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State v. Gwynne

Court of Appeals of New Mexico

February 14, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
JASON GWYNNE, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF LEA COUNTY Mark T. Sanchez, District Judge.

          Hector H. Balderas, Attorney General Santa Fe, NM Charles J. Gutierrez, Assistant Attorney General Albuquerque, NM for Appellee.

          Bennett J. Baur, Chief Public Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellant.



         {¶1} Defendant Jason Gwynne was convicted by a jury of two counts (Counts 2 and 3) of manufacturing child pornography, a second degree felony, and one count (Count 1) of possession of child pornography, a fourth degree felony. He was sentenced to nineteen-and-one-half years in prison-nine years for each of the manufacturing counts, and eighteen months for possession-less time served. Defendant raises numerous issues on appeal, which we summarize as follows: (1) his conviction for possession must be vacated to avoid violation of his right to be free from double jeopardy; (2) multiple evidentiary errors deprived him of a fair trial; (3) his convictions for manufacturing child pornography are unconstitutional because the Legislature lacks a rational basis for criminalizing his particular alleged conduct (recording a sex act with a consenting sixteen-year-old girl) where the same conduct with an eighteen-year-old would not be a crime; and (4) there was insufficient evidence to support his convictions. We disagree with Defendant and affirm his convictions and sentence.


         {¶2} In January 2013 Defendant, at the time thirty-five years old, was living in a one-bedroom trailer with his then-sixteen-year-old stepdaughter (Stepdaughter), whose mother had passed away in September 2012. Defendant allowed a sixteen-year-old friend (Friend) of Stepdaughter who had run away from home to stay with them. Stepdaughter slept on the pullout couch in the living room, while Defendant and Friend slept in the only bedroom. One night, Stepdaughter observed what she believed was Friend performing oral sex on Defendant in the trailer's bedroom and, after confronting Friend, reported the incident to an adult and later spoke with law enforcement. Stepdaughter reported to law enforcement that Friend and Defendant were "having a sexual affair" and that she had seen "naked pictures of unknown girls [of unknown age] on Defendant's cell phone."

         {¶3} Law enforcement conducted a search of Defendant's residence, seized Defendant's phone, and downloaded three videos depicting Friend engaged in sexual acts. Defendant was initially charged with one count of sexual exploitation of children (possession) contrary to NMSA 1978, Section 30-6A-3(A) (2007, amended 2016).[1] After law enforcement officers further investigated the matter and obtained evidence indicating that Defendant was the male participant in what the officers believed were self-recorded videos where Defendant was engaged in sexual acts with Friend, Defendant was additionally charged with two counts of sexual exploitation of children (manufacturing) in violation of Section 30-6A-3(D).[2] Defendant denied both having a sexual relationship with Friend and that he was the male participant in the video. At trial, the central issue to be decided was the identity of the male participant in the videos.

         {¶4} The State's first witness was Stepdaughter, whose testimony primarily established (1) when and why Friend had come to live with Stepdaughter and Defendant, (2) where Friend slept in the trailer, and (3) what prompted Stepdaughter to make a report concerning Friend and Defendant to authorities. Additionally, after the district court denied Defendant's motion in limine to exclude testimony by Stepdaughter regarding her observation of a prior sexual encounter between Defendant and Friend, Stepdaughter was allowed to testify that she once observed Friend performing oral sex on Defendant in the bedroom of the trailer.

         {¶5} The State next called Friend, who testified that she was the female in the videos and that Defendant was the male. Friend admitted that she had previously stated that the male in the video was someone other than Defendant, but at trial she testified that her prior statement was a lie. Friend stated that she was aware that the video was being made and that Defendant was the person taking the video using his own cellular phone.

         {¶6} Deputy Victor Hernandez of the Lea County Sheriffs Department described the investigation that followed Stepdaughter's report. He testified that when he went to Defendant's home to investigate and questioned Defendant, Defendant denied having sexual intercourse with Friend and told Deputy Hernandez that Friend slept on the couch. Deputy Hernandez's testimony also laid the foundation for the admission of State's Exhibit 1-the videos downloaded from Defendant's phone, which Deputy Hernandez seized during his investigation.

         {¶7} Detective Mark Munro of the Hobbs, New Mexico Police Department testified regarding the videos themselves and how he came to suspect that Defendant was both the male participant in the videos and the person who manufactured the videos. He explained that "the angle and the manner [in] which [the video] was recorded was consistent with a participant recording the video." He testified that while only the face of the female in the videos was "readily apparent, " the abdomen and genitals of the male participant were visible and contained what Detective Munro described as "a consistent abnormality to the abdomen, ... some sort of a scar or possibly a tattoo" in each of the videos. He then explained that as part of his investigation he reviewed photographs of Defendant's unclothed torso that were taken by Deputy Hernandez and watched the videos again, comparing the images in the video of the male participant's abdominal area to the photographs of Defendant. Because Friend, who initially told law enforcement that Defendant was the male in the videos, changed her story and identified another person as the male participant, Detective Munro also personally examined and photographed the torso of the other suspect in order to compare it to the videos. Detective Munro explained that he "freeze frame[d] and pull[ed]... screenshot[s]" from the videos in order to be able to compare the images in the videos with the photographs of Defendant and the other suspect. Based on his comparison of the videos-including the screenshot images-and the photographs, Detective Munro believed that the photograph of Defendant was "consistent" with the person that he saw in the video and that the other suspect was not the person in the video.

         {¶8} The district court admitted, and the State published to the jury, the videos in their entirety, the photographs of Defendant's and the other suspect's respective torsos, and the screenshot images taken from the three videos showing the male participant's abdominal area. The jury found Defendant guilty on all counts, and Defendant appealed.


         I. Defendant's Convictions for Manufacturing and Possession of Child Pornography Do Not Violate His Right to Be Free From Double Jeopardy Under the Facts of This Case

         {¶9} "The constitutional prohibition against double jeopardy protects against both successive prosecutions and multiple punishments for the same offense." State v. Contreras, 2007-NMCA-045, ¶ 19, 141 N.M. 434, 156 P.3d 725 (internal quotation marks and citation omitted). There are two types of "multiple punishments" cases: (1) "double [] description" cases, in which the defendant is charged with violations of multiple statutes or statutory subsections that may or may not be deemed the same offense for double jeopardy purposes; and (2) "unit of prosecution" cases, in which a defendant is charged with multiple violations of the same statute based on a single course of conduct. State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61; see State v. Franco, 2005-NMSC-013, ¶ 14, 137 N.M. 447, 112 P.3d 1104 (observing that the courts "treat statutes written in the alternative as separate statutes" for double jeopardy purposes). This is a "double description" case because Defendant challenges his convictions under two different subsections of Section 30-6A-3: Subsection (A) (possession) and Subsection (D) (manufacturing).[3] See Franco, 2005-NMSC-OI3, ¶I4.

         {¶10} In "double description" cases, we apply the two-part test set forth in Swafford v. State, 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 P.2d 1223. We "first examine whether the defendant's conduct was unitary, meaning that the same criminal conduct is the basis for both charges." Contreras, 2007-NMCA-045, ¶ 20 (internal quotation marks and citation omitted). "If the conduct is not unitary, then the inquiry is at an end and there is no double jeopardy violation." Id. (internal quotation marks and citation omitted). "If the conduct is unitary, however, then the second part of the analysis is to determine if the Legislature intended to punish the offenses separately." State v. Silvas, 2015-NMSC-006, ¶ 9, 343 P.3d 616.

         {¶11} Defendant argues that the conduct underlying the manufacturing and possession of child pornography charges "was clearly unitary[.]" The State argues it was not. We agree with the State.

         {¶12} "In analyzing whether a defendant's conduct is unitary, we look to whether [the] defendant's acts have sufficient indicia of distinctness." Contreras, 2007-NMCA-045, ¶ 21 (internal quotation marks and citation omitted). "In our consideration of whether conduct is unitary, we have looked for an identifiable point at which one of the charged crimes had been completed and the other not yet committed." DeGraff, 2006-NMSC-011, ¶ 27. "[W]e will not find that a defendant's conduct is unitary where the defendant completes one of the charged crimes before committing the other." Contreras, 2007-NMCA-045, ¶ 21. We also "consider such factors as proximity in time and space, similarities, the sequencing of the acts, intervening events, and the defendant's goals for and mental state during each act." State v. Vance, 2009-NMCA-024, ¶ 13, 145 N.M. 706, 204 P.3d 31. Importantly, "the question of whether a defendant's conduct is unitary is not limited by the [s]tate's legal theory, but rather depends on the elements of the charged offenses and the facts presented at trial." Contreras, 2007-NMCA-045, ¶ 21 (internal quotation marks and citation omitted). Thus, "[t]he proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses." Franco, 2005-NMSC-013, ¶ 7 (internal quotation marks and citation omitted). "We therefore first review the elements of the charged offenses and then consider whether the [s]tate presented sufficient facts at trial in order to support the elements of both crimes." Vance, 2009-NMCA-024, ¶ 13.

         {¶13} Here, the jury was given three different jury instructions-one for each of the manufacturing charges, and one for the possession charge-containing the elements the State had to prove in order for Defendant to be convicted of Counts 1-3. On the first manufacturing charge (Count 2), the jury was instructed that the essential elements it had to find included that Defendant (1) manufactured (2) child pornography (3) on or about January 26, 2013. On the second manufacturing charge (Count 3), the jury was instructed that it had to find that Defendant (1) manufactured (2) child pornography (3) on or about January 18, 2013. And on the possession charge (Count 1), the jury was instructed that it had to find Defendant (1) had child pornography (2) in his possession (3) on or about January 28, 2013. On their faces, these instructions required the State to prove different elements-and thus different facts-based on the charges stemming from acts on three different dates: manufacturing on January 18, manufacturing on January 26, and possession on January 28.[4] Notably, Defendant does not contend that the jury relied on the same evidence to convict Defendant of possession and manufacturing, nor, as we next explain, would such a contention be availing. Cf. id. ¶ 14. We turn to the evidence presented at trial. See id. ¶ 15.

         {¶14} As to the manufacturing counts, Friend testified that Defendant was the person who recorded (i.e., manufactured) the videos and that the videos show her-a "child" under Section 30-6A-3(D)-and Defendant having sex (i.e., the videos were of child pornography). Detective Munro testified regarding the videos recovered from Defendant's phone that (1) the video titled "video 005"-which formed the basis for Count 2-had a "creation date" of January 26, 2013; and (2) the video titled "video 006"-which formed the basis for Count 3-had a "creation date" of January 18, 2013. This evidence alone was sufficient to support each of the distinct elements contained in Counts 2 and 3.

         {¶15} Regarding the possession charge-which was based not on any particular video but rather on what the State describes as Defendant's "possession of a collection of child pornography"[5]-the State presented altogether different evidence to establish the elements of possession than that used to support the manufacturing charges. Deputy Hernandez testified that he executed a search warrant at Defendant's home on January 28, 2013, during which he seized Defendant's phone. He further testified that three videos were downloaded from the phone, meaning that it could be reasonably inferred that the videos existed on the phone-and thus were in Defendant's possession-on or about January 28 when the phone was seized from Defendant. Detective Munro, in addition to testifying that the videos had been created at an earlier point in time (i.e., on January 18 and 26, 2013), testified that two of the videos-those titled "us" and "videoOO5"-had been "duplicated, " meaning that a second copy of each video had been saved on the phone. Furthermore, all of the videos that were downloaded from the phone seized on January 28, 2013, were published to the jury; those videos showed Friend engaged in a prohibited sexual act (to wit, sexual intercourse). See § 30-6A-2(A)(1) (defining "prohibited sexual act" as including, among other acts, "sexual intercourse").

         {¶16} From this, the jury could independently infer that Defendant completed a separate act-possession of child pornography-that was sufficiently distinct from the previously completed acts of manufacturing because the acts of manufacturing and possession were separated not only in time but also by the intervening event of the duplication of the videos. See Vance, 2009-NMCA-024, ¶¶ 13, 17; Contreras, 2007-NMCA-045, ¶¶ 19, 22-23 (rejecting a double jeopardy challenge to convictions for possessing and trafficking cocaine where the state had "provided the jury with sufficient factual bases for finding that [the d]efendant possessed the cocaine both before and after he sold some if it[, ]" and holding that the conduct supporting possession and trafficking was not unitary). Ignoring the evidence of duplication-which implies a later action by Defendant taken in order to continue to possess the copied videos-Defendant argues that he "took no additional steps to commit the crime of possession; the cell phone stored the recording automatically." But that is not what the evidence presented at trial indicates. Moreover, as in Contreras, we conclude that "it is extremely unlikely that the jury based its verdict on a theory that [the d]efendant only possessed" the videos at the time he manufactured them. 2007-NMCA-045, ¶ 23. Rather, the evidence established that Defendant continued to possess the videos after he had completed the act of manufacturing them and that the State's basis for charging Defendant with possession was separate and independent from the bases for charging him with manufacturing.

         {¶17} We hold that Defendant's separate acts of manufacturing and possessing child pornography were not unitary under the facts of this case because there was distinct evidence from which "the jury reasonably could have inferred independent factual bases for the charged offenses." Vance,2009-NMCA-024, ΒΆ 17 (internal quotation marks and citation omitted). ...

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