                                                           I attest to the accuracy and
                                                            integrity of this document
                                                              New Mexico Compilation
                                                            Commission, Santa Fe, NM
                                                           '00'05- 17:23:38 2013.01.11
Certiorari Granted, December 6, 2012, No. 33,895

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-005

Filing Date: October 4, 2012

Docket No. 31,470

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

JOE T. GARCIA,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Thomas A. Rutledge, District Judge

Gary K. King, Attorney General
Olga Serafimova, Assistant Attorney General
Santa Fe, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM

for Appellant


                                        OPINION

WECHSLER, Judge.

{1}    Defendant Joe Garcia appeals his conviction of contributing to the delinquency of
a minor (CDM), a fourth degree felony, contrary to NMSA 1978, Section 30-6-3 (1990). We
hold that (1) the State presented sufficient evidence to support Defendant’s conviction; (2)
the CDM statute did not violate Defendant’s right to free expression under the federal and

                                             1
state constitutions; (3) the CDM statute is not unconstitutionally overbroad under the First
Amendment to the United States Constitution; (4) as a matter of due process, the CDM
statute is not unconstitutionally vague; and (5) under the general/specific rule, the State was
not required to charge Defendant for violating the statute prohibiting providing sexually
oriented materials harmful to a minor (the sexual oriented materials statute) instead of CDM.
Accordingly, we affirm.

BACKGROUND

{2}    Defendant’s conviction arose out of a handwritten, sexually explicit letter that
Defendant’s biological daughter, Y.G., found in her underwear drawer. Y.G. lived with her
mother, Defendant, and her younger brother. Defendant had recently moved back into the
house after a two-to-three year separation from Y.G.’s mother. Although they resided in the
same house, Y.G. and Defendant did not speak to each other because she lost trust in
Defendant and felt abandoned that he previously left the household.

{3}      On June 10, Y.G. left the house with her mother and two brothers, leaving Defendant
alone in the house. Later that same day, Y.G.’s mother and Defendant left the house and
Y.G. stayed home. Y.G. started looking for her cellular phone. When she looked in her
underwear drawer, she found a handwritten letter containing a story entitled “I Just a Fantasy
Story,” which contained five pages describing various sexual acts between the writer, a male,
and the reader, a female. Y.G. testified that she immediately recognized the handwriting in
the letter to be that of Defendant’s. She pretended that nothing had happened, returned to the
living room with her cousins for that evening without saying anything, then spent the next
day avoiding Defendant. She did not tell her mother until the next evening.

{4}      Based on the letter, the State charged Defendant with criminal solicitation to commit
incest or, in the alternative, CDM. After a trial, the jury convicted Defendant of CDM. On
appeal, Defendant argues that (1) the State presented insufficient evidence to support his
conviction; (2) the CDM statute as applied in this case is a content-based regulation that
violates Defendant’s right to freedom of speech; (3) the CDM statute is unconstitutionally
overbroad; (4) the CDM statute is unconstitutionally vague; and (5) under a general/specific
analysis, the State was required to charge Defendant under the sexually oriented materials
statute.

SUFFICIENCY OF THE EVIDENCE

{5}    In order for the jury to convict Defendant of CDM, the State had to prove that

       1.      . . . [D]efendant wrote a letter to his biological daughter . . .
               soliciting sexual acts, which was placed in [Y.G.’s] underwear
               drawer;

       2.      This encouraged [Y.G.] to commit the offense of [i]ncest, or conduct

                                              2
               herself in [a] manner injurious to the morals or the health, or the
               welfare of [Y.G.];

       3.      [Y.G.] was under the age of 18[.]

Defendant argues that there was insufficient evidence to support Defendant’s conviction
because the State submitted no evidence that it was Defendant who placed the letter in
Y.G.’s drawer.

{6}     “The test for sufficiency of the evidence is whether substantial evidence of either a
direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Sena, 2008-NMSC-053,
¶ 10, 144 N.M. 821, 192 P.3d 1198 (internal quotation marks and citation omitted).
“[S]ubstantial evidence means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion[.]” State v. Baca, 1997-NMSC-059, ¶ 14, 124 N.M. 333,
950 P.2d 776 (internal quotation marks and citation omitted). We view the evidence in the
light most favorable to, and indulge all inferences in favor of, the verdict. Sena, 2008-
NMSC-053, ¶ 10; State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). If there
is substantial evidence supporting the verdict, we do not reweigh the evidence or substitute
our judgment for that of the factfinder. State v. Fuentes, 2010-NMCA-027, ¶ 13, 147 N.M.
761, 228 P.3d 1181.

{7}      Although the State did not present any direct evidence that it was Defendant who
placed the letter in Y.G.’s drawer, the State presented sufficient evidence for a reasonable
factfinder to conclude that Defendant was the author of the letter, which leads to a
reasonable conclusion that Defendant placed the letter in Y.G.’s drawer. Y.G. testified that
she immediately recognized the handwriting in the letter to be that of Defendant’s. The State
also presented testimony from an expert handwriting analyst, who testified that the
handwriting in the letter was Defendant’s after comparing the letter to a sample of
Defendant’s writing. Further, the content of the letter provides clues that Defendant was its
author. The letter begins “[s]ometimes when I’m thinking of you and wishing I was with
you. I start imagining everything is all right [sic]. Like me walking into your room and your
[sic] just their [sic] reading a book and we start talking.” A reasonable inference from this
opening is that the writer lives in the same house as Y.G. and does not have a good
relationship with her. Combined with Y.G’s testimony that she did not speak to Defendant,
this evidence leads to an inference that Defendant wrote the letter. Further, the jury heard
testimony that the police executed a search warrant on June 12, 2010, and in conducting a
search of the home, found an envelope in Y.G.’s parents’ bedroom with the writing “I Just
a fantasy” on it.

{8}     The evidence that Defendant authored the letter, when combined with the evidence
that Defendant was the only one of two males who lived in the house and was alone in the
house on the day Y.G. found the letter, is sufficient circumstantial evidence for a reasonable
factfinder to conclude that Defendant placed the letter in Y.G.’s drawer. See Baca, 1997-

                                              3
NMSC-059, ¶ 14. Sufficient evidence therefore supported Defendant’s conviction for CDM.

CONSTITUTIONAL ISSUES

Issue Raised at Oral Argument

{9}      At oral argument, in framing his constitutional arguments, Defendant argued that the
jury instruction stating the elements of CDM required that the State had to prove that
Defendant “wrote a letter . . ., which was placed in [Y.G.’s] underwear drawer.” Defendant
contends that, because of the use of the passive voice in the jury instruction, the jury could
have found that Defendant wrote the letter, but did not place it in Y.G.’s drawer, and still
convict Defendant of CDM. However, Defendant did not object to the instruction in the
district court and therefore did not preserve this issue. See State v. Nichols, 2006-NMCA-
017, ¶¶ 26-30, 139 N.M. 72, 128 P.3d 500 (rejecting the defendant’s argument that the
broad time frame covered in jury instructions denied him due process because the defendant
did not object to the instructions in order to preserve the issue). Defendant also waived this
argument by failing to raise it in his brief in chief. See State v. Triggs, 2012-NMCA-068,
¶¶ 13-14, 281 P.3d 1256 (stating the general rule that this Court will not address arguments
not raised in the brief in chief). Defendant argues that the issue need not be preserved
because it implicates his constitutional rights. However, “[e]ven constitutional rights may
be lost if not preserved below.” State v. Zamarripa, 2009-NMSC-001, ¶ 33, 145 N.M. 402,
199 P.3d 846; see also Nichols, 2006-NMCA-017, ¶¶ 26-30 (declining to address the
defendant’s unpreserved constitutional arguments). We therefore proceed to address
Defendant’s constitutional arguments under the premise that the jury was required to find,
and found, that Defendant not only wrote the letter, but also placed it in Y.G’s drawer as
argued below and in the briefing before this Court.

Standard of Review

{10} Defendant makes three arguments that his conviction under the CDM statute violated
his rights under the federal and state constitutions. He asserts that the CDM statute (1) is a
content-based regulation that violates his rights to freedom of expression under the First
Amendment of the United States Constitution and Article II, Section 17 of the New Mexico
Constitution, (2) is unconstitutionally overbroad in violation of the First Amendment, and
(3) is unconstitutionally vague and therefore violates Defendant’s due process rights.

{11} We review each of Defendant’s constitutional arguments under a de novo standard
of review. See State v. Ebert, 2011-NMCA-098, ¶ 4, 150 N.M. 576, 263 P.3d 918
(reviewing the defendant’s arguments that his conviction violated his rights under the First
Amendment and that the statute was unconstitutionally vague under a de novo standard of
review); see also Vill. of Ruidoso v. Warner, 2012-NMCA-035, ¶¶ 13, 22, 274 P.3d 791
(addressing an argument that an ordinance is overbroad under a de novo standard of review).
“We presume that the statute is constitutional, and it is the defendant’s burden to rebut this
presumption[.]” State v. Jacquez, 2009-NMCA-124, ¶ 6, 147 N.M. 313, 222 P.3d 685

                                              4
(citation omitted).

Freedom of Expression

{12} We first address Defendant’s argument that the CDM statute is a content-based
regulation that deprives him of his right to free expression under the federal and state
constitutions. Defendant does not challenge the CDM statute facially, but instead argues
that, as applied to his conviction arising out of writing and delivering the letter to Y.G., the
CDM statute punishes protected expressive conduct. See Vill. of Ruidoso, 2012-NMCA-035,
¶ 5 (“In a facial challenge . . . , we consider only the text . . . itself, not its application;
whereas, in an as-applied challenge, we consider the facts of the case to determine whether
application . . . deprived the challenger of a protected right.”).

{13} We must initially determine whether the CDM statute is content based in order to
determine the constitutional framework under which to analyze Defendant’s challenge. See
Ebert, 2011-NMCA-098, ¶ 8 (applying strict scrutiny to a content-based prohibition); State
v. Ongley, 118 N.M. 431, 433, 882 P.2d 22, 24 (Ct. App. 1994) (applying intermediate
scrutiny to a challenge to a criminal statute that did not “restrict[] free expression based on
the content of what is expressed”). Citing United States v. Playboy Entm’t Grp., Inc., 529
U.S. 803, 811-12 (2000), Defendant argues that the CDM statute is content based because
“the regulation of the prohibited conduct ‘focuses only on the content of the speech and the
direct impact that speech has on its listeners’ [and] the [United States Supreme] Court has
indicated that such an action ‘is the essence of content-based regulation.’” “The principal
inquiry in determining content neutrality . . . is whether the government has adopted a
regulation of speech because of disagreement with the message it conveys.” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989).

{14}   The CDM statute provides that

              [c]ontributing to the delinquency of a minor consists of any person
       committing any act or omitting the performance of any duty, which act or
       omission causes or tends to cause or encourage the delinquency of any
       person under the age of eighteen years.

Section 30-6-3. This statute makes no reference to the content of any speech or written
expression and does not “distinguish favored speech from disfavored speech on the basis of
the ideas or views expressed[.]” Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 520
U.S. 180, 186 (1997) (internal quotation marks and citation omitted). There is no indication
that it was adopted because of any disagreement with a particular message that a speaker
conveys. Although, the CDM statute has been applied to various circumstances, some
involving speech and some involving other conduct, the key to the statute is that it proscribes
conduct only when the action “tends to cause or encourage the delinquency of” a minor.
Section 30-6-3. In cases involving speech, the statute applies regardless of whether the
communication is sexual in nature, as in this case, or whether it encourages minors to engage

                                               5
in other delinquent activities, for example, “burglarizing homes and selling the property for
cash and drugs.” State v. Barr, 1999-NMCA-081, ¶ 2, 127 N.M. 504, 984 P.2d 185.

{15} In this case, Defendant was not convicted solely based on the contents of the letter.
The jury was instructed that it could convict Defendant only if the letter “encouraged [Y.G.]
to commit the offense of [i]ncest, or conduct herself in [a] manner injurious to the morals or
the health, or the welfare of [Y.G.]” Therefore, the conviction did not arise out of the letter
itself, but instead arose out of the action of delivering the letter to Y.G. and the effect of the
letter, which was to encourage Y.G. to commit incest or act in a way injurious to her health
or welfare. Because the CDM statute’s main function is to regulate any conduct that causes
or tends to cause or encourage the delinquency of a minor regardless of the specific subject
matter, the CDM statute is content neutral, and strict scrutiny does not apply. See Bartnicki
v. Vopper, 532 U.S. 514, 526 (2001) (“[G]overnment regulation of expressive activity is
content neutral so long as it is justified without reference to the content of the regulated
speech.” (emphasis, internal quotation marks, and citation omitted)); cf. Ebert, 2011-NMCA-
098, ¶ 8 (assuming without deciding that a statute prescribing “communications based on
their sexual content” is a content-based prohibition).

{16} Having determined that the CDM statute is content neutral, we apply intermediate
scrutiny to the statute in determining whether it infringes on Defendant’s freedom of
expression. See Ongley, 118 N.M. at 433, 882 P.2d at 24 (applying intermediate scrutiny
to a challenge to a criminal statute that did not “restrict[] free expression based on the
content of what is expressed”). “[U]nder the intermediate level of scrutiny applicable to
content-neutral regulations, [a law will be] sustained if it [is] shown to further an important
or substantial governmental interest unrelated to the suppression of free speech, provided the
incidental restrictions [do] not burden substantially more speech than is necessary to further
those interests.” Turner Broad. Sys., Inc., 520 U.S. at 186 (internal quotation marks and
citation omitted). Although the New Mexico Constitution provides greater protection with
respect to content-based restrictions, see City of Farmington v. Fawcett, 114 N.M. 537, 547,
843 P.2d 839, 849 (Ct. App. 1992), “the protection of the federal and state constitutions are
the same, at least with respect to content-neutral restrictions.” Ongley, 118 N.M. at 432, 882
P.2d at 23.

{17} We first turn to whether the CDM statute furthers an important or substantial
governmental interest unrelated to the suppression of free speech. See Turner Broad. Sys.,
Inc., 520 U.S. at 186. Defendant, citing Brown v. Entm’t Merchs. Assoc., ___ U.S. ___, 131
S. Ct. 2729, 2733-35, 2738 (2011), argues that “disgust is not a valid basis for restricting
expression” and that “speech directed at children” is not a category of First Amendment
protection. However, the State’s interest in enacting the CDM statute is not to criminalize
disgust or to prevent children from hearing a particular message. Generally, “[t]he purpose
of the CDM statute is to protect children from harmful adult conduct.” Barr, 1999-NMCA-
081, ¶ 17 (internal quotation marks and citation omitted). This State’s interest of protecting
the well-being of minors is designed to protect children from “delinquency [based on
w]hatever the community sense of decency and morality determines delinquency to be.”

                                                6
State v. Trevino, 116 N.M. 528, 532, 865 P.2d 1172, 1176 (1993). This interest “is
addressed more to the mental and behavioral aspects of children than to their physical well-
being.” Id. at 532-33, 865 P.2d at 1176-77. The United States Supreme Court has held that
protecting the mental well-being of children is not only a substantial governmental interest,
it is compelling and satisfies strict scrutiny. See New York v. Ferber, 458 U.S. 747, 756-57
(1982) (“It is evident beyond the need for elaboration that a [s]tate’s interest in safeguarding
the physical and psychological well-being of a minor is compelling.” (internal quotation
marks and citation omitted)). We too consider the State’s interest of protecting children
from delinquency to be a substantial and important governmental interest, unrelated to the
suppression of free speech.

{18} We next turn to whether CDM statute’s “incidental restrictions [on speech] burden
substantially more speech than is necessary to further those interests.” Turner Broad. Sys.,
Inc., 520 U.S. at 186 (internal quotation marks and citation omitted). Under the intermediate
level of scrutiny, the restriction need not be a less-restrictive means of achieving the
legitimate purpose. See id. at 217 (stating that the “less-restrictive-alternative analysis . . .
has never been a part of the inquiry into the validity of content-neutral regulations on
speech” and that “our cases establish that content-neutral regulations are not invalid simply
because there is some imaginable alternative that might be less burdensome on speech”
(internal quotation marks and citations omitted)). Defendant argues that the “definition of
delinquency used by the [CDM] statute is sweeping” and “criminalizes vast amounts of
protected speech because there is no definition of what speech is prohibited.”

{19} However, the CDM statute is limited to circumstances that do not substantially
burden more speech than necessary to further the interest of protecting children from
delinquency. First, in order to convict the defendant of CDM, the defendant’s actions must
be directed toward a child. Second, the CDM has a causation requirement. In order for a
defendant to be guilty of CDM, the speech must have “cause[d] or tend[ed] to cause or
encourage” the minor to delinquency, meaning (1) to commit a crime, (2) to refuse to obey
the reasonable and lawful commands or directions of a person who has lawful authority of
the child, or (3) to conduct himself or herself in a manner injurious to his or her morals,
health, or welfare. Section 30-6-3; UJI 14-601 NMRA. Although the definition of
delinquency is broad, our Supreme Court has stated that “[t]he ways and means by which
the venal mind may corrupt and debauch the youth of our land, both male and female, are
so multitudinous that to compel a complete enumeration in any statute designed for
protection of the young before giving it validity would be to confess the inability of modern
society to cope with the problem of juvenile delinquency.” State v. McKinley, 53 N.M. 106,
111, 202 P.2d 964, 967 (1949). The CDM statute does not burden more speech than
necessary in order to fulfill its broad purpose of protecting children from delinquency.

{20} We note Defendant’s reliance on In re Douglas D., 2001 WI 47, 243 Wis. 2d 204,
626 N.W.2d 725. In Douglas D., the Wisconsin Supreme Court held that the First
Amendment prohibited prosecution under the state’s disorderly conduct statute of a high
school student who wrote a story for a creative writing assignment in which the student

                                               7
beheaded the teacher. Id. ¶¶ 6, 9, 11, 39. However, the court held that the “First
Amendment does not inherently bar the [s]tate from applying [the disorderly conduct statute]
to unprotected speech, even if the unprotected speech is purely written speech.” Id. ¶¶ 21,
25. The court held that the state can prosecute a defendant under the disorderly conduct
statute when the speech at issue is considered “abusive” conduct, which includes “true
threats” under the statute. Id. ¶¶ 25, 32. The court held that, in the context of a creative
writing assignment and the hyperbole and jest contained in the defendant’s story, the
defendant could not be prosecuted because it was not a “true threat” for purposes of the
statute and was therefore protected under the First Amendment. Id. ¶ 39.

{21} This case is distinguishable from Douglas D. In this case, Defendant’s conviction
did not arise solely from the content of Defendant’s letter, but instead was premised on the
effect of encouraging or tending to cause or encourage Y.G.’s delinquency. Defendant does
not challenge the jury’s finding in this regard. This case is therefore similar to a situation
described in Douglas D., in which a defendant’s conduct does constitute a true threat and
therefore is outside the realm of First Amendment protection. See id. ¶¶ 32-33. Defendant’s
conviction for CDM did not violate his First Amendment or New Mexico Constitution
freedom of expression rights.

Overbreadth

{22} Defendant next argues that the CDM statute is unconstitutionally overbroad under
the First Amendment. Particularly, Defendant argues that “New Mexico [c]ourts have
construed ‘delinquency’ broadly, to include acts injurious to a minor’s morals, health[,] or
welfare.” Therefore, Defendant contends that the CDM statute is overbroad because “it
criminalizes vast amounts of protected speech because there is no definition of what speech
is prohibited.”

{23} A defendant may attack an overly broad statute “with no requirement that the
[defendant] demonstrate that his own conduct could not be regulated by a statute drawn with
the requisite narrow specificity[.]” Gooding v. Wilson, 405 U.S. 518, 520-21 (1972). Under
the “First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a
substantial amount of protected speech” beyond that needed to achieve the statute’s proper
purpose. Vill. of Ruidoso, 2012-NMCA-035, ¶ 6 (internal quotation marks and citation
omitted). The United States Supreme Court has described the overbreadth doctrine as
follows:

       The doctrine seeks to strike a balance between competing social costs. On
       the one hand, the threat of enforcement of an overbroad law deters people
       from engaging in constitutionally protected speech, inhibiting the free
       exchange of ideas. On the other hand, invalidating a law that in some of its
       applications is perfectly constitutional—particularly a law directed at
       conduct so antisocial that it has been made criminal—has obvious harmful
       effects. In order to maintain an appropriate balance, we have vigorously

                                              8
       enforced the requirement that a statute’s overbreadth be substantial, not only
       in an absolute sense, but also relative to the statute’s plainly legitimate
       sweep. Invalidation for overbreadth is strong medicine that is not to be
       casually employed.

United States v. Williams, 553 U.S. 285, 292-93 (2008) (internal quotation marks and
citations omitted).

{24} Defendant fails to satisfy his burden of showing that the CDM statute punishes a
substantial amount of protected speech. Although Defendant argues that the definition of
delinquency is “sweeping” and the CDM statute therefore covers “vast amounts of protected
speech,” Defendant fails to provide a single example of any type of protected speech that
could lead to a conviction under the CDM statute. As we discussed in the context of
Defendant’s freedom of expression argument, the CDM statute is limited to circumstances
that do not substantially burden protected speech because a conviction requires that a
defendant’s conduct encourage or tend to encourage a minor to (1) commit a crime, (2)
refuse to obey the reasonable and lawful commands or directions of a person who has lawful
authority of the child, or (3) conduct himself or herself in a manner injurious to his or her
morals, health, or welfare. Section 30-6-3; UJI 14-601. Under these circumstances, any
incidental infringement on protected speech is not substantial and subject to the “strong
medicine” of invalidation. The CDM statute is not overbroad. Williams, 553 U.S. at 293;
see State v. James M., 111 N.M. 473, 478, 806 P.2d 1063, 1068 (Ct. App. 1990) (upholding
the disorderly conduct statute from an overbreadth challenge because the statute only
punished “fighting words” and therefore “avoid[ed] any punishment of speech that is
protected [by] the [First Amendment]” (internal quotation marks omitted)).

Void for Vagueness

{25} Defendant also argues that the CDM statute is unconstitutionally vague and therefore
violates his rights of due process under the law. Defendant particularly relies upon the broad
definition of delinquency in our case law and the reliance on juries to determine what acts
constitute CDM in each particular case. We analyze a claim of vagueness according to the
particular facts of each case, State v. Luckie, 120 N.M. 274, 276, 901 P.2d 205, 207 (Ct.
App. 1995), and a defendant may not succeed on a vagueness claim if the statute clearly
applies to the defendant’s conduct. See State v. Laguna, 1999-NMCA-152, ¶ 24, 128 N.M.
345, 992 P.2d 896. “A statute is void for vagueness if: (1) it fails to provide persons of
ordinary intelligence using ordinary common sense a fair opportunity to determine whether
their conduct is prohibited; or (2) it fails to create minimum guidelines for the reasonable
police officer, prosecutor, judge, or jury charged with enforcement of the statute, and thereby
encourages subjective and ad hoc application.” Jacquez, 2009-NMCA-124, ¶ 6.

{26} Our Supreme Court has previously addressed Defendant’s argument that the CDM
statute is void-for-vagueness in McKinley. In McKinley, our Supreme Court upheld the
CDM statute from a void for vagueness challenge in which the defendant argued that the

                                              9
statute “is so vague, indefinite[,] and uncertain as to be incapable of interpretation and
enforcement.” 53 N.M at 109, 202 P.2d at 966. Our Supreme Court upheld the statute,
reasoning that “[t]he common sense of the community, as well as the sense of decency, the
propriety, and morality which most people entertain, is sufficient to apply the statute to each
particular case, and point out what particular conduct is rendered criminal by it.” Id. at 111,
202 P.2d at 967 (internal quotation marks and citation omitted). As set out earlier in this
Opinion, the Court noted that “[t]he ways and means by which the venal mind may corrupt
and debauch the youth of our land, both male and female, are so multitudinous that to
compel a complete enumeration in any statute designed for protection of the young before
giving it validity would be to confess the inability of modern society to cope with the
problem of juvenile delinquency.” Id.; see also State v. Pitts, 103 N.M. 778, 780, 714 P.2d
582, 584 (1986) (“This Court has held the [CDM] statute constitutional despite the
vagueness of its description of the proscribed acts and omissions.”). McKinley and Pitts
control our disposition of the issue; and the CDM statute is not void for vagueness. See State
v. Wilson, 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994) (holding that the Court of
Appeals is bound by Supreme Court precedent).

GENERAL/SPECIFIC

{27} Defendant lastly argues that under a general/specific analysis, the State was required
to charge Defendant under the sexually oriented materials statute, NMSA 1978, § 30-37-2
(1973), which criminalizes providing harmful sexually oriented materials to a minor. The
general/specific statute rule, “to the extent that it requires prosecution under one statute
instead of another, is connected with the principle of double jeopardy as it relates to multiple
punishment for unitary conduct.” State v. Cleve, 1999-NMSC-017, ¶ 22, 127 N.M. 240, 980
P.2d 23. The general/specific rule states that if one statute deals with a subject in general
and comprehensive terms, and another statute addresses part of the same subject matter in
a more specific manner, the latter controls. Id. ¶ 17. Our Supreme Court has stated that, in
order for the rule to apply, “Courts should [apply the test enunciated in Blockburger v.
United States, 284 U.S. 299 (1932), and] compare the elements of the two relevant crimes.
If the elements of the two crimes are the same, the general/specific statute rule applies, and
the prosecution must charge the defendant under the special law absent a clear expression
of legislative intent to the contrary.” Cleve, 1999-NMSC-017, ¶ 26. Examining whether the
elements of the statutes differ requires statutory interpretation, an issue of law that we review
de novo. Id. ¶ 7.

{28}    The sexually oriented materials statute, Section 30-37-2, provides that

                 It is unlawful for a person to knowingly sell, deliver, distribute,
        display for sale or provide to a minor, or knowingly to possess with intent to
        sell, deliver, distribute, display for sale or provide to a minor:

                        A.      any picture, photograph, drawing, sculpture, motion
        picture film or similar visual representation or image of a person or portion

                                               10
       of the human body, or any replica, article[,] or device having the appearance
       of either male or female genitals which depicts nudity, sexual conduct, sexual
       excitement[,] or sado-masochistic abuse and which is harmful to minors; or

                      B.      any book, pamphlet, magazine, printed matter however
       produced or sound recording which contains any matter enumerated in
       Subsection A of this section or explicit and detailed verbal descriptions or
       narrative accounts of sexual excitement, sexual conduct or sado-masochistic
       abuse and which, taken as a whole, is harmful to minors.

{29} Defendant concedes that the statutory elements of the CDM statute and the sexually
oriented materials statute are not the same, but argues that the New Mexico Supreme Court
expressly adopted a modified Blockburger analysis for claims involving statutes that are
vague and unspecific. See State v. Gutierrez, 2011-NMSC-024, ¶ 48, 150 N.M. 232, 258
P.3d 1024. Indeed, in Gutierrez, our Supreme Court determined that courts should look to
the legal theory advanced by the state when applying the Blockburger analysis. Gutierrez,
2011-NMSC-024, ¶¶ 56-59.

{30} Defendant argues that in this case “the legal theory is that by writing a sexually
explicit letter which was placed in [Y.G.]’s underwear drawer, [Defendant] encouraged her
to conduct herself in [a] manner injurious to the morals or the health, or the welfare of
[Y.G.]” (third alteration in original). Defendant contends that this legal theory “duplicates
the elements of the [s]exually [o]riented [m]aterials . . . statute[,]” which contains three
elements: (1) knowingly providing to a minor (2) explicit and detailed narrative accounts
of sexual excitement (3) which, taken as a whole, is harmful to minors. Section 30-37-2(B).
However, even accepting Defendant’s argument regarding the theory of the case, the CDM
statute and the sexually oriented materials statute contain different elements. The CDM
statute requires that the material encourage delinquency, in this case, either encouraging or
tending to encourage Y.G. to commit incest or conduct herself in a manner injurious to her
morals, health, or welfare. The sexually oriented materials statute only requires the knowing
delivery of harmful materials to a minor.

{31} Further, in State v. Cuevas, 94 N.M. 792, 792, 617 P.2d 1307, 1307 (1980), overruled
on other grounds by Pitts, 103 N.M. 778, 714 P.2d 582, our Supreme Court examined the
general/specific rule in a case involving an adult defendant who attended a party with minors
and demonstrated how to drink tequila with a lemon. The jury convicted the defendant of
CDM and, on appeal, this Court held that the general/specific rule required that the
defendant be charged and convicted of violations of the liquor control act, which
criminalizes “aid[ing] or assist[ing] a minor to buy, procure[,] or be served with alcoholic
liquor.” Cuevas, 94 N.M. at 793, 617 P.2d at 1308. Our Supreme Court reversed, holding
that “[CDM] is a crime separate and distinct from any underlying violation of the law. In
fact, this Court has said that the underlying act does not have to be illegal if the element of
contributing to the delinquency of a minor is still present.” Id. at 794, 617 P.2d at 1309. The
Court noted that “[a]n adult can, almost always, be prosecuted under the specific statute

                                              11
dealing with liquor, drugs, sex, etc.[, but the] legislative purpose [of the CDM statute] is
different from that behind our drug and liquor laws.” Id.

{32} This case is similar and therefore governed by Cuevas. Although Defendant’s
conduct leading to the CDM charge could also have led to a conviction under the sexually
oriented materials statute, CDM is separate and distinct from any underlying violation of the
law. See id. The State had discretion to determine charges that should be brought against
Defendant based upon the evidence available to support them. See Cleve, 1999-NMSC-017,
¶ 26 (“This Court has long acknowledged the [state’s] broad discretion to conduct criminal
prosecutions, including its power to select the charges to be brought in a particular case.”
(internal quotation marks and citation omitted)). Defendant’s conviction for CDM did not
violate the general/specific rule, and the State was not required to charge Defendant under
the sexually oriented materials statute.

CONCLUSION

{33} We hold that (1) the State presented sufficient evidence to support Defendant’s
conviction; (2) the CDM statute did not violate Defendant’s right to free expression under
the federal and state constitutions; (3) the CDM statute is not unconstitutionally overbroad
under the First Amendment to the United States Constitution; (4) as a matter of due process,
the CDM statute is not unconstitutionally vague; and (5) under the general/specific rule, the
State was not required to charge Defendant for violating the statute prohibiting providing
sexually oriented materials harmful to a minor instead of CDM. Accordingly, we affirm.

{34}   IT IS SO ORDERED.

                                               ____________________________________
                                               JAMES J. WECHSLER, Judge

I CONCUR:

____________________________________
J. MILES HANISEE, Judge

JONATHAN B. SUTIN, Judge (specially concurring)

SUTIN, Judge (specially concurring).

{35} I concur in the overbreadth, vagueness, and general/specific dispositions and do not
write separately to discuss aspects of those dispositions. I concur, as well, in the as-applied
disposition, but write separately only to express my view that the CDM statute, as applied
here, should be analyzed under strict scrutiny and not intermediate scrutiny. I do so not only
because I see the CDM statute as content-based under the circumstances here. I also do so
because I see the CDM statute as a statute that can all too easily give rise to prosecutorial

                                              12
overreach and to outlier jury verdicts. See State v. Butt, 2012 UT 34, ¶ 32, __P.3d__
(“However, the fact that the jury must measure patent offensiveness against contemporary
community standards does not mean . . . that juror discretion in this area is to go unchecked.”
(omission in original) (alteration, internal quotation marks, and citation omitted).

{36} Initially, I do not see a purpose in attempting to distinguish or separate the writing
at issue, its delivery, and its effect, in analyzing the constitutional issues. Here, the charge
against Defendant arose out of the writing and delivery of a letter encouraging criminal or
immoral sexual activity, conduct no different than a face-to-face verbal encouragement
consisting of the same content. Effect is built into the statutory element. Thus, I see no need
to attempt any distinction or separation in justifying Defendant’s conviction under the CDM
statute.

{37} The problematic language of the CDM statute with which I have concern here is that
which criminalizes acts that tend to encourage or encourage a minor to act in a way that is
injurious to his or her health, morals, or welfare. Under New Mexico case law, children are
to be protected in instances in which another’s speech or act can result in a child engaging
in conduct not tolerated by a community under the community’s sense of decency, propriety,
or morality, and the fact finder is to be the determiner of whether the conduct is or is not to
be tolerated under a community standard. See Trevino, 116 N.M. at 531, 865 P.2d at 1175
(stating that, under the CDM statute, “[w]e always have relied on juries to determine what
acts constitute contributing to delinquency in a particular case” including “[t]he common
sense of the community, as well as the sense of decency, the propriety, and the morality
which most people entertain” (internal quotation marks and citation omitted)); Barr, 1999-
NMCA-081, ¶ 17 (“The purpose of the CDM statute is to protect children from harmful adult
conduct.” (internal quotation marks and citation omitted)); Fawcett, 114 N.M. at 546-47,
843 P.2d at 848-49 (discussing jury instructions allowing the jury to convict the defendant
for speech unacceptable or beyond decency under community “tolerance” standard and
indicating that the issue is a jury issue). By my special concurrence here, I hope to at least
lay the foundation for the careful and strict scrutiny I believe should be required in cases
such as this.

{38} The constitutional question under discussion “concerns the validity of the statute[]
as applied to the specific facts of [this] case[].” Bartnicki, 532 U.S. at 524. The issue is
whether the CDM statute is content-neutral or content-based.

       Deciding whether a particular regulation is content based or content neutral
       is not always a simple task . . . . As a general rule, laws that by their terms
       distinguish favored speech from disfavored speech on the basis of the ideas
       or views expressed are content based. In determining whether a regulation
       is content based or content neutral, we look to the purpose behind the
       regulation; typically, government regulation of expressive activity is content
       neutral so long as it is justified without reference to the content of the
       regulated speech.

                                              13
Id. at 526 (omission in original) (alteration, emphasis, internal quotation marks, and
citations omitted). “[T]he mere assertion of a content-neutral purpose [is not] enough to save
a law which, on its face, discriminates based on content.” Turner Broad. Sys., Inc., 512 U.S.
at 642-43.

{39} The basic purpose of that part of the CDM statute applicable here is to regulate the
encouragement1 of a minor to commit an offense or engage in conduct injurious to the
minor’s health, morals, or welfare. Included in that basic purpose, of course, is the intent
to protect minors. See Barr, 1999-NMCA-081, ¶ 17; see also Ebert, 2011-NMCA-098, ¶ 12
(stating that “it is beyond question that the State has a compelling interest in protecting
children from sexual predators and sexual exploitation”); Brown, 131 S. Ct. at 2736 (“No
doubt a [s]tate possesses legitimate power to protect children from harm[.]”). Still, “[m]inors
are entitled to a significant measure of First Amendment protection, and only in relatively
narrow and well-defined circumstances may government bar public dissemination of
protected materials to them.” Brown, 131 S. Ct. at 2735 (internal quotation marks and
citation omitted).

{40} The CDM statute can unquestionably regulate speech when it criminalizes
encouragement of conduct. The speech it regulates includes protected speech. That speech
is protected which does not fall within the categories of unprotected speech such as
obscenity, child pornography, defamation, fraud, incitement, fighting words and speech
integral to criminal conduct. See id. at 2733 (setting out limited areas of unprotected
speech); United States v. Stevens, ___ U.S. ___, 130 S. Ct. 1577, 1584, 1586 (2010) (same).

{41} While the CDM statute does not specifically and expressly regulate encouragement
of minors to engage in sexual offenses or unacceptable sexual activities, in the balance, I
view the CDM statute as content-based insofar as it specifically criminalizes the
encouragement of minors to act in a way that is injurious to their morals. To proscribe
encouragement to engage in conduct considered immoral under community standards is
tantamount to proscribing encouragement to engage in immoral sexual conduct. The
proscription obviously includes engaging in sexual activity considered impermissible or
intolerable under “the morality which most people entertain” in a community. Trevino, 116
N.M. at 531, 865 P.2d at 1175 (describing the community standard as “[t]he common sense
of the community, as well as the sense of decency, the propriety, and the morality which
most people entertain” (internal quotation marks and citation omitted)); Fawcett, 114 N.M.
at 546, 843 P.2d at 848 (“We believe [Article II, Section 17 of] our constitution requires that,
although the community might not find the materials ‘acceptable,’ it must find them
‘intolerable’ before they may be deemed as an ‘abuse’ of the right to freely speak, write, and
publish sentiments on all subjects.”). Thus, as it applies to the facts of this case, I would
label the CDM statute as content-based, requiring strict scrutiny. See City of Los Angeles


       1
         By “encourage” or “encouragement” in this Concurring Opinion, I mean to include
both “tend to encourage” and “encourage.”

                                              14
v. Alameda Books, Inc., 535 U.S. 425, 434, 455 (2002) (stating that content-based regulation
of speech must pass strict scrutiny); City of Albuquerque v. Pangaea Cinema LLC, 2012-
NMCA-075, ¶ 29, ___ P.3d ___ (same), cert. granted, 2012-NMCERT-007, ___ P.3d ___
(No. 33,693, July 20, 2012).

{42} Under strict scrutiny, a regulation is invalid “unless it is justified by a compelling
government interest and is narrowly drawn to serve that interest.” Brown, 131 S. Ct. at
2738; see also Pangaea Cinema, 2012-NMCA-075, ¶ 29 (stating that under strict scrutiny,
the government must “show that it has a compelling interest in the challenged scheme and
that it has accomplished its goals by employing the least restrictive means”). The CDM
statute as applied to the facts in this case passes strict scrutiny muster. I do not doubt that
New Mexico has a compelling interest in protecting minors from harm when adults
encourage minors to engage in injurious, immoral, intolerable sexual conduct. Cf. Ferber,
458 U.S. at 756-57 (stating that “the [s]tates are entitled to greater leeway in the regulation
of pornographic depictions of children[,]” that “[t]he prevention of sexual exploitation and
abuse of children constitutes a government objective of surpassing importance[,]” and that
“[i]t is evident beyond the need for elaboration that a [s]tate’s interest in safeguarding the
physical and psychological well-being of a minor is compelling” (internal quotation marks
and citation omitted)); Butt, 2012 UT 34, ¶ 35 (“Because of the [s]tate’s exigent interest in
preventing distribution to children of objectionable material, it can exercise its power to
protect the health, safety, welfare[,] and morals of its community by barring the distribution
to children of books recognized to be suitable for adults.” (internal quotation marks and
citation omitted)).

{43} Nor do I doubt that the CDM statute need not have greater restrictive tailoring than
exists in regard to that protection when it comes to adult encouragement of minors to engage
in immoral, injurious, intolerable, sexual conduct. See Alameda Books, 535 U.S. at 455 (“A
restriction based on content survives only on a showing of necessity to serve a legitimate and
compelling governmental interest, combined with least restrictive narrow tailoring to serve
it[.]”); Ebert, 2011-NMCA-098, ¶ 14 (holding a statute proscribing unlawful solicitation of
children to be narrowly tailored, under strict scrutiny, to a compelling interest of protecting
children from online sexual predators).

                                               ___________________________________
                                               JONATHAN B. SUTIN, Judge

Topic Index for State v. Garcia, No. 31,470

APPEAL AND ERROR
Standard of Review
Substantial or Sufficient Evidence

CONSTITUTIONAL LAW
Due Process

                                              15
Freedom of Speech
Vague or Overbroad

CRIMINAL LAW
Contributing to the Delinquency of a Minor
Sexual Offences

CRIMINAL PROCEDURE
Due Process

STATUTES
Applicability
Rules of Construction
Vagueness




                                         16
