Castaneda v. State

132 Nev., Advance Opinion 44
IN THE SUPREME COURT OF THE STATE OF NEVADA

ANTHONY CASTANEDA, No. 64515
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. JUN 1 6 2016
IE K. LINDEMAN

GRIEF liElJTY CLERK

Appeal from a judgment of conviction, pursuaht) to jury
verdict, of 15 counts of possession of child pornography. Eighth Judicial
District Court, Clark County; Carolyn Ellsworth, Judge.
Affirmed in part, vacated in part, and remanded.

Philip J. Kohn, Public Defender, and P. David Westbrook and Audrey M.
Conway, Deputy Public Defenders, Clark County,
for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Alexander G. Chen, Deputy District Attorney, Clark County,
for Respondent.

BEFORE THE COURT EN BANC,

OPINION

By the Court, PICKERING, J.:
Nevada law makes it a felony to possess child pornography.
The question before the court is whether appellant Anthony Castaneda
committed 15 felonies or one when he simultaneously possessed 15 digital

SUPREME COURT
OF
NEVADA

(0) 1947A OD
tp -IBS
 images of children engaged in sexual conduct. We hold that, in the
circumstances of this case, he committed a single, category B felony.
Castaneda's remaining claims of error fail. We therefore affirm in part,
vacate in part, and remand.
I.
The charges against Castaneda originated in a report by a
former housemate of his to the Las Vegas Metropolitan Police Department
(LVMPD). The former housemate reported that, after moving out of
Castaneda's house, she and her boyfriend found mixed in with their
belongings a USB flash drive similar to one Castaneda customarily kept
on his key chain. When they opened the flash drive, they discovered that
it held copies of Castaneda's driver's license, birth certificate, Social
Security card and military records, as well as a file of pornographic
images, some depicting children.
LVMPD obtained a search warrant to view the contents of the
flash drive. On the flash drive, in addition to Castaneda's identification,
detectives found a subfolder named "girl pics." This subfolder contained
pornographic images, including several that an FBI database established
as known images of child pornography downloadable from the World Wide
Web. Based on this evidence, detectives obtained a search warrant for
Castaneda's home and home computers. The home computers, a desktop
and a laptop, contained each of the child pornography images found on the
flash drive and several additional known images of child pornography as
well, for a total of 15 separate depictions, with most being found on both
the desktop and the laptop. Castaneda was interviewed by a detective
while the search was underway. After the interview concluded, he came
into the room where another detective had one of the illegal images open

SUPREME COURT
OF
NEVADA
2
( C1) 1947A 7e
 on the computer. Reportedly, Castaneda saw what was on the screen and
said, "Those are kids, I'm sorry."
The State charged Castaneda with 15 counts of knowingly and
willfully possessing 15 image files depicting sexual conduct of a child in
violation of NRS 200.730. Before trial, the State and Castaneda stipulated
not to publish the charged images in open court but, rather, to put copies
of them into evidence in a sealed envelope for the jury to examine if it so
chose. They further stipulated, quoting language from NRS 200.730, that
each of the 15 charged images depicted a child "under the age of 16 years
as the subject of a sexual portrayal or engaging in, or simulating, or
assisting others to engage in or simulate, sexual conduct."
After a six-day trial, the jury convicted Castaneda on all 15
counts. The district court judge sentenced Castaneda to a minimum of 28
months and maximum of 72 months on each count, the sentences to run
concurrently. The district court suspended the sentences and placed
Castaneda on probation for a 5-year term. Castaneda appeals.
IL
Castaneda argues that 14 of his 15 convictions for possessing
child pornography must be vacated because NRS 200.730 penalizes
possession, and the State proved only "a singular act of digital possession
of items seized on the day the police took the computers into police
custody." Castaneda casts his argument in constitutional terms, citing
the protection against "multiple punishments for the same offense"

1-The State does not question that Castaneda's post-trial motion to
vacate the jury's verdict as to counts 2-15 adequately preserved this issue.

SUPREME COURT
OF
NEVADA
3
(0) 1947A e
 afforded by the double jeopardy clauses of the United States and Nevada
Constitutions. U.S. Const. amend. V; Nev. Const. art. 1, § 8. But what
Castaneda's challenge asks us to do is to read NIBS 200.730, the statute
under which he was charged, and determine the unit of prosecution it
allows in this case, specifically, whether Castaneda's simultaneous
possession of 15 digital images of child pornography constitutes one crime
or 15 crimes. "While often discussed along with double jeopardy," Wilson
v. State, 121 Nev. 345, 355, 114 P.3d 285, 292 (2005), "determining the
appropriate unit of prosecution presents an issue of statutory
interpretation and substantive law." Jackson v. State, 128 Nev. 598, 612,
291 P.3d 1274, 1278 (2012) (internal quotations omitted); see Akhil Reed
Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1817-18
(1997) (noting that "it is up to the legislature to decide whether planting
and exploding a bomb should be one crime or two (because the bomb was
first planted, then exploded) or fifty (because fifty people died) or 500
(because 450 more were at risk) or 1,000,500 (because the bomb also
destroyed one million dollars of property and each dollar of bomb damage
is defined as a separate offense"); on such questions, the double jeopardy
clause is "wholly agnostic" and "imposes no limits on how the legislature
may carve up conduct into discrete legal offense units"). As with other
questions of statutory interpretation, our review is de novo, Firestone v.
State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004), and begins with the
statutory text, Wilson, 121 Nev. at 356, 114 P.3d at 293.
A.
Castaneda was charged with violating NRS 200.730, which
reads in full as follows:

SUPREME COURT
OF
NEVADA
4
(0) 1947A
 A person who knowingly and willfully has in his or
her possession for any purpose any film,
photograph or other visual presentation depicting
a person under the age of 16 years as the subject
of a sexual portrayal or engaging in or simulating,
or assisting others to engage in or simulate, sexual
conduct:
1. For the first offense, is guilty of a
category B felony and shall be punished by
imprisonment in the state prison for a minimum
term of not less than 1 year and a maximum term
of not more than 6 years, and may be further
punished by a fine of not more than $5,000.
2. For any subsequent offense, is guilty of a
category A felony and shall be punished by
imprisonment in the state prison for a minimum
term of not less than 1 year and a maximum term
of life with the possibility of parole, and may be
further punished by a fine of not more than
$5,000.
(Emphases added.)
To the State, NRS 200.730 is plain and unambiguous: It
authorizes a separate conviction for each pornographic image possessed.
Emphasizing the word "any" in the phrase "any film, photograph or other
visual presentation," the State maintains that NRS 200.730 makes it a
crime to possess even a single photograph depicting child pornography.
From this it follows, the State submits, that each such photograph or
image a person possesses constitutes a separate crime.
The State's explication of NRS 200.730's text is flawed. To be
sure, the statute authorizes prosecution based on possession of a single
image depicting child pornography. But this does not mean that each
additional image possessed necessarily gives rise to a separate
prosecutable offense.

SUPREME COURT
OF
NEVADA
5
() I947A 4491§AI
 A number of disparate criminal statutes use "any" as MRS
200.730 does: to catalog the objects of the prohibition the statute states.
See United States v. Kinsley, 518 F.2d 665, 667-68 (8th Cir. 1975)
(providing examples of such statutes and the cases construing them,
including Bell v. United States, 349 U.S. 81 (1955), in which the Supreme
Court famously held that the simultaneous transportation of two women
across state lines constituted one, not two, violations of the Mann Act,
which was ambiguous in that it made it a crime to knowingly transport
"any woman or girl" across state lines for immoral purposes without
defining the unit of prosecution). The word "'any' has multiple, conflicting
definitions, including (1) one; (2) one, some, or all regardless of quantity;
(3) great, unmeasured, or unlimited in amount; (4) one or more; and (5)
all." State v. Sutherby, 204 P.3d 916, 920 (Wash. 2009) (citing Webster's
Third New International Dictionary 97 (1976)). For this reason, courts
interpreting farms of criminal statutes similar to MRS 200.730 have
rejected the proposition that the use of the word "any" to introduce a list of
prohibited objects automatically authorizes a per-object unit of
prosecution. In fact, contrary to the reading the State advocates in this
case, "the word 'any' has 'typically been found ambiguous in connection
with the allowable unit of prosecution,' for it contemplates the plural,
rather than specifying the singular." United States v. Coiro, 922 F.2d
1008, 1014 (2d Cir. 1991) (quoting Kinsley, 518 F.2d at 668).
Significantly, in many of the cases in which the
courts have found a Bell-type ambiguity [as to the
proper unit of prosecution], the object of the
offense has been prefaced by the word "any."
Seemingly this is because "any" may be said to
fully encompass (i.e., not necessarily exclude any
part of) plural activity, and thus fails to

SUPREME COURT
OF
NEVADA
6
(0) 1947A
 unambiguously define the unit of prosecution in
singular terms
Kinsley, 518 F.2d at 667.
B.
Since the text of NRS 200.730 does not unambiguously
establish whether Castaneda was properly prosecuted on a per-image
basis, we turn to other legitimate tools of statutory interpretation,
including related statutes, relevant legislative history, and prior judicial
interpretations of related or comparable statutes by this or other courts.
See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 298-99 (2012). Only then, if "a reasonable doubt persists"
after "all the legitimate tools of interpretation have been applied," do we
reach the rule of lenity urged on us by Castaneda, which teaches that
"[a]mbiguity in a statute defining a crime or imposing a penalty should be
resolved in a defendant's favor." Id. at 299 (quotation and footnotes
omitted); see State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1227 (2011).
1.
NRS 200.730 is one of a series of statutes, NRS 200.700
through NRS 200.760, codified under the heading "Pornography Involving
Minors." The lead definitional statute, NRS 200.700, defines "sexual
conduct" and "sexual portrayal," both phrases that are used in NRS
200.730, but it does not define "film, photograph or other visual
presentation," the objects whose possession NRS 200.730 prohibits. The
terms "film," "photograph," and "other visual presentation" appear,
though, in NRS 200.700(1), which defines "[plerformance," the use of a
minor in which is made criminal by NRS 200.710 and NRS 200.720, to

SUPREME COURT
OF
NEVADA
7
« 1947 « e
 mean "any play, film, photograph, computer-generated image, electronic
representation, dance or other visual presentation." (emphases added). 2
The legislative history of NRS 200.730 sheds little light on the
unit of prosecution it authorizes. Enacted in 1983, NRS 200.730's
prohibition against possession of child pornography was added almost as
an afterthought to A.B. 189, which proposed the statutes criminalizing the
production and distribution of child pornography that became NRS
200.700 through NRS 200.760. Hearing on A.B. 189 Before the Senate
Judiciary Comm., 62d Leg. (Nev., March 31, 1983). As originally adopted,
NRS 200.730 made the possession of child pornography a misdemeanor.
See 1983 Nev. Stat., ch. 337, § 4, at 814. The Legislature has since
amended NRS 200.730 several times, but each amendment only increased
the penalties for possession without providing insight into• the unit of
prosecution. 1985 Nev. Stat., ch. 459, § 1, at 1412-13; 1987 Nev. Stat., ch.
369, § 1, at 846; 1995 Nev. Stat., ch. 443, § 77, at 1196; 2005 Nev. Stat, ch.
507, § 29, at 2876. For the near quarter century NRS 200.730 has been on
the books, its core prohibition—"possession" of "any film, photograph or
other visual presentation" of a minor engaged in sex—has not changed,
despite the advent of the Internet and the explosion in the market for

2As originally enacted, NRS 200.700(1) more closely tracked NRS
200.730, in that it defined "performance" as to include "any play, film,
photograph, dance or other visual presentation." See 1983 Nev. Stat., ch.
337, § 2, at 814. The 1995 Legislature amended NRS 200.700(1) to add
"computer-generated image" and "electronic representation" to its
definition of performance, see 1995 Nev. Stat., ch. 389, § 4, at 950, but it
did not make parallel conforming amendments to NRS 200.730.

SUPREME COURT
OF
NEVADA
8
(0) 1947A clEtta>
 child pornography that advanced digital technology has brought 3 While
digital images downloaded from the Internet no doubt qualify as a type of
"film, photograph or other visual presentation," neither the text of NRS
200.730 nor its legislative history answers the unit-of-prosecution question
this case poses.
2.
In Wilson v. State, 121 Nev. 345, 114 P.3d 285 (2005), we
considered the unit of prosecution authorized by NRS 200.710, which
punishes as a category A felony the use of a minor in a "performance"
involving the minor in "sexual conduct" or "sexual portrayal." Wilson took
four Polaroid photographs of a child he persuaded to undress and sexually
pose for him. Id. at 357, 114 P.3d at 293. For this he was charged with
and convicted of four counts of violating NRS 200.710, penalizing the use
of a minor in a "performance." Id. at 355, 114 P.3d at 292.

3 Richard Wortley & Stephen Smallbone, U.S. Dep't of Justice, Child
Pornography on the Internet 12 (2006); see Child Pornography, U.S.
Dep't of Justice, https://www.justice.gov/criminal-ceos/child-pornography
(last updated June 3, 2015) ("By the mid-1980's, the trafficking of
child pornography within the United States was almost completely
eradicated through a series of successful campaigns waged by law
enforcement. . . . Unfortunately, the child pornography market exploded
in the advent of the Internet and advanced digital technology."); see
also Overview and History of the Violent Crimes Against Children
Program, FBI, https://www.fbi.gov/about-us/investigate/vc_majorthefts/
me/overview-and-history (last visited June 6, 2016) ("More online
incidents of these crimes are being identified for investigationS than ever
before. Between fiscal years 1996 and 2007, the number of cases opened
throughout the FBI catapulted from 113 to 2,443.").

SUPREME COURT
OF
NEVADA
9
10) 1947A 41@j44
 On appeal, Wilson contended that NRS 200.710 outlawed the
use of a child in a performance and that, because the child engaged in a
single performance during which Wilson took four separate pictures, only
one violation of NRS 200.710 had occurred. Id. at 357, 114 P.3d at 293.
The State countered that, because NRS 200.700(1) defines "performance"
to include "any. . . film, photograph, . . . or other visual presentation," it
had proven four "performances" and, so, four violations of NRS 200.710.
Id. We reversed three of the four counts of violating NRS 200.710 that
Wilson had been convicted of. Id. at 358, 114 P.3d at 294.
"[Motwithstanding th[el broad definition [of performance], it is the use of
a child in a sexual performance that is prohibited under NRS 200.710, and
that performance can be of any type and documented in any manner." Id.
at 357, 114 P.3d at 294.
The purpose of Nevada's child pornography
statutes is to protect children from the harms of
sexual exploitation and prevent the distribution of
child pornography. As such, the intent of the
Legislature in passing NRS 200.700 to 200.760,
inclusive, was to criminalize the use of children in
the production of child pornography, not to punish
a defendant for multiple counts of production
dictated by the number of images taken of one
child, on one day, all at the same time. If the
Legislature intended this statute to punish a party
for every individual photograph produced of a
sexual performance, it certainly could have
effectuated that intent in the statute. Therefore,
we conclude that the facts of this case demonstrate
a single violation of NRS 200.710, not multiple
acts in violation of the law.
Id. at 358, 114 P.3d at 294 (footnote omitted; emphasis added); see Casteel
v. State, 122 Nev. 356, 362, 131 P.3d 1, 5 (2006) (upholding multiple
convictions of violating NRS 200.710 where the minor was photographed
SUPREME COURT
OF
NEVADA
10
(0) 19474 er
 in separate sexual episodes but reversing all but one of the convictions
where the photographs were taken during a single episode).
The State argues that Wilson requires affirmance of
Castaneda's per-image-based convictions. In addition to his convictions
for violating NRS 200.710, Wilson was, like Castaneda, charged with and
convicted of four counts of possession of child pornography under NRS
200.730 based on the four Polaroid pictures he took during the child's
performance. While the State is correct that this court affirmed Wilson's
convictions under NRS 200.730, Wilson did not raise a unit of prosecution
challenge to his possession-of-child-pornography charges, as Castaneda
does here. We decline to read into Wilson a holding this court was not
asked to consider and did not make.
3.
While Wilson does not directly decide the unit of prosecution
question this case presents, it does suggest the appropriate approach to
take. Much as NRS 200.710 outlaws a pornographic "performance" by a
child, which NRS 200.700(1) broadly defines to include "any play, film,
photograph, computer-generated image, electronic representation, dance
or other visual presentation," NRS 200.730 outlaws "possession" of "any
film, photograph or other visual presentation" constituting child
pornography. Wilson was concerned that counting each photograph as a
separate "performance" for purposes of NRS 200.710 would lead, in the
case of a moving-picture performance, to thousands of separate offenses,
one per each screen comprising the film, a result the court deemed
"absurd." Wilson, 121 Nev. at 357, 114 P.3d at 294. While NRS 200.730
presents a different question than NRS 200.710, given that it prohibits
"possession" of child pornography, not "use" of a minor in a pornographic

SUPREME COURT
OF
NEVADA
11
(01 1947A e
 performance, the number of electronic images downloadable in a single
Internet sessionS similarly counsels against the rudimentary, per-image
unit of prosecution for which the State advocates absent clear legislative
direction to that effect.
Courts elsewhere have divided on the unit of prosecution in
possession-of-child-pornography cases involving statutes like NRS
200.730. Compare People v. Hertzig, 67 Cal. Rptr. 3d 312, 316 (Ct. App.
2007) (holding that the defendant's possession of a laptop with 30 different
child pornographic videos constituted a "solitary act of possessing the
proscribed property," and reversing all but one count); Commonwealth v.
Rollins, 18 N.E.3d 670, 678 (Mass. 2014) (holding that "a defendant's
possession of a single cache of one hundred offending photographs in the
same place at the same time gives rise to a single unit of prosecution" for
illegal possession of child pornography); State v. Liberty, 370 S.W.3d 537,
548, 553 (Mo. 2012) (holding child pornography possession statute was
ambiguous because "the proscription. . . against possession of 'any obscene
material' ... reasonably could be interpreted to permit either a single
prosecution or multiple prosecutions for a single incidence of possession of
eight still photographs of child pornography," and concluding that, in light
of its holding of ambiguity, "the rule of lenity must be applied and the
statute must be interpreted favorably for the defendant"); State v. Olsson,
324 P.3d 1230, 1231, 1235, 1239 (N.M. 2014) (concluding that "the use of
the word 'any' in the statute only compounds the ambiguity," and thus,
"because the language is ambiguous and the history and purpose do not
offer any further clarity," the rule of lenity applies, allowing only one
count of possession of child pornography); State v. Pickett, 211 S.W.3d 696,
706 (Tenn. 2007) (holding that where the state failed to establish that the

SUPREME COURT
OF
NEVADA
12
(01 1947A e
 images of illegal child pornography were downloaded from more than one
website at more than one time, the evidence established only one crime),
and Sutherby, 204 P.3d at 922 ("Given the context of the language used in
the child pornography statute, and our repeated construction of 'any' as
including 'every' and 'all,' we hold that the proper unit of prosecution
under former RCW 9.68A.070 is one count per possession of child
pornography, without regard to the number of images comprising such
possession or the number of minors depicted in the images possessed."),
with State v. McPherson, 269 P.3d 1181, 1184-85 (Ariz. Ct. App. 2012)
("[U]nder our own statutes, we can only conclude the legislature intended
separate punishments for separate or duplicate images of child
pornography, even when those images are acquired at the same time.");
Fink v. State, 817 A.2d 781, 788 (Del. 2003) (holding that each individual
visual depiction of child pornography possessed constituted a separate
offense); Williams v. Commonwealth, 178 S.W.3d 491, 495 (Ky. 2005)
("The singular form of 'photograph' read in conjunction with the term 'any'
clearly indicates that the Legislature intended prosecution for each
differing photograph."); State v. Fussell, 974 So. 2d 1223, 1235 (La. 2008)
("[W]e hold that the language of [the statute] evidences a legislative intent
to allow a separate conviction on a separate count for each child, in each
sexual performance in which that child is victimized, that is captured in
any photographs, films, videotapes, or other visual reproductions that a
defendant intentionally possesses."); Peterka v. State, 864 N.W.2d 745,
,

750, 753-54 (N.D. 2015) (upholding conviction for 119 counts of possession
of child pornography found on the defendant's computer); and
Commonwealth v. Davidson, 938 A.2d 198, 219 (Pa. 2007) (concluding that
the word "any" followed by a list of singular objects demonstrated the

SUPREME COURT
OF
NEVADA
13
10) 1947A me.
 general assembly's intent to make each image of child pornography a
separate crime).
We recognize the policy goals behind tying punishment to the
number of child victims depicted in, and thus harmed by, the images
possessed. Consistent with the rule of lenity, though, we are obligated to
construe statutes that contain ambiguity in the proscribed conduct in the
accused's favor. Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281
(2004) ("A court should normally presume that a legislature did not intend
multiple punishments for the same offense absent a clear expression of
legislative intent to the contrary. Criminal statutes must be strictly
construed and resolved in favor of the defendant.") (footnote and internal
quotation omitted); see Liberty, 370 S.W.3d at 551 ("While we agree with
the State that each photograph exploits the minor and adds to the market,
it is for the legislature to define what it desires to make the allowable unit
of prosecution. The legislature has not made the number of children
victimized the basis of separate units of prosecution in section 573.037.")
(internal quotations and citations omitted).
Here, the State defends Castaneda's multiple convictions on
the basis that police found 15 distinct images depicting child pornography
on his home computers. When LVMPD searched Castaneda's home, they
found both the laptop and the desktop, which together held all 15 charged
images, some of them evident duplicates, in the same room in his home.
And though the flash drive came into law enforcement's possession before
the search and from a third party, the flash drive contained images that
Castaneda copied from or to the laptop and desktop. The State's theory
presented in closing was that Castaneda downloaded the images to the
laptop, then copied those images to the flash drive and the desktop,

SUPREME COURT
OF
NEVADA
14
(0) 1947A
 assertions supported by LVMPD detectives' testimony. The State
prosecuted the images as a group and did not attempt to show, other than
that there were 15 different images, individual distinct crimes of
possession. See, e.g., Pickett, 211 S.W.3d at 706 (holding that evidence of
possessing multiple images of child pornography on a computer
constituted one crime because the "State did not otherwise attempt to
distinguish the offenses by showing that the crimes were separated by
time or location or by otherwise demonstrating that Pickett formed a new
intent as to each image"). This case does not require us to decide whether
distinct downloads at different times and in different locations would
establish separate units of prosecution as some courts have held. See
State v. Roggenbuck, 387 S.W.3d 376, 381-82 (Mo. 2012) (distinguishing
Liberty, 370 S.W.3d at 551, on the basis that "the charges and the
evidence established only that Liberty possessed multiple images of child
pornography at the same time," thus constituting a single offense, and
upholding multiple convictions where the acts of acquiring and possessing
pornography were separated by time and place); State v. Sutherby, 158
P.3d 91, 94 n.4 (Wash. Ct. App. 2007) (holding that the simultaneous
possession of pornographic images constituted a single offense but
stressing that, "We do not address special circumstances not present here,
such as possession in two distinct locations or at two distinct times."),
aff'd, 204 P.3d 916 (Wash. 2009). As in Liberty and Sutherby, we hold only
that, consistent with their reasoning and the rule of lenity long
established in our law, Castaneda's simultaneous possession at one time
and place of 15 images depicting child pornography constituted a single
violation of NRS 200.730.

SUPREME COURT
OF
NEVADA
15
(0) 0147A
 Castaneda raises a number of other issues on appeal, which
we conclude are either meritless or harmless and, thus, only briefly
address. Chief among them is Castaneda's challenge to the sufficiency of
the evidence. This challenge rests on Castaneda's charge that the State
failed to prove "that it was Castaneda, and not a virus, automated
program, or another individual who knowingly and willfully possessed the
[pornographic] images." A criminal conviction will survive a sufficiency of
the evidence challenge if, "after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Grey v. State,
124 Nev. 110, 121, 178 P.3d 154, 162 (2008) (quoting Nolan v. State, 122
Nev. 363, 377, 132 P.3d 564, 573 (2006)). Here, although Castaneda
elicited testimony that a virus could have accessed the files, other
testimony established that the downloads were more likely the product of
conscious human endeavor. Similarly, while Castaneda's housemates at
one time had access to Castaneda's desktop, other evidence indicated that
they did not have access to Castaneda's password-protected user account
on the desktop or his laptop. The jury also was entitled to consider the
fact that the same images appeared on more than one device and that,
when he saw that a detective had opened one of the illegal images,
Castaneda commented that "Those are kids, I'm sorry." Viewed in the
light most favorable to the State, the evidence was sufficient to support
the jury's conviction of Castaneda for knowingly and willfully possessing
the charged images in violation of NRS 200.730.

SUPREME COURT
OF
NEVADA
16
(0) 1947A
 Castaneda next challenges the district court's refusal to
permit him to call a previously unnoticed expert witness, a decision we
review for an abuse of discretion. See Mitchell v. State, 124 Nev. 807, 819,
192 P.3d 721, 729 (2008). Castaneda asks us to excuse his tardy notice
because Detective Ehlers's testimony that the files found in the
unallocated space of Castaneda's desktop and laptop had previously been
deleted by a user caught him by surprise. But Castaneda's argument
misses the facts that Detective Ehlers testified at the preliminary hearing
that the recovery of the file remnants "means that it was viewed or was
upon that computer at one time and was possibly or probably deleted, or
as in this case, it was being downloaded from a website [and] did not
completely download," that it was Castaneda, not the State, who elicited
the surprise testimony from Detective Ehlers on cross-examination, and
that Castaneda was able to develop the points he wanted to make on
further cross-examination. Also, Castaneda had already obtained a
continuance of the trial to permit him to retain a computer expert, which
he did; he simply elected not to notice that expert as a potential witness.
The district court did not abuse its discretion in denying his request to call
an unnoticed expert witness.
IV.
We hold that the State proved one, not 15, violations of NRS
200.730 but otherwise find no reversible error. We therefore affirm in

SUPREME COURT
OF
NEVADA
17
(0) 1947A 4e
4
 part, vacate in part, and remand for entry of an amended judgment of
conviction.

Pickering

We concur:

C.J. S
Hardesty
eA-A (LI\ ,J.

Douglas

J.
gaitta

SUPREME COURT
OF
NEVADA
18
(0) 1947A