State v. Rael

1

STATE OF NEW MEXICO, Plaintiff-Petitioner, v. DAVID RAEL, Defendant-Respondent.

No. S-1-SC-38300

Supreme Court of New Mexico

March 4, 2024

ORIGINAL PROCEEDING OF CERTIORARI Mary L. Marlowe Sommer District Judge

Hector H. Balderas, Attorney General Marko David Hananel, Assistant Attorney General Santa Fe, NM for Petitioner

Bennett J. Baur, Chief Public Defender Caitlin C.M. Smith Assistant Appellate Defender Santa Fe, NM for Appellee

OPINION

MICHAEL E. VIGIL, JUSTICE

{¶1} This appeal arises from a prosecution under the Sexual Exploitation of Children Act (the Act), NMSA 1978, §§ 30-6A-1 to -4 (1984, as amended through 2016), legislation that this Court previously forecast would create its fair share of interpretative issues. See State v. Myers, 2011-NMSC-028, ¶¶ 1, 19, 150 N.M. 1, 256 P.3d 13 (stating that determining "the meaning of certain elements of the Act and applying the elements to differing fact situations" would prove "challeng[ing to] our courts"). We first discuss the relevant statutory provisions, as this sets the stage for our analysis and conclusions.

{¶2} Pornography is defined as a prohibited sexual act^[1] which is depicted on a visual or print medium^[2] and is obscene.^[3] Black's Law Dictionary (11th ed. 2019) 1405 (defining pornography). When a child under eighteen years of age is depicted, it is child pornography. See id. Consistent with the purpose of the Act to protect children from "the harm to the child that flows from trespasses against the child's dignity when treated as a sexual object," State v. Myers, 2009-NMSC-016, ¶ 17, 146 N.M. 128, 207 P.3d 1105 (internal quotation marks and citation omitted), Section 30-6A-3 makes it a crime to possess, distribute, or manufacture child pornography.^[4] {¶3} Section 30-6A-3(A) criminalizes the possession of child pornography, as a fourth-degree felony, and Section 30-6A-3(C) criminalizes the distribution of child pornography, as a third-degree felony. In identical language, these two subsections make it a crime to "intentionally possess" or "intentionally distribute" pornography

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.

Section 30-6A-3(A), (C) (emphases added).

{¶4} The most serious of the child pornography crimes is found in Section 30-6A-3(E), which provides that it is a second-degree felony to manufacture child pornography. Section 30-6A-3(E) provides, in pertinent part,

It is unlawful for a person to intentionally manufacture any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age.

The Act elsewhere broadly defines the term "manufacture" to mean "the production, processing, copying by any means, printing, packaging or repackaging of any [prohibited] visual or print medium." Section 30-6A-2(D).

{¶5} The statutory element "knows or has reason to know," which is required for possession and distribution, is not an element of manufacturing. The absence of this element makes for the core issue in this case: under the Act, what is the statutory mental state or mens rea requirement for manufacturing? The Court of Appeals engrafted the "knows or has reason to know" element onto the crime of manufacturing child pornography. State v. Rael, 2021-NMCA-040, ¶ 32, 495 P.3d 598. We reject this construction of Section 30-6A-3(E) and hold that the mens rea for manufacturing child pornography consists of "intentionally" manufacturing pornography that "intentionally" depicts a child under eighteen years of age and that in fact depicts a child that is under eighteen years of age. See § 30-6A-3(E).

{¶6} The Court of Appeals also held that the State presented insufficient evidence of Defendant's mens rea to support Defendant's convictions. Rael, 2021-NMCA-040, ¶¶ 41-51. We disagree with this conclusion as well.

{¶7} Accordingly, we reverse the Court of Appeals and reinstate Defendant's convictions.

I. BACKGROUND

A. Factual Background and District Court

{¶8} Defendant was initially charged in a criminal information filed in the district court with four counts of manufacturing child pornography, one count of distributing child pornography, and one count of possession of child pornography. One count of manufacturing child pornography was dismissed at the start of the trial, and the trial went to the district court in a bench trial without a jury. After the bench trial the district court filed findings of fact and conclusions of law, concluding that the "State proved beyond a reasonable doubt Defendant's guilt" of all remaining charges. Defendant was sentenced to a total of thirty-one and one-half years, with all counts to run concurrently, resulting in an actual sentence of nine years in the Department of Corrections.

{¶9} The evidence presented was as follows. The New Mexico Attorney General's Office operates the New Mexico Internet Crimes Against Children Task Force (the Task Force). Special Agent Owen Peña works for the Task Force and testified that the Task Force conducts undercover online investigations of peer-to-peer, file-sharing networks. He was qualified by the court as an expert witness in peer-to-peer investigations and testified as follows.

{¶10} Peer-to-peer, file-sharing networks allow people to share files with others on the same network, with each computer in the network serving as both a terminal to download materials and as a server for other computers to download materials. Such networks are popular and legal except when they are used for the illegal distribution of materials such as child pornography. To use a file-sharing network, the user must download the file-sharing software-relevant here is DownloadHQ-and then share files to continue accessing the network.^[5] When accessing files, DownloadHQ has a preview window that allows users to view, or watch, a portion of the video file before selecting which files to download.

{¶11} When conducting investigations, the Task Force uses specialized software to search the file-sharing networks and locate individuals sharing child pornography. This is accomplished by using common search terms to locate suspected child pornography files and then comparing a suspected file's "hash values" to those of known child pornography files in a database. See State v. Knight, 2019-NMCA-060, ¶ 4, 450 P.3d 462 ("[H]ash values . . . are alphanumeric values assigned to every unique file."). Once confirmed that a suspected file contains hash values matching known child pornography, the software then selects the user sharing the content and determines the Internet Protocol (IP) address and general geographic location.

{¶12} Special Agent Peña testified that while he was conducting an investigation, the software identified an IP address in New Mexico sharing files with hash values matching potential child pornography. The IP address belonged to Defendant. Special Agent Peña detailed how he made a direct connection to Defendant's computer, browsed the files listed in Defendant's shared files folder, and downloaded one of the files. The downloaded file was named "(pthc)black gay man fucking a 13 year old boy (hot!!)" ("thirteen-year-old-boy" video). According to Special Agent Peña, the acronym "pthc" in the file name stands for "pre-teen hardcore." Special Agent Peña reviewed the downloaded file and confirmed it was child pornography. Defendant later stipulated at trial that the "thirteen-year-old-boy" video contains "prohibited sexual acts as defined in Section 30-6A-2(A)(1)" and is "obscene as that term is defined in Section 30-6A-2(E)."

{¶13} Special Agent Peña obtained a grand jury subpoena allowing him to get subscriber information for the IP address. He forwarded that information to Sergeant (now Commander) Oliver Morris of the Los Alamos Police Department who determined that Defendant's physical address was associated with the IP address. Commander Morris then obtained a search warrant which he executed with Special Agent Peña. During the search, a Gateway computer and a Toshiba external hard drive were seized from Defendant's bedroom.

{¶14} Special Agent Peña testified that during the execution of the search warrant, the Gateway computer had DownloadHQ running, and searches for "teen sex" and "extreme sex" were active. Special Agent Peña further testified that the username for the DownloadHQ account on the computer was the same username Defendant previously used to download the "thirteen-year-old-boy" video. He explained that when Defendant downloaded files, they were directed to the C.drive "downloads" folder in the Gateway computer instead of the default DownloadHQ folder. Defendant therefore knew where the downloaded files were stored since he changed where the downloads were automatically directed. Special Agent Peña added that Defendant modified the software settings so that, using the software, he could make five uploads and fifteen downloads at once. Finally, Special Agent Peña testified that when OS Triage-a program that allows law enforcement to do an onsite preview of the data on a computer-was run on the Gateway computer, it showed several child pornography related searches in the browser history and that the search-term keyword "young" had been used.

{¶15} After the search warrant was executed, Defendant agreed to an interview with Commander Morris and Special Agent Peña at the Los Alamos Police Department. Before the interview Defendant stated he understood his Miranda rights and signed a Miranda waiver form. The...