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State v. Knight

Court of Appeals of New Mexico

June 28, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
DONALD G. KNIGHT, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY Freddie J. Romero, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Meryl E. Francolini, 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 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).[1] 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.


         {¶2} 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.

         {¶3} 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.

         {¶4} 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, [2] 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.

         {¶5} 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."

         {¶6} 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 download.

         {¶7} 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.[3] 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.

         {¶8} In total, the HP Pavilion computer, several other computers, numerous DVDs and CDs, [4] 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.

         {¶9} 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.


         I. Sufficiency of the Evidence

         A. Standard of Review

         {¶10} 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.

         {¶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 ...

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