The New Mexico Supreme Court granted cert on two cases. Each dealing with the proper unit of prosecution in possession of child pornography cases. In each case, appellants’ were convicted of multiple counts of possession of child pornography. Each count stood for different types of media (still images vs. digital images); as well as where the images were found (multiple binders, computers, hard drives); and dates of download. At trial, each appellant moved to merge all the counts into one single count for possession of all images.
Olsson Procedural Posture: 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 v. State, 1991–NMSC–012, 111 N.M. 357, 805 P.2d 624. Olsson I, 2008–NMCA–009, ¶ 9, 143 N.M. 351, 176 P.3d 340. The Court of Appeals was unable to conduct a Herron analysis, however, because it lacked relevant facts regarding the binders and individual photographs. 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. 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.
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. 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. Therefore, the Court of Appeals affirmed Olsson’s convictions.
Ballard Procedural Posture: The Court of Appeals found that each distinct download constituted a separate offense, but that multiple images within a download were not separate offenses. 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. ”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. 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’ underaged participants in a prohibited sexual act.” Ballard, 2012–NMCA–043, ¶ 30, ––– N.M. ––––, 276 P.3d 976. 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….”
Standard of Review: The issue of intended unit of prosecution is a question of law, that receives a de novo review.
Law/Analysis: 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. This analysis requires a two-part test: First determine if the legislature defined the unit of prosecution. If it is not clear from the language in the text we turn to the second part of the test; where courts must “determine whether a defendant’s acts are separated by sufficient ‘indicia of distinctness’ to justify multiple punishments.” State v. Gallegos, 254 P.3d 655.
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.
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.
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.
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.
The court employed the two-part test; and determined that the plain meaning of the statute was not apparent. Thus, moving to the legislative intent, “we conclude that the language, history, and purpose of Section 30–6A–3 do not in- form 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.” The court however was unable to apply the Herron factors, and held “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.”
Holding: 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.