42-4-4(a)(4), “by a child under eighteen (18) years of age.” Ind. Code § 35-42-4-4(b)(1) (emphasis added). The phrasing of the statute demands the child be performing the sexual conduct, which herein required the child be exhibiting her uncovered genitals with the intent to satisfy someone’s sexual desires. Therefore, in order for Delagrange’s attempt to commit child exploitation, each child must have been exhibiting her uncovered genitals with the intent to satisfy sexual desires.
The State presented no evidence the victims exhibited their genitals [footnote omitted] or intended to satisfy anyone’s sexual desire. For those reasons, we hold the trial court should have directed a not guilty verdict because the State did not to present evidence to support the elements of Class C felony child exploitation. Accordingly, we reverse Delagrange’s four counts of Class C felony child exploitation and remand to the trial court for proceedings consistent with this opinion.
KIRSCH, J., concurs.
NAJAM, J., dissents with separate opinion:
I respectfully dissent. I would hold that the law of the case doctrine bars Delagrange’s attempt to relitigate an issue that this court squarely addressed in Delagrange v. State, 951 N.E.2d 593 (Ind. Ct. App. 2011) (“Delagrange I”), trans. denied.
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The majority reexamines the element of “sexual conduct by a child” and concludes that it demands the child be performing the sexual conduct, which herein required the child be exhibiting her uncovered genitals with the intent to satisfy someone’s sexual desires. Therefore, in order for Delagrange’s attempt to commit child exploitation, each child must have been exhibiting her uncovered genitals with the intent to satisfy sexual desires.
First, again, I would hold that the law of the case doctrine precludes such a reconsideration of the relevant statutory language. But, second, the child exploitation statute cannot be interpreted to require that a child be an active participant in the exhibition of her genitals or that the child have the intent to satisfy sexual desires. Such an interpretation improperly focuses the elements of the crime on the actions of the child and undermines the very foundation of the statute, which was designed to protect children. Indeed, the statute protects the very young, including infants and toddlers, who have no awareness of what sexual desires are, as well as children of all ages who are drugged or otherwise unwittingly manipulated by a perpetrator. So I cannot agree that “sexual conduct by a child” mandates any active participation whatsoever by a child. To the contrary, and as we have already held, only the perpetrator need “show or display” the uncovered genitals of a minor child for the sexual desires of any person. See Delagrange I, 951 N.E.2d at 595.