Showing Sexual Messages on Phone Counts as Sending a Message Under Statute

Man convicted of criminal sexual communication with a child by showing explicit images through handing phone over to a child to directly show the explicit pictures

State v. Tufts, 2016 BL 175227, N.M., No. S-1-SC-35255, 6/2/16.

    The New Mexico Supreme Court found that a man “sent” sexually explicit images to a child by directly showing pictures on his phone to the child. Initially, the trial court convicted the man for sexual communication with a child, but was later reversed by the appellate court over its interpretation of “to send.” On appeal, however, the New Mexico Supreme Court looked at the intent of the statute, finding that it was created to protect children from obscene images produced, stored, or distributed on an electronic device. They noted, that while a third-party carrier may be involved, communication can “occur by delivering the electronic communication device containing the obscene images of the defendant directly to the child.” Moreover, the court concluded “Whether a digital camera, a video recorder, or a cell phone is handed directly to a child or an image is electronically transmitted to one of those devices, the effect of the conduct and the resulting harm to the child—access to obscene electronically generated images via an electronic communication device—is the same.”

http://www.bloomberglaw.com/public/document/State_v_Tufts_No_S1SC35255_2016_BL_175227_NM_June_02_2016_Court_O