State v. Hatfield, 2020 UT 1 (Jan. 9, 2020)

Defendant entered a Sery plea in the trial court to four counts under Utah’s Sexual Exploitation Act.  The court of appeals affirmed two counts but dismissed two finding that as to the dismissed counts, the materials in defendant’s possession did not amount to “simulated” sexual acts.  In doing so, the court interpreted “simulated” under Section 103(11) of the Act holding: “Simulated conduct requires the duplication of an actual act such that the average person would believe that the activity appears to have occurred.”  Moreover, while the Court previously cited the Dost factors as instructive in determining whether a depiction was designed “for the purpose of sexual arousal of any person,” the court noted that its prior reliance on Dost was “with a healthy dose of caveat” explaining the “inquiry will always be case-specific” and that there “may be other factors that are equally if not more important” in determining whether an image violates the Act.