The New Mexico Court of Appeals on Tuesday overturned the criminal conviction of a former state employee who installed a hidden camera in a bathroom next to his office.

Videotaping two teenage girls using the bathroom in the summer of 2004 legally did not constitute sexual exploitation of a minor, the court ruled.

Images captured by Ronald Myers, a 59-year-old employee at the state Department of Transportation headquarters in Santa Fe,
"do not depict a prohibited sexual act as required by the statute," the opinion states.

While Myers recorded various women using the bathroom, such activity wasn't illegal until the state Legislature last year passed an anti-voyeurism law.

State District Judge Michael Vigil convicted Myers of seven counts of sexual exploitation of children during a bench trial in March 2006.

The charges stemmed from the fact Myers videotaped two teen-age girls — one a Department of Transportation intern and the other the daughter of a department employee — using the bathroom.

Three months after the conviction, Vigil sentenced Myers to three years in prison. The judge also ordered Myers to complete a sex offender rehabilitation program while in prison, register as a sex offender after completing his sentence and spend five years on probation.

However, Vigil — who at the time expressed doubts the conviction would withstand an appeal — allowed Myers to remain out of prison on electronic monitoring after posting bond, pending the appeal's outcome.

The appellate judges concluded the camera was positioned to capture the victims' pubic area before and after they used the bathroom — and noted Myers admitted the videos were for his sexual gratification. However, they also decided case law "requires that we apply an objective standard, by ignoring the circumstances surrounding the taking of the photographs, and focusing on the photographs themselves."

To count as sexual exploitation of children, case law says images "must be identifiable as hard-core child pornography; that is, it must display visible signs of sexual eroticism, rather than merely depict a naked child," the decision states. "The photographs relied on by the State fail to satisfy this standard."

Further, the images taken from the videotapes and used as evidence in Myers' trial also would have to be "for the purpose of sexual stimulation" to qualify as exploitation under the statute, the decision says.

"A 'reasonable person' (as opposed to a voyeur) would not conclude, from the sexual content of the photographs themselves, that they were intended to elicit a sexual response," the decision states. "They depict minors who are partially unclothed before or after they used the restroom, and nothing more."

The judges remanded the case back to state District Court with instructions to set aside Myers' convictions.

The case began on Sept. 15, 2004, after the husband of a woman who works in the transportation agency's headquarters on Cerrillos and Cordova roads drove his wife to work, then used the unisex bathroom in question before leaving, state police have said.

The man noticed a round object underneath a heater in the bathroom and discovered it was a camera. State police investigators then found a wire that ran behind the heater, into a vinyl piece of molding, then through the wall and into a closet in Myers' office, where they found a television and a videocassette recorder. A large bookcase had been placed in front of the closet door to conceal the setup.

Myers admitted to police he could see from his office who went into the bathroom and would wait until a female he wanted to record entered, then would go into the closet and push "record" on the VCR.

Investigators found three videotapes of women going to the bathroom as well as commercial magazines depicting urination and defecation. Myers was not charged with videotaping adult women using the bathroom because such actions were not then illegal under New Mexico law.

The state Legislature last year passed a law that makes it a misdemeanor to film, photograph or record adults in public bathrooms and other places. If the target is a minor, the offender can be charged with a fourth-degree felony.

During his sentencing, Myers said he developed an "addiction" to videotaping women using the bathroom while he was in high school. He said he had continued to indulge in the secret practice until he was caught. A psychological evaluation determined he was not a pedophile.

Marc Edwards, Myers' attorney, said Tuesday he wasn't surprised about the appeals court ruling. Since the beginning of the case, Edwards said, he has argued the acts depicted didn't fit the statute under which his client was prosecuted.

The attorney said his client was happy about the ruling, but regrets his actions. "He knows what he did was morally wrong," Edwards said, "but the sentence he received for what he did was overkill."

Prosecutor Barbara Romo also said she wasn't surprised by Tuesday's ruling. "The way the statute was written, I don't think it anticipated all the ways a child could be exploited using the technology we have now," she said. "He was looking at that stuff to get off. There's no other way to put it. I think you can exploit a child without (the child) knowing it."

The Attorney General's Office has not yet decided if it will appeal the ruling to the state Supreme Court, spokesman Phil Sisneros said Tuesday.

Contact Jason Auslander at 986-3076 or :jauslander@sfnewmexican.com.