This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 v. No. A-1-CA-34797
5 MARK MCCOY,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline D. Flores, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Charles J. Gutierrez 12 Albuquerque, NM
13 for Appellant
14 Bennett J. Baur, Chief Public Defender 15 Becca Salwin, Assistant Appellate Defender 16 Santa Fe, NM
17 for Appellee
18 MEMORANDUM OPINION
19 VIGIL, Judge. 1 {1} The State appeals the district court’s order granting Defendant Mark McCoy’s
2 motion to dismiss the indictment. We reverse and remand. Because this is a
3 memorandum opinion and the parties are familiar with the facts and procedural
4 posture of the case, we set forth only such facts and law as are necessary to decide the
5 merits.
6 BACKGROUND
7 {2} A grand jury indicted Defendant on one count of sexual exploitation of children
8 by prostitution, contrary to NMSA 1978, Section 30-6A-4(B) (1989, amended 2015).
9 The State alleges that Defendant committed the offense of sexual exploitation of a
10 child by prostitution on or around January 29, 2013. As a result, because “the law, at
11 the time of the commission of the offense, is controlling[,]” the 1989 version of
12 Section 30-6A-4 controls our analysis of the State’s appeal and the current version of
13 the statute, as amended in 2015, does not apply. See State v. Allen, 1971-NMSC-026,
14 ¶ 6, 82 N.M. 373, 482 P.2d 237. We offer no opinion on whether the 2015
15 amendments alter the result we reach here.1 The undisputed facts for purposes of this
16 appeal are as follows. Defendant placed an ad on Craigslist looking for “anal fun of
17 a girl of any size or age.” An undercover officer posing as a fourteen-year-old girl
1 18 As amended by the 2015 Legislature, Section 30-6A-4(B) states: “Any person 19 knowingly hiring or offering to hire a child under the age of sixteen to engage in any 20 prohibited sexual act is guilty of a second degree felony.”
2 1 answered Defendant’s ad, and the two began chatting over the internet. During this
2 chat, Defendant offered to pay the undercover officer $10 and provide “spice” in
3 exchange for anal sex.
4 {3} Defendant filed a pre-trial motion to dismiss the indictment as a matter of law,
5 pursuant to State v. Foulenfont, 1995-NMCA-028, ¶ 6, 119 N.M. 788, 895 P.2d 1329
6 and Rule 5-601(B) NMRA (stating that “[a]ny defense, objection or request which is
7 capable of determination without a trial on the merits may be raised before trial by
8 motion).” Defendant argued that the 1989 version of Section 30-6A-4(B), which states
9 “[a]ny person hiring or offering to hire a child over the age of thirteen and under the
10 age of sixteen to engage in any prohibited sexual act is guilty of a second degree
11 felony[,]” requires a child victim rather than a police officer posing as a child in order
12 to constitute a “crime cognizable under the laws of this State. The absence of the
13 statutorily cognizable victim is,” Defendant contended, “an absolute defense,
14 requiring dismissal of the sole count in the case.”
15 {4} After hearing on the merits, the district court issued an order granting
16 Defendant’s motion to dismiss the indictment with prejudice. The district court found
17 that “Defendant had no [actual] contact with a child over the age of thirteen and under
18 the age of sixteen, but instead communicated with an officer posing as a child within
19 the requisite age range.” (Internal quotation marks omitted.) As a result, the district
3 1 court concluded as a matter of law that “the State cannot prove that Defendant offered
2 to hire a child, because the individual whom Defendant allegedly offered to hire was
3 not a child.” In reaching this conclusion, the district court relied heavily on a
4 comparison between Section 30-6A-4(B) and NMSA 1978, Section 30-37-3.2 (2007),
5 which defines the crime of child solicitation by electronic communication device.
6 Section 30-37-3.2(D) states that “[i]n a prosecution for child solicitation by electronic
7 communication device, it is not a defense that the intended victim of the defendant
8 was a peace officer posing as a child under sixteen years of age.” The district court
9 reasoned that unlike Section 30-37-3.2(D), Section 30-6A-4(B) lacks language
10 expressly approving undercover sting operations, evincing legislative intent that
11 charges arising out of such operations are outside the scope of the statute.
12 {5} The State appeals the district court’s order, pursuant to NMSA 1978, Section
13 39-3-3(B)(1) (1972), permitting the State to appeal the district court’s “decision,
14 judgment or order dismissing a complaint, indictment or information as to any one or
15 more counts[.]”
16 DISCUSSION
17 {6} On appeal, the State contests the district court’s interpretation of Section 30-6A-
18 4(B). The State argues that “[t]he plain language of Section 30-6A-4(B) clearly and
19 unambiguously does not require that the State prove that Defendant engaged an actual
4 1 child” to establish the crime of sexual exploitation of a child by prostitution. This
2 interpretation, the State submits, is supported by the legislative purpose of the Sexual
3 Exploitation of Children Act to “protect[] children from the harm caused by sexual
4 predators.” The State also urges this Court to reject the district court’s “gleaning [of]
5 legislative intent pertaining to Section 30-6A-4(B) from Section 30-37-3.2.” As a
6 result, the State contends, the district court’s order granting Defendant’s motion to
7 dismiss the indictment should be reversed.
8 A. Standard of Review
9 {7} “Statutory interpretation is an issue of law, which we review de novo.” State v.
10 Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. “Our primary goal when
11 interpreting statutory language is to give effect to the intent of the [L]egislature.”
12 State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. “We do this by
13 giving effect to the plain meaning of the words of [the] statute, unless this leads to an
14 absurd or unreasonable result.” State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M.
15 240, 96 P.3d 801. “If the language of the statute is clear and unambiguous, we must
16 give effect to that language and refrain from further statutory interpretation.” State v.
17 McWhorter, 2005-NMCA-133, ¶ 5, 138 N.M. 580, 124 P.3d 215.
18 B. Analysis
19 {8} Here, the statute is clear and unambiguous. Section 30-6A-4(B) states that
5 1 “[a]ny person hiring or offering to hire a child over the age of thirteen and under the
2 age of sixteen to engage in any prohibited sexual act is guilty of a second degree
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 v. No. A-1-CA-34797
5 MARK MCCOY,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline D. Flores, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Charles J. Gutierrez 12 Albuquerque, NM
13 for Appellant
14 Bennett J. Baur, Chief Public Defender 15 Becca Salwin, Assistant Appellate Defender 16 Santa Fe, NM
17 for Appellee
18 MEMORANDUM OPINION
19 VIGIL, Judge. 1 {1} The State appeals the district court’s order granting Defendant Mark McCoy’s
2 motion to dismiss the indictment. We reverse and remand. Because this is a
3 memorandum opinion and the parties are familiar with the facts and procedural
4 posture of the case, we set forth only such facts and law as are necessary to decide the
5 merits.
6 BACKGROUND
7 {2} A grand jury indicted Defendant on one count of sexual exploitation of children
8 by prostitution, contrary to NMSA 1978, Section 30-6A-4(B) (1989, amended 2015).
9 The State alleges that Defendant committed the offense of sexual exploitation of a
10 child by prostitution on or around January 29, 2013. As a result, because “the law, at
11 the time of the commission of the offense, is controlling[,]” the 1989 version of
12 Section 30-6A-4 controls our analysis of the State’s appeal and the current version of
13 the statute, as amended in 2015, does not apply. See State v. Allen, 1971-NMSC-026,
14 ¶ 6, 82 N.M. 373, 482 P.2d 237. We offer no opinion on whether the 2015
15 amendments alter the result we reach here.1 The undisputed facts for purposes of this
16 appeal are as follows. Defendant placed an ad on Craigslist looking for “anal fun of
17 a girl of any size or age.” An undercover officer posing as a fourteen-year-old girl
1 18 As amended by the 2015 Legislature, Section 30-6A-4(B) states: “Any person 19 knowingly hiring or offering to hire a child under the age of sixteen to engage in any 20 prohibited sexual act is guilty of a second degree felony.”
2 1 answered Defendant’s ad, and the two began chatting over the internet. During this
2 chat, Defendant offered to pay the undercover officer $10 and provide “spice” in
3 exchange for anal sex.
4 {3} Defendant filed a pre-trial motion to dismiss the indictment as a matter of law,
5 pursuant to State v. Foulenfont, 1995-NMCA-028, ¶ 6, 119 N.M. 788, 895 P.2d 1329
6 and Rule 5-601(B) NMRA (stating that “[a]ny defense, objection or request which is
7 capable of determination without a trial on the merits may be raised before trial by
8 motion).” Defendant argued that the 1989 version of Section 30-6A-4(B), which states
9 “[a]ny person hiring or offering to hire a child over the age of thirteen and under the
10 age of sixteen to engage in any prohibited sexual act is guilty of a second degree
11 felony[,]” requires a child victim rather than a police officer posing as a child in order
12 to constitute a “crime cognizable under the laws of this State. The absence of the
13 statutorily cognizable victim is,” Defendant contended, “an absolute defense,
14 requiring dismissal of the sole count in the case.”
15 {4} After hearing on the merits, the district court issued an order granting
16 Defendant’s motion to dismiss the indictment with prejudice. The district court found
17 that “Defendant had no [actual] contact with a child over the age of thirteen and under
18 the age of sixteen, but instead communicated with an officer posing as a child within
19 the requisite age range.” (Internal quotation marks omitted.) As a result, the district
3 1 court concluded as a matter of law that “the State cannot prove that Defendant offered
2 to hire a child, because the individual whom Defendant allegedly offered to hire was
3 not a child.” In reaching this conclusion, the district court relied heavily on a
4 comparison between Section 30-6A-4(B) and NMSA 1978, Section 30-37-3.2 (2007),
5 which defines the crime of child solicitation by electronic communication device.
6 Section 30-37-3.2(D) states that “[i]n a prosecution for child solicitation by electronic
7 communication device, it is not a defense that the intended victim of the defendant
8 was a peace officer posing as a child under sixteen years of age.” The district court
9 reasoned that unlike Section 30-37-3.2(D), Section 30-6A-4(B) lacks language
10 expressly approving undercover sting operations, evincing legislative intent that
11 charges arising out of such operations are outside the scope of the statute.
12 {5} The State appeals the district court’s order, pursuant to NMSA 1978, Section
13 39-3-3(B)(1) (1972), permitting the State to appeal the district court’s “decision,
14 judgment or order dismissing a complaint, indictment or information as to any one or
15 more counts[.]”
16 DISCUSSION
17 {6} On appeal, the State contests the district court’s interpretation of Section 30-6A-
18 4(B). The State argues that “[t]he plain language of Section 30-6A-4(B) clearly and
19 unambiguously does not require that the State prove that Defendant engaged an actual
4 1 child” to establish the crime of sexual exploitation of a child by prostitution. This
2 interpretation, the State submits, is supported by the legislative purpose of the Sexual
3 Exploitation of Children Act to “protect[] children from the harm caused by sexual
4 predators.” The State also urges this Court to reject the district court’s “gleaning [of]
5 legislative intent pertaining to Section 30-6A-4(B) from Section 30-37-3.2.” As a
6 result, the State contends, the district court’s order granting Defendant’s motion to
7 dismiss the indictment should be reversed.
8 A. Standard of Review
9 {7} “Statutory interpretation is an issue of law, which we review de novo.” State v.
10 Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. “Our primary goal when
11 interpreting statutory language is to give effect to the intent of the [L]egislature.”
12 State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. “We do this by
13 giving effect to the plain meaning of the words of [the] statute, unless this leads to an
14 absurd or unreasonable result.” State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M.
15 240, 96 P.3d 801. “If the language of the statute is clear and unambiguous, we must
16 give effect to that language and refrain from further statutory interpretation.” State v.
17 McWhorter, 2005-NMCA-133, ¶ 5, 138 N.M. 580, 124 P.3d 215.
18 B. Analysis
19 {8} Here, the statute is clear and unambiguous. Section 30-6A-4(B) states that
5 1 “[a]ny person hiring or offering to hire a child over the age of thirteen and under the
2 age of sixteen to engage in any prohibited sexual act is guilty of a second degree
3 felony.” The use of the word “or” in Section 30-6A-4(B) “indicates that the statute
4 may be violated by any of the enumerated methods.” See State v. Dunsmore, 1995-
5 NMCA-012, ¶ 5, 119 N.M. 431, 891 P.2d 572. Two alternative methods of violating
6 Section 30-6A-4(B) are set forth—a person violates the statute by either “hiring” or
7 “offering” to hire a child between the ages of thirteen and sixteen to engage in a
8 prohibited sex act. The act of “hiring” a child between the ages of thirteen and sixteen
9 to engage in a prohibited sex act, requires an actual child. As the State concedes, this
10 is because “[i]t would be impossible to actually hire a non-existent child.” However,
11 because the State alleges that Defendant was “offering to hire a child” between
12 thirteen and sixteen to engage in a prohibited sexual act, we proceed to determine
13 whether this part of the statute requires an actual child. For the reasons that follow, we
14 conclude that it does not.
15 {9} Our inquiry into the plain meaning of Section 30-6A-4(B) turns on the meaning
16 of the statute’s undefined word “offer.” In ascertaining the plain meaning of undefined
17 statutory language, our appellate courts often turn to dictionary definitions. See State
18 v. Lindsey, 2017-NMCA-048, ¶ 14, 396 P.3d 199 (“As a starting point for interpreting
19 undefined terms contained in a statute, our courts often use dictionary definitions to
6 1 ascertain the ordinary meaning of words that form the basis of statutory construction
2 inquiries.” (alteration, internal quotation marks, and citation omitted)).
3 {10} The word “offer” has a commonly accepted meaning. It is defined in part as, “to
4 present for acceptance or rejection”; and “to make a proposal[.]” Webster’s Third New
5 Int’l Dictionary 1566 (Unabridged ed. 2002). A synonym is “to put something before
6 another for acceptance.” Id. Applying the plain meaning rule, a violation of the second
7 part of Section 30-6A-4(B) is committed when an individual “presents for acceptance”
8 or “makes a proposal” to pay a child between the age of thirteen and sixteen to engage
9 in a prohibited sexual act. The statute does not require the offer to be made to an
10 actual child, nor does it require a child to actually engage in a prohibited sexual act.
11 This conclusion is consistent with the New Mexico public policy that “the State has
12 a compelling interest in protecting children from sexual predators and sexual
13 exploitation[,]” State v. Ebert, 2011-NMCA-098, ¶ 12, 150 N.M. 576, 263 P.3d 918,
14 and that “police may detect criminals by means of a ruse.” State v. Schaublin, 2015-
15 NMCA-024, ¶ 19, 344 P.3d 1074. Because the meaning of Section 30-6A-4(B) is
16 ascertainable from the plain meaning of the language employed, we refrain from
17 further statutory interpretation.
18 {11} Applying our holding above to the facts of this case, we conclude that the
19 district court erred in dismissing the indictment. Defendant allegedly “presented for
7 1 acceptance” or otherwise “made a proposal” to pay a fourteen-year-old girl $10 and
2 spice in exchange for anal sex—a prohibited sexual act under the Sexual Exploitation
3 of Children Act. See NMSA 1978, § 30-6A-2(A)(1) (2001) (stating prohibited sexual
4 acts include “genital-genital, oral-genital, anal-genital or oral-anal, whether between
5 persons of the same or opposite sex” (emphasis added)). The fact that he actually
6 made the offer to an undercover police officer does not negate the statutory elements.
7 {12} We also reject Defendant’s argument that this Court should affirm the district
8 court’s order under the rule of lenity. The rule of lenity counsels that “[a] criminal
9 statute must be strictly construed and may not be applied beyond its intended scope.”
10 State v. Stephenson, 2017-NMSC-002, ¶ 12, 389 P.3d 272 (internal quotation marks
11 and citation omitted). The rule applies only “in cases where there is insurmountable
12 ambiguity regarding legislative intent[.]” State v. Lozoya, 2017-NMCA-052, ¶ 14, 399
13 P.3d 410 (internal quotation marks and citation omitted). Here, as we concluded
14 above, the conduct Defendant was alleged to have committed is within the scope of
15 an alternative of Section 30-6A-4(B). It is clear and unambiguous that the Legislature
16 intended to punish individuals under Section 30-6A-4(B) for “offering to hire” a child
17 of the requisite age to engage in prohibited sexual acts. Accordingly, we reject
18 Defendant’s argument.
19 CONCLUSION
8 1 {13} For the foregoing reasons, we conclude that the district court erred in granting
2 Defendant’s motion to dismiss the indictment. We reverse and remand for further
3 proceedings.
4 {14} IT IS SO ORDERED.
5 _______________________________ 6 MICHAEL E. VIGIL, Judge
7 WE CONCUR:
8 ___________________________ 9 M. MONICA ZAMORA, Judge
10 ___________________________ 11 STEPHEN G. FRENCH, Judge