{ "id": 3784088, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Ronald MYERS, Defendant-Appellant", "name_abbreviation": "State v. Myers", "decision_date": "2008-02-19", "docket_number": "No. 26,837", "first_page": "710", "last_page": "716", "citations": [ { "type": "official", "cite": "143 N.M. 710" }, { "type": "parallel", "cite": "181 P.3d 702" }, { "type": "parallel", "cite": "2008-NMCA-047" } ], "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": "636 F.Supp. 828", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3868154 ], "opinion_index": 0, "case_paths": [ "/f-supp/636/0828-01" ] }, { "cite": "382 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "260", "parenthetical": "concluding that because the trial court expressly stated it did not consider specific evidence in a bench trial, the appellate court would not consider that evidence on appeal in determining whether the state proved an element of the offense" } ], "opinion_index": 0 }, { "cite": "8 Va.App. 353", "category": "reporters:state", "reporter": "Va. App.", "case_ids": [ 4394210 ], "year": 1989, "pin_cites": [ { "parenthetical": "concluding that because the trial court expressly stated it did not consider specific evidence in a bench trial, the appellate court would not consider that evidence on appeal in determining whether the state proved an element of the offense" } ], "opinion_index": 0, "case_paths": [ "/va-app/8/0353-01" ] }, { "cite": "2003-NMCA-150", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77191 ], "weight": 22, "pin_cites": [ { "page": "\u00b6 31" }, { "page": "\u00b6 69" }, { "page": "\u00b6 42" }, { "page": "\u00b6 43" }, { "page": "\u00b6 44" }, { "page": "\u00b6 45" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0744-01" ] } ], "analysis": { "cardinality": 867, "char_count": 22382, "ocr_confidence": 0.682, "pagerank": { "raw": 7.06411479805732e-08, "percentile": 0.4257329288309859 }, "sha256": "a4c4ef337689cf3316a5be9c6f06b46db5f272c0aeffadf9c66af123bc47a850", "simhash": "1:31e2c9a31bea23f2", "word_count": 3636 }, "last_updated": "2023-07-14T16:34:50.796486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and RODERICK T. KENNEDY, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Ronald MYERS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} Defendant was convicted in a bench trial of seven counts of sexual exploitation of children in violation of NMSA 1978, Section 30-6A-3(D) (2001). Defendant appeals, asserting: (1) the photographs on which the prosecution was based do not satisfy the statutory elements of the offense; (2) the statute is unconstitutionally vague as applied to Defendant\u2019s conduct; and (3) Defendant\u2019s constitutional rights were violated because neither the grand jury nor any witness at trial correlated particular photographs to any particular counts in the indictment. We agree with Defendant that the photographs on which the prosecution was based do not depict a prohibited sexual act as required by the statute. We therefore reverse.\nI. BACKGROUND\n{2} In 2004, Defendant secretly set up a video camera in a unisex restroom adjacent to his office to record partially unclothed women in the restroom while they were using the restroom. He hid the video camera beneath a radiator, and positioned it so it would capture the pubic area of women before and after they used the restroom. He then drilled a hole in the wall between his office and the restroom and ran a cord from the camera to a TV/VCR recorder which was concealed in a closet in his office. Defendant\u2019s desk was in a position where he could observe when someone entered the restroom. Upon seeing a female enter the restroom, Defendant went to the closet, pressed record on the VCR, and filmed her while she used the restroom. The husband of Defendant\u2019s co-employee saw the camera while using the restroom, and an investigation followed, leading to the discovery of Defendant\u2019s activities. Videotapes of the unsuspecting females, and commercial pornographic videos and magazines were taken from Defendant\u2019s office. In a subsequent voluntary statement to the police, Defendant admitted to purchasing and installing the equipment to record females using the restroom for his sexual gratification.\n{3} The videotapes depict five different females using the restroom on numerous occasions. Three of the women are adults, and two are minors. One of the minors was a sixteen-year-old high school intern who worked with Defendant during the summer of 2004, and the other minor was a seventeen-year-old daughter of Defendant\u2019s eo-employee. The present statute which criminalizes voyeurism was not enacted until 2007, after Defendant\u2019s trial. See NMSA 1978, \u00a7 30-9-20 (2007) (prohibiting voyeurism, which is punishable as a misdemeanor, unless the victim is less than eighteen years of age, in which case the offense is punishable as a fourth degree felony). Since there was no statute which otherwise prohibited Defendant\u2019s conduct, the State elected to prosecute Defendant for videotaping the minors under the Sexual Exploitation of Children Act. NMSA 1978, \u00a7\u00a7 30-6A-1 to -4 (1984, as amended through 2007). The indictment charges Defendant with sexual exploitation of children in violation of Section 30-6A-3(D) in nine separate counts.\n{4} The State did not present the videotapes of the victims to the grand jury. Instead, the State retrieved thirty-five photographs from the videotapes, placed the photographs on nine separate sheets, and presented the nine sheets to the grand jury. There was no correlation between individual photographs and the nine counts of the indictment charging Defendant with sexual exploitation of children. Defendant filed a motion to dismiss, asserting that on their face, the photographs do not satisfy the statutory elements of the offense charged. At the hearing, Defendant emphasized that the photographs did not depict a \u201cprohibited sexual act\u201d as required by the statute. The district court observed that some of the photographs did not appear to satisfy the statute as required by State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, \u201cand that\u2019s where the problem occurs.\u201d The district court denied the motion to dismiss, but ordered the State to identify which pictures went with each count. The State filed a document entitled \u201cNotice of Images Supporting Indictment.\u201d The \u201cNotice\u201d identifies specific photographs on twelve sheets with four photographs on each sheet as \u201cthe particular images which the State intends to proffer in support of the indictment.\u201d There is no order to the sheets, the photographs on the sheets, or how they correlate to the counts in the indictment. For example, the State discloses that Count I is contained on a photograph in the lower left corner of Sheet # 1 and photographs in the upper right hand corner and lower right hand corner of Sheet # 9.\n{5} After the State filed the \u201cNotice\u201d Defendant filed a motion to dismiss, or in the alternative, to quash the indictment, arguing in part that the indictment should be dismissed because there was no indication that the grand jury connected particular photographs with particular counts in the indictment. Defendant also filed another motion to dismiss, asserting that there was no evidence that Counts IV, V, VII, VIII, and IX were supported by photographs that were submitted to the grand jury. The district court denied both motions.\n{6} The State filed a nolle prosequi as to Count VII, and Defendant waived his right to a jury trial. Prior to opening statements, Defendant reminded the district court that \u201c[w]e do not know which photos [the grand jury] used for each count. We have no idea whatsoever.\u201d At the beginning of the trial, the parties stipulated to admitting into evidence the twelve sheets of photographs that were previously used to identify which specific photographs related to each count of the indictment. The sheets were admitted into evidence as Exhibits 23-34. The parties further stipulated that the two victims were depicted in the photographs and that they were minors. While the videotapes from which the photographs were extracted were also admitted into evidence, the State relied exclusively on the photographs extracted from the videotapes in Exhibits 23-34 to prove its case, and the district court was not asked to, and it did not, consider the videotapes themselves in rendering its verdict. The district court relied exclusively on the photographs presented to it in Exhibits 23-34 to render its verdict.\n{7} Before the State rested its case, the following exchange took place between the prosecutor and the court:\nTHE COURT: Is someone going to tie these photos into each particular count?\n[COUNSEL]: I\u2019m going to do that in closing, Judge. I think I can do that from what the girls are wearing as well as the counter. You can see that they\u2019re wearing different clothes, as well as the counters clearly depict different instances.\nTHE COURT: But closing isn\u2019t evidence.\n[COUNSEL]: I\u2019m sorry?\nTHE COURT: You have a problem with that. It has to be sworn testimony. What you say in closing is not evidence.\n[COUNSEL]: But the pictures are evidence, Judge, and you can see the pictures. They depict\u2014\nTHE COURT: Someone might have to tie them in to each count. I don\u2019t think you can do that in closing, but I\u2019ll let you try your case as you wish.\nThe State never made any attempt at trial to establish which photographs proved which counts. Defendant renewed his motion to dismiss on grounds that the photographs failed to satisfy the statutory elements of the offense, and for a directed verdict. Defense counsel further argued:\nThe other motion that I have to dismiss is based on the fact that we have no idea what exhibits go through what counts. We have heard from no witness that extracted those photos from the videos and how they were tied to any of the counts, whatsoever, which deprives me completely of arguing whether the photo actually coincides with the statutory criteria for sexual exploitation of children, so that I can ... go down through each count and argue each photo whether it fits the statutory criteria or not.\nThe motions were denied. Defendant presented no evidence, and the parties waived closing arguments. The district court directed a verdict on Count IX, and found Defendant guilty of Counts I-VI with the high school intern as the victim and Count VIII with the co-employee\u2019s daughter as the victim.\nII. DISCUSSION\n{8} Defendant argues that reversible error was committed when his pretrial motion to dismiss on grounds that the photographs do not satisfy the statutory elements was denied, and the State argues that the real issue is whether the evidence at trial was sufficient to prove the crimes. The parties dispute whether the district court must hear and consider a pretrial motion to dismiss as part of its gatekeeping function when there is no assertion that the particular photographs at issue are constitutionally protected speech and the ease is tried to the court without a jury. Without totally resolving this dispute, we reiterate our holding in Rendlemcm:\n[0]n a pretrial motion to dismiss charges alleging the sexual exploitation of children, the district court may dismiss the charges where, on the undisputed face of the materials before the court, a jury could not find beyond a reasonable doubt that the material meets the elements of the offense as defined by the [Sexual Exploitation of Children] Act. Under these limited circumstances, no practical purpose would be served by a trial on the merits, and dismissal is therefore an appropriate and effective means of promoting judicial efficiency in light of the dis-positive issue before the district court.\nRendleman, 2003-NMCA-150, \u00b6 31, 134 N.M. 744, 82 P.3d 554 (internal quotation marks, citation, and alteration omitted). In this ease, Defendant\u2019s pretrial motion to dismiss and his motion for directed verdict raise the same issue: whether the photographs admitted into evidence satisfy the statutory elements of the crimes charged. Specifically, Defendant argues: (1) the photographs do not depict a prohibited sexual act; and (2) the photographs are not obscene. We review these arguments de novo. Id. \u00b6 66.\n{9} Defendant was convicted of sexual exploitation of children by violating Section 30-6A-3(D), which provides:\nIt is unlawful for a person to intentionally manufacture any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age. A person who violates the provisions of this subsection is guilty of a second degree felony.\nParaphrasing, the statute requires that a person intentionally \u201cmanufacture\u201d a \u201cvisual or print medium\u201d that is \u201cobscene\u201d and depicts a \u201cprohibited sexual act.\u201d See Sections 30-6A-2(B), (D), and (E) (defining what is a \u201cvisual or print medium,\u201d what it means to \u201cmanufacture,\u201d and what is \u201cobscene\u201d under the Sexual Exploitation of Children Act).\n{10} The question Defendant presents is whether the photographs admitted into evidence depict a \u201cprohibited sexual act.\u201d However, Defendant did not make the photographs, the State did. What Defendant made were videos, and the photographs were extracted by the State from those videos. We therefore first determine whether to consider the photographs which the State made, but Defendant did not, or the videotapes which Defendant actually made. See \u00a7 30-6A-2(B)(1) (defining a \u201cvisual or print medium\u201d in pertinent part as \u201cany film, photograph, [or] ... videotape\u201d). Since the district court was not asked to consider the videotapes made by Defendant, and the district court did not consider them in rendering its verdict, neither do we. See Jewell v. Commonwealth, 8 Va.App. 353, 382 S.E.2d 259, 260 (1989) (concluding that because the trial court expressly stated it did not consider specific evidence in a bench trial, the appellate court would not consider that evidence on appeal in determining whether the state proved an element of the offense). We therefore consider only the photographs as demonstrative of what is on the videotapes to determine whether they depict a \u201cprohibited sexual act.\u201d Compare Rendleman, 2003-NMCA-150, \u00b6 69, 134 N.M. 744, 82 P.3d 554 (reversing an order of the district court dismissing sexual exploitation of children counts based on videotapes where the briefs did not discuss the videotapes, the briefs did not establish where in the record the videotapes were identified, or where the videotapes were considered by the district court, because \u201ceach count must be analyzed in terms of the content of the depiction charged\u201d).\n{11} The statute requires the depiction of a \u201cprohibited sexual act\u201d as defined in Section 30-6A-2(A) (providing five separate definitions of a \u201cprohibited sexual act\u201d). The specific \u201cprohibited sexual act\u201d at issue in this case is set forth at subsection (5), which states that a \u201clewd and sexually explicit exhibition with a focus on the genitals or pubic area of any person for the purpose of sexual stimulation\u201d is a \u201cprohibited sexual act.\u201d There are three discreet elements of this \u201cprohibited sexual act.\u201d\n{12} First, there must be an \u201cexhibition\u201d that is both: (1) \u201clewd\u201d and (2) \u201csexually explicit.\u201d Rendleman, 2003-NMCA-150, \u00b6 42, 134 N.M. 744, 82 P.3d 554. For guidance in determining whether the photographs are \u201clewd\u201d we look to the factors set forth in United States v. Dost, 636 F.Supp. 828 (S.D.Cal.1986) for guidance. Rendleman, 2003-NMCA-150, \u00b6 43, 134 N.M. 744, 82 P.3d 554. The \u201cDost factors\u201d include consideration of whether:\n(1) the focus is on the genital or pubic area; (2) the setting is sexually suggestive; (3) the child is depicted in an unnatural pose, or in inappropriate attire, considering the child\u2019s age; (4) the child is fully or partially clothed; (5) the depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) the depiction is designed to elicit a sexual response in the viewer.\nId. While not all the factors must be present to conclude that a photograph is \u201clewd,\u201d Section 30-6A-2(A)(5) itself expressly requires the first and the last factors. In Rendleman, we analyzed these factors and the statutory terms and concluded that for there to be a \u201clewd and sexually explicit exhibition\u201d in a photograph, the photograph must contain \u201ca visible display or readily discernible depiction of a child engaged in sexually provocative conduct. In other words, the photograph must be identifiable as hard-core child pornography; that is, it must display visible signs of sexual eroticism, rather than merely depict a naked child.\u201d Rendleman, 2003-NMCA-150, \u00b6 44, 134 N.M. 744, 82 P.3d 554.\n{13} Second, the photograph must \u201cfocus on the genitals or pubic area of any person.\u201d \u00a7 30-6A-2(A)(5). We also examined this statutory requirement in Rendleman and concluded: \u201cFor the conduct to be unlawful, the depiction must clearly focus on the groin area of a child. Focus can be determined by photographic elements, such as design, composition, lighting, positioning, attire, and setting.\u201d Rendleman, 2003-NMCA-150, \u00b6 45, 134 N.M. 744, 82 P.3d 554.\n{14} Third, in order to depict a \u201cprohibited sexual act,\u201d the photograph must be \u201cfor the purpose of sexual stimulation.\u201d Id. \u00b6 46. In Rendleman we said that this prong of the statutory element is \u201c[t]he most difficult element to articulate\u201d because whether the purpose of the photograph is to elicit a sexual response is capable of being evaluated from either a subjective standard (the specific defendant in the case) or an objective standard. Id.\nUnder an objective standard, the central question is whether, based on the overall content of the photograph, a reasonable person could find the photograph was intended to elicit a sexual response. Application of an objective standard requires courts to focus on the photograph itself, and not on the circumstances surrounding the taking of the photograph. In short, the pictures speak for themselves.\nId. \u00b647 (internal quotation marks, citations, and alterations omitted). We reasoned that child pornography focuses on the harm to the child which results from \u201ctrespasses against the child\u2019s dignity when treated as a sexual object,\u201d id. \u00b6 48, and \u201cit is not a defendant\u2019s private reaction that transforms an innocent photo into a lewd exhibition, but rather the objectively ascertainable intended effect on the viewer.\u201d Id. We therefore concluded that whether the photograph is \u201cfor the purpose of sexual stimulation\u201d is determined under an objective standard:\nOnly if the photo itself raises a question of illegal purpose (if a jury could find it pornographic) should it be submitted to the jury to make a finding on the objective evidence and subjective intent of the photographer. At 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.\nId. \u00b6 49.\n{15} We now turn to the photographs in this case. It is impossible for us to determine on this record which photographs were relied on to prove each count of the indictment. At trial the prosecutor herself stated, \u201cto some extent, which photograph goes with which count is arbitrary,\u201d and the prosecutor failed to establish which photographs supported each count. On this basis alone, reversal of Defendant\u2019s convictions is warranted. See id. \u00b6\u00b6 38, 49, 69 (emphasizing that each count must be analyzed in terms of the content of each photograph itself). For purposes of analysis, however, we assume the State\u2019s \u201cNotice\u201d describes the photographs which the State relied on to prove each count.\n{16} The photographs support a conclusion that the video camera was positioned in the restroom to capture the pubic area of the victims before or after they used the restroom. As to each count (except Counts I, II and V) Victim\u2019s pants are down below the waist and Victim\u2019s pubic hair is pictured. In the Count I photographs, Victim\u2019s arm is hanging between her legs, blocking the view of her pubic area, but she is clearly nude from the waist down and facing the camera. In the photographs supporting Count II, Victim is either in the process of pulling up or pulling down her underwear, and the pubic area is, for the most part, obscured by the underwear. The photographs supporting Count V show Victim in the process of either pulling up or pulling down her pants and the pubic area is covered by her pants. In none of the photographs are any external female genitalia discernible.\n{17} Consideration of the Dost factors leads us to conclude that the photographs are not \u201clewd\u201d and \u201csexually explicit\u201d as described in Rendleman. The only Dost factor which the photographs satisfy is the first: the hidden camera was positioned in the restroom to photograph the pubic area of women using the restroom. However, there is nothing inherently sexually suggestive about a unisex restroom at the workplace; the pose and attire of the minors in the photographs is appropriate to their activity, i.e., using the restroom; the minors are partially unclothed; and the photographs do not depict the minors as suggesting coyness or a willingness to engage in sexual activity. As we have already discussed, in order for a photograph to depict a \u201clewd and sexually explicit exhibition,\u201d Rendleman requires the photograph to show \u201ca visible display or readily discernible depiction of a child engaged in sexually provocative conduct. In other words, the photograph must be identifiable as hard-core child pornography; that is, it must display visible signs of sexual eroticism, rather than merely depict a naked child.\u201d Id. \u00b6 44. The photographs relied on by the State fail to satisfy this standard.\n{18} The photographs also fail to satisfy threshold requirements mandated by Rendleman to satisfy the statutory requirement that they are \u201cfor the purpose of sexual stimulation.\u201d Again, Rendleman requires that we apply an objective standard, by ignoring the circumstances surrounding the taking of the photographs, and focusing on the photographs themselves. Id. \u00b6 47. While Defendant admitted he filmed the women using the restroom for his sexual gratification, the circumstances of the photography, and the use of the photographs are considered \u201c[o]nIy if the photo itself raises a question of illegal purpose (if a jury could find it pornographic)!}]\u201d Id. \u00b649. A \u201creasonable person\u201d (as opposed to a voyeur) would not conclude, from the overall content of the photographs themselves, that they were intended to elicit a sexual response. They depict minors who are partially unclothed before or after they used the restroom, and nothing more.\n{19} For the foregoing reasons, we hold that the photographs identified as supporting each count of the indictment do not depict a \u201cprohibited sexual act\u201d as defined in Section 30-6A-2(A)(5). They do not depict a \u201clewd and sexually explicit exhibition\u201d and the photographs themselves do not demonstrate an intent to elicit a sexual response in a reasonable viewer, as required, to satisfy the statutory requirement that they are \u201cfor the purpose of sexual stimulation.\u201d\n{20} In light of our holding, we do not address whether the photographs are \u201cobscene\u201d as defined in Section 30-6A-2(E), or Defendant\u2019s remaining arguments. The State appealed the order of the district court which stayed pending this appeal that portion of the judgment and sentence which requires Defendant to register as a sex offender. See NMSA 1978, \u00a7 29-llA-4(A) (2005) (\u201cA sex offender residing in this state shall register with the county sheriff for the county in which the sex offender resides.\u201d); NMSA 1978, \u00a7\u00a7 29-11A-3(D)(1) and (E)(4) (2005) (providing that a \u201csex offender\u201d is a resident of New Mexico who is convicted of a sex offense, and defining sexual exploitation of children as a sex offense). In light of our holding, it is not necessary to address this argument either.\nIII. CONCLUSION\n{21} The judgment and sentence of the district court is reversed, and the case is remanded to the district court with instructions to set aside Defendant\u2019s convictions.\n{22} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and RODERICK T. KENNEDY, Judges.", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellant.", "Edwards Law Firm, P.A., Marc W. Edwards, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2008-NMCA-047\n181 P.3d 702\nSTATE of New Mexico, Plaintiff-Appellee, v. Ronald MYERS, Defendant-Appellant.\nNo. 26,837.\nCourt of Appeals of New Mexico.\nFeb. 19, 2008.\nCertiorari Granted, No. 30,993, April 8, 2008.\nGary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellant.\nEdwards Law Firm, P.A., Marc W. Edwards, Santa Fe, NM, for Appellee." }, "file_name": "0710-01", "first_page_order": 746, "last_page_order": 752 }