State v. Myers

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-016

Filing Date: April 7, 2009

Docket No. 30,993

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

RONALD MYERS,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Michael Eugene Vigil, District Court Judge

Gary K. King, Attorney General
Martha Anne Kelly, Assistant Attorney General
Santa Fe, NM

for Petitioner

Caren Ilene Friedman
Santa Fe, NM

Edwards Law Office
Marc Walker Edwards
Santa Fe, NM

for Respondent

OPINION

MAES, Justice.

{1} Ronald Myers (Defendant) was convicted of seven counts of sexual exploitation of
children, contrary to NMSA 1978, Section 30-6A-3(D) (2001), for covertly videotaping
minor female victims using the bathroom. The Court of Appeals reversed Defendant’s
convictions, concluding that the images were neither “lewd” nor “sexually explicit,” and

1
were not manufactured “for the purpose of sexual stimulation” under State v. Rendleman,
2003-NMCA-150, 134 N.M. 744, 82 P.3d 554. State v. Myers, 2008-NMCA-047, ¶¶ 17-19,
143 N.M. 710, 181 P.3d 702. We reverse the judgment of the Court of Appeals and remand
the case to that Court for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

{2} The trial court reasonably could have found the following facts. Sometime between
May and September, 2004, Defendant, an employee of the Department of Transportation,
set up a hidden video camera in a unisex bathroom adjacent to his office. The camera was
concealed beneath a radiator and positioned to capture the exposed pubic area of individuals
before and after they had used the toilet. The video camera was connected to a television
and videocassette recorder (TV/VCR), which was hidden behind a bookcase in Defendant’s
closet. Upon seeing a female enter the bathroom, Defendant would go to the closet, press
record on the TV/VCR, and videotape the female as she used the toilet. Defendant would
stop the videotape after the female had exited the bathroom.

{3} On September 15, 2004, the video camera was discovered and a criminal
investigation ensued. The police searched Defendant’s office and discovered the TV/VCR
hidden in the closet, a receipt for the video camera, videotapes containing images of the
unsuspecting female victims, and commercial pornographic videotapes and magazines. In
a subsequent voluntary statement to the police, Defendant admitted that he had videotaped
the female victims for the purpose of his own sexual gratification.

{4} The videotapes contained images of five different females using the bathroom on
various occasions. Three of the females were adults and two were minors. One of the
minors was a sixteen-year-old high school summer intern at the department, while the other
was the seventeen year-old daughter of Defendant’s co-worker. After viewing photographic
images extracted from the videotapes, and listening to the testimony of the investigating
officers, a grand jury indicted Defendant on nine counts of sexual exploitation of children
contrary to Section 30-6A-3(D). Counts I, II, III, IV, V, VIII and IX pertained to the
sixteen-year-old minor, whereas Counts VI and VII pertained to the seventeen-year-old
minor.

{5} Prior to trial, Defendant moved to dismiss the indictment, claiming that the
photographs do not depict a “prohibited sexual act” under NMSA 1978, Section 30-6A-2(A)
(1984, as amended through 2001). The trial court held a hearing on Defendant’s motion.
At the hearing, Defendant argued that dismissal was appropriate because the images do not
depict a “lewd and sexually explicit exhibition” as defined by Rendleman, 2003-NMCA-150,
¶ 44. The trial court denied Defendant’s motion, concluding that “some of these
photographs clearly fit the criteria set out in Rendleman. Some do not, and that’s where the
problem occurs.” The trial court therefore ordered the State “to tie up which exhibits go
with which count,” noting that there were seventeen photographic exhibits, but that
Defendant had been charged with only nine counts of sexual exploitation of children

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contrary to Section 30-6A-3(D). In response, the State filed a Notice of Images Supporting
Indictment (Notice of Images), indicating “the particular images which the State intends to
proffer in support of [each count of] the indictment.” The State also filed a nolle prosequi
with respect to Count VII of the indictment.

{6} Defendant filed a motion to dismiss or, in the alternative, a motion to quash the
indictment. Defendant claimed in relevant part that

the grand jury aid failed to properly present and create a record of what
image in an exhibit was found by the grand jury to be probable cause for the
individual counts. . . . This lack of connecting images with counts . . .
prevents the defendant from connecting images and dates of incident with
particular counts, thus prejudicing the defendant[’s] ability to [defend] each
count.

The trial court denied Defendant’s motion, noting that, under Rendleman, Defendant’s
remedy “is not a Motion to Dismiss; [it is] a Bill of Particulars asking the State to indicate
which exhibits go to which count.”

{7} During Defendant’s bench trial, the parties stipulated that the female victims depicted
in the photographic exhibits were minors at the time the images were taken. Following the
presentation of the State’s case-in-chief, the trial court directed a verdict in favor of
Defendant on Count IX of the indictment, concluding that the evidence was insufficient to
establish the identity of the victim because “there is no depiction of a face.” Defendant did
not present any evidence in his defense, and both Defendant and the State waived closing
arguments. Thereafter, the trial court found Defendant guilty of the remaining charges and
rendered judgment accordingly.

{8} The Court of Appeals reversed the judgment of the trial court and set aside
Defendant’s convictions. Myers, 2008-NMCA-047, ¶ 21. Preliminarily, the Court observed
that, “[i]t is impossible . . . to determine on this record which photographs were relied on to
prove each count of the indictment” because the State had failed to adduce any facts linking
the photographic exhibits to each of the counts charged. Id. ¶ 15. The Court observed that
“[o]n this basis alone, reversal of Defendant’s convictions is warranted.” Id. Nonetheless,
for the purpose of its analysis, the Court assumed that the “State’s ‘Notice’ describes the
photographs which the State relied on to prove each count.” Id.

{9} To determine whether the images were “lewd” and “sexually explicit” as defined by
Section 30-6A-2(A)(5), the Court considered the factors enumerated in United States v.
Dost, 636 F. Supp. 828 (S.D. Cal. 1986), which include whether

(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’s age; (4) the child is fully or partially clothed;

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 (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.

Myers, 2008-NMCA-047, ¶ 12 (quoting Rendleman, 2003-NMCA-150, ¶ 43). The Court
noted that, pursuant to Rendleman, “the photograph must contain a 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.” Myers, 2008-
NMCA-047, ¶ 12 (internal quotation marks and citation omitted). Applying the Dost factors
and the standards delineated in Rendleman, the Myers Court concluded that

the photographs are not “lewd” and “sexually explicit” 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.

Id. ¶ 17.

{10} The Court further concluded that the photographs were not manufactured “for the
purpose of sexual stimulation” as required by Section 3-6A-2(A)(5). Myers, 2008-NMCA-
047, ¶ 18 (internal quotation marks and citation omitted) The Court noted that

Rendleman requires that we apply an objective standard, by ignoring the
circumstances surrounding the taking of the photographs, and focusing on the
photographs themselves. 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 [o]nly if the
photo itself raises a question of illegal purpose (if a jury could find it
pornographic)[.] A “reasonable person” (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.

Id. Accordingly, the Court reversed the judgment of the district court and set aside
Defendant’s convictions. Id. ¶ 21.

{11} In light of its conclusion, the Court did not reach Defendant’s remaining claims that
the images were not “obscene” as defined by Section 30-6A-2(E), and that the Sexual

4
Exploitation of Children Act (Act), NMSA 1978, §§ 30-6A-1 to -4 (1984, as amended
through 2001), was void for vagueness as applied to Defendant’s conduct. Myers, 2008-
NMCA-047, ¶ 20. Likewise, the Court did not reach the State’s claim, raised for the first
time in its answer brief, that the trial court improperly had entered a stay of execution on the
portion of Defendant’s sentence that required him to register as a sex offender pursuant to
the Sex Offender Registration and Notification Act, NMSA 1978, §§ 29-11A-1 to -8 (1995,
as amended through 2003), pending the outcome of Defendant’s appeal. Id.

{12} We subsequently granted the State’s petition for writ of certiorari, which presented
the following questions for our review: (1) “Is the ‘hard-core child pornography’ standard
applied in this case either justified or appropriate when considering the elements of sexual
exploitation of children?”; (2) “Does the sexual exploitation of children statute require the
reviewing court to ignore the context of the material, even when it is undisputed, as in this
case, that it was made for a sexual purpose?”; and (3) “Did the Court of Appeals err in
determining that the convictions could be reversed for failure [of] the State to prove which
photograph related to which count of the indictment.” State v. Myers, 2008-NMCERT-4,
144 N.M. 48, 183 P.3d 933.

II. STANDARD OF REVIEW

{13} To the extent that the State’s claim implicates the proper construction of the Act, our
standard of review is de novo. See State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98
P. 3d 1022 (“We review questions of statutory interpretation de novo.”). To the extent that
the State’s claim implicates the sufficiency of the evidence, however,

[t]he reviewing court engages in a two-step process: First it reviews the
evidence [resolving all conflicts and indulging all permissible inferences]
with deference to the findings of the trial court; then it determines whether
the evidence, viewed in this manner, could justify a finding by any rational
trier of fact that each element of the crime charged has been established
beyond a reasonable doubt.

State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994).

{14} Defendant claims, however, that the trial court improperly denied his pre-trial motion
to dismiss and, therefore, the appropriate standard of review is de novo. We reject this claim
because “when a case proceeds to trial, error resulting from an improperly denied pretrial
motion is not reversible for the result becomes merged in the subsequent trial.” Capco
Acquisub, Inc. v. Greka Energy Corp., 2008 -NMCA- 153, ¶ 34, 145 N.M. 328, 198 P.3d
354, cert. denied, 2008-NMCERT-010, __ N.M. __, 201 P.3d 855 (internal quotation marks
and citation omitted). But see Chaara v. Lander, 2002-NMCA-053, ¶ 22, 132 N.M. 175, 45
P.3d 895 (noting that questions of law are not merged into the trier of fact’s verdict).
Accordingly, we review Defendant’s judgment of conviction, rather than the denial of his
pre-trial motion to dismiss.

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III. DISCUSSION

{15} Before addressing the merits of the State’s claims, we review the language, history,
and purpose of the Act. Section 30-6A-3(D) provides in relevant part, that “[i]t 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.” Section 30-6A-2(E) defines the term “obscene”
as “any material, when the content if taken as a whole: (1) appeals to a prurient interest in
sex, as determined by the average person applying contemporary community standards; (2)
portrays a prohibited sexual act in a patently offensive way; and (3) lacks serious literary,
artistic, political or scientific value.” Section 30-6A-2(A) defines the term “prohibited
sexual act” in relevant part as a “lewd and sexually explicit exhibition with a focus on the
genitals or pubic area of any person for the purpose of sexual stimulation.”

{16} In Rendleman, the Court of Appeals examined the historical context of the Act,
explaining that

New Mexico’s first law prohibiting the visual sexual exploitation of children
appeared as a category of child abuse in 1978 and simply banned the “lewd
exhibition of the genitals or pubic area.” 1978 N.M. Laws ch. 103, §
1(A)(3)(e). In 1984, two years after Ferber1 was decided, our legislature
made the sexual exploitation of children a separate crime and added the
purpose prong, censuring the “lewd exhibition of the genitals or pubic area
. . . for the purpose of sexual stimulation.” 1984 N.M. Laws ch. 92, §§ 1 and
(2)(A)(5) (emphasis added). The definition was further refined in 1993 to
read: “lewd and sexually explicit exhibition with a focus on the genitals or
pubic area . . . for the purpose of sexual stimulation. 1993 N.M. Laws ch.
116, § 1(A)(5) (emphasis added).

Rendleman, 2003-NMCA-150, ¶ 41 (footnote added).

{17} The purpose of the Act is to protect children from “the harm to the child that flows
from trespasses against the child’s dignity when treated as a sexual object.” Rendleman,
2003-NMCA-150, ¶ 48.

Human dignity is offended by the pornographer. American law does not
protect all human dignity; legally, an adult can consent to its diminishment.
When a child is made the target of the pornographer-photographer, the statute

1
See also New York v. Ferber, 458 U.S. 747, 764-65 (1982) (holding that sexually
explicit material involving children generally is not protected by the First Amendment of the
federal constitution and, therefore, the distribution, possession, and manufacture of such
material constitutionally may be criminalized even if the material is not “obscene” under
Miller v. California, 413 U.S. 15, 24 (1973)).

6
 will not suffer the insult to the human spirit, that the child should be treated
as a thing.

United States v. Wiegand, 812 F.2d 1239, 1245 (9th Cir. 1987) (examining 18 U.S.C. § 2251
(1978), which prohibits the sexual exploitation and other abuse of children). “Child
pornography is particularly harmful because the child’s actions are reduced to a recording
which could haunt the child in future years, especially in light of the mass distribution
system for child pornography.” People v. Lamborn, 708 N.E. 2d 350, 353 (1999)
(examining 720 ILCS 5/11-20.1(a)(1)(vii), (a)(6) (West 1996), which prohibits child
pornography).

A. Whether the evidence was sufficient to establish that the images depict a “lewd
and sexually explicit exhibition with a focus on the genitals” as defined by
Section 30-6A-2(E).

{18} The State first claims that the Court of Appeals improperly concluded that the
photographic images were neither lewd nor sexually explicit because they do not show “‘a
visible display or readily discernible depiction of a child engaged in sexually provocative
conduct.’” Myers, 2008-NMCA-047, ¶ 17 (quoting Rendleman, 2003-NMCA-150, ¶ 44).
Specifically, the State claims that the Court improperly applied the Dost factors and
improperly concluded that the Act only prohibits “hard-core child pornography.” We agree.

{19} A prohibited sexual act is composed of three essential elements: (1) a “lewd and
sexually explicit exhibition”; (2) “with a focus on the genitals or pubic area of any person”;
(3) “for the purpose of sexual stimulation.” Section 30-6A-2(A)(5). The first essential
element requires an exhibition that is both sexually explicit and lewd. In Rendleman, the
Court of Appeals adopted the dictionary definition of the term exhibition, defining it as

“showing, evincing, or showing off.” To “exhibit” is to “show or display .
. . outwardly esp[ecially] by visible signs or actions; . . . to have as a readily
discernible quality or feature; [or] . . . to represent or make clear by a
drawing, plan or other visual means.” Webster’s New Int’l Dictionary 796
(3d ed.1986).

Rendleman, 2003-NMCA-150, ¶ 44 (alterations in original). The term “explicit” is defined
as “[f]ully and clearly expressed; leaving nothing implied. . . . Describing or portraying
nudity or sexual activity in graphic detail.” The American Heritage Dictionary of the
English Language 626 (4th ed. 2000). A “sexually explicit exhibition” therefore is a clear,
graphic and unequivocal display or portrayal of nudity or sexual activity.

{20} To violate the Act, however, a sexually explicit exhibition must also be lewd. We
agree with the Court of Appeals that it is appropriate to look to the Dost factors for guidance
in determining whether a sexually explicit exhibition is lewd. See Myers, 2008-NMCA-047,
¶ 12; Rendleman, 2003-NMCA-150, ¶ 43. As previously explained, these factors include:

7
 1) whether the focal point of the visual depiction is on the child’s genitalia
or pubic area;
2) whether the setting of the visual depiction is sexually suggestive, i.e., in
a place or pose generally associated with sexual activity;
3) whether the child is depicted in an unnatural pose, or in inappropriate
attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness or a willingness to
engage in sexual activity;
6) whether the visual depiction is intended or designed to elicit a sexual
response in the viewer.

Dost, 636 F. Supp. at 832. “We emphasize, however, that these factors are neither
comprehensive nor necessarily applicable in every situation. Although Dost provides some
specific, workable criteria, there may be other factors that are equally if not more important
in determining whether a photograph contains a [lewd] exhibition. The inquiry will always
be case-specific.” United States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999).

{21} We take this opportunity to clarify the scope of the first and sixth Dost factors in
relation to the second and third essential elements of Section 30-6A-2(A)(5), which require
the challenged image: (2) to “focus on the genitals or pubic area”; (3) “for the purpose of
sexual stimulation.” Both the first Dost factor and the statute concentrate on whether the
image focuses on the genital or pubic area of the child and, therefore, we conclude that they
are duplicative of one another. Under both the first Dost factor and the statute, “[f]ocus can
be determined by photographic elements, such as design, composition, lighting, positioning,
attire, and setting.” Rendleman, 2003-NMCA-150, ¶ 45. However, the sixth Dost factor
focuses on whether the visual depiction was intended or designed to elicit a sexual response
in the viewer, whereas the statute focuses on whether the visual depiction was intended or
designed to elicit a sexual response in the defendant. Accordingly, the sixth Dost factor and
the statute require separate and distinct inquiries. The former requires the trier of fact to
examine whether the image depicts the child from a sexualized point of view; Rendleman,
2003-NMCA-150, ¶ 47; People v. Sven, 848 N.E. 2d 228, 233-39 (Ill. App. Ct. 2006),
whereas the latter requires the trier of fact to examine whether the defendant possessed,
distributed, or manufactured the challenged image for the purpose of his or her own sexual
stimulation. See discussion infra Part III.B.

{22} In determining whether the images are lewd, we find the reasoning of People v. Sven,
848 N.E. 2d at 239-40, to be persuasive. 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’ child pornography statute. The Court
reasoned that

Essentially, the tape places the viewer in the role of voyeur. There
is no narrative or plot. The images are not a scene connected to anything

8
 else. In watching the tape, the viewer stands in relation to the victim as
would a peeping tom. This point of view is reinforced by the fact that the
victim does not react to the camera whatsoever. Whether an image is candid
or posed has been deemed relevant in determining whether an image is lewd.
Generally, as suggested by the third [Dost] factor, certain poses would
support a finding that an image is lewd. However, where, as here, the viewer
is placed in the point of view of a voyeur, that the images are candid
contributes to their lewdness. Because the victim does not react, the image
creates a sense of covert observation that would not otherwise exist.

Voyeurism is sexually motivated conduct, and it is recognized as
deviant behavior. Thus, by placing the viewer in the role of voyeur, the
images become sexualized. Moreover, they are sexualized in a way
consistent with deviant behavior.

Id. at 239-40 (footnote and citations omitted).

{23} With these principles in mind, we examine the images at issue in this case to
determine whether they are lewd. Each of the photographs depict the female victims
unclothed from the waist down, either before or after they had used the toilet. In many of
the photographs, the victims’ pubic hair or naked buttocks are plainly visible. Indeed, the
victims’ unclothed pubic area appears prominently in the center of the photographs and,
consequently, is the focal point of the images. The victims, however, appear to be unaware
that they are being photographed as they engage in an intimate bodily function. The 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. Because the images had a voyeuristic and deviant quality
that rendered them sexual in nature, we conclude that the evidence was sufficient for the trial
court reasonably to find that the images were lewd.

{24} The Defendant claims, however, that the images are not lewd because “[t]here is
nothing sexually suggestive about a workplace bathroom” and “the pose and attire of the
[victims] are appropriate” to their activity. We emphasize that not all of the Dost factors
need be present in order for an image to be found lewd under the Act. Nonetheless, we
disagree with Defendant’s characterization of the manner in which the Dost factors apply
to the unique circumstances of this case. First, although a workplace bathroom is not
inherently sexually suggestive, the private nature of the setting, the intimate bodily function
in which the victims are engaged, and the voyeuristic quality of the images all combine to
transform this otherwise prosaic setting into a fetishistic and sexualized one.

{25} Second, although the victims’ state of undress is appropriate to the activity in which
they are engaged, i.e., using the toilet, the viewing and photographing of such excretory

9
activity, without the apparent knowledge or consent of the subject of the photograph, is
inappropriate. This is not a scenario in which proud parents have photographed their toddler
being potty trained. Rather, these images depict fully developed adolescent girls who appear
to have no idea that they are being photographed as they use the toilet. Given that it is
undisputed that these images lack any literary, artistic, political, or scientific value, it is
unclear what purpose, aside from a sexual one, these images possibly could serve.

{26} The Court of Appeals concluded, however, that the images were not lewd because
they were not “‘identifiable as hard-core child pornography.’” Myers, 2008-NMCA-047,
¶ 12 (quoting Rendleman, 2003-NMCA-150, ¶ 44). We disagree. The term “hard-core
pornography” typically is used in the context of adult pornography to refer to obscene
material that is unprotected by the First Amendment of the federal constitution. See Miller,
413 U.S. at 27. Thus, hard-core pornography is synonymous with obscene pornography.
See, e.g., Farrell v. Burke, 449 F.3d 470, 492 (2d Cir. 2006) (“[O]bscenity is defined as
pornography that is ‘hard core,’ i.e., a subset of the broader category of pornographic
materials.”). Although the United States Supreme Court has held that “the States are entitled
to greater leeway in the regulation of pornographic depictions of children,” Ferber, 458 U.S.
at 756, and, therefore, “[t]he [First Amendment] test for child pornography is separate from
the obscenity standard enunciated in Miller,” Ferber, 458 U.S. at 764, the Act expressly
incorporates the Miller obscenity standard. See Rendleman, 2003-NMCA-150, ¶ 52 (noting
that, in enacting Section 30-6A-2(E), the legislature “[adopted] the Miller criteria for
obscenity”); see also supra footnote 1. Accordingly, to the extent that the Act may be
construed to prohibit only hard-core child pornography, this prohibition derives, if at all,
from the statutory definition of the term obscene, rather than from the statutory definition
of the term lewd. We therefore address this issue below.

B. Whether an objective standard applies to the determination of whether the
images were manufactured “for the purpose of sexual stimulation” as defined
by Section 30-6A-2(A)(5).

{27} The State next claims that the Court of Appeals improperly concluded that the
images were not manufactured “for the purpose of sexual stimulation” as defined by Section
30-6A-2(A)(5). Specifically, the State claims that the Court of Appeals should have
considered extrinsic evidence, including Defendant’s admission that he had manufactured
the images for the purpose of his own sexual gratification and the circumstances under which
Defendant videotaped the unsuspecting minor female victims, in determining whether the
images had a sexual purpose. We agree.

{28} In Rendleman, the Court of Appeals observed that “[t]he most difficult element [of
Section 30-6A-2(A)(5)] to articulate is the sexual purpose prong.” Rendleman, 2003-
NMCA-150, ¶ 46.

Is this a subjective or objective standard, and should we [evaluate] the
response of an average viewer or the specific defendant in [the] case?

10
 Moreover, is the intent to elicit a sexual response analyzed from the
perspective of the photograph’s composition, or from extrinsic evidence
(such as where the photograph was obtained, who the photographer was,
etc.)?

Id. (alterations in original) (quoting Amirault, 173 F.3d at 34).

{29} The Rendleman Court noted that “[t]he premise behind an objective intent analysis
is that child pornography is not created and the Act is not violated simply because a person
derives sexual enjoyment from otherwise innocent photographs.” Id. ¶ 48. The Court
adopted the objective standard, concluding that “it is not a defendant’s private reaction that
transforms an innocent photo into a lewd exhibition, but rather the objectively ascertainable
effect on the viewer.” Id. Accordingly, “[o]nly 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.” Id. ¶ 49.

{30} Our review of the Act reveals, however, that innocent photographs are excluded from
its purview. As previously explained, Section 30-6A-2(A)(5) requires the challenged image
to depict a “lewd and sexually explicit exhibition with a focus on the genitals or pubic area”
of a child, and Section 30-6A-2(E) requires the image to be “obscene,” i.e., appeal to a
prurient interest in sex as determined by the average person applying contemporary
community standards, portray a prohibited sexual act in a patently offensive way, and lack
any serious literary, artistic, political, or scientific value. We cannot conceive of any
circumstances in which an obscene image that depicts a lewd and sexually explicit exhibition
with a focus on the genitals or pubic area of a child, properly can be characterized as an
innocent photograph. Because innocent photographs do not violate the Act, the objective
standard is unnecessary to prevent against their incidental criminalization.

{31} Moreover, we conclude that the objective standard is flawed because it improperly
views the challenged material from the perspective of an ordinary reasonable person, even
though an ordinary reasonable person is “not sexually stimulated by child pornography.”
Sven, 848 N.E.2d at 236 (rejecting objective standard). As the United States Supreme Court
observed in Mishkin v. State of New York, 383 U.S. 502 (1966), which rejected the objective
standard in the context of obscenity:

[A]ppellant’s sole contention regarding the nature of the material is that some
of the books involved in this prosecution . . . do not satisfy the
prurient-appeal requirement because they do not appeal to a prurient interest
of the ‘average person’ in sex, that ‘instead of stimulating the erotic, they
disgust and sicken.’ We reject this argument as being founded on an
unrealistic interpretation of the prurient-appeal requirement.

Where the material is designed for and primarily disseminated to a clearly
defined deviant sexual group, rather than the public at large, the prurient-

11
 appeal requirement of the Roth test is satisfied if the dominant theme of the
material taken as a whole appeals to the prurient interest in sex of members
of that group.

Id. at 508 (footnote omitted).

{32} We therefore reject the objective standard and adopt the subjective standard, which
examines the criminal defendant’s actual intent in distributing, possessing, or manufacturing
the images, as the proper standard by which to assess whether the challenged material fulfills
the “for the purpose of sexual stimulation” element of Section 30-6A-2(A)(5). In
determining the defendant’s intent, the trier of fact is not limited to the four corners of the
photographs but, rather, is permitted to consider extrinsic evidence of the defendant’s intent,
such as the circumstances under which the photographs were taken, the location where the
photographs were found, and the presence or absence of other pornographic materials. See,
e.g., People v. Batchelor, 800 P.2d 599, 605 (Colo. 1990) (examining circumstances
surrounding the production of certain photographs to determine whether they had been taken
for the purpose of defendant’s own sexual gratification); Shultz v. State, 811 P.2d 1322, 1332
(Okla. Crim. App. 1991) (en banc) (examining “evidence outside the pictures themselves”
to determine whether the defendant had possessed the pictures for the purpose of his own
sexual stimulation). Accordingly, we hereby overrule Rendleman to the extent that it held
that the “for purpose of sexual stimulation” prong of Section 30-6A-2(A)(5) (as opposed to
the sixth Dost factor) must be evaluated pursuant to an objective standard.

{33} Applying the subjective standard to the circumstances of the present case, we
conclude that the evidence amply supports the trial court’s factual finding that the images
were manufactured for the purpose of Defendant’s own sexual stimulation. Aside from the
graphic voyeuristic and fetishistic quality of the images themselves, see supra Part III.A,
Defendant admitted that he intentionally had set up the hidden video camera and videotaped
the unsuspecting female victims for the purpose of his own sexual stimulation. Additionally,
the videotapes were found hidden in Defendant’s office among commercial pornographic
videotapes and magazines, thus reinforcing their sexual purpose. The Court of Appeals
therefore improperly reversed the judgment of the district court and set aside Defendant’s
convictions.

C. Whether the evidence was sufficient to establish that the images are “obscene”
as defined by Section 30-6A-2(E).

{34} Defendant claims that the judgment of the Court of Appeals may be affirmed on the
alternate basis that the images are not obscene as defined by Section 30-6A-2(E). At the
outset, we note that Defendant does not claim that the images are protected by the First
Amendment of the federal constitution or Article II, Section 17 of the New Mexico
Constitution. Additionally, Defendant concedes that the images “lack[] serious literary,
artistic, political or scientific value” under Section 30-6A-2(E)(3). Defendant claims only
that the images do not violate the Act because they do not “appeal[] to a prurient interest in

12
sex, as determined by the average person applying contemporary community standards” and
do not “portray[] a prohibited sexual act in a patently offensive way.” Section 30-6A-
2(E)(1)-(2). We disagree.

{35} Whether challenged material appeals to a “prurient interest in sex” or is “patently
offensive” are essentially factual questions to be “determined by the average person applying
contemporary community standards.” Section 30-6A-2(E)(1)-(2); see also Miller, 413 U.S.
at 30 (concluding that “what appeals to the ‘prurient interest’ or is ‘patently offensive’ . . .
are essentially questions of fact”); City of Farmington v. Fawcett, 114 N.M. 537, 548, 843
P.2d 839, 850 (Ct. App. 1992) (“Obviously, the judge or jurors who live in the community
are better able to determine what the community can tolerate.”). “When triers of fact are
asked to decide whether ‘the average person, applying contemporary community standards’
would consider certain materials ‘prurient,’” they need not consider a uniform national
standard, but, rather, are permitted “to draw on the standards of their community, guided
always by limiting instructions on the law.” Miller, 413 U.S. at 30.

[T]he primary concern with requiring a jury to apply the standard of ‘the
average person, applying contemporary community standards’ is to be certain
that, so far as material is not aimed at a deviant group, it will be judged by
its impact on an average person, rather than a particularly susceptible or
sensitive person-or indeed a totally insensitive one.

Id. at 33.

{36} Defendant claims that, pursuant to Rendleman, the “New Mexico[] constitution
requires application of the Fawcett obscenity standard to the Act.” Id. ¶ 58. In Fawcett, the
Court of Appeals determined that the “‘contemporary community standard’ provided by
Miller” was inadequate to protect the free speech rights of New Mexico citizens under
Article II, Section 17 of the New Mexico constitution. Fawcett, 114 N.M. at 545, 843 P.2d
at 847. Specifically, the Court concluded that “[a]cceptance’ is really the lowest common
denominator, and may well limit dialogue on significant public issues beyond obscenity.”
Id. at 546, 843 P.2d at 848. Accordingly, “[r]ather than allowing the fact finder to determine
that material is an abuse of the grant of free speech under Article II, Section 17, based on the
‘acceptance’ of the community,” the Court concluded that the community must find the
material to be intolerable. Id.

{37} Defendant claims that, pursuant to Rendleman and Fawcett, the images in the present
case must be found to be intolerable “before they may be deemed as an ‘abuse’ of the right
to freely speak, write, and publish sentiments on all subjects.” Id. We need not decide
whether Article II, Section 17 of the New Mexico Constitution mandates application of the
community intolerance standard because, unlike the defendants in Rendleman and Fawcett,
Defendant does not claim a violation of his free speech rights under the New Mexico
Constitution. Rather, Defendant claims only that the images are not obscene as that term is
defined by the Act. Because the plain language of the Act requires application of the

13
contemporary community standard, rather than the community intolerance standard, we
conclude that the contemporary community standard is the appropriate standard by which
to determine whether the challenged material is obscene. See Rendleman, 2003-NMCA-150,
¶ 52 (noting that Section 30-6A-2(E) adopts “the Miller criteria for obscenity”).

{38} Although the Act expressly incorporates the contemporary community standard
delineated in Miller, the United States Supreme Court has held that the “States are entitled
to greater leeway in the regulation of pornographic depictions of children,” in relevant part
because the States have a compelling interest “in safeguarding the physical and
psychological well-being of a minor.” Ferber, 458 U.S. at 756 (internal quotation marks and
citation omitted). Given the State’s compelling interest, we are confident that the
contemporary community standard will “self-adjust to take the interests of children into
appropriate account. What the community finds tolerable for adults will be a far cry from
what it will tolerate when visual materials include children.” Rendleman, 2003-NMCA-150,
¶ 61.

{39} For this reason, although we agree with the Court of Appeals that the challenged
material must do more than “‘merely depict a naked child’” to run afoul of the contemporary
community standard, we disagree that it “must be identifiable as hard-core child
pornography.” Myers, 2008-NMCA-047, ¶ 12; quoting Rendleman, 2003-NMCA-150, ¶ 44.
The terminology “hard-core child pornography” is misleading because it denotes
“[e]xtremely graphic or explicit” child pornography. The American Heritage Dictionary at
799 (definition of “hard-core”). All child pornography, not just hard-core child pornography,
is unacceptable and intolerable to New Mexico citizens and, therefore, obscene under the
Act. See Rendleman, 2003-NMCA-150, ¶ 61 (“All right-thinking persons would agree that
the ‘sexual abuse of a child is a most serious crime and an act repugnant to the moral
instincts of a decent people.’”) (quoting Ashcroft v. Free Speech Coalition, 535 U.S. 234,
244 (2002)). Thus, child pornography is distinguishable from adult pornography, only a
subset of which is obscene under the Miller standard. Accordingly, to determine whether
the challenged material is obscene, the question is not, “Is this hard-core-child
pornography?”; rather, the question is, “Is this child pornography?” The obscenity standard
therefore defines what is, and what is not, child pornography under New Mexico law.

{40} Our review of the record reveals that substantial evidence exists to support the trial
court’s factual finding that the images in the present case appeal to a prurient interest in sex
and portray a prohibited sexual act in a patently offensive way. As explained in parts III.A
and B of this Opinion, the images depict a lewd and sexually explicit exhibition with a focus
on the unclothed pubic area of the minor female victims for the purpose of Defendant’s own
sexual stimulation. Given the graphic, deviant, and fetishistic quality of the images, we
conclude that the trial court reasonably could have found, beyond a reasonable doubt, that
the images are obscene as defined by Section 30-6A-2(E). See State v. Duran,
2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (“[W]e must view the evidence in the
light most favorable to the guilty verdict, indulging all reasonable inferences and resolving
all conflicts in the evidence in favor of the verdict.”) (internal quotation and citation marks

14
omitted). Accordingly, we reject Defendant’s claim that the judgment of the Court of
Appeals should be affirmed on this alternate basis.

D. Whether Defendant’s convictions must be reversed because the indictment fails
to specify which images provide the factual basis for each count.

{41} Lastly, the State claims that the Court of Appeals improperly concluded that reversal
of Defendant’s convictions was warranted because “[i]t is impossible . . . to determine on
this record which photographs were relied on to prove each count of the indictment.” Myers,
2008-NMCA-047, ¶ 15. Specifically, the State claims that Defendant was not prejudiced by
the alleged defect in the indictment because its Notice of Images, which was filed
approximately three months prior to trial, notified Defendant of the images that provided the
factual basis for each of the nine counts of sexual exploitation of children charged. We
agree.

{42} Rule 5-204(A) NMRA provides in relevant part:

A complaint, indictment or information shall not be deemed invalid, nor shall
the trial, judgment or other proceedings thereon be stayed, arrested or in any
manner affected, because of any defect, error, omission, imperfection or
repugnancy therein which does not prejudice the substantial rights of the
defendant upon the merits.

See also Rule 5-204(D) (“No appeal, or motion made after verdict, based on any such defect,
error, omission, repugnancy, imperfection, variance or failure to prove surplusage shall be
sustained unless it is affirmatively shown that the defendant was in fact prejudiced in the
defendant’s defense on the merits.”). The Committee commentary accompanying the Rule
explains that “[t]his rule was designed to make clear that criminal pleadings should not be
held invalid for any technical defect, error, or omission.” Rule 5-204 Committee
commentary.

{43} The purpose of a criminal information or indictment

is to furnish the accused with such a description of the charge against him as
will enable him to make a defense and to make his conviction or acquittal res
judicata against a subsequent prosecution for the same offense, and to give
the court reasonable information as to the nature and character of the crime
charged.

State v. Lott, 73 N.M. 280, 284, 387 P.2d 855, 858 (1963). Thus, a variance between the
crime charged and the offense for which the defendant is convicted “will not be deemed to
be fatal unless the defendant could not reasonably have anticipated from the indictment what
the nature of the proof against him would be.” State v. Ross, 100 N.M. 48, 52, 665 P.2d 310,
314 (Ct. App. 1983). Additionally, “[t]he mere assertion of prejudice, without more, is

15
insufficient to establish prejudicial error warranting reversal of a conviction.” State v.
Marquez, 1998-NMCA-010, ¶ 20, 124 N.M. 409, 951 P.2d 1070 (internal quotation marks
and citation omitted).

{44} We conclude that the State’s Notice of Images provided Defendant with sufficient
notice of the images that provided the factual basis for each count of sexual exploitation of
children with which he was charged. Because Defendant reasonably could anticipate the
evidence to be produced against him, his ability to prepare his defense was not prejudiced.
Accordingly, reversal of Defendant’s convictions on this basis is not warranted.

{45} Defendant claims, however, that pursuant to State v. Foster, 87 N.M. 155, 530 P.2d
949 (Ct. App. 1974), his convictions must be reversed. In Foster, the defendant was
charged, inter alia, with one count of sodomy in violation of NMSA 1953, Section 40A-9-6
(1972). The charging document failed to specify the precise date on which the alleged act
of sodomy had occurred. Foster, 87 N.M. at 157, 530 P.2d at 951. At the defendant’s trial,
the evidence revealed that the victim had been sodomized by the defendant on three separate
occasions, the third of which had been witnessed by the victim’s guardian. Id. Because the
defendant did not know with which of the three acts he had been charged, the Court of
Appeals concluded that the defendant’s ability to prepare his defense had been prejudiced,
noting that

[i]f it was the first or second act for which the defendant was tried, then [the
victim’s] guardian would not have been competent to testify with reference
to it since it was only the third act he witnessed. In addition, evidence of the
other acts may have been inadmissible under Rules of Evidence 404, §
20-4-404, N.M.S.A. 1953 (Repl. Vol. 4, 1970, Supp. 1973), if it was only the
third act for which defendant was on trial. Defendant still does not know for
which act he was convicted.

Id. at 157-58, 530 P.2d at 951-52.

{46} We conclude that Foster is distinguishable from the present case. Unlike the
defendant in Foster, Defendant in the present case knew prior to trial what conduct provided
the factual basis for each of the counts with which he was charged. Additionally, Defendant
fails to specify, and we fail to perceive, how Defendant would have conducted his defense
differently if the indictment, rather than the State’s Notice of Images, had detailed this
information. Accordingly, Defendant’s reliance on Foster is misplaced
.
IV. CONCLUSION

{47} We conclude that substantial evidence exists to support the trial court’s factual
findings that the images manufactured by Defendant depicted a “prohibited sexual act” as
defined by Section 30-6A-2(A)(5), and are “obscene” as defined by Section 30-6A-2(E).
We further conclude that Defendant had sufficient notice of the particular images that

16
provided the factual basis for each count of sexual exploitation of children with which he
was charged. Accordingly, we reverse the judgment of the Court of Appeals and remand the
case to that Court with instruction to consider the parties’ remaining claims, namely, whether
the Act is void for vagueness as applied to Defendant’s conduct and 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.

{48} IT IS SO ORDERED.

PETRA JIMENEZ MAES, Justice

WE CONCUR:

EDWARD L. CHÁVEZ, Chief Justice

PATRICIO M. SERNA, Justice

RICHARD C. BOSSON, Justice

CHARLES W. DANIELS, Justice

Topic Index for State v. Myers, No. 30,993

CA CRIMINAL PROCEDURE
CA-SE Substantial or Sufficient Evidence

CL CRIMINAL LAW
CL-EL Elements of Offense
CL-SE Sexual Exploitation of Children

ST STATUTES
ST-IP Interpretation

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