Motion To Dismiss - Santa Fe County

FIRST JUDICIAL DISTRICT
COUNTY OF SANTA FE
STATE OF NEW MEXICO

No. D-0101-CR-99-824

STATE OF NEW MEXICO,
Plaintiff,
vs.
MARK RENDLEMAN,
Defendant.

MOTION TO DISMISS BASED ON FIRST AND FOURTEENTH AMENDMENTS
AND N.M. CONST. ART. II, SECTION 17

COMES NOW Defendant Mark Rendleman (Mr. Rendleman), by and through his attorneys, and respectfully moves for an Order dismissing Count I of the Indictment, and as grounds for the motion states as follows:
0. Count I of the Indictment charges Mr. Rendleman with one count of sexual exploitation of children contrary to NMSA 1978, ¤ 30-6A-3B). Count II of the Indictment charges Mr. Rendleman with one count of criminal sexual contact of a minor, contrary to NMSA 1978, ¤ 30-9-13A(1).
1. Mr. Rendleman is a nationally known artist and former professor of art, with an extensive background in photography, film and video.
2. The charge of sexual exploitation of children relates to Mr. Rendleman's conduct in taking photographs of his nine year old daughter, Scarlet Rendleman, documenting her normal daily activities and development. None of the photographs involve lewd or lascivious displays of nudity or sexually explicit conduct. Mr. Rendleman took the photographs for private purposes and has never intended to display the photographs publicly.
3. Because the photographs have serious artistic value and do not involve lewd displays of sexual activity, Mr. Rendleman's conduct was constitutionally protected under the First and Fourteenth Amendments to the United States Constitution and Article II, Section 17 of the New Mexico Constitution.
4. In addition, because the criminal exploitation of children statute did not provide fair notice that Mr. Rendleman's conduct in taking the photographs constituted a crime, prosecution of Mr. Rendleman violates the Due Process Clause of the Fourteenth Amendment.
5. For the foregoing reasons, the Count I of Indictment should be dismissed.
6. Due to the nature of this motion, concurrence by opposing counsel has not been sought. A memorandum in support of the motion is being filed contemporaneously with this motion.
7. Mr. Rendleman respectfully requests that the Court conduct an evidentiary hearing to examine the factual predicate for his constitutional claims.
WHEREFORE, Mr. Rendleman respectfully requests that this Court conduct an evidentiary hearing and dismiss the Count I of the Indictment.

MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO DISMISS BASED ON FIRST AND FOURTEENTH AMENDMENTS
AND N.M. CONST. ART. II, SECTION 17

Defendant Mark Rendleman (Mr. Rendleman) submits this memorandum of law in support of his motion to dismiss Count I of the Indictment.
. INTRODUCTION.
Count I of the Indictment charges Mr. Rendleman, a nationally known artist and former art professor, with sexual exploitation of children solely because of photographs Mr. Rendleman took of his nine year old daughter, Scarlet Rendleman, for private purposes of documenting her daily activities and development. Because the photographs have artistic value and/or simply document Scarlet's daily activities and development for purely private purposes and in a way that is not lewd, lascivious or sexual, Mr. Rendleman's conduct was constitutionally protected under the First Amendment to the United States Constitution and N.M. Const. art. II, ¤ 17. In addition, because the sexual exploitation of children and criminal sexual contact of a minor statutes did not provide fair notice that photographs taken by a parental figure for private family purposes would constitute a crime, this prosecution violates due process.
. BACKGROUND.
I. Facts.
Mark Rendleman is a nationally known artist and former art professor. He graduated from the New Mexico Military Institute in Roswell, New Mexico and received a B.A. in Art and Psychology from the University of Washington in 1972, and a Master of Fine Arts degree in Painting and Drawing from the University of California at Santa Barbara in 1974. His academic awards included a University of California Regent's Fellowship, a NMMI Regent's Scholarship, the Lambda Rho Scholar Award, the Award of Merit in Art, the Walter F. Isaac Memorial Scholarship, the Bausch & Lomb Award for work on visual perception, the Gunther Prize for a paper on visual illusions, the Student Rotarian of the Year award, and the Outstanding Science Student Award. At NMMI, he was named president of his junior and senior classes and president of the local chapter of the National Honor Society.
Mr. Rendleman has been an assistant art professor at California State University at San Diego and at Middlebury College in Vermont. He was a teaching assistant in the art department at the UCSB and taught introductory classes in basic photography and painting at the University of Washington. He has been a guest lecturer at the University of Arizona, Texas Christian University, the University of California, the University of Washington, Southwestern University and Western Carolina University.
Mr. Rendleman grew up in an environment in which the human body was considered a creation of and gift from God, and nudity was not something to be ashamed of. In the 1940's and 1950's, Mr. Rendleman's mother posed as a nude model for sculptors and photographers. Consistent with that upbringing, Mr. Rendleman was for many years a practicing nudist and he has incorporated that sensibility into his art work.
In 1981, Mr. Rendleman gave up his career as an art professor. He moved back to New Mexico to care for his ailing parents, both of whom passed away by 1993. Since moving back to New Mexico, his work mostly has entailed his art project in Embudo, stock and bond trading and real estate investment and development. His time is also dedicated to raising his daughter, Scarlet. Mr. Rendleman has shared custody of Scarlet.,
Mr. Rendleman is an avid photographer and videographer/film maker. He has shot hundreds of hours of videotape and film and thousands of photographs. Among those photographs are numerous photographs of Scarlet. All of the photographs were processed through a commercial lab. Some of the photographs are pictures involving poses with an artistic intent, while other photographs document the daily live of Scarlet. A very small percentage of those photographs include nudity. None of the photographs involve real or simulated sexual activity or suggest sexual activity. None of the pictures has ever been displayed publicly, and Mr. Rendleman never intended to display the photographs publicly.
. The Indictments.
The Indictment charges Mr. Rendleman with one count of sexual exploitation of children contrary to NMSA 1978, ¤ 30-6A-3(B) and one count of criminal sexual contact of a minor, contrary to NMSA 1978, ¤ 30-9-13A(1). The charge of sexual exploitation of children relates to Mr. Rendleman's conduct in taking photographs of Scarlet.
. Sexual Exploitation of Children.
Under NMSA 1978, ¤ 30-6A-3(B) (1993):
It is unlawful for any person to intentionally cause or permit a child under eighteen years of age to engage in any prohibited sexual act or simulation of such an act if that person knows, has reason to know or intends that the act may be recorded in any visual or print medium or performed publicly. Any person who violates this subsection is guilty of a third degree felony, unless the child is under the age of thirteen, in which event the person is guilty of a second degree felony.
Under NMSA 1978, ¤ 30-6A-2 (1993):
A. "prohibited sexual act" means:

(1) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex;

(2) bestiality;

(3) masturbation;

(4) sadomasochistic abuse for the purpose of sexual stimulation; or

(5) lewd and sexually explicit exhibition with a focus on the genitals or pubic area of any person for the purpose of sexual stimulation;

B. "visual or print medium" means:

(1) any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer or electronically generated imagery; or

(2) any book, magazine or other form of publication or photographic reproduction containing or incorporating any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer generated or electronically generated imagery;

C. "performed publicly" means performed in a place which is open to or used by the public; and

D. "manufacture" means the production, processing, copying by any means, printing, packaging or repackaging of any visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age.

. ARGUMENT.
. Mr. Rendleman's Conduct Constituted Speech And Expression Protected Under The First Amendment To The United States Constitution.
Under the First Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, a State "shall make no law abridging freedom of speech." The protection of "speech" under the First Amendment includes visual art and photography. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) ("the Constitution looks beyond written or spoken words as mediums of expression"); Massachusetts v. Oakes, 491 U.S. 576, 591-92 (1989) ("Photography, painting, and other two-dimensional forms of artistic reproduction . . . are plainly expressive activities that ordinarily qualify for First Amendment protection.") (Brennan, J., dissenting); Bery v. City of New York, 97 F.3d 689, 695 (2d Cir. 1996) ("Visual art is as wide ranging in its depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other writing, and is similarly entitled to full First Amendment protection."), cert. denied, ___ U.S. ___, 117 S.Ct. 2408 (1997); Brooklyn Institute of Arts and Sciences v. City of New York, 64 F.Supp.2d 184 (E.D.N.Y. 1999) (enjoining city's withholding of funds from museum based on content of art exhibit).
Serious artistic and/or literary expression receives full First Amendment protection because our "cultural life," just like our political system, "rests upon [the] ideal" that "each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641 (1994). See also Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972) ("To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship.").
. General Obscenity Standard.
The courts have made it abundantly clear that a depiction of nudity, including child nudity, without more, constitutes protected expression. New York v. Ferber, 458 U.S. 747, 765, n. 18 (1982) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975)); Rhoden v. Morgan, 863 F.Supp. 612 (M.D. Tenn. 1994) ("Even depictions of nudity involving a minor constitute protected expression absent a showing that the depictions are 'in some significant way, erotic.'") (quoting Erznoznik, 422 ;U.S. at 214 n. 10). In most circumstances, a state may proscribe expression involving nudity only when it crosses the line into obscenity. See generally Miller v. California, 413 U.S. 15 (1973). This narrowly limited exception to the right of free speech derives from the fact that obscenity is not "[an] essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). See also Roth v. United States, 354 U.S. 476, 485 (1957) ("rejection of obscenity as utterly without redeeming social importance" is implicit in the history of the First Amendment).
Nonetheless, the courts have repeatedly expressed their concerns about "the inherent dangers of undertaking to regulate any form of expression." Miller, 413 U.S. at 23. See also Roth v. United States, 354 U.S. 476, 488 (1957) ("Ceaseless vigilance is the watchword to prevent . . . erosion [of First Amendment rights] by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests."); Hannigan v. Esquire, 327 U.S. 146, 157 (1946) ("Under our system of government there is an accommodation for the widest varieties of tastes and ideas."). Thus, the courts have sought "not only to assure that statutes designed to regulate obscene materials sufficiently defined what was prohibited, but also to devise substantive limits on what fell within the permissible scope of regulation." Ferber, 458 U.S. at 755. In Miller, the court said that a "state offense [involving obscenity] must . . . be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Id., 413 U.S. at 24.
In Jenkins v. Georgia, 418 U.S. 153 (1974). the Supreme Court reversed a conviction of the manager of a theater for showing the film "Carnal Knowledge," which the jury deemed to be obscene. In finding that there was nothing patently offensive about the film, the court rejected the state's argument that the trial jury's determination of the issue was conclusive. As the court said:
Even though questions of appeal to the "prurient interest" or of "patent offensiveness" are "essentially questions of fact," it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is "patently offensive."

Id., 418 U.S. at 160.
See also City of St. George v. Turner, 813 P.2d 1188, 1191 (Utah Ct.App. 1991) (citing Jenkins and holding that in criminal obscenity trials, trial court "has the responsibility to make a threshold determination" of obscenity before turning case over to jury), aff'd, 860 P.2d 929 (Utah 1993); Davis v. Texas, 658 S.W.2d 572, 581 (Tex. Crim. App. 1983) (en banc) ("[I]t is now incumbent upon the trial court and, if conviction and appeal, the appeallate court, to make the independent determination of whether material that is alleged to be obscene is factually and constitutionally obscene, if issue is made in the trial or appellate court whether the material is obscene, either constitutionally or factually); Roth, 354 U.S. at 497-98 (Harlan, J. concurring) ("[T]he question of whether a particular work is of that character [i.e., obscene] involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind."); Jocbellis v. Ohio, 378 U.S. 184, 188 (1964) (holding that the question of whether a particular work is obscene "necessarily implicates an issue of constitutional law"); Bose Corp v. Consumers Union of United States, Inc., 466 U.S. 485, 504-05 (1984) (stating, in defamation case, that First Amendment "imposes a special responsibility on judges" whenever it is claimed that a particular communication falls within a category of unprotected speech); Zeitlin v. Arnebergh, 383 P.2d 152 (Cal. 1963) (en banc) (applying independent review to find Henry Miller's Tropic of Cancer not obscene as a matter of law); Attorney General v. Book Named "Tropic of Cancer", 184 N.E.2d 328 (Mass. 1962) (same); United States v. One Book Called "Ulysses", 5 F.Supp. 182 (S.D.N.Y. 1933) (judicial determination that James Joyce's Ulysses not obscene as a matter of law), aff'd, 72 F.2d 705 (2d Cir. 1934); People v. Lamborn, 708 N.E.2 350 (Ill. 1999) (sufficiency of evidence aside, court must view photographs themselves to determine whether they are lewd under child pornography statute).
As Jenkins and its progeny demonstrate, the Court must decide in the first instance whether the material has serious artistic, literary, political or scientific value and could conceivably be determined to be patently offensive or of prurient interest according to community standards.
. Child Pornography Standard.
In Ferber, and then in Osborne v. Ohio, 495 U.S. 103 (1990), the court confirmed that depictions of nude children, without more, are constitutionally protected. Ferber, 458 U.S. at 764; Osborne, 495 U.S. at 112. The Ferber court relaxed the obscenity standard as it applies to depictions of children, holding that "the States are entitled to greater leeway in the regulation of pornographic depictions of children." Id., 458 U.S. at 756. However, the court warned that "[l]ike obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy." Id. Thus, the court said that offenses involving child pornography must be "limited to works that visually depict sexual conduct by children below a specified age" and that "[t]he category of 'sexual conduct' proscribed must also be suitably limited and described." Id., 458 U.S. at 764. The court also retained constitutional protection for nude depictions of any sort that have serious literary, artistic, political, or scientific value. Id. See also Edward de Grazia, Girls Lean Back Everywhere 653n (1992) ("[T]he [Ferber] Court expressly said that the first two prongs [of the Miller obscenity standard] would not apply, but implied that the third prong [absence of serious literary, artistic, political or scientific value] would.").
In Ferber, the court considered a New York statute that prohibited depictions of children engaged in "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." The court held that the statute was constitutional because "[t]he forbidden acts to be depicted . . . represent the kind of conduct that, if it were the theme of a work, could render it legally obscene." Id.
Here, while some of Mr. Rendleman's photographs include depictions of nudity, the photographs do not depict conduct that could render the pictures obscene. The photographs do not include the kind of lewd exhibition of the genitals that would remove the pictures from constitutional protection. See Lamborn, 708 N.E.2d at 354 (defining "lewd" as "[o]bscene, lustful, indecent, lascivious, [or] lecherous"); Black's Law Dictionary (5th ed.) at 817 (defining "lewd" as "[o]bscene, lustful, indecent, lascivious, lecherous" and involving "a lascivious intent"). That is, the photographs do not involve a graphic focus on the genitals which suggests sexual activity or an intent to produce sexual stimulation or gratification. Rather, the nudity included in the photographs suggests themes such as primitivism and childish playfulness, and the photographs have serious artistic value. Others simply reflect a parental figure documenting the activities and development of a child. See People v. Lewis, 712 N.E.2d 401, 410 (Ill.App.) (photograph displaying genitals of child is not lewd if it "merely capture[s] an uninhibited moment of adolescent spontaneity") (citations and internal quotation marks omitted), appeal denied, 185 Ill.2d 649, ___ N.E.2d ___ (1999).
In this regard, the Lewis court's finding that the photograph at issue in that case was not lewd is instructive. After laying out a six-part test1, the court said:
Regarding the first factor, the focal point of the photo is not the child's genitals. The photo depicts J.T.'s entire body, with the exception of her lower legs. Regarding factor two, although the setting is a bedroom, this fact is not used to suggest sexual activity. A made-up bed appears in the background without any indication that the bed has any sexual meaning in the photo. Regarding the third factor, J.T.'s pose is not suggestive or unnatural. She stands with her arms at her side and her head straight ahead, slightly down. The fourth factor is the only one that weighs in favor of lewdness. There is nothing in the photo that suggests sexual coyness or a willingness to engage in sexual activity. The child appears uncomfortable and embarrassed. Further, the photo does not appear to be designed to elicit a sexual response in an objective viewer. Although the photo depicts a naked child standing in a bedroom, she is not posed in a sexual manner, she is not wearing inappropriate attire, and the expression on her face is not sexual, inviting, or coy in any way. Thus, . . ., we determine that the photo is not lewd.

Id., 712 N.E.2d at 410-11.
Because the photographs here are not lewd or sexually explicit, they constitute expression protected by the First Amendment. Therefore, Mr. Rendleman cannot be prosecuted under ¤¤ 30-6A-3(B) for producing the photographs, and the Court should dismiss Count I of the Indictment.
. Mr. Rendleman's Conduct Constituted Speech and Expression Protected Under Article II, ¤17 Of The New Mexico Constitution.
Under N.M. Const. art. II, ¤17, "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." "By its terms, Article II, Section 17 protects the right of each person to disseminate his or her ideas on any number of subjects and prohibits legislation that restricts the right of free speech." Twohig v. Blackmer, 1996-NMSC-023, ¦12, 121 N.M. 746, 918 P.2d 332. An "abuse" of free speech occurs only when the community cannot tolerate the matter. City of Farmington v. Fawcett, 114 N.M. 537, 546, 843 P.2d 839 (Ct. App. 1992).
As the New Mexico Supreme Court said in Fawcett, "The purpose of free speech and press is to preserve 'the independence of public discourse so that a democratic will within a culturally heterogeneous state can emerge under conditions of neutrality, and so that individuals can use the medium of public discourse to persuade others to experiment in new forms of community life.'" Id. (quoting Robert C. Post, "The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell," 103 Harv. L. Rev. 601, 684 (1990)). In distinguishing the speech protection under the federal and state constitutions, the court noted that the state constitution
does not merely vouchsafe protection to the expression of ideas of value, but to "sentiments on any subject." The word "sentiments," comporting elements of emotion and feeling, may, by itself, be broader than "ideas." More important, no subject is unprotected. [The State Constitution] extends at least the protection of constitutional-level scrutiny to the expression of sentiments on any subject, whether it be hostile and vulgar . . . or sexually explicit . . . . None should be deemed wholly without protection and . . . that protection only recedes so far as to permit holding the citizen "responsible for the abuse of this liberty."

Id., 114 N.M. at 545-46.
While acknowledging that obscenity can constitute an abuse of free speech falling outside of the protections of Article II, ¤17, the Fawcett court rejected the "community acceptance" standard applied under the federal constitution and reversed a conviction based on that standard. As the court said, the federal standard may allow the jury to convict a defendant "for speech which was merely 'unacceptable' or beyond 'decency.'" Id., 114 N.M. at 546. However,
"Acceptance" is really the lowest common denominator, and may well limit dialogue on significant public issues beyond obscenity. . . . "Decency" implies what is "proper." . . . The community, or indeed the average person, may well find some speech "unacceptable" or not "decent" which is nonetheless constitutionally permissible.

Id.
Therefore, the court said:
Rather than allowing the fact finder to determine that material is an abuse of the grant of free speech under Article II, Section 17, based on the "acceptance" of the community, we believe more is required. We believe 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.

Id.
Because the New Mexico Constitution offers greater speech protection than the federal constitution, the New Mexico courts should apply greater scrutiny to, and a more limited interpretation of, statutes aimed a child pornography than the federal courts apply under the relaxed obscenity standard articulated in Ferber and Osborne. In fact, there is no authority that anything less than obscenity as defined under New Mexico law may be proscribed, regardless of whether the expression involves depictions of children.
Because the photographs have value from the standpoint of a parent documenting the daily activities and development of his child and no reasonable finder of fact could conclude that Mr. Rendleman's photographs meet the obscenity standard, the court should dismiss Count I of the Indictment.
. The State Lacks A Legitimate Interest In Proscribing Mr. Rendleman's Conduct.
While recognizing the authority of a State to ban distribution of obscene materials, the U.S. Supreme Court in Stanley v. Georgia, 394 U.S. 557 (1969), held that the First Amendment prohibits a State from making mere private possession of obscene material a crime. The Stanley court noted that "mere possession of printed or filmed matter in the privacy of a person's own home" involved an element of constitutionally protected privacy. Id., 394 U.S. at 564. As the court said, "Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." Id., 394 U.S. at 566.
As with the obscenity standard, the federal courts have given the states greater latitude with respect to pornographic depictions of children. In Osborne, the court held that a State may criminalize mere possession of child pornography. The court said that such prohibitions are justified by the State's compelling interest in protecting the physical and psychological well-being of minors and in destroying the market for the exploitive use of children by penalizing those who possess and view the offending materials. Id., 495 U.S. at 108-11. Significantly, the court noted the limiting construction the Ohio Supreme Court had given the statute at issue, requiring that the depiction involve lewd exhibition or graphic focus on the genitals of a person who is neither the child nor the ward of the person charged. Id., 495 U.S. at 112-114 & n. 9. "By limiting the statute's operation in this manner, the Ohio Supreme Court avoided penalizing persons for viewing or possessing innocuous photographs of naked children." Id., 495 U.S. at 114.2
Where, as here, photographs are taken by a parent or one standing in loco parentis and are not distributed or intended to be distributed publicly, the state has no interest in prohibiting that conduct. Therefore, the conduct is protected under the First and Fourteenth Amendments.
. The Statute Is Unconstitutionally Vague As Applied To Mr. Rendleman's Conduct.
A statute violates the Fourteenth Amendment due process requirement if it is so vague that persons of common intelligence must necessarily guess at its meaning. State v. Andazola, 95 N.M. 430, 431, 622 P.2d 1050 (Ct.App. 1981); State v. Najera, 89 N.M. 522, 554 P.2d 983 (Ct. App. 1976). The vagueness doctrine "incorporates notions of fair notice or warning." Smith v. Goguen, 415 U.S. 566, 572 (1974). As the court said in Gayned v. City of Rockford, 408 U.S. 104 (1972):
[B]ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,. Vague laws may trap the innocent by not providing fair wanting.

Id., 408 U.S. at 109-09.
In Krukowski v. Swords, 15 F.Supp.2d 188 (D. Conn. 1998), the court held that a Connecticut statute prohibiting conduct constituting a risk of injury to minors was unconstitutionally vague as applied to the plaintiff's conduct, which involved photo sessions with minor models who posed nude with the permission of their parents. Criminal charges had been brought against the plaintiff and then dismissed, and the court issued an injunction prohibiting the state from prosecuting the plaintiff for similar conduct.
The Krukowski court found that neither the text of the statute nor any judicial gloss applied to that text provided fair notice that his actions were prohibited. Id., 15 F.Supp.2d at 202-03. The court noted that there was no per se rule that photographing naked or partially naked children violated the statute. Id., 15 F.Supp.2d at 203. The court then distinguished reported cases where prosecutions were permitted, including (i) a case where a junior high school teacher took nude and semi-nude photographs of the victim after promising to give her a passing grade in his science class and on one occasion touched the private parts of the victim, (ii) a case where photographs depicted naked boys and girls in sexually explicit poses and positions, (iii) a case where the defendant took photographs of a 13-year old boy in a state of sexual arousal, made sexually suggestive comments to the boy and attempted to sexually assault him, and (iv) a case where the defendant took photographs of minors in provocative poses in various stages of undress. Id.
Looking at this history the court said:
Each of these cases is distinguishable from the present case in ways the court finds significant. In particular, each involved convictions for the creation of child pornography . . . and/or for sexually explicit physical conduct by the accused . . . . Neither of these characterizations apply to Krukowski's conduct or words with respect to Deane. Moreover, unlike the instant case, none of these earlier applications . . . involved the consent of the victim and a parent. Indeed, [two of the prior cases] involved courses of conduct by the accused that may be described as threatening or coercive to the victim. . . . Finally, none of these cases involved activity by the accused that could even remotely be considered legitimate. On the other hand, engaging in non-pornographic fashion modeling sessions may reasonably be considered a legitimate activity.

Id., 15 F.Supp.2d at 203-04.
The court then noted that the plaintiff had submitted evidence that "the types of visual images created in his modeling sessions were not unprecedented in the realm of mass market advertising, entertainment and other artistic endeavor." Id., 15 F.Supp.2d at 204. As the court said, "[T]he presence and apparent acceptance of such material in his community could affect a modeling agent's view as to the acceptable and legitimate limits of his business." Id.
A similar situation exists here. While the sexual exploitation of children statute at issue here is more specific than the Connecticut statute, the text, interpretation and enforcement did not provide fair notice to Mr. Rendleman his photographs would subject him to criminal liability. First, the photographs do not involve real, simulated or suggested sexual activity or evidence an intent to produce sexual stimulation, and Mr. Rendleman never coerced or even suggested that Scarlet engage in any kind of sexual activity. Indeed, the photographs simply reflect the spontaneous activity of a five-year-old girl. Second, Mr. Rendleman was photographing his daughter in a legitimate effort to document her daily activities and development. Third, the photographs have never been displayed publicly, and Mr. Rendleman never intended to display the photographs publicly. Thus, Mr. Rendleman had no reason to believe that the State would have any interest in the photographs.
No reported case or known prosecution has included a situation even remotely similar to this. Because Mr. Rendleman had a reasonable belief that his conduct was legal and the criminal exploitation of children statute did not provide fair notice that his conduct was illegal, the statute is unconstitutionally vague as applied to his conduct and his prosecution under the statute violates due process.

CONCLUSION.
For the foregoing reasons, the Court should conduct an evidentiary hearing, grant the motion and dismiss Count I of the Indictment.
Respectfully submitted,

ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, CRON & SCHOENBURG, LLP

By:_______________________________
Dan Cron
Post Office Box 8180
500 Montezuma Avenue, Suite 101
Santa Fe, New Mexico 87504-8180
(505) 988-8004

Attorneys for Defendant Mark Rendleman
CERTIFICATE OF SERVICE

I certify that I served a copy of the foregoing Motion to Dismiss Based On First And Fourteenth Amendments And N.M. Const., Article II, Section 17 to Maria Sanchez-Gagne, Assistant District Attorney, District Attorney's Office, 327 Sandoval, Santa Fe, New Mexico 87501 on the ____ day of January, 2000 by hand-delivery.

_____________________________________
ROTHSTEIN, DONATELLI, HUGHES
DAHLSTROM, CRON & SCHOENBURG, LLP

S:005.00to Dismiss (SF).wpd
0.
1 The same six-part test has been adopted by the federal courts in determining what constitutes a "lascivious exhibition of the genitals or pubic area" for purposes of 18 U.S.C. ¤ 2256(2)(E), the federal child pornography statute. See U.S. v. Wolf, 890 F.2d 241, 244 (10th Cir. 1989); U.S. v. Dost, 636 F.Supp. 828, 831 (S.D.Cal. 1986), aff'd sub nom. U.S. v. Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856 (1987); U.S. v. Villard, 885 F.2d 117, 122 (3d Cir. 1989); U.S. v. Mr. A., 756 F.Supp. 326, 328 (E.D. Mich. 1991).
2 Among the constitutionally protected acts the court mentioned was "a parent [giving] a family friend a picture of the parent's infant taken while the infant was unclothed." Id., 495 U.S. at 112 n. 9.

REPLY TO MOTION TO DISMISS

FIRST JUDICIAL DISTRICT
COUNTY OF SANTA FE
STATE OF NEW MEXICO

No. D-0101-CR-99-824

STATE OF NEW MEXICO,
Plaintiff,
vs.
MARK RENDLEMAN,
Defendant.

REPLY IN SUPPORT OF MOTION TO DISMISS
BASED ON FIRST AND FOURTEENTH AMENDMENTS
AND N.M. CONST. ART. II, SECTION 17

Defendant Mark Rendleman (Mr. Rendleman) submits this memorandum of law in support of his motion to dismiss Count I of the Indictment.
1. THE STATE HAS MISCHARACTERIZED THE PHOTOGRAPHS.
In its response to Mr. Rendleman's motion to dismiss, the State says that Mr. Rendleman's photographs of Scarlet Rendleman are not protected speech because they include lewd exhibitions in which Scarlet's genitalia is "the main focus of the photographs" and because "[t]he obvious purpose of the photographs is to attract notice specifically to the genitalia and pubic area." The State has sought to create this erroneous impression by singling out photographs in which Scarlet's genitalia is clearly visible, while ignoring many photographs in the same series in which her genitalia is less visible or not visible at all.

However, even an examination of only the photographs singled out by the State shows that Scarlet's genitalia is not the main focus. Rather, the main focus of the photographs is the playful activity of the child. Indeed, there is nothing unusual or sexual about the bedroom setting, the behavior depicted, or the framing or focus of the photographs. Countless similar photographs are taken by parents of their children every day.
In essence, the State is saying that the photographs focus on Scarlet's genitalia simply because she is naked, but the courts have made it clear that nudity in and of itself does not remove constitutional protection, even where a child is involved. New York v. Ferber, 458 U.S. 747, 765, n. 18 (1982) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975)); Rhoden v. Morgan, 863 F.Supp. 612, 621 (M.D. Tenn. 1994) (in overturning child pornography conviction on petition for writ of habeas corpus, court said, "Even depictions of nudity involving a minor constitute protected expression absent a showing that the depictions are 'in some significant way, erotic.'") (quoting Erznoznik, 422 U.S. at 214 n. 10), aff'd, 97 F.3d 1452 (6th Cir. 1996)1, cert. denied, 520 U.S. 1176 (1997); People v. Lewis, 712 N.E.2d 401, 410 (Ill.App.) (photograph displaying genitals of child is not lewd if it "merely capture[s] an uninhibited moment of adolescent spontaneity") (citations and internal quotation marks omitted), appeal denied, 720 N.E.2d 1100 (Ill. 1999); United States v. McKelvey, 203 F.3d 66, 69 n. 3 (1st Cir. 2000) (photographs of young boys skinnydipping fell short of ^legal definition of child pornography, and were squarely within protection of First Amendment).
Because the photographs do not involve lewdness as a matter of law, the Court should find that Mr. Rendleman's conduct was constitutionally protected and should dismiss the Indictment.

1. THE STATE HAS PROVIDED NO AUTHORITY FOR APPLYING THE FERBER STANDARD UNDER THE STATE CONSTITUTION.
In his opening brief, Mr. Rendleman pointed out that the New Mexico courts have never interpreted the speech protection in N.M. Const. art. II, ¤ 17 as including the lower, federal Ferber standard for nude depictions of children, which allows restrictions on speech not rising to the level of obscenity where lewd depictions of children are involved. Indeed, because the New Mexico courts have rejected the general federal obscenity standard, see City of Farmington v. Fawcett, 114 N.M. 537, 546, 843 P.2d 839 (Ct. App.), cert. quashed, 114 N.M. 532, 843 P.2d 375 (1992); Linda M. Vanzi, Note, "The Expansion of the Obscenity Doctrine in New Mexico; Is It Tolerable?" 24 N.M. L. Rev. 505, 515 (Summer 1994) ("Because the court has broadened the Supreme Court's standard governing the protectiono ^f freedom of expression, it is difficult to imagine that any material will be considered obscene under the new standard."), Mr. Rendleman argued that the New Mexico courts are unlikely to adopt the federal child pornography standard. The State's response provides no authority for applying the Ferber standard under the New Mexico Constitution, and has not argued that Mr. Rendleman's photographs meet the general federal obscenity standard or the "intolerability" standard enunciated by the New Mexico Court of Appeals in Fawcett.

Therefore, the Court should require that the State show that the photographs constitute "intolerable" speech, as defined in Fawcett, rising at least to the level of obscenity, as defined in federal law, see Miller v. California, 413 U.S. 15 (1973) (works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value). Because the photographs, taken as a whole, do not portray sexual conduct, do not appeal to the prurient interest in sex and have serious artistic value, and because no reasonable jury could conclude that the photographs constitute "intolerable" speech as defined in Fawcett, the Court should find that they are protected under Article II, ¤ 17 of the New Mexico Constitution.
2. THE STATE HAS NOT DEMONSTRATED A LEGITIMATE INTEREST IN PUNISHING A PARENT FOR TAKING PHOTOGRAPHS THAT ARE NOT INTENDED TO BE DISTRIBUTED.
The State notes that child pornography lies outside the constitutional protection for possession (as opposed to distribution) of obscene materials. See Osborne v. Ohio, 495 U.S. 103 (1990). This was acknowledged in Mr. Rendleman's opening brief. However, the State ignores a key part of the Osborne rationale.
The Osborne court said the State of Ohio had a compelling interest in prohibiting possession of child pornography in order to protect the physical and psychological well-being of minors and to destroy the market for the exploitive use of children. Id., 495 U.S. at 108-11. Significantly, the court noted that the Ohio Supreme Court had limited the construction of the Ohio child pornography statute, requiring that the depiction involve lewd exhibition or graphic focus on the genitals of a person who is neither the child nor the ward of the person charged. Id., 495 U.S. at 112-114 & n. 9. "By limiting the statute's operation in this manner, the Ohio Supreme Court avoided penalizing persons for viewing or possessing innocuous photographs of naked children." Id., 495 U.S. at 114.2 The Osborne court's rationale (and the statutory construction adopted by the Ohio Supreme Court) suggests that constitutional protection would extend to a parent's conduct in taking or possessing photographs of his or her child, regardless of whether the child is lewdly displaying his or her genitals.
Here, the State has not suggested that there is any evidence that Mr. Rendleman distributed or intended to distribute the photographs. There is no such evidence.3 Because a child's nude exposure to a parent does not present the same risk of physical or emotional abuse as where a non-parent is involved and there is no market for the photographs if they are not intended to be distributed, the compelling interests found in Osborne do not exist here.
Therefore, the Court should hold that Mr. Rendleman's status as a parent and the lack of any evidence regarding an intent to distribute the photographs deprives the State of any compelling interest in penalizing Mr. Rendleman for taking the photographs, regardless of whether they include lewd exhibition of the genitals. In the absence of such a^compellinginterest, the Court should find that Mr. Rendleman's conduct was constitutionally protected.
Respectfully submitted,

DAN CRON LAW FIRM, P.C.

By:_______________________________
Dan Cron
Wells Fargo Plaza
125 Lincoln Avenue, Suite 400
P.O. Box 40
Santa Fe, NM 87504-004
(505) 986-1334

Attorney for Mark Rendleman

Certificate of Service

I certify that I served a copy of the foregoing Defendant's Motion For Consolidation to Maria Sanchez-Gagne, Assistant District Attorney, Post Office Box 2041, Santa Fe, New Mexico 87504 on the ____ day of July, 2000 by first class U.S. Mail, postage prepaid.

_____________________________________
DAN CRON LAW FIRM, P.C.

S:\DAN\5005.00\Pleading\Reply re Motion to Dismiss (SF).wpd
1This appeal was brought by the habeas petitioner with respect to the trial court's denial of other requested relief. The state did not appeal from the trial court's overturning of the child pornography conviction.
2Among the constitutionally protected acts the court mentioned was "a parent [giving] a family friend a picture of the parent's infant taken while the infant was unclothed." Id., 495 U.S. at 112 n. 9.
3The existence of the photographs came to light when Elizabeth Stewart, ^Scarlet's mother, broke into Mr. Rendleman's Santa Fe studio, stole photographs and videotapes and turned those items over to the police in an effort to have Mr. Rendleman prosecuted. Subsequently, the police obtained a warrant and seized photographs and videotapes from Mr. Rendleman's studios in Santa Fe and Embudo.