MARK G. ZAMBRANA, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee
Submitted: June 10, 2015.
Case Closed July 16, 2015.
Court Below: Superior Court of the State of Delaware in and for New Castle County. No. 1302018650. Upon appeal from the Superior Court.
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.
Before STRINE, Chief Justice, VALIHURA, and VAUGHN, Justices.
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 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. 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 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 ...