{ "id": 4362130, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ROBERT GEORGE TUFTS, Defendant-Appellant", "name_abbreviation": "State v. Tufts", "decision_date": "2015-06-19", "docket_number": "No. 35,255; Docket No. 33,419", "first_page": "286", "last_page": "290", "citations": [ { "type": "official", "cite": "2015-NMCA-075" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "135 S. Ct. 1074", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12586973 ], "weight": 2, "year": 2015, "pin_cites": [ { "page": "1081" }, { "page": "1082" } ], "opinion_index": 0, "case_paths": [ "/s-ct/135/1074-01" ] }, { "cite": "102 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580132 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/102/0120-01" ] }, { "cite": "1984-NMCA-115", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0 }, { "cite": "2003-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77128 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0172-01" ] }, { "cite": "285 P.3d 622", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188995 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 54" }, { "page": "\u00b6 52" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0433-01" ] } ], "analysis": { "cardinality": 786, "char_count": 13801, "ocr_confidence": 0.745, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.366070377076038 }, "sha256": "02da4169d9976d90e09c8e7ac7d396f8377e5786176539c5a676887820c956be", "simhash": "1:fa74bf8c59c59e04", "word_count": 2215 }, "last_updated": "2023-07-14T20:13:54.428467+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JONATHAN B. SUTIN, Judge", "WE CONCUR:", "MICHAEL D. BUSTAMANTE, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ROBERT GEORGE TUFTS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} In this appeal, we must construe a statute proscribing the sending of forbidden \u201cobscene images\u201d to a child under sixteen years of age by means of an \u201celectronic communication device.\u201d See NMSA 1978, \u00a7 30-37-3.3 (2007). Defendant Robert George Tufts was convicted under the statute based on his having hand-delivered such images contained on an SD (secure digital) or memory card to a fifteen-year-old. We hold that the statute was not intended to cover Defendant\u2019s act.\nBACKGROUND\n{2} Child met 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 handed the phone to Child. The SD card also contained photographs of an adult penis.\n{3} The police were made aware that Child had received the images. After interviewing Child, the police called Defendant and asked him to come to 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\u2019s cell phones. Defendant 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, D efendant admitted to the interviewing officer that he knew \u201cthat it was wrong.\u201d When asked by the officer why he thought that, Defendant stated that he had \u201clooked it up[,]\u201d and he admitted that sending photos and the video was \u201cagainst the law.\u201d\n{4} The law enforcement officer, who conducted a forensic evaluation of the SD card and of the at-issue cell phones, one that belonged to Child and the other that belonged to Defendant, testified that his findings were consistent with Defendant\u2019s admission that Defendant had transferred the images onto an SD card and then placed it in the phone that he gave to Child. The officer further testified that the at-issue images were not transferred through the cell phone network and confirmed that \u201cno one hit a send button\u201d to transmit the images electronically.\n{5} Defendant was indicted on April 1, 2012, charged with one count of violating Section 30-37-3.3, a fourth degree felony, which reads, in part, as follows:\nCriminal 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 ofthe person\u2019s intimate parts by means of an electronic communication device when the perpetrator is at least four years older than the child.\n{6} The term \u201celectronic communication device\u201d is defined in Section 30-37-3.3(C)(1) as: \u201ca computer, video recorder, digital camera, fax machine, telephone, pager[,] or any other device that can produce an electronically generated image[.]\u201d\n{7} Atthe close ofthe State\u2019s case,Defendant moved for a directed verdict on the ground that his conduct was not covered by the statute. The district court denied Defendant\u2019s motion, and Defendant was then convicted of violating Section 30-37-3.3, followed by a judgment and sentence of the district court. D efendant was sentenced to a term of eighteen months followed by one year parole. The court required Defendant to serve 146 days of his sentence in the custody of the Do\u00f1a Ana County Detention Center as time served, but Defendant received pre-sentence confinement credit for those days; and the court suspended the remainder of the sentence (one year, thirty-six days) to be followed by probation.\nDISCUSSION\n{8} Defendant contends on appeal that Section 30-37-3.3(A) does not cover his conduct, because he was not \u201ccommunicating\u201d with Child \u201cby sending\u201d the images \u201cby means of an electronic communication device.\u201d This case requires us to construe Section 30-37-3.3. As stated in State v. Office of the Public Defender ex rel. Muqqddin, 2012-NMSC-029, \u00b6 13, 285 P.3d 622,\nstatutory 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\u2019s application absurd or unreasonable or lead to injustice or contradiction.\n(Alteration, internal quotation marks, and citation omitted.)\n{9} The law enforcement officer who conducted the interview ofDefendant stated at trial that an SD card is a \u201cbase digital storage device\u201d and that \u201c[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.\u201d Further, as to the meaning of the term \u201csending,\u201d calling on the many and varied dictionary definitions of \u201csend\u201d and the context of the statute, the State argues on appeal that the statute\u2019s 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\u2019s references to electronic communication devices is meant to \u201cinclude several devices that are not, or are not necessarily, vehicles for transmitting images (such as images of intimate parts) over a network.\u201d According to the State, by its open-ended \u201cany other device\u201d language \u201c[i]n the context of a statute addressing fast-developing technologies, it can be inferred that the [Ljegislature contemplated that electronic communication devices would continue to evolve and be developedf] and that the [Ljegislature intended to broadly include all manner of electronic communication devices within the scope of [the statute].\u201d\n{10} From this reasoning, the State concludes and argues that the statute was intended to cover SD cards used to facilitate sending or transmitting an image even when the image is not sent over the network and that \u201c[t]he fact that an image was in a storage device at some point in the chain between its creation and its receipt by [Child] does not negate the fact [that] it was sent to [Child] in violation of [Section] 30-37-3.3.\u201d\n{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\u2019s argument that the social evil at hand is anonymous-distance transmission to escape detection, the State argues that nothing in the statute indicates any exception in that regard.\n{12} The State\u2019s 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 \u201csending\u201d the images through an electronic communication device. Section 37-30-3.3(A) is specific and plain enough in its language. The sender must communicate with the minor, and the communication must be made by sending the image by means of an electronic communication device, here a cell phone, used to electronically communicate the image by sending it. Nothing in the context of Section 37-30-3.3(A) and (C)(1) says that hand delivery of an image stored on an SD card which, in turn, is placed in an electronic communication device, is intended to be prohibited.\n{13} The act of delivery by Defendant is pretty clearly covered under another statute. NMSA 1978, Section 30-37-2(A) (1973) outlaws delivering or providing a minor with images such as those contained on the SD card. The statute reads, in part:\nIt is unlawful for a person to knowingly sell, deliver, distribute, display for sale[,] or provide to a minor . . . any picture, photograph, drawing, sculpture, motion picture 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}.]\nA person violating Section 30-37-2(A) is guilty of a misdemeanor. NMSA 1978, \u00a7 30-37-7(A) (1985). The language of a statute should be construed together with other statutes relating to the same subject matter. State v. Davis, 2003-NMSC-022, \u00b6 12, 134 N.M. 172, 74 P.3d 1064 (stating that \u201cstatutes in pari materia should be construed together\u201d). Here, Section 30-37-3.3 is part of Article 37 ofNew Mexico\u2019s criminal statutes. Article 37 relates particularly to \u201csexually oriented material [that is] harmful to minors.\u201d Section 30-37-2(A), also part of Article 37, clearly covers Defendant\u2019s at-issue conduct in this case.\n{14} In addition, the Legislature\u2019s use of the term \u201cprovide\u201d in Section 30-37-2(A) when read together with the Legislature\u2019s use of the term \u201csending\u201d in Section 30-37-3.3 indicates that the Legislature recognized a distinction between the verbs \u201cto send\u201d and \u201cto provide\u201d in the context of prohibiting adults from sharing depictions of intimate body parts with children. The State\u2019s attempt to blur this distinction by stretching the meaning of \u201csending\u201d is problematic.\n{15} The State\u2019s argumentruns 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, \u00b6 16, 102 N.M. 120, 692 P.2d 45. The Oxford Dictionaries defines \u201csend\u201d primarily as \u201c[c]ause to go or be taken to a particular destination; arrange for the delivery of, especially by mail[,]\u201d and secondarily, as \u201c[c]ause (a message or computer file) to be transmitted electronically}.]\u201d Oxford Dictionaries, http://www.oxforddictionaries. com/us/ definition/american_english/send (last visited Mar. 6, 2015). The same dictionary defines \u201cprovide\u201d primarily as \u201c[m]ake available for use; supply},]\u201d and secondarily, as \u201c}e]quip or supply someone with}.]\u201d Id. ht tp ://w ww.oxforddictionaries.com /us/definition/american_english/provide (last visited Mar. 6, 2015). From these definitions and as a matter of common parlance, \u201cto send\u201d when used to describe the act of causing another person to receive a physical object evokes the notion of a third-party carrier. On the other hand, the verb \u201cto provide\u201d to describe the act of causing another person to receive a physical object more appropriately, although perhaps not exclusively, describes an in-person exchange.\n{16} In Muqqddin, our Supreme Court cautioned that \u201c}w]ords are the beginning, not the end; they serve as portals into the thoughts behind the words of a criminal statute.\u201d 2012-NMSC-029, \u00b6 54. \u201cWhere . . ..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.\u201d Id., see also Yates v. United States, 574 U.S._, 135 S. Ct. 1074, 1081 (2015) (\u201c}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.\u201d (alterations, internal quotation marks, and citation omitted)). \u201cOrdinarily, a word\u2019s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.\u201d Id. at 1082.\n{17} It is for the Legislature, not this Court, to broaden Section 30-37-3.3\u2019s coverage.\nIt 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\u2019s representatives, not judicial officers, under a constitutional system of separation of powers.\nMuqqddin, 2012-NMSC-029, \u00b6 52.\nCONCLUSION\n{18} We hold that Defendant was wrongly charged with violation of Section 30-37-3.3 and was wrongly convicted and sentenced under that statute. We reverse Defendant\u2019s conviction, judgment, and sentence.\n{19} IT IS SO ORDERED.\nJONATHAN B. SUTIN, Judge\nWE CONCUR:\nMICHAEL D. BUSTAMANTE, Judge\nM. MONICA ZAMORA, Judge\nThe trial record is not clear whether Defendant\u2019s research occurred before he handed the SD card to Child or afterward. Further, Defendant contends on appeal that this interview constituted a custodial interview requiring Miranda admonitions and that his statements and the evidence acquired from the statements should have been suppressed. He moved to suppress before trial, and the district court denied the motion. Because we reverse on the ground that the statute under which Defendant was convicted did not cover his conduct, we do not reach the suppression issue.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Hector H. Balderas, Attorney General", "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" ], "corrections": "", "head_matter": "Certiorari Granted, June 19, 2015,\nNo. 35,255\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-075\nFiling Date: April 7, 2015\nDocket No. 33,419\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. ROBERT GEORGE TUFTS, Defendant-Appellant.\nHector H. Balderas, Attorney General\nPaula E. Ganz, Assistant Attorney General\nSanta Fe, NM\nfor Appellee\nJorge A. Alvarado, Chief Public Defender\nKimberly Chavez Cook, Assistant Appellate\nDefender\nSanta Fe, NM\nfor Appellant" }, "file_name": "0286-01", "first_page_order": 302, "last_page_order": 306 }