walk from counsel table to the podium and i've always enjoyed doing that and you know when i heard this was going to be you know assume argument i thought well you know so be it but then i thought you know this is a great case to do zoom argument because we are virtually the president and that's what this case is all about i mean this is the perfect you know in a court room heat we could i could you know if we this night we could prove that zuma is is a you know is is software based and that we're internet connected and this video image and were interacting that's brutal presence what happened back in may eighteen wasn't ritual presents a picture was sent it appeared on ether somewhere and he kept a picture that was not virtual presence case that this this prosecution this sexual exploitation statute under which this prosecution happened it's based upon the exploitation is criminalized by the statute happens when the adult in this case a woman exposes her breast in the presence of a child and the adult knows or intends that the child will see that act either other physically present or that presence happens ritually that the adult knows the child will see that  from the get go in this case the state the state was never concerned b because they thought that sending pictures constituted sexual exploitation of a minor it doesn't it never has never will there's other statutes that might address sending pictures but this statute does not and that's what they charged the state charged them must be virtually present one on the same time absolutely that they did because this debt you it requires one of the elements of the statute is that the actor in this how can she know that if this is not sung contemporaneous if they're not together you know if you know in any case where there is a plea president if they're you know in the same room across the same yard it you know wherever they are or if it if they're in the same virtual space in the same facebook area the same zoo meeting the same sky in the presence or virtual presence or both of a child without qualifying or telling us that they have to be at the same time i understand your argument but i'm looking for in a black letter law to not see room and also on a camera that i thought that that could be that that could happen in some some studio type setting yes i could see that  accepted the elements of the white statute to find will be a white guilty and that that is a clear demonstration of prejudice if found guilty because she intended there's no evidence of when these pictures were taken could have been two years ago for all we know and sending a picture is not what this sexual exploitation statute is about it's about exposing breasts in this case or sex organs or an anus in the presence or virtual presence of a child knowing it that a child will see that act and at the trial in this case you know when you use that would information as a roadmap i mean that's what's going to happen that the state call the baby to testify and he testified that that she sent me those pictures on snap chat that is one or two sentence explanation was continued on them or words but this is not virtual presence they were not presence in any sense and this did not  and you know the legislature has been defying elements of answers for years and maybe somebody needs to send a memo to legislatures legislators that we as judges and trial attorneys have to turn these definitions into jury instructions but this is one that would be very very hard to turn into a jury instructions it's right there in  interactively at a personal computer or handheld communication device or boat and then there's a definition of webcam that talks about exploitation that type of life  communication that were and interaction that we're having right now not sending pictures there's already a statute on the books to address that but what i mean what really clear that these two people were not on the same screen and not interacting with one another because apparently if you screenshot the picture the other person knows well he didn't want to do that so he had another bone and surreptitiously before the picture article deleted you took a picture of it unbeknownst way that they're exploring it all we need and you appearing in front of one another you don't so you can't take a strip you can't surreptitiously take a picture in that setting you just dumped that's not virtual presence in any way shape or form just in the last issue we have to address as time is running short i think is the issue that  and you know that's a case where the seven circuits in a really ugly case the find the words used for the government's very broadly words used the words used in the that sexual exploitation case and the governor the son of circuit reversed that no you don't use the word use that broadly in that context and in this please the court counsel come we have to remember both of these arguments two and three are sufficiency about evidence arguments so how can you have think that the evidence more than most favorable to the prosecution and allowing all reasonable infere es there simply isn't a requirement in the statue but newt will be shown and the trier of fact was allowed to make that same inference the statute here requires the defendant exposed her sex organs anus or press for the purpose of sexual arousal gratification that's the difference between an instagram post of someone in the bikini or on the t v or something like that that isn't sent to a specific purpose person for the purpose of sexual gratification  here that's exactly what the defendant did and it was an interactive experience there was testimony and text on the were on the photos themselves to show that these two were having a conversation this wasn't just a picture out of the blue  t defendant sent to w b so as per the definition of breasts there isn't one in this case so the trier of fact was allowed to reasonably infer that the amount of breasts that needed to be shown and there's no requirement no specific mentioning of the word nipple at all in the statute a defendant cites a couple favorable definitions and his reply brief nudity and intimate parts those are from different offe adult victim section of the criminal code but anyway the point remains as ligon court stated both of the cited in our briefs we cannot conclude that the legislature simply forgot to include the exception in one section particularly when the legislature included that language where it intended in a separate statutory section so obviously the legislature was well aware they could have defined brest more specifically however this is a vulnerable victims offense of the broader definition is is  pt here especially when the absurdity comes out if we use the entire there's no end requirement for defendant to expose their entire sex organ their entire and this clearly in any portion of those would satisfy the statute so here like there this portion and again they the pictures of defendant it's not like a little bit of breast is showing these were topless pictures argues as for the charging estimate of the element of knowledge was an alleged this wasn't raised in defendant's opening read it wasn't mentioned in tell her reply brief so that argument has forfeited it's been that way since the clearly that knowledge element argument is forfeited that's why i didn't argue it in my grief because it wasn't raised yet of course if you do look at the merits of that the knowledge element was never contested here it's clear that the defendant was using her phones and exchanging messages with the big dem w b on his phones so this is what knowledge wasn't really a disputed factor here op so i would mention he  council mentioned zoom is an example of simultaneous presence or virtual presence i've checked it's not part of the record but it's available on your smartphone as well so i don't see how that would help defend its position here as to the virtual presence argument that definition again it's an environment that is created with software and presented to the user and or received via the internet such a way that the user appears in front of the receiver or the computer monitor screen handheld portable electronic device usually through a webcam program there's nothing in here that states anything about the presence being simultaneous or contemporaneous in fact the webcam webcam is also defined in the statute and it's defined as this video capturing device connected to a computer or a computer network that it's going to take digital photographs or a lot of or recorded video which allows for the live transmission to an end user over the internet in other words a photograph or a lot recorded video they did they differentiate between live and recorded video obviously a recorded video was recorded sometime in the past the digital photograph is taken some time in the past it's when it's transmitted to an end user over the internet is when the web cam definition takes its takes its toll here that's clearly what happened and i would say it says a lo the live transmission to an end user over the internet i would differentiate the live transmission being the difference between here where it was defendant personally sending a personal message to one specific underage show that there's no way that simultaneous presence was required in virtual presents so mr mcneil under your theory it doesn't matter when the photos were taken it  that this is a direct communication between the two i don't think the timeline of the photographs matters and again even if this was a live transmission defendant said that the counsel stated that the snap chat photos disappear after a couple of seconds i don't think somebody on a libc cam virtually exposing themselves i don't think it matters that it would be for him only a couple seconds so i don't think that well i would say and again these are sufficiently of evidence arguments so i would say that there was a reasonable inference to be made that these were there were photos they were w b was talking about his shoes or something like that and then defendant sends a topless pictures com commenting on his shoes i would say the now you seem to be conceding that i asked mr wise about the definition virtual presence i think it is in here and that we've seen it no other real authority as to what that is  conceding that that language isn't there now i'm just conceding that if a reasonable inference can be made in this case the disc was an interactive saying interactive between defendant and w b at the same time there is nothing in the statute in the definition of virtual presence or webcam that simultaneous presents has to be involved again to be presented to the user or receiver via the internet in such a way that the user appears in front of the receiver the receiver does not have to peer in from the user to satisfy this virtual presence statute and the legislative notes the defendant talks about are from two thousand and ten smartphones have evolved quite a bit since then but i would argue that the definitions as they're stated in the two thousand and ten version of this the elements here were met and defend it was properly charged the other the other alternative charges that defendant mentions in his brief have to do with did just to strip simply distributing obscene material to a child that is not this case this is not a convenience store clerk selling a dirty magazine to a kid this is the end user receiving a picture of the defend herself topless so i think this is exactly the kind of exposure that the legislature intended when they came up when they amended this to include virtual presence and i wouldn't be surprised if they amended again to include specifically any kind of whatever apps in the future to specifically know that that is involved but clearly under the virtual presence as it's defined here that was established and that's for the fish to the charging instrument we know that the defendant wasn't prejudice in the preparation or our defense because she raised the exact same arguments here as she did at trial so clearly she was apprised of the charges against her there was no mystery as to what photographs were called here or the charges against her again she she she raises the same ones you on mute mr wise and ok thank you ok there is a statutory construction argument regarding the definition of virtual presence and there is a statutory construction argument regarding the definition of breast just simply a sufficiency of the evidence arguments with respect to the definition of ritual presence and this issue of interactive and that he responded back he testified that this is in the manner of texting when i when we communicate by t  that that's not it are active in the definition of ritual presence interactive means we are we are in real time that that's come that's completely different texting communication where i put a note on a picture and send it to you and you send a note back is not wh judge kevin us says they're together contemporaneously virtually that's the only way that can happen a picture is not going to work when you when you when  under advisement and carts and recess