State v. Coble

DAVIS, Presiding Judge

(dissenting):

¶ 14 I have no argument with the majority’s reasoning regarding the district court’s analysis of the Shondel doctrine or the effect of State v. South, 924 P.2d 354 (Utah 1996), on our ability to reach the merits of Coble’s argument that the live web camera images are not “material” under the statute, see Utah Code Ann. § 76-10-1204 (Supp.2009), based on Coble’s failure to file a cross-appeal.1 Notwithstanding, I respectfully dis*543sent because this court “ ‘has inherent authority to consider issues which the parties have not raised if doing so is necessary to a proper decision.’ ” Kaiserman Assocs., Inc. v. Francis Town, 977 P.2d 462, 464 (Utah 1998) (quoting Falk v. Keene Corp., 113 Wash.2d 645, 782 P.2d 974, 982 (1989)); cf. Hall v. American Nat’l Plastics Inc., 73 Wash.2d 203, 437 P.2d 693, 694 (1968) (“It may be urged that we have disposed of the appeal on points and issues not raised by either party and that this has deprived the appellant of his rights on appeal. But courts of review are not obliged to decide all issues raised by the parties, but only those which are determinative. Courts frequently decide crucial issues which the parties themselves fail to present.” (emphasis added)). Indeed, “an overlooked or abandoned argument should not compel an erroneous result. We should not be forced to ignore the law just because the parties have not ... pursued obvious arguments.” Kaiserman, 977 P.2d at 464. In this case, not only was the issue preserved below, but it was also argued on appeal; Coble’s only error was that he failed to file a cross-appeal.

¶ 15 Moreover, “[t]he fundamental purpose served by the preliminary examination is the ferreting out of groundless and improvident prosecutions,” State v. Virgin, 2006 UT 29, ¶ 20, 137 P.3d 787 (internal quotation marks omitted), thus “protecting the accused from the degradation and expense of a wrongful trial,” State v. Rogers, 2006 UT 85, ¶ 8, 151 P.3d 171. Our reversal of the district court’s decision to bind Coble over on the lesser included offense of misdemeanor lewdness results in Coble now being bound over to stand trial on a felony charge of distributing pornographic material. In light of the primary purpose of a preliminary hearing, that is, permitting Coble to avoid trial if the State does not have enough evidence as to each of the elements of the alleged crime, this court has both the authority and the affirmative duty to get the law “right,” see Kaiserman, 977 P.2d at 464, even if the parties have gotten it wrong. This is especially true where the district court, in my view, erroneously concluded, as a matter of law, that the live web camera image constituted “material” for the purposes of the distributing pornographic material statute, see Utah Code Ann. § 76-10-1204 (Supp.2009). Accordingly, I would address the merits of the district court’s erroneous legal conclusion even though Coble did not properly pursue the argument through a cross-appeal.

¶ 16 Coble was charged with distributing pornographic material under Utah Code section 76-10-1204 when he transmitted to another individual in a private chat room on the internet a live web camera image of himself masturbating. The relevant portions of section 76-10-1204 provide as follows:

(1) A person is guilty of distributing pornographic material when the person knowingly:
[[Image here]]
(c) distributes or offers to distribute, or exhibits or offers to exhibit, any pornographic material to others; [or]
[[Image here]]
(f) presents or directs a pornographic performance in any public place or any place exposed to public view or participates in that portion of the performance which makes it pornographic[2]

Id. § 76-10-1204(1).

“Material” means anything printed or written or any picture, drawing, photograph, motion picture, or pictorial representation, or any statue or other figure, or any recording or transcription, or any mechanical, chemical, or electrical reproduction, or anything which is or may be used as a *544means of communication. Material includes undeveloped photographs, molds, printing plates, and other latent representational objects.

Id. § 76-10-1201(7) (2008). And pursuant to Utah Code section 76-10-1203, material is “pornographic” if

(a) The average person, applying contemporary community standards, finds that, taken as a whole, it appeals to prurient interest in sex;
(b) It is patently offensive in the description or depiction of nudity, sexual conduct, sexual excitement, sado-masochistic abuse, or excretion; and
(c) Taken as a whole it does not have serious literary, artistic, political or scientific value.

Id. § 76-10-1203(1). Thus, to be properly charged with distributing pornographic material, there must be evidence that Coble (1) knowingly, (2) distributed or exhibited, (3) to others, (4) material, (5) that was pornographic. See id. § 76-10-1204(1).

¶ 17 As to the fourth element, the district court concluded that “[a] web camera’s capture of a person masturbating comes within the definition of ‘material’ for purposes of Utah Code [section] 76-10-1201(7).”3 I disagree. When interpreting a statute, we look first to the statute’s plain language. See State v. Jeffries, 2009 UT 57, ¶ 17, 217 P.3d 265. In doing so, “[w]e read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” Miller v. Weaver, 2003 UT 12, ¶ 12, 66 P.3d 592. According to the plain language of the statute, material includes only those items that are tangible, concrete, and can occupy a physical space. See Utah Code Ann. § 76-10-1201(7) (defining material to include such items as “picture[s], drawing[s], [and] photograph[s], as well as undeveloped photographs, molds, printing plates, and other latent representational objects ” (emphasis added)). A live web camera image is not tangible, nor does it occupy a concrete physical space; in fact, there is no evidence presented by the parties that a live web camera image transferred from one computer to another is stored on the computer’s hard drive or is otherwise retrievable. Moreover, if a live web camera image qualifies as material under the statute, then the subsection prohibiting pornographic performances, see id. § 76-10-1204(1) (“A person is guilty of distributing pornographic material when the person ... (f) presents ... a pornographic performance in any public place”), is superfluous because the definition of material would include the live performances outlined in that subsection. See generally Carter v. University of Utah Med. Ctr., 2006 UT 78, ¶ 9, 150 P.3d 467 (“Determining the legislature’s intent requires that we seek to render all parts [of the statute] relevant and meaningful, and we accordingly avoid interpretations that will render portions of a statute superfluous or inoperative.” (alteration in original) (internal quotation marks omitted)).

¶ 18 Finally, in the context of the plain language of the statute describing tangible items, the catchall phrase defining material as “anything which is or may be used as a means of communication,” see Utah Code Ann. § 76-10-1201(7), is ambiguous. Indeed, while one can envision how a person could distribute a pornographic picture, drawing, photograph, motion picture, etc., it is unclear how a person could distribute a pornographic “means of communication.”4 *545Because the statutory language is ambiguous, we employ secondary principles of interpretation to guide our analysis. See State v. Ireland, 2006 UT 17, ¶ 11, 133 P.3d 396 (“Only if we find the statutory language to be ambiguous may we turn to secondary principles of statutory construction[.]”). Specifically,

the ejusdem generis canon of statutory construction ... provides that when a statute contains a list of specific words that relate to a certain type of item and those words are followed by a general word, the general word should be construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.

Id. ¶ 13 (internal quotation marks omitted). Applying this principle, the phrase “anything which is or may be used as a means of communication,” see Utah Code Ann. § 76-10-1201(7), appears to be a catchall provision designed to cover other types of rapidly developing technology, not yet existing at the time of the drafting of the statute, that can be used for storing or reproducing5 pornographic material.

¶ 19 In light of the foregoing principles of statutory interpretation, I would conclude that a live web camera image does not constitute material for the purposes of the distributing pornographic material statute. I would also conclude that because Coble did not distribute or exhibit any material, the State improperly charged him with violating that provision.

The obligation of this Court runs to the parties, not the attorneys. If the attorneys have failed to argue an issue precisely as it might best be framed, it is for an appellate court, nevertheless, to decide the issue correctly: “We should not be forced to ignore the law just because the parties have not raised or pursued obvious arguments.”

Utah Home Fire Ins. Co. v. Manning, 1999 UT 77, ¶ 46, 985 P.2d 243 (Stewart, J., dissenting) (quoting Kaiserman Assocs., Inc. v. Francis Town, 977 P.2d 462, 464 (Utah 1998)). Because I would conclude that the original felony charge was improper, I would also conclude that the lesser included charge of misdemeanor lewdness does not apply to Coble. Accordingly, I would reverse the district court’s decision binding Coble over on the lesser included offense of misdemeanor lewdness and order dismissal of the original felony distribution of pornography charge.

. The majority also cites Stale v. Robison, 2006 UT 65, 147 P.3d 448, for the proposition "that it is not appropriate for this court to reverse a trial court's decision on alternative grounds, i.e., grounds other than those raised by an appealing party.” Supra, ¶ 11 n. 1. While this general concept is true, Robison is less than helpful here because it was specifically decided on the basis that the appellant had failed to raise the issue on appeal and that the court of appeals had, on its own initiative, "revers[ed] the district court by invoking new law based on a theory that ha[d] not been raised by the parties,” Robison, 2006 UT 65, ¶ 18, 147 P.3d 448, and was thus "never subjected to the rigors of the adversarial process,” id. ¶ 16. In this case, there is no question that Coble preserved his argument before the district court and also raised and argued it on appeal. Indeed, prior to the district court ruling on whether to bind Coble over as charged, Coble submitted a memorandum arguing, among other things, that the live web camera images are not "material” as defined by Utah Code section 76-10-1201, see Utah Code Ann. § 76-10-1201(7) (2008). Moreover, Coble raised and briefed the same argument on appeal, and the State provid*543ed four pages of analysis in response to Coble’s argument.

. The charging document does not specify which subsection of the statute applies to Coble. We note, however, that at oral argument on the motions before the district court, the State explained that "under the State’s theory we've got two possible subsections of [section 76-10-1204] that could — that apply. One is subsection (c).... Second, [subsection] (f) ... also applies.” On the other hand, Coble argued at oral argument on the motions before the district court that "subsection (f) cannot apply to this case” because "this did not occur in a public place,” and also asserts on appeal that "[t]he only part of [section] 76-10-1204 that has possible application ... is subsection (c).”

. Only the fourth element is relevant to the analysis. The first element is not in dispute. Regarding the second element — distribution or exhibition — the State does not specify whether Coble’s alleged conduct satisfies the definition of distribution or exhibition for the purposes of the statute. And while Coble argues that his conduct did not constitute distribution, he essentially argues in his brief that "Coble allegedly did exhibit himself masturbating.” As to the third element, it is undisputed that the live webcast was directed at another person, that is, the undercover police officer. Finally, as to the fifth element, although the parties dispute whether the act of masturbation is pornographic — or merely lewd — in this context, they do not seriously disagree that masturbation would satisfy the definition if the other elements of the statute were present.

. In a similar vein, a person distributes pornographic material when one "transfers] possession of” that material, Utah Code Ann. § 76-10-1201(3) (2008). While it is obvious how one might transfer possession of a picture, drawing, or photograph, it is unclear how someone would *545possess, let alone transfer possession of, the live image produced by a web camera.

. At oral argument and in its reply brief, the State argued that the live web camera image constituted an "electrical reproduction” as included in the definition of "material,” see Utah Code Ann. § 76-10-1201(7). I note, however, that by definition "reproduce” means "to produce again.” Webster’s Ninth New Collegiate Dictionary 1001 (9th ed. 1986). Obviously, nothing here was produced again.