February 20, 2020- State of New Mexico v. Rigoberto Marin, No. A-1-CA-37601

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37601	4
RIGOBERTO MARIN,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	7
William G. W. Shoobridge, District Judge	8
Hector H. Balderas, Attorney General	9
Marko D. Hananel, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Gregory B. Dawkins, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
BOGARDUS, Judge.	18
{1} 	Defendant Rigoberto Marin appeals from his conviction following a bench	19
trial of attempted sexual exploitation of children (manufacturing), contrary to	20
NMSA 1978, Section 30-6A-3(D) (2007, amended 2016)1 and NMSA 1978, Section	21
1 In 2016, Section 30-6A-3 was amended, and the crime of manufacture of
Court of Appeals of New Mexico
Filed 2/20/2020 12:12 PM

2
30-28-1 	(1963), 	commonly 	referred 	to 	as 	attempted 	manufacture 	of 	child	1
pornography. Defendant challenges the sufficiency of the evidence supporting his	2
conviction. We affirm.	3
BACKGROUND	4
{2} 	At the time of the events relevant to this appeal, Defendant was living in	5
Hobbs, New Mexico, in a home he shared with his parents and his seventeen-year-	6
old sister. While Defendant’s sister was using the home’s only bathroom, she found	7
a hook placed directly in front of the toilet on a shelf that was about two feet off the	8
floor. Defendant’s sister found the hook’s location odd because it was obviously out	9
of place, and she brought it to her mother’s attention.	10
{3} 	Officer Matthew Burleson with the Hobbs Police Department responded to	11
Defendant’s parents’ home in response to a report about the hook shortly after	12
midnight on March 16, 2014.2 When Officer Burleson arrived at the home, the hook	13
had already been removed from the bathroom and was in the possession of	14
Defendant’s mother. Officer Burleson testified that Defendant’s mother pointed out	15
that they had found a small screen on the front of the hook and a memory card	16
child pornography was recompiled at Section 30-6A-3(E). However, the language
defining the crime of manufacture of child pornography remained unchanged.
2 Defendant’s sister testified that the police responded the same day that the
camera was found.

3
plugged into the side of the hook. Officer Burleson testified that the hook was	1
designed to be like a hidden camera.	2
{4} 	Defendant agreed to speak with Officer Burleson after he was advised of his	3
Miranda rights. Officer Burleson testified that during their conversation Defendant	4
admitted that (1) the camera was his; (2) on March 15, 2014, he placed the camera	5
directly in front of the toilet on a shelf in the bathroom, approximately two feet off	6
the floor; and (3) he was “just playing around” and was interested in seeing what	7
was going on in the bathroom. Following his investigation, Officer Burleson handed	8
the case off to detectives with the Hobbs Police Department.	9
{5} 	Detective Mark Munro with the Hobbs Police Department testified that he	10
was brought on to further investigate. Pursuant to his investigation, Detective Munro	11
also spoke with Defendant. During their conversation, Detective Munro testified that	12
Defendant admitted that he (1) bought the camera from eBay; (2) did not need to set	13
up the camera—meaning that it only needed to be charged and turned on to work;	14
(3) placed the camera in the bathroom on the evening of March 15, 2014; (4) had	15
forgotten that he put the camera there and did not remove it when he intended to;	16
and (5) had gotten the idea for the camera after viewing a pornography website.	17
{6} 	Detective Munro testified that the camera was operable and detected motion.	18
Detective Munro also determined that there were two video files saved on the	19
camera’s memory card. Both files were less than fifteen seconds and contained very	20

4
grainy, dark images. Detective Munro testified that he was able to see movement in	1
the videos, but otherwise was unable to see anything specific.	2
{7} 	Following a bench trial, Defendant was convicted of one count of attempted	3
manufacture of child pornography. Defendant appeals.	4
DISCUSSION	5
{8} 	Defendant advances a number of challenges to the sufficiency of the evidence	6
supporting his conviction of attempted manufacture of child pornography. First,	7
contending that the manufacture of child pornography requires a heightened mens	8
rea, Defendant argues that there was insufficient evidence that he acted with the	9
requisite mens rea. Second, Defendant argues there was insufficient evidence that he	10
took 	a 	substantial 	step 	toward 	the 	completion 	of 	the 	manufacture 	of 	child	11
pornography. Third, Defendant argues that there was insufficient evidence for the	12
district court to conclude that any images, if produced, would have depicted a	13
prohibited sexual act. Fourth, Defendant argues that there was insufficient evidence	14
for the district court to conclude that any images, if produced, would have been	15
obscene.	16
{9} 	Defendant’s arguments misapprehend the State’s burden of proof regarding	17
the charge of attempted manufacture of child pornography. Therefore, we begin by	18
setting forth our standard of review and the State’s burden of proof before analyzing	19
Defendant’s arguments within that framework.	20

5
Standard of Review	1
{10} 	“The test for sufficiency of the evidence is whether substantial evidence of	2
either a direct or circumstantial nature exists to support a verdict of guilty beyond a	3
reasonable doubt with respect to every element essential to a conviction.” State v.	4
Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and	5
citation omitted). “Substantial evidence is relevant evidence that a reasonable mind	6
might accept as adequate to support a conclusion.” Id. ¶ 53 (alteration, internal	7
quotation marks, and citation omitted). When reviewing for substantial evidence, an	8
appellate court “views the evidence in the light most favorable to the guilty verdict,	9
indulging all reasonable inferences and resolving all conflicts in the evidence in	10
favor of the verdict.” Id. ¶ 52 (alteration, internal quotation marks, and citation	11
omitted). We also disregard all evidence and inferences that support a different	12
result. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “The	13
question before the reviewing court is not whether [it] would have had a reasonable	14
doubt about guilt but whether it would have been impermissibly unreasonable for	15
[the fact-finder] to have concluded otherwise.” Montoya, 2015-NMSC-010, ¶ 52	16
(alterations, internal quotation marks, and citation omitted).	17
The State’s Burden	18
{11} 	“The inchoate crime of attempt to commit a felony ‘consists of an overt act in	19
furtherance of and with intent to commit a felony and tending but failing to effect its	20

6
commission.’ ” State v. Green, 1993-NMSC-056, ¶ 21, 116 N.M. 273, 861 P.2d 954	1
(quoting § 30-28-1). In this case, the felony at issue was the manufacture of child	2
pornography. Accordingly, the State had the burden to prove three elements beyond	3
a reasonable doubt in order for the district court to convict Defendant of attempted	4
manufacture of child pornography: (1) Defendant intended to commit the crime of	5
manufacture of child pornography; (2) Defendant began to do an act which	6
constituted a substantial part of the manufacture of child pornography but failed to	7
commit the manufacture of child pornography; and (3) the attempt happened in New	8
Mexico on or about March 16, 2014. UJI 14-2801 NMRA.3 In this appeal, Defendant	9
has not challenged the third element.	10
{12} 	The fact-finder’s determination of the first two elements are necessarily	11
informed by the elements of the crime of manufacture of child pornography. See UJI	12
14-2801 (stating that the essential elements of the relevant felony must be given	13
following the instruction on attempt to commit a felony). This Court has stated that	14
the crime of manufacture of child pornography requires “that a person intentionally	15
‘manufacture’ a ‘visual or print medium’ that is ‘obscene’ and depicts a ‘prohibited	16
sexual act.’ ” State v. Myers, 2008-NMCA-047, ¶ 9, 143 N.M. 710, 181 P.3d 702	17
(Myers I), rev’d on other grounds by 2009-NMSC-016, 146 N.M. 128, 207 P.3d	18
3 Defendant was tried in a bench trial; therefore, no jury instructions were
made a part of the record. Nevertheless, the relevant uniform jury instructions inform
what the State was required to prove in this case.

7
1105 (Myers II);4 see UJI 14-633 NMRA (identifying the elements of the crime of	1
manufacture of child pornography). NMSA 1978, Section 30-6A-2(D) (2001)	2
defines “manufacture” as “the production, processing, copying by any means,	3
printing, packaging or repackaging of any visual or print medium depicting any	4
prohibited sexual act or simulation of such an act if one or more of the participants	5
in that act is a child under eighteen years of age[.]” Section 30-6A-2(B)(1) defines	6
“visual or print medium[,]” in relevant part, as “any film[.]” Section 30-6A-2(E)	7
defines “obscene” as “any material, when the content if taken as a whole: (1) appeals	8
to a prurient interest in sex, as determined by the average person applying	9
contemporary community standards; (2) portrays a prohibited sexual act in a patently	10
offensive way; and (3) lacks serious literary, artistic, political or scientific value.”	11
Finally, Section 30-6A-2(A)(5) defines “prohibited sexual act” as a “lewd and	12
sexually explicit exhibition with a focus on the genitals or pubic area of any person	13
for the purpose of sexual stimulation[.]”	14
{13} 	With this framework in mind, we address whether substantial evidence	15
supports Defendant’s conviction for attempted manufacture of child pornography.	16
Substantial 	Evidence 	Supports 	Defendant’s 	Conviction 	for 	Attempt 	to	17
Manufacture of Child Pornography	18
4 In Myers, this Court was analyzing the 2001 version of Section 30-6A-3(D).
However, the language of the 2001 version is the same as the language of the 2007
version at issue in this case.

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A. 	Intent to Commit the Crime of Manufacture of Child Pornography	1
{14} 	Our task is to determine whether Defendant had the necessary mens rea for	2
attempted manufacture of child pornography, which is a specific intent crime. See	3
State v. Johnson, 1985-NMCA-074, ¶ 10, 103 N.M. 364, 707 P.2d 1174 (“The crime	4
of attempt to commit a felony is a specific intent crime.”). We recognize that	5
“[s]pecific intent . . . can seldom be proven by direct evidence[.]” Green, 1993-	6
NMSC-056, ¶ 21. Therefore, we analyze Defendant’s intent through “the reasonable	7
inferences shown by the evidence and the surrounding circumstances. If there are	8
reasonable inferences and sufficient circumstances then the issue of intent becomes	9
a question of fact for the [fact-finder].” Id. (internal quotation marks and citation	10
omitted).	11
{15} 	In this case, there was evidence that Defendant admitted that (1) he purchased	12
the camera from eBay; (2) the camera did not need to be set up; (3) he placed the	13
camera in 	the bathroom directly in 	front of the toilet on a shelf that 	was	14
approximately two feet off the floor; (4) he was interested in seeing what was going	15
on in the bathroom; and (5) he had gotten the idea for the camera after viewing a	16
pornography website. In addition to Defendant’s admissions, the district court also	17
heard testimony indicating that the operable, motion-activated camera was designed	18
to be like a hidden camera. Furthermore, the district court heard testimony that there	19

9
was only one restroom in the home. Finally, the district court heard testimony that	1
the camera was found by Defendant’s sister while she was using the restroom.	2
{16} 	From his purchase, activation, and placement of the camera, the district court	3
could reasonably conclude that Defendant intended to produce videos. Because the	4
camera was placed in the home’s only bathroom, the district court could reasonably	5
conclude that Defendant intended the videos to include all of the home’s residents,	6
including his seventeen-year-old sister.5 From the location where he placed the	7
camera within the bathroom and his admission that he got the idea to do so after	8
viewing a pornographic website, the district court could reasonably conclude that	9
Defendant intended the videos to be obscene and to depict a prohibited sexual act.6
10
5 Defendant contends that the State did not present any evidence that he
intended to record his sister. In support of this argument, Defendant asserts that he
told police that he “had hoped to view [an] adult member of the family.” Although
Defendant provides a citation to the audio recording from trial, the cited portion of
the audio recording does not support his assertion. See Muse v. Muse, 2009-NMCA-
003, ¶ 42, 145 N.M. 451, 200 P.3d 104 (“We are not obligated to search the record
on 	a 	party’s 	behalf 	to 	locate 	support 	for 	propositions 	a 	party 	advances 	or
representations of counsel as to what occurred in the proceedings.”). Nevertheless,
even if evidence was introduced at trial suggesting that Defendant told police that
“he hoped to view an adult family member[,]” it is irrelevant to our inquiry into
whether substantial evidence supported his conviction. See Rojo, 1999-NMSC-001,
¶ 19 (“Contrary evidence supporting acquittal does not provide a basis for reversal
because the [fact-finder] is free to reject [the d]efendant’s version of the facts.”).
6 As we explain here, the issue is whether Defendant intended to produce
images that were obscene and that depicted a prohibited sexual act. Therefore, the
district court did not need to decide whether any produced images would have
actually been obscene or would have depicted a prohibited sexual act. Accordingly,
we do not further address Defendant’s arguments to the contrary.

10
Cf. Myers II, 2009-NMSC-016, ¶¶ 2, 47 (holding that there was sufficient evidence	1
to conclude that images of underage girls that were actually manufactured by the	2
defendant via a hidden video camera that was concealed in a bathroom and	3
“positioned to capture the exposed pubic area of individuals before and after they	4
had used the toilet” depicted a “prohibited sexual act” and were “obscene” as defined	5
in the Sexual Exploitation of Children Act). Accordingly, this evidence was	6
sufficient 	for 	the 	district 	court 	to 	conclude 	that 	Defendant 	intended 	to	7
“ ‘manufacture’ a ‘visual or print medium’ that is ‘obscene’ and depicts a ‘prohibited	8
sexual act[,]’ ” Myers I, 2008-NMCA-047, ¶ 9; see § 30-6A-2(A), B), (D), (E), thus	9
satisfying the first element of attempted manufacture of child pornography, see UJI	10
14-2801.	11
B. 	An Act Which Constituted a Substantial Part of the Manufacture of	12
Child Pornography but Failed to Commit the Crime	13
{17} 	Defendant dedicates only a single paragraph to his contention that there was	14
insufficient evidence for the district court to conclude that he began to do an act	15
which constitute a substantial part of the manufacture of child pornography.	16
Defendant uses the majority of that paragraph to identify relevant rules, dedicating	17
only a single sentence to his argument: “Because there was not evidence that a	18
completed manufacture would have occurred based on [his] conduct, his conduct	19
was at most ‘mere preparation[.]’ ” While we are not obligated to review this	20

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undeveloped argument, State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031, we	1
conclude that it is meritless for the reasons that follow.	2
{18} 	This Court has recognized “that the dividing line between attempt and	3
preparation is not always clear and is heavily dependent upon the surrounding factual	4
circumstances.” State v. Brenn, 2005-NMCA-121, ¶ 23, 138 N.M. 451, 121 P.3d	5
1050. However, we have also recognized that “even slight acts in furtherance of the	6
crime will constitute an attempt.” Id. ¶ 14 (alteration, internal quotation marks, and	7
citation omitted). The facts of this case make it clear that Defendant’s conduct went	8
beyond mere preparation.	9
{19} 	Even though Defendant’s purchase of the camera and any steps he took to	10
activate it might be fairly characterized as mere preparation, Defendant’s actions did	11
not stop there. Defendant then placed the camera in the home’s only bathroom.	12
Within the bathroom, Defendant chose to position the camera directly in front of the	13
toilet on a shelf that was approximately two feet off the floor. The motion-activated	14
camera did not require any further action from Defendant to begin recording once it	15
was placed. The only thing separating Defendant’s conduct from completion of the	16
crime appeared to be the quality of the videos produced by the camera. Therefore,	17
the foregoing evidence was sufficient for the district court to conclude that	18
Defendant began to do an act which constituted a substantial part of the manufacture	19

12
of child pornography but failed to commit the crime, satisfying the second element	1
of attempted manufacture of child pornography. See UJI 14-2801.	2
CONCLUSION	3
{20} 	We 	affirm Defendant’s 	conviction 	for 	attempted 	manufacture 	of 	child	4
pornography.	5
{21} 	IT IS SO ORDERED.	6
____________________________	7
KRISTINA BOGARDUS, Judge	8
WE CONCUR:	9
____________________________	10
JULIE J. VARGAS, Judge	11
____________________________	12
ZACHARY A. IVES, Judge	13