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Date: 06-21-2019
Case Style:
STATE OF NEW MEXICO v. MANUEL FRANCO
Case Number: A-1-CA-35470
Judge: Kristina Bogardus
Court: COURT OF APPEALS OF THE STATE OF NEW MEXICO
Plaintiff's Attorney: Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Defendant's Attorney: Bennett J. Baur, Chief Public Defender
Kimberly M. Chavez-Cook, Assistant Appellate Defender
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Defendant's charges stem from his use of Ares, a peer-to-peer, file-sharing
13 network, to access child pornography. The evidence at trial establi~hed the
14 following. Peer-to-peer, file-sharing networks allow people to share files with others
15 on the same network. Most of these networks, including Ares, operate on the same
16 protocols and principles. As one of the State's witnesses testified, "To get, you have
17 to give." While anything can be shared on these networks, they are also used to
18 access child pornography because the networks, historically, have been subject to
1Defendant was also convicted of one count of sexual exploitation of children (possession), contrary to Section 30-6A-3(A). Defendant did not appeal this conviction, and we do not discuss it further.
1 little oversight. More recently, law enforcement has developed software to monitor
2 the networks.
3 {3} Qualified as an expert in peer-to-peer investigations, Special Agent Owen
4 Peiia with the New Mexico Internet Crimes Against Children Task Force testified
5 that he uses Roundup, a software program, in the course of his investigations. Within
6 the Roundup program, there are different tools that monitor different networks. The
7 program identifies Internet Protocol (IP) addresses that have files of interest, which
8 are suspected to contain child pornography, saved in their shared folders. The files
9 of interest are identified by hash values,2 which are equivalent to digital fingerprints
10 in the sense that no two files can have the same hash value. Once an IP address with
11 a shared folder containing a file _of interest is identified, the Roundup program
12 automatically attempts to connect to the IP address. Once it connects, the program
13 browses and downloads all files contained in the shared folder. Unlike a typical peer
14 to-peer program that downloads a file from multiple sources at the same time, the
15 Roundup program used by Agent Peiia only downloads from a single source-the
16 identified IP address.
17 {4} · On August 10, 2013, Agent Peiia's program identified an IP address that had
18 files of interest in its shared folder, and the program downloaded eight files from the
2Witnesses and trial counsel used the terms "SHA-1 value," "SHA value," and "hash value" interchangeably throughout trial. For clarity and consistency, we use "hash value" for purposes of this opinion. 2
1 identified IP address. Upon review, Agent Pefia confirmed the downloaded files
2 contained ~hild pornography. Agent Pefia created a disk containing the downloaded
3 files and all files generated by his program. Agent Pefia determined that the physical
4 address associated with the IP addr~ss was located in Loving, New Mexico, and that
5 the internet service at that IP address was being paid for by a "Manuel Franco."
6 {5} Agent Pefia contacted Detective Sergeant Blaine Rennie with the Carlsbad
7 Police Department to advise him of the physical address associated with the IP
8 address. Agent Pefia also sent Sergeant Rennie the disk he created. Sergeant Rennie ·
9 confirmed that the identified physical address was within his jurisdiction and that
10 the images appearing on the disk contained child pornography. Sergeant Rennie then
11 obtained a search warrant for the physical address.
12 {6} When law enforcement officers executed the search warrant at the residence
13 associated with the IP address, Defendant and his mother were present. Law
14 enforcement seized multiple items, including a desktop computer, laptop computer,
15 and hard drive, which were sent to the Regional Computer Forensics Lab for
16 analysis.
17 {7} Forensic analysis revealed that more than one of the seized items contained
18 files that matched the hash values provided by_ Agent Pefia. Between 250 and 300
19 other files that matched hash values for known child pornography were identified on
20 the items taken from the residence. The forensic analysis also identified a folder
3
1 containing Ares, the peer-to-peer, file-sharing network that Agent Pefia's program
2 connected through, as well as a number of other peer-to-peer, file-sharing networks.
3 After the forensic analysis . found thousands of images consistent with child
4 pornography, Sergeant Rennie advised that it was not necessary to identify any more
5 images. On several of the seized items, the registered owner was identified as
6 "Manny" and the Windows Registry for one of the items showed "Manny Franco."
7 The defense stipulated that the identified files were child pornography and that the
8 files came from Defendant's.computers.
9 {8} During the search pursuant to the warrant, Defendant indicated he believed
10 the· search warrant was "for pictures[,]" and agreed to go to the police station to
11 discuss the matter further. At the police station, Defendant expressed familiarity with
12 peer-to-peei; networks and reported he had been searching for child pornography for
13 over five years. Defendant admitted to possessing child pornography in his shared
14 file, but denied distributing child pornography. Defendant stated, "But, when.I'm on
15 there, when I'm connected, it's not for days or whatever. It's more like an hour or
16 two or whatever. Then I tum it off." Defendant explained, "I'm not trying to
17 distribute, but I'm sharing."
18 {9} Defendant did not testify at trial, but the defense did present a witness
19 qualified as an expert in computer forensics, Thomas Blog. Mr. Blog testified that,
20 in preparing for this matter, he focused on the operation of the Ares program from
4
.. 1 the user's perspective. Mr. Blog reported that there are two settings that are
2 especially relevant: (1) a default setting to start Ares when Windows starts; and (2)
3 a default setting to not exit Ares when the program's close button is clicked. Mr.
4 Blog explained that although an Ares user can turn off sharing, it does no good
5 because the program automatically defaults back to sharing when it restarts.
6 {to} Defendant argued that the passive act of not changing settings to tum off
7 sharing was insufficient for the fact-finder to conclude, beyond a reasonable doubt,
8 that he "intentionally distributed" child pornography as required by Section 30-6A
9 3(B).3 Unpersuaded, the district court found Defendant guilty of all charged counts.
10 DISCUSSION
11 I. 12
13 {11}
Substantial Evidence Supported Defendant's Convictions for Intentional Distribution of Child Pornography
Defendant contends that the evidence presented at trial was insufficient to·
14 support his convictions for distribution of child pornography. To the extent that
15 Defendant's argument requires us to interpret the distribution of child pornography
16 statute, "that presents a question of law which is reviewed de novo on appeal." State
17 v. Chavez, 2009-NMSC-035, 1 10, 146 N.M. 434, 211 P.3d 891. "In interpreting a
18 statute, our primary objective is to give effect to the Legislature's intent." State v.
19 Trujillo, 2009-NMSC-012, 1 11, 146 N.M. 14, 206 P.3d 125. "In discerning
3 All references to Section 30-6A-3 in this opinion are to the 2007 version of. the statute unless otherwise noted. 5
1 legislative intent, we look first to the language used and the plain meaning of that
2 language." Id. "[W]hen a statute contains clear and unambiguous language, we will
3 heed that language and refrain from further statutory interpretation." Id: "After
4 reviewing the statutory standard, we apply a substantial evidence standard to review
5 the sufficiency of the evidence at trial." Chavez, 2009-NMSC-035,, 11.
6 {12} In relevant part, the distribution of child pornography statute provides that
7 [i]t is unlawful for a person to intentionally distribute any obscene 8 visual or print medium depicting any prohibited sexual act or 9 simulation of such an act if that person knows or has reason to know 10 that the obscene medium depicts any prohibited sexual act or simulation 11 of such act and if that person knows or has reason to know that one or 12 more of the participants in that act is a child under eighteen years of 13 age.
14 Section 30-6A-3(B). In reaching its decision, the district court determined that
15 general criminal intent, see UJI 14-141 NMRA, was sufficient to establish that
16 Defendant "intentionally distributed" child pornography under Section 30-6A-3(B).
17 {13} Our appellate courts have not addressed the intent necessary to sustain a
18 conviction for intentional distribution of child pornography under Section 30-6A
19 3(8). Defendant urges this Court to adopt the analysis found in.State v. Granillo,
20 2016-NMCA-094, 384 P.3d 1121, and determine that general crimin1;1.l intent is
21 insufficient to convict under the statute. The State responds that general criminal
22 intent suffices and that the evidence at trial proved beyond a reasonable doubt that
23 Defendant acted with the requisite intent. For the following reasons, we conclude
6
1 the analysis in Granillo is not applicable to the statute at issue in this case and that
2 general criminal intent is sufficient to convict under Section 30-6A-3(B).
3 {14} In Granillo, 2016-NMCA-094, 11, this Court construed the mens rea for the
4 crime of intentional child abuse by endangerment, as prohibited by NMSA 1978,
5 Section 30-6-l(D)(l) (2009). Under that statute, "[t]he Legislature established three
6 specific mental states by which a-person may commit child abuse by endangerment:
7 intentionally, knowingly, and recklessly." Granillo, 2016-NMCA-094, 1 13. "[The
8 d]efendant was charged only with intentional child ab~se by endangerment." Id
9 Noting that the statute did not define "intentionally," this Court described the
10 confusion that has arisen from the common-law classification of crimes as requiring
11 either "specific intent" or "general intent." Id. 11 14-15. We then looked to the Model
12 Penal Code, which provided an alternative to the common-law dichotomy by
13 defining "four specific culpable states of mind: purposely, knowingly, recklessly,
14 and negligently." Id 115.
15 {15} . This Court reasoned that the tiered mens rea structure of Section 3 0-6-1 (D )( 1)
16 "leans away from the common law approach, and instead, is more consistent with
/ 17 the approach of the Model Penal Code." Granillo, 2016-NMCA-094, 115. Under
18 the Model Penal Code, "[a] person acts purposely (intentionally)-... if it is the
19 person's conscious object to engage in conduct of that nature or to cause,such a
20 result." Id. 1 16 (internal quotation marks and citation omitted). Based on that
7
1 definition, this Court looked to the social hann targeted by the statute and concluded
2 that the proscribed· social hann was not conduct but a result-the endangering of a
3 child. Id. ,r 17. Therefore,
4 5 6 7 8 9 10
because the Legislature has provided heightened mens reas in a tiered structure, the definitions of an intentional mental state from the Model Penal Code and other jurisdictions require a conscious objective to cause the proscribed social hann, and the social hann proscribed by the Legislature is the result of endangering a child, we [held] that the mens rea for intentional child abuse by endangennent requires a conscious objective to endanger a child.
11 Id ,r 21.
12 {16} Unlike the child abuse by endangennent statute, the Legislature has not
13 provided a tiered mens rea in Section 30-6A-3(B). Therefore, we cannot say that the
14 structure of Section 30-6A-3(B) "leans away from the common law approach."
15 Granillo, 2016-NMCA-094, ,r 15. For that reason, we do not believe Granillo's
16 analysis is controlling here. Rather, under the common law,
17 18 19 20 21 22 23
[w ]hen the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a further consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be general criminal· intent. When the definition refers to [the] defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.
24 State v. Bender, 1978-NMSC-044, ,r 7, 91 N.M. 670, 579 P.2d 796 (internal
25 quotation marks and citation omitted). Here, the statute defining the crime of
26 distribution of child pornography only describes a particular act and does not include
8
1 an intent to do a further act or achieve a further consequence. Therefore, we hold
2 that Section 30-6A-3(B) requires only general criminal intent-"purposely do[ing]
3 an act which the law declares to be a crime." UJI 14-141.
4 {17} Our conclusion is consistent with our analyses of other statutes that also use
5 ''intentionally." For example, in State v. Wilson, 2010-NMCA-018, ,, 6-13, 147
6 N.M. 706, 228 P.3d 490, we analyzed the sufficiency of the evidence supporting a
7 conviction under NMSA 1978, Section 30-31-20(B) (2006), which makes it a crime
8 to "intentionally traffic" a controlled substance. We stated, " 'Intentional' refers to
9 general criminal intent, the requirement that a defendant generally intend to commit
10 the act." Wilson, 2010-NMCA-018,, 11 (citing UJI 14-141).
11 {18} Similarly, in State v. Haar, 1990-NMCA-076, ,, 12-14, 110 N.M. 517, 797
12 P.2d 306, we analyzed the sufficiency of the evidence supporting a conviction under
13 NMSA 1978, Section 30-15-1 (1963), which defines criminal damage to property as
14 "intentionally damaging any real or personal property of another without the consent
15 of. the owner of the property." We concluded that because "the subject statute
16 describes a particular act, without regard to intent to do anything further, all that is
17 required is a general intent to do the proscribed act." Haar, 1990-NMCA-076,, 12.
18 {19} We reached the same conclusion in State v. Romero, 1985-NMCA-09(5, ,, 5
19 20, 103 N.M. 532, 710 P.2d 99, wherein we analyzed NMSA 1978, Section 30-9-14
20 (1975, amended 1996), which defined indecent exposure as "a person knowingly
9
1 and intentionally exposing his primary genital area to public view." We noted that
2 "it is not necessary that the exposure be made with the intent that some particular
3 person see it, but only that the exposure be made where it is subject to being viewed
4 by a person or persons which the law seeks to protect from exposure to such lewd
5 conduct." Romero, 1985-NMCA-096,, 16.
6 {20} Although Defendant's sole sufficiency argument is premised on the notion
7 that general criminal intent is legally insufficient to support a conviction under
8 Section 30-6A-3(B), which we have rejected, we nevertheless address the
9 sufficiency of the evidence of Defendant's intent. "The test for sufficiency of the
10 evidence is whether substantial evidence of either a direct or circumstantial nature
11 exists to support a verdict of guilty beyond a reasonable doubt with respect to every
12 element essential to a conviction." State v. Montoya, 2015-NMSC-010, , 52, 345
13 P.3d 1056 (internal quotation marks and citation omitted). "[S]ubstantial evidence
14 means such relevant evidence as a reasonable mind might accept as adequate to
. 15 support a conclusion[.]" State v. Salgado, 1999-NMSC-008, , 25, 126 N.M. 691,
16 974 P .2d 661 (internal quotation marks and citation omitted). "In reviewing the
17 sufficiency of the evidence, we must view the evidence in the light most favorable
18 to the guilty verdict, indulging all reasonable inferences and resolving all conflicts
19 in the evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009,
20 , 26, 128 N.M. 71 l~ 998 P.2d 176.
10
1 {21} "The element of general criminal intent is satisfied if the [s]tate can
2 demonstrate beyond a reasonable doubt that the accused purposely performed the
3 act in question." State v. Gonzalez, 2005-NMCA-031, ,-r 23, 137 N.M. 107, 107 P.3d
4 547 (alterations, internal quotation marks, and citation omitted); see UJI 14-141.
5 Here, the evidence established that Defendant downloaded a peer-to-peer, file
6 sharing network and acJmowledged he was familiar with file-sharing networks. For
7 over five years, Defendant used such networks to access child pornography.
8 Defendant used a network that required sharing in order to continue accessing files.
9 Defendant kept files containing child pornography in his shared folder, which were
10 accessible to others on the network. Defendant confirmed that he was sharing, but
11 denied that he was distributing. We believe this is a distinction without a difference
12 because Defendant's "sharing" allowed other users of the Ares peer-to-peer, file
13 sharing network unfettered access to the images contained in his shared folder while
14 he was connected to the network. See Merriam-Webster Dictionary,
15 https://www.merriam-webster.com/dictionary/share (last visited Jun. 11, 2019)
16 ( defining "share," in relevant part, as "to distribute on the Internet"). Based on the
17 evidence presented at trial, we conclude that the State presented substantial evidence
18 that Defendant acted with the requisite intent.
11
1 II. Defendant's Multiple Convictions for Distribution Violate Double 2 Jeopardy
3 {22} The district court convicted Defendant of eight counts of distribution of child
4 pornography, in viola~ion of Section 30-6A-3(B). Defendant argues, and the State
5 concedes, that State v. Sena, 2016-NMCA-062, 376 P.3d 887, requires us to vacate
6 all but one count. While we are not bound by the State's concession, State v. Tapia,
7 2015-NMCA-048, , 31, 347 P.3d 738, we accept that concession as supported by
8 controlling precedent.
9 {23} We review Defendant's double jeopardy claim de novo. See State v. Bernal,
10 2006-NMSC .. 0_50,, 6, 140 N.M. 644, 146 P.3d 289 ("A double jeopardy claim is a
11 question of law that we review de novo."). "The constitution protects against both
12 successive prosecutions and multiple punishments for the same offense." State v.
13 Sena, 2018-NMCA-037, , 35, 419 P.3d 1240; see U.S. Const. amend. V; N.M.
14 Const. art. II, § 15. Defendant raises a unit-of-prosecution claim, "in which an
15 individual is convicted of multiple violations of the same criminal statute." Bernal,
16 2006-NMSC-050, , 7. "For unit-of-prosecution challenges, the only basis for
17 dismissal is proof that a suspect is charged with more counts of the same statutory
·18 crime than is statutorily authorized." Id., 13.
19 {24} In Sena, the defendant obtained child pornography images through peer-to
20 peer software and stored those images on his computer in a shared file that allowed
21 other users of the software to download the images contained therein. 2016-NMCA
12
1 062, ,r 3. Using peer-to-peer software, an officer monitoring child pornography on
2 the internet located and downloaded three separate child pornography images from
3 the defendant's shared folder. Id. Almost two weeks later, the officer again used the
4 detection software to ~ownload another seven separate child pornography images
5 from the defendant's shared folder. Id. The defendant entered a conditional guilty ! .
6 plea to ten counts of distribution of child pornography that allowed him to appeal
7 the issue of whether double jeopardy principles prohibited multiple convictions for
8 distribution of child pornography. Id ,r 4. We concluded that the defendant could
9 only be convicted of one count of distribution of child pornography.4 Id. ,r,r 13-19.
10 {25} The Legislature has yet to amend the distribution of child pornography statute
11 to address the ambiguity in the unit of prosecution we identified in Sena. ,r,r· 16-17.
12 Therefore, under the facts and circumstances of this case, we hold that Defendant's
13 eight convictions violate double jeopardy and must be reduced to a single conviction.
Outcome: We hold that general criminal intent is the mens rea for distribution of child
17 pornography under Section 30-6A-3(B). We remand to the district court with instructions to vacate seven of Defendant's eight convictions for distribution of child Pornography
Plaintiff's Experts:
Defendant's Experts:
Comments: