State v. Ebert

• Decision Date: 15 July 2011
• Docket Number: No. 28,898.,28,898.
• Citation: 2011 -NMCA- 098,263 P.3d 918,150 N.M. 576
• Parties: STATE of New Mexico, Plaintiff–Appellee,v.Dominic L. EBERT, Jr., Defendant–Appellant.
• Court: Court of Appeals of New Mexico

150 N.M. 576

263 P.3d 918

2011 -NMCA- 098

STATE of New Mexico, Plaintiff–Appellee,

v.Dominic L. EBERT, Jr., Defendant–Appellant.

No. 28,898.

Court of Appeals of New Mexico.

July 15, 2011.

Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.Albright Law & Consulting, Jennifer R. Albright, Albuquerque, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} After the district court denied his motion to dismiss, Defendant Dominic L. Ebert entered a conditional guilty plea to one count of child solicitation by computer, contrary to NMSA 1978, Section 30–37–3.2 (2005) (amended 2007). Defendant argued below and argues here that Section 30–37–3.2 is unconstitutionally vague and overbroad, and that it violates the Commerce Clause. We disagree and affirm.

I. FACTUAL BACKGROUND

{2} Our understanding of the facts in this case comes from Defendant's brief in support of his motion to dismiss, which sets forth the following facts. Agent Carrie McPherson, a member of the New Mexico State Police Online Predator Unit, initiated an e-mail conversation with Defendant. In this conversation, Agent McPherson pretended to be a twelve-year-old child named “Chrissy.” Defendant initially advised “Chrissy” that she should not talk to strangers. The exchanges continued, eventually leading to graphic sexual discussions via e-mail and instant messaging.

{3} Defendant explained what he believed to be the basis for the count to which he pleaded guilty. Defendant began sharing sexual fantasies with “Chrissy.” On March 29, 2007, Defendant asked “Chrissy” to touch her clitoris. The conversation progressed until Defendant asked “Chrissy” to touch herself while taking a bath and to make herself orgasm. Defendant characterized his behavior as “request[ing] that ‘Chrissy’ touch herself” and as “communicat[ing] a wish that an adult police officer, pretending to be a minor child, masturbate.”

II. DISCUSSION

{4} Defendant argues that the statute under which he was convicted is unconstitutional for three reasons: (1) because it criminalizes speech that is protected under the First Amendment, (2) because it is unconstitutionally vague, and (3) because it regulates speech and conduct across multiple states. Our standard of review is de novo. See ACLU of N.M. v. City of Albuquerque, 2006–NMCA–078, ¶ 10, 139 N.M. 761, 137 P.3d 1215.

A. First Amendment—Overbreadth

{5} Defendant argues that Section 30–37–3.2 violates the First Amendment because it criminalizes speech that is otherwise legal, “particularly because the law as written does not distinguish between lawful and unlawful conduct.” In response, the State points to numerous state and federal decisions that have upheld similar laws under a strict scrutiny analysis by relying on the idea that speech used to further the sexual exploitation of children is not constitutionally protected.

{6} “[A] statute is facially invalid if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Statutes enjoy a strong presumption of constitutionality, and the burden is on the challenger to prove a statute unconstitutional beyond a reasonable doubt. See State v. Laguna, 1999–NMCA–152, ¶ 24, 128 N.M. 345, 992 P.2d 896. Although a constitutional challenge is ordinarily limited to the facts of the case, a defendant may make an overbreadth challenge based on the First Amendment even if the statute is constitutional as applied to him. See State v. Luckie, 120 N.M. 274, 276, 901 P.2d 205, 207 (Ct.App.1995); see also New York v. Ferber, 458 U.S. 747, 767–69, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

1. Section 30–37–3.2 Is Not Facially Overbroad

{7} We begin our analysis with the issue of whether the speech prohibited by Section 30–37–3.2, soliciting children to engage in sexual conduct, is protected under the First Amendment. At the time Defendant was charged, Section 30–37–3.2(A) provided:

Child solicitation by computer consists of a person knowingly and intentionally soliciting a child under sixteen years of age, by means of computer, to engage in sexual intercourse, sexual contact or in a sexual or obscene performance, or to engage in any other sexual conduct when the perpetrator is at least three years older than the child.

The statute also provided that “child solicitation by computer is committed in this state if a computer transmission either originates or is received in this state.” Section 30–37–3.2(C).

{8} We assume without deciding that because Section 30–37–3.2 targets communications based on their sexual content, it is a content-based prohibition. See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (“As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content[-]based.”); People v. Foley, 94 N.Y.2d 668, 709 N.Y.S.2d 467, 731 N.E.2d 123, 131 (2000) (concluding that a similar statute was content-based because it targeted sexually explicit communication). Accordingly, it is subject to strict scrutiny and must be narrowly tailored to serve a compelling interest. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

{9} In Ferber, the United States Supreme Court examined a First Amendment challenge to a law prohibiting the promotion of any performance known to include sexual conduct by a child under the age of sixteen. 458 U.S. at 751, 102 S.Ct. 3348. The owner of a bookstore specializing in sexually oriented products was convicted under the contested statute for selling films depicting young boys masturbating. Id. at 751–52, 102 S.Ct. 3348. The question in Ferber was whether, in order to “prevent the abuse of children who are made to engage in sexual conduct for commercial purposes,” the statute could “prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene.” 458 U.S. at 753, 102 S.Ct. 3348 (emphasis added) (internal quotation marks omitted). The Court had previously held that obscene speech was not protected under the First Amendment. See id. at 754, 102 S.Ct. 3348 (citing Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)).

{10} Although the Court did not identify a specific level of scrutiny, it appeared to acknowledge that singling out child pornography was a content-based restriction. See id. at 763–64, 102 S.Ct. 3348. The Court observed that it was “evident beyond the need for elaboration that a [s]tate's interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ ” Id. at 756–57, 102 S.Ct. 3348 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)). Furthermore, it declared that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Id. at 757, 102 S.Ct. 3348. Balancing the effect of the law on the welfare of children against the de minimis value of the speech, the Court upheld the law. Id. at 762–64, 102 S.Ct. 3348.

{11} More recently, the Court emphasized that it is the protection of children—not a general condemnation of material containing child pornography—that is a state's compelling interest. In Ashcroft v. Free Speech Coalition, the Court struck down a federal statute prohibiting the possession or distribution of sexually explicit images that appeared to display minors regardless of whether they were produced using real children. 535 U.S. 234, 239, 256, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Providing examples such as Romeo and Juliet (where Juliet was only thirteen years old) and virtual porn (where pornographic images are generated by computer), the Court characterized the law as “prohibit[ing] speech that records no crime and creates no victims.” Id. at 247, 250, 122 S.Ct. 1389. It reiterated the holding of Ferber, observing that “ Ferber's judgment about child pornography was based upon how it was made, not on what it communicated.” Ashcroft, 535 U.S. at 250–51, 122 S.Ct. 1389.

{12} In light of the above, and as a matter of common wisdom, it is beyond question that the State has a compelling interest in protecting children from sexual predators and sexual exploitation. See, e.g., Ferber, 458 U.S. at 756–57, 102 S.Ct. 3348; People v. Hsu, 82 Cal.App.4th 976, 99 Cal.Rptr.2d 184, 190 (2000); Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 132; State v. Tarbay, 157 Ohio App.3d 261, 2004–Ohio–2721, 810 N.E.2d 979, at ¶¶ 9–10.

{13} Recognizing that compelling interest, the inquiry then turns to whether Section 30–37–3.2 is narrowly tailored to the interest it is intended to serve. We hold that it is. Tailoring is primarily accomplished through the “knowingly” scienter requirement, which ensures that communications are criminalized only when knowingly made to a child under the age of sixteen. See State v. Robins, 2002 WI 65, ¶ 40, 253 Wis.2d 298, 646 N.W.2d 287 (noting that prohibitions on sexual communications are overbroad when they do not require the speakers to know they are communicating to children); see also United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) (holding that a similar federal statute was not overbroad because it only applied to those who knowingly persuaded or enticed minors). Furthermore, the statute does not restrict adults from communicating about sex to children, nor does it restrict adults from soliciting sex from one another over the internet. In fact, the statute prohibits only that conduct necessary to achieve the State's interest. See, e.g., United States v. Meek, 366 F.3d 705, 721–22 (9th Cir.2004) (noting the significance, under a very similar federal statute, of the mens rea requirement).

{14} Because Section 30–37–3.2 is narrowly tailored to the compelling...