State v. Julg
| Decision Date | 27 July 2021 |
| Docket Number | No. A-1-CA-39220,A-1-CA-39220 |
| Citation | 497 P.3d 678 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Nathaniel JULG, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM, for Appellee
Liane E. Kerr, LLC Liane E. Kerr Albuquerque, NM, for Appellant
{1} Nathaniel Julg (Defendant) appeals the district court's denial of his motion to dismiss the charges against him, following entry of the judgment and sentence upon his conditional guilty plea to two counts of child solicitation by electronic communication device, in violation of NMSA 1978, Section 30-37-3.2 (2007). Defendant argues that the district court erred in finding that notice required in NMSA 1978, Section 30-37-4 (1973) did not apply to prosecutions under Section 30-37-3.2, and as a result erred in denying his motion to dismiss. We affirm.
{2} In 2019 a deputy with the San Juan County Sheriff's Office posted an ad online purporting to be a fourteen-year-old girl asking, "How to spend my weekend while my mom works[?]" Defendant responded to the ad identifying himself as a thirty-five-year-old male and stated, "[W]e can hang out." The deputy replied that she was a fourteen-year-old girl to which Defendant responded "kinda young" and then "I don't mind." The deputy and Defendant exchanged nonsexual messages over the next few days. However on their fifth day of correspondence, Defendant began sending the deputy messages that were sexual in nature, including providing her instructions on how to masturbate, and stating, "Oh ... you are gonna get me in trouble or [I'm] getting myself into trouble." Defendant described how he liked to engage in oral sex with girls and asked if she would participate in those acts. The deputy responded that she would and they made arrangements to meet that day at a local park.
{3} Deputies made contact with Defendant when he arrived at the park and placed him under arrest. During Defendant's police interview, he admitted to talking with an underage girl, instructing the girl to commit a sex act, to meeting at the park with the intent to commit a sex act with an underage girl, and stated several times that he knew what he did was wrong and that he was stupid for doing it. A criminal complaint charged Defendant with two counts of child solicitation by electronic communication device.
{4} Prior to trial, Defendant filed a motion to dismiss pursuant to State v. Foulenfont , 1995-NMCA-028, ¶ 6, 119 N.M. 788, 895 P.2d 1329, in which he asserted that the "notice" requirement in Section 30-37-4 was an essential element of the offense of child solicitation by electronic communication device. In his motion Defendant asserted that the district attorney of San Juan County was required, but failed, to make a determination that the acts underlying Defendant's charges were harmful to minors and without such a determination, he could not have received actual or constructive notice as required under Section 30-37-4. The State responded that Section 30-37-4 does not apply to solicitation charges under Section 30-37-3.2, but even if notice was required Defendant had constructive notice because the statute is published on the state's website.
{5} After a hearing, the district court denied Defendant's motion, and in a written order found in part that "[t]he [n]otice [r]equirement in [ Section] 30-37-4 does not apply to [ Section] 30-37-3.2" and "Defendant had constructive notice of the criminality of his actions from the clear statutory language of [ Section] 30-37-3.2."
{6} Defendant subsequently entered conditional guilty pleas to both charges, reserving the right to appeal the denial of his motion to dismiss. The district court accepted the plea agreement and entered a judgment sentencing Defendant to a three-year commitment to the New Mexico Department of Corrections with a two-year period of parole.
{7} This appeal followed.
{8} " ‘[A] district court may dismiss a criminal information or indictment when guilt turns on a ‘purely legal issue’ and any relevant ‘factual predicate underlying the charges’ is undisputed by the state.’ " State v. Pacheco , 2017-NMCA-014, ¶ 2, 388 P.3d 307 (quoting Foulenfont , 1995-NMCA-028, ¶ 6, 119 N.M. 788, 895 P.2d 1329 ); see Rule 5-601(C) NMRA (). The "underlying question" the district court must answer in deciding a Foulenfont motion is "whether the undisputed facts—whether stipulated to by the [s]tate or alleged in the indictment or information—show that the [s]tate cannot prove the elements of the charged offense at trial[.]" Pacheco , 2017-NMCA-014, ¶ 10, 388 P.3d 307.
{9} Defendant argues that in order to convict him of child solicitation by electronic communication device, the State was required to comply with the "notice" requirement of Section 30-37-4 and that the district court erred in concluding that Section 30-37-4 did not apply to prosecutions brought under Section 30-37-3.2. Alternatively, Defendant argues that if this Court concludes that the notice requirement does not apply to Section 30-37-3.2, we should declare Section 30-37-3.21 void for vagueness or apply the rule of lenity. The State responds that the notice provision of Section 30-37-4 does not apply to Section 30-37-3.2.
{10} The parties’ arguments require that we construe Section 30-37-4 in conjunction with Section 30-37-3.2. This Court reviews issues of statutory interpretation de novo. State v. Tufts , 2016-NMSC-020, ¶ 3, ––– P.3d ––––. Our primary goal when interpreting statutory language is "to give effect to the Legislature's intent." State v. Almanzar , 2014-NMSC-001, ¶ 14, 316 P.3d 183 (internal quotation marks and citation omitted). In doing so, we first look to the plain language of the statute and give "the words their ordinary meaning, unless the Legislature indicates a different one was intended." Id. (internal quotation marks and citation omitted). "In addition to looking at the statute's plain language, we will consider its history and background and how the specific statute fits within the broader statutory scheme." Chatterjee v. King , 2012-NMSC-019, ¶ 12, 280 P.3d 283. When interpreting a statute that has been amended, "the amended language must be read within the context of the previously existing language, and the old and new language, taken as a whole, comprise the intent and purpose of the statute[.]" Vigil v. Thriftway Mktg. Corp. , 1994-NMCA-009, ¶ 15, 117 N.M. 176, 870 P.2d 138. We must also "read the statute in its entirety and construe each part in connection with every other part to produce a harmonious whole." Key v. Chrysler Motors Corp. , 1996-NMSC-038, ¶ 14, 121 N.M. 764, 918 P.2d 350.
{11} We begin our analysis with Section 30-37-4, which sets out the "notice" requirement Defendant contends applies to the crime of child solicitation by electronic device. Section 30-37-4 is included in the Sexually Oriented Material Harmful to Minors Act (the Act), NMSA 1978, §§ 30-37-1 to -10 (1973, as amended through 2007). Section 30-37-4 (A) of the Act provides in relevant part:
No prosecution based under this [A]ct shall be commenced unless the district attorney of the county in which the offense occurs shall have previously determined that the matter or performance is harmful to minors and the defendant shall have received actual or constructive notice of such determination. Persons shall be presumed to have constructive notice of such determination on the fifth business day following publication of a notice of such determination in a newspaper of general circulation in the county in which the prosecution takes place.
On its face, Section 30-37-4(A) prohibits prosecutions of crimes identified in the Act, without a prior determination that "the matter or performance" is harmful and actual or constructive notice thereof. As we discuss below, an examination of the statute as a whole reveals that "matters" or "performances" does not include child solicitation as Defendant contends.
{12} Section 30-37-4(A) requires a district attorney to determine whether a "matter or performance is harmful to minors" but does not designate which matters or performances are subject to such a determination, nor does it provide criteria for a determination of harm. We therefore look to other sections of the Act for insight into the Legislature's intent with regard to Section 30-37-4.
{13} We first turn to Section 30-37-8, which provides for the uniform application of the Act. Section 30-37-8 states in relevant part that "it is intended that the sole and only regulation of the sale, distribution or provision of any matter described in Section [30-37-2], or admission to, or exhibition of, any performance described in Section [30-37-3], shall be under this [A]ct[.]" (Emphases added.) The "matters or performances" referenced in Section 30-37-4 are set out in Sections 30-37-2 and 30-37-3. Additionally, we observe that a definition of the phrase "harmful to minors" appears in Section 30-37-1(F). Accordingly, we next turn to Sections 30-37-1, 30-37-2, and 30-37-3.
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