MOORE, Judge.
Dennis L. Beins appeals from his conviction in the district court for Hall County for 11 counts of visual depiction of sexually explicit conduct, all felonies, and 5 counts of unlawful intrusion, all misdemeanors. On appeal, Beins challenges the sufficiency of the evidence as to the 11 felony counts and asserts that his sentences as to those counts were excessive. Because we find the evidence sufficient to convict Beins of the felony charges and because the district court did not impose excessive sentences for those convictions, we affirm.
On January 26, 2010, the State filed an amended information charging Beins with 11 counts (counts I to X and count XII) of visual depiction of sexually explicit conduct under Neb. Rev. Stat. § 28-1463.03(1) (Reissue 2008), each count a Class III felony. See Neb. Rev. Stat. § 28-1463.04 (Reissue 2008). The State also charged Beins with five counts (count XI and counts XIII to XVI) of unlawful intrusion under Neb. Rev. Stat. § 28-311.08 (Reissue 2008). The unlawful intrusion counts were all Class III misdemeanors with the exception of count XI, which involved a victim under 18 years of age and was thus a Class II misdemeanor. See § 28-311.08(3). All offenses were alleged to have occurred between 2006 and 2008.
On January 28, 2010, a bench trial was conducted on stipulated facts. The stipulated facts establish that Beins was employed during the course of the commission of the charged offenses as a photographer at a photography studio in Grand Island, Nebraska. Beins installed a hidden camera, disguised as a radio alarm clock, in the restroom/changing room of the studio. The hidden camera transmitted images of the restroom/changing room to a television monitor in Beins' office. Beins made video recordings of subjects who were using the changing room without their knowledge or consent. Beins made 40 different video recordings that were seized by law enforcement officers. All 40 recordings showed the subjects changing their clothes in the restroom/changing room of the studio in a nude or seminude state. Approximately 33 of the subjects recorded were identified. Eight of the subjects were identified as female minors under the age of 18, all of which unknowingly exposed their naked breasts. In addition, one of these female minors also exposed her naked buttocks and genital area on the recordings. One of the subjects was a female minor under the age of 18 who was recorded changing her shirt but not exposing her naked breasts. Four other subjects were over the age of 18 at the time of the recordings.
The felony charges in counts I, II, V, and XII resulted from four separate video recordings Beins made of the same minor victim. One of these recordings revealed the victim's nude breasts on four different occasions and her nude buttocks on two occasions. Another recording revealed the victim's nude breasts several times and also showed her nude buttocks and vaginal area. The portion of the recording showing the victim's vaginal area is somewhat shaded due to the angle at which the victim was standing. The third video recording of this victim captured the victim's naked breasts at least five times and her underwear two times. The fourth recording of this victim captured the victim's naked breasts on more than one occasion and her naked buttocks and vaginal area one time. The recordings of this victim varied in length from 12 minutes to 34 minutes. The felony visual charges in counts III, IV, VI, VII, IX, and X resulted from video recordings Beins made of six separate victims. The recordings Beins made of each of these victims captured each victim's nude breasts on more than one occasion as well as each victim's underwear. These recordings ranged from 2 to 9 minutes in length. The felony charge in count VIII resulted from a 50-second video recording Beins made, capturing that victim's nude breasts.
The content of the video recordings that resulted in the misdemeanor charges was similar to the content of recordings resulting in the felony charges. The victims of the Class III misdemeanor charges were all over 18 years of age, while the victim of the Class II misdemeanor charge was under 18. The recording resulting in the Class II misdemeanor charge captured the victim removing her shirt and exposing her bra.
Beins was ultimately caught when two girls went to the studio so that one of the girls could have senior pictures taken. While at the studio, one of the girls changed clothes in the restroom and the other waited in the front room. The girl who was waiting happened to walk into an open office and observed Beins watching a television monitor that showed the other girl changing her clothes in the restroom. The girls reported the incident to police, which resulted in a valid search warrant being issued, a search of the studio, and Beins' interview by police. When officers located the hidden camera, Beins admitted to video recording subjects who were using the changing room without their knowledge or consent. Beins stated that he had always been kind of a "voyeur." Beins chose who to record based on age and appearance and only recorded individuals he thought were attractive. He did not keep the recordings if they "didn't show much." Beins admitted that most of the females he recorded were between 17 and 19 years old. When asked why he did this, Beins stated, "I don't know, I am ill I think, I have a thing for voyeurism."
Police officers seized several VHS tapes and CD-R's from Beins' office, some of which had labels such as: "Connie Best MAC XXX," "Amanda Hot," No Nude Paige Best," Lisa 2 Hot," "Bekka swim suit," and "Jesse Hot." It is not clear from the stipulated facts whether the materials seized from Beins' office contained any of the recordings related to the charges in this case or were recordings representing other conduct of Beins. Officers seized 22 VHS tapes from Beins' home, containing recordings of 40 different people using the restroom at the studio to change clothes and in various states of undress. The VHS tapes seized from Beins' home were labeled with female names and were found in the same room as numerous adult pornographic videos.
Police officers reviewed the seized video recordings and observed the camera to be positioned initially to record only the upper portion of the subject using the restroom/changing room. The officers observed that over time, the camera was moved to a slightly different angle, allowing the camera to capture more of the subject's body below the waist. When officers seized the radio alarm clock containing the hidden camera, they noted that the rear bottom of the clock contained a circular plastic disc and two foam pads that lifted the rear of the clock, thereby creating the lower angle observed in later recordings. The restroom/changing room in which the officers seized the hidden camera contained two mirrors, one of which was moved to various places throughout the different recordings. The other mirror was positioned on a wall opposite the hidden camera, allowing the camera to record the subject in the mirror and capture portions of the subject not shown directly by the camera. Some of the recordings also contained the subject approaching the front of the camera very close up, as if they were looking into a mirror placed closer to the camera.
The district court found Beins guilty of all 16 charged offenses. The court sentenced Beins to imprisonment for a period of 6 to 20 years for each of the felony offenses. The court sentenced Beins to incarceration for a period of 6 months for the Class II misdemeanor offense and a period of 3 months for each of the Class III misdemeanor offenses. The court ordered that all sentences were to run concurrently, except for the sentence imposed on the Class II misdemeanor, which was to run consecutively to the other sentences. The court ordered restitution on two counts, in accordance with the parties' stipulation. Beins subsequently perfected his appeal to this court.
Beins asserts that the district court (1) erred in its determination that the evidence produced at trial was sufficient to prove Beins guilty of the felony charges and (2) imposed excessive sentences with respect to the felony convictions.
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010). In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact. Id.
A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. Id.
Before turning to an analysis of the arguments in this case, we first set forth the language of the relevant statutes.
Beins was convicted of 11 counts of visual depiction of sexually explicit conduct under § 28-1463.03(1), which provides that "[i]t shall be unlawful for a person to knowingly make, publish, direct, create, provide, or in any manner generate any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers." "Sexually explicit conduct" is defined in Neb. Rev. Stat. § 28-1463.02(5) (Reissue 2008) to mean:
The applicable definition in this case is "erotic nudity," which is further defined in § 28-1463.02(3) as "the display of the human male or female genitals or pubic area, the human female breasts, or the developing breast area of the human female child, for the purpose of real or simulated overt sexual gratification or sexual stimulation of one or more of the persons involved."
Beins was also convicted of five counts of unlawful intrusion under § 28-311.08, which provides:
Beins asserts that the district court erred in its determination that the evidence produced at trial was sufficient to prove Beins guilty of the felony charges. Beins first argues that the Legislature did not intend for his conduct to fall under the felony statute. In other words, he argues that no charges should have been brought under § 28-1463.03(1) and that all of his conduct at issue should have been charged under § 28-311.08. Second, Beins argues that his conduct did not satisfy the material elements of the offense under § 28-1463.03(1).
In connection with his first argument, Beins argues that although § 28-1463.02(3) provides a statutory definition of "erotic nudity," the phrase remains ambiguous and subject to interpretation. Beins argues that this is particularly evident because in State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1993), the Nebraska Supreme Court adopted a set of factors relevant to determining whether a particular image meets the definition of erotic nudity. Beins urges us to examine both the visual depiction of sexually explicit conduct statute, § 28-1463.03(1), and the unlawful intrusion statute, § 28-311.08, and in particular, the legislative history surrounding the adoption of the unlawful intrusion statute.
We decline to examine the legislative history of either statute in this case. With respect to the issue of which statute Beins should have been charged under, that decision is left to the discretion of the prosecuting attorney. The State retains broad discretion as to whom to prosecute and what charges to file. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). This discretion is limited only to constitutional constraints, that is, a decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification. Id. Further, the visual depiction of sexually explicit conduct statute is not ambiguous. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. State v. Lebeau, 280 Neb. 238, 784 N.W.2d 921 (2010). The statute contains specific definitions couched in plain and direct language.
Finally, the fact that case law has provided factors to be used in analyzing the statutory definition of "erotic nudity" does not render the statute ambiguous. In Saulsbury, supra, the Nebraska Supreme Court analyzed federal case law in response to the defendant's challenge to the constitutionality of the statute and to its application to his conduct, which was the taking of photographs. Specifically, the Supreme Court interpreted the statute "in accord with federal decisions ruling on the constitutionality of federal child pornography laws." 243 Neb. at 232, 498 N.W.2d at 342. The Supreme Court did not determine that the statute was ambiguous. The Supreme Court held:
243 Neb. at 232, 498 N.W.2d at 342.
Having found Beins' argument that we should resort to legislative history to determine that he should not have been charged under the felony statute of visual depiction of sexually explicit conduct to be without merit, we now turn to the pertinent issue of whether Beins' conduct was sufficient to fall within the purview of the felony statute. Beins argues that the State did not prove that the video recordings used to convict him met the statutory definition of "erotic nudity" or that he made the recordings for "the purpose of real or simulated overt sexual gratification or sexual stimulation." Clearly, in connection with the felony charges, the video recordings in question showed the female breast area of some of the subjects as well as the genital area of one of the subjects. The relevant question here is whether Beins created the recordings in question for the purpose of real or simulated overt sexual gratification or sexual stimulation.
The Nebraska Supreme Court utilized factors from United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), in determining whether a defendant took pictures for the purpose of real or simulated overt sexual gratification or sexual stimulation: (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; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1998). See, also, State v. Heslep, 17 Neb.App. 236, 757 N.W.2d 386 (2008); State v. Spidel, 10 Neb.App. 605, 634 N.W.2d 825 (2001).
The record in this case does not contain the actual video recordings in question. Therefore, we must rely on the descriptions of the recordings contained in the stipulated facts in analyzing the Dost factors set forth above. First, the focal point of the video recordings was initially the upper body area of the subjects, including female breasts; however, the camera angle was later adjusted to capture the lower body area of the subjects, which included the genital area of one of the victims. In addition, Beins utilized the mirrors placed in the restroom/changing room of the studio to maximize portions of each victim's body visible on the recordings. Some recordings suggested that a mirror was placed in proximity to the hidden camera, so that victims approached more closely to view themselves in the mirror. Thus, the focal point of the depictions included both the breast and genital/pubic areas of the girls portrayed.
The second factor, the setting of the visual depictions, was in a restroom/changing room, not an area generally associated with sexual activity, such as a bedroom. However, we do note that the video recording of two of the misdemeanor victims, a husband and wife, showed them engaged in fondling each other's genitalia on three separate occasions. Next, the video recordings relevant to the felony charges did not depict the victims in unnatural poses or inappropriate attire. Beins did nothing to stage the recordings, and the victims were all unaware that they were being recorded. The minors changed their clothes and left the room. Thus, the third factor is not implicated.
The fourth factor, nudity or partial nudity, is present in all of the video recordings. The recordings showed the subjects changing their clothes in the restroom/changing room in a nude or seminude state. None of the visual depictions relevant to the felony charges suggest sexual coyness or a willingness to engage in sexual activity, the fifth factor. Again, the victims were unaware that they were being recorded.
With respect to the final factor, whether the purpose of making the video recordings was for Beins' own overt sexual gratification or stimulation, the stipulated facts show that Beins himself generated the recordings, which were photographic representations of what he watched live from his office. The video recordings seized from Beins' home were found in the same room as numerous adult pornographic videos. Beins chose which subjects to record based on age and appearance and only recorded those he considered attractive. He did not keep the recordings if they "didn't show much." When asked why he did this, Beins told police, "I don't know, I am ill I think, I have a thing for voyeurism," also stating that he had always been kind of a "voyeur." A "voyeur" is "a person who engages in voyeurism." Webster's Encyclopedic Unabridged Dictionary of the English Language 1602 (1983). "Voyeurism" is defined as "the practice of obtaining sexual gratification by looking at sexual objects or acts, esp. secretively." Id. The evidence supports the conclusion that Beins made the video recordings for the purpose of his own overt sexual gratification or sexual stimulation.
Both parties put forth arguments about the significance and weight to be given to the Dost factors adopted by the Nebraska Supreme Court in Saulsbury. The Saulsbury court did not make any determinations about the weight to be given to the factors adopted from Dost, but the Dost court stated of these factors in connection with analysis under the federal statute, "Of course, a visual depiction need not involve all of these factors to [fit within the statute]. The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor." 636 F. Supp. at 832. The Second Circuit stated that a jury "should not be made to rely on the Dost factors with precision to reach a mathematical result, or to weigh or count them, or to rely on them exclusively." U.S. v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008), cert. denied ___ U.S. ___, 129 S.Ct. 1395, 173 L. Ed. 2d 644 (2009). The Supreme Court of South Dakota stated, "The Dost factors are neither exhaustive nor mandatory; however, they provide a workable criterion to an otherwise case-specific inquiry." State v. Dubois, 746 N.W.2d 197, 208 (2008). The Third Circuit stated, "Although more than one [Dost] factor must be present in order [for the conduct to fit under the federal statute], all six factors need not be present." U.S. v. Villard, 885 F.2d 117, 122 (3d Cir. 1989).
Viewing the evidence in the light most favorable to the prosecution, we conclude that the evidence was sufficient to find the essential elements of the crime of visual depiction of sexually explicit conduct beyond a reasonable doubt. The video recordings clearly showed the naked breasts of several minor females as well as the naked genital area of one minor female. The video recordings were made in such a way as to allow Beins to view these areas of the victim's bodies. Finally, the evidence was clearly sufficient to show Beins' motivation in making the video recordings to be for his own overt sexual gratification or sexual stimulation.
Beins asserts that the district court imposed excessive sentences with respect to the felony convictions. Beins was convicted of 11 counts of visual depiction of sexually explicit conduct, each count a Class III felony, and sentenced to concurrent terms of 6 to 20 years' imprisonment for each of the felony offenses. See, § 28-1463.03(1); § 28-1463.04. Class III felonies are punishable by 1 to 20 years' imprisonment, a $25,000 fine, or both. Neb. Rev. Stat. § 28-105 (Reissue 2008). Clearly, the sentences imposed were in the statutory limits.
When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the violence involved in the commission of the crime. State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010). In imposing a sentence, the sentencing court is not limited to any mathematically applied set of factors. Id. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. Id. We have reviewed the bill of exceptions from the sentencing hearing and the presentence report in this case. The district court clearly gave careful consideration to the appropriate factors in sentencing Beins on the felony counts, and we do not find an abuse of discretion.
The evidence was sufficient to convict Beins of the felony charges. The district court did not impose excessive sentences.
AFFIRMED.
