State v. Morrill
| Decision Date | 24 July 2019 |
| Docket Number | No. A-1-CA-36490,A-1-CA-36490 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JEFFREY MORRILL, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
Lauren J. Wolongevicz, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant appeals his conviction, following a bench trial, of two counts of sexual exploitation of children (distribution), contrary to NMSA 1978, Section 30-6A-3(B) (2007, amended 2016).1 This crime is commonly referred to as distribution of child pornography. Defendant advances four arguments: (1) there was insufficient evidence to support his convictions for distribution; (2) his convictions of multiple counts ofdistribution violate double jeopardy; (3) the district court abused its discretion in finding the Roundup Torrential Downpour (Roundup) software to be reliable; and (4) the district court erred in admitting the evidence produced by Roundup and Forensic Toolkit. Persuaded only by Defendant's double jeopardy argument, we remand to the district court to vacate one of the two counts of distribution and otherwise affirm.
{2} Defendant's charges stem from his use of BitTorrent, a peer-to-peer, file-sharing network, to access child pornography. The evidence at trial established the following. While there is nothing inherently illegal about peer-to-peer, file-sharing networks, they are the most common way to download or distribute child pornography. BitTorrent is one of the most popular peer-to-peer, file-sharing networks. People can connect to the BitTorrent network through a number of different software programs, including μTorrent, which is what Defendant used.
{3} Unlike users of other peer-to-peer, file-sharing networks, BitTorrent users do not search for files within μTorrent. Rather, BitTorrent users must search websites that act as a directory in order to obtain torrent files, which can contain a single file or a number of files. Once a BitTorrent user locates a torrent file they would like to download, the user downloads an info hash file. The info hash file tells μTorrent what the user is looking for and where it can be found. Once the info hash is downloaded, μTorrent connects to Internet Protocol (IP) addresses that have been identified as having the requested torrent file until it is able to download all or part of the file. The more people on the peer-to-peer, file-sharing network who have a torrent file, the faster that file can be downloaded.
{4} One of the State's witnesses testified that peer-to-peer, file-sharing networks, including BitTorrent, operate on the same protocol—"to download, you have to share." In furtherance of that protocol, μTorrent is configured to automatically share anything that a user downloads as long as it remains in the shared folder or in any other folder the user designates to be shared. There is no way to turn off the sharing feature in μTorrent. If a μTorrent user is not sharing, the network notices and can put the user's software in a temporary state that does not allow the user to download from others.
{5} Special Agent Owen Peña with the New Mexico Internet Crimes Against Children Task Force was qualified as an expert in peer-to-peer and peer-to-peer investigations and testified to the following. Agent Peña conducts investigations on the BitTorrent network using Roundup. Agent Peña's computer runs Roundup twenty-four hours a day, seven days a week. Roundup looks for particular torrent files that are identified based on their unique info hash.
{6} If an IP address believed to be in New Mexico is sharing one of those particular torrent files, the Roundup software used by Agent Peña attempts to make a connection to that IP address. In order to make a connection, three things must be true: (1) the sharing computer is on; (2) the file-sharing software is running on the sharing computer;and (3) the user has to be sharing at least a part of the identified torrent file. If Roundup is able to make a connection to the identified IP address, it attempts to download the identified torrent file. Unlike μTorrent and other peer-to-peer, file-sharing software, Roundup only downloads from a single source—the specific IP address it has identified. Roundup logs every action it takes.
{7} On September 11-12 and October 2, 2015, the Roundup software used by Agent Peña connected to an IP address and downloaded a total of eight distinct torrent files, which contained a total of 10,867 individual files. Once the torrent files were finished downloading, Agent Peña reviewed them and went through all of their file structures. Upon finding child pornography, Agent Peña initiated further investigation.
{8} Qualified as an expert in peer-to-peer investigations and peer-to-peer systems, Detective Kyle Hartsock with the Bernalillo County Sheriff's Department testified to the following. Detective Hartsock received a case packet from Agent Peña that included a paper report and a CD/DVD that contained the actual files downloaded and the log reports that showed the dates, times, and how the software was operating. Based on the information contained in the case packet, Detective Hartsock obtained and executed a search warrant for an apartment located in Albuquerque, New Mexico. Following the search of the apartment, a number of electronic items, including Defendant's computer and external hard drives, were seized. Detective Hartsock took the seized items to the Regional Computer Forensics Laboratory where they underwent forensic examination using Forensic Toolkit.
{9} Defendant was present when the search warrant was executed on the apartment.2 Several minutes after the search began, Detective Hartsock interviewed Defendant. The interview lasted approximately fifty minutes and was recorded on camera. The video of the interview was played at trial.
{10} During the interview, Defendant made a number of admissions and denials. When Detective Hartsock told him why they were conducting the search, Defendant admitted to having the images they were looking for on one or more of his external hard drives. Defendant followed this statement by saying that it was his understanding that the images were not child pornography.
{11} Defendant reported that the text associated with the images indicated that they were of an artistic nature and were not meant for pornographic purposes. Defendant also stated that he looked up the relevant laws and the images did not seem to meet the statutes. Defendant admitted to downloading μTorrent to his computer, using μTorrent to download the files, and setting up μTorrent to save the downloaded files directly to his external hard drives. However, Defendant denied being aware that the images were available to upload.
{12} Defendant admitted to searching for "LS," but reported that it was his understanding that the LS series3 was not child pornography. Defendant admitted to viewing pictures from the LS series for over twenty years. On his external hard drive in a "/Torrents folder," Defendant created a folder titled "L" where he put the images. Defendant stated child pornography charges were brought in different countries against those involved with the LS series, but stated that all charges were dropped and did not result in trials or convictions. Based on this information and the text associated with the images, Defendant reported that he did not believe that the images were illegal.
{13} At Defendant's bench trial, Detective Hartsock demonstrated how to install the same version of μTorrent that Defendant used onto a computer. The demonstration showed that an end user license agreement (EULA) must be agreed to in order to install μTorrent. While a user does not have to scroll through the EULA before agreeing, the agreement did contain a section titled "automatic uploading" that explained that using μTorrent to download files would allow other users to access those downloaded files. When the installation was complete, μTorrent opened and then the window closed; however, the program remained running in the task bar. Detective Hartsock explained that μTorrent was designed to be running all the time.
{14} Detective Hartsock then demonstrated how to obtain a torrent file by going to one of the online directories and finding an e-book. When he clicked on the download link for the e-book, μTorrent opened to confirm what was to be done with the file, including where to download the file. As the e-book downloaded, it was shown in a downloading folder in μTorrent that indicated information like the file name, file size, download speed, upload speed, and estimated time the download would finish. Once the e-book was completely downloaded, the file was no longer shown in the downloading folder and instead showed in μTorrent's seeding file, indicating it was available to be shared.
{15} Defendant moved for a directed verdict at the close of the State's evidence. The district court granted the motion in part, but allowed two counts of distribution of child pornography and one count of possession of child pornography to go forward. Defendant did not put on any evidence, but renewed his directed verdict motion after the defense rested. The district court denied the motion and ultimately convicted Defendant of all remaining counts.
{16} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of this case, we...
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