State v. Olsson and Ballard

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: __________

Filing Date: April 21, 2014

Docket No. 33,226

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

JAMES MICHAEL OLSSON,

Defendant-Petitioner.

Consolidated with:

Docket No. 33,565

STATE OF NEW MEXICO,

Plaintiff-Petitioner and
Cross-Respondent,

v.

WILLARD BALLARD,

Defendant-Respondent and
Cross-Petitioner.

ORIGINAL PROCEEDINGS ON CERTIORARI
Teddy L. Hartley and Stephen K. Quinn, District Judges

Jorge A. Alvarado, Chief Public Defender
Nina Lalevic, Assistant Public Defender
Santa Fe, NM

for Petitioner James Michael Olsson

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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23, 2011) (non-precedential) and State v. Ballard, 2012-NMCA-043, 276 P.3d 976.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 HISTORY

A. 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

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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 Appeals
on 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. 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. 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

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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.

{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 (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. 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

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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 review questions
of law de novo.” (citations omitted)).

III. DISCUSSION

A. The plain meaning of the statutory language is ambiguous

{15} The State argues that the plain meaning of the statute indicates a legislative intent to
create multiple units of prosecution. Specifically, the Legislature’s use of the word “any” in
conjunction with singular words, such as “obscene visual or print medium” and “prohibited
sexual act,” creates a presumption of multiple units of prosecution.

{16} Olsson argues that the use of “visual or print medium” in Section 30-6A-3(A)
indicates a clear legislative intent not to punish per child depicted but rather the broader act
of possessing the medium as defined. Olsson asserts that should the Court determine that the
act of possession is the unit of prosecution, then the Herron factors are not relevant and the
Court should look to analyzing the act of possessing child pornography by analogy to
analyzing the act of possessing drugs. Olsson urges that the proscribed item in Section 30-
6A-3(A) is “any obscene visual or print medium depicting any prohibited sexual act.” Olsson
argues that because the intent to possess is generalized to an entire collection, the act of
possessing the proscribed item is the unit of prosecution.

{17} Ballard argues that the definition of “visual or print medium” in Section 30-6A-
2(B)(1) includes exactly what he possessed, a “computer diskette.” Ballard asserts that
singular terms like “image” and “depiction” are notably missing from Subsection (B). Thus
Ballard argues that the unit of prosecution is defined by the medium, not the number of acts
the medium depicts, because otherwise a film depicting multiple acts would support multiple
counts, even though a film is, by the statute’s own definition, a single medium. Ballard
contends that, because the various visual or print media listed in Section 30-6A-2(B) include
both single-image media and collection-type media, the unit of prosecution is
insurmountably ambiguous and this Court must focus on a defendant’s conduct to decide
what the Legislature intended. Finally, Ballard agrees with the State that the word “any” may

5
help identify the proscribed item. However, Ballard insists that the State exaggerates the
term’s usefulness and misguidedly relies on out-of-state cases to argue that “any” implicates
multiple units of prosecution because all of the statutory language cited is distinguishable
from New Mexico’s statutory language.

{18} “The relevant inquiry in [a unit of prosecution case] is whether the legislature
intended punishment for the entire course of conduct or for each discrete act.” Swafford v.
State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223. The plain language of the statute
is the primary indicator of legislative intent. See Whitely v. N.M. State Pers. Bd.,
1993-NMSC-019, ¶ 5, 115 N.M. 308, 850 P.2d 1011. This analysis requires courts to
determine the unit of prosecution intended by the Legislature by employing a two-part test.
State v. Gallegos, 2011-NMSC-027, ¶ 31, 149 N.M. 704, 254 P.3d 655. First, courts must
analyze the statute to determine whether the Legislature has defined the unit of prosecution
and, if the statute spells out the unit of prosecution, then the court follows that language and
the inquiry is complete. State v. Swick, 2012-NMSC-018, ¶ 33, 279 P.3d 747. If the unit of
prosecution is not clear from the statutory language, courts must “determine whether a
defendant’s acts are separated by sufficient ‘indicia of distinctness’ to justify multiple
punishments.” Gallegos, 2011-NMSC-027, ¶ 31 (internal quotation marks and citations
omitted). Even when analyzing the indicia of distinctness courts are guided by the “language,
history, purpose, as well as the quantum of punishment that is prescribed.” Id. ¶ 33. If there
is no distinctness to the acts charged, then the rule of lenity applies, meaning “doubt will be
resolved against turning a single transaction into multiple offenses.” Herron, 1991-NMSC-
012, ¶ 14 (internal quotation marks and citation omitted).

{19} Section 30-6A-3(A) provides that:

It is unlawful for a 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. A person who violates the provisions
of this subsection is guilty of a fourth degree felony.

The definition of “visual or print medium” includes:

(1) any film, photograph, negative, slide, computer diskette,
videotape, videodisc or any computer or electronically generated imagery; or
(2) any book, magazine or other form of publication or
photographic reproduction containing or incorporating any film, photograph,
negative, slide, computer diskette, videotape, videodisc or any computer
generated or electronically generated imagery.

§ 30-6A-2(B)(1), (2).

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{20} Subsections (B)(1) and (B)(2) of Section 30-6A-2 address possession of individual items
of visual media, such as a photograph or a slide, as well as items that could contain multiple
individual images, such as a film or a computer diskette. However, the statute is unclear whether
individual photographs contained in a scrapbook can be charged collectively or separately, and
whether certain types of collections might fit one subsection but not the other. See Ballard,
2012-NMCA-043, ¶ 24.

{21} Moreover, the use of the word “any” in the statute only compounds the ambiguity. The
State cites cases that interpret statutes of other states as allowing multiple units of prosecution
when using “any” with singular nouns. See, e.g., United States v. Snyder, 189 F.3d 640, 647 (7th
Cir. 1999); Fink v. State, 817 A.2d 781, 787-88 (Del. 2003); Williams v. Commonwealth, 178
S.W.3d 491, 494-95 (Ky. 2005); Commonwealth v. Dingle, 898 N.E.2d 1, 9 n.10 (Mass. App.
Ct. 2008). However, Olsson and Ballard adequately distinguish those statutes by legislative
intent or context, or cite states whose statutes indicate a single unit of prosecution using the same
language. See, e.g., Mason v. Commonwealth, 636 S.E.2d 480, 483-84 (Va. Ct. App. 2006); State
v. Valdez, 894 P.2d 708, 711-14 (Ariz. Ct. App. 1994); Braunstein v. Frawley, 407 N.Y.S.2d
250, 253-54 (N.Y. App. Div. 1978). We are not convinced by either argument. We do not
undertake an analysis of the cases cited by the parties because the multiple interpretations argued
by the parties only highlight the lack of clarity in Section 30-6A-2(B). See State v. DeGraff,
2006-NMSC-011, ¶ 33, 139 N.M. 211, 131 P.3d 61 (“[W]e are not persuaded that the statute’s
use of the word ‘any’ shows the Legislature’s intent to permit only a single conviction for all
tampering with a single crime scene.”).

{22} This case is unlike State v. Leeson where the Court of Appeals determined that the unit
of prosecution was “readily discernable” for violations of Section 30-6A-3(D). Leeson, 2011-
NMCA-068, ¶ 17, 149 N.M. 823, 255 P.3d 401. Section 30-6A-3(D) states that “[i]t 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.” Declared unconstitutional by State v. Myers, 2010-
NMCA-007, ¶¶ 3, 24-25, 147 N.M. 574, 226 P.3d 673 (holding that Section 30-6A-3(D) is void
for vagueness because it is unreasonable to expect a person of ordinary intelligence to be on
notice of what conduct was within the scope of Section 30-6A-3(D)). To “manufacture” is to
engage in “the production, processing, copying by any means, printing, packaging or
repackaging of any 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.”
Section 30-6A-2(D). The Court of Appeals concluded that the unit of prosecution was “readily
discernable” because “[a] violation of the statute occurs where a criminal defendant intentionally
produces or copies a photograph, electronic image, or video that constitutes child pornography.”
Leeson, 2011-NMCA-068, ¶ 17. Section 30-6A-3(D) is significantly different from Section 30-
6A-3(A), and as discussed above we cannot similarly conclude that the unit of prosecution is
“readily discernable” in Section 30-6A-3(A).

{23} Because the plain meaning as to the proper unit of prosecution is not apparent, the
statutory language is ambiguous. It should be noted that this Court is fatigued with the plain

7
meaning argument when the language is unquestionably ambiguous, as in this case. We next
look to the history and purpose of Section 30-6A-3 for further clarification.

B. The history and purpose of Section 30-6A-3 do not define a clear unit of prosecution

{24} The State contends that the purpose and key element of the statute is to protect children
from being used as sexual objects, which would indicate a unit of prosecution equal to each
distinct prohibited sexual act. The State argues that possession of child pornography is part of
the prohibited behavior that the Legislature intended to protect against as evidenced in the title
of Section 30-6A-3 (“An act relating to criminal law; making it a criminal offense for a person
to possess an obscene . . . medium that depicts a sexual act involving a child . . . .”). 2001 N.M.
Laws, ch. 2, § 2. The State also cites Myers, which held that “[c]hild pornography is particularly
harmful because the child’s actions are reduced to a recording which could haunt the child in
future years, especially in light of the mass distribution system for child pornography.” 2009-
NMSC-016, ¶ 17 (internal quotation marks and citation omitted). Tracking the history of Section
30-6A-3, the State points out that the Legislature amended the possession portion in 2001 to
make possession a crime independent of pecuniary gain or distribution, indicating a goal of
prohibiting solely possession. Compare § 30-6A-3(A) (2001), with § 30-6A-3(A) (1993).

{25} Ballard agrees that the general purpose of the statute is to protect children from being
sexually exploited but argues that the statute also addresses more than one social evil. Ballard
asserts that the statute is aimed primarily at victimization, which occurs when the sexually
exploitative material is created, whereas possession is a later consequence. The Legislature
recognized this by designating manufacturing as the highest crime and possession as the lowest,
with distribution in the middle. Compare § 30-6A-3(D) (criminalizing manufacturing as a
second-degree felony), with § 30-6A-3(A) (criminalizing possession as a fourth-degree felony),
and § 30-6A-3(B) (criminalizing distribution as a third-degree felony). Ballard argues that he
should not be held accountable for the conduct of those unidentified actors who manufactured
and distributed the files he ultimately possessed. The State rebuts that the 2001 amendment does
not support Ballard’s position that he is less culpable by merely possessing the pornography.
Compare § 30-6A-3(A) (2001) (criminalizing possession as a fourth-degree felony), with § 30-
6A-3(A) (1993) (criminalizing possession with intent to distribute as a fourth-degree felony).

{26} Olsson argues that the Legislature intended a single unit of prosecution when it named
Section 30-6A-3 “Sexual exploitation of children.” Olsson posits that if the Legislature had
intended multiple units of prosecution it would have named the statute “Sexual exploitation of
a child,” similar to the title of NMSA 1978, Section 30-6-1 (2009), “Abandonment or abuse of
a child.” Neither Olsson nor Ballard addresses the history of the Act.

{27} This Court has held that the purpose of the Act is to protect children from the harm “that
flows from trespasses against the child’s dignity when treated as a sexual object.” Myers, 2009-
NMSC-016, ¶ 17 (internal quotation marks and citation omitted). We do not agree with Olsson
and Ballard that possession should be treated as a victimless crime. Possession causes equal or
greater harm than the original manufacture because it further disseminates the original trespass.

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See David P. Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake
Forest L. Rev. 535, 545 (1981) (explaining that “pornography poses an even greater threat to the
child victim than does sexual abuse or prostitution[; b]ecause the child’s actions are reduced to
a recording, the pornography may haunt him in future years, long after the original misdeed took
place.”).

{28} In 1984, the New Mexico Legislature made the sexual exploitation of children a separate
crime from the general child abuse provisions and included purpose in its definition of one of
the five prohibited sexual acts: the “lewd exhibition of the genitals or pubic area . . . for the
purpose of sexual stimulation.” 1984 N.M. Laws, ch. 92, § 2(A)(5). See generally State v.
Rendleman, 2003-NMCA-150, ¶¶ 41-42, 134 N.M. 744, 82 P.3d 554 (tracing the history of
Section 30-6A-3). The definition was slightly modified in 1993 to read, “lewd and sexually
explicit exhibition with a focus on the genitals or pubic area . . . for the purpose of sexual
stimulation.” 1993 N.M. Laws, ch. 116, § 1(A)(5). In 2001, the possession subsection, under
which Olsson and Ballard are charged, was amended to proscribe possession alone without any
language referencing distribution or intent to distribute. See 2001 N.M. Laws, ch. 2, § 2(A).

{29} The 2001 amendment supports the notion that the Legislature viewed possession alone,
whether prohibited depictions were sold or not, as prohibited conduct. Nonetheless, the fact that
prohibition of possession appears to be one of the main goals of the statute does not reveal the
Legislature’s intended unit of prosecution. Instead, this history draws attention to the fact that
a unitary conduct analysis for possession is not likely what the Legislature intended because a
defendant would have no incentive to stop downloading child pornography after the first image.

{30} We encounter another problem in determining the Legislature’s intent when considering
the sentencing disparities. A single count of possession under Section 30-6A-3(A) carries an
eighteen-month basic sentence. NMSA 1978, § 30-18-15(A)(10) (2007) (prescribing a basic
sentence of eighteen months imprisonment for a fourth-degree felony). The twenty-five counts
in Ballard’s case would result in a thirty-seven-and-a-half year basic sentence, and the sixty
counts initially charged to Olsson would result in a ninety-year basic sentence. This punishment
for possession of only two images would equal the minimum imprisonment sentence of three
years for a defendant convicted of criminal sexual contact with a minor. See NMSA 1978, § 30-
9-13(B) (2003). We cannot conclude that the Legislature intended this level of disparity.

{31} We conclude that the language, history, and purpose of Section 30-6A-3 do not inform
us of the legislative intent on unit of prosecution. We next determine whether the acts of Olsson
and Ballard were separated by sufficient indicia of distinctness to justify multiple punishments
under the same statute.

C. The Herron test of distinctness does not apply in possession cases

{32} In determining distinctness, the Court may apply the six Herron factors: (1) time between
criminal acts, (2) location of the victim during each act, (3) existence of any intervening events,
(4) distinctions in the manner of committing the acts, (5) the defendant’s intent, and (6) the

9
number of victims. Herron, 1991-NMSC-012, ¶ 15.

{33} Olsson contends that because legislative intent concerning the unit of prosecution is
unclear, this Court must engage in a Herron factor analysis to determine whether the offenses
are sufficiently distinct. Olsson did not provide relevant evidence about his possession to the
Court of Appeals because such evidence was unavailable pretrial at the time of Olsson’s
interlocutory appeal; therefore the Court of Appeals was unable to apply the Herron factors.
Olsson I, 2008-NMCA-009, ¶ 10. We conclude that the record posttrial is also devoid of facts
that would allow us to consider the distinctness of Olsson’s acts.

{34} However, Ballard’s case has a more sufficient factual background to engage in a Herron
distinctness analysis, but the parties did not directly address Herron. Instead, the parties engaged
in a general discussion on distinctness and the rule of lenity.

{35} The State argues that the Court of Appeals erred in reducing the twenty-five charges to
five because reliance on the download dates is not rooted in the language or purpose of the
statute. The State asserts that it proved that Ballard possessed twenty-five separate and distinct
computer images of child pornography at twenty-five separate and distinct times. Thus Ballard
should be charged with twenty-five counts.

{36} Ballard cites State v. Quick, 2009-NMSC-015, ¶ 20,146 N.M. 80, 206 P.3d 985, for the
proposition that the actus reus for possession offenses is defined by the moment the evidence is
seized from a defendant’s possession. Ballard argues that his possession was a single actus reus
because his conduct has been consistently alleged as occurring on one specific date. Finally,
Ballard asserts that the Court of Appeals’ recognition of the possession of a “bundling of
images” is properly rooted in the statutory inclusion of media inherently containing multiple
images.

{37} This case is distinguishable from Quick, which concluded “that the separate crimes of
possession and possession with intent to distribute were intended by the New Mexico
Legislature to apply in the alternative when based on a single act of possession.” Id. ¶ 2. Quick,
an appeal based on a claim that multiple punishments was a double jeopardy violation, provided
that “[t]he problem of multiple punishments arises in either of two situations: when a defendant
claims to have been convicted (1) of several different crimes or (2) of multiple counts of the
same crime, despite legislative intent to impose fewer punishments under the circumstances.”
Id. ¶ 8. Quick dealt with the former, also known as double description. Id. This case addresses
the latter, commonly known as a unit of prosecution case. In a double description case the
primary inquiry is “whether the facts presented at trial establish that the jury reasonably could
have inferred independent factual bases for the charged offenses.” Id. (internal quotation marks
and citation omitted). The relevant inquiry in a unit of prosecution case “is whether the
legislature intended punishment for the entire course of conduct or for each discrete act.”
Swafford, 1991-NMSC-043, ¶ 8.

{38} Additionally, Quick dealt with possession of controlled substances. 2009-NMSC-015,

10
¶ 1. A defendant who is found guilty of possession of controlled substances receives varying
sentences depending on the quantity, type of the substance, and the defendant’s first-time
offender status. See NMSA 1978, § 30-31-23 (2011). There is no such sentencing system in
place for possession of child pornography. See § 30-6A-3(A); § 31-18-15(A)(10).

{39} This reveals a problem with attempts to determine whether conduct in a child
pornography possession case is distinct under Herron: The Herron factors are specifically
tailored to a case where a defendant has direct contact with a victim. See Herron, 1991-NMSC-
012, ¶ 1 (criminal sexual penetration); State v. Garcia, 2009-NMCA-107, ¶ 6, 147 N.M. 150,
217 P.3d 1048 (battery); State v. Boergadine, 2005-NMCA-028, ¶ 1, 137 N.M. 92, 107 P.3d 532
(fraud). Possession cases do not so neatly fit the Herron mold because it is unclear when each
of the factors would apply and the factors are inconclusive when they do apply. For instance,
time between criminal acts, location of the victim during the acts, existence of any intervening
events, and the defendant’s intent could apply specifically to when a defendant downloaded an
image or each time he viewed them. It is difficult to ascertain a defendant’s intent at the time of
downloading or at the time of viewing the images. The location of the victim during a download
or viewing is not relevant. The number of victims could possibly be established, but the
circumstance of multiple victims can exist from possession of a single videotape or a single
computer diskette as described in Section 30-6A-2(B)(1). Additionally, Section 30-6A-3(A)
specifically recognizes that the medium may depict “one or more” child participants.

{40} Further, Justice Ransom, who authored Herron, stated the following in State v. Brooks:

We believe our more recent analysis and discussion in Herron v. State, 111 N.M.
357, 805 P.2d 624 (1991), is applicable to rape, sodomy, and sexual assault or
penetration cases. In sex crime cases, the jury looks at several factors to
determine if each contact or penetration is part of the same act or is a separate
act, Herron, 111 N.M. at 361, 805 P.2d at 628, while in larceny and
embezzlement cases, the jury looks to see if the defendant’s intent was to achieve
a single fraudulent scheme or plan through the commission of several acts, see
Allen, 59 N.M. at 141, 280 P.2d at 299; Pedroncelli, 100 N.M. at 680, 675 P.2d
at 129.

1994-NMSC-062, ¶ 10 n.1, 117 N.M. 751, 877 P.2d 557. Justice Ransom’s affirmation that the
Herron factors were originally designed for cases where there is direct contact between the
defendant and the victim further convinces us that the Herron factors do not apply in possession
cases.

{41} In Ballard, the Court of Appeals seems to rely on the timing factor to conclude that the
five specific download dates for each bundle of child pornography resulted in five counts instead
of the original twenty-five. 2012-NMCA-043, ¶ 29. The Court of Appeals struggled to apply the
Herron factors, however, asking “[w]hen, if at all, do factors such as timing, location,
sequencing, and intervening events, come into play?” Id. ¶ 26.

11
{42} While it would seem logical in the context of Herron for the Court of Appeals to
determine counts based on download dates, the State is also correct in its assertion that download
dates are not included in the statutory language nor alluded to in the purpose and history. This
problem, along with the impracticability of how to apply the Herron factors to Olsson and
Ballard’s cases, further illustrates the difficulty in applying the Herron factors to possession
cases. Therefore, we hold that the Herron factors are not applicable in possession cases and that
the indicia of distinctness factors do not determine the unit of prosecution.

D. The rule of lenity applies

{43} If there is no distinctness to the acts charged, then the rule of lenity applies, meaning
“doubt will be resolved against turning a single transaction into multiple offenses.” Herron,
1991-NMSC-012, ¶ 14. This Court has also held that:

[T]he rule of lenity, which counsels that criminal statutes should be interpreted
in the defendant’s favor when insurmountable ambiguity persists regarding the
intended scope of a criminal statute, may not be applied to defeat the apparent
intent of the Legislature, as manifested by the language and structure, legislative
history, and motivating policies of [a] statute.

State v. Morales, 2010-NMSC-026, ¶ 13, 148 N.M. 305, 236 P.3d 24 (second alteration in
original) (internal quotation marks and citation omitted).

{44} Olsson and Ballard both argue that the rule of lenity should apply and that only a single
count of possession should be imposed. The State argues that in order for the rule of lenity to
apply, there must be “grievous ambiguity” in the statutory language, which the State urges does
not exist in this case.

{45} We hold that the rule of lenity applies. The statutory language is insurmountably
ambiguous and we do not discern any distinctness in the acts charged. Since Section 30-6A-3(A)
was enacted in 1984 and amended in 2001, significant and rapid technological developments
have occurred. Digital storage has become widely available and can store massive amounts of
data. We respectfully recommend that the Legislature revise Section 30-6A-3(A) to reflect
modern advances in technology and clarify the intended unit of prosecution.

{46} This Court in Swafford noted that “[t]he case law is replete with failed attempts at
judicial definitions of the same factual event.” 1991-NMSC-043, ¶ 27. That is precisely the
situation in this case, and because “an intent to punish separately [also cannot] be found through
application of the canons of construction set forth above, lenity is indicated.” Id. ¶ 34. Therefore,
we hold that the rule of lenity requires us to interpret Section 30-6A-3(A) in Olsson and
Ballard’s favor.

IV. CONCLUSION

12
{47} We hold that the statutory language of Section 30-6A-3(A) is ambiguous and that the
Herron factors are not applicable in possession cases. Olsson and Ballard can each only be
charged with one count of possession. The Court of Appeals opinions in Olsson and Ballard are
reversed and these cases are remanded to the trial court for proceedings in accordance with this
opinion.

{48} IT IS SO ORDERED.

_______________________________________
PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice

EDWARD L. CHÁVEZ, Justice (dissenting).

CHÁVEZ, Justice (dissenting).

{49} Because I conclude that the unit of prosecution for possession of child pornography in
the Sexual Exploitation of Children Act, NMSA 1978, §§ 30-6A-1 to -4 (1984, as amended
through 2007) (the Act), is ascertainable by reference to the language and purposes of the Act,
I respectfully dissent.

{50} It is not unusual for the Legislature to use general language when defining a crime.
General language is to be expected because legislation is often written to balance competing
policy interests. It may also be desirable for the Legislature to elect to use language that is
general or imprecise to accommodate the uncertainty of future application of a statute, while
using language specific enough to guide courts in a particular direction. Countless published
and unpublished appellate opinions discuss the approach to interpreting general language in a
statute with the court’s ultimate goal being to determine the intent of the Legislature. Rules of
statutory construction, provided both by the Legislature in the Uniform Statute and Rule
Construction Act, see NMSA 1978, § 12-2A-1 to -20 (1997), and by the New Mexico courts in
case law, assist us in our search for legislative intent. In a general sense, courts ask “What
would a reasonable legislator have intended the statute to mean, considering the language,
history, and purposes of the statute?” After courts hypothesize legislative intent, they must
explore the consequences of that interpretation to determine whether the consequences advance

13
or hinder the intent of the legislation, choosing the interpretation that advances the legislative
intent.1 This approach offers the assurance that courts are attempting to further the intent of the
Legislature and not the policies of the courts.

{51} A court’s analysis is no different when it is determining the unit of prosecution in a
criminal statute. In this case, the question is “What would a reasonable legislator have intended
the unit of prosecution to be for possession of child pornography under the Act, considering the
language, history, and purposes of the legislation?” If reasonable doubt persists regarding the
intended unit of prosecution, the rule of lenity requires courts to interpret the unit to be a single
transaction and not multiple offenses. Herron v. State, 1991-NMSC-012, ¶ 14, 111 N.M. 357,
805 P.2d 624.

{52} Section 30-6A-3(A) provides, in relevant part:

It is unlawful for a 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.

{53} I conclude that the Legislature intended the unit of prosecution for possession of child
pornography to be based on the number of different children depicted participating in distinct
prohibited sexual acts as defined in Section 30-6A-2(A), or the same child or children
participating in distinct prohibited sexual acts. I am persuaded that this is the unit of prosecution
intended by the Legislature because of the language in the statute that requires proof that the
possessor knew or should have known that the obscene medium depicts a prohibited sexual act
or simulation of such act—one of the five acts defined in Section 30-6A-2(A)(1)-(5)—and that
the possessor knew or should have known that one or more of the participants in that act is a
child under eighteen years of age. Thus, the medium is the set with the subset including a
prohibited sexual act and the defendant’s required knowledge that at least one of the participants
in the prohibited sexual act is a child.

{54} The purpose of the Act is also instructive. I agree with the majority that possession of
a medium depicting child pornography is not a victimless crime. See majority op. ¶¶ 24, 27.
The very purpose of the Act is to protect against the sexual exploitation of children. As we
recently stated in State v. Myers, 2009-NMSC-016, ¶ 17, 146 N.M. 128, 207 P.3d 1105, “Child
pornography is particularly harmful because the child’s actions are reduced to a recording which
could haunt the child in future years, especially in light of the mass distribution system for child
pornography.” (Internal quotation marks and citations omitted.) The Act recognizes that

1
For example, courts avoid a construction that will lead to absurd results. See State
v. Padilla, 1997-NMSC-022, ¶ 6, 123 N.M. 216, 937 P.2d 492.

14
manufacturing and distribution of child pornography is harmful to the child or children who are
the subjects of the pornography, but the mere possession or control of child pornography results
in continuing victimization because such material is a permanent record of an act or acts of
sexual abuse of a child. Each time such material is shown or viewed, the child is harmed. The
language of the Act evinces legislative awareness that a law banning the manufacturing and
distribution of child pornography is insufficient to stop continuing harm to the child. Therefore,
the Legislature deemed it necessary to proscribe the possession of any child pornography for the
protection of the privacy and health of the individual children whose sex abuse has been
captured in a visual or print medium.

{55} In my reading of the statute, if the defendant possesses a medium depicting the same
child participating in the same prohibited sexual act, i.e., masturbation, the unit of prosecution
permits only one count. If the defendant possesses a medium depicting the same child
participating in two distinct prohibited sexual acts, i.e., sexual intercourse in some images and
masturbation in the other images, the unit of prosecution permits two counts of possession. If
the defendant possesses a medium of three children separately engaged in the same type of
prohibited sexual act, the unit of prosecution permits three counts because there are three
different victims depicted separately. The Legislature also intended that courts treat as a
continuous transaction a medium depicting one or more children performing the same prohibited
sexual act. Thus, if a defendant possesses a medium containing multiple images of a group of
children engaged in the same prohibited sexual act, the unit of prosecution only permits one
count. If the medium possessed by the defendant includes an image of a different group of
children, the unit of prosecution permits an additional count. In my opinion, the district court
in State v. Ballard correctly identified the unit of prosecution when the judge concluded that the
twenty-five separately charged images each involved a different child victim and a distinct act.
2012-NMCA-043, ¶ 20, 276 P.3d 976, cert. granted, 2012-NMCERT-005.

{56} I find it difficult to conclude that the Legislature did not intend multiple punishments
when a defendant possesses media depicting a different child or different children engaged in
distinct prohibited sexual acts. Each child who is recorded by video or still photograph(s) while
participating in a prohibited sexual act is exploited at the time of his or her participation, yet
each child’s victimization extends beyond the walls where they were abused when they are
photographed or videotaped. The child cannot know who will look at the photographs or
videotapes and for how long the photographs and videotapes will circulate. This was our
concern in Myers, and the majority opinion echoes this concern in paragraph 27, which states
that “ ‘pornography poses an even greater threat to the child victim than does sexual abuse or
prostitution[;b]ecause the child’s actions are reduced to a recording, the pornography may haunt
him in future years, long after the original misdeed took place.’ ” (quoting David P. Shouvlin,
Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545
(1981)).

{57} I recognize that modern technology, including computers, the internet, and digital
cameras, contributes to a person’s ability to manufacture, distribute, and possess large quantities
of child pornography. However, I am not persuaded that simply because it is now easier and

15
faster to sexually exploit more children, the Legislature could not have intended multiple
punishments in the Act when different children are engaged in distinct prohibited sexual acts,
or the same child or children are depicted participating in distinct prohibited sexual acts. As I
previously indicated, at times it is desirable for a legislature to use general language because it
is difficult to predict what future circumstances might result in multiple violations of the same
statute. Despite such general language, I remain confident that the language as written is
intended to pyramid the punishment of a defendant who possesses media depicting different
children participating in distinct prohibited sexual acts, or the same child or children
participating in distinct prohibited sexual acts.

{58} Interestingly, the unit of prosecution for manufacturing an obscene visual or print
medium depicting child pornography is each image. Section 30-6A-3(D); State v. Leeson,
2011-NMCA-068, ¶ 17, 149 N.M. 823, 255 P.3d 401, cert. denied, 2011-NMCERT-005, 150
N.M. 667, 265 P.3d 718. Manufacturing includes the transfer of pornographic images of
children from a computer to an external drive. State v. Smith, 2009-NMCA-028, ¶ 15, 145 N.M.
757, 204 P.3d 1267, cert. quashed, 2009-NMCERT-012, 147 N.M. 601, 227 P.3d 91. This
Court chose not to grant certiorari in Leeson and we quashed certiorari in Smith. Although our
actions should not be interpreted as an official endorsement of the Leeson and Smith opinions,
these cases remain good law.

{59} Despite Leeson, I remain persuaded that the “reasonable legislator” did not intend each
and every image or video medium to be the unit of prosecution for possession. Requiring proof
that the defendant possessed the medium, when the defendant knew or should have known that
the medium depicted a child or children engaged in a prohibited sexual act, is the additional
element not required for manufacturing that persuades me that the unit of prosecution is different
for possession. In addition, it would have been a simple matter for the Legislature to have stated
that “It is unlawful for a person to intentionally possess any obscene image or video medium
depicting . . . .” In the alternative, the Legislature could have simply written that “each and
every image or video clip shall be deemed a separate offense” as it did in NMSA 1978, Section
57-5-8 (1933) (“Each and every picture furnished, received or exhibited in violation of any of
the provisions of this act shall be deemed a separate offense.”).

{60} I also conclude that the date of downloading such media cannot be the unit of prosecution
because the downloading date is not reflected in the language, history, or purpose of the
legislation. Majority op. ¶¶ 35, 42. Whether the defendant’s conduct is unitary depends entirely
on what conduct the Legislature intended to proscribe, and the language in the statute does not
divide possession based on when the medium was obtained.

{61} I am also not convinced that the difference in punishment between possession of child
pornography and criminal sexual contact of a minor leads to the rule of lenity. Majority op. ¶¶
30, 43. If a defendant has criminal sexual contact with more than one minor, the defendant is
punished multiple times. Each child is a victim. If a defendant has criminal sexual contact with
the same minor on more than one date, or in different geographic locations, the defendant is
subject to multiple punishments. State v. Salazar, 2006-NMCA-066, ¶ 30, 139 N.M. 603, 136

16
P.3d 1013. Therefore, the child is a victim multiple times. Indeed, application of the Herron
factors, 1991-NMSC-012, ¶ 15, could result in multiple punishments of a defendant who touches
the intimate parts of a minor when the evidence supports a finding of distinct touching of more
than one protected area. State v. Williams, 1986-NMCA-122, ¶ 9, 105 N.M. 214, 730 P.2d 1196.
The child is considered to be a victim multiple times.

{62} The consequences of the unit of prosecution that I have hypothesized is that a defendant
who possesses a medium containing multiple images of different children engaged in distinct
prohibited sexual acts, or the same child or children participating in distinct prohibited sexual
acts, is subject to multiple convictions, which might result in a extraordinarily lengthy sentence.
This consequence advances what we have interpreted to be the purpose of this legislation, which
is to deter the continued victimization of a child who is the subject of child pornography. As
noted by the majority in the last sentence of paragraph 29: “Instead, [prohibition of possession]
draws attention to the fact that a unitary conduct analysis for possession is not likely what the
Legislature intended because a defendant would have no incentive to stop downloading child
pornography after the first image.” To interpret Section 30-6A-3(A) to be a continuous
transaction despite different child victims and distinct acts will not have the deterrent effect
intended by the Legislature.

{63} I conclude that the unit of prosecution for possession of child pornography is based on
the number of different child victims participating in distinct prohibited sexual acts, or the same
child or children participating in distinct prohibited sexual acts. As to each child victim,
possession is a continuing course of conduct if the child is depicted performing the same
prohibited sexual act resulting in one unit of prosecution. Similarly, when more than one child
is depicted performing the same prohibited sexual act, the Legislature treats the possession as
a continuing course of conduct resulting in one unit of prosecution until a different child
becomes a subject of the prohibited sexual act.

{64} For the foregoing reasons, I respectfully dissent.

_______________________________________
EDWARD L. CHÁVEZ, Justice

17