This post examines an opinion from the Court of Appeals of New Mexico: State v. Sena, 2016 WL 1063166 (2016). The court, as courts usually do, began by
explaining how, and why, the prosecution arose:
This case arose after Defendant
acquired and retained possession of several digital images of child pornography
through peer-to-peer software and stored these images on the hard drive of his
computer in a `shared’ file, thus allowing other users of this peer-to-peer
software to download the images stored in the shared file on Defendant's
computer. Los Lunas Police Officer Aaron Chavez was monitoring child
pornography on the internet when he discovered that Defendant possessed several
images of child pornography on his computer.
On October 21, 2010, Officer Chavez
used peer-to-peer software to locate and download three separate still images
of child pornography from the shared file on Defendant's computer. On November
4, 2010, Officer Chavez again used the peer-to-peer software to download an
additional seven separate still images of child pornography from the shared
file on Defendant's computer. Based upon the content of the shared file on
Defendant's computer, he was indicted for twenty counts of possession of child
pornography, contrary to Section 30–6A–3(A), and ten counts of
distribution of child pornography, contrary to Section 30–6A–3(B).
On September 6, 2013, Defendant
initially pled guilty to all ten counts of distribution of child pornography.
Each count was represented by a still image that Officer Chavez downloaded from
the shared file on Defendant's computer and separately identified in the grand
jury indictment. Sentencing on the ten counts was postponed until April 28,
2014. On April 21, 2014, the Supreme Court issued its opinion in the Olsson case,
addressing the statutory construction of Section 30–6A–3(A) regarding
the unit of prosecution for possession of child pornography, and held that the
rule of lenity applies to the possession of multiple images of child
pornography. State v. Olsson, 324 P.3d 1230 (Supreme Court of
New Mexico 2014) (consolidating the appeals filed by two separate defendants,
James Olsson and Willard Ballard).
Olsson did not specifically
address the application of its holding to related issues involving distribution
of child pornography. State v. Olsson, supra. The parties agreed to
amend Defendant's plea agreement to make it a conditional plea, allowing
Defendant to appeal the issue of whether the Supreme Court's holding in Olsson (specifically
referring to defendant Ballard whose case was consolidated with defendant
Olsson) also applied to multiple convictions for distribution of child pornography.
Defendant then filed this appeal.
State v. Sena, supra.
Next, the court explained what the issue before the court
was and what the respective positions of the parties were:
The issue presented is whether
subsequent access or transfer of Defendant's shared file images, that a third
party is capable of accomplishing without Defendant's further knowledge or
involvement, support separate and distinct charges for distribution of child
pornography against Defendant. Defendant argues that charging for distribution
of child pornography under Section 30–6A–3(B) should be controlled
by Olsson, and, as a result, he can only be convicted on a
single count based upon the one `shared’ file created on his computer. By
pleading guilty, Defendant stipulated that possessing child pornography images
in a `shared’ file accessible on peer-to-peer software that third parties can
download did create a sufficient factual basis to support a charge of
distribution of child pornography.
Defendant argues that the act of making
this singular file available for download was a unitary act and this was his
only act of distribution under the facts in this case. In addition, Defendant
also argues that the act of distribution is not inherently committed one image
at a time, the statutory definition utilized to determine the unit of
prosecution for distribution of child pornography is ambiguous, and the rule of
lenity must be applied in this case.
The State asserts this case is
controlled by State v. Leeson, 149 N.M. 823, 255 P.3d 401 (New
Mexico Court of Appeals 2011), and that Defendant's ten convictions did not
violate double jeopardy. It argues that the legislative intent behind the
statute criminalizing distribution of child pornography is to protect children
from continued exploitation through dissemination of the recorded images of
their abuse, and the file sharing that occurred in this case is the type of
dissemination the statute prohibits.
The State argues that—just like
in Leeson, where we held that the defendant could be charged
separately for each image created—a separate charge is appropriate for each
image of child pornography that is distributed. The State acknowledges our
Supreme Court's holding in Olsson but argues that the Olsson decision
should be limited solely to the unit of prosecution for possession of child
pornography. Accordingly, the State requests that all of Defendant's
convictions be affirmed.
State v. Sena, supra.
The court went on to explain what “standard of review” it
would employ in reviewing Sena’s argument, and his convictions:
Under the Act, issues regarding the
unit of prosecution are addressed as a matter of law and subject to de novo review. State v. Olsson,
supra. We now address the
district court's decision de novo.
State v. Sena, supra.
The Court of Appeals began its analysis by examining the
relevant unit(s) of prosecution:
Double jeopardy protects defendants
against multiple punishments for the same offense. New Mexico Constitutionarticle II, § 15; State v. Pierce, 110 N.M. 76, 792 P.2d 408 (New
Mexico Supreme Court 1990); see Benton v. Maryland, 395 U.S. 784 (1969). The number of separate acts that may be prosecuted under one
criminal statute, known as a unit of prosecution case, is a scenario that can
trigger a double jeopardy violation. State v. Leeson, supra. In unit of
prosecution cases, the defendant is charged with multiple violations of a
single statute based upon acts that may or may not be considered a single
course of conduct. State v. Barr, 127 N.M. 504, 984 P.2d 185 (New
Mexico Supreme Court 1999). To determine the correct unit of prosecution, the
relevant inquiry is `whether the [L]egislature intended punishment for the
entire course of conduct or for each discrete act’ undertaken by a defendant. Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (New Mexico
Supreme Court 1991).
To determine the legislative intent for
establishing the unit of prosecution in any particular case, the courts employ
a two-part test. State v. Gallegos, 149 N.M. 704, 254 P.3d 655 (New
Mexico Supreme Court 2011). First, courts look to the plain language of the
statute to determine if the Legislature has defined the unit of
prosecution. State v. Swick, 2012–NMSC–018, ¶ 33, 279 P.3d 747
(New Mexico Supreme Court 2012). If so, the inquiry is complete and proceeds no
further. State v. Swick, supra.
If the unit of prosecution is not
clearly defined in the plain language of the statute, courts usually proceed to
analyze whether a defendant's acts are separated by sufficient `indicia of
distinctness’ to justify multiple punishments. State v. Gallegos, supra (internal quotation marks and citation
omitted). In determining distinctness, the district court reviews six factors
that were originally articulated in Herron v. State, 111 N.M. 357,
805 P.2d 624 (New Mexico Supreme Court 1991). As applied to the Act, the Herron factors
are described to be: (1) time between criminal acts, (2) location of the victim
during each act, (3) existence of any intervening events, (4) distinctions in
the manner of committing the acts, (5) the defendant's intent, and (6) the
number of victims. See State v. Olsson, supra. If there is not
sufficient distinctness between the acts that are separately charged, the rule
of lenity applies. Herron v. State,
supra. Under the rule of lenity, doubt is resolved in a defendant's favor
and against turning a single act into multiple offenses. Id.
State v. Sena, supra.
The court went on to note that
[t]wo New Mexico cases have provided
specific guidance regarding the unit of prosecution for charges under the
Act. See State v. Olsson, supra; State v. Leeson, supra. In Olsson, our Supreme Court considered the unit of prosecution issue
as applied to possession of child pornography. In State v. Leeson, this
Court considered the unit of prosecution issue as applied to manufacturing of
child pornography. Neither court addressed the unit of prosecution issue as
applied to the distribution of child pornography.
State v. Sena, supra.
Regarding these two cases, the court explained that in
Olsson, our Supreme Court
held that the statutory language addressing possession of child pornography was
ambiguous. State v. Olsson, supra.
An ambiguity existed because the
statutory definition for what constitutes a `visual or print medium’ contains
both singular types of images, such as a photograph or slide, and multiple
types of images, such as a book, diskette, or film. State v. Olsson, supra; Section 30–6A–2(B). Given this contrast, a
plain meaning as to the correct unit of prosecution for possession of child
pornography was not readily apparent. State
v. Olsson, supra. Additionally, our
Supreme Court found that the legislative history and purpose of Section 30–6A–3 do
not define a clear unit of prosecution and that the Herron test
of distinctness does not apply in possession cases. State v. Olsson, supra.
It determined that the Herron factors
apply where a defendant has direct 2 contact with a victim, but these factors
do not translate to possession cases because many of the factors are irrelevant
to possession or are inconclusive if applicable. State v. Olsson, supra. Because the statutory language was
`insurmountably ambiguous’ and the indicia of distinctness factors could not be
applied in possession cases, the rule of lenity was applied in the defendant's
favor. State v. Olsson, supra. Thus,
the Court held that only one count of possession of child pornography could be
imposed. State v. Olsson, supra.
In Leeson, this Court
considered the unit of prosecution as applied to the act of manufacturing child
pornography. State v. Leeson, supra. This Court found that the unit of
prosecution for manufacturing child pornography under Section 30–6A–3(D) was
readily discernible and that a separate charge could be brought for each image created. State v. Leeson, supra.
To manufacture is specifically defined
in the Act as engaging in `the production, processing, copying by any means,
printing, packaging, or repackaging of any visual or print medium’ depicting
child pornography. Section 30–6A–2(D). Thus, under a plain language analysis of
this separate statutory wording, each photograph taken is a distinct action
involving a victim and a distinct violation of the statute State v. Leeson,
supra. As a result, this Court determined that the prosecution of the act
of manufacturing each separate photograph did not violate double
jeopardy. State v. Leeson, supra.
State v. Sena, supra.
The Court of Appeals then took up the issue involved in this
appeal, noting that
to determine the unit of prosecution
for distribution of child pornography, we must now consider the language
of Section 30–6A–3(B) and try to give effect to the legislative
intent. State v. Leeson, supra. `If the statute does not clearly
define the unit of prosecution, we must determine whether the different
offenses are separated by sufficient indicia of distinctness.’ State v.
Leeson, supra. (internal quotation marks and citation omitted).
State v. Sena, supra.
It went on to explain that Section 30–6A–3(B) states:
It is unlawful for a person to
intentionally distribute any obscene visual or print medium depicting any
prohibited sexual act or simulation of such an act if that person knows or has
reason to know that the obscene medium depicts any prohibited sexual act or
simulation of such act and if that person knows or has reason to know that one
or more of the participants in that act is a child under eighteen years of age.
`[V]isual or print medium’ is defined
as:
(1) any film, photograph, negative,
slide, computer diskette, videotape, videodisc or any computer or
electronically generated imagery; or
(2) any book, magazine or other form of
publication or photographic reproduction containing or incorporating any film,
photograph, negative, slide, computer diskette, videotape, videodisc or any
computer generated or electronically generated imagery[.]
State v. Sena, supra.
The court then explained that the
wording used in Section 30–6A–3(B) for
distribution of child pornography is the exact same language used in Section
30–6A–3(A) regarding possession of child pornography except for one word;
the word `distribute’ is used in place of the word `possess.’ Neither `possess’ nor `distribute’ is defined
elsewhere in the Act. Because the identical statutory language is utilized by
the Legislature, we conclude that our Supreme Court's analysis in State
v. Olsson is the most applicable statutory construction precedent and Olsson should guide our analysis in the
present case.
We hold that the use of the word
`distribute’ in Section 30–6A–3(B) in place of the word `possess’
under Section 30–6A–3(A) reflects an identical ambiguity with regard
to the interpretation of the unit of prosecution. Therefore, consistent
with Olsson, we agree that the statutory language in Section
30–6A–3(B) is ambiguous regarding the intended unit of prosecution for
distribution of child pornography. State
v. Olsson, supra. As recognized
in Olsson, the same controlling definition of `visual or print
medium’ that is set forth in Section 30–6A–2(B) of the Act, providing for both
singular and multiple types of images, also applies to factual scenarios
involving acts of distribution rather than simple possession. State v. Olsson, supra. The history and
purpose of Section 30–6A–3 discussed in Olsson similarly
fails to provide further guidance as to a clear unit of prosecution in either
scenario. State v. Olsson, supra.
State v. Sena, supra.
The court then went on to address a related issue,
explaining that
[w]hile distribution may align with
possession in certain factual scenarios, we must address how both may differ
with manufacturing under State v. Leeson, supra. The language
of Section 30–6A–3(D) for the manufacture of child pornography
differs from the language for possession and distribution. Notably, Section
30–6A–3(D) defines manufacture somewhat differently than possession and
distribution, and Section 30–6A–2(D) provides a more specific and detailed
definition for the word `manufacture.’ This Court recognized that this more
specific definition of `manufacture’ provides the proper unit of prosecution as
to each image manufactured. State v. Leeson, supra.
Both distribution and possession lack
this additional defined clarity. Furthermore, this Court in Leeson distinguished
manufacturing from possession, noting having been troubled by what the Legislature
intended by the word `possess’ and `questioned whether [it] meant to criminalize
the possession of a collection of child pornography or the possession of each
individual image within a collection.’ State v. Leeson, supra. Because
the statutory definition of distribution is similarly ambiguous and applies the
identical definition for `visual or print medium’ used to define possession,
our holding in State v. Leeso, supra, only confirms the same
concerns that were addressed and resolved by our Supreme Court in State
v. Olsson.
State v. Sena, supra.
The court then took
up the issue in this case, noting, initially, that
[w]ith the unit of prosecution for
distribution of child pornography unclear from the statute and legislative
history, we must ultimately consider whether Defendant's acts have sufficient
distinctness to justify multiple punishments. As concluded in State v. Olsson, supra, the Herron factors to determine distinctness
should apply when a defendant is charged with having direct contact with the
victim. Distribution of child pornography does not entail direct contact with a
child victim and Defendant was not charged with any direct contact with a
victim in this case.
Assuming without deciding that an
individual receiving a distribution of child pornography can be considered `a
separate type of victim’ under Section 30–6A–3(B) and the Herron factors should be applied,
Defendant's actions in this case were not shown to be distinct with regard to
any images placed in the `shared’ file. No multiplicity of separate actions was
alleged to have occurred. No evidence was presented to establish that Defendant
personally sent any image to a third party. Even Officer Chavez established
that he could download one or more of the images located in Defendant's shared
file at any one time, without any indicia of distinctiveness that can be
attributed to Defendant.
State v. Sena, supra.
The court therefore found that
the Herron factors to
establish distinctness, if applicable to separate acts of distribution of child
pornography, did not exist in this case.
Finally, we turn to the rule of lenity.
Just as the rule of lenity was applied to the ambiguity regarding the unit of
prosecution in State v. Olsson, it also applies to Defendant's
actions regarding the distribution of child pornography in this case. . . .
Defendant created one distinct computer
file containing multiple images of child pornography. Defendant does not
dispute that he committed an act of distribution of child pornography by making
his file accessible through peer-to-peer sharing software. Defendant did not
perform any other readily discernible act that would justify a separate,
distinct, additional charge of distribution. The rule of lenity applies to
limit the number of charges and convictions upon which Defendant may be found
guilty. That number is one. The indirect actions of accessing Defendant's
shared computer file by Officer Chavez do not support additional charges of
distribution under the current statutory language of Section 30–6A–3(B).
Accordingly, to prevent double jeopardy, Defendant's ten convictions for
distribution of child pornography are now reduced to one.
This Court does not address, and is
specifically reserving the question of, whether multiple actions undertaken by
some other defendant to affirmatively share images of child pornography with a
third party may constitute separate acts of sufficient distinctiveness to
warrant multiple units of prosecution for the distribution of child pornography
under the Act and the current statutory language of Section 30–6A–3(B).
As our Supreme Court respectfully
recommended in State v. Olsson, this Court also requests that
the Legislature consider clarification and specificity regarding the intended
unit of prosecution for possession of child pornography and the distribution of
child pornography, especially in light of rapidly advancing technology and
changes in society regarding the use of the internet.
State v. Sena, supra.
The court therefore
held that,
[f]or the reasons set forth herein, we
reverse all but one of Defendant's convictions for distribution of child
pornography. We further remand this case to the district court to correct
Defendant's judgment and sentence and to conduct any further proceedings that
may be necessary to effectuate this Court's decision.
State v. Sena, supra.
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