July 15, 2011 – State of New Mexico v. Dominic L. Ebert, Jr., No. 28,898

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: July 15, 2011
NO. 28,898
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DOMINIC L. EBERT, JR.,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellee
Albright Law & Consulting
Jennifer R. Albright
Albuquerque, NM
for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	After the district court denied his motion to dismiss, Defendant Dominic L.
Ebert entered a conditional guilty plea to one count of child solicitation by computer,
contrary to NMSA 1978, Section 30-37-3.2 (2005) (amended 2007). 	Defendant
argued below and argues here that Section 30-37-3.2 is unconstitutionally vague and
overbroad, and that it violates the Commerce Clause. We disagree and affirm.
I. 	FACTUAL BACKGROUND
{2} 	Our understanding of the facts in this case comes from Defendant’s brief in
support of his motion to dismiss, which sets forth the following facts. Agent Carrie
McPherson, a member of the New Mexico State Police Online Predator Unit, initiated
an e-mail conversation with Defendant. 	In this conversation, Agent McPherson
pretended to be a twelve-year-old child named “Chrissy.” Defendant initially advised
“Chrissy” that she should not talk to strangers. The exchanges continued, eventually
leading to graphic sexual discussions via e-mail and instant messaging.
{3} 	Defendant explained what he believed to be the basis for the count he pleaded
guilty to. Defendant began sharing sexual fantasies with “Chrissy.” On March 29,
2007, Defendant asked “Chrissy” to touch her clitoris. The conversation progressed
until Defendant asked “Chrissy” to touch herself while taking a bath and to make

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herself orgasm. Defendant characterized his behavior as “request[ing] that ‘Chrissy’
touch herself” and as “communicat[ing] a wish that an adult police officer, pretending
to be a minor child, masturbate.”
II. 	DISCUSSION
{4} 	Defendant 	argues 	that 	the 	statute 	under 	which 	he 	was 	convicted 	is
unconstitutional for three reasons: (1) because it criminalizes speech that is protected
under the First Amendment, (2) because it is unconstitutionally vague, and (3) because
it regulates speech and conduct across multiple states. Our standard of review is de
novo. See ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078, ¶ 10, 139 N.M.
761, 137 P.3d 1215.
A. 	First Amendment - Overbreadth
{5} 	Defendant argues that Section 30-37-3.2 violates the First Amendment because
it criminalizes speech that is otherwise legal, “particularly because the law as written
does not distinguish between lawful and unlawful conduct.” In response, the State
points to numerous state and federal decisions that have upheld similar laws under a
strict scrutiny analysis by relying on the idea that speech used to further the sexual
exploitation of children is not constitutionally protected.
{6} 	“[A] statute is facially invalid if it prohibits a substantial amount of protected
speech.” United States v. Williams, 553 U.S. 285, 292 (2008). Statutes enjoy a strong

3
presumption of constitutionality, and the burden is on the challenger to prove a statute
unconstitutional beyond a reasonable doubt. See State v. Laguna, 1999-NMCA-152,
¶ 24, 128 N.M. 345, 992 P.2d 896. Although a constitutional challenge is ordinarily
limited to the facts of the case, a defendant may make an overbreadth challenge based
on the First Amendment even if the statute is constitutional as applied to him. 	See
State v. Luckie, 120 N.M. 274, 276, 901 P.2d 205, 207 (Ct. App. 1995); see also New
York v. Ferber, 458 U.S. 747, 767-69 (1982).
1. 	Section 30-37-3.2 Is Not Facially Overbroad
{7} 	We begin our analysis with the issue of whether the speech prohibited by
Section 30-37-3.2, soliciting children to engage in sexual conduct, is protected under
the First Amendment. 	At the time Defendant was charged, Section 30-37-3.2(A)
provided:
Child solicitation by computer consists of a person knowingly and
intentionally soliciting a child under sixteen years of age, by means of
computer, to engage in sexual intercourse, sexual contact or in a sexual
or obscene performance, or to engage in any other sexual conduct when
the perpetrator is at least three years older than the child.
The statute also provided that “child solicitation by computer is committed in this state
if a computer transmission either originates or is received in this state.” Section 30-
37-3.2(C).

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{8} 	We 	assume 	without 	deciding 	that 	because 	Section 	30-37-3.2 	targets
communications based on their sexual content, it is a content-based prohibition. See,
e.g., Turner Broad. Sys., Inc., v. FCC, 512 U.S. 622, 643 (1994) (“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.”); People v. Foley, 731
N.E.2d 123, 131 (N.Y. 2000) (concluding that a similar statute was content-based
because it targeted sexually explicit communication). Accordingly, it is subject to
strict scrutiny and must be narrowly tailored to serve a compelling interest. See Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).
{9} 	In Ferber, the United States Supreme Court examined a First Amendment
challenge to a law prohibiting the promotion of any performance known to include
sexual conduct by a child under the age of sixteen. 458 U.S. at 751. The owner of a
bookstore specializing in sexually oriented products was convicted under the
contested statute for selling films depicting young boys masturbating. Id. at 751-52.
The question in Ferber was whether, in order to “prevent the abuse of children who
are made to engage in sexual conduct for commercial purposes,” the statute could
“prohibit the dissemination of material which shows children engaged in sexual
conduct, regardless of whether such material is obscene.” 458 U.S. at 753 (emphasis
added) (internal quotation marks omitted). 	The Court had previously held that

5
obscene speech was not protected under the First Amendment. See id. at 754 (citing
Roth v. United States, 354 U.S. 476, 485 (1957)).
{10} 	Although the Court did not identify a specific level of scrutiny, it appeared to
acknowledge that singling out child pornography was a content-based restriction. See
id. at 763-64. 	The Court observed that it was “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.’” Id. at 756-57 (quoting Globe Newspaper Co.
v. Superior Court, 457 U.S. 596, 607 (1982)). Furthermore, it declared that “[t]he
prevention of sexual exploitation and abuse of children constitutes a government
objective of surpassing importance.” Id. at 757. Balancing the effect of the law on
the welfare of children against the de minimis value of the speech, the Court upheld
the law. Id. at 762-64.
{11} 	More recently, the Court emphasized that it is the protection of children—not
a general condemnation of material containing child pornography—that a state’s
compelling interest. In Ashcroft v. Free Speech Coalition, the Court struck down a
federal statute prohibiting the possession or distribution of sexually explicit images
that appeared to display minors regardless of whether they were produced using real
children. 535 U.S. 234, 239, 256 (2002). Providing examples such as Romeo and
Juliet (where Juliet was only thirteen years old) and virtual porn (where pornographic

6
images are generated by computer), the Court characterized the law as “prohibit[ing]
speech that records no crime and creates no victims.” Id. at 247, 250. It reiterated the
holding of Ferber, observing that “Ferber’s judgment about child pornography was
based upon how it was made, not on what it communicated.” Ashcroft, 535 U.S. at
250-51.
{12} 	In light of the above, and as a matter of common wisdom, it is beyond question
that the State has a compelling interest in protecting children from sexual predators
and sexual exploitation. See, e.g., Ferber, 458 U.S. at 756-57; People v. Hsu, 99 Cal.
Rptr. 2d 184, 190 (Ct. App. 2000); Foley, 731 N.E.2d at 132; State v. Tarbay, 157
Ohio App. 3d 261, 2004-Ohio-2721, 810 N.E.2d 979, at ¶¶ 9-10.
{13} 	Recognizing that compelling interest, the inquiry then turns to whether Section
30-37-3.2 is narrowly tailored to the interest it is intended to serve. We hold that it
is. Tailoring is primarily accomplished through the “knowingly” scienter requirement,
which ensures that communications are criminalized only when knowingly made to
a child under the age of sixteen. See State v. Robins, 2002 WI 65, ¶ 40, 253 Wis. 2d
298, 646 N.W.2d 287 (noting that prohibitions on sexual communications are
overbroad when they do not require the speakers to know they are communicating to
children); see also United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000) (holding
that a similar federal statute was not overbroad because it only applied to those who

7
knowingly persuaded or enticed minors). Furthermore, the statute does not restrict
adults from communicating about sex to children, nor does it restrict adults from
soliciting sex from one another over the internet. In fact, the statute prohibits only
that conduct necessary to achieve the State’s interest. See, e.g., United States v. Meek,
366 F.3d 705, 721-22 (9th Cir. 2004) (noting the significance, under a very similar
federal statute, of the mens rea requirement).
{14} 	Because Section 30-37-3.2 is narrowly tailored to the compelling interest of
protecting children from online sexual predators, it is not unconstitutional under the
First Amendment. But, Defendant suggests that the statute is overbroad because it
might, for example, prevent clergy or Planned Parenthood from “advising [teenagers]
to engage in abstinence and use masturbation as a means of relieving sexual
frustration.” We do not believe that advising—in the contexts suggested—is the same
as soliciting. See Williams, 553 U.S. at 298-99 (distinguishing abstract advocacy from
solicitation). Nonetheless, even assuming that Defendant’s example was criminalized
by the statute, this single example does not show that the statute prohibits a substantial
amount of free speech. See id. at 303 (“The ‘mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to render it susceptible to an
overbreadth challenge.’” (quoting Members of City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 800 (1984)); Ferber, 458 U.S. at 752-53, 773

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(concluding that statute prohibiting distribution of books known to contain depictions
of sexual performances of children was not overbroad despite its possible inclusion
of medical textbooks or National Geographic magazines). Should such a case arise,
future defendants could properly argue that Section 30-37-3.2 is unconstitutional as
applied to them. See Ferber, 458 U.S. at 773-74.
2. 	An Unlawful Element Is Not Necessary
{15} 	Relying on State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990), and State v.
Osborne, 111 N.M. 654, 808 P.2d 624 (1991), Defendant argues that the statute is
overbroad because it is not limited by the phrase “unlawful.” We disagree.
{16} 	In Pierce, a defendant argued that the criminal sexual contact of a minor
(CSCM) statute was overbroad unless a specific intent element was read into it. 110
N.M. at 80, 792 P.2d at 412. 	The CSCM statute prohibited unlawful, intentional
touching of the intimate parts of a minor. 	Id. 	The defendant argued that, without
requiring the specific intent that the touching be for sexual gratification, the statute
would criminalize legal behavior such as ordinary parental child care. 	Id. 	Our
Supreme Court disagreed, observing that the statute prohibited only unlawful conduct.
Id. Our cases have defined unlawful as “without legal justification or excuse.” Id. at
80, 792 P.2d at 412. 	In the context of assault, we have noted the importance of
“unlawful” as a qualifier because “[t]here are many strikings which are not unlawful.”

9
Territory v. Miera, 1 N.M. 387, 388 (1866). 	Because the statute only prohibited
touchings without justification or excuse, the Court concluded that the statute did not
include the activities that the defendant argued rendered it overbroad. Id.
{17} 	The Court again examined meaning of the “unlawful” element in the CSCM
statutes one year after Pierce. 	In Osborne, a man was convicted of CSCM for
touching the buttocks of his girlfriend’s seven-year-old daughter while he hugged her.
111 N.M. at 655, 808 P.2d at 625. In dispute was whether the term “unlawful” was
an element of the crime or a defense. Id. The Court “found no indication of express
legislative intent as to whether unlawfulness was meant to be treated as an element of
the offense or its opposite as a defense.” Id. at 658, 808 P.2d at 628. Looking at both
the practical consequences and the use of “unlawful” in the uniform jury instructions,
the Court concluded that “unlawfulness” was an element that the prosecution was
required to prove. See id. at 658-60, 808 P.2d at 628-30.
{18} 	We agree that the explicit inclusion of an “unlawful” element could only
improve Section 30-37-3.2. However, we do not believe that the failure to include
“unlawful” renders the statute unconstitutionally overbroad. Pierce instructs us that
inclusion of “unlawful” would limit the breadth of the statute to avoid the
hypotheticals propounded by Defendant in this case. Pierce does not say that statutes
without an “unlawful” element are necessarily overbroad. Osborne provides guidance

10
on whether “unlawful” is an element or defense when it is present in a statute. As we
have noted above, this concern is adequately addressed by the ability of future
defendants to argue that the statute is unconstitutional as applied.
B. 	Due Process - Vagueness
{19} 	Defendant argues that Section 30-37-3.2 is unconstitutionally vague. 	In
particular, he asserts that the statute is vague “because the statutory language lacks a
requirement that the communication serving the basis for [the] charge is unlawful
communication.” 	Additionally, Defendant contends that the definition of sexual
conduct “was not particularly defined to indicate what conduct was prohibited.”
{20} 	Under the Due Process Clause of the United States Constitution, vagueness can
render a statute unconstitutional. See State v. Leiding, 112 N.M. 143, 148, 812 P.2d
797, 	802 	(Ct. 	App. 	1991) 	(Bivins, 	J., 	specially 	concurring). 	A 	statute 	is
unconstitutionally vague if it does not “allow[] individuals of ordinary intelligence a
fair opportunity to determine whether their conduct is prohibited.” 	Laguna, 1999-
NMCA-152, ¶ 25. Vagueness also exists when “the statute permits police officers,
prosecutors, judges, or juries to engage in arbitrary and discriminatory enforcement
of the statute, which occurs because the statute has no standards or guidelines and
therefore allows, if not encourages . . . ad hoc application.” Id. ¶ 26. A statute enjoys
a strong presumption of constitutionality, and the burden is on Defendant to prove it

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unconstitutional beyond a reasonable doubt. 	Id. ¶ 24. 	“Because the essence of a
vagueness claim rests on a lack of notice, a party may not succeed on the claim if the
statute clearly applies to the defendant’s conduct.” State v. Duran, 1998-NMCA-153,
¶ 31, 126 N.M. 60, 966 P.2d 768, abrogated on other grounds, Laguna, 1999-NMCA-
152, ¶ 23.
{21} 	The statute in this case clearly applies to Defendant’s conduct. Section 30-37-
3.2 prohibits knowingly soliciting by computer a child under sixteen to engage in
sexual conduct. There is no dispute that Defendant believed he was communicating
electronically with a twelve-year-old girl. But Defendant also cannot contend that he
did not solicit sexual conduct. Chapter 37 defines sexual conduct to include, among
other acts, an “act of masturbation.” 	See NMSA 1978, § 30-37-1(C) (1973).
Defendant characterizes his own behavior as a request that “Chrissy” masturbate.
Under the plain meaning of the terms “solicit” and “masturbation,” Defendant’s
version of the facts supports a conclusion that Defendant solicited “Chrissy” to
masturbate. Because the statute clearly applies to the facts of this case, Defendant
may not argue that the statute was unconstitutionally vague.

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C. 	Commerce Clause
{22} 	Defendant’s final argument is that Section 30-37-3.2 violates the Commerce
Clause of the United States Constitution by regulating speech across multiple states.
The State responds that Defendant has not shown that the statute imposes an excessive
burden on interstate commerce. The State also cites to numerous out-of-state cases
that have concluded that soliciting children to perform sex acts is not legitimate
interstate commerce.
{23} 	“In what has become known as the ‘negative’ or ‘dormant’ Commerce Clause
jurisprudence, the Commerce Clause has been interpreted as implicitly ‘prohibit[ing]
certain state actions that interfere with interstate commerce.’” Kmart Props., Inc. v.
N.M. Taxation & Revenue Dep’t, 2006-NMCA-026, ¶ 18, 139 N.M. 177, 131 P.3d 27
(alteration in original) (quoting Quill Corp. v. N.D. ex rel. Heitkamp, 504 U.S. 298,
309 (1992)), reversed on other grounds sub nom. Kmart Corp. v. N.M. Taxation &
Revenue Corp., 2006-NMSC-006, 139 N.M. 172, 131 P.3d 22. To determine whether
a statute impermissibly burdens interstate commerce, we apply the following
balancing test:
Where [a] statute regulates evenhandedly to effectuate a legitimate local
public interest, and its effects on interstate commerce are only incidental,
it will be upheld unless the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits. If a legitimate local
purpose is found, then the question becomes one of degree. 	And the
extent of the burden that will be tolerated will of course depend on the

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nature of the local interest involved, and on whether it could be
promoted as well with a lesser impact on interstate activities.
N.M. Indus. Energy Consumers v. N.M. Pub. Serv. Comm’n, 111 N.M. 622, 628, 808
P.2d 592, 598 (1991) (alteration in original) (quoting Ark. Elec. Coop Corp. v. Ark.
Pub. Serv. Comm’n, 461 U.S. 375, 393-94 (1983)).
{24} 	Because the statute applies “evenhandedly” to both in-state and out-of-state
actors, we balance its burden on interstate commerce against its local purpose. We
have already discussed the importance of the State’s interest in preventing the sexual
exploitation of children. As have the other states to address this issue, we now hold
that Section 30-37-3.2 imposes no burden on legitimate interstate commerce. 	See
Hsu, 99 Cal. Rptr. 2d at 190 (“[I]t is difficult to conceive of any legitimate commerce
that would be burdened by penalizing the transmission of harmful sexual material to
known minors in order to seduce them.”); Simmons v. State, 944 So. 2d 317, 334 (Fla.
2006) (“[T]here is no legitimate interstate commerce interest in communicating with
. . . minors for the purpose of luring them into sexual activity.”); Foley, 731 N.E.2d
at 133 (“We are hard pressed to ascertain any legitimate commerce that is derived
from the intentional transmission of sexually graphic images to minors for the purpose
of luring them into sexual activity.”). 	In addition, the statute addresses only the
behavior relevant to its local purpose and thus could not be drafted in a less restrictive
way.

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{25} 	Avoiding the balancing test, Defendant argues that, according to American
Libraries Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), Section 30-37-3.2
violates the Commerce Clause. 	Defendant’s reliance on Pataki is misplaced. 	In
Pataki, the plaintiffs sought to enjoin the New York Attorney General from enforcing
a statute that prohibited individuals from:
Knowing the character and content of the communication which, in
whole or in part, depicts actual or simulated nudity, sexual conduct or
sado-masochistic 	abuse, 	and 	which 	is 	harmful 	to 	minors, 	[to]
intentionally use[ ] any computer communication system allowing the
input, output, examination or transfer, of computer data or computer
programs from one computer to another, to initiate or engage in such
communication with a person who is a minor.
969 F. Supp. (alterations in original). The court concluded that the statute violated
the Commerce Clause for three reasons: 	(1) because it criminalized conduct that
occurred entirely outside of New York, (2) because the burdens on interstate
commerce outweighed the local benefits, and (3) because the internet “must be
marked off as a national preserve to protect users from inconsistent legislation” that
might limit its growth. Id. at 169, 173-81.
{26} 	Pataki is easily distinguished. 	First, Section 30-37-3.2 only applies to
communications that originated or were received in New Mexico. See § 30-37-3.2(C).
Second, as we discussed above, the New Mexico statute survives the balancing test
because it burdens no legitimate commerce. Because we do not consider soliciting

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children to perform sex acts to be legitimate conduct, we find Pataki’s third rationale
inapposite. Furthermore, unlike the law in Pataki, Section 30-37-3.2 contains mens
rea components that require a defendant to know he is soliciting acts from a child.
Finally, Section 30-37-3.2 also prohibits only a narrow area of unprotected speech,
compared to the law in Pataki, which included a significant amount of indecent, but
protected speech.
III. 	CONCLUSION
{27} 	For the foregoing reasons, we affirm the district court’s judgment and remand
for further proceedings consistent with this Opinion.
{28} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
JONATHAN B. SUTIN, Judge