FROM THE DISTRICT COURT OF CHAVES COUNTY Freddie J. Romero,
H. Balderas, Attorney General Santa Fe, NM Meryl E.
Francolini, Assistant Attorney General Albuquerque, NM for
Bennett J. Baur, Chief Public Defender Kimberly Chavez Cook,
Assistant Appellate Defender Santa Fe, NM for Appellant
KRISTINA BOGARDUS, JUDGE
Defendant appeals his conviction, following a bench trial, of
four counts of sexual exploitation of children (possession),
contrary to NMSA 1978, Section 30-6A-3(A) (2007, amended
2016), and ten counts of sexual exploitation of children
(manufacture), contrary to Section 30-6A-3(D). These crimes are
commonly referred to as possession and manufacture of child
pornography. On appeal, Defendant challenges the sufficiency
of the evidence supporting his convictions for both crimes
and contends his convictions for multiple counts of each
violate double jeopardy. Agreeing with Defendant's double
jeopardy argument as it relates to possession, we remand to
the district court to vacate three of the four counts of
possession. We otherwise affirm.
Defendant's charges stem from his use of FrostWire, a
peer-to-peer, file-sharing network, to access child
pornography. At trial, Sergeant Douglas Perham with the
Chaves County Sheriffs Department was the only witness to
testify. He was qualified as an expert in investigation,
retrieval, and forensic evaluation within the area of sexual
exploitation of children. Sergeant Perham's testimony
established the following.
Peer-to-peer, file-sharing networks allow users to share and
download any files that they wish, from music to books to
child pornography. In order to access a peer-to-peer network,
users have to download a program onto their computer for that
network. Once the program is downloaded, a global unique
identifier (GUID) is assigned to the computer to which the
program is downloaded. Users of file-sharing networks are
able to search for files using keywords and can download any
of the search results they choose. All downloads are placed
into a shared folder created by the program unless the user
makes changes to the program's default settings.
On April 28, 2011, Sergeant Perham logged into a law
enforcement database that indicated an Internet Protocol (IP)
address in Chaves County was sharing files suspected to be
child pornography. The suspected files were identified by
hash values,  which are alphanumeric values assigned to
every unique file. Sergeant Perham testified there has not
been a forensically documented instance of different files
having the same hash value.
Using Shareaza LE, a law enforcement version of the
peer-to-peer, file-sharing program Shareaza, Sergeant Perham
connected to the IP address identified by the database.
Sergeant Perham downloaded one complete file on April 28,
2011. On May 10, 2011, Sergeant Perham was again able to
connect to the identified IP address and received an
additional three partial downloads of other files. Sergeant
Perham reviewed the downloaded files and confirmed they
contained child pornography. Pursuant to a search warrant,
Sergeant Perham obtained information from the internet
service provider associated with the IP address, including a
physical address in Roswell, New Mexico, and the name
"Donald Knight." A vehicle located at the physical
address was also registered to "Donald Knight."
A search of the home at the physical address was conducted
pursuant to another search warrant. Defendant was not present
at the time of the search, but arrived after being contacted.
The southwest bedroom door of the home, which was padlocked,
was forced open. Inside the bedroom, Sergeant Perham located
a HP Pavilion computer and, using an onsite preview program,
was able to locate a video that he previously received as a
Upon his arrival, Defendant voluntarily spoke with Sergeant
Perham. Defendant told Sergeant Perham that his room was the
southwest bedroom and that it was padlocked because his adult
son would take things from the room. Defendant stated that he
was aware of peer-to-peer networks and was familiar with how
they work. Defendant admitted to using Lime Wire and Frost
Wire. While he expressed familiarity with known child
pornography search terms, Defendant only admitted to
searching for adult pornography. Defendant stated that he
would occasionally get "pop ups" of child
pornography. Defendant admitted to receiving five to
ten downloads containing child pornography. Defendant
reported that he would delete files containing child
pornography when he found them. Defendant denied sharing and
was unaware how Sergeant Perham was able to get a download
from his computer. However, Defendant also stated that he
understood how file sharing worked and that he was not
sharing when his computer was off. Defendant admitted to
leaving his computer on a lot of the time.
In total, the HP Pavilion computer, several other computers,
numerous DVDs and CDs,  a memory card, and an external hard
drive were seized. All of the seized items were taken to the
Chaves County Sheriffs Department Internet Crimes Against
Children laboratory and subjected to forensic examination.
Using Forensic Tool Kit, a forensic examination software
program, Sergeant Perham was-able to locate child pornography
on the HP Pavilion computer, the external hard drive, and
twelve of the DVDs. FrostWire, the peer-to-peer, file-sharing
network that Defendant admitted to using, was found on the HP
Pavilion computer, and the computer's GUID matched the
GUID identified by Sergeant Perham's Shareaza LE software
when it downloaded the files containing child pornography.
After the close of evidence during the bench trial, the State
filed an amended criminal information charging Defendant with
four counts of possession of child pornography, contrary to
Section 30-6A-3(A); four counts of distribution of child
pornography, contrary to Section 30-6A-3(B); and eleven
counts of manufacturing i child pornography, contrary to
Section 30-6A-3(D). On Defendant's motion, the district
court granted a directed verdict on all four distribution
counts and a single manufacturing count. The district court
convicted Defendant on all remaining counts.
Sufficiency of the Evidence
Standard of Review
To the extent that Defendant's argument requires us to
interpret the statutes criminalizing the possession and
manufacture of child pornography, "that presents a
question of law which is reviewed de novo on appeal."
State v. Chavez, 2009- NMSC-035, ¶ 10, 146 N.M.
434, 211 P.3d 891. "In interpreting a statute, our
primary objective is to give effect to the Legislature's
intent." State v. Trujillo, 2009-NMSC- 012,
¶ 11, 146 N.M. 14, 206 P.3d 125. "In discerning
legislative intent, we look first to the language used and
the plain meaning of that language." Id.
"[W]hen a statute contains clear and unambiguous
language, we will heed that language and refrain from further
statutory interpretation." Id. "After
reviewing the statutory standard, we apply a substantial
evidence standard to review the sufficiency of the evidence
at trial." Chavez, 2009-NMSC-035, ¶ 11.
"The test for sufficiency of the evidence is whether
substantial evidence of either a direct or circumstantial
nature exists to support a verdict of guilty beyond a
reasonable doubt with respect to every element essential to a
conviction." State v. Montoya,2015-NMSC-010,
¶ 52, 345 P.3d 1056 (internal quotation marks and
citation omitted). "[Substantial evidence means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion[.]" State v.
Salgado,1999-NMSC-008, ¶ 25, 126 N.M. 691, 974
P.2d 661 (internal quotation marks and citation omitted).
"In reviewing the sufficiency of the evidence, we must
view the evidence in the light most favorable to the guilty
verdict, indulging all ...