VAUGHN, Justice, for the Majority:
Defendant-Below/Appellant Mark Zambrana was convicted by the Superior Court following a bench trial on two counts of Sexual Solicitation of a Child under 11 Del. C. § 1112A. On appeal, he contends that his admitted misconduct of soliciting his 15 year old neighbor, S.Z., to remove her shirt and bra while he surreptitiously watched her did not qualify as sexual solicitation. He argues that § 1112A requires a defendant to create a physical "depiction" of the victim's nudity in order to be convicted, and that he created no such "depiction" here. We disagree. Although the term "depiction" has multiple definitions, we find that for the purposes of § 1112A, "depiction" encompasses not only tangible manifestations such as photographs and videos, but also includes live conduct. This definition best accords with the statute as a whole and the legislative purpose in enacting it. Applying this definition to the facts before us, we conclude that Zambrana's actions constituted Sexual Solicitation of a Child. Accordingly, we affirm.
S.Z., the child victim in this case, lived next door to Zambrana and his family. S.Z. was close to the Zambrana family: she was a frequent visitor to their home, was friends with Zambrana's stepson who was only one year younger than her, and occasionally accompanied them on family trips. The Zambranas and S.Z.'s family also attended the same Congregation of Jehovah's Witnesses. S.Z. described Zambrana's wife as her best friend and likened her to a surrogate mother.
In August 2012, Zambrana, then 26 years old, sent S.Z. a text message asking her to come to his house to try on a shirt he planned to give to his wife as a present. In the message, Zambrana instructed S.Z. to change in the bathroom and remove her bra when trying on the shirt. S.Z. walked next door to Zambrana's house, and into the bathroom where Zambrana told her the shirt would be waiting for her. She then took off her own shirt and bra before putting on the shirt Zambrana had purchased for his wife. Before leaving the bathroom, S.Z. saw a leg behind the shower curtain. She asked several times, "Mark, is that you?" before Zambrana revealed himself, using the curtain to cover most of his naked body.
S.Z. ran out of the bathroom and into a bedroom to change back into her clothing. When she tried to leave the house, Zambrana grabbed her and apologized, but also urged her not to tell anyone what had happened. Zambrana warned S.Z. that nobody would believe her accusations, but it would hurt his wife and destroy his marriage. Zambrana sent S.Z. additional text messages that evening, apologizing and again urging her not to tell anyone.
The August 2012 incident was apparently not the first time Zambrana had attempted to view S.Z. naked; he asked her in July 2012, also via text message, to try on a shirt for his wife. But that time, S.Z.
Zambrana was arrested and indicted on two counts of Sexual Solicitation of a Child. He requested a bench trial, which took place on September 4, 2013. Zambrana did not testify at the trial, but the State introduced a video of Zambrana's interview with the police, in which he readily admitted to spying on S.Z. while she was in the bathroom trying on clothes during the two incidents. He also readily admitted during questioning that he spied on S.Z. because he was obsessed with seeing her breasts so that he could masturbate and would fantasize about her. Zambrana stated in his police interview that he had "an obsession with breasts," and his intention was to "see her breasts so I could masturbate after she left."
In his closing statement, Zambrana's attorney admitted that his client's intention was "to get sexual gratification" from seeing S.Z. topless.
On appeal, Zambrana concedes that his conduct was "deviant and shameful," but contends that it did not constitute sexual solicitation under 11 Del. C. § 1112A.
"In the construction of a statute, this Court has established as its standard the search for legislative intent. Where the intent of the legislature is clearly reflected by unambiguous language in the statute, the language itself controls."
When interpreting criminal statutes, this Court is further governed by 11 Del. C. §§ 203
11 Del. C. § 1112A provides, in pertinent part, that an adult is guilty if he intentionally or knowingly "[s]olicits, requests, commands, importunes or otherwise attempts to cause any child to engage in a prohibited sexual act."
Zambrana does not contest that he solicited S.Z. to remove her clothing for his own sexual gratification. He admitted as much on multiple occasions in the proceedings below. Instead, Zambrana contends that the plain meaning of the word "depiction," which is undefined by the statute, requires preservation of the victim's nude image in some tangible form, such as a picture, painting, or photograph, in order for "nudity" to be a prohibited act under 11 Del. C. § 1100(7).
We disagree. Although Zambrana correctly asserts that one accepted definition of "depiction" is a physical representation such as a photograph or video, the term "depiction" can also be defined more broadly to include the presentation of a live performance.
Because there are at least two reasonable interpretations of the statute, we must choose the one that best accords with the legislative purpose in enacting it and the statute as a whole. In this case, both point toward rejecting Zambrana's interpretation and finding that a "depiction" can include live conduct intended to allow the viewer to observe nudity for the purpose of sexual gratification.
The General Assembly's undisputed intent in enacting 11 Del. C. § 1112A was to protect children from sexual predators. According to the synopsis of the House Bill creating the felony of Sexual Solicitation of a Child,
Second, reading "depiction" only as imagery preserved in physical form, as Zambrana urges, would render other language in Title 11 mere surplusage. Zambrana's suggested definition of "depiction" is expressly set forth as the definition of "visual depiction" in the same provision of Title 11.
If we were to agree with Zambrana and find that the term "depiction" in § 1100(7)(i) is synonymous with "visual depiction," there would be no need for § 1100(11) to separately define "visual depiction."
Moreover, the distinction between a "depiction" and a "visual depiction" created by the statute is relevant in understanding which specific acts are criminalized under which specific provisions. Reading "depiction" broadly as any presentation of nudity solicited for sexual gratification, whether or not it is "recorded, stored or contained" as required in § 1100(11)'s definition of a "visual depiction," is more consistent with the list of other "prohibited sexual acts" defined in § 1100(7).
It is also significant that Zambrana was convicted under § 1112A, which criminalizes only the performance of the underlying sexual acts. Recording those acts — or distributing or possessing that recording — is criminalized under a separate statutory provision within Title 11.
Adopting Zambrana's proposed interpretation would conflict with the General Assembly's clearly pronounced purpose in enacting the statute and render other statutory language superfluous. Thus, while we disagree with the concurring opinion's view that a "depiction" can be a mental image, we adopt a broader definition of "depiction," which encompasses not only tangible representations, but also presentations of live conduct. Based on the facts of this case, Zambrana's actions fall within the scope of this definition. Zambrana solicited S.Z. into giving him an unintended and unknowing private performance in which she engaged in "nudity" by showing her breasts "for the purpose of [Zambrana's] sexual stimulation or ... sexual gratification."
The judgment of the Superior Court is
STRINE, Chief Justice, concurring:
I agree with the lucid and well-crafted opinion of the Court, but I feel it would be useful to deal more directly with the defendant's argument that he is not guilty of sexual solicitation under 11 Del. C. § 1112A because he did not capture a physical depiction of his victim's nudity. Zambrana's admitted intention was to create a "mental image" of S.Z. without her clothing, so that he could commit it to memory and then to call it to mind when he masturbated. In other words, Zambrana tricked a minor into exposing herself to him so he could use the image later for his own sexual gratification. Because I think a reasonable reading of "depiction" includes painting a mental image, as Zambrana did here, and interpreting the term broadly best accords with the statute as a whole and the legislative purpose in enacting it, I agree that his conviction should be affirmed.
Zambrana argues that he did not create a physical "depiction" of his victim's nudity, which he contends is required to be convicted under the statute. Zambrana argues that the "plain, ordinary meaning" of "depiction" is "to show (someone or something) in a picture, painting, photograph, etc."
But, as the Court's opinion points out, "depiction" has more than one meaning, and is broad enough to encompass descriptions in words and other intangible portrayals.
In my view, the Court is correct that a live performance could constitute a depiction, but I believe it is respectful to deal more directly with the precise facts of the case as contained in Zambrana's admissions and his argument that because he did not snap a photo or take a video of his victim, he did not "depict" her nudity. Under 11 Del. C. § 1112A, read in light of the legislative purpose of the Act and the general purpose of the Criminal Code as set forth in 11 Del. C. § 201, I would find that a mental image like the one Zambrana admittedly took constitutes a depiction of S.Z.'s nudity, and his conviction is therefore valid.
The general purposes of this Criminal Code are: