State v. Rendleman, 22129, 22207, 22208.

Citation82 P.3d 554, 134 N.M. 744
Case DateOctober 27, 2003
CourtCourt of Appeals of New Mexico

82 P.3d 554
134 N.M. 744

STATE of New Mexico, Plaintiff-Appellee,
Mark RENDLEMAN and Tiffany Mia Barbosa, Defendants-Appellants. and
State of New Mexico, Plaintiff-Appellant,
Mark Rendleman and Tiffany Mia Barbosa, Defendants-Appellees. and
State of New Mexico, Plaintiff-Appellant,
Mark Rendleman, Defendant-Appellee

No. 22129, 22207, 22208.

Court of Appeals of New Mexico.

October 27, 2003.

Certiorari Denied December 12, 2003.

82 P.3d 558
Patricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General, Santa Fe, for Appellee in Docket No. 22,229 and for Appellant in Docket Nos. 22,207 & 22,208

Peter Schoenburg, John L. Sullivan, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Enfield, LLP, Dan Cron, Dan Cron Law Firm, P.C., Santa Fe, for Appellant Mark Rendleman in Docket No.22,129 and for Appellee Mark Rendleman in Docket Nos. 22,207 & 22,208.

Daniel R. Marlowe, The Marlow Law Firm, P.C., Santa Fe, for Appellant Tiffany Mia Barbosa in Docket No. 22,129 and for Appellee Tiffany Mia Barbosa in Docket No. 22,207.

Certiorari Denied, Nos. 28,382, 28,385, December 12, 2003.



{1} The opinion filed in this case on September 18, 2003, is hereby withdrawn and the following submitted therefor. The motion for rehearing is denied in part and granted in part.

{2} These consolidated cases present difficult procedural and substantive issues surrounding the enforcement of New Mexico's Sexual Exploitation of Children Act (the Act). NMSA 1978, §§ 30-6A-1 to -4 (1984, as amended through 2001). Indicted for multiple alleged violations of the Act based on photographs and video taken by them, Defendants filed a pretrial motion to dismiss arguing that the material is protected by the federal and state constitutional guarantees of free speech. The district court dismissed some counts, but refused to dismiss others. Defendants appeal the district court's refusal to dismiss the entire case, while the State cross appeals arguing none of the counts should have been dismissed. Affirming in part and reversing in part, we address (1) the proper role of the trial court when considering a pretrial motion to dismiss an indictment on free speech grounds, (2) the nature of the conduct prohibited by the Act and the elements of proof required by the Act, and (3) the federal and state constitutional limits on prosecutions under the Act. Lastly, we will conduct our own review of the photographs.

{3} We affirm the district court's rulings on the criminal sexual contact and child abuse counts.

82 P.3d 559

{4} Defendant Mark Rendleman is an artist and former art professor who resides in Embudo, New Mexico located in Rio Arriba County. Adjacent to his house, Rendleman has dug a labyrinth of tunnels and rooms into a hillside made of volcanic ash. Spanning over an acre of land, the "cave" contains carvings of human figures and designs that are sculpted into the walls, as well as freestanding works of sculpture and painting which Rendleman and several other artists have created. The cave has received public recognition in several articles and a film documentary.

{5} Rendleman's daughter, Defendant Tiffany Mia Barbosa, is a documentary and commercial film maker residing in Santa Fe with her husband. Barbosa was born to Rendleman and Elizabeth Stewart in 1975. Stewart is also the mother of two of the alleged victims in this case, a boy and a girl, who were born in 1985 and 1986 respectively. Barbosa is their half-sister. Rendleman had another daughter, with Leslie Drobbin in 1990, and she is the third alleged victim in this case.

{6} In three separate prosecutions by grand jury indictments in Santa Fe and Rio Arriba counties, Defendants Rendleman and Barbosa were charged with multiple counts of sexual exploitation of a child, criminal sexual contact of a minor, and child abuse. The charges were based on Defendants' conduct associated with photographing the three children in various states of undress.

{7} The boy and girl, who lived in California, first visited Rendleman at Embudo with their mother in 1995 when they were nine and eight years old. During this visit, Defendants took a series of photographs which are referred to as the "Cave Shoot Photos." According to the Defendants, the Cave Shoot Photos were taken in an effort to explore artistic themes of primitivism that Rendleman was interested in as an artist. These photos, approximately twenty-nine total, depict the boy and girl, with and without Rendleman, or individually, engaged in what has been described as "a stylized portrayal of primitive cave people." According to Rendleman, the Cave Shoot Photos reflect an effort to create images that have been incorporated into sculptures in the cave, including biomorphic thrones and totem poles, as well as visual repeating elements.

{8} A second group of materials, referred to as the "Family Photos," include various photos of the three children playing in the river, playing with a snake, and playing make believe games, as well as certain unidentified videos described, but not shown, to the Grand Jury. Most of the Family Photos were taken while the children were visiting Rendleman at Embudo between 1995 and 1999, although six (four of which are duplicates) were taken of his daughter at her mother's home in Santa Fe. The girls are essentially naked in the majority of these twenty or so photos, whereas the few shots of the boy depict him fully clothed.

{9} The Santa Fe grand jury indicted Rendleman, charging him with one count of sexual exploitation of his daughter, contrary to Section 30-6A-3(B) ("sexual exploitation") and one count of criminal sexual contact of a minor (the girl), contrary to NMSA 1978, § 30-9-13(A)(2)(a) (2001) ("CSC of a minor"). Rendleman was also charged in an indictment issued by the Rio Arriba grand jury with eighteen counts of sexual exploitation, eleven counts of CSC of a minor, contrary to Section 30-9-13(A)(1), and one count of abandonment or abuse of a child, contrary to NMSA 1978, § 30-6-1(B) (2001) ("child abuse"). The same grand jury also issued an indictment against Barbosa charging her with eight counts of sexual exploitation, eleven counts of CSC of a minor, and one count of child abuse.

{10} Defendants moved to dismiss all charges, arguing the State's prosecution was unconstitutional as applied to them. In particular, Defendants contended that prosecuting them for taking and possessing the photographs violated their rights to free speech under our state and federal constitutions. Defendants urged that their speech was protected under either an obscenity standard or child pornography standard. In their view, the photographs had artistic value and/or simply documented the children's daily activities and development for purely private family

82 P.3d 560
purposes and in a way that was not lewd or sexually explicit as proscribed by the Act. Section 30-6A-3. Defendants also argued that the charges should be dismissed because the Act failed to provide adequate notice that photographs taken for artistic purposes or private family purposes would constitute a crime. In a supplemental motion to dismiss, Defendants also asked that the criminal sexual contact of a minor charges be dismissed because any contact was incidental to free expression and, thus, constitutionally protected

{11} Defendants asserted that the district court had a gate-keeping responsibility to make a threshold determination whether the photos and video were constitutionally protected expressions. The State acknowledged that the district court did have a gate-keeping role to determine whether the conduct fell within the Act as a matter of constitutional law, but argued that the Act narrowly prohibited specific conduct and fell within the parameters of the United States Supreme Court's decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). In Ferber, the Supreme Court held that sexually explicit material involving children was not entitled to First Amendment protection and that laws criminalizing production and distribution of such materials could constitutionally include visual images which would not be "obscene" under the three-part test of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Ferber, 458 U.S. at 760-61, 102 S.Ct. 3348. In the State's view, there was no constitutional question presented here because the materials came within the outer limits of the Act, depicting the children in lewd and sexually explicit poses, frequently with exposed genitalia being the main focus. Thus, the State argued that the question of whether the conduct was criminal was simply a question of fact for the jury.

{12} The district court held a five-day evidentiary hearing on the motion to dismiss. The court took testimony from Defendants Rendleman and Barbosa, Leslie Drobbin, two expert witnesses in the arts, and a forensic psychologist. Rendleman testified about his personal history, education and training in psychology and the arts, as well as his professional experience as an artist, photographer, and former art professor.

{13} Rendleman testified that he was exposed to nudity in his family, at school, and in his artistic life and considered it an asexual or anti-sexual form of expression. His artistic interests included photo realism-the study of how photos affect perceptions. The Cave Shoot Photos were intended as studies for potential sculptures in his cave; they represented primitivism, including digging tools, thrones, and totem poles. These photos were taken with the children's mother's permission. The Family Photos were some of thousands of photos that Rendleman took, documenting the lives of his children. Rendleman and his daughter's mother testified that the photos were not taken for the purpose of sexual stimulation. Rendleman testified that the Family Photos were kept in their original commercial envelopes,...

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    • United States District Courts. 10th Circuit. District of New Mexico
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