## Facts

- Police found Gary Bonner at night outside a sixteen-year-old girl’s residence carrying a video camera and a small stepstool.
- Investigation indicated Bonner secretly videotaped the girl through a gap in the window blinds by standing on the stepstool while she was in various states of undress.
- Bonner was charged under Idaho Code § 18-1508A(1)(d), which made it a felony for a person at least five years older than a 16- or 17-year-old to make “any photographic or electronic recording” of the minor with intent to arouse or gratify sexual desires.
- Bonner moved to dismiss, asserting the subsection was facially unconstitutional as overbroad and void for vagueness.
- The trial court denied the motion; Bonner entered a conditional guilty plea preserving the constitutional challenge and appealed.

## Issues

1. Whether Idaho Code § 18-1508A(1)(d) is facially unconstitutional under the First Amendment because it criminalizes a substantial amount of protected expression by prohibiting “any photographic or electronic recording” of a 16- or 17-year-old based on the recorder’s sexual intent.
2. Whether the statute is unconstitutionally vague.

## Decision

- The Idaho Court of Appeals reversed Bonner’s conviction.
- The court held Idaho Code § 18-1508A(1)(d) facially unconstitutional as substantially overbroad under the First Amendment.
- Because the statute was invalidated on overbreadth grounds, the court did not need to fully resolve the vagueness challenge.

## Legal Principles

- A law is facially invalid for overbreadth when it prohibits a substantial amount of constitutionally protected expression relative to its legitimate applications, even if the challenger’s own conduct could be prohibited.
- Overbreadth analysis compares a statute’s legitimate sweep against the number and significance of impermissible applications that burden protected speech.
- States may prohibit unprotected categories of expression involving minors (e.g., child pornography narrowly defined by depictions of sexual conduct or lewd exhibition), but criminal statutes aimed at such harms must be narrowly drawn.
- A statute that criminalizes expressive activity based solely on the speaker’s subjective sexual intent, without limiting the prohibition to unprotected content or otherwise narrowing the covered images, risks sweeping in protected photographs and videos (e.g., ordinary, news, or public-event images).
- Courts may not cure substantial overbreadth by adopting a limiting construction that effectively rewrites the statute.

## Conclusion

The court invalidated Idaho Code § 18-1508A(1)(d) because its ban on making “any” recording of a 16- or 17-year-old, triggered only by the recorder’s sexual intent and not by the content of the image, substantially burdened protected expression; Bonner’s conviction under that subsection was therefore reversed.


State v. Bonner, 138 Idaho 254, 61 P.3d 611 (Idaho Ct. App. 2002)