SALT LAKE CITY - The Utah Supreme Court upheld the possession of child pornography conviction of a Utah woman, despite her attorney's claims that the law used to convict her was deemed unconstitutional by the U.S. Supreme Court five years ago.
A librarian at the University of Utah's Marriott Library reportedly saw Lexis Alinas, 47, viewing a website called "Little Girls Extreme." Library security was notified and spoke with Alinas to confirm that she had been viewing child pornography. Once confirmation was obtained, university police arrested Alinas. In a routine search, police discovered two floppy disks that reportedly contained images of naked girls and women.
During her trial, Alinas testified that she struggled with sexual-identity issues since her youth; she said she had been dressing as a woman for roughly 17 years and considered herself a woman. Alinas said the downloaded images were to aid her search for self-awareness and "represent the way I felt I should have been born." A Deseret News article reported that Alinas' driver's license lists her as female, and that she tried hormones to develop breast tissue but could not afford a sex-change operation.
"Alinas focuses his argument on the instructions' use of the term ‘computer-generated,' a common phrase between the CPPA and the instructions in this case," the Utah Supreme Court judgment read. "He argues that the use of this language potentially allowed the jury to convict him for possessing ‘virtual child pornography,' which Ashcroft forbids. We also reject Alinas' argument that the instructions are invalid because a jury could conceivably convict a person for possession of ‘virtual' images under a mistaken belief that the term ‘computer-generated image' included such images. The images possessed by Alinas in this case were clearly of real children, far below the age of majority."
Alinas was charged with seven counts of sexual exploitation of a minor. A jury found her guilty on all counts, and she was given a suspended sentence for 607 days served and placed on probation for three years.
Jurors were told that, in order to convict Alinas, they had to determine that she possessed a "visual depiction, photograph, picture or computer-generated image or picture of a minor engaging in sexually explicit conduct."
Alinas' defense attorney cited the U.S. Supreme Court's 2002 ruling in Ashcroft v. Free Speech Coalition, but the trial judge and the Utah Supreme Court affirmed her conviction.
Alinas contends that the state was unsuccessful in proving the ages of the children depicted in the images she downloaded and failed to prove the images represented actual children. She argued that expert testimony would be required for the state to prove beyond a reasonable doubt that the pictures were of real underage children. Since no expert testimony was introduced in this case, Alinas maintains, the state failed to meet its obligation.
Nevertheless, the judgment said, "Alinas cites to no case that supports his claim, and we have found only cases that express the contrary view. We are of the same view. Whether an image depicts a virtual child or a real child is a question of fact for the jury. Also, whether the children depicted are minors is a question of fact for the jury."
