State v. Higginbotham

313 A.3d 847

257 N.J. 260

STATE of New Jersey, Plaintiff-Appellant,

v.Andrew HIGGINBOTHAM, Defendant-Respondent.

A-57 September Term 2022

088035

Supreme Court of New Jersey.

Argued November 29, 2023

Decided May 8, 2024

West Codenotes

Held Unconstitutional

N.J. Stat. Ann. § 2C:24-4(b)(1)(c)

On certification to the Superior Court, Appellate Division, whose opinion is reported at 475 N.J. Super. 205 (App. Div. 2023).

Michael L. Zuckerman, Deputy Solicitor General, argued the cause for appellant (Matthew J. Platkin, Attorney General, attorney; Jeremy M. Feigenbaum, Solicitor General, Michael L. Zuckerman, Mercedes N. Robertson and Liza B. Fleming, Deputy Attorneys General, of counsel and on the briefs).

Alison Gifford, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Alison Gifford, of counsel and on the briefs, and Taylor L. Napolitano, Assistant Deputy Public Defender, on the briefs).

Alycia Beyrouty, Assistant Mercer County Prosecutor, argued the cause for amicus curiae County Prosecutor’s Association of New Jersey (Jeffrey Sutherland, Cape May County Prosecutor, President, County Prosecutor’s Association, attorney; Alycia Beyrouty, Laura Sunyak, Assistant Mercer County Prosecutor, Emily M. Pirro, Assistant Somerset County Prosecutor, K. Charles Deutsch, Assistant Bergen County Prosecutor, Kylie E. Finley, Assistant Cape May County Prosecutor, and Bryna Batten, Assistant Cape May County Prosecutor, of counsel and on the brief).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation and Rutgers Constitutional Rights Clinic Center for Law & Justice, attorneys; Alexander Shalom, Newark, and Jeanne Lo-Cicero, of counsel and on the brief, and Ronald K. Chen, on the brief).

CJ Griffin argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin and Claude Caroline Heffron, on the brief).

JUSTICE WAINER APTER delivered the opinion of the Court.

₂₆₆Defendant Andrew Higginbotham was charged with sixteen counts of endangering the welfare of a child under subsection (c) ₂₆₇of the definition of "portray a child in a sexually suggestive manner" in N.J.S.A. 2C:24-4(b)(1). Along with the substantive provisions of N.J.S.A. 2C:24-4(b)(1), subsection (c) makes it a crime "to otherwise depict a child for the purpose of sexual stimulation or gratification of any person who may view the depiction where the depiction does not have serious literary, artistic, political, or scientific value." N.J.S.A. 2C:24-4(b)(1).

This case requires us to decide whether subsection (c) is substantially overbroad in violation of the First Amendment to the United States Constitution. We hold that subsection (c) is unconstitutionally overbroad because it criminalizes a large swath of material that is neither obscenity nor child pornography. We do not reach whether subsection (c) is also unconstitutionally vague. In addition, because defendant was not charged under subsections (a) or (b) of the definition of "portray a child in a sexually suggestive manner," and did not challenge subsections (a) or (b) before the trial court or the Appellate Division, we do not reach the validity of those subsections. We therefore affirm the Appellate Division’s judgment as modified.

I.

A.

In 2021, the Brooklawn Police Department learned that defendant Andrew Higginbotham had a journal with a photo of a young girl on the cover. Written on top of the photo were the words "[c]**k in her little mouth" and "[c]*m on her face." In an interview with police, defendant admitted that the journal was his, and said that he used it as a way "to express himself."

Defendant stated that the photo on the journal was of his friend’s daughter "Christine,"¹ who was born in 2008. Detectives from the Camden County Prosecutor’s Office interviewed Christine;₂₆₈ she did not allege sexual abuse. Detectives also interviewed Christine’s mother. She stated that she had been friends with defendant years earlier, but the friendship had ended, and they were no longer in touch. However, about a month prior to the start of the investigation, she averred, defendant sent her a Facebook message.

Detectives obtained a warrant to search defendant’s Facebook accounts. The search revealed that in February 2021, defendant distributed images of Christine from when she was five years old. The images included: (1) a photo of Christine wearing a black-and-white-striped shirt and pink tutu skirt; (2) a video with several photos of Christine and unknown girls wearing bikinis; and (3) a photo of Christine wearing jeans and a shirt with a smiley face emoji, kissing her sister. On top of each photo, defendant superimposed sexually explicit text that he concedes is obscene. He then sent the images to different Facebook users.

Defendant also sent a Facebook user a collage of several photos, consisting of a photo of his clothed but aroused penis next to photos of Christine in the black-and-white-striped shirt and pink tutu, a black shirt with a spider web on it, and a blue shirt with a birthday girl ribbon on it. On top of the photo collage, defendant again superimposed sexually explicit text that he concedes is obscene. Defendant sent a similar photo collage, again superimposed with sexually explicit, obscene text, to other Facebook users as well.

Some of the obscene text that defendant superimposed over the photos graphically described violent sexual acts that he wanted to perform on Christine or wanted Christine to perform on him; others described defendant "wanting to molest" Christine. One photo was superimposed with defendant’s 264-word sexual fantasy. In all photos, Christine was clothed.

In a second interview with police, defendant admitted to taking photos of Christine when he was friends with her mother years earlier and downloading additional photos of Christine as a young child from her mother’s Facebook page. He admitted to superimposing₂₆₉ obscene text over the photos of Christine and sending those new images to Facebook users he met in group chats about sex. Defendant confirmed that he sent the images "as satisfaction and pleasure for himself’ and to show others what he had. Although he admitted that he masturbated to the images, defendant denied ever masturbating while physically near Christine.

B.

A grand jury charged defendant with seven counts of second-degree endangering the welfare of a child under N.J.S.A. 2C:24-4(b)(4); one count of third-degree endangering the welfare of a child under N.J.S.A. 2C:24-4(b)(5)(b)(iii); seven counts of second-degree endangering the welfare of a child under N.J.S.A. 2C:24-4(b)(5)(a)(i); and one count of second-degree endangering the welfare of a child under N.J.S.A. 2C:24-4(b)(5)(a)(ii).

The indictment alleged that defendant portrayed a child "in a sexually suggestive manner by otherwise depicting a child for the purpose of sexual stimulation or gratification of any person who may view the depiction where the depiction does not have serious literary, artistic, political or scientific value." That language mirrors subsection (c) of the definition of "portray a child in a sexually suggestive manner" found in N.J.S.A. 2C:24-4(b)(1) (hereinafter, "subsection (c)").²

Defendant moved to dismiss the indictment. He contended that subsection (c) was unconstitutionally vague and overbroad in violation of the First Amendment to the United States Constitution, either on its face or as applied to him. According to defendant, the photographs were "innocuous" in that they were "of a fully clothed child, not suggestively posed," and he then "superimposed" them with his own "personal sexual fantasies" without causing harm to Christine. Defendant also asserted that Christine ₂₇₀was not "exploited by the production process since the photos themselves are not pornographic or sexually suggestive." (internal quotation marks omitted).

The trial court denied defendant’s motion. The court explained that subsection (c) of the definition of "portray a child in a sexually suggestive manner" was not vague because it clearly and unambiguously prohibited "the sexual exploitation of a child in those circumstances where the exposure of a child’s intimate parts is not depicted, but nevertheless the depiction of a child is sexually suggestive." The court also found that a jury could conclude defendant violated the statute because he "defaced photographs and video of a child with sexually explicit words and phrases for sexual stimulation or gratification of himself or others." The trial court did not address defendant’s overbreadth challenge.

C.

Defendant successfully moved for leave to appeal, arguing that the trial court erred in holding that subsection (c) was not unconstitutionally vague or overbroad.

In a published opinion, the Appellate Division reversed. State v. Higginbotham, 475 N.J. Super. 205, 291 A.3d 1164 (App. Div. 2023). It held that all three of the definitions of "portray a child in a sexually suggestive manner" set forth in N.J.S.A. 2C:24-4(b)(1) -- i.e., subsection (c), which defendant had challenged, but also subsections (a) and (b), which he had not -- were unconstitutionally overbroad because they criminalized images that constituted neither child pornography nor obscenity. Id. at 233, 291 A.3d 1164.

As the Appellate Division explained, the definitions went beyond child pornography because they "include[d] images of children who are not engaged in sex acts or whose genitals are not lewdly displayed." Ibid. The definitions were thus "at odds with" New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), and Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), which together defined child pornography as "an image of a child...