State v. TuftsState v. Tufts
- Reporters:
- ,
- Before:
- Sutin Judge., Michael D. Bustamante, M. Monica Zamora
Paula E. Ganz, Assistant Attorney General
Santa Fe, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
SUTIN, Judge.
{1} In this appeal, we must construe a statute proscribing the sending of forbidden “obscene images” to a child under sixteen years of age by means of an “electronic communication device.” See
BACKGROUND
{2} Child mеt Defendant in about October or November 2011. Defendant, in his late thirties, gave Child at least two cell phones over several months, and they texted or talked to each other daily on these cell phones. Later in their relationship, during which the two had not engaged in a physical relationship, nor had Defendant made any advances, Defendant removed the SD card from a cell phone, recorded himself nude and masturbating, and he placed the SD card back in the cell phone and hаnded the phone to Child. The SD card also contained photographs of an adult penis.
{3} The police were made aware that Child had received the images. After interviewing Child, the police called Defendant and asked him to come tо the police station. Defendant went to the station on his own, and the police interviewed him. Police testimony at trial indicated that, in the interview, Defendant admitted his actions and consented to a search of his and Child‘s cell phones. Defendаnt stated that he was in love with Child and that his behavior was out of character but he felt compelled to do as he did because God sent this relationship to him. Also in the interview, Defendant admitted to the interviewing officer that he knew “that it was wrong.” When asked by thе officer why he thought that, Defendant stated that he had “looked it up[,]” and he admitted that sending photos and the video was “against the law.”1
{4} The law enforcement officer, who conducted a forensic evaluation of the SD card
{5} Defendant was indicted on April 1, 2012, charged with one count of violаting
Criminal sexual communication with a child consists of a person knowingly and intentionally communicating directly with a specific child under sixteen years of age by sending the child obscene images of the person‘s intimate parts by means of an electronic communication device when the perpetrator is at least four years older than the child.
{6} The term “electronic communication device” is defined in
{7} At the close of the State‘s case, Defendant moved for a directed verdict on the ground that his conduct was not covered by the statute. The district court denied Defendant‘s motion, and Defendant was then convicted of violating
DISCUSSION
{8} Defendant contends on appeal that
statutory construction is a matter of law we review de novo. Our primary goal is to ascertain and give effect to the intent of the Legislature. In doing so, we examine the plain language of the statute as well as the context in which it was promulgated, including the history of the statute and the object and purpose the Legislature sought to accomplish. We must take care to avoid adoption of a construction that would render the statute‘s application absurd or unreasonable or lead to injustice or contradiction.
(Alteration, internal quotation marks, and citation omitted.)
{9} The law enforcement officer who conducted the interview of Defendant stated at trial that an SD card is a “base digital storagе device” and that “[y]ou can plug it into a computer using an adapter and store files on it just like you would on a thumb drive or an external hard drive.” Further, as to the meaning of the term “sending,” calling on the many and varied dictionary definitions of “send” and the context of the statute, the State argues on appeal that the statute‘s plain language is not limited to material sent by email or text over a network. And the State argues that the plain and broad reach of the statute‘s references to electronic communication devices is meant to “include several devices that are not, or are not necessarily, vehicles for transmitting images (such as images of intimate parts) over a network.” According to the State, by its open-ended “any оther device” language “[i]n the context of a statute addressing fast-developing technologies, it can be inferred that the [L]egislature contemplated that electronic communication devices would continue to evolve and be dеveloped[] and that the [L]egislature intended to broadly include all manner of electronic communication devices within the scope of [the statute].”
{11} Countering an argument by Defendant that emphasizes distance, the State argues that there is no significant difference between Defendant sitting next to Child and handing the SD card to her, and Defendant sitting next to Child and transmitting the material via his cell phone with the SD card in it to her cell phone. And discounting Defendant‘s argument that the social evil at hand is anonymous-distance transmission to escape detection, the State argues that nothing in the statute indicatеs any exception in that regard.
{12} The State‘s argument goes beyond the intended coverage of the statute. The SD card stores or houses images. It was hand delivered. What it contained was not communicated to Child by “sending” the images through an electrоnic communication device.
{13} The act of delivery by Defendant is pretty clearly covered under another statute.
It is unlawful for a person to knowingly sell, deliver, distribute, display for sale[,] or provide to a minor . . . any picture, photograph, drawing, sculpture, motion рicture film[,] or similar visual representation or image of a person or portion of the human body, or any replica, article[,] or device having the appearance of either male or female genitals which depicts nudity, sexual conduct, sexual excitement[,] or sado-masochistic abuse and which is harmful to minors[.]
A person violating
{14} In addition, the Legislаture‘s use of the term “provide” in
{15} The State‘s argument runs contrary to the principle of statutory construction that requires courts to attribute the usual and ordinary meaning to words used in a statute. State v. Melton, 1984-NMCA-115, ¶ 16, 102 N.M. 120, 692 P.2d 45. Thе Oxford Dictionaries defines “send” primarily as “[c]ause to go or be taken to a particular destination; arrange for the delivery of, especially by mail[,]” and secondarily, as “[c]ause (a message or computer file) to be transmitted electronically[.]” Oxford Dictionaries, http://www.oxforddictionaries.com/us/definition/american_english/send (last visited Mar. 6, 2015). The same dictionary defines “provide” primarily as “[m]ake available for use; supply[,]” and secondarily, as “[e]quip or supply someone with[.]” Id. http://www.oxforddictionaries.com/us/definition/american_english/provide
{16} In Muqqddin, our Supreme Court cautioned that “[w]ords are the beginning, not the end; they serve as portals into the thoughts behind the words of a criminal statute.” 2012-NMSC-029, ¶ 54. “Where . . . those thoughts are revealed in another, lesser statute, that becomes a fairly reliable indicator of legislative intent, both as to the specific crime and, more importantly, the gravity of the offense.” Id.; see also Yates v. United States, 574 U.S. ___, 135 S. Ct. 1074, 1081 (2015) (“[T]he plainness or ambiguity of statutory language is determined not only by reference to the language itself, but as well by the specific context in which that language is used[] and the broader context of the statute as a whole.“) (alterations, internal quotation marks, and citation omitted)). “Ordinarily, a word‘s usage accords with its dictionary definitiоn. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.” Id. at 1082.
{17} It is for the Legislature, not this Court, to broaden
It is for the Legislature, not the courts and not the district attorney, to strike the delicate balance between those grave crimes punishable as felonies and those lesser infractions punishable as only misdemeanors. That balance requires value judgments that should be made by the people‘s representatives, not judicial officers, under a constitutional system of separation of powers.
Muqqddin, 2012-NMSC-029, ¶ 52.
CONCLUSION
{18} We hold that Defendant was wrongly charged with violation of
{19} IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
M. MONICA ZAMORA, Judge