Opinion
Case No. 20060902-CA.
Filed February 28, 2008. NOT FOR OFFICIAL PUBLICATION.
Appeal from the First District, Logan Department, 991100886 The Honorable Clint S. Judkins.
Elizabeth Hunt, Salt Lake City, for Appellant.
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee.
Before Judges Thorne, Davis, and Orme.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under existing law.
"`A constitutional challenge to a statute presents a question of law, which we review for correctness[.]'" State v. Morrison, 2001 UT 73, ¶ 5, 31 P.3d 547 (citation omitted). Key to the United States Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), was Congress's use of the specific language "or appears to be" in subsection (B) and "or distributed in such a manner that conveys the impression" in subsection (D). 18 U.S.C. § 2256(8)(B), (D) (2000).See Ashcroft, 535 U.S. at 241-43, 246-49. Notwithstanding that the statute under which Defendant was convicted, Utah Code Ann. § 76-5a-3 (1999), does not contain such language, Defendant argues that it might nevertheless be read to prohibit possession of "any visual representation," id. § 76-5a-2(3), "depicting a nude or partially nude minor," id. § 76-5a-3(1)(a), regardless of whether an actual minor was involved in creating the representation.
The statute has subsequently been changed. Defendant agrees that if the current version of the statute applied, he would have no viable argument.
Even if there is some truth in what Defendant says, his constitutional rights were not violated simply because the conceivable reach of the statute might be so far stretched. See State v. Alinas, 2007 UT 83, ¶ 18, 171 P.3d 1046 ("`[A] person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.'") (alteration in original) (citation omitted);Morrison, 2001 UT 73, ¶ 6 ("[T]he mere fact that a statute is overbroad to some degree does not automatically warrant reversal. `[W]here a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'") (second alteration in original) (citation omitted). Indeed, we have not been able to find a single instance of a prosecution based on the statute under which Defendant was convicted that did not involve the exploitation of an actual minor. See, e.g.,Morrison, 2001 UT 73, ¶¶ 2-3, 16 (noting fact that subject images depicted actual minors was not disputed); State v. Workman, 852 P.2d 981, 983 (Utah 1993) (same); State v. Nuttall, 861 P.2d 454, 454-55 (Utah Ct.App. 1993) (same); State v. Moore, 788 P.2d 525, 526 (Utah Ct.App.) (same), cert. denied, 800 P.2d 1105 (Utah 1990). See also State v. Atkin, 2003 UT App 359, ¶¶ 13, 37, 80 P.3d 157 (stating fact that subject images depicted actual minors was proven by expert testimony),cert. denied, 90 P.3d 1041 (Utah 2004). And in denying Defendant's motion to dismiss, the trial court ruled that "at trial the State must prove beyond a reasonable doubt that the people portrayed in the images at issue were actual minors."
Moreover, the Legislature's stated purpose in enacting section 76-5a-3 was "to prohibit the production, possession, possession with intent to distribute, and distribution of materials which sexually exploit minors." Utah Code Ann. § 76-5a-1 (1999) (emphasis added). Defendant's strained interpretation of section 76-5a-3 is inconsistent with the Legislature's stated purpose for enacting it, which further bolsters our conclusion that his interpretation is implausible. See Morrison, 2001 UT 73, ¶¶ 10-12 (choosing to adopt a construction of section 76-5a-3 that "is consistent with the legislature's purpose in enacting that section" and recognizing its "duty to construe a statute whenever possible so as to . . . save it from constitutional conflicts or infirmities") (citations and internal quotation marks omitted).
Affirmed.
WE CONCUR: William A. Thorne Jr., Associate Presiding Judge, James Z. Davis, Judge.