ComputerForensicsDigest.com

Four years ago, a 14-year-old woman known only by her initials, C.E., joking asked 18-year-old Jorge Canal to send her a cellphone photo of his penis. The practice of sending nude photos, now known as 'sexting,' was growing increasingly popular in their circle of friends.

After C.E. repeated her request 3 or 4 times, Canal took a photo of his erect penis and sent it to C.E. He also sent a photo of his face, along with an attached text message saying "I love you." C.E. viewed the message in her email account and then tried to delete it. However, C.E. did not do an effective job and her mother, who routinely checked C.E.'s electronic communications, also saw the photos. She forwarded them to her husband, a reserve police officer in the local police force. The photos were in turn showed to a on-duty officer and a state prosecutor, who charged Canal with "knowingly disseminating obscene material to a minor.

Canal was convicted, given a deferred judgment, fined $250, and ordered to register as a sex offender. Unfortunately, Canal violated the terms of his probation and was sentenced to serve 19 days in jail and maintain his registration as a sex offender. Canal appealed the imposition of sentence to the Iowa Court of Appeals (which upheld the conviction) and then took his case to the Iowa Supreme Court.

On Friday, the Court unanimously upheld Canal's conviction. State of Iowa v. Jorge Canal, Jr., No. 07-1051 (Iowa Sept. 18, 2009). There were two issues raised on appeal: whether the evidence was sufficient to show that his emails were "obscene" as a matter of law, and whether Canal received effective assistance of counsel.

Canal argued to the Court that a picture of an erect penis cannot be obscene as a matter of law. The Court noted, however, that the jury was properly instructed that the standard for "obscene material" in Iowa is:

any material depicting or describing the genitals, sex acts, masturbation, excretory functions or sadomasochistic abuse which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors , would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value.

 Given that lawful instruction, the Court said, the jury could reasonably have concluded that a photo of an erect penis did in fact violate the contemporary community standard for what is "suitable" for minors. The Court noted that another jury might have reached a different conclusion, but the jury's ruling in this case was not wrong as a matter of law.

Canal's challenge to the competence of his trial attorney was based on the fact that the attorney did not specifically request a jury instruction to the effect that "mere nudity does not constitute obscenity." The Supreme Court concluded, however, that the trial court's instructions, read as a whole, conveyed that message. As a result, Canal was not deprived of effective counsel.

As a result of the Court's ruling, Canal will be required to service his jail sentence and pay a fine of up to $1,875. He will also be required to continue registering as a sex offender.