State v. Myers, No. 32,126.

Docket NºNo. 32,126.
Citation150 N.M. 1, 256 P.3d 13, 2011 -NMSC- 028
Case DateJune 17, 2011
CourtSupreme Court of New Mexico

150 N.M. 1
256 P.3d 13
2011 -NMSC- 028

STATE of New Mexico, Plaintiff–Petitioner,
v.
Ronald MYERS, Defendant–Respondent.

No. 32,126.

Supreme Court of New Mexico.

June 17, 2011.


[256 P.3d 14]

Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Petitioner.Caren Ilene Friedman, Edwards Law Firm, P.A., Marc Walker Edwards, Santa Fe, NM, for Respondent.

OPINION
BOSSON, Justice.

{1} In this, our second review of Defendant's convictions under the Sexual Exploitation of Children Act, we once again affirm the result of the trial below, and we also hold that trial judges have neither the power nor the discretion to stay the application of the Sex Offender Registration and Notification Act (SORNA) pending the outcome of an appeal. In affirming Defendant's convictions, we reverse a second opinion of the Court of Appeals. After our first opinion in this case issued, the Court of Appeals held on remand that retroactively applying our opinion to Defendant's conduct “violates due process because it constitutes an unforeseeable judicial enlargement of the [Sexual Exploitation of Children Act], which operates like an ex-post facto law.” State v. Myers (Myers III), 2010–NMCA–007, ¶ 23, 147 N.M. 574, 226 P.3d 673, cert. granted, 2010–NMCERT–001, 147 N.M. 674, 227 P.3d 1056. For the reasons that follow, we conclude that the Court of Appeals misapprehended both our opinion and the law relative to retroactive application of judicial decisions. Accordingly, we reverse and remand to the district court for further proceedings enforcing Defendant's convictions.

BACKGROUND

{2} Defendant was convicted of seven counts of the Sexual Exploitation of Children Act (the Act), NMSA 1978, §§ 30–6A–1 to –4 (1984, as amended through 2007), for covertly videotaping two female minors while they used the bathroom in a government office in 2004. State v. Myers (Myers II), 2009–NMSC–016, ¶¶ 1–4, 146 N.M. 128, 207 P.3d 1105. Defendant hid the video camera beneath a radiator and positioned it to capture the pubic area of the victims before and after they used the restroom. State v. Myers (Myers I), 2008–NMCA–047, ¶¶ 2, 16, 143 N.M. 710, 181 P.3d 702, rev'd, Myers II, 2009–NMSC–016, 146 N.M. 128, 207 P.3d 1105. Defendant was convicted under that

[256 P.3d 15]

portion of the Act which prohibits the intentional “ ‘manufactur[ing of] any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age.’ ” Myers I, 2008–NMCA–047, ¶ 9, 143 N.M. 710, 181 P.3d 702 (quoting § 30–6A–3(D)).

{3} Defendant appealed the convictions claiming that the images did not depict a “prohibited sexual act” and were not “obscene.” Myers II, 2009–NMSC–016, ¶¶ 24, 34, 146 N.M. 128, 207 P.3d 1105. Upon motion by Defendant, the district court ordered a stay of Defendant's required registration under SORNA, NMSA 1978, §§ 29–11A–1 to –10 (1995, as amended through 2007), pending the outcome of Defendant's appeal. Myers I, 2008–NMCA–047, ¶ 20, 143 N.M. 710, 181 P.3d 702; Myers III, 2010–NMCA–007, ¶ 28, 147 N.M. 574, 226 P.3d 673.

{4} The Court of Appeals reversed Defendant's convictions, relying on the only case, State v. Rendleman, 2003–NMCA–150, 134 N.M. 744, 82 P.3d 554, overruled in part by Myers II, 2009–NMSC–016, 146 N.M. 128, 207 P.3d 1105, that had previously applied the Act. Myers I, 2008–NMCA–047, ¶¶ 17–19, 143 N.M. 710, 181 P.3d 702. Of the five prohibited sexual acts defined in the Act, the one at issue was “a ‘lewd and sexually explicit exhibition with a focus on the genitals or pubic area of any person for the purpose of sexual stimulation.’ ” Id. ¶ 11 (citing § 30–6A–2(A) and defining the “prohibited sexual act” at issue). The Court of Appeals concluded that the videotaped images did not depict a “prohibited sexual act” because the images were neither “lewd and sexually explicit” nor manufactured “for the purpose of sexual stimulation” within the meaning of the Act. Id. ¶¶ 17–19.

{5} The State petitioned for certiorari, and this Court reversed. Myers II, 2009–NMSC–016, ¶¶ 12, 47, 146 N.M. 128, 207 P.3d 1105. In Myers II, we explained that the images did depict a “prohibited sexual act” under Section 30–6A–2(A)(5)(1) as “ ‘lewd and sexually explicit,’ ” Myers II, 2009–NMSC–016, ¶ 30, 146 N.M. 128, 207 P.3d 1105, (2) focused on “ ‘the genitals or pubic area,’ ” id., and (3) they were made “ ‘for the purpose of sexual stimulation,’ ” id. ¶ 27. We also held that the images were obscene within the meaning of the Act. Id. ¶ 40.

{6} We remanded Defendant's appeal for the Court of Appeals to consider two remaining issues raised by the parties in the initial appeal that the appellate court had not yet addressed: (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 [under SORNA] pending the outcome of this appeal.” Myers II, 2009–NMSC–016, ¶ 47, 146 N.M. 128, 207 P.3d 1105. Instead of addressing the constitutionality of applying the Act to Defendant's conduct—one of only two remaining issues—the Court of Appeals reframed that issue, asked for additional briefing from the parties on that reframed issue, and proceeded down a different course. See Myers III, 2010–NMCA–007, ¶¶ 11–25, 147 N.M. 574, 226 P.3d 673.

{7} The Court of Appeals held that our Myers II Opinion interpreting the Act had itself made the Act unconstitutionally vague as applied to Defendant. Id. ¶¶ 22–25. Through the eyes of the Court of Appeals, Myers II was an “unforeseeable judicial enlargement of the statute, which operates like an ex post facto law,” such that Defendant could not fairly have foreseen that his conduct would be “lewd” within the reach of the Act. Myers III, 2010–NMCA–007, ¶¶ 22–23, 147 N.M. 574, 226 P.3d 673. Notably, the Court of Appeals on remand adopted a position not endorsed by either party to the appeal and certainly not one requested by this Court's mandate. See id. Instead, the parties in their supplemental briefing to the Court of Appeals agreed that Myers II did not create a vagueness issue. Defendant responded that Myers II had no impact on his earlier void for vagueness claim.1 The

[256 P.3d 16]

State argued that Myers II had “foreclose[d] any claim of vagueness.” Subsequently, during oral argument before this Court, Defendant admitted he had previously argued that Myers II had no effect on his original void for vagueness claim, although he asks us now to uphold the ultimate conclusion in Myers III.

{8} The Court of Appeals did address the second of the two issues remaining on remand—whether the district court could lawfully issue a stay of the SORNA registration requirements pending appeal—which the Court of Appeals answered in the affirmative. Myers III, 2010–NMCA–007, ¶¶ 26–33, 147 N.M. 574, 226 P.3d 673. The State then petitioned for certiorari as to both rulings, asking us to reverse the Court of Appeals by upholding Defendant's convictions and clarifying that SORNA sexual offender registration cannot be stayed pending appeal. We do so in this Opinion.

ANALYSIS

{9} As explained, we review Defendant's convictions for a second time. Initially, we address the Court of Appeals conclusion that our Myers II Opinion made the Act unconstitutionally vague as applied to Defendant's conduct. We also perform the constitutional analysis of the Act's statutory language that we requested on remand. Finally, we consider whether any district judge has the authority to stay the SORNA requirements pending appeal. We review such “issues of statutory and constitutional interpretation de novo.” State v. Lucero, 2007–NMSC–041, ¶ 8, 142 N.M. 102, 163 P.3d 489.

The Court of Appeals Analysis of Myers II

{10} Concluding that our Myers II opinion was “unforeseeable,” the Court of Appeals held that we had rendered the Act unconstitutional as applied to Defendant. See Myers III, 2010–NMCA–007, ¶ 18, 147 N.M. 574, 226 P.3d 673. The Court did so primarily by relying on a U.S. Supreme Court opinion, Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), which we will address momentarily. See Myers III, 2010–NMCA–007, ¶ 15, 147 N.M. 574, 226 P.3d 673. To support its analysis, the Court of Appeals also cited two New Mexico cases, State v. Alderette, 111 N.M. 297, 804 P.2d 1116 (Ct.App.1990), and State v. Johnson, 2001–NMSC–001, 130 N.M. 6, 15 P.3d 1233, that previously had discussed or applied Bouie. See Myers III, 2010–NMCA–007, ¶¶ 16–18, 147 N.M. 574, 226 P.3d 673.

{11} In Alderette, our Court of Appeals correctly concluded, citing Bouie, that its construction of a criminal statute (escape from jail) to include a new class of inmates (those civilly committed to jail) could not be applied retroactively to the defendant (who escaped while civilly incarcerated for failure to pay child support) when the Court of Appeals had previously held the opposite: that the escape statute only applied to those in custody under criminal charges. Alderette, 111 N.M. at 298–300, 804 P.2d at 1117–19. The new and completely contrary construction of the escape statute could not be applied to the defendant's escape without raising due process concerns. Id. at 300, 804 P.2d at 1119.

{12} In Johnson, this Court in a footnote recognized Bouie as an extreme example of a “[c]ourt engag[ing] in an impermissible interpretation of a statute,” that was “so unexpected, [and] so outlandish, that no reasonable person could have expected it, thus one that creates a due process problem when applied to an unsuspecting accused. Johnson, 2001–NMSC–001, ¶ 14 n. 4, 130 N.M. 6, 15 P.3d 1233 (alteration in original) (emphasis added) (internal quotation marks and citation omitted). Correctly, Johnson concluded that the first-time construction of DWI laws in that case, so as to reach intoxication on...

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19 practice notes
  • City of Albuquerque v. Pangaea Cinema LLC, No. 30,380.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • July 20, 2012
    ...hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application[.]” State v. Myers, 2011–NMSC–028, ¶ 39, 150 N.M. 1, 256 P.3d 13 (emphasis, internal quotation marks, and citation omitted). We have acknowledged, though, that the duties of law enforcement will......
  • Tri-State Generation & Transmission Ass'n, Inc. v. D'Antonio, No. 32,704.
    • United States
    • New Mexico Supreme Court of New Mexico
    • November 1, 2012
    ...408 U.S. 104, 108–09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)), recognized by this Court in State v. Ronald Myers, 2011–NMSC–028, ¶¶ 37, 39, 150 N.M. 1, 256 P.3d 13.{53} In Bokum, this Court held that the New Mexico Water Quality Control Commission regulations defining “toxic pollutants” were ......
  • State v. Gutierrez, NOS. A-1-CA-36096
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 29, 2020
    ...court in New Mexico nor enlarges the range of conduct covered under the subsection. See State v. Myers , 2011-NMSC-028, ¶¶ 13, 16, 150 N.M. 1, 256 P.3d 13 (recognizing that a judicial construction is unforeseeable when it either "contradicts binding precedent on the same question, upon whic......
  • State v. Martinez, No. 103572
    • United States
    • United States Court of Appeals (Ohio)
    • August 25, 2016
    ...requirements imposed as part of Martinez's sentence during the pendency of his appeal to this court. Page 22Compare State v. Myers, 150 N.M. 1, 2011-NMSC-028, 256 P.3d 13, ¶ 41-45 (trial judge lacked authority to stay Sex Offender Registration and Notification Act ("SORNA") registration pen......
  • Request a trial to view additional results
19 cases
  • City of Albuquerque v. Pangaea Cinema LLC, No. 30,380.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • July 20, 2012
    ...hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application[.]” State v. Myers, 2011–NMSC–028, ¶ 39, 150 N.M. 1, 256 P.3d 13 (emphasis, internal quotation marks, and citation omitted). We have acknowledged, though, that the duties of law enforcement will......
  • Tri-State Generation & Transmission Ass'n, Inc. v. D'Antonio, No. 32,704.
    • United States
    • New Mexico Supreme Court of New Mexico
    • November 1, 2012
    ...408 U.S. 104, 108–09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)), recognized by this Court in State v. Ronald Myers, 2011–NMSC–028, ¶¶ 37, 39, 150 N.M. 1, 256 P.3d 13.{53} In Bokum, this Court held that the New Mexico Water Quality Control Commission regulations defining “toxic pollutants” were ......
  • State v. Gutierrez, NOS. A-1-CA-36096
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 29, 2020
    ...court in New Mexico nor enlarges the range of conduct covered under the subsection. See State v. Myers , 2011-NMSC-028, ¶¶ 13, 16, 150 N.M. 1, 256 P.3d 13 (recognizing that a judicial construction is unforeseeable when it either "contradicts binding precedent on the same question, upon whic......
  • State v. Martinez, No. 103572
    • United States
    • United States Court of Appeals (Ohio)
    • August 25, 2016
    ...requirements imposed as part of Martinez's sentence during the pendency of his appeal to this court. Page 22Compare State v. Myers, 150 N.M. 1, 2011-NMSC-028, 256 P.3d 13, ¶ 41-45 (trial judge lacked authority to stay Sex Offender Registration and Notification Act ("SORNA") registration pen......
  • Request a trial to view additional results

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