AI Generated Opinion Summaries

This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.

Facts

• The Supreme Court of New Mexico reviewed the correct unit of prosecution for possession of child pornography under the Sexual Exploitation of Children Act when various media are used to store images. Defendant James Michael Olsson was charged with sixty counts based on photographs in binders and images on his computer. Defendant William Ballard was charged with twenty-five counts based on an external computer hard drive containing images and videos of minors. The issue was whether each image or video constituted a separate count of possession or if possession, regardless of the number of images, should be considered a single offense (paras 1, 3, 8).

Procedural History

• State v. Olsson, No. 29,713, mem. op. (N.M. Ct. App. Aug. 23, 2011) (non-precedential): The Court of Appeals held that the statute does not clearly define the unit of prosecution and remanded for further factual development regarding the distinctness of the images.
• State v. Ballard, 2012-NMCA-043, 276 P.3d 976: The Court of Appeals found that each distinct download constituted a separate offense but reduced Ballard's twenty-five convictions to five based on the number of separate download dates.

Parties' Submissions

• Defendant-Petitioner (Olsson and Ballard): Argued that the statute is ambiguous regarding the unit of prosecution and that they should each only be charged with one count of possession of child pornography, regardless of the number of images or videos possessed.
• Plaintiff-Respondent (State of New Mexico): Contended that the plain meaning of the statute indicates a legislative intent to create multiple units of prosecution based on each image or video depicting child pornography.

Legal Issues

• Whether the Legislature has clearly defined the unit of prosecution for possession of child pornography under NMSA 1978, Section 30-6A-3(A).
• Whether the Herron indicia of distinctness test is applicable in cases of possession of child pornography.

Disposition

• The Supreme Court held that the Legislature has not clearly defined the unit of prosecution for possession of child pornography, that the Herron test is not applicable in possession cases, and applied the rule of lenity to hold that Olsson and Ballard can each only be charged with one count of possession (para 2).

Reasons

• The Court found the statutory language ambiguous and the legislative history and purpose did not clarify the intended unit of prosecution. It determined that the Herron test of distinctness does not apply to possession cases due to the nature of the crime not fitting the Herron mold, which is tailored for cases with direct contact between the defendant and the victim. Consequently, the Court applied the rule of lenity, resolving doubts against turning a single transaction into multiple offenses, and recommended that the Legislature revise the statute to reflect modern technological advances and clarify the intended unit of prosecution (paras 15-45).