June 28, 2019- State of New Mexico v. Donald G. Knight, No. A-1-CA-36160

·l 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______ _
3 Filing Date: June 28, 2019
4 	NO. A-1-CA-36160
5 	STATE OF NEW MEXICO,
6 	Plaintiff-Appellee,
7 V.
8 DONALD G. KNIGHT,
Defendant-Appellant.
9 APPEAL FROM THE-DISTRICT COURT OF CHAVES COUNTY
10 Freddie J. Romero, District Judge
11 	Hector H. Balderas, Attorney General
12 Santa Fe, NM
13 	Meryl E. Francolini, Assistant Attorney General
14 Albuquerque, NM
15 	for Appellee
16 Bennett J. Baur, Chief Public Defender
17 Kimberly Chavez Cook, Assistant Appellate Defender
18 	Santa Fe, NM
19 	for Appellant
Court of Appeals of New Mexico
Filed 6/28/2019 11:36 AM

OPINION
1 BOGARDUS, Judge.
2 	{1} 	Defendant appeals his conviction, following a bench trial, of four counts of
,,
3 sexual exploitation of children (possession), contrary to NMSA 1978, Section 30-
4 6A-3(A) (2007, amended 2016), and ten counts of sexual exploitation of children
5 (manufacture), contrary to 	Section 30-6A-3(D). 1 These crimes are commonly
6 referred to 	as 	possession and manufacture 	of child pornography. 	On appeal,
7 Defendant challenges the sufficiency of the evidence supporting his convictions for
8 both crimes and contends his convictions for multiple counts of each violate double
9 jeopardy. Agreeing with Defendant's double jeopardy argument as it relates to
10 possession, we remand to the district court to vacate three of the four counts of
11 	possession. We otherwise affirm.
12 BACKGROUND
13 	{2} 	Defendant's charges stem from his use of FrostWire, a peer-to-peer, file-
14 sharing network, to access child pornography. At trial, Sergeant Douglas Perham
15 	with the Chaves County Sheriffs Department was the only witness to testify. He
16 was qualified as an expert in investigation, retrieval, and forensic evaluation within
17 the area of sexual exploitation of children. Sergeant Perham's testimony established
18 	the following.
1All references to Section 30-6A-3 in this opinion are to the 2007 version of
the statute.

1 {3} 	Peer-to-peer, file-sharing networks allow users to share and download any
2 files that they wish, from music to books to child pornography. In order to access a
3 peer-to-peer network, users have to download a program onto their computer for that
4 network. Once the program is downloaded, a global unique identifier (GUID) is
5 assigned to the computer to which the program is downloaded. Users of file-sharing
6 networks are able to search for files using keywords and can download any of the
7 search results they choose. All downloads are placed into a shared folder created by
8 the program unless the user makes changes to the program's default settings.
9 {4} 	On April 28, 2011, Sergeant Perham logged into a law enforcement database
10 that indicated an Internet Protocol (IP) address in Chaves County was sharing files
11 	suspected to be child pornography. The suspected files were identified by hash
12 values, 2 which are alphanumeric values assigned to every unique file. Sergeant
13 	Perham testified there has not been a forensically documented instance of different
14 files having the same hash value.
15 	{5} 	Using Shareaza LE, a law enforcement version of the peer-to-peer, file-
16 sharing program Shareaza, Sergeant Perham connected to the IP address "identified
17 by the database. Sergeant Perham downloaded one complete file on April 28, 2011.
18 	On May 10, 2011, Sergeant Perham was again able to connect to the identified IP
2Witnesses and trial counsel used the terms "SHA-1 value," "SHA value," and
"hash value" interchangeably throughout trial. For clarity and consistency, we use
"hash value" throughout this opinion.
2

1 address and received an additional three partial downloads of other files. Sergeant
2 Perham 	reviewed 	the 	downloaded 	files 	and 	confirmed 	they 	contained 	child
3 pornography. Pursuant to a search warrant, Sergeant Perham obtained information
4 from the internet service provider associated with the IP address, including a
5 physical address in Roswell, New Mexico, and the name "Donald Knight." A vehicle
6 located at the physical address was also registered to "Donald Knight."
7 {6} 	A search of the home at the physical address was conducted pursuant to
8 another search warrant. Defendant was not present at the time of the search, but
9 arrived after being contacted. The southwest bedroom door of the home, which was
10 padlocked, was forced open. Inside the bedroom, Sergeant Perham located a HP
11 	Pavilion computer and, using an onsite preview program, was able to locate a video
12 that he previously received as a download.
13 	{7} 	Upon 	his 	arrival, 	Defendant 	voluntarily 	spoke 	with 	Sergeant 	Perham.
14 Defendant told Sergeant Perham that his room was the southwest bedroom and that
15 	it was padlocked because his adult son would take things from.the room. Defendant
16 stated that he was aware of peer-to-peer networks and was familiar with how they
17 work. Defendant admitted to using LimeWire and FrostWire. While he expressed
18 	familiarity with known child pornography search terms, Defendant only admitted to
19 searching for adult pornography. Defendant stated that he would occasionally get
3

1 "pop ups" 	of child pornography. 3 Defendant admitted to receiving five to ten
2 downloads containing child pornography. Defendant reported that he would delete
3 files containing child pornography when he found them. Defendant denied sharing
4 and was unaware how Sergeant Perham was able to get a download from his
5 computer. However, Defendant also stated that he understood how file sharing
6 worked and that he was not sharing when his computer was off. Defendant admitted
7 to leaving his computer on a lot of the time.
8 {8} 	In total, the HP Pavilion computer, several other computers, numerous DVDs
9 and CDs,4 a memory card, and an external hard drive were seized. All of the seized
10 	items were taken to the Chaves County Sheriffs Department Internet Crimes
11 	Against Children laboratory and subjected to forensic examination. Using Forensic
12 Tool Kit, a forensic examination software program, Sergeant Perham was· able to
13 	locate child pornography on the HP Pavilion computer, the external hard drive, and
14 twelve 	of the 	DVDs. 	FrostWire, 	the 	peer-to-peer, 	file-sharing 	network 	that
15 	Defendant admitted to using, was found on the HP Pavilion computer, and the
- 3Sergeant Perham testified that, to his knowledge, peer-to-peer networks do
not have "pop ups."
4 The terms "CD" and "DVD" were used interchangeably by the witness, trial
counsel, and the district court. Because the record is not clear and in the interest of
clarity and consistency, we use DVD to refer to any CD or DVD seized from
Defendant's home.
4

1 computer's GUID matched the GUID identified by Sergeant Perham's Shareaza LE
2 software when it downloaded the files containing child pornography.
3 {9} 	After the close of evidence during the bench trial, the State filed an amended
4 criminal information charging Defendant with four counts of possession of child
5 pornography, contrary to Section 30-6A-3(A); four counts of distribution of child
6 pornography, contrary to Section 30-6A-3(B); and eleven counts of manufacturing
7 child pornography, contrary to Section 30-6A-3(D). On Defendant's motion, the
8 district court granted a directed verdict on all four distribution counts and a single
9 manufacturing count. The district court convicted Defendant on all remaining
10 counts.
11 	DISCUSSION
12 I. 	Sufficiency of the Evidence
13 	A. 	Standard of Review
14 	{to} 	To the extent that Defendant's argument requires us to interpret the statutes
15 	criminalizing the possession and manufacture of child pornography, "that presents a
16 question of law which is reviewed de novo on appeal." State v. 	Chavez, 2009-
17 NMSC-035, ,-r 10, 146 N.M. 434,211 P.3d 891. "In interpreting a statute, our primary
18 	objective is to give effect to the Legislature's intent." State v. Trujillo, 2009-NMSC-
19 012, ,-r 11, 146 N.M. 14,206 P.3d 125. "In discerning legislative intent, we look first
20 to the language used and the plain meaning of that language." Id. "[W]hen a statute
5

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'',
1
2
3
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
4 trial." Chavez, 2009-NMSC-035, ,r 11.
5 {11} 	"The test for sufficiency of the evidence is whether substantial evidence of
6 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
7 reasonable doubt with respect to every element essential to a conviction." State v.
8 Montoya, 2015-NMSC-010, ,r 52, 345 P.3d 1056 (internal quotation marks and
9 citation omitted). 	"[S]ubstantial evidence means 	such relevant 	evidence 	as 	a
10 reasonable mind might accept as adequate to support a conclusion[.]" State v.
11 	Salgado, 1999-NMSC-008, ,r 25, 126 N.M. 691, 974 P.2d 661 (internal quotation
12 marks and citation omitted). "In reviewing the sufficiency of the evidence, we must
13 	view the evidence in the light most favorable to the guilty verdict, indulging all
14 reasonable inferences and resolving all conflicts in the evidence in favor of the
15 	verdict." State v. Cunningham, 2000-NMSC-009, ,r 26, 128 N.M. 711, 998 P.2d 176.
16 B.
17
18 	{12}
General Criminal Intent Is the Mens Rea for Intentional Possession of
Child Pornography and Intentional Manufacture of Child Pornography
As a threshold matter, Defendant asks us to hold that general criminal intent
19 is insufficient to sustain a conviction for possession of child pornography under
20 Section 30-6A-3(A) or manufacture of child pornography under Section 30-6A-
21 	3(D). Defendant's argument relies on the analysis found in State v. Granillo, 2016-
6

1 NMCA-094, 384 P.3d 1121. We recently rejected the same argument for a different
2 subsection of this statute in State v. Franco, 2019-NMCA-__, ,I 13, __ P.3d
3 __ (No. A-1-CA-35470, June 13, 2019).
4 	{13} 	In that case, as a matter of first impression, we addressed "the intent necessary
5 to sustain a conviction for intentional distribution of child pornography under
6 Section 30-6A-3(B)." Franco, 2019-NMCA- 	,I 13. Relying on Granillo, the
7 defendant urged us to determine that general criminal intent was insufficient to
8 convict under that 	statute. 	Id. 	However, 	we 	reasoned that 	Granillo 	was 	not
9 controlling because Section 30-6A-3(B) does not contain a tiered mens rea. Franco,
10 2019-NMCA-__, ,I 16. Therefore, unlike the statute involved in Granillo, NMSA
11 	1978, 	§ 	30-6-l(D)(l) 	(2009) 	(criminalizing 	intentional 	child 	abuse 	by
12 endangerment), Section 30-6A-3(B) could not be said to "lean[] away from the
13 	common law approach." Franco, 2019-NMCA-__, ,I 16 (internal quotation marks
14 and citation omitted). Because Section 30-6A-3(B) "only describes a particular act
15 	and does not include an intent to do a further act or achieve a further consequence[,]"
16 we concluded that, under the common law, Section 30-6A-3(B) only required
17 general criminal intent. Franco, 2019-NMCA-__, ,I 16.
18 	{14} 	Like Section 30-6A-3(B), Section 30-6A-3(A) and Section 30-6A-3(D) do not
19 include an intent to do a further act or achieve a further consequence. Rather, they
20 too only describe a particular act. Compare § 30-6A-3(B) ("It is unlawful for a
7

1 person to intentionally distribute any obscene visual or print medium depicting any
2 prohibited sexual act or simulation of such an act if that person knows or has reason
3 to know that the obscene medium depicts any prohibited sexual act or simulation of
4 such act and if that person knows or has reason to know that one or more of the
5 participants in that act is a child under eighteen years of age."), with § 30-6A-3(A)
6 ("It is unlawful for a person to intentionally possess any obscene visual or print
7 medium depicting any prohibited sexual act or simulation of such an act_ if that
8 person knows or has reason to know that the obscene medium depicts any prohibited
9 sexual act or simulation of such act and if that person knows or has reason to know
10 that one or more of the participants in that act is a child under eighteen years of
11 	age."), and§ 30-6A-3(D) ("It is unlawful for a person to intentionally manufacture
12 any obscene visual or print medium depicting any prohibited sexual act or simulation
13 	of such an act if one or more of the participants in that act is a child under eighteen
14 years of age."). Therefore, we see no reason to reach a different conclusion for these
15 	crimes. Accordingly, we hold that both Section 30-6A-3(A) and Section 30-6A-3(D)
16 also require only general criminal intent-"purposely do[ing] an act which the law
17 declares to be a crime." UJI 14-141 NMRA.
18 	{15} 	Both Defendant's 	sufficiency challenges 	appear to 	be premised on his
19 argument for a heightened mens rea, which we have rejected. Nevertheless, we
20 address whether the State has proven Defendant acted with general criminal intent
8

1 beyond a reasonable doubt. "The element of general criminal intent is satisfied if the
2 [s]tate can demonstrate beyond a reasonable doubt that the accused purposely
3 performed the act in question." State v. Gonzalez, 2005-NMCA-031, ~ 23, 137 N.M.
4 107, 107 P.3d 547 (alterations, internal quotation marks, and citation omitted); see
5 UJI 14-141. "Intent is subjective and is almost always inferred from other facts in
6 the case, as it is rarely established by direct evidence." State v. Sosa, 2000-NMSC-
7 036, ~ 9, 129 N.M. 767, 14 P.3d 32 (internal quotation marks and citation omitted).
8 C.
9
10 	{16}
Substantial Evidence Supported Defendant's Convictions for Intentional
Possession of Child Pornography
Defendant argues that there was insufficient evidence of his mens rea and,
11 	therefore, insufficient evidence to support his convictions for possession of child
12 pornography. 	Viewing the following 	evidence in the light most favorable 	to
13 	Defendant's convictions, we disagree.
14 {17} 	The State presented evidence of the following. Defendant was familiar with
15 	known child pornography search terms. When Defendant's home was searched, law
16 enforcement officers found a HP Pavilion computer in his bedroom. 	On that
17 computer, Sergeant Perham was able to locate videos containing child pornography.
18 	Sergeant Perham identified four specific videos that were located on Defendant's
19 HP Pavilion computer in relation to Defendant's charges for possession of child
20 pornography. Sergeant Perham testified as to the file names for all four of the
21 	identified videos. Each 	of the file names identified contained the same child
9

1 pornography search terms that Defendant expressed familiarity with. From this
2 evidence, the district court could have reasonably concluded that Defendant acted
3 with the requisite intent.
4 	{18} 	Defendant relies on the following testimony to support his contention there
5 was insufficient evidence presented of his intent. Sergeant Perham testified that it
6 would be possible for an "innocuous" search to receive results containing child
7 pornography and that he was unaware of whether a FrostWire user could preview
8 results before downloading them. Sergeant Perham also testified that Defendant
9 advised that he would delete files containing child pornography when he would find
10 them. However, Defendant concedes that this Court rejected similar arguments in
11 	State v. Adamo, 2018-NMCA-013, ,-r 19, 409 P.3d 1002 (stating the fact-finder was
12 free to accept or reject the defendant's contentions regarding intentionality including
13 	that the downloads were made "unwittingly"), and State v. Santos, 2017-NMCA-
14 075, ,-r,-r 12-20, 404 P.3d 797 (rejecting the "[d]efendant's contention that deleting
15 	the materials shows the intent to get rid of the materials-not an intent to possess
16 the 	materials" 	(alteration 	and 	internal 	quotation 	marks 	omitted)). 	However,
17 Defendant argues that under a heightened mens rea those decisions should be no
18 	more than persuasive. Because we have rejected Defendant's request to require a
19 heightened mens rea, we see no reason to revisit our decisions in Adamo and Santos
20 in this case. 	Accordingly, the district court, 	as 	fact-finder, 	was free 	to 	reject
10

1 Defendant's version of the evidence of his intent. See Adamo, 2018-NMCA-013,
2 ,r 19; Santos, 2017-NMCA-075, ,r 15.
3 {19} 	We conclude there is substantial evidence supporting Defendant's convictions
4 for possession of child pornography under Section 30-6A-3(A).
5 D. 	Substantial Evidence Supported Defendant's Convictions for Intentional
6 	Manufacture of Child Pornography
7 	{20} 	Defendant argues there is insufficient evidence to support his convictions for
8 manufacture of child pornography. In so arguing, Defendant contends: (1) the State
9 failed to prove that any of the images were copied instead of moved; (2) Sergeant
10 Perham's testimony regarding creation date "was demonstrably inaccurate," so the
11 	State failed to prove dates of manufacture; and (3) there was insufficient evidence
12 of his mens rea.
13 	{21} 	We address Defendant's first two arguments together. In these arguments,
14 Defendant 	cites 	a 	number 	of websites 	that 	contain 	discussions 	of technical
15 	information 	including 	duplication 	of files, 	moving 	files 	to 	another 	location,
16 "burning" a recordable disc, the differences between recordable discs, and creation
17 dates for files and recordable discs. Defendant requests that we take judicial notice
18 	of this information, contending that the facts 	contained in the cited websites
19 "necessarily should and would have affected the fact-finder's evaluation of the
20 evidence." 	Sergeant 	Perham's 	testimony 	regarding 	the 	creation 	dates 	went
21 	unchallenged by Defendant at trial. See State v. Jim, 2014-NMCA-089, ,r 22, 332
11

1 P.3d 870 ("It is well established that a party may not invite error and then proceed
2 to complain about it on appeal."). Moreover, Defendant did not introduce any of this
3 evidence to the district court during his bench trial, nor did he ask the district court
4 to take judicial notice of the facts he seeks to present for the first time on appeal.
5 {22} 	Unlike the district court, this Court is not a fact-finding court. "[W]e do not
6 consider new facts when conducting appellate review." City of Aztec v. 	Gurule,
7 2010-NMSC-006, ,r 11, 147 N.M. 693,228 P.3d 477. Rather, "our scope of appellate
8 review is limited to a consideration of those facts disclosed by the record." Gen.
9 Servs. Corp. v. Bd. of Comm 'rs of Bernalillo Cty., 1965-NMSC-112, ,r 6, 75 N.M.
10 	550, 408 P.2d 51, overruled on other grounds by Gurule, 2010-NMSC-006, ,r 17.
11 	Accordingly, we decline Defendant's invitation to take judicial notice of facts not
12 presented during trial and therefore reject Defendant's first two arguments regarding
13 	the sufficiency of the evidence.
14 	{23} 	We now tum to Defendant's third sufficiency argument, which pertains to
15 	mens rea. The evidence presented at trial established the following. At trial, Sergeant
16 Perham 	identified 	ten 	separate 	videos 	to 	support 	Defendant's 	charges 	for
17 manufacture of child pornography. Sergeant Perham testified that the videos were
18 	contained on five different pieces of media: three videos on one DVD; one video on
19 a second DVD; two videos on a third DVD; one video on a fourth DVD; and three
20 videos on an external hard drive. The four DVDs and the external hard drive were
12

1 all found in Defendant's locked bedroom. Sergeant Perham provided the file names
2 for all ten videos at trial, and all contained the same child pornography search terms
3 that Defendant was familiar with. The district court could have reasonably concluded
4 that Defendant acted with the requisite intent based on this evidence.
5 {24} 	Defendant contends that the following testimony means there was insufficient
6 evidence that he acted intentionally. Sergeant Perham testified that the majority of
7 the files contained on the seized items were adult pornography. Sergeant Perham
8 also testified that the files could have been part of a batch transfer that did not require
9 the transferor to view the file names. Defendant does not cite any authority indicating
10 that such testimony requires the fact-finder to conclude that Defendant did not act
11 	intentionally, and we see no basis for reaching that conclusion. Rather, Defendant's
12 argument concerning the inferences that could be drawn about his intent was for the
13 	district court, as fact-finder, "to accept or reject in its consideration and weighing of
14 the evidence." Adamo, 2018-NMCA-013, ,r 19. 5
15 	{25} 	We conclude there is substantial evidence supporting Defendant's convictions
16 for manufacture of child pornography under Section 30-6A-3(D).
5Adamo addressed the intent necessary for possession of child pornography.
Id. ,r 12. In this opinion, we have held that general criminal intent is the mens rea for
both possession of child pornography and manufacture of child pornography. We
therefore conclude thatAdamo's reasoning as to intent is also relevant to this inquiry.
13

1 II. 	Double Jeopardy
2 A. 	Standard of Review
3 	{26} 	We review Defendant's double jeopardy claims de novo. See State v. Bernal,
4 2006-NMSC-050, ,r 6, 140 N.M. 644, 146 P.3d 289 ("A double jeopardy claim is a
5 question of law that we review de novo."). "The constitution protects against both
)
6 successive prosecutions and multiple punishments for the same offense." State v.
7 Sena, 2018-NMCA-037, ,r 35, 419 P.3d 1240, cert. granted, 2018-NMCERT-_
8 (No. S-1-SC-36932, May 25, 2018); see U.S. Const. amend. V; N.M. Const. art. II,
9 § 	15. 	Defendant raises unit-of-prosecution claims, "in which an individual is
10 convicted of multiple violations of the same criminal statute." Bernal, 2006-NMSC-
11 	050, ,r 7. "For unit-of-prosecution challenges, the only basis for dismissal is proof
12 that a suspect is charged with more counts of the same statutory crime than is
13 	statutorily authorized." Id. ,r 13.
14 B.
15
16 	{27}
Defendant's Multiple Convictions for Intentional Possession of Child
Pornography Violate Double Jeopardy
The district court convicted Defendant of four counts of possession of child
17 pornography contrary to Section 30-6A-3(A). Defendant argues, and the State
18 	concedes, that State v. 	Olsson, 2014-NMSC-012, 324 P.3d 1230, requires us to
19 vacate all but one count. While we are not bound by the State's concession, State v.
20 	Tapia, 2015-NMCA-048, ,r 31,347 P.3d 738, we accept the concession because we
21 	conclude that it is supported by our precedent. See Olsson, 2014-NMSC-O 12, ,r,r 45,
14

1 47 (holding the defendant could only be convicted of one count of possession of ·
2 child pornography under Section 30-6A-3(A) because the unit of prosecution was
3 "insurmountably 	ambiguous"). 	Therefore, 	we 	hold 	that 	Defendant's 	four
4 convictio.ns for possession of child pornography violate double jeopardy and must
5 be reduced to a single conviction. See Olsson, 2014-NMSC-012, ,-r 47.
6 C. 	Defendant's Multiple Convictions for Intentional Manufacture of Child
7 	Pornography Do Not Violate Double Jeopardy
8 {28} 	The district court convicted Defendant of ten counts of manufacture of child
9 pornography contrary to Section 30-6A-3(D). Defendant argues that his multiple
~
10 convictions under this statute violate double jeopardy. In determining legislative
11 	intent regarding the unit of prosecution in any particular case, New Mexico courts
12 employ the following two-part test:
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
First, courts look to the plain language of the statute to determine if the
Legislature has defined the unit of prosecution. If so, the inquiry is
complete and proceeds no further. 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. In
determining distinctness, the district court reviews six factors that were
originally articulated in Herron[ v. State], 1991-NMSC-012, ,-r 15, 111
N.M. 357, 805 P.2d 624. As applied to the [Sexual Exploitation of
Children] 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. If
there is not sufficient distinctness between the acts that are separately
charged, the rule of lenity applies. Under the rule of lenity, doubt is
resolved in a defendant's favor and against turning a single act into
multiple offenses.
15

1 State v. Sena, 2016-NMCA-062, ,r 9, 376 P.3d 887 (internal quotation marks and
2 citations omitted).
3 	{29} 	This Court previously applied that test to determine the unit of prosecution
4 under Section 30-6A-3(D). In State v. Leeson, the defendant took numerous highly
5 sexually suggestive photographs of his girlfriend's daughters. 2011-NMCA-068,
6 149 N.M. 823, ,r 2,255 P.3d401. As a result, the defendant was charged with twenty
7 counts of manufacturing child pornography under Section 30-6A-3(D). Leeson,
8 2011-NMCA-068, ,r 8. Before his trial, the defendant made a motion to merge the
9 manufacturing counts into a single count; at the close of trial, the district court denied
, 	10 the motion. Id. ,r,r 4, 6. On appeal, this Court first looked to the language of the
11 	statute criminalizing the manufacture of child pornography, which states "it is
12 unlawful for a person to intentionally manufacture any obscene visual or print
13 	medium depicting any prohibited sexual act or simulation of such an act if one of
14 more of the participants in that act is a child under eighteen years of age." Id. ,r 15
15 	(quoting§ 30-6A-3(D)).
16 	{30} 	The Leeson Court noted that the Legislature has provided definitions for some
17 of the terms contained in Section 30-6A-3(D). Leeson, 2011-NMCA-068, ,r 16.
18 	"Manufacture" was defined as "the production, processing, copying by any means,
19 printing, packaging or repackaging of any visual or print medium depicting any
20 prohibited sexual act or simulation of such an act if one or more the participants in
I
16

1 that act is a child under eighteen years of age." Id. (quoting NMSA 1978, § 30-6A-
2 	2(0) (2001)). "Obscene" was also defined, Section 30-6A-2(E); additionally, we
3 noted our Supreme Court has concluded that" '[a]ll child pornography, not just hard-
4 core child pornography, is unacceptable and intolerable to New Mexico citizens and,
5 therefore, obscene under the Sexual Exploitation of Children Act.' " Leeson, 2011-
6 NMCA-068, ,r 16 (emphasis omitted) (quoting State v. Myers, 2009-NMSC-016,
7 ,r 39, 146 N.M. 128, 207 P.3d 1105). "Visual or print medium" is defined as
8
9
10
11
12
13
14
( 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[.]
15 Leeson, 2011-NMCA-068, ,r 16 (quoting§ 30-6A-2(B)).
16 {31} 	Based on the language of the statute and the relevant definitions, this Court
17 "conclude[ d] that the unit of prosecution for Section 30-6A-3(D) is clear from the
18 	face of the statute." Leeson, 2011-NMCA-068, ,r 14. The Leeson Court stated that
19 "[a] violation of the statute occurs where a criminal defendant intentionally produces
20 or 	copies 	a 	photograph, 	electronic 	image, 	or 	video 	that 	constitutes 	child
21 	pornography." Id. ,r 17. Accordingly, "each photograph [the d]efendant took of the
22 child victims was a discrete violation of the statute." Id. Therefore, "double jeopardy
23 	did not require the counts against [the d]efendant to be merged." Id.
17

1 {32} 	Defendant asks us to distinguish Leeson. He argues that Leeson applies only
2 to "the original production of an exploitative image" by photographing an act of
3 sexual abuse of a child and that copying of electronic files is different because it can
4 be accomplished either individually or in batches. We are not persuaded.
5 {33} 	This Court has recognized that "[t]he language of Section 30-6A-3(D) for
6 manufacture of child pornography differs from the language for possession and
7 distribution." Sena, 2016-NMCA-062, ,r 16. ''Notably, Section 30-6A-3(D) defines
8 manufacture somewhat differently than possession and distribution, and Section 30-
9 6A-2(D) 	provides 	a 	more 	specific 	and 	detailed 	definition 	for 	the 	word
10 	'manufacture.'" Sena, 2016-NMCA-062, ,r 16. The definition of "manufacture"
11 	includes "copying by any means," § 30-6A-2(D), and "visual or print medium"
12 includes films,·§ 30-6-2(B)(l ). This indicates that the unit of prosecution for the
13 	charges at issue here is each copy of an electronic video file, no matter whether each
14 such a file is copied individually or whether multiple files are copied in a batch.
15 	Therefore, under these facts and circumstances, the reasoning of Leeson and Sena
16 apply to the statutory language at issue in Defendant's case.6
6 Under 	Section 	30-6A-2(D), 	several 	different types 	of acts 	constitute
"manufacturing." Each such act may be combined with one of the types of "visual
or print medium," as defined in Section 30-6A-2(B), which can produce a large
number of combinations. In Leeson and in this case, the statutory language at issue
made clear the appropriate unit of prosecution. Perhaps it is time for the Legislature
to clarify its intended unit of prosecution for the statutory language not at issue in
either case.
18

1 {34} 	Accordingly, we hold that Defendant's ten convictions for manufacture of
2 child pornography do not violate double jeopardy. See Leeson, 2011-NMCA-068,
3 ,r 17.
4 CONCLUSION
5 	{35} 	We hold that general criminal intent is the mens rea for possession of child
6 pornography under Section 30-6A-3(A) and manufacture of child pornography
7 under Section 30-6A-3(D). We remand to the district court with instructions to
8 vacate three of Defendant's four convictions for possession of child pornography.
9 We affirm Defendant's remaining convictions.
10 {36} 	IT IS SO ORDERED.
11 	!fI.nt,.-- ~
12 	STINA B~US, Judge
13 	WE CONCUR:
19