State v. Liebowitz

1

STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRYAN LIEBOWITZ, Defendant-Appellant.

No. A-1-CA-40702

Court of Appeals of New Mexico

October 1, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY Shannon Murdock District Court Judge

Raúl Torrez, Attorney General Santa Fe, NM Peter James O'Connor, Assistant Solicitor General Albuquerque, NM for Appellee

Harrison & Hart, LLC Nicholas T. Hart Albuquerque, NM for Appellant

MEMORANDUM OPINION

JACQUELINE R. MEDINA, JUDGE

{¶1} Defendant Bryan Liebowitz appeals his conviction of sexual exploitation of children (possession), contrary to NMSA 1978, Section 30-6A-3(A) (1984, as amended through 2016). On appeal, Defendant argues (1) the district court committed fundamental error by failing to provide the jury with the definition of "possession"; and (2) the evidence was insufficient to support a finding that he "possessed" child pornography on his school-issued laptop and network file. For the reasons that follow, we affirm.

BACKGROUND

{¶2} The following facts were presented during Defendant's trial. Defendant worked as a mechanic for the Truth or Consequences School District from 2014 to 2017. Defendant kept his school-issued laptop on a desk in a common area of the school mechanic facility. Defendant used the laptop to look up parts, prices, and wiring diagrams in order to fix busses. Defendant testified that he saved his username and password in the laptop so it would be easier to login. Bus drivers and school employees also used Defendant's laptop and according to Defendant, others used his saved login credentials.

{¶3} In September 2017, John Adkins, an educational assistant in the school computer lab, found child pornography videos in a shared media file labeled "BLiebowitz." Adkins explained that he clicked on a shared media device with the name "B.Liebowitz", and saw another folder with videos, some of which were inappropriate. Adkins believed others could only view the material in the folder, although he was not certain.

{¶4} Mike Torres, IT director for the school district accessed Defendant's laptop on the shared network and located several child pornography videos. When asked whether any of the users at the school who had access to the shared file were capable of placing items into the file, Torres testified that he did not know because he could not recall if the shared file was "read-only." The matter was reported to law enforcement.

{¶5} Alex Rodriguez, a forensic examiner, performed a forensic diagnostic review of Defendant's laptop and found over 500 child pornography videos, of mostly children younger than thirteen years old, in Defendant's download folder. Rodriguez testified that there were five or six user accounts on Defendant's laptop. However, the child pornography files were only being accessed and bookmarked by Defendant's user account. Rodriguez additionally testified that the child pornography had been downloaded between 2016 and 2017. Before 2016, child pornography was not present on Defendant's account. Rodriguez testified that one particular child pornography video was accessed on December 14, 2016, and again in June 13, 2017.

{¶6} Defendant testified that he never saw child pornography files on his laptop and as far as he knew, there were no such files on his laptop. Defendant additionally testified that he could not override the firewall that precluded people from downloading pornography. However, Torres testified that "all employees . . . had the ability to override the [firewall] filter."

{¶7} David Dow testified as an expert in computers and computer science on behalf of Defendant. Dow testified that he did not inspect Defendant's laptop, and "without actually being on [Defendant's laptop] and running . . . tools to . . . figure out what was on [the laptop]," he did not know if it contained malware.

{¶8} Relevant to this appeal, the district court instructed the jury on the elements of sexual exploitation of children (possession) along with a general intent instruction. Defendant did not request that the district court provide the jury with the definition of "possession" as provided in UJI 14-130 NMRA. The jury convicted Defendant of sexual exploitation of children (possession). This appeal followed.

DISCUSSION

I. Sufficient Evidence Supports Defendant's Conviction for Sexual Exploitation of Children (Possession)

{¶9} Defendant argues there was insufficient evidence to support his conviction for sexual exploitation of children (possession). Evidence is sufficient to sustain a conviction when there exists "substantial evidence of either a direct or circumstantial nature . . . to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation omitted). We "view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

{¶10} The district court instructed the jury on the elements of sexual exploitation of children in part as follows:

For you to find [D]efendant guilty of sexual exploitation of children (possession) as charged in Count 3, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. [D]efendant intentionally possessed a visual or print medium[;]

2. The medium depicts a prohibited sexual act;

3. [D]efendant knew or had reason to know that medium depicts prohibited sexual act;

4. [D]efendant knew or had reason to know that one or more of the participants in the act is a child under eighteen years of age.

This instruction tracks the approved uniform jury instruction containing the statutory elements for sexual exploitation of children. See UJI 14-131; see also § 30-6A-3(A) ("It is unlawful for any person to intentionally possess any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts any prohibited sexual act or simulation of such act and if that person knows or has reason to know that one or more of the participants in that act is a child under eighteen years of age."); State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (recognizing that "[j]ury instructions become the law of the case against which the sufficiency of the evidence is to be measured").

{¶11} Defendant does not dispute that child pornography was found on his school-issued laptop. Instead, Defendant challenges the sufficiency of the evidence with respect to whether he "intentionally possessed" the child pornography on his laptop. In particular, Defendant claims there was no evidence demonstrating that he knew child pornography was on the laptop issued to him and in the files identified with his name or that he accessed or controlled the folder and files containing child pornography.

{¶12} We agree with the State that it presented sufficient evidence demonstrating that Defendant intentionally possessed the child pornography found on his laptop. The evidence showed that Defendant worked for the school district during the time over 500 child pornography videos were downloaded and discovered in his download folder within a shared media file when one particular child pornography video was accessed. This was the same laptop Defendant used to look up parts, prices, and diagrams in order to perform maintenance and repair (to do his job). Although there were five or six user accounts on Defendant's laptop, only Defendant's account accessed and bookmarked the child pornography.

{¶13} The State presented evidence showing that the application for the download folder was configured to show a thumbnail or screenshot of the content of the child pornography videos and that the file names were "indicative of suspected child pornography."0F^[1] In addition, the evidence revealed that Defendant's download folder also contained nonchild pornography files with some of those files having been deleted. Finally, the State's expert witness who examined Defendant's laptop, testified that he saw no evidence that a computer bot downloaded child pornography on Defendant's laptop.

{¶14} From this evidence, a reasonable jury could infer that between 2016 and 2017, Defendant knowingly possessed child pornography on his laptop because each time he retrieved saved work files from his download folder, he would see thumbnails with screen shots of over 500 child pornography videos and thumbnail file names which were indicative of suspected child pornography. Based on this evidence, it was reasonable for the jury not to credit Defendant's claim that he never saw child pornography files on his laptop and did not know such files were on his laptop. See State v. Smith,___ -NMCA-___, ¶ 1,___ P.3d ___, (A-1-CA-40717, August 13, 2024) (recognizing that "[d]etermining the credibility of witnesses at trial is a core function of the jury").

{¶15} Additionally, the...