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State v. Adamo

Court of Appeals of New Mexico

October 12, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
BRIAN ADAMO, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY Raymond L. Romero, District Judge

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

          Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          MICHAEL E. VIGLL, Judge

         {1} The motion for rehearing is denied. The formal opinion filed in this case on August 31, 2017, is hereby withdrawn, and this opinion is substituted in its place.

         {2} A jury found Defendant Brian Adamo guilty of one count of sexual exploitation of children (possession) in violation of NMSA 1978, Sections 30-6A-3(A) (2007, amended 2016), under the Sexual Exploitation of Children Act (the Act), NMSA 1978, §§ 30-6A-1 to -4 (1984, as amended through 2016). This is commonly known as possession of child pornography. Defendant appeals, and concluding there was no reversible error in Defendant's trial, we affirm.

         BACKGROUND

         {3} Following a preliminary hearing in the magistrate court in Carlsbad, New Mexico, the district attorney filed a criminal information in the district court charging Defendant with eighteen counts of sexual exploitation of children (possession) in violation of Section 30-6A-3(A). Pursuant to State v. Olsson, 2014-NMSC-012, 324 P.3d 1230, an amended criminal complaint was then filed charging Defendant with a single count of sexual exploitation of children (possession). At trial, the evidence established the following facts.

         {4} Every internet subscriber has a unique Internet Protocol (IP) address that is assigned by the subscriber's internet provider and corresponds with the subscriber's residential address. Carlsbad Police Department Detective Blaine Rennie, who investigates crimes against children, testified that in March 2012, using software that detects IP addresses that have downloaded images of suspected child pornography and computers that are sharing such files, he detected "an exorbitant amount of downloads" of images that were identified as child pornography. The software monitors "SHA1 numbers, " unique number-letter combinations that are assigned to images when they are uploaded to the internet. Specifically, the software detects SHA1 numbers that are associated with child pornography and computers that are sharing such files, known as "peer-to-peer sharing." The downloads belonged to an IP address where similar downloads had been detected in March 2011. There were more than nine hundred downloads of suspected child pornograpy in a year at this IP address, and the majority were determined to be images of child pornography.

         {5} Detective Rennie contacted Agent Owen Pena of the New Mexico Attorney General's Office and asked him to try to obtain images from a single source at that IP address. This is possible because images that one is willing to share with others are downloaded and stored in the shared folder of the owner's computer using peer-to-peer software. Agent Pena explained that a person using peer-to-peer software must download an image to the owner's computer, then direct that the image be placed in the shared folder of the computer; otherwise, the image cannot be accessed by another party. The image may be seen before it is downloaded and then saved in the shared folder.

         {6} On April 6, 2012, Agent Pena succeeded in downloading five images of child pornography from the shared folder of a computer at the IP address. Four of these images were admitted into evidence, and all of them had the same "pre-teen hard core" (PTHC) search term. Agent Pena said that images such as those he retrieved would be found in a file-sharing network, using known search terms for child pornography such as "PTHC." Normal search engines such as Google or Yahoo filter and "block" search terms for hard core child pornography images. With assistance from Agent Lisa Keyes of the Department of Homeland Security, Detective Rennie learned that the name and address of the account holder was Defendant's mother at a residential address in Carlsbad.

         {7} On June 19, 2012, a search warrant was executed at the home associated with the IP address. Defendant, his mother, and his father were at home. Defendant's bedroom appeared as if he did not often leave the room, and it was described as messy, in "disarray, " with pizza boxes, tissues, food items, clothes strewn about, and sexual paraphernalia consisting of penile extenders, penile pumps, sex toys, and pills. Defendant also had an operating computer in his bedroom with two hard drives, one of which was an external hard drive. The computer was on at the time, depicting a story with child characters and "sexual overtones."

         {8} There were many computers in the home because Defendant's father operated a computer repair business, and all the computers were seized. While some were non-functional and could not be analyzed, Agent Victor Sanchez of the New Mexico Department of Homeland Security searched all of the undamaged computers and devices for pornography and child pornography. The only pornography he found was on the external hard drive from Defendant's room. Agent Sanchez testified that the external hard drive contained massive amounts of non-child pornography, including bestiality and cartoon pornography, which was highly organized and categorized by type, actors, and the like. Agent Sanchez did not find a category for child pornography, nor did he find evidence that there ever had been one.

         {9} Agent Sanchez did not find any active or accessible child pornography when he searched the external drive. However, using a process called "data carving, " he did find child pornography in the deleted files. Agent Sanchez described "data carving" in layman's terms. He said to think of a computer as a library with books. The computer's master file table (MFT) is analogous to the card catalog in a library and it tells the computer where the books are in the library. When the computer wants to find something, it does not go through all its rows looking for the book, but it goes to the MFT (the card catalog) that points to where the book is supposed to be, and gets it. When a file is "deleted, " people have a misconception that the file is gone, but it isn't. The computer only goes into the card catalog and rips up the index card that told the computer where the file could be found. The book is still in the library, but the function of the card catalog telling the computer where the book is located is gone. Data carving tells the computer to go through every aisle in the library and look for images that were deleted, and the images are then recovered. Using this process, Agent Sanchez was able to retrieve approximately fifty-two images containing child pornography, and twelve were admitted into evidence. These were different from the four images admitted into evidence that were obtained by Agent Pena. The same analysis was performed on the computer belonging to Defendant's parents, and no images of child pornography were found.

         {10} Defendant did not testify, and he did not present any evidence. Additional facts, necessary to address Defendant's arguments, are set forth in our analysis of Defendant's arguments.

         II. DISCUSSION

         {11} Defendant argues on appeal that the judgment and sentence must be reversed because:

(1) there was insufficient evidence to support the verdict;
(2) there was fundamental error in the jury instructions;
(3) the district court abused its discretion in admitting sexual items found in Defendant's bedroom;
(4) the evidence about Defendant refusing to speak to the police was improperly admitted;
(5) ineffective assistance of counsel; and
(6) other errors. We address each argument in turn.

         1. Sufficiency of the Evidence

         {12} Defendant contends that the evidence was not sufficient for a rational jury to conclude beyond a reasonable doubt that Defendant intentionally possessed child pornography, as required by Section 30-6A-3(A). We disagree.

         {13} "Evidence is sufficient to sustain a conviction when there exists substantial evidence of a direct or circumstantial nature to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Smith, 2016-NMSC-007, ¶ 19, 367 P.3d 420 (internal quotation marks and citation omitted). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation omitted). "In reviewing whether there was sufficient evidence to support a conviction, [appellate courts] resolve all disputed facts in favor of the [s]tate, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary." Id. (internal quotation marks and citation omitted); see State v. Myers, 2009-NMSC-016, ¶¶ 7, 13, 146 N.M. 128, 207 P.3d 1105 (setting forth the standard for reviewing evidence for sufficiency in a bench trial). We have already set forth what the pertinent evidence was at trial.

         {14} The evidence supports the jury's finding that sometime in the past Defendant knowingly possessed child pornography. The evidence showed that there were more than nine hundred downloads of suspected child pornography in a year to the IP address used by Defendant's computer, and most were determined to be images of child pornography. In March 2012, exorbitant amounts of child pornography were being downloaded to that same IP address. Images of child pornography can only be obtained from a file sharing network where search terms such as "PTHC" are used. The following month, on April 6, 2012, Agent Pena used peer-to-peer software to retrieve five images of child pornography from the shared folder of a single computer at the same IP address. A person using peer-to-peer software downloads the image to the owner's computer where it can be viewed. Then, in order to share the image with other computers, the owner either purposefully directs the image to be saved in the shared folder of the computer, or sets up the peer-to-peer software to automatically save images to the shared folder. The image can then be accessed by other computers with peer-to-peer software, such as Agent Pena's. Four of the images Agent Pena obtained were admitted into evidence, and all of them had the same search term "PTHC."

         {15} Two months later, on June 19, 2012, a search warrant was executed at the physical address where the IP address was located. There were several computers at the home because Defendant's father operated a computer repair business at the home. Agent Sanchez searched all of the undamaged computers and devices for pornography and child pornography, and pornography was found only on the external hard drive of Defendant's computer. The external drive had massive amounts of non-child pornography, which was highly categorized. Although Agent Sanchez did not find any active child pornography that could be accessed on the computer, by using a process called "data carving" he was able to retrieve approximately fifty-two images of child pornography that had been "deleted" from the hard drive, and twelve of these images were admitted into evidence. A similar process failed to disclose any child pornography images on the computer belonging to Defendant's parents.

         {16} A rational jury could fairly conclude from the foregoing evidence that there was a single computer at the IP address downloading massive amounts of pornography. Child pornography was also downloaded using peer-to-peer software. Child pornography is only accessible through a file sharing network with search terms specific to child pornography, and it can only be accessed by other users of peer-to-peer software if it is purposefully stored in a shared folder. From the shared folder of that single computer at the IP address, Agent Pena was able to retrieve five images of child pornography using peer-to-peer software on April 6, 2012. Two months later, on June 19, 2012, approximately fifty-two deleted images of child pornography were found on the external hard drive of Defendant's computer. The jury was able to look at the images retrieved by Agent Pena and Agent Sanchez, and following the instructions given by the district court, determine for itself whether the images were child pornography.

         {17} We cannot overlook the fact that when the search warrant was executed, and an agent went into Defendant's room, his computer was on, depicting children in a story with "sexual overtones." In People v. Jaynes, 2014IL App (5th) 120048, ¶ 57, 11 N.E.3d 431, the court held that such evidence was admissible "to show intent, knowledge, and absence of mistake or accident." "The defendant's demonstrated interest in materials dealing with children engaged in sexual acts tended to show that his accessing illicit images was knowing and voluntary rather than inadvertent." Id.

         {18} Under all the evidence, a fair inference is that the sole computer at the IP address that was used to download and share child pornography was Defendant's, and that Defendant had knowingly obtained, manipulated, stored, and shared the child pornography using his computer.

In the context of prior possession of child pornography, a computer user knowingly possesses the contraband when the user intentionally downloads child pornography to the computer but later deletes the file or when he or she performs some function to reach out and select the image from the Internet. Indeed, a computer user who intentionally accesses child pornography images on a website gains actual control over the images, just as a person who intentionally browses child pornography in a print magazine knowingly possesses those images, even if he later puts the magazine down.

New v. State, 755 S.E.2d 568, 575 (Ga.Ct.App. 2014) (footnotes and internal quotation marks omitted); see State v. Santos, 2017-NMCA-__, ¶ 14, __P.3d __, (No. 35, 175, June 21, 2017) (concluding that by downloading, viewing, and deleting videos on his computer, the defendant possessed child pornography); Wise v. State, 364 S.W.3d 900, 907 (Tex. Crim. App. 2012) (concluding that the evidence was sufficient for the jury to find that the defendant knowingly and intentionally possessed child pornography images before they were deleted); see also State v. Brown, 1984-NMSC-014, ¶ 12, 100 N.M. 726, 676 P.2d 253 ("A material fact may be proven by inference."); State v. Stefani, 2006-NMCA-073, ¶ 39, 139 N.M. 719, 137 P.3d 659 (stating that a jury is free to draw inferences from the facts necessary to support a conviction).

         {19} Defendant argues that because experts conceded that, in certain instances, it is possible for child pornography to be "unwittingly" downloaded; that Defendant's computer was not directly tied to the images Agent Pena downloaded; that it was possible for Agent Pena to have accessed any computer being repaired; that there is no evidence that the images retrieved by Agent Sanchez were the same ones Agent Pena downloaded; and that just because images had, at one time, been downloaded to the external drive, does not in and of itself demonstrate that they were knowingly or intentionally downloaded and then intentionally kept. In other words, Defendant asserts that the evidence was lacking. These are all matters that the jury was free to accept or reject in its consideration and weighing of the evidence. See State v. Tapia, 2015-NMCA-048, ¶ 12, 347 P.3d 738 (stating that determining the weight and effect of evidence is reserved to the jury as the fact-finder). In finding Defendant guilty, the jury rejected the propositions and conclusion that Defendant advances, and it is not within our purview to "re-weigh the evidence to determine if there was another hypothesis that would support innocence[.]" State v. Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72. Defendant also argues that because Agent Sanchez conceded that there was no indication Defendant could retrieve the deleted files or that he had exercised any control over the deleted files other than to delete them, the evidence is insufficient. Under the totality of the evidence presented, we disagree. See State v. Schuller, 843 N.W.2d 626, 637 (Neb. 2014) ("It seems reasonable to infer that [the defendant] deleted the files to hide evidence of his earlier knowing possession" of child pornography).

         {20} The jury was instructed that it had to find Defendant possessed child pornography on or about April 6, 2012, and/or June 12, 2012. We conclude that the evidence was sufficient for a rational jury to find beyond a reasonable doubt that Defendant intentionally possessed child pornography on both of these dates.

         2. Fundamental ...


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