                           STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      November 27, 2018
               Plaintiff-Appellee,

v                                                                     No. 336596
                                                                      Jackson Circuit Court
JONATHAN RYAN HASTINGS,                                               LC No. 15-004918-FH

               Defendant-Appellant.


Before: MURPHY, P.J., and GLEICHER and LETICA, JJ.

GLEICHER, J. (dissenting).

       The prosecution charged that defendant Jonathan Ryan Hastings violated MCL
750.145c(3) by attempting to receive child sexually abusive material while exchanging text
messages with a 17-year-old high school student. The majority holds that sufficient evidence
supports Hastings’s conviction and that evidence of Hastings’s sexual relationships with two
adult women, once his students, was properly admitted under MRE 404(b). I disagree with both
conclusions, and respectfully dissent.

                                                  I

        Hastings communicated with the 17-year-old complainant, LG, by text message. Their
initial conversations focused on sports; Hastings was a teacher and basketball coach, LG a
student and cheerleader. LG shared the contents of the text messages with five friends, and
consulted them regarding how to respond. Their goal was to goad Hastings into sending LG a
photo of his penis.

        The first photos exchanged were nonsexual “selfies.” After complimenting LG on her
appearance, Hastings segued into the sexual realm, importuning, “You better send real spice if
you want [more pictures] from me.” LG construed this as a request for a nude photo. After
some discussion about a photo exchange, Hastings sent LG a picture of his bare chest and asked
her to send “the good stuff.” She responded by sending an Internet photo of a naked breast; he
requested “both at once.” LG complied by sending an Internet photo of two breasts. Hastings
sent a picture of his naked buttocks and entreated, “Please spoil me, let’s have it[,] all of it.” She
sent a picture of a woman’s bottom in tight-fitting underwear, again from the Internet. He sent a
picture of his bare chest from his neckline to his hip. No further pictures were exchanged, and
no further requests for photos were made. Hastings and LG stopped texting each other and did
not enter into a sexual relationship.
                                                 -1-
       Hastings’s conduct was entirely inappropriate. But the questions presented are whether
Hastings’s trial was tainted by the admission of inadmissible and highly prejudicial evidence,
and whether the conduct with which he was charged constituted a crime.

                                                  II

       The evidentiary issue is the more straightforward of the two, and its analysis helps to
demonstrate that although Hastings behaved abominably, his text messages did not constitute an
attempt to receive child pornography, the statutory offense for which he stood trial.

        The majority holds that the trial court did not abuse its discretion in admitting the other-
acts testimony of two former students of Hastings who had sexual relationships with him after
they graduated from high school. According to the majority, this MRE 404(b) evidence
“suggest[ed] that Hastings’s interactions with the victim were motivated by his sexual desires.”
As the majority’s statement essentially concedes, the testimony was improper propensity
evidence.

        In ruling on the admissibility of other acts evidence under MRE 404(b)(1), a trial court
must ascertain whether (1) the prosecutor has offered the evidence for a proper purpose—one
other than to show the defendant’s propensity to act in conformity with a given character trait;
(2) the evidence has relevance to an issue of fact of consequence at trial, MRE 402; (3) any
danger of unfair prejudice substantially outweighs its probative value, in light of the availability
of other means of proof, MRE 403. People v Sabin (After Remand), 463 Mich 43, 55-56; 614
NW2d 888 (2000). “That the prosecution has identified a permissible theory of admissibility and
the defendant has entered a general denial, however, does not automatically render the other acts
evidence relevant in a particular case.” Id. at 60. The trial court still must find that the evidence
qualifies as material (i.e., related to a fact “at issue” “in the sense that it is within the range of
litigated matters in controversy”), and that it has probative force (i.e., “any tendency to make the
existence of a fact of consequence more or less probable than it would be without the evidence”).
Id. at 56-57, 60.

        The majority recites three nonpropensity purposes for the admission of the other-acts
evidence: common plan or scheme, identity, and intent. According to the majority, evidence of
Hastings’s relationships with two adult women, once his students, was relevant to prove that
Hastings had a plan or system when he began texting LG, to demonstrate his identity as the
texter, and to establish his intent to attempt to receive child sexually abusive material. All three
stated reasons for admission are, indeed, legitimate grounds for the introduction of other-acts
evidence. But Hastings’s relationships with two adult women were not logically relevant to any
of those grounds. “If the prosecutor fails to weave a logical thread linking the prior act to the
ultimate inference, the evidence must be excluded, notwithstanding its logical relevance to
character.” People v Crawford, 458 Mich 376, 390; 582 NW2d 785 (1998). And—critical
here—the logical connection must rest on a propensity-free chain of reasoning. Other acts
evidence tending only to prove a defendant’s propensity to commit a crime must be excluded.
Id. at 385.

       The introduction of Mary Roe’s testimony most starkly illustrates that the only probative
inference flowing from the other-acts evidence was the forbidden one: propensity. MRE 404(b).

                                                 -2-
As a student, Roe had a normal student-teacher relationship with Hastings. Roe began texting
with Hastings after she graduated from high school. Initially, he asked her to watch his dog; she
declined. Eventually they met at his house and had consensual sex; she was 19 years old at the
time. Roe denied that she and Hastings ever exchanged photos or photo requests. She denied
having been pressured or coerced into a sexual relationship with Hastings.

        What issue of consequence to Hastings’s trial did Roe’s testimony advance? Hastings
was on trial for attempting to receive child sexually abusive material from a 17-year-old student.
Pursuant to the statute under which he was charged, the “material” Hastings allegedly sought to
receive was “erotic nudity,” defined as “the lascivious exhibition of the genital, pubic, or rectal
area of any person.” MCL 750.145c(1)(h). Since he never exchanged erotic nudity (or any
photos at all) with Roe, her testimony did not supply evidence of a common plan or scheme.
Other than texting (likely the most common form of communication that now exists for people of
Hastings’s and Roe’s ages), nothing that occurred between them was even remotely common or
similar to Hasting’s interactions with LG. Rather, this evidence supported Hastings’s propensity
to engage in sex with former students.

        Texting alone does not support a plan. “General similarity between the charged and
uncharged acts does not . . . by itself, establish a plan, scheme, or system used to commit the
acts.” Sabin, 463 Mich at 64. Rather, there must be “such a concurrence of common features
that the various acts are naturally to be explained as caused by a general plan of which they are
the individual manifestations.” Id. at 64-65 (cleaned up).1 A high degree of similarity is
required—more “than that needed to prove intent, but less than that needed to prove identity,”
although the plan itself need not be unusual or distinctive. Id. at 66.

         “To satisfy the definition of a true plan, the prosecution must shoulder the burden of
proving that in fact and in mind, the defendant conceived of a goal or objective larger than
commission of the individual crimes.” Imwinkerlried, The Plan Theory for Admitting Evidence
of the Defendant’s Uncharged Crimes: A Microcosm of the Flaws in the Uncharged Misconduct
Doctrine, 50 Mo L Rev 1, 9 (1985). Hastings’s texts with Roe do not suggest that he harbored a
goal of receiving erotic material. It suggests that he liked to sleep with young women, an
inference not probative of the crime with which he was charged, and an inference relevant only
to his character. Other than the use of texting, there were no similarities. Roe’s testimony was
not logically relevant to show that Hastings acted in accordance with a common plan or scheme.

       Similarly, Hastings’s identity as the sender of the texts to LG was not advanced by Roe’s
testimony. Identity serves as an intermediate inference under MRE 404(b) only if “the
circumstances and manner in which the two crimes are committed are so nearly identical in
method as to earmark the charge offense as the handiwork of the accused. . . . The commonality
of circumstances must be so unusual and distinctive as to be like a signature.” People v


1
  This opinion uses the new parenthetical (cleaned up) to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as
brackets, alterations, internal quotation marks, and unimportant citations have been omitted from
the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).


                                               -3-
Golochowicz, 413 Mich 298, 310-311; 319 NW2d 518 (1982) (cleaned up).2 There was no
distinctive “commonality of circumstances” uniting Hastings’s texts with Roe and his texts with
LG. No photos were involved. Everyone texts; there is nothing unique about using texts as a
substitute for talking. This theory of admissibility, too, lacks merit.

       The prosecutor’s third option, intent, fares no better. Hastings’s relationship with Roe
was relevant only to his “lustful disposition”—his character for sexual entanglements with young
women. The majority essentially admits this by justifying the admission of Roe’s testimony on
the ground that it “suggest[ed] that Hastings’s interactions with the victim were motivated by his
sexual desires.”

        Intent was generally at issue in this case, as the prosecution bore the burden of proving
that Hastings intended to attempt to receive child sexually abusive material. But intent was not a
litigated issue, or even a contested issue, as Hastings made no claim that he accidentally or
mistakenly texted LG. Before trial, he denied that he had sent the incriminating texts, claiming
that his phone was lost or stolen. By the time the trial began, this defense had evaporated.
Although Hastings never admitted that the phone sending the texts to LG was his, he did not
defend the case by arguing that he had not meant to send the texts, or that he mistakenly sent
them to LG rather than to someone else. Assuming the jury believed that Hastings had sent the
texts to LG, his intent to send them was undisputed.

        To be admissible under MRE 404(b), the other acts evidence had to be probative of
Hastings’s intent to violate MCL 750.145c(1)(h) rather than to Hastings’s sexual propensities or
proclivities. There is no evidence that Hastings sought erotic nudity from Roe, and therefore
there can be no inference that he intended to do so. Hastings’s intent to develop a sexual
relationship with Roe tells us nothing about the likelihood that he intended to seek erotic nudity
from LG. Assuming that intent was truly within the range of litigated matters in this case, the
only inferential connection between evidence of Hastings’s relationship with Roe is the
forbidden one: that Hastings enjoyed sexual encounters with young women.

        The testimony of the second witness, Jane Doe, presents a slightly closer question, but
only regarding intent. Doe’s relationship with Hastings began during high school when the two
communicated via Twitter. Doe was 18 years of age at the time. After she graduated from high
school, Doe and Hastings shared phone numbers and had casual text-messaging conversations as
well as phone calls. The two exchanged nonsexual photos. The conversations progressed to
“like a flirting type of exchange. . . . I guess you would call it innocent flirting back and forth.”
The discourse evolved into more overtly sexual talk, and Hastings asked Doe to “[s]end me
something sexy.” She specifically denied that Hastings requested “something naked,” but
nevertheless she sent nude pictures of herself. Hastings never sent sexual pictures of himself.
Sometime thereafter, the two entered into an entirely consensual sexual relationship. The
relationship continued into Doe’s second year of college.


2
 Golochowicz’s analysis regarding the use of identity under MRE 404(b) remains vital when, as
here, the proponent of other acts evidence employs a modus operandi theory. See People v
VanderVliet, 444 Mich 52, 66; 508 NW2d 114 (1993).


                                                -4-
        Although Doe sent Hastings nude photos, her testimony included none of the hallmarks
of a common plan or scheme. Hastings and Doe, two adults, developed a romantic relationship.
Doe’s description of the consensual nature of the relationship, and the manner in which it
evolved, demonstrate that this was not a “plan” or “scheme” to obtain photos.3 Rather, two
people conversed by phone and text, flirted, decided to have sex, and one sent the other some
nude photos. No evidence supports that Hastings hatched a plot or devised a scheme to receive
erotic nudity from a child or, for that matter, from an adult.

        For the same reasons, evidence of Doe’s relationship with Hastings tells us nothing about
identity. Aside from Hastings’s request that Doe send him something “sexy,” there are no
common and unusual circumstances linking Hastings’s text messages with MR and his texts with
LG.

        The majority holds that Hastings’s sexual relationship with Doe was relevant to “whether
Hastings sent text messages to the victim with the intent to obtain sexually explicit pictures from
her.” Again, Hastings never claimed that the texts sent to LG were accidental or unintended.
But assuming that intent was truly at issue, that Doe sent Hastings a nude photo of herself in
response to a request for “something sexy” does not support an inference that Hastings sought “a
lascivious exhibition of [Doe’s] genital, pubic, or rectal area.” The two people involved were
adults enjoying a sexual relationship. Their intent to share photos in that context is simply not
probative of Hastings’s intent to receive erotic nudity from a child.

        Doe’s description of her relationship with Hastings had very little to do with photos, and
a lot to do with overtly sexual contact. No evidence or inferences supported that Hastings
became involved with Doe so that he could obtain photos. Rather, the prosecution introduced
and used the evidence of their sexual relations to support a pure propensity inference: that
Hastings had a sexual predilection for young women. To the extent that Hastings’s sexual
relationship with Doe is logically relevant to his intent to attempt to receive child sexually
abusive material from LG, the connection is through the intermediate inference of bad character.
Because Hastings craved sex with young women like Doe, the majority reasons, he must have
intended to obtain erotic nudity from LG. That is precisely the inference forbidden under MRE
404(b).

        By introducing evidence of Hastings’s sexual relationships with two younger women
(Hastings was 33 years old when the offense leading to his conviction occurred), the prosecution
succeeded in portraying Hastings as a seducer of young women, a man interested only in sex.
By design, this evidence blurred the contours of what was really at issue: whether Hastings
attempted to receive “a lascivious exhibition of [LG’s] genital, pubic, or rectal area.” Because
there was no evidence that Hastings ever asked LG for photos meeting this description, the
prosecution needed something to convince the jury that he probably meant to do it. They found
that evidence in the testimonies of Roe and Doe.



3
 Doe testified that the relationship made her feel “wanted . . . [l]ike I was important, like I had
somebody who was there for me.”


                                                -5-
        Our Supreme Court has condemned similar efforts to sidestep the actual charge by
convincing the jury that the defendant is a bad man. A jury’s “appetite for more knowledge of
the defendant’s background” allows the jury to convict based on propensity rather than actual
guilt. People v Allen, 429 Mich 558, 568; 420 NW2d 499 (1988).

        This appetite presents three types of impropriety. First, that jurors may determine that
although defendant’s guilt in the case before them is in doubt, he is a bad man and should
therefore be punished. Second, the character evidence may lead the jury to lower the burden of
proof against the defendant, since, even if the guilty verdict is incorrect, no “innocent” man will
be forced to endure punishment. Third, the jury may determine that on the basis of his prior
actions, the defendant has a propensity to commit crimes, and therefore he probably is guilty of
the crime with which he is charged. All three of these dimensions suggest a likelihood that
innocent persons may be convicted.

              The danger then is that a jury will misuse prior conviction evidence by
       focusing on the defendant’s general bad character, rather than solely on his
       character for truthtelling. [Id. at 569 (cleaned up).]

        The error in admitting the other acts evidence was not harmless. Given that there was no
evidence that Hastings asked LG for photos consistent with the statutory description of erotic
nudity, the prosecution was forced to find another way to convince the jury that it was erotic
nudity that Hastings was after. Evidence of Hastings’s sexual relationships with two former
students filled that gap. The sex with Roe and Doe had nothing to do with child sexually abusive
activity, but it had everything to do with Hastings’s character. And as the prosecution well
knew,

       the problem with character evidence generally and prior bad acts evidence in
       particular is not that it is irrelevant, but, to the contrary, that using bad acts
       evidence can weigh too much with the jury and so overpersuade them as to
       prejudge one with a bad general record and deny him a fair opportunity to defend
       against a particular charge. [Crawford, 458 Mich at 384 (cleaned up).]

       The “bad acts evidence” weighed too much here, as it opened the door to a conviction
based on conduct other than that for which Hastings was charged. I would reverse on this
ground, standing alone.

                                                III

         A second ground supports vacating Hastings’s conviction. Hastings’s decision to engage
in “sexting” with a student was puerile and stupid. But it was not a crime. The statute at the
heart of the prosecution’s case required proof that Hastings sought a “lascivious exhibition” of
LG’s “genital, pubic, or rectal area[.]” Hastings never requested such a photo. LG never
testified that she believed that Hastings sought such a photo, or that she interpreted his texts as
consistent with such a request. No other evidence—including that introduced on MRE 404(b)—
supported that Hastings committed the crime for which he was charged.

        MCL 750.145c(3) states that “[a] person who distributes or promotes, or finances the
distribution or promotion of, or receives for the purpose of distributing or promoting, or
                                                -6-
conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually
abusive material or child sexually abusive activity is guilty of a felony . . . .” (Emphasis added.)
Hastings was charged with having attempted to receive child sexually abusive material.

       “Child sexually abusive material” is:

       any depiction, whether made or produced by electronic, mechanical, or other
       means, including a developed or undeveloped photograph, picture, film, slide,
       video, electronic visual image, computer diskette, computer or computer-
       generated image, or picture, or sound recording which is of a child or appears to
       include a child engaging in a listed sexual act; a book, magazine, computer,
       computer storage device, or other visual or print or printable medium containing
       such a photograph, picture, film, slide, video, electronic visual image, computer,
       or computer-generated image, or picture, or sound recording; or any reproduction,
       copy, or print of such a photograph, picture, film, slide, video, electronic visual
       image, book, magazine, computer, or computer-generated image, or picture, other
       visual or print or printable medium, or sound recording. [MCL 750.145c(1)(o)
       (emphasis added).]

       Hastings was accused of having attempted to receive an electronic visual image of a child
engaging in a listed sexual act.

        “Listed sexual acts” are defined in MCL 750.145c(i) as “sexual intercourse, erotic
fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement,
or erotic nudity.” The prosecution asserted that Hastings attempted to receive an electronic
visual image of a child engaging in erotic nudity.

        Erotic nudity is defined as “the lascivious exhibition of the genital, pubic, or rectal area
of any person.” MCL 750.145c(1)(h). This subsection continues, “As used in this subdivision,
‘lascivious’ means wanton, lewd, and lustful and tending to produce voluptuous or lewd
emotions.”

        Piecing through the statutory elements leads to the specific charge levied against
Hastings: that he attempted to receive an electronic visual image of a child lasciviously
exhibiting her genital, pubic, or rectal area. There is no direct or circumstantial evidence of
record supporting that Hastings attempted to receive material fulfilling this requirement.4

        Yes, Hastings asked for pictures of both of LG’s breasts. Breast photos do not constitute
erotic nudity under the statute. Hastings also asked for “real spice,” “the good stuff,” and “all of
it.” Those imprecise words are not requests for erotic nudity either, as the statutory term is
highly specific and limited to a lascivious exhibition of a child’s genital, pubic or rectal areas.


4
  Hastings’s second conviction, for using a computer to commit a crime, MCL 750.145d(1)(a),
flows from his use of his cell phone to communicate for a purpose proscribed under the primary
charge, MCL 750.145c.



                                                -7-
        This Court has construed the term “erotic nudity” as used in MCL 750.145c(i) as
excluding “innocent” depictions of child nudity, but encompassing “the use of an otherwise
benign image of a child exhibiting ordinary nudity to create what could fall within the definition
of erotic nudity[.]” People v Riggs, 237 Mich App 584, 590, 593; 604 NW2d 68 (1999). Under
a similarly worded federal statute, “graphic or simulated lascivious exhibition of the genitals or
pubic area” qualify as “sexually explicit conduct.” 18 USC § 2256(2)(B)(iii). The United States
Court of Appeals for the Sixth Circuit and other federal courts apply the factors set forth in
United States v Dost, 636 F Supp 828, 832 (SD Cal, 1986), in making a determination of whether
a photograph meets that statutory standard. See United States v Hodge, 805 F3d 675, 680 (CA 6,
2015). The Dost factors include, among other things, “whether the focal point of the picture is
the minor’s (or another person’s) genitalia;” “whether the setting or pose is customarily
associated with sexual activity;” and “whether sexual coyness or willingness to engage in sexual
activity is suggested.” United States v Shuster, 706 F3d 800, 807 (CA 7, 2013). One court
applying the Dost factors has concluded that “the focus of the image must be on the genitals or
the image must be otherwise sexually suggestive.” United States v Griesbach, 540 F3d 654, 656
(CA 7, 2008).

        Because Hastings never expressly requested photos meeting the definition of “erotic
nudity,” the question is whether the evidence reasonably supports an inference that he attempted
to obtain such photos. Viewing the evidence in the light most favorable to the prosecution, I
discern no reasonable inference fairly supporting that Hastings attempted to receive a photograph
specifically depicting LG’s “genital, pubic or rectal area.”

        An inference is a logical conclusion reached after consideration of record facts. A
reasonable inference drawn from established facts suffices to support a conviction. But
“[i]nferences . . . may not be based on evidence that is uncertain or speculative or that raises
merely a conjecture or possibility.” People v Fisher, 193 Mich App 284, 289; 483 NW2d 452
(1992). “While the trier of fact may draw reasonable inferences from facts of record, it may not
indulge in inferences wholly unsupported by any evidence, based only upon assumption.”
People v Petrella, 424 Mich 221, 275; 380 NW2d 11 (1985).

         No evidence suggested that the terms “real spice,” “the good stuff,” and “all of it”
referred to a photograph meeting the definition of erotic nudity. None of the three witnesses who
exchanged text messages with Hastings suggested that he requested erotic nudity, as that term is
statutorily defined. The prosecution presented no evidence whatsoever regarding the colloquial
meaning of terms used in Hastings’s texts. LG testified that she assumed Hastings wanted a
nude photo of her. But a nude photo is not “erotic nudity” unless it focuses lasciviously on a
child’s genital, rectal, or pubic areas, and there is no evidence that Hastings attempted to receive
material of that sort. To reach the conclusion that the terms “real spice,” “the good stuff,” and
“all of it” really mean a lascivious display of LG’s “genital, pubic or rectal area,” the jury had to
guess what was in Hastings’s mind. And while juries are commonly called upon to infer the




                                                -8-
contours of a defendant’s mental state, they must do so based on evidence and reasoned
inference, not wild speculation. 5

        In a somewhat analogous case, the Michigan Supreme vacated a conviction because the
jury’s verdict was based on speculation rather than evidence. In People v Morse, 249 Mich 336;
228 NW 712 (1930), the defendant was charged with possessing and distributing moonshine
whiskey. The prosecution presented evidence that the defendant had distributed the drink at an
evening gathering, pouring it from a gallon jug he had retrieved from outside. Id. at 337. No
witness testified that the liquid smelled like whiskey or was intoxicating, although one of the
imbibers “felt the effects of it a little bit.” Id. “The liquor was not produced” at trial. Id. This
evidence was not sufficient to prove that the defendant served intoxicating liquor, the Court
declared, reasoning:

       The evidence did not show the liquor to have been intoxicating or disclose facts
       justifying a reasonable inference that it was intoxicating. The evidence creates a
       suspicion or conjecture of the nature of the liquor, but that is not enough. No
       witness informed the jury that the liquor was intoxicating, and the court was in
       error in giving the mentioned instruction. The presumption of innocence and the
       rule of reasonable doubt still prevail, and difficulty experienced by the
       prosecution in proving a charge lets down no safeguards. [Id.]

        The definition of “erotic nudity” is highly specific, yet Hastings’s words tell us nothing
specific about what he attempted to receive. The majority skims over this evidentiary gap by
blurring the distinction between nudity and erotic nudity and suggesting that a request for the
former sufficed for conviction. Conspicuously absent from the majority opinion is an analysis of
how Hastings’ actual requests satisfied the actual words of the statute. The trial court made the
same error, ruling:

              [B]ased on the exchanges that the jury heard, his attempts to get her to
       send him nude pictures would satisfy the requirements of the statute and a
       reasonable juror could conclude that the defendant wanted those nude pictures



5
  The majority insists that Hastings’s conduct was “criminal” because the jury could infer that
although he never asked for a photo meeting the definition of erotic nudity, he really wanted
erotic nudity. But even when the crime is one of attempt, our justice system does not punish
people for their impure thoughts. An attempt conviction requires proof of both an intent to
engage in a proscribed activity, and the commission of an overt act in furtherance of the intent.
People v Coleman, 350 Mich 268, 279; 86 NW2d 281 (1957). Words may suffice as an overt
act. Id. But in my view, the words must mark the statement as criminal in nature, otherwise we
come dangerously close to punishing only the intent. Here, the majority concedes that Hastings
did not specifically request a nude photograph from LG; LG and her friends “deduced” that was
what he really wanted. In other words, Hastings intended to obtain illicit pictures. The flaw in
the majority’s reasoning is that Hastings never actually asked for erotic nudity; he may have
harbored an intent to receive it, but because we do not punish thought crimes, that is not enough.


                                                -9-
       from the 17[-year-]old which would make him guilty beyond a reasonable
       doubt.[6]

        I do not know why the Legislature decided to omit “nudity” and “breasts” from the listed
sexual acts linked to the crime of attempting to receive child sexually abusive material. But the
absence of these terms is telling. The Legislature obviously intended that a request for nudity or
breast images would not constitute a crime, and based on the evidence presented, a rational
finder of fact could not intuit that Hastings asked for anything more.

       I would vacate Hastings’s convictions on sufficiency grounds, or alternatively award him
a new trial.



                                                             /s/ Elizabeth L. Gleicher




6
 The prosecutor compounded the confusion by contending in his closing argument that nudity
was enough:
              But after reviewing this entire document in its totality [the transcript of the
       text messages], the entire conversation, if you conclude that he is asking for a full
       nude photograph, if he is asking for photographs that might show the pubic
       region, the rectal region, or the genital region, you should find him guilty.
       [Emphasis added.]

A full nude photograph is not the same thing as erotic nudity; nor is a photo that “might show the
pubic region, the rectal region, or the genital region.”



                                               -10-
