October 04, 2012 – State of New Mexico v. Joe T. Garcia, No. 31,470

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _October 4, 2012

NO. 31,470

STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
JOE T. GARCIA,
Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Thomas A. Rutledge, District J udge
Gary K. King, Attomey General
Olga Serafimova, Assistant Attomey 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 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

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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

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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 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

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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

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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 parent’s 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-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.

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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

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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 (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,

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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 Entertainment Group, 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

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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 prescribes 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 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

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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.

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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. Entertainment Merchants
Association, ___ 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.” State v. Trevino, 116 N.M. 528, 532, 865 P.2d 1172, 1176 (1993). This interest

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“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

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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

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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 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

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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

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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 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)

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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

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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 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

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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

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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 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

21
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

22
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 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

23
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)

24.

25
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 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.

26
{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.

1 By “encourage” or “encouragement” in this Concurring Opinion, I mean to
include both “tend to encourage” and “encourage.”
27
{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.
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 encouragement 1 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

28
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

29
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 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

30
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

31
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