Barton Jason Lewis Bagnes is asking the Utah Supreme Court to throw out his lewdness convictions, arguing that he did nothing sexual when he dropped his trousers and showed his Elmo diaper to two girls in White City.
"It was not sexual, it was just strange," Bagnes' attorney, Joanna Landau, said during oral arguments earlier this month.
A jury convicted Bagnes, 36, of felony lewdness and other charges in connection to allegations that he exposed his diaper to the children in May 2009. He was sucking on a candy pacifier and throwing fliers folded into paper airplanes onto lawns when two 8-year-old girls approached him. The girls said Bagnes' trousers were low enough to display a diaper with the Elmo cartoon character on the front; one girl said he pulled down his pants to show them the diaper.
That is not lewdness, Landau argued.
"It was notable for what he didn't do," she said. "There were no gestures, no thrusting, no touching, no private parts exposed, no buttocks exposed.
"This case is really about the state trying to pigeonhole Barton Bagnes' odd and strange behavior into criminal statutes where it doesn't belong."
Prosecutors argued that the context of Bagnes' diaper display was sexual: the fliers that landed in people's yards showed children of various ages in diapers, some posed provocatively. Two web addresses were scrawled on the flier, promoting sites that showed sexually explicit images of children in sheer underwear, detectives have said.
"The question before the jury was whether these were lascivious actions or not," said Ryan D. Tenney, of the state attorney general's office. "The fact that he's handwriting onto these flyers links that take you to pornography sites suggests that there's something sexual going on here. The jury heard this."
But Bagnes also was convicted of sexual exploitation of a minor and dealing in materials harmful to a minor in connection to the flyers. The justices questioned whether the diaper display was, in and of itself, lewd, noting that a diaper is "about as opaque and as non-form-fitting an item of clothing as you can imagine."
Tenney likened the diaper to underwear.
"Society recognizes undergarments are ... different from other things," he said. "This is why you have mothers pulling their kids away from the Victoria's Secret at the mall. We understand underwear has a sexual component to it."
But, one justice pointed out, "diapers don't have a sexual component."
Tenney argued that the act of dropping the pants was lewd, prompting the question: "So, what if I've got another pair of pants on underneath my pants and I drop my pants?"
Bagnes' history of diaper-flashing goes back to 1999, when he first was convicted of lewdness and was placed on the state sex offender registry. Other allegations followed, but charges either weren't filed or were dismissed because Bagnes did not show his genitals.
Bagnes has claimed he wore diapers because of urinary incontinence and displayed them to children to spread awareness of the medical problem.
The court took the case under advisement. A ruling may not be issued for months.