October 12, 2017- State of New Mexico v. Brian Adamo, No. A-1-CA-34597

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______ _
3 Filing Date: October 12, 2017
4 NO. A-1-CA-34597
5 	STATE OF NEW MEXICO,
6 	Plaintiff-Appellee,
7 V.
8 BRIAN ADAMO,
9 	Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
11 	Raymond L. Romero, District Judge
12 Hector H. Balderas, Attorney General
13 	Maris Veidemanis, Assistant Attorney General
14 	Santa Fe, NM
15 	for Appellee
16 Bennett J. Baur, Chief Public Defender
17 Mary Barket, Assistant Appellate Defender
18 	Santa Fe, NM
19 for Appellant
Filed
Court of Appeals of New Mexico
10/12/2017 8:10:55 AM
Office of the Clerk
Mark Reynolds

1 	OPINION
2 VIGIL, Judge.
3 	{t} 	The motion for rehearing is denied. The formal opinion filed in this case on
4 August 31, 201 7, is hereby withdrawn, and this opinion is substituted in its place.
5 	{2} 	A jury 	found 	Defendant Brian Adamo 	guilty 	of one 	count 	of sexual
6 exploitation of children (possession) in violation ofNMSA 1978, Sections 30-6A-
7 3(A) (2007, amended 2016), under the Sexual Exploitation of Children Act (the Act),
8 NMSA 1978, §§ 30-6A-1 to-4 (1984, as amended through 2016). This is commonly
9 known as possession of child pornography. Defendant appeals, and concluding there
10 was no reversible error in Defendant's trial, we affirm.
11 	BACKGROUND
12 	{3} 	Following a preliminary hearing in the magistrate court in Carlsbad, New
13 	Mexico, the district attorney filed a criminal information in the district court charging
14 Defendant with eighteen counts of sexual exploitation of children (possession) in
15 	violation of Section 30-6A-3(A). Pursuant to State v. Olsson, 2014-NMSC-012, 324
16 P.3d 1230, an amended criminal complaint was then filed charging Defendant with
17 a single count of sexual exploitation of children (possession). At trial, the evidence
18 	established the following facts.

1 {4} 	Every internet subscriber has a unique Internet Protocol (IP) address that is
2 assigned by the subscriber's internet provider and corresponds with the subscriber's
3 residential address. Carlsbad Police Department Detective Blaine Rennie, who
4 investigates crimes against children, testified that in March 2012, using software that
5 detects IP addresses that have downloaded images of suspected child pornography
6 and computers that are sharing such files, he detected "an exorbitant amount of
7 downloads" of images that were identified as child pornography. The software
8 monitors "SHAl numbers," unique number-letter combinations that are assigned to
9 images when they are uploaded to the internet. Specifically, the software detects
10 	SHA 1 numbers that are associated with child pornography and computers that are
11 	sharing such files, known as "peer-to-peer sharing." The downloads belonged to an
12 IP address where similar downloads had been detected in March 2011. There were
13 	more than nine hundred downloads of suspected child pornograpy in a year at this IP
14 address, and the majority were determined to be images of child pornography.
15 	{5} 	Detective Rennie contacted Agent Owen Pena of the New Mexico Attorney
16 General's Office and asked him to try to obtain images from a single source at that
17 IP address. This is possible because images that one is willing to share with others are
18 downloaded and stored in the shared folder of the owner's computer using peer-to-
19 peer software. Agent Pena explained that a person using peer-to-peer software must
2

1 download an image to the owner's computer, then direct that the image be placed in
2 the shared folder of the computer; otherwise, the image cannot be accessed by another
3 party. The image may be seen before it is downloaded and then saved in the shared
4 folder.
5 	{6} 	On April 6, 2012, Agent Pena succeeded in downloading five images of
6 child pornography from the shared folder ofa computer at the IP address. Four of
7 these images were admitted into evidence, and all of them had the same "pre-teen
8 hard core" (PTHC) search term. Agent Pena said that images such as those he
9 retrieved would be found in a file-sharing network, using known search terms for
10 child pornography such as "PTHC." Normal search engines such as Google or
11 	Yahoo filter and "block" search terms for hard core child pornography images.
12 	With assistance from Agent Lisa Keyes of the Department of Homeland Security,
13 	Detective Rennie learned that the name and address of the account holder was
14 Defendant's mother at a residential address in Carlsbad.
15 	{7} 	On June 19, 2012, a search warrant was executed at the home associated with
16 the IP address. Defendant, his mother, and his father were at home. Defendant's
17 bedroom appeared as if he did not often leave the room, and it was described as
18 messy, in "disarray," with pizza boxes, tissues, food items, clothes strewn about, and
19 sexual paraphernalia consisting of penile extenders, penile pumps, sex toys, and pills.
3

1 Defendant also had an operating computer in his bedroom with two hard drives, one
2 	of which was an external hard drive. The computer was on at the time, depicting a
3 story with child characters and "sexual overtones."
4 {8} 	There were many computers in the home because Defendant's father operated
5 a computer repair business, and all the computers were seized. While some were non-
6 functional and could not be analyzed, Agent Victor Sanchez of the New Mexico
7 Department of Homeland Security searched all of the undamaged computers and
8 devices for pornography and child pornography. The only pornography he found was
9 on the external hard drive from Defendant's room. Agent Sanchez testified that the
10 external hard drive contained massive amounts of non-child pornography, including
11 	bestiality and cartoon pornography, which was highly organized and categorized by
12 type, 	actors, 	and the 	like. 	Agent Sanchez did not find 	a category for 	child
13 	pornography, nor did he find evidence that there ever had been one.
14 {9} 	Agent Sanchez did not find any active or accessible child pornography when
15 	he searched the external drive. However, using a process called "data carving," he did
16 find child pornography in the deleted files. Agent Sanchez described "data carving"
17 in layman's terms. He said to think of a computer as a library with books. The
18 computer's master file table (MFT) is analogous to the card catalog in a library and
19 it tells the computer where the books are in the library. When the computer wants to
4

1 find something, it does not go through all its rows looking for the book, but it goes
2 to the MFT ( the card catalog) that points to where the book is supposed to be, and
3 	gets it. When a file is "deleted," people have a misconception that the file is gone, but
4 it isn't. The computer only goes into the card catalog and rips up the index card that
5 told the computer where the file could be found. The book is still in the library, but
6 the function of the card catalog telling the computer where the book is located is
7 gone. Data carving tells the computer to go through every aisle in the library and look
8 for images that were deleted, and the images are then recovered. Using this process,
9 	Agent Sanchez was able to retrieve approximately fifty-two images containing child
10 pornography, and twelve were admitted into evidence. These were different from the
11 	four images admitted into evidence that were obtained by Agent Pena. The same
12 analysis was performed on the computer belonging to Defendant's parents, and no
13 	images of child pornography were found.
14 	{to} 	Defendant did not testify, and he did not present any evidence. Additional
15 	facts, necessary to address Defendant's arguments, are set forth in our analysis of
16 Defendant's arguments.
17 II. 	DISCUSSION
18 	{11} 	Defendant argues on appeal that the judgment and sentence must be reversed
19 because: (1) there was insufficient evidence to support the verdict; (2) there was
5

1 fundame~tal error in the jury instructions; (3) the district court abused its discretion
2 in admitting sexual items found in Defendant's bedroom; (4) the evidence about
3 Defendant refusing to speak to the police was improperly admitted; ( 5) ineffective
4 assistance of counsel; and (6) other errors. We address each argument in tum.
5 	1. 	Sufficiency of the Evidence
6 {12} 	Defendant contends that the evidence was not sufficient for a rational jury to
7 conclude beyond a reasonable doubt that Defendant intentionally possessed child
8 pornography, as required by Section 30-6A-3(A). We disagree.
9 	{13} 	"Evidence is sufficient to sustain a conviction when there exists substantial
10 evidence of a direct or circumstantial nature to support a verdict of guilt beyond a
11 	reasonable doubt with respect to every element essential to a conviction." State v.
12 Smith, 2016-NMSC-007, 119, 367 P.3d 420 (internal quotation marks and citation
13 	omitted). "Substantial evidence is relevant evidence that a reasonable mind might
14 accept as adequate to support a conclusion." State v. Largo, 2012-NMSC-015, 130,
15 	278 P.3d 532 (internal quotation marks and citation omitted). "In reviewing whether
16 there was sufficient evidence to support a conviction, [appellate courts] resolve all
17 disputed facts in favor of the [s]tate, indulge all reasonable inferences in support of
18 the verdict, and disregard all evidence and inferences to the contrary." Id. (internal
6

1 quotation marks and citation omitted); see State v. Myers, 2009-NMSC-0 16,117, 13,
2 146 N.M. 128, 207 P.3d 1105 (setting forth the standard for reviewing evidence for
3 sufficiency in a bench trial). We have already set forth what the pertinent evidence
4 was at trial.
5 {14} 	The evidence supports the jury's finding that sometime in the past Defendant
6 knowingly possessed child pornography. The evidence showed that there were
7 more than nine hundred downloads of suspected child pornography in a year to the
8 IP address used by Defendant's computer, and most were determined to be images
9 of child pornography. In March 2012, exorbitant amounts of child pornography
10 were being downloaded to that same IP address. Images of child pornography can
11 	only be obtained from a file sharing network where search terms such as "PTHC"
12 are used. The following month, on April 6, 2012, Agent Pena used peer-to-peer
13 	software to retrieve five images of child pornography from the shared folder of a
14 single computer at the same IP address. A person using peer-to-peer software
15 	downloads the image to the owner's computer where it can be viewed. Then, in
16 order to share the image with other computers, the owner either purposefully
17 directs the image to be saved in the shared folder of the computer, or sets up the
18 peer-to-peer software to automatically save images to the shared folder. 	The
19 image can then be accessed by other computers with peer-to-peer software, such
7

1 as Agent Pena's. Four of the images Agent Pena obtained were admitted into
2 evidence, and all of them had the same search term "PTHC."
3 	{15} 	Two months later, on June 19, 2012, a search warrant was executed at the
4 physical address where the IP address was located. There were several computers at
5 the home because Defendant's father operated a computer repair business at the
6 home. Agent Sanchez searched all of the undamaged computers and devices for
7 pornography and child pornography, and pornography was found only on the external
8 hard drive of Defendant's computer. The external drive had massive amounts of non-
9 child pornography, which was highly categorized. Although Agent Sanchez did not
10 find any active child pornography that could be accessed on the computer, by using
11 	a process called "data carving" he was able to retrieve approximately fifty-two images
12 of child pornography that had been "deleted" from the hard drive, and twelve of these
13 	images were admitted into evidence. A similar process failed to disclose any child
14 pornography images on the computer belonging to Defendant's parents.
15 	{16} 	A rational jury could fairly conclude from the foregoing evidence that
16 there was a single computer at the IP address downloading massive amounts of
17 pornography. Child pornography was also downloaded using peer-to-peer
18 	software. Child pornography is only accessible through a file sharing network
19 with search terms specific to child pornography, and it can only be accessed by
8

1 other users of peer-to-peer software ifit is purposefully stored in a shared folder.
2 From the shared folder of that single computer at the IP address, Agent Pena
3 was able to retrieve five images of child pornography using peer-to-peer
4 software on April 6, 2012. Two months later, on June 19, 2012, approximately
5 fifty-two deleted images of child pornography were found on the external hard
6 drive of Defendant's computer. The jury was able to look at the images retrieved
7 by Agent Pena and Agent Sanchez, and following the instructions given by the
8 district court, determine for itself whether the images were child pornography.
9 	{17} 	We cannot overlook the fact that when the search warrant was executed, and
10 	an agent went into Defendant's room, his computer was on, depicting children in a
11 	story with "sexual overtones." In People v. Jaynes, 2014 IL App (5th) 120048, ,-r 57,
12 	11 N.E.3d 431, the court held that such evidence was admissible "to show intent,
13 	knowledge, and absence of mistake or accident." "The defendant's demonstrated
14 interest in materials dealing with children engaged in sexual acts tended to show that
15 	his accessing illicit images was knowing and voluntary rather than inadvertent." Id.
16 {18} 	Under all the evidence, a fair inference is that the sole computer at the IP
17 address that was used to download and share child pornography was Defendant's, and
18 that Defendant had knowingly obtained, manipulated, stored, and shared the child
19 pornography using his computer.
9

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8
9
In the context of prior possession 	of child pornography, a
computer user knowingly possesses the contraband when the user
intentionally downloads child pornography to the computer but later
deletes the file or when he or she performs some function to reach out
and select the image from the Internet. Indeed, a computer user who
intentionally accesses child pornography images on a website gains
actual control over the images, just as a person who intentionally
browses child pornography in a print magazine knowingly possesses
those images, even if he later puts the magazine down.
10 New v. State, 755 S.E.2d 568, 575 (Ga. Ct. App. 2014) (footnotes and internal
11 	quotation marks omitted); seeStatev. Santos, 2017-NMCA-_, ~ 14,_P.3d_,
12 (No. 35,175, June 21, 2017) (concluding that by downloading, viewing, and deleting
13 	videos on his computer, the defendant possessed child pornography); Wise v. State,
14 364 S.W.3d 900, 907 (Tex. Crim. App. 2012) (concluding that the evidence was
15 	sufficient for the jury to find that the defendant knowingly and intentionally
16 possessed child pornography images before they were deleted); see also State v.
17 Brown, 1984-NMSC-014, ~ 12, 100 N.M. 726,676 P.2d 253 ("A material fact may
18 	be proven by inference."); State v. Stefani, 2006-NMCA-073, ~ 39, 139 N.M. 719,
19 	137 P.3d 659 (stating that a jury is free to draw inferences from the facts necessary
20 to support a conviction).
21 	{19} 	Defendant argues that because experts conceded that, in certain instances, it is
22 possible for child pornography to be "unwittingly" downloaded; that Defendant's
23 	computer was not directly tied to the images Agent Pena downloaded; that it was
10

1 possible for Agent Pena to have accessed any computer being repaired; that there is
2 no evidence that the images retrieved by Agent Sanchez were the same ones Agent
3 Pena downloaded; and that just because images had, at one time, been downloaded
4 to the external drive, does not in and of itself demonstrate that they were knowingly
5 or intentionally downloaded and then intentionally kept. In other words, Defendant
6 asserts that the evidence was lacking. These are all matters that the jury was free to
7 accept or reject in its consideration and weighing of the evidence. See State v. Tapia,
8 2015-NMCA-048, ,I 12,347 P.3d 738 (stating that determining the weight and effect
9 	of evidence is reserved to the jury as the fact-finder). In finding Defendant guilty, the
10 jury rejected the propositions and conclusion that Defendant advances, and it is not
11 	within our purview to "re-weigh the evidence to determine if there was another
12 hypothesis that would support innocence[.]" State v. Garcia, 2005-NMSC-0 17, ,I 12,
13 	138 N.M. 	1, 	116 P.3d 72. Defendant also argues that because Agent Sanchez
14 conceded that there was no indication Defendant could retrieve the deleted files or
15 	that he had exercised any control over the deleted files other than to delete them, the
16 evidence is insufficient. Under the totality of the evidence presented, we disagree. See
17 Statev. Schuller, 843 N.W.2d626, 637 (Neb. 2014)("Itseemsreasonabletoinferthat
18 	[the defendant] deleted the files to hide evidence of his earlier knowing possession"
19 	of child pornography).
11

1 {20} 	The jury was instructed that it had to find Defendant possessed child
2 pornography on or about April 6, 2012, and/or June 12, 2012. We conclude that the
3 evidence was sufficient for a rational jury to find beyond a reasonable doubt that
4 Defendant intentionally possessed child pornography on both of these dates.
5 2. 	Fundamental Instructional Error
6 	{21} 	Defendant did not object to the jury instructions in the district court, and he
7 therefore waived his right to argue that reversible error in the instructions requires a
8 new trial. See Rule 12-32l(A) NMRA ("To preserve an issue for review, it must
9 appear that a ruling or decision by the trial court was fairly invoked."). Defendant can
10 only prevail on appeal by demonstrating that the jury instructions as given constitute
11 	fundamental error. SeeStatev. Sandoval, 2011-NMSC-022, ~ 13, 150N.M. 224,258
12 P.3 d 1016 (stating that if error in the jury instructions was not preserved in the district
13 	court, the appellate court reviews the instructions for fundamental error rather than
14 reversible error).
15 	{22} 	In State v. Anderson, 2016-NMCA-007, ~ 9, 3 64 P .3 d 3 06, this Court set forth
16 the standard for determining whether a jury verdict may be set aside for fundamental
17 error injury instructions as follows:
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19
20
21
[W]e first apply the standard for reversible error by determining if a
reasonable juror would have been confused or misdirected by the jury
instructions that were given. Juror confusion or misdirection may stem
from instructions which, through omission or misstatement, fail to
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provide the juror with an accurate rendition of the relevant law. If we
determine 	that a 	reasonable juror would 	have 	been 	confused 	or
misdirected by the instructions given, our fundamental error analysis
requires us to then review the entire record, placing the jury instructions
in the context of the individual facts and circumstances of the case, to
determine whether the defendant's conviction was the result of a plain
miscarriage of justice. If such a miscarriage of justice exists, we deem
it fundamental error.
9 (Alteration, internal quotation marks, and citations omitted); see also Sandoval,
10 2011-NMSC-022, ,r,r 13, 15, 20, 21 (describing the foregoing analytical framework
11 	for determining fundamental error in the jury instructions).
12 {23} 	We begin with an analysis of the statutory elements. The Act uses precisely
13 	defined terms to 	describe what is 	commonly understood to 	be pornography.
14 Pornography under the Act is "any obscene visual or print medium" that depicts "any
15 	prohibited sexual act[.]" Section 30-6A-3(A).1 Using these defined terms, Section 30-
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1
Section 30-6A-2 states:
As used in the Sexual Exploitation of Children Act ... :
A. 	"prohibited sexual act" means:
(1) sexual intercourse, including genital-genital, oral-genital,
anal-genital or oral-anal, whether between persons of the same or
opposite sex;
(2) bestiality;
(3) masturbation;
(4) 	sadomasochistic 	abuse 	for 	the 	purpose 	of 	sexual
stimulation; or
( 5) lewd and sexually explicit exhibition with a focus on the
genitals or pubic area of any person for the purpose of sexual
13

1 6A-3(A) sets forth the elements of sexual exploitation of children (possession) as
2 follows:
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4
5
6
7
8
It is unlawful for a person to intentionally possess 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.
9 (Emphasis added). Stated in plain language, and broken down into its constituent
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stimulation;
B. 	"visual or print medium" means:
(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;
E. 	"obscene" means any material, when the content if taken as
a whole:
(1) appeals to a prurient interest in sex, as determined by the
average person applying contemporary community standards;
(2) portrays a prohibited sexual act in a patently offensive
way; and
(3) lacks serious literary, artistic, political or scientific value.
14

1 parts, Section 30-6A-3(A) makes it a crime to: (1) "intentionally possess" a "visual
2 	or print medium" such as a photograph or computer image that depicts pornography
3 if: (2) a person "knows or has reason to know" that the medium depicts any
4 "prohibited sexual act;" and (3) the person "knows or has reason to know that one or
5 more of the participants in that act is a child under eighteen years of age." In other
6 words, 	it 	is 	not 	a 	crime 	under 	Section 30-6A-3(A) 	to 	intentionally 	possess
7 pornography. However, it is a crime if a person intentionally possesses pornography
8 and that person "knows or has reason to know" that one or more of the participants
9 in the pornography "is a child under eighteen years of age."
10 {24} 	The jury was instructed on the essential elements of possession of child
11 	pornography as follows:
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19
For 	you 	to 	find 	[D]efendant 	committed the 	act 	of sexual
exploitation of children (possession) as charged in Count 1, the [S]tate
must prove to your satisfaction beyond a reasonable doubt each of the
following elements of the crime:
1. 	[D]efendant had any obscene visual medium in his possession;
2. 	[D]efendant 	knew 	the 	obscene 	medium 	depicted 	a 	prohibited
sexual act2;
3. 	[D]efendant 	knew 	or 	had 	reason 	to 	know 	that 	one 	of 	the
20 2 We note that this instruction required the jury to find that Defendant "knew"
21 	the obscene visual medium depicted a sexual act, a higher standard than what is
22 required by Section 30-6A-3(A), that a person "knows or has reason to know" such
23 	a fact.
15

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3
participants was under the age of eighteen years of age;
4. 	This happened in New Mexico on or about the 6th day of April,
2012, and/or the 19th day of June, 2012.
4 Defendant contends the instructions suffer from fundamental error in three respects
5 in that they do not: (1) require a finding that Defendant "intentionally possessed"
6 child pornography as required by Section 30-6A-3(A); (2) require a finding of
7 recklessness, the scienter required by the First Amendment; and (3) inform the jury
8 that merely deleting the images from the computer is not legally sufficient to
9 constitute possession. We now tum to these arguments.
10 A. 	Intentional Possession
11 	{25} 	Defendant 	first 	argues 	that 	Section 	30-6A-3(A) 	reqmres 	a 	person to
12 "intentionally possess" child pornography and that the instructions erroneously
13 	omitted this mens rea requirement. Specifically, Defendant contends that because the
14 instruction only required the jury to find that Defendant had child pornography "in
15 	his possession," rather than with a specific intent to "intentionally possess" child
16 pornography, it is fundamentally flawed. We disagree.
17 	{26} 	Defendant's 	argument 	overlooks the 	structure 	of the 	statute 	and 	other
18 	instructions given to the jury. The jury was instructed, first, that it had to find that
19 Defendant "had any obscene visual medium in his possession[.]" There is no dispute
20 that each of the computer images admitted into evidence constitute an "obscene visual
16

1 medium" that depicts a "prohibited sexual act," that is, that they depict pornography.
2 	The jury was given an instruction on "possession" that conforms with UJI 14-130
3 	NMRA as follows:
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A person is in possession of an obscene visual medium when, on
occasion in question, he knows what it is, he knows it is on his person
or in his presence and he exercises control over it.
Even if the object is not in his physical presence, he is in possession
if he knows what it is and where it is and he exercises control over it.
A person's presence in the vicinity of the object or his knowledge of
the existence or the location of the object is not, by itself, possession.
11 	This instruction required the jury to find that Defendant knew he had pornographic
12 computer images, that he knew they were on his person or in his presence, and that
13 	he exercised control over them. In order to find "possession" under this instruction,
14 the jury necessarily had to find that the possession was "knowing." See People v.
15 Kent, 970 N.E.2d 833, 839 (N.Y. 2012) (noting that "[t]he exercise of dominion or
16 control is necessarily knowing" (alteration, internal quotation marks and citation
17 omitted)). The jury was also instructed that it was required to find that Defendant
18 "acted intentionally" and that "[a] person acts intentionally when he purposely does
19 an act which the law declares to be a crime." This instruction therefore required the
20 jury to additionally find that it was Defendant's purpose to possess the pornography.
21 	Taken 	together, 	these 	instructions 	required 	the 	jury 	to 	find 	that 	Defendant
17

1 "intentionally" possessed the pornography; that is, Defendant's possession of the
2 pornography was both intentional and knowing.
3 	{27} 	It would have been preferable for the first paragraph of the jury instructions to
4 require a finding that Defendant "intentionally had any obscene visual medium in his
5 possession," but as we have pointed out, omitting the word "intentionally" would not
6 cause jury confusion or misdirection because the instructions actually required the
7 jury to find that Defendant's possession of the child pornography was intentional.
8 Jury instructions are "sufficient if they fairly and correctly state the applicable law."
9 Statev. Rushing, 1973-NMSC-092, ,I20, 85 N.M. 540, 514P.2d297. Since there was
10 no reversible error, it follows that there was no fundamental error in the instructions.
11 	B. 	Scienter Requirement Under the First Amendment
12 	{28} 	Secondly, Defendant argues that the essential elements instruction requiring
13 	the jury to find that Defendant "knew or had reason to know" that one of the
14 participants was under the age of eighteen years is inconsistent with the requirement
15 	that he act intentionally and the minimum scienter required by the First Amendment
16 to the United States Constitution, which Defendant contends is recklessness. We have
17 already determined that the essential elements instruction complies with the statutory
18 requirement of "intentional possession" of a medium, visual or print, that depicts
19 obscenity. This is separate from the additional statutory requirement that a person
18

1 "knows or has reason to know that one or more of the participants in that act is a child
2 under eighteen years of age." Section 30-6A-3(A). We therefore tum to Defendant's
3 argument that the instruction on this element is flawed with fundamental error
4 because it does not require the jury to find recklessness, which Defendant contends
5 the First Amendment requires.
6 	{29} 	Possession of child pornography is not protected by the First Amendment. See
7 	Osborne v. Ohio, 495 U.S. 103, 111 (1990). States have a compelling interest in
8 "safeguarding the physical and psychological well-being of a minor" and "[t]he
9 prevention of sexual exploitation and abuse of children constitutes a government
10 objective of surpassing importance." New York v. Ferber, 458 U.S. 747, 756-57
11 	( 1982) (internal quotation marks and citation omitted). Moreover, while pornography
12 	is entitled to First Amendment protection and can only be banned if deemed to be
13 	obscene under Miller v. California, 413 U.S. 15, 36-37 (1973), pornography that
14 depicts minors can be proscribed, consistent with the First Amendment, whether or
15 	not the images are obscene.Ashcroftv. Free Speech Coal., 535 U.S. 234,240 (2002).
16 Nonetheless, the power to criminalize the possession of child pornography is not
17 without limits. See Ferber, 458 U.S. at 764. Child pornography laws, like obscenity
18 	statutes, present a risk of self-censorship of constitutionally protected material.
19 Therefore, " [a] s with obscenity laws, criminal responsibility [for possession of child
19

1 pornography] may not be imposed without some element of scienter on the part of the
2 defendant." Id. at 765. However, what level of scienter is constitutionally required,
3 consistent with the First Amendment, 	to 	criminalize the possession 	of child
4 pornography has not been decided by the United States Supreme Court. 	See
5 	Commonwealth v. Kenney, 874 N.E.2d 1089, 1102 (Mass. 2007) (noting the absence
6 of a decision from the United States Supreme Court on what level of scienter is
7 constitutionally required to convict a person of possession of child pornography);
8 State v. Mauer, 741 N.W.2d 107, 113 (Minn. 2007) (noting that the minimum
9 standard of scienter required for child pornography "remains unclear" because it has
10 not yet been defined by the United States Supreme Court). Defendant would have us
11 	follow Mauer, however, we find Kenney more persuasive, and follow its reasoning.
12 	{30} 	In Mauer, the Minnesota Supreme Court considered what level of scienter is
13 	required to satisfy the First Amendment under a Minnesota statute making it a crime
14 to possess child pornography if the defendant "has reason to know" that the work
15 	involves a minor. 7 41 N. W.2d at 109 (internal quotation marks and citation omitted).
16 The court concluded that the words "reason to know" are ambiguous in the context
17 of the First Amendment, and resorted to rules of statutory construction to determine
18 their meaning under its statute.Id. at 112-13. The court said that in Osborne, 495 U.S.
19 at 115, the United States Supreme Court "approved a recklessness standard," and
20

1 concluded that the phrase "has reason to know" in Minnesota's statute should
2 likewise require a recklessness standard. Mauer, 	741 	N.W.2d at 	115 (internal
3 quotation marks and citation omitted). Following statutory and case law definitions
4 of "recklessness" and "recklessly," the Mauer court held that, "a possessor of child
5 pornography has 'reason to know' that a pornographic work involves a minor where
6 the possessor is subjectively aware of a 'substantial and unjustifiable risk' that the
7 work involves a minor." Id. (quoting Minn. Stat. § 617.247 subd. 4(a)).
8 {31} 	In our view, this standard is not constitutionally required, and unnecessarily
9 confuses what is required under Section 30-6A-3(A). Osborne does hold that a
10 finding of recklessness satisfies the constitutional requirement of "some element of
11 	scienter" in a statute criminalizing the possession of child pornography, 495 U.S. at
12 	115, but Osborne does not require a finding of recklessness. Again, the United States
13 	Supreme Court has not established what level of scienter is required to make
14 possession of child pornography a crime; it has only stated that "some element of
15 	scienter" is required. On the other hand, in Ginsbergv. New York, 390 U.S. 629, 633-
16 34, 643 (1968), the United States Supreme Court approved of a scienter requirement
17 expressed as a "reason to know" in a statute that made it a crime "knowingly to sell"
18 material defined to be obscene to a minor under seventeen.
21

1 {32} 	We are more persuaded by Kenney in which the court held that Massachusetts's
2 possession of child pornography scienter requirement that a defendant "knows or
3 reasonably should know to be under the age 	of [eighteen] 	years 	of age" 	is
4 constitutionally sufficient. 874 N.E.2d at 1102-03 (internal quotation marks and
5 citation omitted). Child pornography, by definition, depicts children performing
6 sexual acts. In most cases, the image itself gives a person a "reason to know" that the
7 person depicted is under eighteen years of age. See United States v. Katz, 178 F.3d
8 368, 373 (5th Cir. 1999) ("A case by case analysis will encounter some images in
9 which the models are prepubescent children who are so obviously less than [eighteen]
10 years old that expert testimony is not necessary or helpful to the fact finder."); State
11 	v. Reinpold, 824 N.W.2d 713, 723 & n.20, 724 (Neb. 2013) (noting that several courts
12 have concluded that it is not always necessary for the prosecution to present expert
13 	testimony on the minor's age); Statev. May, 829 A.2d 1106, 1118-19 (N.J. Super. Ct.
14 App. Div. 2003) (stating that the images themselves that were admitted into evidence
15 	proved that the ages of those depicted were under sixteen years of age); State v.
16 Alinas, 2007 UT 83, ,r 31, 	171 	P.3d 1046 (stating that courts have generally
17 recognized that, based on visual examination, jurors are capable of determining
18 whether the children depicted are under eighteen years of age). The statutory
19 requirement that a person "has reason to know" that a child depicted is under eighteen
22

1 years of age requires "some element of sci enter." The State's "burden of proof on that
2 element may be satisfied with evidence that the physical disparity between the subject
3 	of the sexually explicit material and a person who is eighteen years of age is such that
4 it would be obvious (beyond a reasonable doubt) to a reasonable person that the
5 material was proscribed." Kenney, 874 N.E.2d at 1103. A defendant may present
6 evidence that the defendant reasonably did not know the child's age, in which case
7 the state will be required to "prove that no reasonable person would not have known
8 that the child subject was under the age of eighteen." Id
9 {33} 	No argument was made at trial that the children in the images admitted into
10 evidence were not obviously under eighteen years of age, and there is no basis for us
11 	to conclude that the jury was misled or confused by the instructions they received.
12 	{34} 	We hold that the scienter requirement in Section 30-6A-3(A) that a person
13 	"knows or has reason to know" that one or more of the participants depicted in the
14 child pornography is under eighteen, is constitutionally sufficient.
15
16
17
18
19
The fact that there will be very few cases at the margin raising doubt as
to the age of the child, with the vast majority of cases being self-evident
as to age, is sufficient, given the authority of the [l]egislature to regulate
in this area, to conclude that the scienter requirement of the statute is
constitutionally valid.
20 Kenney, 874 N.E.2d at 1103-04. Because there was no error in the jury instructions
21 	on this element of the crime, there was no fundamental error.
23

1 C. 	Deletion Does Not Equate With Possession
2 	{35} 	This brings us to 	Defendant's last argument under this point, that the
3 instructions suffered from fundamental 	error because they failed to include a
4 statement that passing possession of the images for the sole purpose of deleting them
5 from a computer is not legally sufficient to constitute possession. We disagree. The
6 instructions required the jury to find that Defendant "intentionally possessed" the
7 medium depicting the child pornography. Finding "intentional possession" under the
8 instructions given required the jury to find that Defendant did more than exercise
9 passing control over the images for the purpose of deleting them. We therefore reject
10 Defendant's last argument of fundamental error.
11 	3. 	Admission of Sexual Items Into Evidence
12 {36} 	Before beginning his opening statement, the prosecutor approached the bench
13 	and advised the court that he intended to discuss that the investigators found bestiality
14 on Defendant's computer, together with sex toys and male enhancement products in
15 	Defendant's bedroom. The prosecutor argued that this evidence was probative of
16 Defendant's intent and that he was a sexual deviant. Defense counsel objected to the
17 sex toys and male enhancement products on grounds that it was prejudicial and
18 	irrelevant to whether Defendant possessed child pornography. The district court ruled
19 that evidence of the sex toys and male enhancement products could be mentioned
24

1 because it was relevant to showing a prurient interest, motive, and intent. The district
2 court also ruled that this evidence could be mentioned because proving a prohibited
3 sexual act under the child pornography statute requires proof of a sexually explicit
4 exhibition for the purpose of sexual stimulation. Defendant contends that the district
5 court erred in ruling that the evidence could be mentioned in the State's opening
6 statement, and in subsequently allowing its admission into evidence under Rules 11-
7 403 and 11-404 NMRA. We agree that the evidence was inadmissible but that its
8 admission into evidence was harmless error under the circumstances.
9 	{37} 	The admission of evidence under Rules 11-403 and 11-404(B) is reviewed for
10 an abuse of discretion. State v. Otto, 2007-NMSC-012, ,r 9, 141 N.M. 443, 157 P.3d
11 	8 ("We review the [district] court's decision to admit evidence under Rule 11-404(B)
12 for [an] abuse of discretion."). "An abuse of discretion occurs when the ruling is
13 	clearly against the logic and effect of the facts and circumstances of the case." Otto,
14 2007-NMSC-0 12, ,r 9 (internal quotation marks and citation omitted); see State v.
15 	Chamberlain, 1991-NMSC-094, ,I 9, 112 N.M. 723, 819 P.2d 673 ("The [district]
16 court is vested with great discretion in applying Rule [1 l-]403, and it will not be
17 reversed absent an abuse of that discretion.").
18 	{38} 	Rule 11-404(B)(l) directs that "[e]vidence of a crime, wrong, or other act is not
19 admissible to prove a person's character in order to show that on a particular occasion
25

1 the person acted in accordance with the character." However, such evidence "may be
2 admissible 	for 	another purpose, 	such as 	proving motive, 	opportunity, 	intent,
3 preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Rule
4 	11-404(B)(2). Rule 11-404(B)( 1) articulates a principle that evidence of other crimes,
5 wrongs, or acts should generally be excluded. State v. Jones, 1995-NMCA-073, 15,
6 	120 N.M. 185, 899 P.2d 1139. However, if such evidence is offered for a proper
7 purpose under Rule 1 l-404(B)(2), a district court is required to articulate or identify
8 the consequential fact to which the proffered evidence is directed. Jones, 	1995-
9 NMCA-073, 1 5; see State v. Aguayo, 1992-NMCA-044, 1 18, 114 N.M. 124, 835
10 P.2d 840 ("The initial threshold for admissibility of prior uncharged conduct is
11 	whether it is [fora proper purpose] probative on any essential element of the charged
12 crime."). Finally, even if the evidence is ruled admissible, a district court must engage
13 	in the balancing process under Rule 11-403. See id. ("The court may exclude relevant
14 evidence ifits probative value is substantially outweighed by a danger of one or more
15 	of the following: unfair prejudice, confusing the issues, misleading the jury, undue
16 delay, wasting time, or needlessly presenting cumulative evidence.").
17 	{39} 	We agree with Defendant that the sex toys and male enhancement products
18 	found in Defendant's bedroom had no particular relevance to any issue in the case.
19 Rather, the evidence served no purpose other than to portray Defendant's character,
26

1 in the words of the prosecutor, as a "sexual deviant." We therefore conclude that the
2 evidence was not admissible under Rule 11-404(B). The district court's ruling was
3 that the evidence was relevant. Rule 11-401 NMRA mandates that in order for
4 evidence to be relevant, it must satisfy a two-part test: ( 1) it must have "any tendency
5 to make a fact more or less probable than it would be without the evidence," and (2)
6 the evidence "is of consequence in determining the action." A person's possession of
7 sex toys and male enhancement products does not make it more likely that the person
8 will search for, download, view, save, and delete child pornography using a computer.
9 	Cf United States v. Quarles, 25 M.J. 761, 775 (N-M. Ct. Crim. App. 1987) ("We fail
10 to see how possession of sexual aids and erotic magazines equates with being a sex
11 	fiend or deviant much less having any probative value" as to whether the defendant
12 	sodomized 	his 	children). 	In 	other 	words, 	the 	evidence 	was 	irrelevant 	and
13 	inadmissible. See Rule 11-402 NMRA ("Irrelevant evidence is not admissible."). We
14 therefore conclude that the district court abused its discretion in admitting this
15 	evidence. See State v. Perez, 2016-NMCA-033, ,r 11, 367 P.3d 909 (noting that an
16 abuse of discretion arises from the exercise of discretion based on a misunderstanding
17 	of the law).
18 	{40} 	We must still determine if the error in admitting the sex toys and male
19 enhancement products into evidence was reversible error. The admission of evidence
27

1 in violation of the Rules of Evidence is a non-constitutional error, and a non-
2 constitutional error is harmless unless there is a "reasonable probability" that the error
3 affected the verdict. State v. Vargas, 2016-NMCA-038, ,-r 24, 368 P.3d 1232. "To
4 determine the likely effect of the error, courts must evaluate all of the circumstances.
5 These circumstances include other evidence of the defendant's guilt, the importance
6 	of the erroneously admitted evidence to the prosecution's case, and the cumulative
7 nature of the error." Id. (citation omitted); see State v. Tollardo, 2012-NMSC-008,
8 ,-r,-r 43-44, 275 P.3d 110 (setting forth considerations for reviewing courts when
9 assessing whether the improper admission of evidence is harmless error). The
10 evidence, not objected to, is that there were more than nine hundred downloads in a
11 	year, most of which were known images of child pornography, to the IP address used
12 by Defendant's computer; that in March 2012, "exorbitant" amounts 	of child
13 	pornography were being downloaded to that same IP address; that in April 2012,
14 child pornography was retrieved from a "shared" folder of a computer at that IP
15 	address; that when the search warrant was executed, "massive" amounts of non-child
16 pornography, highly categorized, were found on Defendant's computer in addition
17 to images of child pornography. This evidence evinces an intense, excessive interest
18 	in sex, and we fail to see any reasonable probability that admission of the sex toys and
28

1 male enhancement products impacted the verdict. 	We therefore hold that the
2 erroneous admission of this evidence was harmless.
3 	4. 	Ineffective Assistance of Counsel
4 	{41} 	Defendant argues that his attorney's ineffective assistance resulted in the
5 admission of prejudicial, inadmissible evidence, and that he is therefore entitled to
6 a new trial. The framework for deciding a claim of ineffective assistance of counsel
7 is well settled.
8
9
10
11
12
13
14
15
16
17
18
19
20
For a successful ineffective assistance of counsel claim, a defendant
must first demonstrate error on the part of counsel, and then show that
the error resulted in prejudice. Trial counsel is generally presumed to
have 	provided 	adequate 	assistance. 	An 	error 	only 	occurs 	if
representation falls below an objective standard of reasonableness. If
any claimed error can be justified as a trial tactic or strategy, then the
error will not be unreasonable. With regard to the prejudice prong,
generalized 	prejudice 	is 	insufficient. 	Instead, 	a 	defendant 	must
demonstrate that counsel's errors were so serious, such a failure of the
adversarial process, that such errors undermine judicial confidence in
the accuracy and reliability of the outcome. A defendant must show a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.
21 	State v. Bernal, 2006-NMSC-050, , 32, 140 N.M. 644, 146 P.3d 289 (alterations,
22 internal quotation marks, 	and citations omitted). 	We 	now tum to 	each claim
23 	Defendant makes.
24 	A. 	Evidence of Bestiality
25 	{42} 	After the prosecutor advised the district court that he wanted to tell the jury in
29

1 his opening statement that bestiality was found on Defendant's computer, the district
2 court disallowed the evidence of bestiality on grounds that it was too prejudicial.
3 However, 	defense 	counsel 	said she did not object because it was 	found 	on
4 Defendant's computer and because similar search terms are used to find material
5 related to bestiality and child pornography. The district court therefore ruled that if
6 defense counsel had no objection, the bestiality evidence could be mentioned as well.
7 Agent Sanchez later testified in cross-examination from 	defense counsel that
8 bestiality and child pornography search terms are mututally exclusive.
9 	{43} 	Defendant 	argues 	that 	counsel 	was 	ineffective 	in 	allowing 	the 	highly
10 	inflammatory and prejudicial bestiality evidence to be admitted because there is "no
11 	doubt" it was inadmissible under Rules 11-404(8) and 11-403, and having agreed to
12 	its admission, she had an obligation to bring in evidence substantiating that search
13 	terms for bestiality and child pornography are similar. A reasonable trial strategy
14 could be that the bestiality pornography evidence, together with the other evidence
15 	in the case, e.g., that Defendant had massive amounts of non-child pornography on
16 the external hard drive to his computer, which included cartoon pornography, that
17 was highly organized and categorized by type, actors, and the like, and that there was
18 	no active or accessible child pornography on the hard drive demonstrated that
19 Defendant's interest in sexual matters, while extreme and outrageous, did not include
30

1 an interest in child pornography. This argument was actually made in defense
2 counsel's opening statement, as well as Defendant's brief to this Court. Counsel's
3 alleged error in this instance can appropriately be justified as a trial tactic or strategy.
4 B. 	Sexual Child Story
5 	{44} 	Agent Lea Whitis from the Department of Homeland Security was present
6 during the search, primarily to catalogue the items seized, but she did walk through
7 the house. Upon entering Defendant's room, she noted that the computer was on and
8 that there was a story on it with child characters and what she characterized as "sexual
9 overtones." When she was asked how the story affected her, defense counsel objected
10 on the basis that the story was not produced in discovery and Agent Whitis did not
11 	mention it in her interview. The prosecutor admitted that the story had not been
12 disclosed or produced in discovery. The district court sustained the objection on
13 	relevancy grounds and because the story was not disclosed in discovery, while noting
14 that some evidence relating to the story had already been admitted without objection.
15 	{45} 	Defendant argues that the failure to object to evidence of the child sex story
16 until after the State discussed it in their opening statement and the State had elicited
17 testimony about the story's contents, constituted ineffective assistance of counsel, "as
18 the evidentiary challenges [to its admission] were clearly meritorious." Whether the
19 child sex story was admissible is, however, subject to debate. See Jaynes, 2014 IL
31

1 App (5th) 120048, ,r,r 55-57 (concluding that stories about underage sex found on the
2 defendant'~ computer were admissible in a prosecution for possession of child
3 pornography to show that the defendant sought out sexual material involving children
4 and that it was knowing and voluntary, rather than inadvertent). We cannot conclude
5 that defense counsel provided ineffective assistance by failing to object to its receipt
6 in evidence.
7 Defendant's "Character"
8 {46} 	Agent Keyes from the Department of Homeland Security was also present
9 when the search warrant was executed. She testified to the condition of Defendant's
10 room and the presence of sex toys, male enhancement products, and a weapon inside
11 	the room. Asked if she also learned anything else about Defendant, Agent Keyes said
12 that Defendant's mother described Defendant as someone who was not very social,
13 	did not have friends or go out, and spent most of his time in his room.
14 {47} 	Defendant contends that defense counsel's failure to object to the testimony
15 	about what Defendant's mother said rendered counsel's assistance ineffective.
16 Defendant asserts the evidence was inadmissible hearsay of Defendant's character
17 that was inadmissible under Rules 11-404(B) and 11-403. The State counters that this
18 testimony was "merely cumulative;' of the testimony of Agent Keyes and other agents
19 describing Defendant's room, and therefore was not prejudicial. In any event, the
32

1 failure to object may have resulted from a deliberate choice not to object in order to
2 avoid bringing attention to the testimony. See State v. Martinez, 1996-NMCA-109,
3 , 26, 122 N.M. 476,927 P.2d31 ("Failure to objectto every instance of objectionable
4 evidence does not render counsel ineffective; rather, failure to object falls within the
5 ambit of trial tactics." (internal quotation marks and citation omitted)).
6 	{48} 	In conclusion, we are unable to adequately determine whether any of the
7 foregoing alleged shortcomings of counsel deprived Defendant of constitutionally
8 adequate and effective assistance of counsel. Concluding that Defendant has failed
9 to present a prima facie 	case 	of ineffective assistance 	of counsel, we reject
10 Defendant's 	claims 	without 	prejudice 	to 	Defendant 	pursuing 	habeas 	corpus
11 	proceedings based on these arguments. See Bernal, 2006-NMSC-050, ,, 33, 36
12 (expressing a general preference for ineffective assistance of counsel claims to be
13 	brought and resolved in habeas corpus proceedings, and when a prima facie case is
14 not made on appeal, the claim is rejected without prejudice to raise the claim in a
15 	habeas corpus proceeding).
16 5. 	Comment on Defendant's Silence
17 	{49} 	In her opening statement, defense counsel discussed the execution of the search
18 warrant. Defense counsel said that the jury would hear that Defendant's parents let
19 the police into the home and were in fact cooperative in asking and answering
33

1 questions, that there were no problems, and that Defendant "refused to talk without
2 a lawyer."
3 	{50} 	During his testimony, Detective Rennie was asked how cooperative Defendant
4 and his parents were when the search warrant was executed. Detective Rennie said
5 that Defendant's father was compliant and responsive, and that Defendant's mother
6 was also cooperative and answered questions. The prosecutor asked ifDefendant had
7 been willing to talk to the officers, and Detective Rennie answered, "no." Defense
8 counsel objected, the parties approached the bench, and the district court immediately
9 sustained the 	objection 	and 	admonished 	the 	prosecutor not to 	comment 	on
10 Defendant's silence. The district court noted defense counsel's opening statement and
11 	ruled that it would not declare a mistrial, even though none was requested. The
12 district court told the prosecutor not to mention this again and instructed the jury to
13 	disregard the question and answer.
14 	{51} 	Defendant contends that the district court committed error in refusing to
15 	declare a mistrial because the question asked of Detective Rennie and his answer
16 constituted an unconstitutional comment on Defendant's silence. Because the facts
17 are undisputed, our review of Defendant's claim is de novo. See State v. Gutierrez,
18 	2003-NMCA-077, if 9, 133 N.M. 797, 70 P.3d 787.
34

1 {52} 	Like the district court, we observe that the question to Detective Rennie
2 apparently had its genesis in defense counsel's opening statement. New Mexico
3 recognizes the doctrine of invited error. State v. Jim, 2014-NMCA-089, ,i 22, 332
4 P.3d 870 ("It is well established that a party may not invite error and then proceed to
5 complain about it on appeal."). 	This 	doctrine has been applied to the Fifth
6 Amendment privilege to remain silent. See, e.g., State v. Crumley, 625 P.2d 891,894
7 (Ariz. 1981) (in bane); Shingledecker v. State, 734 So. 2d 483, 483-84 (Fla. Dist. Ct.
8 App. 1999) (per curiam); State v. Batchelor, 579 S.E.2d 422, 428-29 (N.C. Ct. App.
9 2003); However, it is not necessary for us to consider whether the doctrine and any
10 limits to that doctrine apply in this case. Assuming that Defendant's pre-arrest silence
11 	is entitled to constitutional protection, we conclude that Defendant's constitutional
12 right to remain silent was not used against him.
13 	{53} 	In Greer v. Miller, 483 U.S. 756, 759 (1987), the defendant testified in his own
14 defense, and on cross-examination, he was asked, "Why didn't you tell this story to
15 	anybody when you got arrested?" Defense counsel immediately objected and
16 requested a mistrial. Id. The trial judge denied the motion for mistrial, sustained the
17 objection, and instructed the jury to disregard. Id. The prosecutor did not further
18 pursue the matter, and did not mention it in his closing argument. Id. The United
19 	States Supreme Court held that, under the circumstances, the prosecutor had not used
35

1 the defendant's silence. Id. at 764-65. Similarly, in State v. Smith, 2001-NMSC-004,
2 136, 130 N.M. 117, 19 P.3d 254, our Supreme Court held, "We hold that there was
3 no violation of [the d]efendant's right to silence when the prosecutor's single
4 question was not answered, defense counsel immediately objected, the prosecutor did
5 not pursue the matter further, and defense counsel refused a curative instruction."
6 There is no material difference here.
7 {54} 	Although Detective Rennie answered the question, there was an immediate
8 objection that was sustained, the prosecutor was admonished not to mention
9 Defendant's silence again, the prosecutor complied, and the jury was instructed to
10 disregard the question and the answer. Under the circumstances, we hold that there
11 	was no unconstitutional, impermissible use made of Defendant's silence.
12 6. 	Remaining Arguments
13 	{55} 	We summarily answer Defendant's remaining arguments. First, Defendant
14 argues, pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127,428 P.2d 982,
15 	and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, that the district
16 court lacked personal and subject matter jurisdiction. Defendant filed numerous pro
17 se motions asserting that the district court lacked jurisdiction. Among the grounds
18 	asserted were that Defendant is a private American citizen, not a United States
19 citizen, with a private rather than a public residence in New Mexico; that he is not the
36

1 person named in the criminal information because his name is not spelled in capital
2 letters; that the prosecution could not proceed because there is no "flesh and blood"
3 victim. No authority is cited to us in support of Defendant's argument, and we do not
4 consider it. See State v. Ibarra, 1993-NMCA-040, ,-r 13, 116 N.M. 486, 864 P.2d 302
5 ("We are entitled to assume, when arguments are unsupported by cited authority, that
6 supporting authorities do not exist.").
7 {56} 	Secondly, Defendant argues that he was denied his right to conflict-free
8 counsel because counsel did not agree with jurisdictional arguments asserted in
9 Defendant's prose motion to dismiss for lack of jurisdiction, or his motion to excuse
10 the district court judge on the grounds that he was biased against pro se litigants.
11 	Defendant fails to cite to any authority supporting the legal validity of those motions,
12 or to support his assertion that defense counsel has an obligation to argue in support
13 	of pro se motions that have no merit. We therefore decline to consider this argument
14 any further. See id.
15 	{57} 	Finally, Defendant argues that he was denied his constitutional right to
16 represent himself. To determine if a defendant has made a valid, knowing, intelligent,
17 and voluntary waiver of his constitutional right to counsel, State v. Reyes, 2005-
18 NMCA-080, ,-r,-r 4, 9, 137 N.M. 727, 114 P.3d 407, a district court is required to
19 "inform itself regarding a defendant's competency, understanding, background,
37

1 education, training, experience, conduct and ability to observe the court's procedures
2 and protocol." State v. Chapman, 1986-NMSC-037, 1 10, 104 N.M. 324, 721 P.2d
3 392. Defendant prevented the district court from making that determination when he
4 refused to answer any of the district court's questions relating to his ability to
5 represent himself, and simply kept repeating that he is "standing on [his] documents."
6 There was no error in denying Defendant's request to represent himself.
7 	CONCLUSION
8 	{58} 	The judgment and sentence of the district court is affirmed.
9 	{59} 	IT IS SO ORDERED.
10
11
12 WE CONCUR:
38