Man ‘Sent'Sexual Message to Child By Showing Phone

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By Tera Brostoff

June 7 — A man “sent” sexual photos of himself to a child when he handed her a phone containing the images and told her to take a look, the New Mexico Supreme Court held June 2 ( State v. Tufts, 2016 BL 175227, N.M., No. S-1-SC-35255, 6/2/16 ).

The case shows courts will look to the purpose and history of a statute for interpreting how to apply the law to less cut-and-dry facts.

Robert Tufts was convicted of criminal sexual communication with a child, but the conviction was reversed after the appellate court held that “to send” communications under the statute required a third-party carrier.

Tufts had hand-delivered the images to the child by giving her the phone containing the data. The state appealed.

The state high court, however, said it must interpret “send” in light of the Legislature's objective and purpose, and reversed the lower court's decision.

Communicating directly with a child may occur through a third-party carrier, the court said, but “it may also occur by delivering the electronic communication device containing the obscene images of the defendant directly to the child.”

The court noted the statute's purpose is to protect children from being provided with obscene images on a device that can produce, store or distribute electronic images.

“Whether a digital camera, a video recorder, or a cell phone is handed directly to a child or an image is electronically transmitted to one of those devices, the effect of the conduct and the resulting harm to the child—access to obscene electronically generated images via an electronic communication device—is the same,” the court concluded.

Justice Edward L. Chavez wrote the opinion.

The attorney general's office in Santa Fe, N.M., represented the state.

The appellate defender's office in Santa Fe, represented Tufts.

To contact the reporter on this story: Tera Brostoff at tbrostoff@bna.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com , Carol Eoannou at ceoannou@bna.com