OPINION
{1} In this, our second review of Defendant’s convictions under the Sexual Exploitation of Children Act, we once again affirm the result of the trial below, and we also hold that trial judges have neither the power nor the discretion to stay the application of the Sex Offender Registration and Notification Act (SORNA) pending the outcome of an appeal. In affirming Defendant’s convictions, we reverse a second opinion of the Court of Appeals. After our first opinion in this case issued, the Court of Appeals held on remand that retroactively applying our opinion to Defendant’s conduct “violates due process because it constitutes an unforeseeable judicial enlargement of the [Sexual Exploitation of Children Act], which operates like an ex-post facto law.” State v. Myers (Myers III),
BACKGROUND
{2} Defendant was convicted of seven counts of the Sexual Exploitation of Children Act (the Act), NMSA 1978, §§ 30-6A-1 to -4 (1984, as amended through 2007), for covertly videotaping two female minors while they used the bathroom in a government office in 2004. State v. Myers (Myers II),
{3} Defendant appealed the convictions claiming that the images did not depict a “prohibited sexual act” and were not “obscene.” Myers II,
{4} The Court of Appeals reversed Defendant’s convictions, relying on the only case, State v. Rendleman,
{5} The State petitioned for certiorari, and this Court reversed. Myers II,
{6} We remanded Defendant’s appeal for the Court of Appeals to consider two remaining issues raised by the parties in the initial appeal that the appellate court had not yet addressed: (1) “whether the Act is void for vagueness as applied to Defendant’s conduct,” and (2) “whether the trial court properly entered a stay of execution that relieved Defendant of the obligation to register as a sex offender [under SORNA] pending the outcome of this appeal.” Myers II,
{7} The Court of Appeals held that our Myers II Opinion interpreting the Act had itself made the Act unconstitutionally vague as applied to Defendant. Id. ¶¶ 22-25. Through the eyes of the Court of Appeals, Myers II was an “unforeseeable judicial enlargement of the statute, which operates like an ex post facto law,” such that Defendant could not fairly have foreseen that his conduct would be “lewd” within the reach of the Act. Myers III,
{8} The Court of Appeals did address the second of the two issues remaining on remand — whether the district court could lawfully issue a stay of the SORNA registration requirements pending appeal — which the Court of Appeals answered in the affirmative. Myers III,
ANALYSIS
{9} As explained, we review Defendant’s convictions for a second time. Initially, we address the Court of Appeals conclusion that our Myers II Opinion made the Act unconstitutionally vague as applied to Defendant’s conduct. We also perform the constitutional analysis of the Act’s statutory language that we requested on remand. Finally, we consider whether any district judge has the authority to stay the SORNA requirements pending appeal. We review such “issues of statutory and constitutional interpretation de novo.” State v. Lucero,
The Court of Appeals Analysis of Myers II
{10} Concluding that our Myers II opinion was “unforeseeable,” the Court of Appeals held that we had rendered the Act unconstitutional as applied to Defendant. See Myers III,
{11} In Alderette, our Court of Appeals correctly concluded, citing Bouie, that its construction of a criminal statute (escape from jail) to include a new class of inmates (those civilly committed to jail) could not be applied retroactively to the defendant (who escaped while civilly incarcerated for failure to pay child support) when the Court of Appeals had previously held the opposite: that the escape statute only applied to those in custody under criminal charges. Alderette,
{12} In Johnson, this Court in a footnote recognized Bouie as an extreme example of a “[c]ourt engaging] in an impermissible interpretation of a statute,” that was “so unexpected, [and] so outlandish, that no reasonable person could have expected it,” thus one that creates a due process problem when applied to an unsuspecting accused. Johnson,
{13} Accordingly, the principle we glean from these two prior opinions is that it is fundamentally unfair to apply a criminal statute to the accused in a way that contradicts binding precedent on the same question, upon which the accused could have relied. Before examining our own opinion in Myers II in that same light, we turn to Bouie,
{14} Bouie arose when, in 1960, two African-American college students, protesting South Carolina’s oppressive Jim Crow segregation practices, entered a whites-only restaurant and awaited service. Id. at 348-49,
{15} Importantly, the South Carolina Supreme Court had previously applied the criminal trespass statute many times over the years, uniformly requiring notice to the trespassing party before entry, something that was conspicuously absent in the present case. See City of Columbia v. Bouie,
in the 95 years between the enactment of the statute in 1866 and the 1961 decision in the [first case to support a conviction for remaining on the premises upon receiving notice after entry], the South Carolina cases construing the statute uniformly emphasized the notice-before-entry requirement, and gave not the slightest indication that that requirement could be satisfied by proof of the different act of remaining on the land after being told to leave.
Bouie,
{16} South Carolina’s novel statutory interpretation resulted despite the “admirably narrow and precise” language of the statute, specifically stating the temporal relationship between elements of the crime — first warning, then illegal entry. Bouie,
[w]hen a statute on its face is narrow and precise ... it lulls the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction.
Id. at 352,
{17} How do these important due process principles of Bouie apply to our opinion in Myers II ? We are at a loss to say. Unlike Defendant in the present case, the students in Bouie fell clearly outside the scope of the criminal trespass statute according to its own “narrow and precise” language, as confirmed by nearly a century of case law. Bouie,
{18} Unlike the simple task of determining whether a warning occurred before entry or after entry, lewdness is considered on a case-by-case basis, given an evaluation of many factors; it is not “narrow and precise” in its meaning. See United States v. Dost,
{19} Notably, our Court of Appeals in Rendleman acknowledged that it could be “difficult ... to articulate” the meaning of certain elements of the Act.
{20} In short, a determination of “lewdness” is vastly different from an evaluation of whether conduct falls into a category described by “narrow and precise” language, as was the situation in Bouie. Equally important, this Court had never previously applied “lewd” in a manner opposite to our application in Myers II, such that Defendant might have believed his conduct was not lewd. Any parallel between the persecuted students in Bouie and the actions of Defendant in this case is simply unpersuasive. 2
{21} Despite these obvious differences, our Court of Appeals asserted “only one reason why Myers II is an unforeseeable interpretation” of the Act: namely, that our Myers II opinion was based upon the “‘voyeuristic quality’ ” of the offensive images at a time when voyeurism was not a crime in New Mexico. Myers III,
{22} We take these points one at a time. Obviously, we did not hold that Defendant was guilty of the non-existent crime of voyeurism. Similarly, the Sven reasoning that we found persuasive in Myers II was not hinged upon ideas that had only developed since Defendant’s exploitive conduct. Thus, the dates of the enactment of the New Mexico voyeurism statute and the writing of the Sven opinion, relative to over' Myers II opinion, have no bearing on the constitutionality of the Act as applied to Defendant’s conduct.
{23} Voyeurism is and has been an activity defined by observing naked bodies from a covert perspective for sexual gratification. Images that convey a voyeuristic perspective therefore, by definition, fulfill several of the Dost factors that our courts use to ascertain when an image can fairly be described as “lewd” within the meaning of the Act. Compare The American Heritage Dictionary 1930 (4th ed. 2000) (A voyeur is “a person who derives sexual gratification from observing the naked bodies or sexual acts of others, especially from a secret vantage point.”), with Myers I,
{24} Thus, it was hardly novel, much less unforeseeable, that we would arrive at our conclusion in Myers II that “lewdness” could be assessed through the prism of an image’s voyeuristic character. As an idea, voyeurism has been around for a long time; this Court did little more than recognize its defining characteristics. It is true that, before Defendant took his offensive images, this Court had never had the opportunity to address whether images conveying a voyeuristic perspective were lewd. But the mere absence of judicial authority on a point of law is hardly the test for a Bouie-type, “unexpected and indefensible” interpretation of a criminal statute. More to the point, neither this Court nor the Court of Appeals had ever rejected the characteristics of voyeurism as a possible aspect of lewdness; the subject simply never came up in Rendleman. As this Court had never created precedent upon which Defendant could rely, and the language of the Act clearly circumscribes certain images due to qualities that are shared with voyeuristic images, Defendant has no legitimate complaint against applying our ruling in Myers II to his conduct.
{25} Similarly, applying our few modifications of Rendleman in the Myers II opinion to Defendant does not provide any claim of unfairness or unforeseeability. Rendleman — an exemplary opinion in many ways and the seminal opinion in this area of the law — is nonetheless not an opinion of this Court, and before Myers II, this Court had never interpreted the Act one way or the other. Our denial of certiorari in Rendleman did not indicate any affirmation or adoption of law. See Rule 12-405 NMRA (specifying that only formal opinions involve “new points of law, making the decision of value as a precedent”); State v. Breit,
{26} Rendleman placed photographs into two categories: those that a reasonable jury could find portrayed a “prohibited sexual act” under the Act, and those that a jury could not.
{27} Defendant’s images, in contrast, focused relentlessly on exposed pubic areas of minor girls; Defendant made no argument of any innocent or artistic theme. To the contrary, Defendant conceded that the images were made for his own sexual gratification, something conspicuously absent from Rendleman, and he stored them among similar commercial materials, Myers II,
{28} The portions of Rendleman that might apply to Defendant suggest that his images were lewd. In Rendleman, an “unusual focus on the girls’ genitalia” weighed in favor of sending the photographs to the jury.
Clarifying Rendleman and Myers II
{29} We acknowledge that our opinion in Myers II did alter Rendleman in two respects.
3
First, the Court of Appeals had limited the scope of “lewd and sexually explicit exhibition” to “hard-core child pornography; that is, it must display visible signs of sexual eroticism, rather than merely depict a naked child.” Rendleman,
{30} We clarified that, in the context of adult pornography, the idea of “hard-core pornography” assists in describing images that are obscene (and thus unprotected by the First Amendment, as recognized in federal jurisprudence), but when the objects of the pornography are children, no such hardcore pornography consideration should be read into the Act. Myers II,
{31} Second, we altered the Rendleman analysis in terms of the third element in the Section 30-6A-2(A)(5) definition of a “sexually prohibited act”: whether images are made “for the purpose of sexual stimulation.” Rendleman had concluded that images must pass an objective test; they must objectively appear to be intended to sexually stimulate others. See
{32} Rendleman was concerned that the maker’s own perspective should not alone render otherwise innocent images pornographic. See
{33} Thereafter, we look to the maker’s intent to see what he or she had in mind in manufacturing images that already meet the objective criteria of “lewd.” In Rendleman, however, the Court of Appeals chose to look to “the purpose of sexual stimulation,” yet again from an objective perspective, in effect creating a redundancy which we corrected in Myers II. Compare Rendleman,
{34} Whereas previously in Rendleman, the prosecution only had to meet an objective standard, now, after Myers II, the state must apply both: an objective standard for lewdness and a subjective standard for the statutory element of “for the purpose of sexual stimulation.” In line with the Court of Appeals’ caution in Rendleman, no accused can be convicted under the Act merely for his own misguided subjective intent; the images must first satisfy the objective criteria for lewdness, such as the Dost factors. Whereas, before Myers II the state had only one purpose or intent hurdle, now it has two— hardly a due process imposition on Defendant in this case.
{35} Even Rendleman appears to recognize the need for a subjective intent analysis of the accused — a fact we appreciate, perhaps belatedly. It seems that Rendleman always considered the subjective intent of the accused as a factor in its analysis. Rendleman directed that “[a]t trial, the subjective motive of the photographer, the circumstances of the photography, and the use of the photo become relevant on the issue of intent.”
{36} For the all the reasons previously discussed, we find no due process violation by virtue of applying Myers II to Defendant.
Defendant’s Unaddressed Due Process Arguments
{37} In his original briefing to the Court of Appeals, before that Court issued Myers I, Defendant made three arguments that the Act was unconstitutionally vague as applied: (1) a person of ordinary intelligence would not have had notice that his conduct — characterized as simply “voyeurism” — was prohibited, (2) the Act was arbitrarily enforced, and (3) district court unconstitutionally expanded the meaning of the “narrow and precise statutory language” when it applied the Act to Defendant. These are the arguments that we expected would be addressed in Myers III when we remanded this case to the Court of Appeals. We address them now and find none meritorious.
{38} First, while Defendant argued he was not on notice that “voyeurism,” characterized by “watching girls use the restroom” and “even surreptitiously videotaping them for his own use,” would be criminal behavior under the Act, it was not Defendant’s voyeurism, that caused his criminal liability. Simply watching the girls without recording videos (and thus without manufacturing) would not have been criminal under the Act. Similarly, if Defendant had recorded non-lewd images of girls using the restroom, for his own or even others’ sexual stimulation, he would not have incurred criminal liability under the Act. It was the combination of the specifically captured content of the images — their focus on the minors’ genitals, the upward angle, the peephole-like framing, the grainy quality, and the objectively ascertainable purpose, making them lewd as discussed at length earlier in this Opinion and in Myers II — and Defendant’s subjective sexual purpose for the images that made their covert manufacture by Defendant into a criminal act.
{39} Next, while it is true that the State arrested Defendant for his videotapes of minors, but not for those videos he took of adult women, that distinction cannot be described as “arbitrary enforcement.” Rather than “ ‘impermissibly delegating] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application,’ ” Old Abe Co. v. N.M. Mining Comm’n,
{40} Finally, the district court did not unforeseeably expand the scope of the Act’s “narrow and precise statutory language.” Because we ultimately upheld the district court’s holding in Myers II, and because Myers II did not unforeseeably expand the scope of the Act, this argument is also without merit.
Judicial Stay of SORNA
{41} The Court of Appeals concluded that district judges have the authority to stay SORNA registration pending appeal of a conviction. Myers III,
{42} A district judge does not have discretion to stay SORNA registration. SORNA registration is not a sentence, nor is it a condition of release. Rather, “registration and notification provisions under SOR-NA are immediate and automatic, [but] they do not constitute punishment for a crime.” State v. Moore,
{43} In Moore, the Court of Appeals was “persuaded by the rationale of the majority of jurisdictions, which hold sex offender registration law consequences to be collateral consequences of a plea.”
{44} While SORNA mandates a sex offender to register, the court plays no role in imposing that mandate. See § 29-llA-4(B); see also Brothers,
{45} Just as the district court does not “impose SORNA provisions or have discretion to modify them,” the court does not have the power to stay a defendant’s required compliance. Although counsel was required to advise Defendant regarding the collateral SORNA consequences of a potential plea, see State v. Edwards,
CONCLUSION
{46} We reverse Myers III and remand this case in its entirety to the district court for further proceedings consistent with this Opinion.
{47} IT IS SO ORDERED.
Notes
. Defendant argued in his original, Myers I, brief to the Court of Appeals that the district court had erred in "performing its gatekeeping function, and its concomitant error in failing to dismiss the [i]ndictment ... constituted] ... an unforeseeable and retroactive expansion of the Act’s narrow and precise language.’’
. The Court of Appeals also relies on a quote from 1 Wayne R. LaFave, Substantive Criminal Law § 2:14(c) (2d. ed. 2003), discussing the risks of retroactive application of judicial decisions, Myers II,
Actually, the proposition cannot be applied that broadly, as all case-law, including that interpreting criminal statutes, operates retroactively, and such retroactivity is an essential part of our legal system. It is fair to conclude that: (1) the prohibition of retroactive judicial decisions is not as extensive as the prohibition of ex-post facto statutes; and (2) the law regarding the former is not as clearly developed as that concerning the ex-post facto clause.
LaFave also notes that " ‘the promise of Bouie has been largely illusory,’ as 'courts have construed the foreseeability requirement generously,’ ” and are inclined to "reverse on Bouie grounds only when the judicial change seems entirely arbitrary.” Id. (quoting Harold J. Krent, Should Bouie Be Buoyed?: Judicial Retroactive Lawmaking and the Ex Post Facto Clause, 3 Roger Williams U.L.Rev. 35, 39 (1997)).
. The Court of Appeals describes our minor differences with Rendleman as changing the elements of the crime, Myers II,