State v. Ballard

• Citation: 2012 -NMCA- 043,276 P.3d 976
• Decision Date: 02 May 2012
• Docket Number: No. 30,187.,30,187.
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Willard BALLARD, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

276 P.3d 976

2012 -NMCA- 043

STATE of New Mexico, Plaintiff–Appellee,

v.Willard BALLARD, Defendant–Appellant.

No. 30,187.

Court of Appeals of New Mexico.

March 8, 2012.

Certiorari Granted, May 2, 2012, No. 33,565.

Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} Defendant Willard Ballard took his laptop computer and two external hard drives to a coworker's home and asked the coworker to install a software upgrade. After Defendant later told the coworker that he had child pornography on the computer and asked the coworker to erase the memory, the coworker viewed the pornography and then made the computer and hard drives available for police viewing. The police seized the computer and the two external hard drives that were in the coworker's possession. The police then searched for child pornography and found it in multiple files, following which the police obtained a search warrant permitting the computer and the external hard drives to be sent for forensic analysis. Twenty-five files, consisting of or containing twenty-five separate images, constituted the basis for charging Defendant with twenty-five counts of sexual exploitation of children (possession) contrary to NMSA 1978, Section 30–6A–3(A) (2007).

{2} Convicted of all twenty-five counts, Defendant appeals, claiming (1) based on double jeopardy grounds the twenty-five counts merge into one count consisting of a unitary course of conduct; (2) the district court erroneously denied his motion to suppress the contents of the external hard drive that contained the images; (3) because Apprendi v. New Jersey, 530 U.S. 466, 547, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) prohibits judicial fact-finding that directly affects sentencing, the district court erred when it reviewed evidence to determine the number of victims; (4) the district court erred in failing to grant Defendant's motion to dismiss where no corpus delicti existed without Defendant's extrajudicial statements to police; and (5) the district court erred in reconsidering Defendant's sentence sua sponte absent intervening circumstances providing a basis for amendment of the sentence. We hold on the double jeopardy point that the twenty-five counts should have been merged into five counts, requiring reversal of twenty counts on which Defendant was convicted, and we hold that the court did not err in regard to the remaining points.

BACKGROUND

{3} Defendant asked his coworker, Daniel Etlicher, to do software updates on his laptop computer because Defendant did not have access to the internet where he lived and therefore could not download the updates himself. Defendant gave the computer and two external hard drives to Mr. Etlicher. Approximately two weeks later, Defendant called Mr. Etlicher, but Mr. Etlicher did not answer because he was eating dinner. Mr. Etlicher later received a text message from Defendant asking Mr. Etlicher to call Defendant. Mr. Etlicher called Defendant. During their conversation, Mr. Etlicher overheard Defendant tell another person that there was child pornography on the computer. Mr. Etlicher asked, “Are you serious?” After acknowledging to Mr. Etlicher that he had child pornography on his computer, Defendant stated that when he downloaded a pornography file he got everything that came with it. Defendant asked Mr. Etlicher to erase the memory on the two external hard drives.

{4} Mr. Etlicher took the computer and external hard drives to work and met with his supervisor. In the presence of his supervisor, Mr. Etlicher turned on the computer and one of the first files that opened on one of the hard drives was one captioned as “child pornography.” The two looked at the file, closed it, and the supervisor called the police.

{5} Officer Daniel Mailman responded to the call. When the officer arrived at the workplace, the computer was on, and Mr. Etlicher showed the officer the same file that he and his supervisor had viewed earlier, which was described by the officer as a brief video of a male and female of approximately eleven to thirteen years of age engaged in sexual activity. The officer told Mr. Etlicher to turn the computer off, and the officer seized the computer and external hard drives.

{6} Officer Mailman took the computer and external hard drives to his supervisor, Sergeant Max Stansell, who was aware of the investigation as to possible child pornography. Sergeant Stansell testified that it took him about five minutes, viewing approximately ten files, on the computer to find a file that he could positively identify as a child engaged in sexual activity with an adult. He then sealed the computer, placed it in evidence, and obtained a warrant for forensic evaluation. The computer and external hard drives were sent to Rocky Mountain Information Network (RMIN) for forensic evaluation.

{7} Defendant gave Sergeant Stansell a statement in which Defendant said he downloaded some files while he was in Illinois and admitted that he knew there were more than ten files containing child pornography. He said further that he had downloaded the files from a peer-to-peer computer program, that he was an “avid” user of the hard drives, and that he knew what was on them and where the items were on the hard drives.

{8} A computer forensics analyst with RMIN, Christopher Tschupp, testified that he made a bit-for-bit copy of the laptop hard drive and of the two external hard drives. Mr. Tschupp testified that this process makes an exact copy of all of the material on the hard drives so that the copy can be analyzed without disturbing the original evidence. More particularly, Mr. Tschupp reported that twenty-five files had been “created” or “downloaded” on five occasions. The State based its charges on possession of twenty-five files of downloaded images, divided into possession of eight files consisting of video clips and seventeen files consisting of still images. Of the twenty-five counts with which Defendant was charged, images for Counts 1–3 and 9–25 were downloaded April 7, 2007; the image for Count 8 was downloaded April 17, 2007; images for Counts 4 and 6 were downloaded May 11, 2007; the image for Count 7 was downloaded May 21, 2007; and the image for Count 5 was downloaded May 25, 2007. Defendant established on cross-examination of Mr. Tschupp that, as characterized by Defendant, the “E–Mule” program allegedly used by Defendant to download the files was “peer-to-peer” software on the laptop that allowed for direct file sharing from computer to computer upon entering keyword searches and did not involve purchasing or selecting files from a specific source. Mr. Tschupp testified as to each of the twenty-five images of children engaged in sexual activity that were displayed for the jury from two digital video discs (DVDs) made from the bit-for-bit copy prepared by Mr. Tschupp from the laptop and external hard drives. All of the illicit images Defendant downloaded were contained on only one of his external hard drives at the time the computer and hard drives were seized.

DISCUSSIONThe Suppression Issue

{9} Defendant contends that the warrant requirement was violated three separate times when (1) with no warrant, an officer first viewed the computer and then seized Defendant's computer and hard drives; (2) with no warrant, another officer independently searched the computer after it was taken to the police station; and (3) the computer and the hard drives were forensically searched pursuant to a warrant obtained based on evidence unconstitutionally acquired from the warrantless search at the police station.

{10} We review the district court's denial of Defendant's motion to suppress to determine whether the law was correctly applied to the facts, viewing the facts in a light most favorable to the prevailing party. State v. Rivera, 2008–NMSC–056, ¶ 10, 144 N.M. 836, 192 P.3d 1213,rev'd on other grounds,2010–NMSC–046, 148 N.M. 659, 241 P.3d 1099;State v. Diaz, 1996–NMCA–104, ¶ 7, 122 N.M. 384, 925 P.2d 4. A defendant claiming violation of a Fourth Amendment privacy right must show an actual, subjective expectation of privacy in the area searched and must show that the subjective expectation of privacy is one that society is prepared to recognize as reasonable. State v. Bomboy, 2008–NMSC–029, ¶ 10, 144 N.M. 151, 184 P.3d 1045;State v. Gurule, 2011–NMCA–063, ¶ 7, 150 N.M. 49, 256 P.3d 992,cert. granted,2011–NMCERT–006, 150 N.M. 764, 266 P.3d 633.

{11} Defendant argues that he had a reasonable expectation of privacy in the contents of his computer and external hard drives, an expectation that he maintained and never lost at any point in time. Thus, he argues, his privacy was unlawfully infringed when Officer Mailman viewed and seized the computer and was continually infringed thereafter. In particular, Defendant argues that he had a heightened expectation of privacy in the entire contents of both of the external hard drives and in the computer's hard drive as containers of simultaneously stored legitimate, private, lawful information. Based on this standing, Defendant asserts that the police violated the warrant requirement in the Fourth Amendment and in Article II, Section 10 of the New Mexico Constitution. Defendant relies on United States v. Burgess, 576 F.3d 1078 (10th Cir.2009), United States v. Carey, 172 F.3d 1268 (10th Cir.1999), State v. Sublet, 2011–NMCA–075, 150 N.M. 378, 258 P.3d 1170, and Gurule, 2011–NMCA–063, 150 N.M. 49, 256 P.3d 992.

{12} Defendant's authorities do not assist him. They are not applicable to the circumstances in this case, where Defendant lost any expectation of privacy he may have had once he gave the computer and external hard drives to Mr. Etlicher to update the software and admitted to Mr. Etlicher that child pornography...