March 15, 2016 – State of New Mexico v. Gilber Sena, No. 33,889

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: March 15, 2016
NO. 33,889
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
GILBERT SENA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
William A. Sanchez, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
GARCIA, Judge.
{1} 	We now consider the correct unit of prosecution for distribution of child
pornography under NMSA 1978, Section 30-6A-3(B) (2007), part of the Sexual
Exploitation of Children Act, NMSA 1978, §§ 30-6A-1 to -4 (1984, as amended
through 2007) (the Act), as the Act is applied to the facts in this case. Defendant
Gilbert Sena conditionally pled guilty to ten counts of distribution of child
pornography after a police officer used peer-to-peer software on two occasions to
download ten separate still images of child pornography located in a “shared” file on
Defendant’s computer.
{2} 	After considering the Supreme Court’s analysis and ruling in State v. Olsson,
2014-NMSC-012, 324 P.3d 1230, we hold that Section 30-6A-3(B) is ambiguous. In
addition, the legislative history and purpose of the statute does not provide a clear
legislative intent for defining the unit of prosecution regarding the possession or
distribution of child pornography and the test for distinctness, articulated in Herron
v. State, 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624, does not apply in this
case. Because we also apply the rule of lenity to the multiple charges filed in this case,
we hold that Defendant may only be convicted of one count of distribution of child
pornography.

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BACKGROUND
A. 	District Court Proceedings
{3} 	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).
{4} 	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

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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. Olsson, 2014-NMSC-012, ¶ 2, (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. Id. 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.
B. 	Arguments on Appeal
{5} 	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

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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.
{6} 	The State asserts this case is controlled by State v. Leeson, 2011-NMCA-068,
149 N.M. 823, 255 P.3d 401, 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

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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.
DISCUSSION
A. 	Standard of Review
{7} 	Under the Act, issues regarding the unit of prosecution are addressed as a matter
of law and subject to de novo review. Olsson, 2014-NMSC-012, ¶ 14. We now
address the district court’s decision de novo.
B. 	Units of Prosecution Under Olsson and Leeson
{8} 	Double jeopardy protects defendants against multiple punishments for the same
offense. N.M. Const. art. II, § 15; State v. Pierce, 1990-NMSC-049,¶ 33, 110 N.M.
76, 792 P.2d 408; see Benton v. Maryland, 395 U.S. 784, 786 (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. Leeson,
2011-NMCA-068,¶ 13. 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, 1999-NMCA-081, ¶ 11, 127
N.M. 504, 984 P.2d 185. To determine the correct unit of prosecution, the relevant

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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, 1991-
NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223.
{9} 	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, 2011-NMSC-027,
¶ 31, 149 N.M. 704, 254 P.3d 655. 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. If so, the inquiry is complete and
proceeds no further. Id. 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.
Gallegos, 2011-NMSC-027, ¶ 31 (internal quotation marks and citation omitted). In
determining distinctness, the district court reviews six factors that were originally
articulated in Herron. 1991-NMSC-012, ¶ 15. 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
Olsson, 2014-NMSC-012, ¶ 32. If there is not sufficient distinctness between the acts
that are separately charged, the rule of lenity applies. Herron, 1991-NMSC-012, ¶ 14.

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Under the rule of lenity, doubt is resolved in a defendant’s favor and against turning
a single act into multiple offenses. Id.
{10} 	Two New Mexico cases have provided specific guidance regarding the unit of
prosecution for charges under the Act. See Olsson, 2014-NMSC-012; Leeson, 2011-
NMCA-068. In Olsson, our Supreme Court considered the unit of prosecution issue
as applied to possession of child pornography. 2014-NMSC-012, ¶ 1. In Leeson, this
Court considered the unit of prosecution issue as applied to manufacturing of child
pornography. 2011-NMCA-068, ¶ 17. Neither court addressed the unit of prosecution
issue as applied to the distribution of child pornography.
{11} 	In Olsson, our Supreme Court held that the statutory language addressing
possession of child pornography was ambiguous. 2014-NMSC-012, ¶ 2. 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. Id. ¶ 20; 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. 	Olsson, 2014-NMSC-012, ¶ 20.
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. Olsson, 2014-NMSC-012, ¶¶ 31, 42.

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It determined that the Herron factors apply where a defendant has direct 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. Olsson, 2014-
NMSC-012, ¶ 39. 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. Id. ¶¶ 43, 45. Thus, the Court held that
only one count of possession of child pornography could be imposed. Id. ¶ 47.
{12} 	In Leeson, this Court considered the unit of prosecution as applied to the act of
manufacturing child pornography. 2011-NMCA-068, ¶ 17. 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. Leeson, 2011-NMCA-068, ¶ 17. 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. Leeson, 2011-NMCA-068, ¶ 17. As a
result, this Court determined that the prosecution of the act of manufacturing each
separate photograph did not violate double jeopardy. Id. ¶ 20.

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C. 	The Unit of Prosecution for Distribution of Child Pornography
{13} 	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. Leeson, 2011-NMCA-068, ¶ 14. “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.” Id. (internal quotation marks and
citation omitted).
{14} 	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[.]
Section 30-6A-2(B).
{15} 	The wording used in Section 30-6A-3(B) for distribution of child pornography

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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 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. Olsson, 2014-NMSC-012,
¶ 23. 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. Olsson, 2014-NMSC-012, ¶ 20. 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. 2014-NMSC-012,
¶ 29.
{16} 	While distribution may align with possession in certain factual scenarios, we

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must address how both may differ with manufacturing under Leeson. 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. Leeson, 2011-NMCA-068,
¶ 	17. 	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.” Id.
¶ 19. 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 Leeson only confirms the same concerns that were addressed and
resolved by our Supreme Court in Olsson.
{17} 	With 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

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Olsson, 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.
{18} 	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. Therefore, we determine that the Herron factors to
establish 	distinctness, 	if 	applicable 	to 	separate 	acts 	of 	distribution 	of 	child
pornography, did not exist in this case.
{19} 	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 Olsson, it also applies to Defendant’s
actions regarding the distribution of child pornography in this case. 2014-NMSC-012,
¶ 45. Defendant created one distinct computer file containing multiple images of child

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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.
{20} 	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 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

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in society regarding the use of the internet.
CONCLUSION
{21} 	For 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.
{22} 	IT IS SO ORDERED.
__________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
___________________________________
MICHAEL E. VIGIL, Chief Judge
___________________________________
MICHAEL D. BUSTAMANTE, Judge