State v. Gwynne

• Decision Date: 14 February 2018
• Docket Number: NO. A-1-CA-34082,A-1-CA-34082
• Citation: 417 P.3d 1157
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jason GWYNNE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

417 P.3d 1157

STATE of New Mexico, Plaintiff-Appellee,

v.Jason GWYNNE, Defendant-Appellant.

NO. A-1-CA-34082

Court of Appeals of New Mexico.

Filing Date: February 14, 2018

Certiorari Denied, April 10, 2018, No. S-1-SC-36926

Hector H. Balderas, Attorney General, Santa Fe, NM, Charles J. Gutierrez, Assistant Attorney General, Albuquerque NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

HANISEE, Judge.

{1} Defendant Jason Gwynne was convicted by a jury of two counts (Counts 2 and 3) of manufacturing child pornography, a second degree felony, and one count (Count 1) of possession of child pornography, a fourth degree felony. He was sentenced to nineteen-and-one-half years in prison—nine years for each of the manufacturing counts, and eighteen months for possession—less time served. Defendant raises numerous issues on appeal, which we summarize as follows: (1) his conviction for possession must be vacated to avoid violation of his right to be free from double jeopardy; (2) multiple evidentiary errors deprived him of a fair trial; (3) his convictions for manufacturing child pornography are unconstitutional because the Legislature lacks a rational basis for criminalizing his particular alleged conduct (recording a sex act with a consenting sixteen-year-old girl) where the same conduct with an eighteen-year-old would not be a crime; and (4) there was insufficient evidence to support his convictions. We disagree with Defendant and affirm his convictions and sentence.

BACKGROUND

{2} In January 2013 Defendant, at the time thirty-five years old, was living in a one-bedroom trailer with his then-sixteen-year-old stepdaughter (Stepdaughter), whose mother had passed away in September 2012. Defendant allowed a sixteen-year-old friend (Friend) of Stepdaughter who had run away from home to stay with them. Stepdaughter slept on the pullout couch in the living room, while Defendant and Friend slept in the only bedroom. One night, Stepdaughter observed what she believed was Friend performing oral sex on Defendant in the trailer's bedroom and, after confronting Friend, reported the incident to an adult and later spoke with law enforcement. Stepdaughter reported to law enforcement that Friend and Defendant were "having a sexual affair" and that she had seen "naked pictures of unknown girls [of unknown age] on Defendant's cell phone."

{3} Law enforcement conducted a search of Defendant's residence, seized Defendant's phone, and downloaded three videos depicting Friend engaged in sexual acts. Defendant was initially charged with one count of sexual exploitation of children (possession) contrary to NMSA 1978, Section 30-6A-3(A) (2007, amended 2016).¹ After law enforcement officers further investigated the matter and obtained evidence indicating that Defendant was the male participant in what the officers believed were self-recorded videos where Defendant was engaged in sexual acts with Friend, Defendant was additionally charged with two counts of sexual exploitation of children (manufacturing) in violation of Section 30-6A-3(D).² Defendant denied both having a sexual relationship with Friend and that he was the male participant in the video. At trial, the central issue to be decided was the identity of the male participant in the videos.

{4} The State's first witness was Stepdaughter, whose testimony primarily established (1) when and why Friend had come to live with Stepdaughter and Defendant, (2) where Friend slept in the trailer, and (3) what prompted Stepdaughter to make a report concerning Friend and Defendant to authorities. Additionally, after the district court denied Defendant's motion in limine to exclude testimony by Stepdaughter regarding her observation of a prior sexual encounter between Defendant and Friend, Stepdaughter was allowed to testify that she once observed Friend performing oral sex on Defendant in the bedroom of the trailer.

{5} The State next called Friend, who testified that she was the female in the videos and that Defendant was the male. Friend admitted that she had previously stated that the male in the video was someone other than Defendant, but at trial she testified that her prior statement was a lie. Friend stated that she was aware that the video was being made and that Defendant was the person taking the video using his own cellular phone.

{6} Deputy Victor Hernandez of the Lea County Sheriff's Department described the investigation that followed Stepdaughter's report. He testified that when he went to Defendant's home to investigate and questioned Defendant, Defendant denied having sexual intercourse with Friend and told Deputy Hernandez that Friend slept on the couch. Deputy Hernandez's testimony also laid the foundation for the admission of State's Exhibit 1—the videos downloaded from Defendant's phone, which Deputy Hernandez seized during his investigation.

{7} Detective Mark Munro of the Hobbs, New Mexico Police Department testified regarding the videos themselves and how he came to suspect that Defendant was both the male participant in the videos and the person who manufactured the videos. He explained that "the angle and the manner [in] which [the video] was recorded was consistent with a participant recording the video." He testified that while only the face of the female in the videos was "readily apparent," the abdomen and genitals of the male participant were visible and contained what Detective Munro described as "a consistent abnormality to the abdomen, ... some sort of a scar or possibly a tattoo" in each of the videos. He then explained that as part of his investigation he reviewed photographs of Defendant's unclothed torso that were taken by Deputy Hernandez and watched the videos again, comparing the images in the video of the male participant's abdominal area to the photographs of Defendant. Because Friend, who initially told law enforcement that Defendant was the male in the videos, changed her story and identified another person as the male participant, Detective Munro also personally examined and photographed the torso of the other suspect in order to compare it to the videos. Detective Munro explained that he "freeze frame[d] and pull[ed] ... screenshot[s]" from the videos in order to be able to compare the images in the videos with the photographs of Defendant and the other suspect. Based on his comparison of the videos—including the screenshot images—and the photographs, Detective Munro believed that the photograph of Defendant was "consistent" with the person that he saw in the video and that the other suspect was not the person in the video.

{8} The district court admitted, and the State published to the jury, the videos in their entirety, the photographs of Defendant's and the other suspect's respective torsos, and the screenshot images taken from the three videos showing the male participant's abdominal area. The jury found Defendant guilty on all counts, and Defendant appealed.

DISCUSSION

I. Defendant's Convictions for Manufacturing and Possession of Child Pornography Do Not Violate His Right to Be Free From Double Jeopardy Under the Facts of This Case

{9} "The constitutional prohibition against double jeopardy protects against both successive prosecutions and multiple punishments for the same offense." State v. Contreras , 2007-NMCA-045, ¶ 19, 141 N.M. 434, 156 P.3d 725 (internal quotation marks and citation omitted). There are two types of "multiple punishments" cases: (1) "double[ ]description" cases, in which the defendant is charged with violations of multiple statutes or statutory subsections that may or may not be deemed the same offense for double jeopardy purposes; and (2) "unit of prosecution" cases, in which a defendant is charged with multiple violations of the same statute based on a single course of conduct. State v. DeGraff , 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61 ; see State v. Franco , 2005-NMSC-013, ¶ 14, 137 N.M. 447, 112 P.3d 1104 (observing that the courts "treat statutes written in the alternative as separate statutes" for double jeopardy purposes). This is a "double description" case because Defendant challenges his convictions under two different subsections of Section 30-6A-3 : Subsection (A) (possession) and Subsection (D) (manufacturing).³ See Franco , 2005-NMSC-013, ¶ 14, 112 P.3d 1104.

{10} In "double description" cases, we apply the two-part test set forth in Swafford v. State , 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 P.2d 1223. We "first examine whether the defendant's conduct was unitary, meaning that the same criminal conduct is the basis for both charges." Contreras , 2007-NMCA-045, ¶ 20, 156 P.3d 725 (internal quotation marks and citation omitted). "If the conduct is not unitary, then the inquiry is at an end and there is no double jeopardy violation." Id. (internal quotation marks and citation omitted). "If the conduct is unitary, however, then the second part of the analysis is to determine if the Legislature intended to punish the offenses separately." State v. Silvas , 2015-NMSC-006, ¶ 9, 343 P.3d 616.

{11} Defendant argues that the conduct underlying the manufacturing and possession of child pornography charges "was clearly unitary[.]" The State argues it was not. We agree with the State.

{12} "In analyzing whether a defendant's conduct is unitary, we look to whether [the] defendant's acts have sufficient indicia of distinctness." Contreras , 2007-NMCA-045, ¶ 21, 156 P.3d 725 (internal quotation marks and citation omitted). "In our consideration of whether conduct is unitary, we have looked for an identifiable point at which one of the charged crimes had been completed and the other not yet committed." DeGraff , 2006-NMSC-011, ¶ 27, 131 P.3d 61. "[W]e will not find that a defendant's conduct is unitary where the defendant completes one of the charged crimes before committing the other." Contreras , 2007-NMCA-045, ¶ 21, 156 P.3d 725. We also ...