It is unlawful for any person knowingly to exhibit to a minor or knowingly to provide to a minor an admission ticket or pass or knowingly to admit a minor to premises whereon there is exhibited a motion picture, show or other presentation which, in whole or in part, depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors.
History: 1953 Comp., § 40-50-3, enacted by Laws 1973, ch. 257, § 3.
Lack of essential element in jury instruction resulted in fundamental error. — Where defendant was charged with unlawful exhibition of motion pictures to a minor pursuant to the Sexually Oriented Material Harmful to Minors Act (Act), in which the State was required to prove that defendant knowingly exhibited a motion picture, the exhibition was to a minor, the motion picture depicts, in whole or in part, nudity, sexual conduct or sado-masochistic abuse, and the motion picture is harmful to minors, but where the state failed to include "harmful to minors" as a separate element of the offense and failed to provide to the jury the definitions of "nudity" or "harmful to minors" as defined in the Act, a rational jury could not find that the motion picture was harmful to minors, an essential element of the offense. The district court therefore fundamentally erred in instructing the jury on the charge of unlawful exhibition of motion pictures to a minor. State v. Luna, 2018-NMCA-025, cert. denied.
No bar to retrying defendant where there was sufficient evidence of unlawful exhibition of motion pictures to a minor. — Where defendant was tried and convicted on the charge of unlawful exhibition of motion pictures to a minor pursuant to the Sexually Oriented Material Harmful to Minors Act (Act), but where the district court erred in instructing the jury on the charged offense, the state was not barred from retrying defendant on that count, because there was sufficient evidence of the charged offense based on evidence that defendant showed the nine-year-old child a movie that depicted female nudity, material which lay jurors may consider harmful to minors. State v. Luna, 2018-NMCA-025, cert. denied.
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