State v. Hughes

261 P.3d 1067, 127 Nev. 626, 127 Nev. Adv. Rep. 56, 2011 Nev. LEXIS 72
Nevada Supreme Court·Decided September 29, 2011·No. 54327·Published·Cited by 15 cases

Opinions

OPINION

By the Court,

Pickering, J.:

This is an appeal from a district court order granting a motion to dismiss a child pornography charge. Respondent Aaron Taylor Hughes allegedly created three digital videos of himself engaging in sexual intercourse with a 17-year-old. He faces several criminal charges, trial on which awaits resolution of this appeal. We are concerned only with the charge the district court dismissed: the use of a minor, identified in the criminal information as “a person less than the age of eighteen,” in producing pornography or as the subject of a sexual portrayal in a performance.

Under NRS 200.710, ‘‘[a] person who knowingly uses, encourages, entices or permits a minor to simulate or engage in or assist others to simulate or engage in sexual conduct to produce a performance” or “knowingly uses, encourages, entices, coerces or permits a minor to be the subject of a sexual portrayal in a performance” is guilty of a felony. Neither NRS 200.710 nor NRS 200.700 — the applicable definition section — defines the term “minor.” Hughes filed a motion to dismiss the pornography charge on the ground that the word ‘ ‘minor’ ’ is unconstitutionally vague because it is unclear whether the term refers to persons under age 18 or some other age. In the alternative, he argued that the statute does not apply to his alleged conduct because “minor” refers to people under 16 years of age. The district court dismissed the child [628] pornography charge, concluding that the statute was vague and that it only applied to production of pornography involving individuals under 16 years of age. The State appealed; we reverse.

“The constitutionality of a statute is a question of law that we review de novo. Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional. . . . [T]he challenger must make a clear showing of invalidity.” Silvar v. Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006) (footnote omitted). “ ‘[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’ ” State v. Castaneda, 126 Nev. 478, 481, 245 P.3d 550, 552 (2010) (quoting Hooper v. California, 155 U.S. 648, 657 (1895)); accord Virginia and Truckee R.R. Co. v. Henry, 8 Nev. 165, 174 (1873) (“It requires neither argument nor reference to authorities to show that when the language of a statute admits of two constructions, one of which would render it constitutional and valid and the other unconstitutional and void, that' construction should be adopted which will save the statute”).

“Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause[s] of the Fifth” and Fourteenth Amendments to the United States Constitution. United States v. Williams, 553 U.S. 285, 304 (2008); Silvar, 122 Nev. at 293, 129 P.3d at 684-85. “Vagueness may invalidate a criminal law for either of two independent reasons,” Chicago v. Morales, 527 U.S. 41, 56 (1999): (1) if it “ ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited’ ”; or (2) if it “ ‘is so standardless that it authorizes or encourages seriously discriminatory enforcement.’ ” Holder v. Humanitarian Law Project, 561 U.S. 1, 18 (2010) (quoting Williams, 553 U.S. at 304).

Enough clarity to defeat a vagueness challenge “ ‘may be supplied by judicial gloss on an otherwise uncertain statute,’ ” Skilling v. United States, 561 U.S. 358, 412 (2010) (quoting United States v. Lanier, 520 U.S. 259, 266 (1997)), or by giving a statute’s words their “ ‘well-settled and ordinarily understood meaning.’ ” Castaneda, 126 Nev. at 483, 245 P.3d at 554 (quoting Berry v. State, 125 Nev. 265, 280, 212 P.3d 1085, 1095 (2009), abrogated on other grounds by Castaneda, 126 Nev. at 482 n.1, 245 P.3d at 553 n.1).

We conclude that the term “minor” is not unconstitutionally vague because it has a well-settled and ordinarily understood [629] meaning: an individual under 18 years of age. The common dictionary definition of the term is “[o]ne who has not reached full legal age.” See Webster’s New College Dictionary 715 (3d ed. 2008); see also Black’s Law Dictionary 1017 (9th ed. 2009) (defining “minor” as “[a] person who has not reached full legal age; a child or juvenile”). Full legal age is defined in NRS 129.010 as 18 years: “[a]ll persons of the age of 18 years ... are . . . considered to be of lawful age.” Thus, the term “minor” refers to individuals under the age of 18 years.1

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State v. Hughes, 261 P.3d 1067, 127 Nev. 626, 127 Nev. Adv. Rep. 56, 2011 Nev. LEXIS 72 (Neb. 2011).

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State v. Hughes
261 P.3d 1067 (Nevada Supreme Court, 2011)