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Handing Is Sending

By Michael Frisch

The New Mexico Supreme Court reversed a decision of its Court of Appeals

Defendant Robert Tufts, a male in his late thirties, filmed himself masturbating, saved the electronic image on a secure digital (SD) memory card, inserted the card  into a cell phone, handed the cell phone to a fifteen-year-old girl (Child) with whom  he had developed an intimate but non-sexual relationship, and told her there was a  surprise on the phone for her. Defendant was convicted of criminal sexual  communication with a child in violation of NMSA 1978, Section 30-37-3.3 (2007).  The Court of Appeals reversed the conviction, holding that “ ‘to send[,]’ when used  to describe the act of causing another person to receive a physical object[,] evokes the notion of a third-party carrier,” and therefore, when Defendant hand-delivered obscene electronic images to Child, he did not “send” the images to her by means of  an electronic communication device.

Handing is sending

Communicating directly with a child by means of an electronic communication  device may occur through a third-party carrier such as social media, internet forums  and message boards, online file-sharing services, text message, or email. However,  it may also occur by delivering the electronic communication device containing the  obscene images of the defendant directly to the child. It does not matter whether the delivery was by the defendant or a third-party carrier; someone had to cause the electronic images to go or be taken to a particular destination—in this case, that someone was Defendant, and the destination was Child. The history and purpose of  the statute support this interpretation…

Defendant handed the cell phone with the memory card that he inserted into the phone to Child, and it was with that cell phone that Child produced the obscene electronically generated image of Defendant which  he intended Child to view. Defendant’s argument that he is not guilty of violating  Section 30-37-3.3(A) because he did not transmit the obscene electronic image to  Child through a third-party carrier is without merit.