State v. Myers

• Decision Date: 19 February 2008
• Docket Number: No. 26,837.,26,837.
• Citation: 181 P.3d 702,2008 NMCA 047
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ronald MYERS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

181 P.3d 702

2008 NMCA 047

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

No. 26,837.

Court of Appeals of New Mexico.

February 19, 2008.

Certiorari Granted, No. 30,993, April 8, 2008.

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

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

OPINION

VIGIL, Judge.

{1} Defendant was convicted in a bench trial of seven counts of sexual exploitation of children in violation of NMSA 1978, Section 30-6A-3(D) (2001). Defendant appeals, asserting: (1) the photographs on which the prosecution was based do not satisfy the statutory elements of the offense; (2) the statute is unconstitutionally vague as applied to Defendant's conduct; and (3) Defendant's constitutional rights were violated because neither the grand jury nor any witness at trial correlated particular photographs to any particular counts in the indictment. We agree with Defendant that the photographs on which the prosecution was based do not depict a prohibited sexual act as required by the statute. We therefore reverse.

I. BACKGROUND

{2} In 2004, Defendant secretly set up a video camera in a unisex restroom adjacent to his office to record partially unclothed women in the restroom while they were using the restroom. He hid the video camera beneath a radiator, and positioned it so it would capture the pubic area of women before and after they used the restroom. He then drilled a hole in the wall between his office and the restroom and ran a cord from the camera to a TV/VCR recorder which was concealed in a closet in his office. Defendant's desk was in a position where he could observe when someone entered the restroom. Upon seeing a female enter the restroom, Defendant went to the closet, pressed record on the VCR, and filmed her while she used the restroom. The husband of Defendant's co-employee saw the camera while using the restroom, and an investigation followed, leading to the discovery of Defendant's activities. Videotapes of the unsuspecting females, and commercial pornographic videos and magazines were taken from Defendant's office. In a subsequent voluntary statement to the police, Defendant admitted to purchasing and installing the equipment to record females using the restroom for his sexual gratification.

{3} The videotapes depict five different females using the restroom on numerous occasions. Three of the women are adults, and two are minors. One of the minors was a sixteen-year-old high school intern who worked with Defendant during the summer of 2004, and the other minor was a seventeen-year-old daughter of Defendant's co-employee. The present statute which criminalizes voyeurism was not enacted until 2007, after Defendant's trial. See NMSA 1978, § 30-9-20 (2007) (prohibiting voyeurism, which is punishable as a misdemeanor, unless the victim is less than eighteen years of age in which case the offense is punishable as a fourth degree felony). Since there was no statute which otherwise prohibited Defendant's conduct, the State elected to prosecute Defendant for videotaping the minors under the Sexual Exploitation of Children Act. NMSA 1978, §§ 30-6A-1 to -4 (1984, as amended through 2007). The indictment charges Defendant with sexual exploitation of children in violation of Section 30-6A-3(D) in nine separate counts.

{4} The State did not present the videotapes of the victims to the grand jury. Instead, the State retrieved thirty-five photographs from the videotapes, placed the photographs on nine separate sheets, and presented the nine sheets to the grand jury. There was no correlation between individual photographs and the nine counts of the indictment charging Defendant with sexual exploitation of children. Defendant filed a motion to dismiss, asserting that on their face, the photographs do not satisfy the statutory elements of the offense charged. At the hearing, Defendant emphasized that the photographs did not depict a "prohibited sexual act" as required by the statute. The district court observed that some of the photographs did not appear to satisfy the statute as required by State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, "and that's where the problem occurs." The district court denied the motion to dismiss, but ordered the State to identify which pictures went with each count. The State filed a document entitled "Notice of Images Supporting Indictment." The "Notice" identifies specific photographs on twelve sheets with four photographs on each sheet as "the particular images which the State intends to proffer in support of the indictment." There is no order to the sheets, the photographs on the sheets, or how they correlate to the counts in the indictment. For example, the State discloses that Count I is contained on a photograph in the lower left corner of Sheet #1 and photographs in the upper right hand corner and lower right hand corner of Sheet #9.

{5} After the State filed the "Notice" Defendant filed a motion to dismiss, or in the alternative, to quash the indictment, arguing in part that the indictment should be dismissed because there was no indication that the grand jury connected particular photographs with particular counts in the indictment. Defendant also filed another motion to dismiss, asserting that there was no evidence that Counts IV, V, VII, VIII, and IX were supported by photographs that were submitted to the grand jury. The district court denied both motions.

{6} The State filed a nolle prosequi as to Count VII, and Defendant waived his right to a jury trial. Prior to opening statements, Defendant reminded the district court that "[w]e do not know which photos [the grand jury] used for each count. We have no idea whatsoever." At the beginning of the trial, the parties stipulated to admitting into evidence the twelve sheets of photographs that were previously used to identify which specific photographs related to each count of the indictment. The sheets were admitted into evidence as Exhibits 23-34. The parties further stipulated that the two victims were depicted in the photographs and that they were minors. While the videotapes from which the photographs were extracted were also admitted into evidence, the State relied exclusively on the photographs extracted from the videotapes in Exhibits 23-34 to prove its case, and the district court was not asked to, and it did not, consider the videotapes themselves in rendering its verdict. The district court relied exclusively on the photographs presented to it in Exhibits 23-34 to render its verdict.

{7} Before the State rested its case, the following exchange took place between the prosecutor and the court:

THE COURT: Is someone going to tie these photos into each particular count?

[COUNSEL]: I'm going to do that in closing, Judge. I think I can do that from what the girls are wearing as well as the counter. You can see that they're wearing different clothes, as well as the counters clearly depict different instances.

THE COURT: But closing isn't evidence.

[COUNSEL]: I'm sorry?

THE COURT: You have a problem with that. It has to be sworn testimony. What you say in closing is not evidence.

[COUNSEL]: But the pictures are evidence, Judge, and you can see the pictures. They depict—

THE COURT: Someone might have to tie them in to each count. I don't think you can do that in closing, but I'll let you try your case as you wish.

The State never made any attempt at trial to establish which photographs proved which counts. Defendant renewed his motion to dismiss on grounds that the photographs failed to satisfy the statutory elements of the offense, and for a directed verdict. Defense counsel further argued:

The other motion that I have to dismiss is based on the fact that we have no idea what exhibits go through what counts. We have heard from no witness that extracted those photos from the videos and how they were tied to any of the counts, whatsoever, which deprives me completely of arguing whether the photo actually coincides with the statutory criteria for sexual exploitation of children, so that I can . . . go down through each count and argue each photo whether it fits the statutory criteria or not.

The motions were denied. Defendant presented no evidence, and the parties waived closing arguments. The district court directed a verdict on Count IX, and found Defendant guilty of Counts I-VI with the high school intern as the victim and Count VIII with the co-employee's daughter as the victim.

II. DISCUSSION

{8} Defendant argues that reversible error was committed when his pretrial motion to dismiss on grounds that the photographs do not satisfy the statutory elements was denied, and the State argues that the real issue is whether the evidence at trial was sufficient to prove the crimes. The parties dispute whether the district court must hear and consider a pretrial motion to dismiss as part of its gatekeeping function when there is no assertion that the particular photographs at issue are constitutionally protected speech and the case is tried to the court without a jury. Without totally resolving this dispute, we reiterate our holding in Rendleman:

[O]n a pretrial motion to dismiss charges alleging the sexual exploitation of children, the district court may dismiss the charges where, on the undisputed face of the materials before the court, a jury could not find beyond a reasonable doubt that the material meets the elements of the offense as defined by the [Sexual Exploitation of Children] Act. Under these limited circumstances, no practical purpose would be served by a trial on the merits, and dismissal is therefore an appropriate and effective means of promoting judicial efficiency in light of the dispositive issue before the district court.

Rendleman, 2003-NMCA-150, ¶ 31, 134 N.M. 744, 82 P.3d 554 (internal quotation marks, citation, and alteration omitted)...