Summary 2007 WY 201

Summary of Decision issued December 18, 2007

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Case Name: Jones v. State

Citation: 2007 WY 201

Docket Number: 06-243

Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge

Representing Appellant (Defendant): Tina Kerin, Appellate Counsel; and David E. Westling, Senior Appellate Counsel, Wyoming Pubic Defender Program, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dana J. Lent, Assistant Attorney General. Argument by Ms. Lent.

Issue: Is Wyo. Stat. Ann. §06-4-303(a)(ii)(B) vague on its face or in its application to Jone’s case and did the district court err in ruling that it was not unconstitutionally overbroad.

Facts/Discussion: Appellant was charged with seven counts of violating Wyo. Stat. Ann. §06-4-303(a)(ii)(B). Appellant entered into a conditional plea agreement with the State wherein he pled guilty to two of the seven counts. The conditions included one which allowed Appellant to challenge the constitutionality of the statute under which he was convicted.
Standard of Review: Appellant’s challenge to the constitutionality of the statute presents a question of law that the Court reviews de novo. The Court set out verbatim their discussion of the applicable standard of review from their Rutti decision in order that their jurisprudence might remain consistent and clear.
The Court stated that it was evident that the challenges to laws aimed at regulating, by criminal statute, sexual performances by children and child pornography in general, are evolving constantly as the courts wrestle with the fine lines between what is prohibited and what is permitted – what is protected speech under the First Amendment and what is not protected. No doubt, statutes will have to be fine-tuned as the case law develops. However, in light of their decision in Rutti, they stated they did not need to give a dispositive answer to the issue raised here because Appellant admitted that the visual images in question were child pornography and further evidence from the State established they were real children and not images virtually indistinguishable from children.

Holding: The Court acknowledged that it has been held that a trier of fact is capable of determining whether real children were used in pornographic images simply by viewing the images themselves. Therefore, under the circumstances of this case the Court did not need to address the question of whether an image that was virtually indistinguishable from a child exceeded the limits imposed by the First Amendment. The question of whether the statute is vague or overbroad in that sense must be determined in a case where the image at issue is alleged to be that of an individual virtually indistinguishable from a child, but not actually a child.

Affirmed.

J. Hill delivered the opinion.

Link: http://tinyurl.com/yqwo3n .