State Of N.M. v. Myers

• Decision Date: 18 November 2009
• Docket Number: Jan. 12,No. 26,2010.,837.,No. 32,126,26,32
• Citation: 2010 NMCA 007,226 P.3d 673,147 N.M. 574
• Parties: STATE of New Mexico, Plaintiff-Appellee,v.Ronald MYERS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

147 N.M. 574

226 P.3d 673

2010 NMCA 007

STATE of New Mexico, Plaintiff-Appellee,v.Ronald MYERS, Defendant-Appellant.

No. 26,837.

Nov. 18, 2009.

Certiorari Granted, No. 32,126, Jan. 12, 2010.

Court of Appeals of New Mexico.

Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellant.

Caren I. Friedman, Edwards Law Firm, P.A., Marc W. Edwards, Santa Fe, NM, for Appellee.

OPINION

VIGIL, Judge.

{1} Defendant was convicted of seven counts of sexual exploitation of children by manufacturing child pornography, a second degree felony, in violation of NMSA 1978, Section 30-6A-3(D) (2001) (amended 2007), of the Sexual Exploitation of Children Act, NMSA 1978, Sections 30-6A-1 to -4 (1984, as amended through 2007). in state v. myers, 2008-NMCA-047, 143 N.M. 710, 181 P.3d 702 ( Myers I ), we concluded that the essential elements of the crime established by State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554 were not proven, and reversed. On certiorari, the Supreme Court overruled and modified Rendleman in part, with the result that the elements of the crime were changed, and reversed. State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105 ( Myers II ).

{2} The Supreme Court also remanded the case to us “to consider the parties' remaining claims, namely, [1] whether the Act is void for vagueness as applied to Defendant's conduct[,] and [2] whether the trial court properly entered a stay of execution that relieved Defendant of the obligation to register as a sex offender pending the outcome of this appeal.” Id. ¶ 47.

{3} We hold that, as applied to Defendant's conduct in this case, Section 30-6A-3(D) is void for vagueness and that the trial court properly exercised its discretion to relieve Defendant from registering as a sex offender pending the outcome of this appeal.

BACKGROUND

{4} Sometime between May and September 2004, Defendant set up a video camera in a unisex bathroom adjacent to his office for the purpose of recording females while they used the restroom. Myers II, 2009-NMSC-016, ¶ 2, 146 N.M. 128, 207 P.3d 1105. Defendant drilled a hole in the wall between the bathroom and his office and ran a cord from the camera to a TV/VCR he had hidden in his office closet. Myers I, 2008-NMCA-047, ¶ 2, 143 N.M. 710, 181 P.3d 702. When Defendant saw a female enter the restroom, he would record her on videotape as she used the toilet. Myers II, 2009-NMSC-016, ¶ 2, 146 N.M. 128, 207 P.3d 1105. In September 2004, the video camera was discovered and a criminal investigation ensued. Id. ¶ 3. Videotapes of five females using the restroom, along with commercial pornographic magazines and videotapes, were found in Defendant's office. Id. ¶¶ 3, 4. Defendant admitted in a voluntary statement to the police that his purpose in recording females was his personal sexual gratification. Id.

{5} Two of the females were minors at the time of recording. Id. ¶ 4. The State charged Defendant with nine counts of sexual exploitation of children by manufacturing child pornography in violation of Section 30-6A-3(D). Myers II, 2009-NMSC-016, ¶ 4, 146 N.M. 128, 207 P.3d 1105. The State used photographs it extracted from the videotapes to prove its case, rather than the videotapes themselves. Id. ¶¶ 4, 7. Defendant faced no charges for recording the adult women because no statute prohibiting voyeurism was in effect at the time. Our voyeurism statute was not enacted until 2007. See NMSA 1978, § 30-9-20 (2007).

{6} When Defendant was charged, we had already decided Rendleman in which we construed Section 30-6A-3(D) and established the essential elements of the offense. The Supreme Court denied certiorari in Rendleman. 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668. Accordingly, Defendant's bench trial and conviction for seven counts of sexual exploitation of children by manufacturing child pornography in violation of Section 30-6A-3(D) was based on the elements of the offense as determined by us in Rendleman. Myers I, 2008-NMCA-047, ¶ 8, 143 N.M. 710, 181 P.3d 702. (The State filed a nolle prosequi as to one count, and the district court directed a verdict on a second count. Id. ¶¶ 6, 7).

{7} To convict Defendant, the State was required to prove that Defendant manufactured “obscene” photographs which depict a “prohibited sexual act.” Section 30-6A-3(D) (prohibiting the manufacture of any “obscene” print medium depicting any “prohibited sexual act” by a child under eighteen years of age); § 30-6A-2(E) (defining “obscene”); § 30-6A-2(A)(5) (defining one type of a “prohibited sexual act”). To prove the photographs depict a “prohibited sexual act,” the State was required to prove that they portrayed a “lewd and sexually explicit exhibition with a focus on the genitals or pubic area of any person for the purpose of sexual stimulation.” Myers I, 2008-NMCA-047, ¶ 11, 143 N.M. 710, 181 P.3d 702; Myers II, 2009-NMSC-016, ¶ 19, 146 N.M. 128, 207 P.3d 1105 (quoting § 30-6A-2(A)(5)). Thus, proof of three essential elements was required: (1) a “lewd and sexually explicit exhibition”; (2) with a “focus on the genitals or pubic area of any person”; (3) “for the purpose of sexual stimulation.” Rendleman, 2003-NMCA-150, ¶ 42, 134 N.M. 744, 82 P.3d 554; Myers I, 2008-NMCA-047, ¶ 12, 143 N.M. 710, 181 P.3d 702; Myers II, 2009-NMSC-016, ¶ 19, 146 N.M. 128, 207 P.3d 1105.

{8} In Myers I, we reversed Defendant's convictions on the grounds that statutory elements of a “prohibited sexual act” as construed in Rendleman were not satisfied. Myers I, 2008-NMCA-047, ¶¶ 10-18, 143 N.M. 710, 181 P.3d 702. Clearly, at the time of Defendant's conduct and at his subsequent bench trial Rendleman was the applicable law. See State v. Allen, 82 N.M. 373, 374, 482 P.2d 237, 238 (1971) (“We have held that the law, at the time of the commission of the offense, is controlling.”). On certiorari, the Supreme Court reversed our decision, holding that Rendleman incorrectly construed certain statutory elements of the offense. Without attempting an exhaustive analysis of its reasoning or how Myers II modified and overruled Rendleman in its interpretation of these statutory elements, we point to the following examples.

{9} As to the first element Rendleman concluded that for a photograph to contain a “lewd and sexually explicit exhibition” the photograph must portray “a visible display or readily discernible depiction of a child engaged in sexually provocative conduct. In other words, the photograph must be identifiable as hard-core child pornography; that is, it must display visible signs of sexual eroticism, rather than merely depict a naked child.” Rendleman, 2003-NMCA-150, ¶ 44, 134 N.M. 744, 82 P.3d 554. We applied this requirement in Myers I, 2008-NMCA-047, ¶ 12, 143 N.M. 710, 181 P.3d 702. However, in Myers II, the Supreme Court changed this proof requirement. The Supreme Court held that the statute is not limited to “ hard-core child pornography” but includes all child pornography which the fact finder determines is obscene. 2009-NMSC-016, ¶¶ 18, 39, 146 N.M. 128, 207 P.3d 1105; see § 30-6A-2(E) (defining “obscene” material).

{10} As to the third element, the Supreme Court rejected and explicitly overruled the objective standard test we adopted in Rendleman for determining whether the photographs were manufactured “for the purpose of sexual stimulation.” 2003-NMCA-150, ¶ 42, 134 N.M. 744, 82 P.3d 554. Myers II states, “We therefore reject the objective standard [adopted by Myers I ] and adopt the subjective standard, which examines the criminal defendant's actual intent in distributing, possessing, or manufacturing the images, as the proper standard by which to assess whether the challenged material fulfills the ‘for the purpose of sexual stimulation’ element of Section 30-6A-2(A)(5).” Myers II, 2009-NMSC-016, ¶ 32, 146 N.M. 128, 207 P.3d 1105. “Accordingly, we hereby overrule Rendleman to the extent that it held that the ‘for purpose of sexual stimulation’ prong of Section 30-6A-2(A)(5) ... must be evaluated pursuant to an objective standard.” Myers II, 2009-NMSC-016, ¶ 32, 146 N.M. 128, 207 P.3d 1105.

{11} Two out of three elements of the crime having been changed between the time Defendant was tried and while Defendant's case was on appeal, we requested additional briefing from the parties on how the decision in Myers II affects Defendant's void for vagueness argument.

VOID FOR VAGUENESS AS APPLIED

{12} Defendant argues that Section 30-6A-3(D) is unconstitutionally vague as applied to his conduct. Although Defendant did not raise this issue in the trial court, we accept the parties' agreement that the issue is nevertheless properly before us. State v. Laguna, 1999-NMCA-152, ¶ 18, 128 N.M. 345, 992 P.2d 896 (holding that a void-for-vagueness challenge can be reviewed on appeal although not preserved in the trial court).

{13} Our review of Defendant's challenge to the statute is de novo. Id. ¶ 24. There is a strong presumption of constitutionality underlying each legislative enactment and the challenging party bears the burden of proving it is unconstitutional beyond all reasonable doubt. Id. We review the challenge “in light of the facts of the case and the conduct which is prohibited by the statute.” Id. (internal quotation marks and citation omitted). “Because the essence of a vagueness claim rests on a lack of notice, a party may not succeed on the claim if the statute clearly applies to the defendant's conduct.” State v. Duran, 1998-NMCA-153, ¶ 31, 126 N.M. 60, 966 P.2d 768.

{14} A statute can fail an applied void-for-vagueness challenge on either of two grounds. First, we ask “whether the statute allows individuals of ordinary intelligence a fair opportunity to determine whether their conduct is prohibited.” Laguna, 1999-NMCA-152, ¶ 25, 128 N.M. 345, 992 P.2d 896. The second test asks “whether the statute permits police officers, prosecutors, judges, or juries to engage in arbitrary and discriminatory enforcement of ...