State v. Olsson

• Decision Date: 21 April 2014
• Docket Number: 33,565.,Nos. 33,226,s. 33,226
• Citation: 324 P.3d 1230
• Parties: STATE of New Mexico, Plaintiff–Respondent, v. James Michael OLSSON, Defendant–Petitioner. State of New Mexico, Plaintiff–Petitioner and Cross–Respondent, v. Willard Ballard, Defendant–Respondent and Cross–Petitioner.
• Court: New Mexico Supreme Court

324 P.3d 1230

STATE of New Mexico, Plaintiff–Respondent,

v.James Michael OLSSON, Defendant–Petitioner.

State of New Mexico, Plaintiff–Petitioner and Cross–Respondent,

v.Willard Ballard, Defendant–Respondent and Cross–Petitioner.

Nos. 33,226, 33,565.

Supreme Court of New Mexico.

April 21, 2014.

Jorge A. Alvarado, Chief Public Defender, Nina Lalevic, Assistant Public Defender, Santa Fe, NM, for Petitioner James Michael Olsson.

Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Respondent and Petitioner State of New Mexico.

Jorge A. Alvarado, Chief Public Defender, Kimberly M. Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Respondent Willard Ballard.

OPINION

MAES, Justice.

{1} In this opinion, we decide the correct unit of prosecution for possession of child pornography under NMSA 1978, Section 30–6A–3(A) (2007), part of the Sexual Exploitation of Children Act, NMSA 1978, §§ 30–6A–1 to –4 (1984, as amended through 2007) (the Act), when various media are used to store one or countless images. This opinion consolidates for review memorandum opinion State v. Olsson, No. 29,713, mem. op. (N.M.Ct.App. Aug. 23, 2011) (non-precedential) and State v. Ballard, 2012–NMCA–043, 276 P.3d 976. Defendant James Olsson (Olsson) was initially charged with sixty counts of possession based on three binders containing photographs of minors. Defendant William Ballard (Ballard) was charged with twenty-five counts of possession based on an external computer hard drive containing still images and videos of minors.

{2} We hold that the Legislature has not clearly defined the unit of prosecution for possession of child pornography because the language is ambiguous and the history and purpose do not offer any further clarity. We also hold that the Herron indicia of distinctness test is not applicable in cases of possession. Herron v. State, 1991–NMSC–012, 111 N.M. 357, 805 P.2d 624. Therefore, we resort to the rule of lenity and hold that Olsson and Ballard can each only be charged with one count of possession of child pornography.

I. FACTS AND PROCEDURAL HISTORYA. State v. Olsson

{3} Olsson was charged with sixty counts of possession of child pornography based on photographs of minors found in three binders seized from Olsson and images found on his computer. Olsson filed a motion for merger of counts asking the trial court to determine the proper unit of prosecution for those charged with possession under Section 30–6A–3(A). Olsson argued that he should only be charged with one unitary act of possession. The trial court denied the motion, ruling that if Olsson's reading of the statute were to be accepted, the language would become meaningless and an offender would be free to acquire unlimited child pornography without additional counts being charged. The State then amended the criminal information, adding additional counts of possession of child pornography for a total of 152 counts based on more images found on Olsson's computer.

{4} The trial court certified the question on unit of prosecution to the Court of Appealson interlocutory appeal. State v. Olsson, 2008–NMCA–009, 143 N.M. 351, 176 P.3d 340 ( Olsson I). The Court of Appeals ruled that Section 30–6A–3(A) does not clearly define the unit of prosecution and looked to the distinctness factors and the rule of lenity as established in Herron.Olsson I, 2008–NMCA–009, ¶ 9, 143 N.M. 351, 176 P.3d 340. The Court of Appeals was unable to conduct a Herron analysis, however, because it lacked relevant facts regarding the binders and individual photographs. Olsson I, 2008–NMCA–009, ¶ 10, 143 N.M. 351, 176 P.3d 340. Specifically, the Court of Appeals did not know if there were “multiple victims, whether the pictures were all acquired from one source or multiple sources, or whether they were acquired all at once or one at a time.” Id. The Court of Appeals therefore remanded for further factual development. Id. ¶ 11.

{5} On remand Olsson pleaded guilty to six counts of possession of child pornography for a sentence of eight years and reserved the right to appeal the unit of prosecution issue. On appeal, Olsson claimed that because the six counts were based on three counts for the three different binders containing child pornography and three counts for three digital images found on Olsson's laptop, that the six counts of possession violated his constitutional protections against double jeopardy.

{6} The Court of Appeals reaffirmed its holding from the 2008 review on interlocutory appeal that Section 30–6A–3(A) does not specify a clear unit of prosecution for possession of child pornography. Olsson, No. 29,713, mem. op. at 6. Further, because Olsson failed to offer new facts on remand, the Court of Appeals ruled that it still lacked sufficient information to apply the Herron factors and was not obligated to reach the rule of lenity. Olsson, No. 29,713, mem. op. at 9–10. Therefore, the Court of Appeals affirmed Olsson's convictions. Id. at 12.

{7} Olsson appealed to this Court pursuant to Rule 12–502 NMRA raising one issue: “Should the Court of Appeals have applied the Herron factors to the three digital images in this case despite the fact that no testimony was presented regarding the images?” We granted certiorari.

B. State v. Ballard

{8} Ballard gave his computer and two external hard drives to his coworker, Daniel Etlicher, and asked him to perform software updates. Approximately two weeks later, Ballard admitted to Etlicher that he had downloaded a pornography file that came with child pornography and asked Etlicher to erase the memory on the two external hard drives. Etlicher turned the computer over to the police. Police testified at trial that Ballard told them he had downloaded the files from a peer-to-peer computer program and was aware that he had downloaded child pornography. Ballard was charged with fifty-one counts of possession and at pretrial filed a motion to merge the counts into a single count. Just prior to trial, the State amended the criminal information to twenty-five counts.

{9} At trial a computer forensics analyst testified that twenty-five files had been “created” or “downloaded” on five separate occasions. There were eight files consisting of video clips and seventeen files consisting of still images. The eight video clips were downloaded on April 7, April 17, May 11, May 21, and May 25, 2007. All of the still images were downloaded on April 7, 2007. All of the images and videos clips were contained on a single external hard drive. The jury convicted Ballard on all twenty-five counts. At sentencing and after arguments on the merger issue, the trial court determined that all of the images were distinct, concluded that there were no charges for “obvious duplications of participants” in the images, and declined to merge the twenty-five counts. Ballard was sentenced to thirty-seven-and-a-half years in prison, with all but nine years suspended. Ballard appealed, claiming that based on double jeopardy grounds, the twenty-five counts merge into one count consisting of a unitary course of conduct. Ballard, 2012–NMCA–043, ¶ 2, 276 P.3d 976.

{10} The Court of Appeals found that each distinct download constituted a separate offense, but that multiple images within a download were not separate offenses. Id. ¶¶ 28–30. The Court concluded that the facts of this case fit within Section 30–6A–2(B)(2) as a form of reproduction “containing or incorporating ... any computer generated or electronically generated imagery[.]” Ballard, 2012–NMCA–043, ¶ 29, 276 P.3d 976 (alteration and omission in original) (internal quotation marks omitted). The Court of Appeals held that the statutory language was ambiguous as to the unit of prosecution and that resort to tests of distinctness and the rule of lenity was appropriate. Id. The Court rejected the State's argument that the unit of prosecution should be based on the number of victims because “Section 30–6A–3(A) specifically recognizes that the medium may depict ‘one or more’ under-aged participants in a prohibited sexual act.” Ballard, 2012–NMCA–043, ¶ 30, 276 P.3d 976. While the Court of Appeals found that the evidence consisted of twenty-five files, consisting of or containing twenty-five separate images, it reduced the twenty-five convictions to five because “[e]ach of Defendant's five separate downloads was in the nature of a single bundling of images for possession purposes....” Id. ¶¶ 1, 29.

{11} The State appealed and raised one question for review: “Did the Court of Appeals err in reducing the twenty-five counts of sexual exploitation of children, which were based on twenty-five separate images, to five counts, based primarily upon the fact that Defendant downloaded the images on five separate calendar days?” We granted certiorari.

{12} Ballard filed a cross-petition and raised an intent argument, specifically that the evidence was insufficient at trial to establish that he had knowledge of the child pornography on his computer. Ballard did not raise that issue on appeal, nor is sufficiency of the evidence before this Court. Further, the State points out that the jury was fully instructed on the elements of possession and constructive possession and only had to prove that the files were in Ballard's presence or control, not that he had actual knowledge of every image. Therefore, we do not address the issues argued in Ballard's cross-petition.

{13} Because both cases question the proper unit of prosecution under Section 30–6A–3(A), we have consolidated the cases.

II. STANDARD OF REVIEW

{14} The issue of intended unit of prosecution is a question of law subject to de novo review. See State v. Rowell, 1995–NMSC–079, ¶ 8, 121 N.M. 111, 908 P.2d 1379 (“The main goal of statutory construction is to give effect to the intent of the legislature.... Interpretation of a statute is an issue of law, not a question of fact.... We...