Saturday, March 10, 2012

NM court reverses CP conviction for double jeopardy violation, asks legislature to revise statute

In a New Mexico child pornography case (State v. Ballard, 2012 N.M. App. LEXIS 10), the Court of Appeals of New Mexico addressed the appropriate unit of prosecution in a double jeopardy appeal. The court noted that the definition of the word "medium" was key as the relevant statute makes possession of a "visual or print medium" illegal. The defendant argued that only one count existed because the "medium" was his computer where all of the images were stored. The state suggested the number should be 25 - each with a different child victim and distinct act. The defendant also made an argument that charges should be based "on the timing and manner in which they were collected and housed together."

The court ultimately decided that because the defendant had downloaded child pornography on five separate occasions and kept the images in different folders, he should only have been charged with five counts. The downloads were "in the nature of a single bundling of images" just like "obtaining a book or magazine." The court then called on the legislature to revise the statute to make the statute less ambiguous. Therefore, the conviction was reversed and remanded.

Ballard, who had given the computer to a coworker to install updates on it, also argued that the search of the computer violated the Fourth Amendment. He admitted to the coworker that it contained child pornography and asked him to reformat the drives. Soon thereafter, the coworker gave the computer to law enforcement. The court found that Ballard lost any expectation of privacy upon voluntarily giving the computer to his coworker and admitting it contained child pornography.


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