State v. Higginbotham

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: WHIPPLE, J.A.D.
• Citation: State v. Higginbotham, 475 N.J.Super. 205, 291 A.3d 1164 (N.J. Super. App. Div. 2023)
• Docket Number: DOCKET NO. A-2548-21
• Decision Date: 24 March 2023
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Andrew HIGGINBOTHAM, Defendant-Appellant.

475 N.J.Super. 205

291 A.3d 1164

STATE of New Jersey, Plaintiff-Respondent,

v.Andrew HIGGINBOTHAM, Defendant-Appellant.

DOCKET NO. A-2548-21

Superior Court of New Jersey, Appellate Division.

Argued February 6, 2023

Decided March 24, 2023

Diane DePietropaolo Price, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Alison Gifford and Taylor L. Napolitano, Assistant Deputy Public Defenders, and Diane DePietropaolo Price, of counsel and on the briefs).

Jason Magid, Assistant Prosecutor, argued the cause for respondent (Grace C. MacAulay, Camden County Prosecutor, attorney; Jason Magid, of counsel and on the brief).

Mercedes N. Robertson, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Mercedes N. Robertson, of counsel and on the briefs).

Before Judges Whipple, Mawla and Marczyk.

The opinion of the court was delivered by

WHIPPLE, J.A.D.

With limited exceptions that do not apply to this case, the First and Fourteenth Amendments to the U.S. Constitution prohibit a State from passing any law that abridges free speech. U.S. Const. amends. I and XIV. This protection is not "confined to the expression of ideas that are conventional or shared by a majority." Stanley v. Georgia, 394 U.S. 557, 566, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (quoting Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 688-89, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959) ). A law that prohibits protected speech, no matter how abhorrent and distasteful society considers that speech, is overbroad and cannot stand. See State v. Carter, 247 N.J. 488, 518, 255 A.3d 1139 (2021).

Defendant Andrew Higginbotham appeals from the trial court's March 17, 2022 order denying his motion to dismiss an indictment, which charged him with fifteen counts of second-degree child endangerment, N.J.S.A. 2C:24-4(b)(4), (5)(a)(i), (5)(a)(ii) ; and one count of third-degree child endangerment, N.J.S.A. 2C:24-4(b)(5)(b)(iii). These provisions were enacted in 2018 as part of the child erotica amendment to the endangerment statute. L. 2017, c. 141 (the child erotica amendment). Finding that the statute is both unconstitutionally vague and overbroad, we reverse.

The Brooklawn police began investigating defendant because he had a journal with a school picture of a young girl on the cover. Written over the photo were disturbing sexually explicit statements. Defendant provided a statement to the police, wherein he admitted the notebook belonged to him. He said it was a journal, a way to express himself.

Though defendant initially denied knowing the identity of the child on the cover, he eventually told police she was his friend's daughter. Police identified her as B.R., born in 2008. Defendant spent time with B.R. when she was younger, but police found no evidence defendant ever sexually abused her. Defendant said his journal was for writing down the sexual fantasies he had about young girls.

After obtaining a warrant for the data from his Facebook accounts, the police discovered conversations defendant had with four different people on Facebook in which he sent several pictures and one video of B.R., each accompanied by sexually graphic narratives describing B.R. performing oral sex on him. Every photo of B.R. defendant sent was innocuous. She was always clothed. For instance, several times he sent a picture of her wearing a black and white striped shirt and a pink tutu. Other photos depicted B.R. in jeans and a t-shirt.

However, several of these photos had explicit text superimposed over them. He once sent the photo of B.R. in the pink tutu with a 264-word sexual fantasy superimposed over it. Text on the other photos describe "wanting to molest" her. He also sent a video compilation of several photos of B.R. in a bikini, pictured with other girls also wearing bikinis, with the words "masturbating my life away" superimposed over the photos.

Additionally, he twice sent a photo collage which included a photo of his aroused penis under his sweatpants, surrounded by several pictures of B.R. This collage had text superimposed over a picture of B.R., again describing her performing oral sex on him. A second collage, the top photo being his aroused penis under his sweatpants, had pictures of B.R. with text over them reading "girl lover" and "how many inches you think I could put in her little [lips emoji]." Defendant also sent another picture of underwear for young girls. He sent the picture of his sweatpants with superimposed text describing the excitement he gets when B.R. sits on his lap superimposed on it, but next sent a message saying "most [of] that actually [n]ever happened with her."

Defendant additionally sent explicit messages with text alone—not superimposed over photos—in conversation with others on Facebook. These, like text superimposed over the pictures, referred to oral sex with B.R., defendant's receiving pleasure from having her sit on his lap, and a statement about masturbating "on top of her with her little panties while she laid in her bed sleeping." Much of the explicit content, however, was superimposed over photos of B.R., as described above.

Though defendant initially denied sending pictures of B.R., he then clarified he had never sent "nudes." He downloaded the pictures from B.R.'s mother's Facebook page or took them himself and wrote the text superimposed on the pictures. Defendant denied ever masturbating near B.R., adding he put that in the captions to "increase shock value."

The State presented the case to the grand jury, who returned a superseding indictment charging defendant with the above-mentioned counts for portraying a child "in a sexually suggestive manner by otherwise depicting [her] for the purpose of sexual stimulation or gratification of any person who may view the depiction where [it] does not have serious literary, artistic, political or scientific value," contrary to N.J.S.A. 2C:24-4(b).

Defendant moved to dismiss the indictment. The trial court denied the motion and issued a written opinion after oral argument. The trial court reasoned, while the photos themselves do not "portray a child in a sexually suggestive manner" under N.J.S.A. 2C:24-4(b), "once ... defendant reconstructs the original photographs and video by inserting sexual content or commentary on the reproduced picture or video, he converts that picture or video into a new depiction.[ ]" These depictions, the court reasoned, "portray[ed] a child in a sexually suggestive manner" because they "clearly demonstrate[d] his intention to be sexual[ly] stimulat[ed] or gratified" and "[had] no serious literary, artistic, political, or scientific value." The court also noted defendant was not being prosecuted solely for his words, but for "[t]he defaced photographs and video" he created.

As to defendant's contention N.J.S.A. 2C:24-4(b) was vague and overbroad due to the phrase "portray in a sexually suggestive manner," the trial court rejected both of those arguments, determining "persons of common intelligence would not guess at the meaning of" the definition. Additionally, the statute provides officials with "guidelines to prevent arbitrary and erratic enforcement." The court added:

[T]he statute informs a citizen that when he or she defaces an otherwise non-sexually explicit image of a child by adding sexually explicit language for the purpose of your or other[']s sexual gratification, he or she has created a depiction that portrays a child in a "sexually suggestive manner." Such images are violative of the endangering statute because they "otherwise depict a child for the purpose of sexual stimulation or gratification." Simply, the statute is not unconstitutionally vague.

This appeal followed on leave granted. Defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN FINDING THAT THE CONDUCT ALLEGED CONSTITUTES THE CRIME OF ENDANGERING THE WELFARE OF A CHILD CONTRARY TO N.J.S.A. 2C:24-4.

POINT II

ALTERNATIVELY, THE TRIAL COURT ERRED IN HOLDING THAT THE DEFINITION OF "PORTRAY A CHILD IN A SEXUALLY SUGGESTIVE MANNER" WAS NOT UNCONSTITUTIONALLY VAGUE, AND IN NOT ADDRESSING UNCONSTITUTIONALITY DUE TO OVERBREADTH IN VIOLATION OF THE FIRST AMENDMENT.

I.

On appeal, defendant argues his conduct was not proscribed by the child erotica amendment because the photographs of B.R. were innocuous. Alternatively, defendant argues that—on its face¹ —the amendment is unconstitutionally vague, as it does not provide adequate notice of proscribed conduct, and overbroad, as it infringes on protected speech.

The State charged defendant with four types of crimes under the child erotica amendment of the endangerment statute: creation; distribution; possession with intent to distribute; and simple possession of the proscribed material.

Creation is prohibited by N.J.S.A. 2C:24-4(b)(4), which provides:

A person commits a crime of the second-degree if he photographs or films a child in a prohibited sexual act or in the simulation of such an act or for portrayal in a sexually suggestive manner or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act or for portrayal in a sexually suggestive manner.

The statute does not define "reproduced" or "reconstructed," but instructs that "reproduction" "means, but is not limited to, computer generated images." N.J.S.A. 2C:24-4(b)(1).

N.J.S.A. 2C:24-4(b)(5)(a)(i) prohibits "knowingly distribut[ing] an item depicting the sexual exploitation or abuse of a child[.]" N.J.S.A. 2C:24-4(b)(5)(a)(ii) prohibits "knowingly possess[ing] an item depicting the sexual exploitation or abuse of a child with the intent to distribute that item ...." And N.J.S.A. 2C:24-4(b)(5)(b)(iii) prohibits possession of less than 1,000 "items depicting the sexual exploitation or abuse of a child."

"[I]tem depicting the sexual exploitation or abuse of a child"...