State v. Myers, 30,993.

Citation2009 NMSC 016,207 P.3d 1105
Decision Date07 April 2009
Docket NumberNo. 30,993.,30,993.
PartiesSTATE of New Mexico, Plaintiff-Petitioner, v. Ronald MYERS, Defendant-Respondent.
CourtSupreme Court of New Mexico

Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Caren Ilene Friedman, Edwards Law Office, Marc Walker Edwards, Santa Fe, NM, for Respondent.

OPINION

MAES, Justice.

{1} Ronald Myers (Defendant) was convicted of seven counts of sexual exploitation of children, contrary to NMSA 1978, Section 30-6A-3(D) (2001), for covertly videotaping minor female victims using the bathroom. The Court of Appeals reversed Defendant's convictions, concluding that the images were neither "lewd" nor "sexually explicit," and were not manufactured "for the purpose of sexual stimulation" under State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554. State v. Myers, 2008-NMCA-047, ¶¶ 17-19, 143 N.M. 710, 181 P.3d 702. We reverse the judgment of the Court of Appeals and remand the case to that Court for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

{2} The trial court reasonably could have found the following facts. Sometime between May and September, 2004, Defendant an employee of the Department of Transportation, set up a hidden video camera in a unisex bathroom adjacent to his office. The camera was concealed beneath a radiator and positioned to capture the exposed pubic area of individuals before and after they had used the toilet. The video camera was connected to a television and videocassette recorder (TV/VCR), which was hidden behind a bookcase in Defendant's closet. Upon seeing a female enter the bathroom, Defendant would go to the closet, press record on the TV/VCR, and videotape the female as she used the toilet. Defendant would stop the videotape after the female had exited the bathroom.

{3} On September 15, 2004, the video camera was discovered and a criminal investigation ensued. The police searched Defendant's office and discovered the TV/VCR hidden in the closet, a receipt for the video camera, videotapes containing images of the unsuspecting female victims, and commercial pornographic videotapes and magazines. In a subsequent voluntary statement to the police, Defendant admitted that he had videotaped the female victims for the purpose of his own sexual gratification.

{4} The videotapes contained images of five different females using the bathroom on various occasions. Three of the females were adults and two were minors. One of the minors was a sixteen-year-old high school summer intern at the department, while the other was the seventeen year-old daughter of Defendant's co-worker. After viewing photographic images extracted from the videotapes, and listening to the testimony of the investigating officers, a grand jury indicted Defendant on nine counts of sexual exploitation of children contrary to Section 30-6A-3(D). Counts I, II, III, IV, V, VIII and IX pertained to the sixteen-year-old minor, whereas Counts VI and VII pertained to the seventeen-year-old minor.

{5} Prior to trial, Defendant moved to dismiss the indictment, claiming that the photographs do not depict a "prohibited sexual act" under NMSA 1978, Section 30-6A-2(A) (1984, as amended through 2001). The trial court held a hearing on Defendant's motion. At the hearing, Defendant argued that dismissal was appropriate because the images do not depict a "lewd and sexually explicit exhibition" as defined by Rendleman, 2003-NMCA-150, ¶ 44, 134 N.M. 744, 82 P.3d 554. The trial court denied Defendant's motion, concluding that "some of these photographs clearly fit the criteria set out in Rendleman. Some do not, and that's where the problem occurs." The trial court therefore ordered the State "to tie up which exhibits go with which count," noting that there were seventeen photographic exhibits, but that Defendant had been charged with only nine counts of sexual exploitation of children contrary to Section 30-6A-3(D). In response, the State filed a Notice of Images Supporting Indictment (Notice of Images), indicating "the particular images which the State intends to proffer in support of [each count of] the indictment." The State also filed a nolle prosequi with respect to Count VII of the indictment.

{6} Defendant filed a motion to dismiss or, in the alternative, a motion to quash the indictment. Defendant claimed in relevant part that

the grand jury aid failed to properly present and create a record of what image in an exhibit was found by the grand jury to be probable cause for the individual counts.... This lack of connecting images with counts ... prevents the defendant from connecting images and dates of incident with particular counts, thus prejudicing the defendant['s] ability to [defend] each count.

The trial court denied Defendant's motion, noting that, under Rendleman, Defendant's remedy "is not a Motion to Dismiss; [it is] a Bill of Particulars asking the State to indicate which exhibits go to which count."

{7} During Defendant's bench trial, the parties stipulated that the female victims depicted in the photographic exhibits were minors at the time the images were taken. Following the presentation of the State's case-in-chief, the trial court directed a verdict in favor of Defendant on Count IX of the indictment, concluding that the evidence was insufficient to establish the identity of the victim because "there is no depiction of a face." Defendant did not present any evidence in his defense, and both Defendant and the State waived closing arguments. Thereafter the trial court found Defendant guilty of the remaining charges and rendered judgment accordingly.

{8} The Court of Appeals reversed the judgment of the trial court and set aside Defendant's convictions. Myers, 2008-NMCA-047, ¶ 21, 143 N.M. 710, 181 P.3d 702. Preliminarily, the Court observed that, "[i]t is impossible ... to determine on this record which photographs were relied on to prove each count of the indictment" because the State had failed to adduce any facts linking the photographic exhibits to each of the counts charged. Id. ¶ 15. The Court observed that "[o]n this basis alone, reversal of Defendant's convictions is warranted." Id. Nonetheless, for the purpose of its analysis, the Court assumed that the "State's `Notice' describes the photographs which the State relied on to prove each count." Id.

{9} To determine whether the images were "lewd" and "sexually explicit" as defined by Section 30-6A-2(A)(5), the Court considered the factors enumerated in United States v. Dost, 636 F.Supp. 828 (S.D.Cal. 1986), which include whether

(1) the focus is on the genital or pubic area; (2) the setting is sexually suggestive; (3) the child is depicted in an unnatural pose, or in inappropriate attire, considering the child's age; (4) the child is fully or partially clothed; (5) the depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) the depiction is designed to elicit a sexual response in the viewer.

Myers, 2008-NMCA-047, ¶ 12, 143 N.M. 710, 181 P.3d 702 (quoting Rendleman, 2003-NMCA-150, ¶ 43, 134 N.M. 744, 82 P.3d 554). The Court noted that, pursuant to Rendleman, "the photograph must contain 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." Myers, 2008-NMCA-047, ¶ 12, 143 N.M. 710, 181 P.3d 702 (internal quotation marks and citation omitted). Applying the Dost factors and the standards delineated in Rendleman, the Myers Court concluded that

the photographs are not "lewd" and "sexually explicit" as described in Rendleman. The only Dost factor which the photographs satisfy is the first: the hidden camera was positioned in the restroom to photograph the pubic area of women using the restroom. However, there is nothing inherently sexually suggestive about a unisex restroom at the workplace; the pose and attire of the minors in the photographs is appropriate to their activity, i.e., using the restroom; the minors are partially unclothed; and the photographs do not depict the minors as suggesting coyness or a willingness to engage in sexual activity.

Id. ¶ 17.

{10} The Court further concluded that the photographs were not manufactured "for the purpose of sexual stimulation" as required by Section 3-6A-2(A)(5). Myers, 2008-NMCA-047, ¶ 18, 143 N.M. 710, 181 P.3d 702 (internal quotation marks and citation omitted) The Court noted that

Rendleman requires that we apply an objective standard, by ignoring the circumstances surrounding the taking of the photographs, and focusing on the photographs themselves. While Defendant admitted he filmed the women using the restroom for his sexual gratification, the circumstances of the photography, and the use of the photographs are considered [o]nly if the photo itself raises a question of illegal purpose (if a jury could find it pornographic)[.] A "reasonable person" (as opposed to a voyeur) would not conclude, from the overall content of the photographs themselves, that they were intended to elicit a sexual response. They depict minors who are partially unclothed before or after they used the restroom, and nothing more.

Id. Accordingly, the Court reversed the judgment of the district court and set aside Defendant's convictions. Id. ¶ 21.

{11} In light of its conclusion, the Court did not reach Defendant's remaining claims that the images were not "obscene" as defined by Section 30-6A-2(E), and that the Sexual Exploitation of Children Act (Act), NMSA 1978, §§ 30-6A-1 to -4 (1984, as amended through 2001), was void for vagueness as applied to Defendant's conduct. Myers, 2008-NMCA-047, ¶ 20, 143 N.M. 710, 181 P.3d 702. Likewise, the Court did not reach the State's claim, raised for the first time in its answer brief, that the trial...

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