North Dakota promotion and digital-evidence guide
Promoting a Sexual Performance by a Minor in North Dakota
N.D.C.C. § 12.1-27.2-04 is a class B felony with three conduct theories: producing, directing, or promoting a performance that includes sexual conduct by a person who was a minor when the performance occurred. The State must also prove that the accused knew the performance’s character and content. “Promote” has a long statutory definition reaching specified creation, transfer, transmission, distribution, presentation, exhibition, and advertising acts, while “produce” and “direct” remain distinct terms. The charge does not require obscenity, but it requires more than passive possession. The exact act, complete media, knowledge, age, offense-date definitions, account attribution, search, and chapter-wide defenses decide what the State can prove.
You will work directly with me.
If you hire me, I identify the specific produce, direct, or promote act alleged for each count and match it to the original media, complete communications, provider records, payment evidence, device extraction, and the law in force on the alleged date. I test who controlled the account, whether the person knew the material’s actual content, when the performance was created, whether the depicted person qualified as a minor, how police obtained the evidence, and whether an affirmative defense or another statutory boundary applies.
Three conduct theories, one knowledge requirement, and defined content
| Element or theory | What current law requires | What the evidence should identify |
|---|---|---|
| Knowing character and content | The accused knew what kind of performance it was and what it contained. | Complete messages, previews, file names with their limits, prior viewing, requests, admissions, payment context, thumbnails, and the actual media. |
| Produces | The accused produced the performance. | Creation, capture, staging, equipment, editing, generation, financing, file origin, instructions, and who caused the visual representation to exist. |
| Directs | The accused directed the performance. | Commands, choices about pose or conduct, sequencing, camera or platform instructions, repetition, correction, and control over how the performance occurred. |
| Promotes | The accused performed at least one act within the statute’s broad promote definition. | The exact procurement, manufacture, transfer, transmission, distribution, presentation, exhibition, advertising, or other enumerated act and its timestamp. |
| Performance and sexual conduct | The visual performance included a current or offense-date statutory sexual-conduct category. | The complete work, not only a description, with the charged conduct category and any purpose or simulation facts. |
| Minor at the time | The depicted person was a minor when the performance occurred. | Birth or identity proof, appearance evidence permitted by § 12.1-27.2-06, creation date, and current generated-image proof if the current definition applies. |
The complaint and jury instructions should preserve these distinctions. A person may possess a file without producing, directing, or promoting it. A person may transmit a file without having produced the original. A person may ask for particular conduct and thereby create direction or promotion evidence without holding the camera. Multiple theories can overlap, but overlap does not permit the State to avoid identifying the charged act or to duplicate punishment contrary to governing merger and double-jeopardy law.
Knowledge relates to the performance’s character and content. The State may use circumstantial evidence because internal knowledge is rarely captured directly, but it still must show what the accused knew at the relevant time. Receipt of an unopened file, a misleading thumbnail, automatic download, cloud synchronization, a shared device, or a link never accessed presents a different inference from detailed requests, previews, payment discussions, repeated exchanges, admissions, or redistribution after viewing.
The phrase “at the time of the performance” separates creation-time age from later possession or distribution. An adult may remain an adult even when an old image looks youthful; a real person who was a minor when the performance occurred remains within the age element even if the file is later promoted after adulthood. Creation date and depicted identity therefore require evidence independent of the date police found or downloaded the material.
“Promote” covers many acts, but the State must prove one
Chapter 12.1-27.2 defines promote to mean procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, ship, transport, publish, distribute, circulate, disseminate, present, exhibit, or advertise. That list reaches conduct ranging from acquiring material to sending it, showing it, publishing it, or advertising it. The count should identify the act alleged, and the evidence should show when, how, to whom, and through which account or device it occurred.
Procurement is not the same as passive receipt
“Procure” ordinarily involves obtaining or causing the material to be obtained. Requests, negotiations, payment, barter, repeated instructions, and delivery arrangements can support procurement. An unsolicited incoming file, automatic group download, or material placed in an account by someone else presents a different record. The question is not simply whether the file existed in a location associated with the accused, but whether the accused committed the charged promotion act with the required knowledge.
Transmission and distribution require event-level proof
A sent-message marker, provider delivery record, upload log, recipient device, server production, or admission can support a transmission allegation. But a local draft, failed upload, cached preview, synchronization artifact, or file merely available to an application may not prove successful transmission. Distribution can involve one or many recipients depending on the charged theory, but the State should establish the source account, destination, file, time, and knowledgeable actor.
Presentation and exhibition can occur without permanent transfer
Showing a visual representation on a screen, displaying it in person, streaming it, or otherwise making it visible may be alleged as presenting or exhibiting. Investigators should preserve what was actually displayed, to whom, how long, and in what context. A witness’s characterization may not establish the performance’s exact content. The underlying image or recording, where lawfully available, permits the factfinder to apply the statutory definitions rather than rely solely on a label.
Production and direction focus on creating and controlling the performance
Production evidence can include who planned, captured, generated, financed, edited, saved, or assembled the visual work. Direction evidence can include instructions about conduct, pose, framing, repetition, sequence, platform, or camera. Neither term should automatically be inferred from later possession. Conversely, a person can direct or finance creation even if another person operates the device and the resulting file is never found on the director’s own phone.
Count-specific analysis matters when the same exchange produces several images or videos. The prosecution may charge more than one count, but each count needs an identifiable act and performance. File hashes, timestamps, conversation references, exhibit numbering, and verdict forms should prevent one generalized body of evidence from being used without clarity for every count.
Which verb?
Identify production, direction, or the exact statutory promotion act for each charged count.
Which file or performance?
Match the count to original media, creation time, hash, complete context, and the specific sexual-conduct category.
Whose act?
Separate account subscription, device possession, authorship, transmission, and control using corroborated attribution evidence.
What knowledge?
Determine what content was visible or described before the act and whether automatic or third-party conduct provides another explanation.
Performance, sexual conduct, minor, and simulated conduct must all fit
A performance is a visual representation
The definition includes a play, motion picture, photograph, dance, other visual representation, or part of a performance. A written fantasy, audio-only exchange, suggestive conversation, or nonvisual request is not automatically the performance itself, though it may be evidence of knowledge, direction, procurement, or another charge. The State must identify the visual work connected to the charged promotion act.
Current “sexual conduct” is an eight-part category
Current law covers actual or simulated sexual intercourse; statutorily defined sodomy; sexual bestiality; masturbation; statutorily defined sadomasochistic abuse; lewd exhibition of the buttocks, breasts, or genitals; a nude or partially denuded human figure depicted for the purpose of sexual stimulation or gratification of a viewer; and physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or breasts. It states that the minor need not know the minor is participating in the described conduct or any aspect of it.
The State should identify which category applies. “Explicit,” “nude,” “sexual,” and “pornographic” are conclusions or shorthand, not substitutes for the statute. The purpose-limited nude-or-partially-denuded category requires purpose evidence. Lewd exhibition can require analysis of the complete depiction, framing, focus, pose, context, and surrounding direction. Physical contact requires proof of the depicted contact. The material should not be described more broadly than its actual content.
Current “minor” includes specified generated or altered imagery
The current definition includes a real person under eighteen and a computer-generated image used, created, adapted, altered, or modified to appear to depict someone under eighteen through face, likeness, or another distinguishing characteristic. Enrolled 2025 House Bill 1386 added the computer-generated-image definition and revised the chapter definition of “minor.” The current language cannot simply be imposed on an older offense date. A generated-image allegation needs evidence about creation, source inputs, alteration, apparent age, distinguishing characteristics, and the other offense elements; an investigator’s software label alone is not the enacted test.
Simulated conduct has a limiting definition
“Simulated” refers to an explicit depiction that creates the appearance of actual listed conduct and exhibits a nude or partially denuded human figure under the incorporated definition. Acting, animation, compositing, editing, or camera angle does not make every image simulated sexual conduct. The content must be compared with the words in force on the alleged date.
Obscenity is not an element of § 12.1-27.2-04
The neighboring § 12.1-27.2-03 separately criminalizes producing, directing, or promoting an obscene sexual performance by a minor and classifies it as a class A felony. Section 12.1-27.2-04 omits obscenity and is a class B felony. A prosecution under § 12.1-27.2-04 therefore should not add an obscenity element, but it also cannot use the absence of obscenity to skip the performance, sexual-conduct, minor, knowledge, and conduct requirements.
How I reconstruct a promotion allegation
1. Build a file-by-file and count-by-count map
I match each count to the alleged file or performance, hash value, exhibit, date, source, recipient, charged act, depicted person, age proof, sexual-conduct category, and knowledge evidence. This exposes duplicates, thumbnails, previews, converted files, cloud copies, screen recordings, and one file charged through multiple theories. It also prevents an inflammatory collection from obscuring a weak link in a specific count.
2. Preserve complete conversations and provider records
Native exports and provider productions can show account identifiers, edits, deletions, replies, attachment relationships, delivery status, time zones, login records, and surrounding context missing from screenshots. Both sides of an exchange may have different records. I compare the minor’s device, the accused’s devices, provider data, backups, and law-enforcement exports rather than accepting a curated message sequence without provenance.
3. Distinguish account association from authorship
A subscriber record or device extraction can connect a person to an account without proving every act. Shared devices, linked accounts, password access, remote sessions, recycled numbers, multiple profiles, cloud synchronization, and impersonation must be tested against IP information, device identifiers, possession, location, writing patterns, contacts, payment activity, admissions, photographs, and corroborating events.
4. Test payment and barter evidence without shortcutting the elements
Cash, transfers, gift cards, products, or other benefits may support procurement, production, inducement, or a commercial context. They can also have another explanation. The record should connect the benefit to the specific performance and promotion act. Section 12.1-27.2-04.2’s special commercial fine requires more than payment: it separately asks whether the offender acted in a commercial or for-profit activity and had or shared ownership, control, managerial responsibility, or a financial interest other than wages.
5. Trace creation and transfer history
Metadata, application databases, cloud logs, thumbnails, EXIF information with its limits, file-system records, hashes, editing history, and forensic reports can help establish when and where a performance was produced or transmitted. Timestamps may be altered by copying, export, time-zone settings, server processing, or synchronization. A qualified examiner should explain the tool, acquisition, settings, interpretation, and uncertainty rather than offer only a report conclusion.
6. Review statements against the recordings
Admissions can be important, as Wiese illustrates, but the exact question and answer matter. Recognizing an account is not necessarily admitting authorship of every message. Admitting receipt does not necessarily admit transmission or production. Custody, Miranda, voluntariness, invocation, promises, language, fatigue, and whether investigators supplied facts affect admissibility and weight.
7. Examine warrant scope and sequencing
North Dakota Rule of Criminal Procedure 41 governs warrants and suppression procedure. A device or account search should be traced from the affidavit and judicial authorization through seizure, preservation, provider process, extraction, filtering, later searches, and return. Particularity, date limits, nexus, good-faith issues, private-search questions, and whether officers exceeded the authorized scope require the actual documents. A lawful search makes evidence available; it does not prove the promotion elements.
8. Use discovery and authentication rules precisely
Rule 16 provides for disclosure of statements, documents and objects, examinations and tests, expert material, and witness information under its terms. Rule 901 requires enough evidence that an exhibit is what its proponent claims. Rule 1001 defines writings, recordings, photographs, data, and original-content concepts. Authentication is a threshold; completeness, hearsay, expert reliability, prejudice, confrontation, and constitutional objections remain distinct.
In State v. Wiese, 2024 ND 39, the Supreme Court affirmed promotion and possession convictions after considering saved messages and images from the minor’s phone, information from the online service, account association, discussions of payment and material, and admissions. The Court applied the deferential appellate sufficiency standard and evaluated the trial evidence as a whole. The decision does not establish that any isolated request, payment, account link, or receipt automatically proves promotion. It shows why original messages, corroboration, and the accused’s own words can support a verdict when the complete record permits the inference.
What can change the legal analysis
No proved production, direction, or promotion act
Possession, awareness, viewing, or account association does not automatically establish one of the three verbs. The defense should isolate the charged act, actor, time, destination, and file. Failed transmission, automatic synchronization, an unsolicited file, a third-party upload, or ambiguous account control may undercut the act even if the material itself is undisputed.
No proved knowledge of character and content
Knowledge can be inferred, but the inference must rest on evidence. File names, hidden folders, prior exchanges, specific requests, payment, previews, and admissions may support it; misleading labels, unopened files, automatic downloads, mass backups, inaccessible archives, or shared devices may point another way. Knowledge must be assessed at the time of the alleged produce, direct, or promote act.
The performance or content does not meet the definitions
The complete visual work may not contain the charged category of sexual conduct, may not depict a qualifying minor under the offense-date definition, or may lack the purpose fact required by one category. A report description is not the final legal test. Defense review must be lawful and carefully controlled because redistributing suspected material can create separate risk.
Reasonable belief about age
Section 12.1-27.2-05 supplies an affirmative defense if the accused in good faith reasonably believed the person appearing in the performance was at least eighteen, but only when that person was in fact fifteen or older. Both subjective good faith and objective reasonableness matter. Profile statements, identification, appearance, relationship history, contradictions, and what the accused was told can be relevant. The defense is unavailable under its text when the actual minor was under fifteen.
Bona fide purpose
The chapter also recognizes an affirmative defense when material or a performance was disseminated or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other appropriate purpose by or to listed or similarly interested persons. The actor, recipient, purpose, necessity, scope, and handling require proof. A generalized claim of research, journalism, education, or curiosity does not automatically meet the statute.
Offense date and amendment
Current definitions include 2025-era generated-image and expanded sexual-conduct language. Older conduct must be evaluated under the statute then in force. Creation, promotion, possession, and later redistributions can occur on different dates, so each alleged act needs its own effective-date analysis. A current definition cannot retroactively convert earlier lawful or differently defined conduct into this offense.
The conviction carries consequences beyond the ten-year ceiling
| Issue | Current rule | Qualification |
|---|---|---|
| Classification | Class B felony under § 12.1-27.2-04. | 2015 N.D. Session Laws chapter 108 elevated the earlier class C classification; do not confuse this charge with the class A obscene-performance offense or current class C/B possession alternatives. |
| Maximum | Up to ten years’ imprisonment, a $20,000 fine, or both under § 12.1-32-01(3). | The maximum is not a mandatory or predicted sentence. |
| Universal minimum | Section 12.1-27.2-04 states no minimum term for every conviction. | A separately applicable charge or sentencing statute can change the result. |
| Presentence investigation | Section 12.1-32-02(11) requires a department presentence investigation and report before felony sentencing. | Disputed facts, mitigation, and correction of the report remain important. |
| Commercial fine | Section 12.1-27.2-04.2 supplies special fine language for a qualifying commercial/for-profit offense with specified ownership, control, managerial, or nonwage financial interest. | Payment alone does not prove the provision’s business-role elements. |
| Registration | Chapter 12.1-27.2 is included in the sexual-offender definition, and felonious sexual-offender registration is mandatory. | Duration and public disclosure turn on risk, history, release timing, and current law. |
Current registration law generally requires fifteen years from the later statutory starting point, twenty-five years for an offender assigned moderate risk, and life for specified repeat, enumerated, or high-risk circumstances. Registration entails reporting of residence, employment, school, vehicles, online identities, changes, biometrics, and certain travel. Interstate, tribal, federal, and destination-jurisdiction duties can overlap. The actual judgment and current registration determination—not a webpage label—control a person’s obligations.
Interest of K.I.B., 2025 ND 157, involved a juvenile adjudication and held the juvenile court lacked the asserted deviation authority for a chapter 12.1-27.2 sexual-offender adjudication. It confirms the chapter’s placement in registration law but does not determine adult elements or a particular adult’s risk level and duration.
The commercial fine provision uses “notwithstanding” language and lists up to $10,000 for an individual or $25,000 for an entity on a first qualifying offense, and up to $50,000 or $100,000 respectively on a second or subsequent qualifying offense. It should not be mechanically stacked with the ordinary class B fine without applying its text. Ownership, control, managerial responsibility, or a financial interest other than wages must be proved.
Release and probation may bring no-contact, device, internet, evaluation, treatment, and monitoring conditions subject to lawful scope. Felony status can affect firearms, employment, housing, professional licensing, immigration, guardianship eligibility, and public records. Some effects arise only after conviction; pretrial conditions can begin sooner. Each consequence should be tied to the actual disposition rather than presented as inevitable from an accusation.
What to establish before choosing a approach
Identify every count’s act and file
The first work product should be a table matching count, statutory verb, date, file, depicted person, sexual-conduct category, age proof, alleged sender or creator, recipient, and knowledge evidence. Gaps and duplication become visible. That map guides discovery demands, expert scope, motions, negotiation, and trial preparation.
Preserve without redistributing
Preserve devices, accounts, complete conversations, payment records, location history, and lawful provider downloads. Do not forward suspected material, create new copies, alter timestamps, factory-reset a device, delete an account, contact a protected person, or ask anyone to align explanations. Counsel can arrange lawful forensic review and protective procedures.
Resolve collateral consequences before any plea
A proposed resolution must be analyzed for registration, conviction level, sentence, supervised conditions, immigration, employment, licensing, family matters, and future use of the conviction. A lower imprisonment recommendation can still be unacceptable if the registration or offense label is misunderstood. A strong litigation issue must also be weighed against proof, timing, resources, and the client’s priorities.
Frequently asked questions
What is the current penalty?
Section 12.1-27.2-04 is a class B felony. The current ceiling is ten years’ imprisonment, a $20,000 fine, or both. The offense section states no minimum term that applies to every conviction.
Does the performance have to be legally obscene?
No. Obscenity is an element of the separate § 12.1-27.2-03 offense, not § 12.1-27.2-04. The State still must prove a defined performance, sexual conduct, minor status, knowledge, and production, direction, or promotion.
Is possessing a file enough?
Not by itself. Possession is addressed separately in § 12.1-27.2-04.1. This charge requires production, direction, or a statutory promotion act. The same evidence can support more than one charge, but each charge retains its own elements.
What does “promote” include?
The definition includes procuring, manufacturing, issuing, selling, giving, providing, lending, mailing, delivering, transferring, transmitting, shipping, transporting, publishing, distributing, circulating, disseminating, presenting, exhibiting, and advertising. The State should identify which act occurred.
Can account records prove I sent something?
They can be important, but subscription and authorship are different questions. Provider logs, devices, IP history, possession, writing patterns, payments, admissions, and corroborating events should be compared, especially when devices or accounts were shared.
What if I believed the depicted person was an adult?
A chapter-wide affirmative defense applies when the belief was in good faith and reasonable, but only if the person appearing in the performance was actually at least fifteen. The belief and its reasonableness require evidence.
Will conviction require registration?
Yes. Chapter 12.1-27.2 is within the sexual-offender definition, and a class B felony conviction is a felonious sexual-offender conviction requiring registration. Duration and disclosure depend on risk, history, and current law.
What should I preserve now?
Preserve the complaint, warrants, inventory, complete communications, provider downloads, payment history, device and account list, shared-access facts, and an event timeline. Do not delete accounts or redistribute suspected material.
A lawyer’s file review of Promoting a Sexual Performance by a Minor in North Dakota
I do not assume the complaint’s narrative and its statutory citation line up. The practical work is to test that fit, identify what the State can actually prove, and separate a serious allegation from a legally sufficient case.
Read the count as a set of propositions the State must prove
The right starting point for Promoting a Sexual Performance by a Minor in North Dakota is N.D.C.C. §§ 12.1-27.2-01, 12.1-27.2-04, 12.1-27.2-04.2, 12.1-27.2-05, 12.1-27.2-06, and 12.1-32-15, read as it existed when the conduct allegedly occurred. I break the charge into the facts the law truly requires instead of treating the offense name as proof. Any fact that raises the degree or punishment gets its own question: who says it happened, what record supports it, and does the evidence satisfy the definition the statute uses?
I then place those answers on a timeline and test them against the complete record. A police summary may describe a witness, video, message, test, or prior conviction, but the underlying source matters more than the summary. Gaps, inconsistencies, and legal objections should be evaluated separately so that a real weakness is not confused with a technical complaint that has no remedy.
The evidence I would ask for first
For Promoting a Sexual Performance by a Minor in North Dakota, I would not begin with a canned list of defenses. I would begin with the source file: every recorded interview, complete message and social-media exports, device-extraction reports and underlying data, provider records, medical or forensic records, location information, witness timelines, prior statements, and the material needed to evaluate consent, age, authority, force, coercion, identification, and the scope of any search. A police summary can identify what an officer or witness says happened, but it cannot substitute for the recording, photograph, data, or document being summarized. The same is true of a complaint. It identifies the prosecution’s theory at the start of the case; it does not prove the theory.
I put those materials on one chronology. That lets me see what was known at each decision point, which account was contemporaneous, what appeared only after people spoke with one another, and where the record is silent. It also keeps an admissibility question separate from a factual one. A fact can be disputed even if the evidence was lawfully obtained. Evidence can also be accurate yet inadmissible for a particular purpose. Those are different arguments and should not be blurred together.
Read the charging document against the offense date
The alleged date matters because statutes, penalty thresholds, definitions, sentencing rules, and published decisions change. I save the version in force on that date and read the session-law history when the current online text is different. I also check whether a later amendment was merely clarifying or made a substantive change; that is a legal question, not an assumption. The same discipline applies to prior convictions and administrative events. A prior must fit the definition the charged statute actually uses, fall within any stated lookback period, and be proved by a reliable record.
I then compare the formal count with the probable-cause narrative and the discovery. If the prosecution’s theory shifts, I want the amended pleading and enough detail to prepare. If several factual alternatives are alleged, I identify whether they are separate elements, alternative means, enhancement facts, or merely evidentiary details. That distinction affects notice, motions, jury instructions, unanimity arguments, and how a verdict form should be read.
Separate an evidentiary weakness from a suppression issue
Not every troubling fact produces a motion to suppress. Suppression ordinarily requires a constitutional, statutory, or rule-based violation with a remedy that reaches the evidence at issue. A weak identification, an incomplete investigation, or a witness inconsistency may be powerful at trial without making evidence inadmissible. By contrast, a stop, search, interrogation, identification procedure, warrant, or test can raise a legal issue even when the resulting evidence appears incriminating. I analyze both tracks and do not promise dismissal simply because one problem exists.
For a search issue, I reconstruct what officers knew before each intrusion and what authority they claimed. For a statement, I examine custody, questioning, warnings, voluntariness, recording, and the complete context. For scientific or technical evidence, I request the method, underlying data, quality-control material, uncertainty information, and chain of custody. For hearsay or confrontation questions, I identify the actual statement, its purpose, the declarant, and the proposed foundation. Specificity matters; “the evidence is bad” is not a motion.
Prepare negotiation and trial at the same time
A plea decision should be compared with the case the State could present at trial, not with the complaint’s maximum penalty in isolation. I want to know the strongest admissible proof, the weakest required element, the realistic motion practice, the likely instructions, and the consequences of every proposed disposition. That includes custody, probation, treatment, restitution, driving, firearm restrictions, registration, employment or licensing, immigration consultation, family-court effects, and record consequences when they are actually triggered. I avoid telling a client that every collateral consequence applies to every conviction.
Trial preparation gives negotiation its credibility. Witness interviews, exhibit review, motions in limine, expert consultation, demonstrative evidence, jury instructions, and a clean theory of the case force both sides to confront what can be proved. Negotiation can continue while that work is underway. The two tracks are not opposites.
A case-law point worth keeping in its proper place
Appellate decisions matter, but a quotation should not be detached from the issue the court was deciding. In State v. Hartson, 2024 ND 78, ¶ 26, the North Dakota Supreme Court explained that, on a sufficiency challenge, “we do not weigh conflicting evidence, or judge the credibility of witnesses.” That is an appellate-review rule, not a reduction of the State’s burden at trial. At trial, the prosecution still must prove every element beyond a reasonable doubt. I cite the case for the point it actually decided and then return to the charged statute, the instructions, and the admissible evidence in the present file.
What I would want you to understand before choosing an outcome
You should be able to identify the exact charge, the facts that set its level, the disputed elements, the evidence that matters most, the motions that have a legal basis, the realistic trial issues, and the concrete effect of each proposed resolution. If an answer depends on a missing report, recording, expert opinion, or certified record, I will say so. An honest answer about what remains unknown is more useful than a confident guess.