{ "id": 4244782, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Ronald MYERS, Defendant-Appellant. No. 26,837", "name_abbreviation": "State v. Myers", "decision_date": "2009-11-18", "docket_number": "", "first_page": "574", "last_page": "582", "citations": [ { "type": "official", "cite": "147 N.M. 574" }, { "type": "parallel", "cite": "226 P.3d 673" }, { "type": "parallel", "cite": "2010-NMCA-007" } ], "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": "140 N.M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 3671792 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/140/0458-01" ] }, { "cite": "81 N.M. 578", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359958 ], "weight": 2, "pin_cites": [ { "page": "579" }, { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/nm/81/0578-01" ] }, { "cite": "116 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727613 ], "weight": 2, "pin_cites": [ { "page": "307" }, { "page": "988" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0297-01" ] }, { "cite": "2004-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77119 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0768-01" ] }, { "cite": "97 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555104 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "226", "parenthetical": "\"[T]he duty of a lower court on remand is to comply with the mandate of the appellate court, and to obey the directions therein without variation, even though the mandate may be erroneous.\"" }, { "page": "1071", "parenthetical": "\"[T]he duty of a lower court on remand is to comply with the mandate of the appellate court, and to obey the directions therein without variation, even though the mandate may be erroneous.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0225-01" ] }, { "cite": "475 So.2d 628", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7612725 ], "pin_cites": [ { "page": "629-30" } ], "opinion_index": 0, "case_paths": [ "/so2d/475/0628-01" ] }, { "cite": "403 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "500-01", "parenthetical": "abolishing the common law year-and-a-day rule for murder cases, but concluding that applying the new rule to the defendant's case would violate due process" } ], "opinion_index": 0 }, { "cite": "328 N.C. 613", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543691 ], "year": 1991, "pin_cites": [ { "parenthetical": "abolishing the common law year-and-a-day rule for murder cases, but concluding that applying the new rule to the defendant's case would violate due process" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0613-01" ] }, { "cite": "848 N.E.2d 228", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2006, "pin_cites": [ { "page": "239-40" }, { "page": "239" } ], "opinion_index": 0 }, { "cite": "302 Ill.Dec. 228", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 2006, "opinion_index": 0 }, { "cite": "365 Ill.App.3d 226", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264370 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0226-01" ] }, { "cite": "2001-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352596 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/130/0006-01" ] }, { "cite": "98 N.M. 585", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582515 ], "weight": 2, "pin_cites": [ { "page": "588" }, { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0585-01" ] }, { "cite": "111 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715049 ], "weight": 13, "pin_cites": [ { "page": "298" }, { "page": "1117" }, { "page": "1117" }, { "page": "298" }, { "page": "1117" }, { "page": "299" }, { "page": "1118" }, { "page": "298" }, { "page": "1117" }, { "page": "300" }, { "page": "1119" }, { "page": "300" }, { "page": "1119" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0297-01" ] }, { "cite": "532 U.S. 451", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9301453 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "461-62" } ], "opinion_index": 0, "case_paths": [ "/us/532/0451-01" ] }, { "cite": "378 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166404 ], "weight": 11, "year": 1964, "pin_cites": [ { "page": "351-52" }, { "page": "353" }, { "page": "353-54" }, { "page": "354" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/us/378/0347-01" ] }, { "cite": "527 U.S. 41", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248042 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "64", "parenthetical": "striking down an ordinance because, in part, it failed to sufficiently limit police discretion in enforcement" }, { "parenthetical": "striking down an ordinance because, in part, it failed to sufficiently limit police discretion in enforcement" }, { "parenthetical": "striking down an ordinance because, in part, it failed to sufficiently limit police discretion in enforcement" } ], "opinion_index": 0, "case_paths": [ "/us/527/0041-01" ] }, { "cite": "1998-NMCA-153", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827388 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0060-01" ] }, { "cite": "1999-NMCA-152", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106482 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 26", "parenthetical": "striking down an ordinance because, in part, it failed to sufficiently limit police discretion in enforcement" }, { "parenthetical": "striking down an ordinance because, in part, it failed to sufficiently limit police discretion in enforcement" }, { "parenthetical": "striking down an ordinance because, in part, it failed to sufficiently limit police discretion in enforcement" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0345-01" ] }, { "cite": "82 N.M. 373", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326410 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "374", "parenthetical": "\"We have held that the law, at the time of the commission of the offense, is controlling.\"" }, { "page": "238", "parenthetical": "\"We have held that the law, at the time of the commission of the offense, is controlling.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0373-01" ] }, { "cite": "84 P.3d 668", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "135 N.M. 51", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2003-NMCERT-003", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2009-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244296 ], "weight": 36, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 2" }, { "page": "\u00b6 4" }, { "page": "\u00b6 19" }, { "page": "\u00b6 19" }, { "page": "\u00b6\u00b6 18, 39" }, { "page": "\u00b6 32" }, { "page": "\u00b6 32" }, { "page": "\u00b6\u00b6 18-21, 26, 27-32, 47" }, { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0128-01" ] }, { "cite": "2003-NMCA-150", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77191 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 42" }, { "page": "\u00b6 44" }, { "page": "\u00b6 42" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0744-01" ] }, { "cite": "2008-NMCA-047", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3784088 ], "weight": 21, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 8" }, { "page": "\u00b6 11" }, { "page": "\u00b6 12" }, { "page": "\u00b6\u00b6 10-18" }, { "parenthetical": "\"We have held that the law, at the time of the commission of the offense, is controlling.\"" }, { "parenthetical": "\"We have held that the law, at the time of the commission of the offense, is controlling.\"" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0710-01" ] } ], "analysis": { "cardinality": 1170, "char_count": 29044, "ocr_confidence": 0.693, "pagerank": { "raw": 9.625268998747263e-08, "percentile": 0.5270509979539347 }, "sha256": "058a18967191199c38735b3ab0cf8e416ed03e6f652a506b0655479c844bfd5d", "simhash": "1:11d394af750bd7a6", "word_count": 4741 }, "last_updated": "2023-07-14T21:21:31.817470+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. No. 26,837." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} Defendant was convicted of seven counts of sexual exploitation of children by manufacturing child pornography, a second degree felony, in violation of NMSA 1978, Section 30-6A-3(D) (2001) (amended 2007), of the Sexual Exploitation of Children Act, NMSA 1978, Sections 30-6A-1 to -4 (1984, as amended through 2007). In State v. Myers, 2008-NMCA-047, 143 N.M. 710, 181 P.3d 702 (Myers I), we concluded that the essential elements of the crime established by State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554 were not proven, and reversed. On certiorari, the Supreme Court overruled and modified Rendleman in part, with the result that the elements of the crime were changed, and reversed. State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105 (Myers II).\n{2} The Supreme Court also remanded the case to us \u201cto consider the parties\u2019 remaining claims, namely, [1] whether the Act is void for vagueness as applied to Defendant\u2019s eon-duct[,] and [2] whether the trial court properly entered a stay of execution that relieved Defendant of the obligation to register as a sex offender pending the outcome of this appeal.\u201d Id. \u00b6 47.\n{3} We hold that, as applied to Defendant\u2019s conduct in this case, Section 30-6A-3(D) is void for vagueness and that the trial court properly exercised its discretion to relieve Defendant from registering as a sex offender pending the outcome of this appeal.\nBACKGROUND\n{4} Sometime between May and September 2004, Defendant set up a video camera in a unisex bathroom adjacent to his office for the purpose of recording females while they used the restroom. Myers II, 2009-NMSC-016, \u00b6 2, 146 N.M. 128, 207 P.3d 1105. Defendant drilled a hole in the wall between the bathroom and his office and ran a cord from the camera to a TV/VCR he had hidden in his office closet. Myers I, 2008-NMCA-047, \u00b6 2, 143 N.M. 710, 181 P.3d 702. When Defendant saw a female enter the restroom, he would record her on videotape as she used the toilet. Myers II, 2009-NMSC-016, \u00b6 2, 146 N.M. 128, 207 P.3d 1105. In September 2004, the video camera was discovered and a criminal investigation ensued. Id. \u00b6 3. Videotapes of five females using the restroom, along with commercial pornographic magazines and videotapes, were found in Defendant\u2019s office. Id. \u00b6\u00b6 3, 4. Defendant admitted in a voluntary statement to the police that his purpose in recording females was his personal sexual gratification. Id.\n{5} Two of the females were minors at the time of recording. Id. \u00b6 4. The State charged Defendant with nine counts of sexual exploitation of children by manufacturing child pornography in violation of Section 30-6A-3(D). Myers II, 2009-NMSC-016, \u00b6 4, 146 N.M. 128, 207 P.3d 1105. The State used photographs it extracted from the videotapes to prove its case, rather than the videotapes themselves. Id. \u00b6\u00b6 4, 7. Defendant faced no charges for recording the adult women because no statute prohibiting voyeurism was in effect at the time. Our voyeurism statute was not enacted until 2007. See NMSA 1978, \u00a7 30-9-20 (2007).\n{6} When Defendant was charged, we had already decided Rendleman in which we construed Section 30-6A-3(D) and established the essential elements of the offense. The Supreme Court denied certiorari in Rendleman. 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668. Accordingly, Defendant\u2019s bench trial and conviction for seven counts of sexual exploitation of children by manufacturing child pornography in violation of Section 30-6A-3(D) was based on the elements of the offense as determined by us in Rendleman. Myers I, 2008-NMCA-047, \u00b6 8, 143 N.M. 710, 181 P.3d 702. (The State filed a nolle prosequi as to one count, and the district court directed a verdict on a second count. Id. \u00b6\u00b6 6, 7).\n{7} To convict Defendant, the State was required to prove that Defendant manufactured \u201cobscene\u201d photographs which depict a \u201cprohibited sexual act.\u201d Section 30-6A-3(D) (prohibiting the manufacture of any \u201cobscene\u201d print medium depicting any \u201cprohibited sexual act\u201d by a child under eighteen years of age); \u00a7 30-6A-2(E) (defining \u201cobscene\u201d); \u00a7 30-6A-2(A)(5) (defining one type of a \u201cprohibited sexual act\u201d). To prove the photographs depict a \u201cprohibited sexual act,\u201d the State was required to prove that they portrayed 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 Myers I, 2008-NMCA-047, \u00b6 11, 143 N.M. 710, 181 P.3d 702; Myers II, 2009-NMSC-016, \u00b6 19, 146 N.M. 128, 207 P.3d 1105 (quoting \u00a7 30-6A-2(A)(5)). Thus, proof of three essential elements was required: (1) a \u201clewd and sexually explicit exhibition\u201d; (2) with a \u201cfocus on the genitals or pubic area of any person\u201d; (3) \u201cfor the purpose of sexual stimulation.\u201d Rendleman, 2003-NMCA-150, \u00b6 42, 134 N.M. 744, 82 P.3d 554; Myers I, 2008-NMCA-047, \u00b6 12, 143 N.M. 710, 181 P.3d 702; Myers II, 2009-NMSC-016, \u00b6 19, 146 N.M. 128, 207 P.3d 1105.\n{8} In Myers I, we reversed Defendant\u2019s convictions on the grounds that statutory elements of a \u201cprohibited sexual act\u201d as construed in Rendleman were not satisfied. Myers I, 2008-NMCA-047, \u00b6\u00b6 10-18, 143 N.M. 710, 181 P.3d 702. Clearly, at the time of Defendant\u2019s conduct and at his subsequent bench trial, Rendleman was the applicable law. See State v. Allen, 82 N.M. 373, 374, 482 P.2d 237, 238 (1971) (\u201cWe have held that the law, at the time of the commission of the offense, is controlling.\u201d). On certiorari, the Supreme Court reversed our decision, holding that Rendleman incorrectly construed certain statutory elements of the offense. Without attempting an exhaustive analysis of its reasoning or how Myers II modified and overruled Rendleman in its interpretation of these statutory elements, we point to the following examples.\n{9} As to the first element, Rendleman concluded that for a photograph to contain a \u201clewd and sexually explicit exhibition\u201d the photograph must portray \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. We applied this requirement in Myers I, 2008-NMCA-047, \u00b6 12, 143 N.M. 710, 181 P.3d 702. However, in Myers II, the Supreme Court changed this proof requirement. The Supreme Court held that the statute is not limited to \u201chard-core child pornography\u201d but includes all child pornography which the fact finder determines is obscene. 2009-NMSC-016, \u00b6\u00b6 18, 39, 146 N.M. 128, 207 P.3d 1105; see \u00a7 30-6A-2(E) (defining \u201cobscene\u201d material).\n{10} As to the third element, the Supreme Court rejected and explicitly overruled the objective standard test we adopted in Rendleman for determining whether the photographs were manufactured \u201cfor the purpose of sexual stimulation.\u201d 2003-NMCA-150, \u00b6 42, 134 N.M. 744, 82 P.3d 554. Myers II states, \u201cWe therefore reject the objective standard [adopted by Myers 7] and adopt the subjective standard, which examines the criminal defendant\u2019s actual intent in distributing, possessing, or manufacturing the images, as the proper standard by which to assess whether the challenged material fulfills the \u2018for the purpose of sexual stimulation\u2019 element of Section 30-6A-2(A)(5).\u201d Myers II, 2009-NMSC-016, \u00b6 32, 146 N.M. 128, 207 P.3d 1105. \u201cAccordingly, we hereby overrule Rendleman to the extent that it held that the \u2018for purpose of sexual stimulation\u2019 prong of Section 30-6A-2(A)(5) ... must be evaluated pursuant to an objective standard.\u201d Myers II, 2009-NMSC-016, \u00b6 32, 146 N.M. 128, 207 P.3d 1105.\n{11} Two out of three elements of the crime having been changed between the time Defendant was tried and while Defendant\u2019s case was on appeal, we requested additional briefing from the parties on how the decision in Myers II affects Defendant\u2019s void for vagueness argument.\nVOID FOR VAGUENESS AS APPLIED\n{12} Defendant argues that Section 30-6A-3(D) is unconstitutionally vague as applied to his conduct. Although Defendant did not raise this issue in the trial court, we accept the parties\u2019 agreement that the issue is nevertheless properly before us. State v. Laguna, 1999-NMCA-152, \u00b6 18, 128 N.M. 345, 992 P.2d 896 (holding that a void-for-vagueness challenge can be reviewed on appeal although not preserved in the trial court).\n{13} Our review of Defendant\u2019s challenge to the statute is de novo. Id. \u00b6 24. There is a strong presumption of constitutionality underlying each legislative enactment and the challenging party bears the burden of proving it is unconstitutional beyond all reasonable doubt. Id. We review the challenge \u201cin light of the facts of the case and the conduct which is prohibited by the statute.\u201d Id. (internal quotation marks and citation omitted). \u201cBecause the essence of a vagueness claim rests on a lack of notice, a party may not succeed on the claim if the statute clearly applies to the defendant\u2019s conduct.\u201d State v. Duran, 1998-NMCA-153, \u00b6 31, 126 N.M. 60, 966 P.2d 768.\n{14} A statute can fail an applied void-for-vagueness challenge on either of two grounds. First, we ask \u201cwhether the statute allows individuals of ordinary intelligence a fair opportunity to determine whether their conduct is prohibited.\u201d Laguna, 1999\u2014 NMCA-152, \u00b6 25, 128 N.M. 345, 992 P.2d 896. The second test asks \u201cwhether the statute permits police officers, prosecutors, judges, or juries to engage in arbitrary and discriminatory enforcement of the statute, which occurs because the statute has no standards or guidelines and therefore allows, if not encourages, subjective and ad hoc application.\u201d Laguna, 1999-NMCA-152, \u00b6 26, 128 N.M. 345, 992 P.2d 896; see also City of Chicago v. Morales, 527 U.S. 41, 64, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (striking down an ordinance because, in part, it failed to sufficiently limit police discretion in enforcement). We hold that the statute fails the first test and do not reach Defendant\u2019s argument that the statute is void for vagueness because it allows for arbitrary enforcement.\n{15} Bouie v. City of Columbia, 378 U.S. 347, 351-52, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) reiterates the \u201cbasic principle\u201d that a criminal statute must give a person of ordinary intelligence fair notice of the conduct that the statute criminalizes or it will violate the Due Process Clause of the Fourteenth Amendment. Bouie adds that \u201can unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, \u00a7 10, of the Constitution forbids.\u201d Bouie, 378 U.S. at 353, 84 S.Ct. 1697. If a state legislature is forbidden from passing such a law, \u201cit must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.\u201d Id. at 353-54, 84 S.Ct. 1697. Bouie concluded, \u201cIf a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect.\u201d Id. at 354, 84 S.Ct. 1697 (internal quotation marks and citation omitted). Otherwise, a criminal defendant is deprived of due process of law \u201cin the sense of fair warning that his contemplated conduct constitutes a crime.\u201d Id. at 355, 84 S.Ct. 1697. The United States Supreme Court subsequently applied this test to determine whether the judicial retroactive alteration of a common law doctrine of criminal law violates due process. Rogers v. Tennessee, 532 U.S. 451, 461-62, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). We therefore agree with Defendant that a subsequent judicial interpretation applied retroactively can offend due process and render the statute void for vagueness as applied.\n{16} We have previously considered the due process implications of retroactively applying the interpretation of a criminal statute to a defendant whose conduct, at the time of the alleged offense, did not fall under the statute. State v. Alderette, 111 N.M. 297, 298, 804 P.2d 1116, 1117 (Ct.App.1990). In Alderette, we overruled a previous interpretation of NMSA 1978, Section 30-22-8 (1978), which criminalizes escapes from jail. The defendant in Alderette was in custody for civil contempt for failure to pay child support and was charged with escape after he failed to return to jail while on a work release. Ill N.M. at 298, 804 P.2d at 1117. At the time he escaped, the statute had been construed to apply only to individuals who had been committed to jail on a criminal conviction or charge. State v. Garcia, 98 N.M. 585, 588, 651 P.2d 120, 123 (Ct.App.1982) (interpreting Section 30-22-8 to require \u201ccommitment to jail under a criminal charge or sentence\u201d), overruled by Alderette, 111 N.M. at 298, 804 P.2d at 1117. In Alderette, we expressly overruled Garcia and held that Section 30-22-8 applies to individuals who have been committed to jail by lawful authority. Alderette, 111 N.M. at 299, 804 P.2d at 1118. We also held that retroactive application of our decision to the defendant would violate constitutional due process. Id. at 298, 804 P.2d at 1117. Relying on Bouie, we said, \u201c[B]y overruling [Garcia], we have created a new base of conduct falling within Section 30-22-8. Accordingly, the Due Process Clause prevents retroactive applications of this changed construction ... and that construction must be applied prospectively only.\u201d Alderette, 111 N.M. at 300, 804 P.2d at 1119.\n{17} The Supreme Court briefly addressed the issue in State v. Johnson, 2001-NMSC-001, 130 N.M. 6, 15 P.3d 1233. In a footnote within the opinion, the Court considered whether application of its new construction of a criminal statute to the defendant in that case would violate due process. The Supreme Court concluded that since its new interpretation of the statute was foreseeable, applying the newly constructed statute to the defendant did not violate due process. Id. \u00b6 14 n. 4.\n{18} Our task under Johnson and Alderette is to determine whether the new interpretation of Section 30-6A-3(D) by our Supreme Court in Myers II was foreseeable. If it was not, its retroactive application to Defendant violates his right to due process. For the following reasons, we hold that Section 30-6A-3(D) is unconstitutionally vague as applied to Defendant\u2019s conduct because Myers II involved an unforeseeable interpretation of the statute.\n{19} In Myers II the Supreme Court did not disagree with us that the elements of the crime as set forth in Rendleman were not proven by the State. Instead, the Supreme Court held that Rendleman itself was an incorrect interpretation of Section 30-6A-3(D). Myers II, 2009-NMSC-016, \u00b6\u00b6 18-21, 26, 27-32, 47, 146 N.M. 128, 207 P.3d 1105.\n{20} We point to only one reason why Myers II is an unforeseeable interpretation of Section 30-6A-3(D). The first statutory element of a prohibited sexual act is, as we have already stated, a \u201clewd and sexually explicit exhibition.\u201d Myers II concludes that because of their \u201cvoyeuristic quality\u201d, the photographs satisfy the \u201clewd\u201d requirement. Myers II, 2009-NMSC-016, \u00b6\u00b6 23 -24, 146 N.M. 128, 207 P.3d 1105. However, at the time of Defendant\u2019s acts in 2004, voyeurism was not a crime. Section 30-9-20 was not enacted until 2007, and in its entirety provides:\nA. Voyeurism consists of intentionally using the unaided eye to view or intentionally using an instrumentality to view, photograph, videotape, film, webcast or record the intimate areas of another person without the knowledge and consent of that person:\n(1) while the person is in the interior of a bedroom, bathroom, changing room, fitting room, dressing room or tanning booth or the interior of any other area in which the person has a reasonable expectation of privacy; or\n(2) under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.\nB. Whoever commits voyeurism is guilty of a misdemeanor, except if the victim is less than eighteen years of age, the offender is guilty of a fourth degree felony.\nC. As used in this section:\n(1) \u201cintimate areas\u201d means the primary genital area, groin, buttocks, anus or breasts or the undergarments that cover those areas; and\n(2) \u201cinstrumentality\u201d means a periscope, telescope, binoculars, camcorder, computer, motion picture camera, digital camera, telephone camera, photographic camera or electronic device of any type.\n{21} Myers II found the reasoning of People v. Sven, 365 Ill.App.3d 226, 302 Ill.Dec. 228, 848 N.E.2d 228, 239-40 (2006), to be persuasive in determining whether the photographs in this case satisfy the statutory \u201clewd\u201d requirement. In Sven, the appellate court of Illinois concluded that a videotape produced by the defendant, which depicted an unsuspecting teenage girl bathing naked in the bathtub, was lewd under Illinois\u2019 child pornography statute because \u201cthe tape places the viewer in the role of voyeur.\u201d 302 111. Dee. 228, 848 N.E.2d at 239. Our Supreme Court agreed with this statutory interpretation of a \u201clewd\u201d photograph, and concluded that because the photographs depicted the females unclothed from the waist down, either before or after they used the toilet, they are lewd:\nThe images therefore place the viewer in the position of a voyeur. This feeling of voyeurism is enhanced by the quality of the images, which are slightly unfocused and grainy, the perspective of the images, the victims are viewed from the floor adjacent to the toilet, and the shadows that border the images, which lend the sense that the viewer is peering at the female victims through a peep hole on the floor.\nMyers II, 2009-NMSC-016, \u00b6 23, 146 N.M. 128, 207 P.3d 1105.\n{22} Thus, not only did our Supreme Court adopt the reasoning in Sven, which was not decided until 2006, after Defendant\u2019s conduct in 2004, its decision in effect retroactively applied the voyeurism statute, adopted in 2007, to Defendant\u2019s 2004 conduct. The trial court could not have used this new legal test to determine whether the photographs were lewd because the test did not exist at the time of Defendant\u2019s trial. Aside from the difference in penalties (a fourth degree felony for voyeurism if the victim is less than eighteen years of age, and a second degree felony for child pornography), the Myers II test for determining what is \u201clewd\u201d under our child pornography statute was not foreseeable.\n{23} Therefore, retroactively applying Myers II to Defendant\u2019s conduct violates due process because it constitutes an unforeseeable judicial enlargement of the statute, which operates like an ex post facto law. Prior to Defendant\u2019s conduct, Rendleman was decided, and it determined what conduct would violate the statute. Defendant was then charged with violating the statute by committing acts proscribed by Rendleman, and the trial court, sitting as the finder of fact, applied Rendleman to determine if a crime occurred. On appeal, we then concluded that the essential elements of the criminal statute as construed by Rendleman were not proven. Myers II then overruled Rendleman in two material respects, thereby expanding the statutory reach of prohibited conduct to elements which did not exist in 2004, when Defendant committed his acts.\n{24} This is a classic detriment to Defendant\u2019s due process right of fair notice.\nIt is clear that the ex post facto prohibition in the federal constitution applies only to legislative acts and not to judicial decisions. At the same time, it is obvious that the rationale behind the ex post facto prohibition ... is relevant in the situation where a judicial decision is applied retroactively to the disadvantage of a defendant in a criminal case....\nPerhaps the easiest case is that in which a judicial decision subsequent to the defendant\u2019s conduct operates to his detriment by overruling a prior decision which, if applied to the defendant\u2019s case, would result in his acquittal.\n1 Wayne R. LaFave, Substantive Criminal Law \u00a7 2.4(c), at 162 (2d ed. 2003) (footnotes omitted). Under the circumstances of this case, we conclude that it is unreasonable to expect a person of ordinary intelligence to be on notice of what conduct was within the scope of Section 30-6A-3(D). Retroactively applying the new Myers II interpretation of the statute to Defendant\u2019s conduct therefore offends due process. Alderette, 111 N.M. at 300, 804 P.2d at 1119; see State v. Vance, 328 N.C. 613, 403 S.E.2d 495, 500-01 (1991) (abolishing the common law year-and-a-day rule for murder cases, but concluding that applying the new rule to the defendant\u2019s case would violate due process); Ex parte Alexander v. State, 475 So.2d 628, 629-30 (Ala.1985) (overruling existing precedent to construe an escape statute for the first time to include the defendant\u2019s conduct, but concluding that applying the new interpretation of the statute to the defendant\u2019s conduct would violate due process).\n{25} We hold that Section 30-6A-3(D) is void for vagueness as applied to Defendant.\nSTAY OF SORNA REGISTRATION PENDING APPEAL\n{26} The trial court stayed Defendant\u2019s mandatory registration as a sex offender pursuant to NMSA 1978, Section 29-11A-4 (2000), pending the outcome of this appeal. The State contends that the trial court had no authority to do so under the Sex Offender Registration and Notification Act, NMSA 1978, Sections 29-11A-1 to -10 (1995, as amended through 2005) (SORNA). The State further asserts it may raise the issue for the first time on appeal as a jurisdictional issue in its answer brief without preserving the issue in the trial court and without filing a cross appeal. Because the Supreme Court has directed us to address the question on the merits, we do not consider whether the State is correct in asserting it may raise this issue for the first time on appeal in its answer brief. See Vinton Eppsco Inc. of Albuquerque v. Showe Homes, Inc., 97 N.M. 225, 226, 638 P.2d 1070, 1071 (1981) (\u201c[T]he duty of a lower court on remand is to comply with the mandate of the appellate court, and to obey the directions therein without variation, even though the mandate may be erroneous.\u201d).\n{27} At the conclusion of Defendant\u2019s bench trial, the trial court filed its judgment and committed Defendant to the custody of the corrections department for a sixty-day diagnostic evaluation. The trial court specifically directed \u201cthat [Defendant be evaluated to assess whether or not [Defendant is a pedophile, and for his amenability to treatment and rehabilitation as a sex offender, as well as his risk of re-offending as a sex offender.\u201d The trial court then sentenced Defendant to a total prison term of eighteen years, and suspended fifteen years, for a total incarceration term of three years. Defendant was ordered to be on supervised probation for not less than five years and not more than twenty years following his incarceration with special conditions which included that Defendant register as a sex offender as required by SORNA, and that he participate in any recommended sexual offender treatment.\n{28} Defendant filed a notice of appeal and filed a motion requesting that conditions of release be set pending the appeal. The trial court set conditions of release pending appeal which included a one hundred thousand dollar ($100,000) bond, electronic monitoring, and continuing sex offender treatment. Defendant then sought an order specifying that his conditions of release pending appeal included a stay of his sex offender registration under SORNA. At the hearing, the trial court noted that the diagnostic evaluation concluded that Defendant is not a pedophile and that with appropriate treatment, Defendant\u2019s risk of reoffending is low. Further, the trial court was of the opinion that Defendant\u2019s appeal raised serious questions. Following the hearing, in addition to the conditions of release previously imposed, the trial court entered its order that Defendant was required to inform the sheriffs department of his current residence and work location, and update that information with any changes. However, the trial court order also directed that Defendant\u2019s obligation to register as a sex offender under SORNA was stayed pending the outcome of his appeal.\n{29} Section 29-llA-4(B) of SORNA directs in pertinent part, \u201cA sex offender ... shall register with the county sheriff no later than ten days after being released from the custody of the corrections department, a municipal or county jail or a federal, military or tribal correctional facility or detention center or being placed on probation or parole.\u201d The State argues that due to the mandatory language of the statute, the trial court has no authority to order a stay of its registration requirement pending the outcome of an appeal. However, because SORNA does not explicitly deprive a trial court of its discretion to stay the registration requirement pending appeal, and our rules and statutes otherwise vest such discretion in the trial court, we disagree.\n{30} Whether SORNA prohibits the trial court from staying sex offender registration pending appeal presents a question of law, which is subject to our review de novo. See State v. Rivera, 2004-NMSC-001, \u00b6 9, 134 N.M. 768, 82 P.3d 939 (stating that the interpretation of a statute is a matter of law which is subject to our de novo review).\n{31} The effect of allowing release pending appeal is to stay execution of the sentence, and a trial court is specifically granted authority to establish conditions of release pending appeal. Rule 5-402(C) NMRA provides:\nAfter imposition of a judgment and sentence, the court, upon motion of the defendant, may establish conditions of release pending appeal or a motion for new trial. The court may utilize the criteria listed in Paragraph B of Rule 5^401, and may also consider the fact of defendant\u2019s conviction and the length of sentence imposed. The defendant shall be detained unless the district court after a hearing determines that the defendant is not likely to flee and does not pose a danger to the safety of any other person or the community if released. In the event the court requires a bail bond in the same amount as that established for release pending trial, the bond previously furnished shall continue pending appeal or disposition of a motion for a new trial, unless the surety has been discharged by order of the court. Nothing in this rule shall be construed as prohibiting the judge from increasing the amount of bond on appeal.\nSee Rule 12-205(B) NMRA (providing that upon motion the trial court shall initially set conditions of release pending appeal); NMSA 1978, \u00a7 31-11-1(C) (1988) (providing that where a defendant is convicted of a noncapital offense other than a violent offense and is sentenced to a term of imprisonment not suspended in whole, he may be released pending appeal if the trial court finds by clear and convincing evidence that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released; and that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial).\n{32} Historically, our courts have been vested with discretion to grant a stay pending appeal under conditions they deem appropriate. See Rivera, 2004-NMSC-001, \u00b6 26, 134 N.M. 768, 82 P.3d 939 (stating that defendants are given a qualified opportunity for release pending appeal and that a defendant\u2019s sentence is stayed when conditions set by the trial court have been set and complied with); State v. Montoya, 116 N.M. 297, 307, 861 P.2d 978, 988 (Ct.App.1993) (stating that it is within the trial court\u2019s discretion to set conditions of release and amount of bail pending appeal); State v. Lucero, 81 N.M. 578, 579, 469 P.2d 727, 728 (Ct.App.1970) (stating that the determination of what bail is appropriate pending appeal is within the discretion of the trial court). See also State v. Valles, 2004-NMCA-l 18, \u00b6 13, 140 N.M. 458, 143 P.3d 496 (stating that a trial court has discretion to modify conditions of release after a defendant has been found guilty).\n{33} We therefore conclude that a trial court has discretion to stay SORNA registration pending an appeal. In this case, no argument has been made that the trial court abused its discretion, and under the circumstances, we do not perceive an abuse of discretion.\nCONCLUSION\n{34} For the above reasons we reverse Defendant\u2019s convictions.\n{35} 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.", "Caren I. Friedman, Edwards Law Firm, P.A., Marc W. Edwards, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2010-NMCA-007\n226 P.3d 673\nSTATE of New Mexico, Plaintiff-Appellee, v. Ronald MYERS, Defendant-Appellant. No. 26,837.\nCourt of Appeals of New Mexico.\nNov. 18, 2009.\nCertiorari Granted, No. 32,126, Jan. 12, 2010.\nGary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellant.\nCaren I. Friedman, Edwards Law Firm, P.A., Marc W. Edwards, Santa Fe, NM, for Appellee." }, "file_name": "0574-01", "first_page_order": 610, "last_page_order": 618 }