2015 NMCA 075
N.M. Ct. App.2015Background
- Defendant (late 30s) recorded nude images and a video of himself and placed them on an SD (memory) card, then handed the SD card inside a cell phone to Child, who was 15. The parties had a nonphysical relationship and had exchanged phones and messages previously.
- Police learned Child had the images; Defendant voluntarily went to the station, admitted the conduct, consented to phone searches, and stated he had "looked it up" and believed his acts were illegal.
- Forensic exam showed the images resided on the SD card and were not transmitted over a phone network; "no one hit a send button."
- Defendant was indicted and convicted under NMSA 1978, § 30-37-3.3 (criminal sexual communication with a child by sending obscene images via an electronic communication device), a fourth-degree felony; he was sentenced but much of the term was suspended.
- On appeal, Defendant argued the statute does not cover in-person hand delivery of an SD card; the State argued "send" and "electronic communication device" should be read broadly to include storage devices and non-network transfers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 30-37-3.3(A) covers in-person delivery of an SD card containing obscene images to a child | Statute's language and broad definition of "electronic communication device" covers devices that produce electronically generated images, including storage media; sending need not occur over a network | "Send" requires an electronic transmission (not mere hand delivery of a storage device); hand delivery is covered by a separate misdemeanor statute | Reversed: statute does not reach hand delivery of an SD card; conviction under § 30-37-3.3 reversed |
Key Cases Cited
- State v. Office of the Public Defender ex rel. Muqqddin, 285 P.3d 622 (N.M. 2012) (principles for statutory construction and considering context and related statutes)
- State v. Davis, 74 P.3d 1064 (N.M. 2003) (statutes in pari materia should be construed together)
- State v. Melton, 692 P.2d 45 (N.M. Ct. App. 1984) (words in a statute receive their usual and ordinary meaning)
- Yates v. United States, 135 S. Ct. 1074 (2015) (statutory plainness judged in context of the statute as a whole)