New Mexico v. Tufts
Annotate this CaseDefendant Robert Tufts, a man 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. 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[,] evoke[d] 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. The New Mexico Supreme Court construed "sending" as used by the applicable statute, to give effect to the Legislature's objective and purpose, and found that defendant effectively "sent" the offending images to the child, in violation of Section 30-37-3.3(A). The Court therefore reversed the Court of Appeals' determination and remanded the case back for further consideration of defendant's other arguments on appeal.
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