State v. Ebert
150 N.M. 576
N.M. Ct. App.2011Background
- Ebert pled guilty conditionally to child solicitation by computer under §30-37-3.2 after district court denied his motion to dismiss.
- The statute criminalizes soliciting a child under sixteen by computer to engage in sexual conduct, with the crime committed if the transmission originates or is received in New Mexico.
- Ebert challenges §30-37-3.2 as unconstitutionally vague and overbroad and as violating the Commerce Clause.
- The record shows an FBI/State Police decoy conversation with a 12-year-old; the defendant solicited masturbation from the decoy.
- The district court denied dismissal; the case proceeded to appellate review on constitutional challenges.
- The court affirms the district court’s judgment and conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §30-37-3.2 is facially overbroad. | Ebert argues the statute prohibits substantial protected speech. | Ebert contends the law sweeps too broadly and criminalizes lawful speech. | Not facially overbroad; narrowly tailored to protect children. |
| Whether §30-37-3.2 is procedurally/ substantively vague. | Ebert argues vagueness regarding unlawful communication and the conduct definition. | Ebert claims the lack of unlawful-communication focus makes the statute vague. | Not unconstitutionally vague; statute clearly applies to the facts. |
| Whether §30-37-3.2 complies with the Commerce Clause. | Ebert argues it burdens interstate commerce. | Ebert asserts impermissible interstate reach and burden. | No unconstitutional burden on interstate commerce; statute upheld. |
Key Cases Cited
- United States v. Williams, 553 U.S. 285 (U.S. 2008) (facial overbreadth framework; substantial protection of speech)
- Ferber v. New York, 458 U.S. 747 (U.S. 1982) (government interest in preventing child exploitation supports regulation of speech)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (U.S. 2002) (prohibitions on recordings resembling minors; focus on protection of children)
- State v. Laguna, 128 N.M. 345 (N.M. Ct. App. 1999) (First Amendment challenges in New Mexico; overbreadth presumptions and standards)
- State v. Pierce, 110 N.M. 76 (N.M. 1990) (unlawful element in CSCM and overbreadth considerations)
- State v. Osborne, 111 N.M. 654 (N.M. 1991) (unlawfulness may be element or defense; guidance on scope of unlawful)