State v. Rael

495 P.3d 598

STATE of New Mexico, Plaintiff-Appellee,

v.David RAEL, Defendant-Appellant.

No. A-1-CA-37066

Court of Appeals of New Mexico.

Filing Date: April 7, 2020

Certiorari Granted, June 5, 2020, No. S-1-SC-38300

Hector H. Balderas, Attorney General, Santa Fe, NM, Margaret Crabb, Assistant Attorney General, Albuquerque, NM, for Appellee

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

BOGARDUS, Judge.

{1} Defendant David Rael appeals from his conviction following a bench trial of one count of sexual exploitation of children (possession), contrary to NMSA 1978, Section 30-6A-3(A) (2007, amended 2016) ; one count of sexual exploitation of children (distribution), contrary to Section 30-6A-3(B) ; and three counts of sexual exploitation of children (manufacture), contrary to Section 30-6A-3(D).¹ Defendant requests that we clarify what is necessary to convict for each of those crimes and also challenges the sufficiency of the evidence supporting each of his convictions. We accept Defendant's invitation to clarify what the State must prove to obtain a conviction for each crime. With that framework in place, we conclude that all of Defendant's convictions must be reversed due to insufficient evidence.

BACKGROUND

{2} At trial, Special Agent Owen Peña with the New Mexico Internet Crimes Against Children Task Force was qualified as an expert in peer-to-peer investigations. Agent Peña explained that he operates a program that searches peer-to-peer, file-sharing networks for internet protocol (IP) addresses geolocated in New Mexico that are willing to share files identified as sexual exploitation of children material (SECM).² The files are identified as SECM based on a database of known hash values, which are like fingerprints for each file.

{3} On June 23, 2013, Agent Peña testified that his program identified an IP address in New Mexico that was willing to share SECM. Agent Peña's program then made a connection to that IP address and was able to successfully complete a single-source download of one video containing SECM. This video was referred to at trial as "Black Gay Man" based on the video's title. Agent Peña's download of this file constituted the basis for Defendant's charge for sexual exploitation of children by distribution.

{4} After downloading that file, Agent Peña testified that he was able to determine that the IP address shared the video through DownloadHQ, a version of the Ares peer-to-peer, file-sharing program.³ Agent Peña obtained a grand jury subpoena that allowed him to obtain subscriber information for the IP address from which he downloaded the SECM. He then forwarded that information to Commander Oliver Morris⁴ with the Los Alamos Police Department.

{5} Commander Morris testified that the information obtained by Agent Peña identified the subscriber of the IP address as "David Rael" and provided a physical address associated with the IP address. Commander Morris testified that he obtained a search warrant for the physical address, which he, Agent Peña, Special Agent Lance Fails, and Detective Daniel Roberts executed the day after it was issued. During the search, law enforcement seized a Gateway computer and a Toshiba external hard drive from Defendant's bedroom.

{6} Agent Peña testified that, when the search warrant was executed, DownloadHQ was up and running on the Gateway computer and showed active searches for "teen sex" and "extreme sex." Agent Fails testified that he used OS Triage, a program that allows law enforcement to do an onsite, cursory preview of the data on a computer—in this case, the Gateway computer. Agent Peña testified that when OS Triage was looking for terms that may be related to SECM it found a keyword of "young."

{7} During the investigation pursuant to the search warrant, Defendant agreed to be interviewed by Commander Morris and Agent Peña. Defendant was not under arrest at the time and signed a Miranda waiver form before agreeing to be questioned. The video-recorded interview was conducted at the Los Alamos Police Department. The video recording of Defendant's interview was admitted into evidence without objection.

{8} Defendant admitted to the following during the interview: Defendant downloaded DownloadHQ between two years and two and one-half years before the interview. Defendant left his computer and DownloadHQ running all the time. Defendant understood that DownloadHQ shares files. DownloadHQ warned about downloading illegal files, and Defendant knew that SECM was illegal. Defendant used search terms on DownloadHQ that included "chick" or "hot chicks"; "sex"; "XXX movies" or "movies XXX"; "teen"; "Hustler magazine"; and "lingerie." Searches for "XXX movies" sometimes returned results that included SECM. Defendant described the beginning of two videos containing SECM that he had seen⁵ but maintained that he would delete any SECM if and when he would see it. While he recalled seeing the name of the file referred to at trial as "KitKatClub," Defendant described the file as adult pornography. Defendant also admitted to using CCleaner, an anti-forensic program, daily to clean his computer's internet cache and registry.

{9} After Defendant's interview and the execution of the search warrant, Defendant's Gateway computer and Toshiba external hard drive were taken to the Regional Computer Forensics Lab for forensic analysis. Qualified as an expert in computer forensics, Detective Christopher Brown, assigned to the Regional Computer Forensics Lab as a forensic examiner, testified regarding his examination of the hard drive of the Gateway computer and the Toshiba external hard drive.

{10} Detective Brown testified that the video file referred to at trial as "Alicia" was found in two locations on the Toshiba external hard drive and each copy had a unique date of creation. Detective Brown then testified that the video referred to at trial as "LS" was found on the Toshiba external hard drive and artifacts of the video were also found on the hard drive from the Gateway computer. As to the video referred to at trial as "Kimmy," Detective Brown testified that it was found in two different locations on the Toshiba external hard drive and each copy had a unique date of creation. These videos constituted the basis for Defendant's three charges for sexual exploitation of children by manufacture.

{11} Detective Brown testified that he was unable to locate the "Black Gay Man" video that Agent Peña had downloaded on either the hard drive from the Gateway computer or the Toshiba external hard drive. Detective Brown explained that the file could have been deleted and overwritten or could have been deleted and an anti-forensic program run to remove traces of the file. Supporting Defendant's charge of sexual exploitation of children by possession, Detective Brown testified that he found the "KitKatClub" video on the hard drive from the Gateway computer.

{12} Detective Brown further testified that he found evidence indicating that the Gateway computer was Defendant's and that the Toshiba external hard drive had been connected to the Gateway computer at some point. Detective Brown testified that based on his analysis of the Windows Prefetch, CCleaner had been run many times, including recently. Detective Brown testified that CCleaner was set up to remove the search term history of a standard DownloadHQ install. Nevertheless, Detective Brown testified that he found many pornography search terms on Defendant's DownloadHQ software, including "XXX," "young cheerleaders," and "teen sex." Detective Brown testified that none of the search terms were specifically indicative of searches for SECM.

{13} Defendant moved for a directed verdict at the close of the State's case, arguing that the State had failed to provide sufficient evidence that he acted with the requisite intent. After hearing argument, the district court denied Defendant's motion. Defendant did not testify on his own behalf, but did call Steven Gary Burgess, who was qualified as an expert in computer forensics.

{14} Mr. Burgess testified that he used a number of forensic programs, programs from the Microsoft Office suite, and various media players to analyze the information on the hard drive of the Gateway computer and Toshiba external hard drive. Using those programs, Mr. Burgess testified that he was able to identify 11,000 DownloadHQ search terms that were initiated by the user of the Gateway computer. Mr. Burgess further testified that he was able to identify numerous other web browser searches outside of DownloadHQ. None of the search terms found on either DownloadHQ or the web browser matched any of the pedophilic search terms that Mr. Burgess searched for, which included the pedophilic terms contained in the names of the videos themselves.

{15} Mr. Burgess further testified that it is possible to download a bunch of files from DownloadHQ without knowing what is contained in the files. Mr. Burgess then testified that it is possible for a user to back up data in a similar process without selecting individual files. Mr. Burgess opined that it appeared that the instances where there were multiple copies of a video containing SECM, it was the result of backup procedures that did not require selection of individual files. Mr. Burgess testified that there was nothing in his review to indicate that the videos that were the bases of Defendant's charges had been viewed.

{16} As to Defendant's use of CCleaner, Mr. Burgess testified that he did not find any evidence proving that CCleaner had been used since 2012. But, Mr. Burgess did testify that he saw a modification date during the morning that the police were executing the search warrant which lead him to opine that, if CCleaner had been used, it was while the police were present. Mr. Burgess further testified that the CCleaner on Defendant's computer was not set to securely delete data but rather to only delete data, which meant...