concurring in part and dissenting in part.
I concur with the majority except insofar as Count 8 is concerned. I do not believe the evidence was sufficient to prove that Foster accosted, enticed, or solicited M.K. with the intent to induce or force her to be a subject of sexually explicit visual material in violation of then effective Code § 18.2-374.1. While his act of showing a child nude pictures may have been reprehensible, it did not constitute the crime for which he was convicted.
The only contact between Foster and M.K. occurred in the real estate office in which both Foster and M.K.’s mother worked. One afternoon while M.K. waited in the office for her mother to return, Foster engaged her in conversation concerning his wish to return to his old “profession” of photographing dead children. He showed her between 200 to 250 photographs, including the two depicting genitalia at close range. Foster then asked M.K. “if [she] wanted to” accompany him some day after school or on a weekend when he photographed dead children.
A note made by Foster was introduced into evidence. The note is not dated and the evidence suggests no reason to believe from the evidence that the note was made until after the conversation with M.K. From his note it can be inferred that he wished for M.K. to model as a corpse. However, the note further showed that he intended to use “a burial costume for her: sheets, panties, bras, anklets.”
*333Based on an analysis of the note and the conversation between Foster and M.K., even when viewing the facts in the light most favorable to the Commonwealth and granting to the evidence all reasonable inferences fairly deducible therefrom, I am unable to conclude that there was sufficient evidence to. prove that Foster enticed M.K. to be the subject of sexually explicit materials. Even if one infers from the conversation that Foster solicited M.K. to be photographed in the admittedly bizarre pose of a dead person, the evidence nevertheless does not sufficiently support the inference that he intended she should strike the pose in a sexually explicit manner.
Only the two photographs depicting genitalia at close range arguably fall within the definition of sexually explicit visual material codified in Code § 18.2-374.1. None of the other 200 to 250 pictures shown by Foster to M.K. constituted sexually explicit material. Most, in fact, showed clothed or partially clothed children. Photographs depicting mere nudity do not constitute sexually explicit material. Freeman v. Commonwealth, 223 Va. 301, 311, 288 S.E.2d 461, 466 (1982). Foster never specifically requested M.K. to accompany him to a photographic session and never asked her to pose for him, nude or otherwise. The evidence does not negate the hypothesis that the intent to request her to pose came after the conversation and out of her presence. Most importantly, it does not negate the hypothesis that even if he did in the future request her to pose, he would ask her to pose only in a non-sexually explicit manner, as he had asked most of his other subjects. The evidence does not negate every reasonable hypothesis of innocence of the crime for which Foster was convicted. Accordingly, I would reverse the conviction on Count Eight.