State v. Tufts, 2016 NMSC 020

Defendant Robert Tufts (adult) recorded himself masturbating, saved the files to an SD memory card, inserted the card into a cell phone, and handed the phone to a 15-year-old girl (Child) saying there was a surprise on the phone.
Tufts was charged and convicted under NMSA 1978, § 30-37-3.3(A) for knowingly and intentionally communicating directly with a child under sixteen by "sending the child obscene images . . . by means of an electronic communication device."
The Court of Appeals reversed, holding that "send" requires transmission via a third-party carrier and that hand-delivery of a device with images did not constitute "sending."
The State petitioned for certiorari; the Supreme Court of New Mexico granted review to resolve the statutory interpretation question.
The Supreme Court addressed whether inserting an SD card into a phone and handing that phone to the child constitutes "sending . . . obscene images . . . by means of an electronic communication device" under § 30-37-3.3(A).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether handing a child a device containing obscene images satisfies the statute’s requirement to "send" images "by means of an electronic communication device"	State: "Send" includes causing an electronic image to go to a destination; direct delivery of a device containing images to the child qualifies.	Tufts: "Send" requires electronic transmission via a third-party carrier; hand-delivery of a device is not "sending."	The court held that "send" encompasses causing images to go to a destination whether via electronic transmission or by directly delivering a device containing the images; hand-delivery satisfied § 30-37-3.3(A).

Am. Civil Liberties Union v. Johnson, 194 F.3d 1149 (10th Cir. 1999) (invalidating an earlier New Mexico statute as overbroad under the First Amendment and interpreting reach of computer-communication restrictions)
State v. Muqqddin, 285 P.3d 622 (N.M. 2012) (review standard: de novo review of statutory interpretation in criminal context)
State v. Melton, 692 P.2d 45 (N.M. Ct. App. 1984) (use of ordinary meaning and dictionary to interpret statutory language)
State v. Ogden, 880 P.2d 845 (N.M. 1994) (statutory interpretation must serve the harm the statute seeks to prevent)
Griego v. Oliver, 316 P.3d 865 (N.M. 2014) (primary goal of statutory interpretation is to effect legislative intent)
State v. Cleve, 980 P.2d 23 (N.M. 1999) (consulting statutory purpose when construing criminal statutes)
State ex rel. Quintana v. Schnedar, 855 P.2d 562 (N.M. 1993) (presumption that legislature acted with knowledge of relevant law and precedent)