          IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARK G. ZAMBRANA,                     §
                                      §     No. 620, 2014
     Defendant Below-                 §
     Appellant,                       §     Court Below: Superior Court
                                      §     of the State of Delaware in and
                                      §     for New Castle County
     v.                               §
                                      §
STATE OF DELAWARE,                    §     No. 1302018650
                                      §
                                      §
     Plaintiff Below-                 §
     Appellee.                        §

                          Submitted: June 10, 2015
                           Decided: June 30, 2015


Before STRINE, Chief Justice, VALIHURA, and VAUGHN, Justices.

Upon appeal from the Superior Court. AFFIRMED.



Bernard J. O’Donnell, Office of Public Defender, Wilmington, Delaware, for
Appellant.

Andrew J. Vella, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, for Appellee.
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.

                 I.     FACTS AND PROCEDURAL HISTORY

      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



                                         2
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. 1

S.Z. asked him what he was doing lurking behind the shower curtain. Zambrana

told S.Z. that he had fantasies about her, and that he wanted to see her breasts.

       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



1
 S.Z. testified that “it looked like he had no clothes on him,” although his genital area was
covered by the curtain. Appellant’s Op. Br. App. at A26.


                                                 3
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. did not take off her bra, and she did

not see Zambrana while she was changing. S.Z. did not report either incident at

first, but waited several months before she told Zambrana’s stepson what had

transpired. She then told her parents, who called the police.

          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.”2




2
    Appellant’s Op. Br. App. at A46.


                                                4
       In his closing statement, Zambrana’s attorney admitted that his client’s

intention was “to get sexual gratification” from seeing S.Z. topless.3 Nevertheless,

he argued that Zambrana’s viewing S.Z. in the nude for his own sexual pleasure

did not fall within the statutory definition of a “prohibited sexual act.”4 The

Superior Court rejected Zambrana’s statutory interpretation and found him guilty

of both counts of Sexual Solicitation of a Child. He was sentenced to eight years

and six months imprisonment at Level V, suspended after one year for six months

of home confinement at Level IV and two years of probation at Level III. This

appeal followed.

                                        II.     ANALYSIS
       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.5 Although Zambrana did not raise this precise claim before the

Superior Court, the State does not argue that our review should be subject to a

plain error standard of review and instead asks us to address this issue on its

merits.6      Accordingly, we will consider Zambrana’s claim of statutory

interpretation de novo.7


3
  Appellant’s Op. Br. App. at A54.
4
  See 11 Del. C. § 1100(7)(i) (“Nudity [constitutes a ‘prohibited sexual act’], if such nudity is to
be depicted for the purpose of the sexual stimulation or the sexual gratification of any individual
who may view such depiction.”).
5
  Appellant’s Op. Br. at 8.
6
  Zambrana argued before the Superior Court that he did not “engage” S.Z. in a sexual act,


                                                 5
       “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.”8 “It is well

established that [c]ourts have no authority to vary the terms of a statute of clear

meaning or ignore mandatory provisions.”9 “The application of the plain meaning

rule, however, often varies from case to case . . . .” 10 If there is more than one

reasonable interpretation, “the Court must apply accepted standards of statutory

interpretation to arrive at what the legislature intended.”11 “To that end, the statute

must be viewed as a whole, and literal or perceived interpretations which yield

mischievous or absurd results are to be avoided.”12 We must read each section in

light of all others to produce a harmonious whole and achieve a “sensible result.”13

“We also ascribe a purpose to the General Assembly’s use of particular statutory

language and construe it against surplusage if reasonably possible.”14


which is distinct from arguing that a “depiction” for the purposes of the statute must entail a
physical representation of the sexual act.
7
  Bd. of Adjustment of Sussex County v. Verleysen, 36 A.3d 326, 329 (Del. 2012) (“We review
the Superior Court’s legal determinations, including questions of statutory interpretation, de
novo.”).
8
  Spielberg v. State, 558 A.2d 291, 293 (Del. 1989) (citations omitted).
9
  Verleysen, 36 A.3d at 331 (internal citations and quotations omitted).
10
   Alfieri v. Martelli, 647 A.2d 52, 54 (Del. 1994) (citations omitted).
11
   Hudson Farms, Inc. v. McGrellis, 620 A.2d 215, 217-18 (Del. 1993) (citing Coastal Barge
Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1246 (Del. 1985)).
12
   Spielberg, 558 A.2d at 293 (citations omitted).
13
   Zhurbin v. State, 104 A.3d 108, 113 (Del. 2014) (citation omitted); Taylor v. Diamond State
Port. Corp., 14 A.3d 536, 538 (Del. 2011) (citations omitted).
14
   PHL Variable Ins. Co. v. Price Dawe 2006 Ins. Trust, ex. rel. Christiana Bank & Trust Co., 28
A.3d 1059, 1070 (Del. 2011).


                                               6
       When interpreting criminal statutes, this Court is further governed by 11

Del. C. §§ 20315 and 221(c).16 § 203 mandates that criminal statutes are not to be

strictly construed, but rather construed “according to the fair import of their terms

to promote justice and effect the purposes of the law, [according to the general

purposes of the Criminal Code].”17 § 221(c) mandates that when a word used in

the Criminal Code is not defined therein, it is to be given “its commonly accepted

meaning, and may be defined as appropriate” to fulfill the general purposes of the

Criminal Code.18

       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.”19 The



15
   Spielberg, 558 A.2d at 293.
16
   11 Del. C. § 221(c).
17
   Spielberg, 558 A.2d at 293 (quoting 11 Del. C. § 203).
18
   11 Del. C. § 221(c). The general purposes of the Criminal Code are set forth in 11 Del. C.
§ 201, which provides:
           The general purposes of this Criminal Code are:
            (1) To proscribe conduct which unjustifiably and inexcusably causes or
            threatens harm to individual or public interests;
            (2) To give fair warning of the nature of the conduct proscribed and of the
            sentences authorized upon conviction;
            (3) To define the act or omission and the accompanying mental state
            which constitute each offense;
            (4) To differentiate upon reasonable grounds between serious and minor
            offenses and to prescribe proportionate penalties therefor; and
            (5) To insure the public safety by preventing the commission of offenses
            through the deterrent influence of the sentences authorized, the
            rehabilitation of those convicted and their confinement when required in
            the interests of public protection.
19
   11 Del. C. § 1112A(a)(1).


                                             7
term “prohibited sexual act” refers to twelve specific acts enumerated in 11 Del. C.

§ 1100(7),20 including “[n]udity, if such nudity is to be depicted for the purpose of

the sexual stimulation or the sexual gratification of any individual who may view

such depiction.”21

       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).22 Zambrana argues that pursuant to this definition, the act of tricking a

child into disrobing for his own sexual gratification is not sufficient to be convicted

of sexual solicitation because he did not “intend to or take a picture, video

recording, or create any other ‘depiction’ of [S.Z.’s] nudity.”23



20
   11 Del. C. § 1100(7) states “‘[p]rohibited sexual act’ shall include”:
            a. Sexual intercourse; b. Anal intercourse; c. Masturbation; d. Bestiality; e.
            Sadism; f. Masochism; g. Fellatio; h. Cunnilingus; i. Nudity, if such nudity
            is to be depicted for the purpose of the sexual stimulation or the sexual
            gratification of any individual who may view such depiction; j. Sexual
            contact; k. Lascivious exhibition of the genitals or pubic area of any child;
            l. Any other act which is intended to be a depiction or simulation of any
            act described in this paragraph.
21
   11 Del. C § 1100(7)(i).
22
   Appellant’s Op. Br. at 7 (citing various online dictionaries).
23
   Appellant’s Op. Br. at 7.


                                                  8
       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.24 This more expansive definition is supported by the U.S.

Supreme Court’s analysis in New York v. Ferber, a key decision in obscenity law

that permitted states to ban the sale of child pornography.25 In Ferber, the Court

included “live performances” in its discussion of “depictions,”26 and concluded




24
   As Zambrana points out in his Opening Brief, “depict” means to “show or represent by a
drawing, painting, or other art form . . . .” Appellant’s Op. Br. at 7 (citing OXFORD ONLINE
DICTIONARY, http://www.oxforddictionaries.com/us/definition/american_english/depict (last
viewed Jan. 21, 2015)) (emphasis added). One such other art form is Performance Art, which
“typically features a live presentation to an audience or onlookers . . . .” Performance Art
Definition, MERRIAM-WEBSTER, http://www.merriam-
webster.com/dictionary/performance%20art (last visited June 18, 2015). To the extent that other
definitions of “depiction” are more limited, they tend to have their origins in the era before
photography and motion picture technology. Thus, they hew more closely to the portrayal of an
object in words or in painting; for example, the Random House Dictionary defines “depict” as
“to represent by or as if by painting; portray; delineate; to represent or characterize in words;
describe.” Depict Definition, DICTIONARY.COM, http://dictionary.reference.com/browse/depict
(last visited June 18, 2015). Zambrana does not contend that photographs or
video recordings, for example, would not qualify as depictions, even though they are not
paintings or characterizations in words.
25
   458 U.S. 747(1982).
26
   Id. at 764-65 (“We note that the distribution of descriptions or other depictions of sexual
conduct, not otherwise obscene, which do not involve live performance or photographic or other
visual reproduction of live performances, retains First Amendment protection.”); see also id. at
762-63 (“The value of permitting live performances and photographic reproductions of children
engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it
unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their
genitals would often constitute an important and necessary part of a literary performance or
scientific or educational work.”).


                                               9
that a depiction can include a live performance of nudity, a sexual act, or a

simulation of sexual activity designed for the sexual gratification of the audience.27

       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,28 the purpose of

the act was to “increase the protection afforded to Delaware’s children from

pedophiles” and facilitate prosecution of adults who solicit children for sexual

purposes.29 In this case, Zambrana does not dispute that he tricked S.Z. into taking

her shirt off so that he could watch her for his own sexual gratification. To

conclude that the General Assembly intended to punish predators who solicit

children to take off their clothes for their own sexual gratification only if the

predator creates a tangible depiction of the child directly conflicts with the express

purpose of the statute. Adopting this interpretation would allow sex offenders who

27
   Id. at 764-65.
28
   See Carper v. New Castle Cnty. Bd. of Ed., 432 A.2d 1202, 1205 (Del. 1981) (“The synopsis
of the Bill [is] a proper source from which to glean legislative intent . . . .”).
29
   1998 Del. Laws Ch. 467, Synopsis (H.B. 740, 139th General Assembly).


                                            10
trick or force minors into conducting live performances involving the simulation of

nudity for the sexual gratification of the audience to escape prosecution. This was

clearly not the intent of the General Assembly.

       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 11.30 Specifically,

11 Del. C. § 1100(11) defines “visual depiction” as a separate term, as including,

but not limited to:

           a. Any image which is recorded, stored or contained on or by
           developed or undeveloped photographic film, motion picture
           film or videotape; or b. Data which is stored or transmitted on
           or by any computer, or on or by any digital storage medium or
           by any other electronic means which is capable of conversion
           into a visual image; or c. Any picture, or computer-generated
           image or picture, or any other image whether made, stored or
           produced by electronic, digital, mechanical or other means. 31

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.”32                 To read “depiction” in


30
   11 Del. C. § 1100(11).
31
   11 Del. C. § 1100(11). Cf. Stiftel v. Malarkey, 384 A.2d 9, 11 (Del. 1977) (“A statute can
define its terms as the lawmakers see fit in order to make clear what is intended.”).
32
   See, e.g., Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982) (“The legislative body is
presumed to have inserted every provision for some useful purpose and construction, and when
different terms are used in various parts of a statute it is reasonable to assume that a distinction
between the terms was intended.”) (internal quotation marks omitted).


                                                11
§ 1100(7)(i) as “visual depiction” would thus either improperly engraft language

into the statute that the General Assembly deliberately excluded,33 or render the

“visual” in “visual depiction” redundant.34

       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).35 11 Del. C. § 1100(7) provides eleven “prohibited sexual act[s]” in

addition to nudity, which include: sexual intercourse, sexual contact, and lascivious

exhibition of the genitals or pubic area of any child.36 None of the other acts

defined in § 1100(7) require a tangible reproduction of the sort that Zambrana

argues is required for nudity. Instead, each is a crime of sexual abuse that is


33
   See id. (“Similarly, where a provision is expressly included in one section of a statute, but is
omitted from another, it is reasonable to assume that the Legislature was aware of the omission
and intended it. The courts may not engraft upon a statute language which has been clearly
excluded therefrom by the Legislature.”).
34
   See United States v. Alaska, 521 U.S. 1, 59 (1997) (“The Court will avoid an interpretation of
a statute that ‘renders some words altogether redundant.’”) (quoting Gustafson v. Alloyd Co., 513
U.S. 561, 574 (1995)).
35
   Cf. Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (applying the canon of interpretation
under which “a word is known by the company it keeps (the doctrine of noscitur a sociis)”);
Dole v. United Steelworkers of Am., 494 U.S. 26, 36 (1990) (“The traditional canon of
construction, noscitur a sociis, dictates that words grouped in a list should be given related
meaning.”) (citations and quotations omitted).
36
   11 Del. C. § 1100(7).


                                                12
punishable upon completion of the act.37 It would therefore not be “sensible”38 to

conclude that the act of soliciting nudity requires some manner of recording or

reproduction.39

       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 11.40 As the U.S. Supreme Court observed in

Ferber, the nature of the two statutory provisions is distinct: the harm to a child

from being “visually depicted” in pornographic material is different than the harm

from the underlying act of sexual abuse by itself, even though the two are

“intrinsically related.”41 Finding that the “depiction” of nudity requires a physical


37
   The inclusion of qualifiers to “nudity” in the statute was likely meant to exempt acts involving
nudity that were not intended to be sexual in nature, for example, when a parent or caretaker
undresses a child for bathing. Cf. Pennsylvania v. Davidson, 938 A.2d 198, 214 (Pa. 2007)
(describing Pennsylvania’s analogous statutory definition in a prosecution for possession of child
pornography, and observing that “[t]he ‘nudity’ qualifier is just that—a qualifier—restricting the
statute’s reach to only those forms of nudity that are depicted for sexual stimulation or
gratification. Consequently, the statute does not reach innocent family or artistic images of
minors in a state of simple nudity, e.g., a photograph of a baby’s bath.”).
38
   See Zhurbin, 104 A.3d at 113.
39
   Appellant’s Rep. Br. at 6-7.
40
   See 11 Del. C. § 1108 (defining sexual exploitation as, among other things, “knowingly,
photograph[ing] or film[ing] a child engaging in a prohibited sexual act or in the simulation of
such an act, or otherwise knowingly creat[ing] a visual depiction of a child engaging in a
prohibited sexual act or in the simulation of such an act); § 1109 (prohibiting “dealing in child
pornography,” which includes transporting “any other visual depiction of a child engaging in a
prohibited sexual act or in the simulation of such an act”); § 1111 (prohibiting “possession of
child pornography,” which occurs when a “person knowingly possesses any visual depiction of a
child engaging in a prohibited sexual act or in the simulation of such an act”).
41
   Ferber, 458 U.S. at 759 (“[T]he materials produced are a permanent record of the children’s
participation and the harm to the child is exacerbated by their circulation.”).


                                                13
representation of that nudity would thus collapse the intentional distinction in the

statute between the abuse itself and the creation of pornographic material

portraying the underlying abuse.

          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.”42 Zambrana, playing the role of both

solicitor and viewing party, intentionally presented S.Z.’s nudity as a live

performance to himself, qualifying it as a “depiction” under 11 Del. C. § 1100(7).

Accordingly, the Superior Court did not err in finding him guilty of Sexual

Solicitation of a Child.

                                III.   CONCLUSION

      The judgment of the Superior Court is AFFIRMED.

42
     11 Del. C. § 1100(7).



                                         14
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.”43           Thus, he

contends that tricking a victim into taking off her clothes for the purposes of his




43
     Opening Br. at 7.


                                           15
own sexual gratification is insufficient because he did not “intend to or take a

picture, video recording, or create any other ‘depiction’ of [S.Z.’s] nudity.”44

        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.45 Thus, a reasonable reading of “depiction” in this context

could include painting a mental image,46 which can be as potent for the person

seeing it in his “mind’s eye” as visual imagery or written language. 47                    And

Zambrana admitted that he intended to trick S.Z. into allowing him to see her

breasts, precisely so that he could take a mental photograph of them to view later

with his mind’s eye.

       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



44
   Id.
45
   See Opinion of the Court, n.24.
46
    Cf. 62A Am. Jur. 2d Privacy § 160 (describing “false-light cases in which depiction or
portrayal of persons as guilty of crimes against societal order have included allegations”)
(emphasis added); 48 C.J.S. Intoxicating Liquors § 486 (“The word ‘intoxicated’ is one of those
terms used to depict a physical condition which probably defies precise definition . . . .”)
(emphasis added).
47
   “Recognition of a person or face would seem to be as much the product of a subjective mental
image as of articulable, consciously remembered characteristics. A man may see clearly in his
‘mind’s eye’ a face or a figure which he is hard put to describe adequately in words.” Watson v.
State, 349 A.2d 738, 740 (Del. 1975) (internal quotation marks omitted) (quoting Russell v.
United States, 408 F.2d 1280, 1284 (D.C. Cir. 1969), cert. denied, 395 U.S. 928 (1969)).


                                              16
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.




                                          17
