                                                  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

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                    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

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                 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.



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                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:



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                                  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.

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                            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

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                             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




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                    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.



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                      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.").



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                              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
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                 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

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                 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

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                   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

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                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,

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                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.



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                            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.




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                              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




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                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




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