A. 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 for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. When a separate finding of fact made by a court or jury shows beyond a reasonable doubt that a child depicted in the visual or print medium is a child under the age of thirteen, the basic sentence shall be increased by one year, and the sentence imposed by this subsection shall be the first year served and shall not be suspended or deferred; provided that when the offender is a youthful offender, the sentence imposed by this subsection may be increased by one year.

B. The provisions of Subsection A of this section shall not apply to a depiction possessed by a child under the age of eighteen in which the depicted child is between the ages of fourteen and eighteen and the depicted child knowingly and voluntarily consented to the possession, and:

(1) the depicted child knowingly and voluntarily consented to the creation of the depiction; or

(2) the depicted child knowingly and voluntarily produced the depiction without coercion.

This subsection shall not prohibit prosecution nor create an immunity from prosecution for the possession of depictions that are the result of coercion.

C. It is unlawful for a person to intentionally distribute 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 third degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

D. It is unlawful for a person to intentionally cause or permit a child under eighteen years of age to engage in any prohibited sexual act or simulation of such an act if that person knows, has reason to know or intends that the act may be recorded in any obscene visual or print medium or performed publicly. A person who violates the provisions of this subsection is guilty of a third degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978 unless the child is under the age of thirteen, in which event the person is guilty of a second degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

E. It 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. A person who violates the provisions of this subsection is guilty of a second degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

F. It 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 that person knows or has reason to know that the obscene medium depicts a prohibited sexual act or simulation of such an act and if that person knows or has reason to know that a real child under eighteen years of age, who is not a participant, is depicted as a participant in that act. A person who violates the provisions of this subsection is guilty of a fourth degree felony.

G. It is unlawful for a person to intentionally distribute 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 a prohibited sexual act or simulation of such an act and if that person knows or has reason to know that a real child under eighteen years of age, who is not a participant, is depicted as a participant in that act. A person who violates the provisions of this subsection is guilty of a third degree felony.

H. The penalties provided for in this section shall be in addition to those set out in Section 30-9-11 NMSA 1978.

History: Laws 1984, ch. 92, § 3; 1989, ch. 170, § 1; 1993, ch. 116, § 2; 2001, ch. 2, § 2; 2007, ch. 144, § 1; 2016, ch. 2, § 1.

Cross references. — For the Sex Offender Registration and Notification Act, see Chapter 29, Article 11A NMSA 1978.

The 2016 amendment, effective February 25, 2016, increased the penalties for sexual exploitation of children offenses and exempted certain behavior from the offense of possession of prohibited material where the person possessing the material is a minor and the person depicted in the material is a minor between the ages of fourteen and eighteen and consented to the creation, production and possession of the material; in Subsection A, after "fourth degree felony", added the remainder of the subsection; added a new Subsection B and redesignated the succeeding subsections accordingly; in Subsection C, after "third degree felony", added the remainder of the subsection; in Subsection D, after "third degree felony", added "for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978", and after "second degree felony", added the remainder of the subsection; and in Subsection E, after "second degree felony", added the remainder of the subsection.

The 2007 amendment, effective July 1, 2007, added Subsections E and F and relettered former Subsection E as Subsection G.

The 2001 amendment, effective July 1, 2001, added Subsection A and renumbered the remaining subsections accordingly; in Subsection B, deleted "or posess with intent to distribute" following "intentionally distribute," and inserted "obscene" preceding "medium depicts"; throughout the section, inserted "obscene" preceding "visual or print medium"; and made stylistic changes.

The 1993 amendment, effective June 18, 1993, inserted "that person knows or has reason to know that" in the first sentence of Subsection A; and substituted "eighteen" for "sixteen" in the first sentence of Subsections A, B, and C.

The 1989 amendment, effective June 16, 1989, in Subsection A deleted "for pecuniary profit" following "possess with intent to distribute" in the first sentence, and substituted "third" for "fourth" in the second sentence; in Subsection B substituted "third" for "fourth" near the beginning of the second sentence and "second" for "third" near the end of that sentence; deleted former Subsection C, which read: "It is unlawful for any person to intentionally cause or permit a child under sixteen years of age to engage in any prohibited sexual act or simulation of such an act if that person knows or intends that the act be recorded in any visual or print medium made for the purpose of sale or other pecuniary profit. Any person who violates this subsection is guilty of a third degree felony, unless the child is under the age of thirteen, in which event the person is guilty of a second degree felony"; redesignated former Subsection D as present Subsection C, while substituting "second" for "third" in the second sentence therein; and added present Subsection D.

Vagueness. — This section is not vague nor is the decision of Myers II, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105 an unforeseeable interpretation of the statute. State v. Myers, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13.

Constitutional challenge to sexual exploitation of children statute. — Where defendant was charged with two counts of manufacturing child pornography and one count of possession of child pornography, and where defendant claimed that, contrary to constitutional guarantees of equal protection and substantive due process, there is no rational basis for punishing him with second-degree manufacturing and fourth-degree possession for recording a sex act to which the minor participant legally consented, defendant's constitutional challenge was denied because defendant failed to address how this section treated differently groups that were similarly situated. State v. Gwynne, 2018-NMCA-033, cert. denied.

Sufficient evidence of manufacturing and possession of child pornography. — Where defendant was charged with two counts of manufacturing child pornography and one count of possession of child pornography, there was sufficient evidence to support defendant's convictions for both manufacturing and possession of child pornography where the state presented evidence that defendant video-recorded himself and a sixteen-year-old girl engaging in sexual intercourse on two separate occasions and evidence that law enforcement seized from defendant's home a collection of child pornography separate and distinct from the videos of defendant and the minor. State v. Gwynne, 2018-NMCA-033, cert. denied.

Lewdness standard. — The state must apply both an objective standard for lewdness and a subjective standard for the statutory element of "for the purpose of sexual stimulation." No accused can be convicted under the Act merely for his own misguided subjective intent; the images must first satisfy the objective criteria for lewdness. State v. Myers, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13.

Retroactive application of interpretation. — The supreme court's opinion in State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105 was not an unforeseeable judicial enlargement of the Sexual Exploitation of Children Act such that defendant could not fairly have foreseen that defendant's conduct would be "lewd" within the meaning of the Act, the opinion applied retroactively to defendant's conduct, and the retroactive application of the opinion to defendant's conduct did not violate due process. State v. Myers, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13, rev'g 2010-NMCA-007, 147 N.M. 574, 226 P.3d 673.

Retroactive application of statutory interpretation. — Where, in 2004, defendant set up a video camera in a unisex bathroom adjacent to defendant's office for the purpose of recording females while they used the restroom; two of the females were minors at the time of recording; in 2004, the judicial interpretation of Subsection D of Section 30-6A-3 NMSA 1978 required the state to prove that the photographs were hard-core child pornography and applied an objective standard to determine whether defendant intended to manufacture the photographs for purposes of sexual stimulation; and in 2007, the New Mexico supreme court changed the statutory interpretation to require the state to prove that the photographs were child pornography, which the fact finder determines to be obscene, and applied a subjective standard to determine whether defendant manufactured the photographs for purposes of sexual stimulation, Subsection D of Section 30-6A-3 NMSA 1978, as interpreted by the New Mexico supreme court, was unconstitutionally vague as applied to defendant's conduct, because the New Mexico supreme court's interpretation of the statute was unforeseeable. State v. Myers, 2010-NMCA-007, 147 N.M. 574, 226 P.3d 673, cert. granted, 2010-NMCERT-001, rev'd, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13.

Manufacture of prohibited images. — Where the defendant transferred pornographic images of children and infants from a computer to an external drive, the defendant manufactured the images. State v. Smith, 2009-NMCA-028, 145 N.M. 757, 204 P.3d 1267, cert. quashed, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.

Lewd photographs. — Where the defendant covertly videotaped minor female victims using the bathroom; the photographs depicted the victims unclothed from the waist down; the victim's pubic area was the focal point of the photographs; the victims appeared to be unaware that they were being photographed; and the photographs placed the viewer in the position of a voyeur, the photographs were lewd because they had a voyeuristic and deviant quality that rendered them sexual in nature. State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105, rev'g in part State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554.

Subjective standard adopted to determine intent. — The court rejected the objective standard, which views challenged material from the perspective of an ordinary reasonable person, and adopted the subjective standard, which examines the criminal defendant's actual intent in distributing, possessing, or manufacturing images, as the proper standard by which to assess whether challenged material is manufactured for the purpose of sexual stimulation. In determining the defendant's intent, the trier of fact is not limited to the photographs but, rather, is permitted to consider extrinsic evidence of the defendant's intent, such as the circumstances under which the photographs were taken, the location where the photographs were found, and the presence or absence of other pornographic material. State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105, rev'g in part State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554.

Obscene photographs. — Where the defendant covertly videotaped minor female victims using the bathroom and the photographs depicted the victims unclothed from the waist down; the photographs of the victims depicted a lewd and sexually explicit exhibition with a focus on the pubic area of the victims for the defendant's own sexual gratification, the photographs were obscene because they constituted child pornography. State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105, rev'g in part State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554.

Sufficient evidence of intentional possession of child pornography. — Where defendant was charged with sexual exploitation of children, and at trial admitted that he searched for and intentionally downloaded numerous videos from the internet which contained child pornography, that he viewed the child pornography for "research purposes", and that he deleted videos of child pornography by moving them to his recycle bin on his computer, and where child pornography videos were found in defendant's recycle bin, there was sufficient evidence to permit a reasonable jury to conclude beyond a reasonable doubt that defendant intentionally possessed child pornography. State v. Santos, 2017-NMCA-075, cert. denied.

Sufficient evidence of possession of child pornography. — Where the state presented evidence that there were more than nine hundred downloads of suspected child pornography in a year to the IP address used by defendant's computer, most of which were determined to be images of child pornography, and where one investigator used peer-to-peer software to retrieve five images of child pornography from the shared folder of a single computer at the same IP address, and where officers executing a search of defendant's home discovered an external hard drive for defendant's computer on which investigators were able to retrieve fifty-two images of child pornography that had been deleted, a rational jury could reasonably infer that defendant had knowingly obtained, manipulated, stored, and shared the child pornography using his computer, and there was sufficient evidence for a rational jury to find beyond a reasonable doubt that defendant intentionally possessed child pornography. State v. Adamo, 2018-NMCA-013, cert. denied.

Mens rea for intentional distribution of child pornography. — General criminal intent, purposely doing an act which the law declares to be a crime, is sufficient to convict for intentional distribution of child pornography. State v. Franco, 2019-NMCA-057, cert. denied.

Mens rea for intentional possession of child pornography and intentional manufacture of child pornography. — General criminal intent, purposely doing an act which the law declares to be a crime, is the mens rea for intentional possession of child pornography and intentional manufacture of child pornography. State v. Knight, 2019-NMCA-060, cert. denied.

Substantial evidence supported defendant's convictions for intentional distribution of child pornography. — Where defendant was charged with eight counts of distribution of child pornography, and where, at trial, the state presented evidence that defendant downloaded a peer-to-peer, file-sharing network and acknowledged he was familiar with file-sharing networks, that for over five years defendant used such networks to access child pornography, that defendant used a network that required sharing in order to continue accessing files, that defendant kept files containing child pornography in his shared folder which were accessible to others on the network, and that defendant admitted that he was sharing, but denied that he was distributing child pornography, there was sufficient evidence to prove beyond a reasonable doubt that defendant committed distribution of child pornography with the requisite intent. State v. Franco, 2019-NMCA-057, cert. denied.

Defendant's multiple convictions for distribution of child pornography violated double jeopardy. — Where defendant was convicted of eight counts of distribution of child pornography based on evidence that defendant downloaded a peer-to-peer, file-sharing network and acknowledged he was familiar with file-sharing networks, that for over five years defendant used such networks to access child pornography, that defendant used a network that required sharing in order to continue accessing files, that defendant kept files containing child pornography in his shared folder, which were accessible to others on the network, defendant's multiple convictions for distribution of child pornography violated double jeopardy, because defendant's conduct in using the file-sharing network did not constitute separate acts of sufficient distinctness to warrant multiple units of prosecution for distribution of child pornography. State v. Franco, 2019-NMCA-057, cert. denied.

Defendant's multiple convictions for intentional possession of child pornography violated double jeopardy. — Where defendant was convicted of four counts of possession of child pornography, defendant could only be convicted of one count of possession of child pornography, because the unit of prosecution was ambiguous. State v. Knight, 2019-NMCA-060, cert. denied.

Defendant's multiple convictions for manufacture of child pornography did not violate double jeopardy. — Where defendant was convicted of ten counts of manufacture of child pornography, and where evidence showed that law enforcement officers found a computer in defendant's bedroom that contained ten separate videos containing child pornography, that the videos were contained on five different pieces of media; three videos on one DVD, one video on a second DVD, two videos on a third DVD, one video on a fourth DVD, and three videos on an external hard drive, double jeopardy did not require the counts to be merged, because each photograph the defendant copied of the child victims was a distinct violation of the statute. The unit of prosecution for the charges at issue is each copy of an electronic video file, no matter whether each file is copied individually or whether multiple files are copied in a batch. State v. Knight, 2019-NMCA-060, cert. denied.

Substantial evidence supported defendant's convictions for intentional possession of child pornography. — Where defendant was convicted of four counts of possession of child pornography, and where, at trial, the state presented evidence that when defendant's home was searched, law enforcement officers found a computer in his bedroom that contained four specific videos containing child pornography and that each of the file names identified contained the same child pornography search terms that defendant admitted to being familiar with, there was sufficient evidence to prove beyond a reasonable doubt that defendant committed possession of child pornography with the requisite intent. State v. Knight, 2019-NMCA-060, cert. denied.

Substantial evidence supported defendant's convictions for intentional manufacture of child pornography. — Where defendant was convicted of ten counts of manufacture of child pornography, and where, at trial, the state presented evidence that when defendant's home was searched, law enforcement officers found a computer in his bedroom that contained ten separate videos containing child pornography, that the videos were contained on five different pieces of media; three videos on one DVD, one video on a second DVD, two videos on a third DVD, one video on a fourth DVD, and three videos on an external hard drive, and that each of the videos identified contained the same child pornography search terms that defendant admitted to being familiar with, there was sufficient evidence to prove beyond a reasonable doubt that defendant committed manufacture of child pornography with the requisite intent. State v. Knight, 2019-NMCA-060, cert. denied.

Jury instruction on possession of child pornography did not result in fundamental error. — In defendant's trial for possession of child pornography, where the jury was instructed that it had to find that defendant had any obscene visual medium in his possession, was given an instruction on "possession" that conformed with UJI 14-130 NMRA, which requires the jury to find that defendant knew he had pornographic computer images, that he knew they were on his person or in his presence, and that he exercised control over them, and where the jury was instructed that it was required to find that defendant acted intentionally and that a person acts intentionally when he purposely does an act which the law declares to be a crime, there was no fundamental error in the jury instructions because the instructions fairly and correctly stated the applicable law and would not cause jury confusion or misdirection. State v. Adamo, 2018-NMCA-013, cert. denied.

Scienter requirement in jury instructions. — The scienter requirement in 30-6A-3(A) NMSA 1978, that a person "knows or has reason to know" that one or more of the participants depicted in the child pornography is under eighteen, is constitutionally sufficient, and therefore fundamental error did not occur because there was no basis to conclude that the jury was misled or confused by the instructions they received. State v. Adamo, 2018-NMCA-013, cert. denied.

Failure to satisfy statutory elements. — Where the defendant hid a video camera in a women's bathroom; the state relied on photographs taken from the videotape as demonstrative of what was on the videotapes; and the photographs showed the victims' pubic hair, the victims pulling up or pulling down their underwear, but did not show any external female genitalia, the photographs were not lewd, sexually explicit or inherently sexually suggestive and did not depict a prohibited sexual act and did not satisfy the statutory elements of the offense. State v. Myers, 2008-NMCA-047, 143 N.M. 710, 181 P.3d 702, rev'd, 2009-NMCA-016, 146 N.M. 128, 207 P.3d 1105.

Unit of prosecution is not defined. — The plain meaning of the language of Section 30-6A-3(A) NMSA 1978 as to the proper unit of prosecution is ambiguous and the history and purpose of the statute do not clarify the ambiguity. State v. Olsson, 2014-NMSC-012, rev'g 2008-NMCA-009, 143 N.M. 351,176 P.3d 340 and State v. Ballard, 2012-NMCA-043, 276 P.3d 976.

Herron factors are not applicable in possession cases. — The factor analysis in Herron v. State, 1991-NMSC-012, 111 N.M. 357, 805 P.2d 624, to determine whether offenses are distinct is specifically tailored to a case where a defendant has direct contact with a victim and is not applicable in possession cases. The indicia of distinctness factors do not determine the unit of prosecution in possession of child pornography cases. State v. Olsson, 2014-NMSC-012, rev'g 2008-NMCA-009, 143 N.M. 351,176 P.3d 340 and State v. Ballard, 2012-NMCA-043, 276 P.3d 976.

Rule of lenity applied. — Where Olsson was charged with sixty counts of possession of child pornography based on photographs of minors found in three binders and three digital computer images; Ballard was charged with twenty-five counts of possession of child pornography based on twenty-five files that had been downloaded on five separate occasions and that consisted of eight files of video clips and seventeen files of still images; the statutory language of Section 30-6A-3(A) NMSA 1978 is ambiguous as to the unit of prosecution; and the factor analysis established in Herron v. State, 1991-NMSC-012, 111 N.M. 357, 805 P.2d 624, to determine whether offenses are distinct is not applicable in possession cases, the rule of lenity applied and Olsson and Ballard could each only be charged with one count of possession of child pornography. State v. Olsson, 2014-NMSC-012, rev'g 2008-NMCA-009, 143 N.M. 351,176 P.3d 340 and State v. Ballard, 2012-NMCA-043, 276 P.3d 976.

Unit of prosecution. — The unit of prosecution for Subsection D of Section 30-6A-3 NMSA 1978 is the production or copying of a single image of child pornography. State v. Leeson, 2011-NMCA-068, 149 N.M. 823, 255 P.3d 401, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Where defendant's computer contained many pornographic images of children; the state charged defendant with twenty counts of sexual exploitation of children in violation of Subsection D of Section 30-6A-3 NMSA 1978; and defendant moved to have the twenty counts merged into one count on the ground that the multiple counts violated double jeopardy, each image of child pornography was a separate offense and double jeopardy did not require the counts to be merged. State v. Leeson, 2011-NMCA-068, 149 N.M. 823, 255 P.3d 401, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Section 30-6A-3 NMSA 1978 does not clearly define the unit of prosecution for the sexual exploitation of children based on the possession of binders containing obscene photographs. State v. Olsson, 2008-NMCA-009, 143 N.M. 351, 176 P.3d 340, rev'd, 2014-NMSC-012.

Unit of prosecution for possession of computer child pornography. — The principal unit-of-prosecution focus in cases under Section 30-6A-3 NMSA 1978 is on the definition of "visual or print medium". Multiple images or victims depicted in the possessed medium cannot, under the definition of "visual or print medium" in Section 30-6A-2 NMSA 1978, be identified as the principal or sole distinguishing or distinctiveness factor in determining what constitutes "obscene visual or print medium" under Section 3-6A-3(A) NMSA 1978. State v. Ballard, 2012-NMCA-043, 276 P.3d 976, rev'd, State v. Olsson, 2014-NMSC-012.

Where defendant's computer contained twenty-five files, consisting of twenty-five separate images of child pornography that defendant had downloaded on five occasions, and defendant was convicted of twenty-five counts of sexual exploitation of children for possession of the illicit images, defendant was erroneously charged with and convicted on twenty-five counts because defendant's chargeable unlawful possession under Section 30-6A-3(B)(2) NMSA 1978 consisted of five separate and distinct downloads. State v. Ballard, 2012-NMCA-043, 276 P.3d 976, rev'd, State v. Olsson, 2014-NMSC-012.

Unit of prosecution for distribution of computer child pornography. — Where defendant possessed child pornography images in a shared file accessible on peer-to-peer software that third parties could download, defendant's acts did not have sufficient distinctness to justify multiple punishments, and defendant could only be charged with one count of distribution of child pornography, because his act of creating one distinct computer file containing multiple images of child pornography were not shown to be distinct with regard to any images placed in the shared file, no multiplicity of separate actions was alleged to have occurred, and no evidence was presented to establish that defendant personally sent any image to a third party. State v. Sena, 2016-NMCA-062, cert. granted.

Corpus delicti of computer child pornography. — Where defendant's computer hard drive contained twenty-five files consisting of twenty-five separate images of child pornography; the hard drive was not introduced into evidence; a copy of the hard drive burned on DVD discs was introduced into evidence; the state's expert, who did not create the DVDs, identified defendant's computer and hard drive from photographs the expert took and testified that the expert made a bit-for-bit copy of the hard drive, analyzed the copy and found child pornography on the hard drive; and the expert identified each file that was shown on the DVD and testified as to the name of the file when it was downloaded onto the hard drive, and that the images contained on the DVDs were the same images that the expert saw on the bit-for-bit copy of the hard drive, the trial court did not err in denying defendant's motion to dismiss for lack of corpus delicti. State v. Ballard, 2012-NMCA-043, 276 P.3d 976, rev'd, State v. Olsson, 2014-NMSC-012.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity, construction, and application of statutes regulating sexual performance by child, 42 A.L.R.5th 291.

Admissibility of expert testimony as to criminal defendant's propensity toward sexual deviation, 42 A.L.R.4th 937.

Liability of church or religious society for sexual misconduct of clergy, 5 A.L.R.5th 530.

Validity, construction, and application of state statutes or ordinances regulating sexual performance by child, 42 A.L.R.5th 291.

Construction and application of United States Sentencing guideline § 2G2.1 et seq., pertaining to child pornography, 145 A.L.R. Fed. 481.