1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:______________

3 Filing Date: June 2, 2016

4 NO. S-1-SC-35255

5 STATE OF NEW MEXICO,

6 Plaintiff-Petitioner,

7 v.

8 ROBERT GEORGE TUFTS,

9 Defendant-Respondent.

10 ORIGINAL PROCEEDING ON CERTIORARI

11 Marci Beyer, District Judge

12 Hector H. Balderas, Attorney General

13 Kenneth H. Stalter, Assistant Attorney General

14 Santa Fe, NM

15 for Petitioner

16 Bennett J. Baur, Chief Public Defender

17 Kimberly Chavez Cook, Assistant Appellate Defender

18 Santa Fe, NM

19 for Respondent
1 OPINION

2 CHÁVEZ, Justice.

3 {1} Defendant Robert Tufts, a male in his late thirties, filmed himself masturbating,

4 saved the electronic image on a secure digital (SD) memory card, inserted the card

5 into a cell phone, handed the cell phone to a fifteen-year-old girl (Child) with whom

6 he had developed an intimate but non-sexual relationship, and told her there was a

7 surprise on the phone for her. Defendant was convicted of criminal sexual

8 communication with a child in violation of NMSA 1978, Section 30-37-3.3 (2007).

9 The Court of Appeals reversed the conviction, holding that “ ‘to send[,]’ when used

10 to describe the act of causing another person to receive a physical object[,] evokes the

11 notion of a third-party carrier,” and therefore, when Defendant hand-delivered

12 obscene electronic images to Child, he did not “send” the images to her by means of

13 an electronic communication device. State v. Tufts, 2015-NMCA-075, ¶¶ 15, 18, 355

14 P.3d 32, cert. granted, 2015-NMCERT-006. For the reasons that follow, we reverse

15 the Court of Appeals and remand this case to that Court for resolution of Defendant’s

16 remaining claims.

17 DISCUSSION

18 {2} Section 30-37-3.3(A) defines the crime of criminal sexual communication with

19 a child as follows:
2

1 Criminal sexual communication with a child consists of a person

2 knowingly and intentionally communicating directly with a specific

3 child under sixteen years of age by sending the child obscene images of

4 the person’s intimate parts by means of an electronic communication

5 device when the perpetrator is at least four years older than the child.

6 An “ ‘electronic communication device’ means a computer, video recorder, digital

7 camera, fax machine, telephone, pager or any other device that can produce an

8 electronically generated image[.]” Section 30-37-3.3(C)(1). Defendant only argues

9 that his conduct of placing an SD memory card in a cell phone and handing that

10 phone to Child cannot constitute “sending” under Section 30-37-3.3.

11 {3} This case presents a purely legal issue of statutory interpretation which we

12 review de novo. State v. Office of the Pub. Def. ex rel. Muqqddin, 2012-NMSC-029,

13 ¶ 13, 285 P.3d 622. “Our principal goal in interpreting statutesis to give effect to the

14 Legislature’s intent.” Griego v. Oliver, 2014-NMSC-003, ¶ 20, 316 P.3d 865; see

15 also NMSA 1978, § 12-2A-18(A)(1) (1997) (holding that if possible, we will

16 construe a statute or rule to “give effect to its objective and purpose”). Rules of

17 statutory construction are provided by both the Legislature in the Uniform Statute and

18 Rule Construction Act, see NMSA 1978, §§ 12-2A-1 to -20 (1997), and by New

19 Mexico case law.

20 {4} We must construe “sending” as it is used in Section 30-37-3.3(A) to give effect
3

1 to the Legislature’s objective and purpose. See State v. Ogden, 1994-NMSC-029, ¶

2 34, 118 N.M. 234, 880 P.2d 845 (“A criminal statute must be interpreted in light of

3 the harm or evil it seeks to prevent.”). We will first turn to the plain language of

4 Section 30-37-3.3(A) to guide our interpretation. See § 12-2A-19. To be convicted

5 of violating Section 30-37-3.3(A), a defendant must knowingly and intentionally

6 communicate directly with a specific child by “sending the child obscene images of

7 [the defendant’s] intimate parts by means of an electronic communication device

8 . . . .” We attribute the usual and ordinary meaning to words used in a statute. State

9 v. Melton, 1984-NMCA-115, ¶ 16, 102 N.M. 120, 692 P.2d 45. We often use

10 dictionaries for guidance as to the usual and ordinary meaning of words. See State

11 v. Nick R., 2009-NMSC-050, ¶ 18, 147 N.M. 182, 218 P.3d 868. We agree with the

12 Court of Appeals’ use of the online Oxford Dictionaries to ascertain the ordinary

13 meaning of “send” as to “ ‘[c]ause to go or be taken to a particular destination;

14 arrange for the delivery of, especially by mail[,]’ and secondarily, as ‘[c]ause (a

15 message or computer file) to be transmitted electronically[.]’ ” Tufts, 2015-NMCA16 075, ¶ 15 (alterations in original) (quoting Oxford Dictionaries,

17 http://www.oxforddictionaries.com/us/definition/american_ english/send (last visited

18 May 13, 2016)). However, we disagree with the Court of Appeals’ conclusion that
4

1 “ ‘to send’ ” requires transmitting an object to another by means of a third-party

2 carrier. Tufts, 2015-NMCA-075, ¶ 15.

3 {5} Communicating directly with a child bymeans of an electronic communication

4 device may occur through a third-party carrier such as social media, internet forums

5 and message boards, online file-sharing services, text message, or email. However,

6 it may also occur by delivering the electronic communication device containing the

7 obscene images of the defendant directly to the child. It does not matter whether the

8 delivery was by the defendant or a third-party carrier; someone had to cause the

9 electronic images to go or be taken to a particular destination—in this case, that

10 someone was Defendant, and the destination was Child. The history and purpose of

11 the statute support this interpretation.

12 {6} The New Mexico Legislature enacted Section 30-37-3.3 in 2007. However,

13 this was not its first legislative effort to enact a law that criminalizes sexual

14 communication with a child. In 1998, the Legislature enacted a law intended to

15 protect minors from sexual communication and images in the digital age by

16 prohibiting dissemination of harmful materials via computer. See 1998 N.M. Laws,

17 ch. 64, § 1 (codified as NMSA 1978, Section 30-37-3.2). The 1998 version of

18 Section 30-37-3.2(A) prohibited a person, through
5

1 the use of a computer communications system that allows the input,

2 output, examination or transfer of computer data or computer programs

3 from one computer to another, to knowingly and intentionally initiate or

4 engage in communication with a [child] when such communication in

5 whole or in part depicts actual or simulated nudity, sexual intercourse

6 or any other sexual conduct.

7 1998 N.M. Laws, ch. 64, § 1. Notably, with its specific reference to a “computer

8 communications system,” this crime prohibited “sending” images in the narrow sense

9 of electronic transmission. Shortly thereafter, the Tenth Circuit Court of Appeals

10 affirmed an injunction barring enforcement of Section 30-37-3.2(A) on the grounds

11 that it unconstitutionally violated First Amendment rights to free speech by burdening

12 otherwise protected adult communications on the Internet. See Am. Civil Liberties

13 Union v. Johnson, 194 F.3d 1149, 1160, 1164 (10th Cir. 1999) (ACLU). The court

14 concluded that the statute was over broad because it could potentially be applied to

15 all communications on the Internet since (1) it only required a general knowledge that

16 children might view the material, and (2) it could not be read to prohibit conduct

17 targeting a specific child. Id. at 1159. The Legislature subsequently eliminated this

18 crime through a 2005 amendment to the statute. 2005 N.M. Laws, ch. 295, § 1.

19 {7} In 2007, the Legislature added Section 30-37-3.3 to the Act, which defined

20 criminal sexual communication with a child. 2007 N.M. Laws, ch. 67, § 1. We

21 presume that “the legislature acted with full knowledge of relevant statutory and
6

1 common law.” State ex rel. Quintana v. Schnedar, 1993-NMSC-033, ¶ 4, 115 N.M.

2 573, 855 P.2d 562. Therefore, we assume that the Legislature drafted the language

3 of Section 30-37-3.3(A) with the constitutional holding by ACLU in mind.

4 Consequently, Section 30-37-3.3(A) requires a person to “knowingly and intelligently

5 communicat[e] directly with a specific child . . . .” (Emphasis added.) In contrast to

6 the 1998 version of Section 30-37-3.2, Section 30-37-3.3(A)’s additional focus on

7 direct communication targeting a specific child could seemingly be achieved through

8 an electronic transmission or by directly handing the child an electronic

9 communication device containing forbidden material. This statutory history provides

10 us with important context as to themeaning of “sending” in Section 30-37-3.3(A), but

11 we also look to the purpose of the statute for further guidance. See State v. Cleve,

12 1999-NMSC-017, ¶ 8, 127 N.M. 240, 980 P.2d 23.

13 {8} The elements of the offense of criminal sexual communication with a child

14 reveal the purpose of Section 30-37-3.3(A), which isto protect children under sixteen

15 from being targeted by an adult and provided with obscene images of the adult’s

16 intimate parts on a device that can produce,store, or distribute the electronic images.

17 The Legislature enacted Article 37 of the Criminal Code, “Sexually Oriented Material

18 Harmful to Minors,” because “children do not have the judgment necessary to protect
7

1 themselves from harm . . . .” NMSA 1978, § 30-37-9 (1983). The harm targeted by

2 Section 30-37-3.3(A) consists of an adult attempting to pique a specific child’s

3 prurient interest in the adult by directly communicating to the child obscene

4 electronic images of the adult. See NMSA 1978, § 30-37-1(C), (F)(1) (1973)

5 (defining what sexually oriented material is harmful to minors as including an act of

6 “masturbation” that “predominantly appeals to the prurient . . . interest” of a minor).

7 Whether a digital camera, a video recorder, or a cell phone is handed directly to a

8 child or an image is electronically transmitted to one of those devices, the effect of

9 the conduct and the resulting harm to the child—access to obscene electronically

10 generated images via an electronic communication device—is the same. Cf. Ogden,

11 1994-NMSC-029, ¶ 34 (discussing the purpose of a statute meant to deter killings of

12 law enforcement officers and applying the statute to the killing of Community Service

13 Officers in order to ensure that the evil the statute was enacted to deter was deterred).

14 We cannot confine the definition of “sending” to encompass only electronic

15 transmissions because doing so would frustrate the purpose of the legislation.

16 {9} In this case, Defendant gave Child at least two cell phones overseveral months,

17 which they used to text or talk to each other on a daily basis. As their non-sexual

18 relationship progressed, Defendant recorded himself nude and masturbating, saved
8

1 the files to an SD memory card, and placed the SD card in a cell phone which he

2 handed to Child, exclaiming that there was a surprise for her on the phone. The

3 communication could not have been more direct, and it was achieved through a

4 telephone or a device capable of “produc[ing] an electronically generated image[,]”

5 which was specifically defined by the Legislature as an “ ‘electronic communication

6 device.’ ” Section 30-37-3.3(C)(1). Defendant handed the cell phone with the

7 memory card that he inserted into the phone to Child, and it was with that cell phone

8 that Child produced the obscene electronically generated image of Defendant which

9 he intended Child to view. Defendant’s argument that he is not guilty of violating

10 Section 30-37-3.3(A) because he did not transmit the obscene electronic image to

11 Child through a third-party carrier is without merit. 

12 CONCLUSION

13 {10} We reverse the Court of Appeals’ determination that Defendant did not “send”

14 the pictures of himself under Section 30-37-3.3(A) and remand the case to the Court

15 of Appeals for consideration of his other claims.

16 {11} IT IS SO ORDERED.

17 ______________________________

18 EDWARD L. CHÁVEZ, Justice
9

1 WE CONCUR:

2 ___________________________________

3 CHARLES W. DANIELS, Chief Justice

4 ___________________________________

5 PETRA JIMENEZ MAES, Justice

6 ___________________________________

7 BARBARA J. VIGIL, Justice

8 ___________________________________

9 JUDITH K. NAKAMURA, Justice