 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 6          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                   NO. 28,491

10 RYAN JAMES ALAN THOMPSON,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Sandra A. Price, District Judge

14 Gary K. King, Attorney General
15 Andrew S. Montgomery, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Albright Law & Consulting
19 Jennifer R. Albright
20 Albuquerque, NM

21 for Appellant


22                                 MEMORANDUM OPINION

23 BUSTAMANTE, Judge.
 1        Defendant entered a conditional plea to one count of manufacturing child

 2 pornography, contrary to NMSA 1978, Section 30-6A-3(D) (2001) (amended 2007),

 3 a second degree felony, reserving the right to appeal the district court’s denial of his

 4 motion to dismiss and his motion to suppress. On appeal, Defendant argues (1) his

 5 act of saving pornographic images of children to a compact disc (CD) did not

 6 constitute manufacturing child pornography; (2) his statement taken prior to warnings

 7 being given in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), should have

 8 been suppressed; (3) his trial counsel was ineffective; and (4) the State committed

 9 prosecutorial misconduct.       Having considered these arguments,          we affirm

10 Defendant’s conviction.

11 BACKGROUND

12 I.     Defendant Was Properly Charged Under Section 30-6A-3(D)

13        Defendant filed a motion to dismiss pursuant to Rule 5-601(B) NMRA and

14 State v. Foulenfont, 119 N.M. 788, 895 P.2d 1329 (Ct. App. 1995), arguing that

15 Section 30-6A-3(D), which criminalizes the manufacturing of child pornography, did

16 not apply to his act of saving images to a CD. We previously addressed this matter

17 in State v. Smith, 2009-NMCA-028, 145 N.M. 757, 204 P.3d 1267. In Smith, the

18 defendant was charged with copying pornographic images of children to an external

19 hard drive. This Court held that “the copying of digital images to a portable storage


                                              2
 1 device creates a new digital copy of the prohibited image sufficient to constitute

 2 manufacturing under the definition of manufacturing found in . . . Section 30-6A-

 3 2(D).” Id. ¶ 2.

 4        To the extent Defendant asks this Court to reconsider its decision in Smith, we

 5 decline to do so. Defendant raises the same statutory construction arguments raised

 6 in Smith. Specifically, Defendant argues that this Court should not apply a formalistic

 7 and mechanical construction of the statute and should consider the gradation in

 8 sentencing imposed by the statute in order to distinguish individuals who merely copy

 9 photographs that have already been taken from those who actually photograph

10 children. This Court rejected this argument in Smith. See id. ¶¶ 10-17. To the extent

11 Defendant asserts that Smith presents “an incomplete analysis that violate[s] basic

12 tenets of statutory construction[,]” we disagree. Smith relies on the plain language of

13 the statute and the definition of “manufacture” as reflecting legislative intent,

14 consistent with how our courts interpret legislative acts. See id. ¶¶ 9-13 (citing State

15 of N.M. ex rel. Gaming Control Bd. v. Ten (10) Gaming Devices, 2005-NMCA-117,

16 ¶ 6, 138 N.M. 426, 120 P.3d 848, and State v. Frazier, 2007-NMSC-032, ¶ 23, 142

17 N.M. 120, 164 P.3d 1); see also Buzbee v. Donnelly, 96 N.M. 692, 700, 634 P.2d

18 1244, 1252 (1981) (“When a statute uses terms of art, we interpret these terms in




                                              3
 1 accordance with case law interpretation or statutory definition of those words, if

 2 any.”).

 3        Defendant also contends that his case is distinguishable from Smith, because in

 4 Smith the State alleged the defendant copied images to both an external hard drive and

 5 a CD and then transferred those copies to another computer. Defendant alleges that

 6 because (1) there is no allegation that Defendant saved the images to another

 7 computer, and (2) there was no evidence that saving a digital image directly from a

 8 website to a CD creates a new image, his conduct does not constitute manufacturing

 9 child pornography. To the extent Defendant is arguing that because he did not

10 transfer copies to another computer he cannot be charged for manufacturing, the act

11 of transferring the copies to another computer present in Smith was not necessary to

12 our determination that the defendant had committed manufacturing under Section 30-

13 6A-3(D). In Smith, we relied on Section 30-6A-3(D) which defines “manufacture”

14 as the “copying by any means” of “any prohibited sexual act or simulation of such an

15 act if one or more of the participants in that act is a child under eighteen years of

16 age[.]” 2009-NMCA-028, ¶ 9. Relying on this definition, we held that “when a

17 defendant copies the pornographic image to an external drive, he not only creates yet

18 another record of the prohibited act, but he also places it into a format that is easily

19 transferrable to many computers.” Id. ¶ 17. We held that the creation of a


                                              4
 1 transportable, shareable copy of the images constituted more than mere possession,

 2 and satisfied the Legislature’s definition of manufacturing. Id.

 3        To the extent Defendant argues that denial of the motion to dismiss was error

 4 because there was not evidence to support that saving a digital image directly to a CD

 5 creates a new image, Defendant misapprehends the nature of a Foulenfont motion. “In

 6 Foulenfont, we stated that it was proper for a district court to decide purely legal

 7 matters and dismiss a case when appropriate before trial.” State v. LaPietra, 2010-

 8 NMCA-009, ¶ 7, 147 N.M. 569, 226 P.3d 668. “Questions of fact, however, are the

 9 unique purview of the jury and, as such, should be decided by the jury alone.” Id.; see

10 also Foulenfont, 119 N.M. at 789-90, 895 P.2d at 1330-31. To the extent Defendant

11 is arguing that evidence needed to be presented as to whether a new image was

12 created, we understand Defendant to argue that whether a new image was created is

13 a factual matter. However, to the extent this is a factual matter, the district court was

14 correct in denying Defendant’s motion to dismiss. See State v. Hughey, 2007-NMSC-

15 036, ¶ 11, 142 N.M. 83, 163 P.3d 470 (holding that “where a motion involves factual

16 matters that are not capable of resolution without a trial on the merits, the trial court

17 lacks the authority to grant the motion prior to trial”).

18        Defendant could have required the State to make a factual showing by

19 exercising his right to a jury trial. Defendant appears to argue that he should now be


                                               5
 1 allowed to withdraw his plea. However, Defendant did not move to withdraw his plea

 2 with the district court, and may not attack his plea for the first time on appeal. See

 3 State v. Andazola, 2003-NMCA-146, ¶ 25, 134 N.M. 710, 82 P.3d 77 (“[I]f a

 4 defendant fails to file a motion to withdraw a plea in the district court, he or she

 5 cannot attack the plea for the first time on direct appeal.”). We therefore do not

 6 address Defendant’s argument that he be permitted to withdraw his plea.

 7        To the extent Defendant contends that our application of Smith’s interpretation

 8 of Section 30-6A-3(D) would violate the due process clause of the Federal

 9 Constitution and the ex post facto provision of the New Mexico Constitution, this

10 argument also fails. Defendant asserts that our holding in Smith was an unforeseeable

11 application of Section 30-6A-3(D). However, in Smith, we relied on the plain

12 language of the statute in disagreeing with the defendant’s argument that “ordinary

13 men must ‘guess’ at th[e] statute’s meaning[.]” 2009-NMCA-028, ¶ 18. We held that

14 the meaning of the statute was clear as it “specifically define[d] ‘copying by any

15 means’ as manufacturing.” Id. Given our analysis and holding in Smith, we simply

16 disagree with Defendant’s argument that our interpretation of Section 30-6A-3(D) in

17 Smith was unforeseeable.

18 II.    The District Court Properly Denied Defendant’s Motion to Suppress




                                             6
 1        Defendant contends that the district court erred in denying his motion to

 2 suppress because he was not informed of his rights in accordance with Miranda prior

 3 to being questioned. “An officer’s obligation to administer Miranda warnings arises

 4 only ‘when a person is (1) interrogated while (2) in custody.’” State v. Vasquez, 2010-

 5 NMCA-041, ¶ 26, 148 N.M. 202, 232 P.3d 438 (citation omitted), cert. denied, 2010-

 6 NMCERT-004, 148 N.M. 572, 240 P.3d 659. Defendant challenges the district

 7 court’s determination that the interview of Defendant was non-custodial.

 8        “In reviewing the [district] court’s determination regarding [the d]efendant’s

 9 entitlement to the protections of Miranda, ‘we bear in mind that there is a distinction

10 between factual determinations which are subject to a substantial evidence standard

11 of review and application of law to the facts[,] which is subject to de novo review.’”

12 Vasquez, 2010-NMCA-041, ¶ 26 (third alteration in original) (citation omitted). Thus,

13 “[w]e review the district court’s ruling on a motion to suppress to determine whether

14 the law was correctly applied to the facts, viewing the facts in the light most favorable

15 to the prevailing party.” State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d

16 785.

17        In order to determine whether an individual is in custody for Miranda purposes,

18 “the court must apply an objective test to resolve the ultimate inquiry: was there a

19 formal arrest or restraint of freedom of movement of the degree associated with a


                                               7
 1 formal arrest.” State v. Wilson, 2007-NMCA-111, ¶ 23, 142 N.M. 737, 169 P.3d 1184

 2 (internal quotation marks and citation omitted). Note that “[w]hile freedom to leave

 3 is not the ultimate inquiry, this consideration is firmly established in the law” and is

 4 a factor relevant to the inquiry of whether a person is in custody for Miranda

 5 purposes. Id. ¶¶ 1, 22-23 (emphasizing that the test for determining that a defendant

 6 is in Miranda custody is not one employed by using a Fourth Amendment analysis of

 7 investigatory detention versus de facto arrest, but instead whether the defendant’s

 8 freedom of movement is restrained by formal arrest or to a degree associated with a

 9 formal arrest).

10        Whether a person is in custody depends on “how a reasonable [person] in the

11 suspect’s position would have understood his situation” and not on the “subjective

12 perception of any of the members to the interview.” State v. Smile, 2009-NMCA-064,

13 ¶ 26, 146 N.M. 525, 212 P.3d 413 (internal quotation marks and citations omitted),

14 cert. granted, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360.

15        This Court has identified a number of factors to consider in determining
16        whether a reasonable person would believe he or she is free to leave
17        includ[ing] the purpose, place, and length of interrogation[,] . . . the
18        extent to which the defendant is confronted with evidence of guilt, the
19        physical surroundings of the interrogation, the duration of the detention,
20        and the degree of pressure applied to the defendant.

21 Vasquez, 2010-NMCA-041, ¶ 27 (alterations in original) (internal quotation marks and

22 citation omitted).

                                              8
 1        In the present case, Detective Frank Dart arrived at Defendant’s mother’s home

 2 where Defendant was residing, along with other officers, to execute a search warrant.

 3 Detective Dart testified that he asked Defendant if he would go to the police station

 4 to talk with him. Defendant agreed. Defendant drove to the police station in his own

 5 vehicle. Detective Dart followed Defendant in his unit. When Defendant arrived at

 6 the police station he went to the front lobby, had Detective Dart paged, and waited

 7 approximately five minutes, along with his girlfriend, for Detective Dart to come and

 8 get him. Defendant was then taken to a second waiting area, where he waited a few

 9 minutes while Detective Dart prepared the interview room. Defendant testified that

10 on the way to the conference room Detective Dart informed him that he was free to

11 leave, but that Detective Dart would not suggest that he do so. Defendant testified he

12 was placed in an interview room with a table and two chairs, a two-way mirror, and

13 a security camera. The interview lasted approximately two-and-a-half to three hours.

14 During that time, Defendant testified he wanted to leave but did not do so for fear that

15 he would be arrested. Defendant was not placed under arrest following the interview

16 and left the police station in his own vehicle. Further, Defendant testified that he was

17 never placed in handcuffs, that his girlfriend accompanied him to the police station

18 and was with him in both waiting areas, and that Defendant never asked for a break

19 or asked to leave the interview.


                                              9
 1        We conclude, viewing these facts in the light most favorable to the prevailing

 2 party, that Defendant was not in custody for purposes of the Fifth Amendment. We

 3 rely on this Court’s opinion in Bravo in reaching this conclusion. In State v. Bravo,

 4 the police arrived at the defendant’s house to ask if she and her husband would be

 5 willing to give a statement. 2006-NMCA-019, ¶ 12, 139 N.M. 93, 128 P.3d 1070.

 6 The defendant and her husband agreed to be interviewed and followed the officers to

 7 the police station in their own personal vehicle. Id. Once at the police station, the

 8 defendant confessed, but was not placed under arrest, and was allowed to go home

 9 with her husband at the conclusion of the interview. Id. ¶ 13. In holding that the

10 defendant in Bravo was not in custody for purposes of Miranda, we considered that

11 the defendant was asked to give another statement and was willing to do so; that the

12 defendant voluntarily went to the police station, followed the police in her own

13 personal vehicle, and was accompanied by her husband; that the defendant never

14 informed officers that she was tired; that the defendant was never placed in handcuffs

15 or told she was under arrest; and that, despite her confession, the defendant was

16 allowed to go home at the conclusion of her interview. Id. ¶¶ 12-13.

17        The circumstances in the present case are remarkably similar to those in Bravo.

18 We therefore conclude that Defendant was not subjected to “a formal arrest or

19 restraint on freedom of movement of the degree associated with a formal arrest.”


                                             10
 1 Wilson, 2007-NMCA-111, ¶ 14 (internal quotation marks and citation omitted); see

 2 also State v. Nieto, 2000-NMSC-031, ¶ 21, 129 N.M. 688, 12 P.3d 442 (holding that

 3 a suspect was not in custody where the suspect was “asked and agreed to accompany

 4 [the] police officers to the station, was free to leave or terminate the interview, and

 5 was provided transportation to and from the station” because these facts are

 6 “consistent    with   routine,   non-custodial    police   questioning”);     State   v.

 7 Munoz,1998-NMSC-048, ¶ 43, 126 N.M. 535, 972 P.2d 847 (holding that a suspect

 8 was not in custody where the suspect willingly went with police to be questioned, was

 9 not handcuffed or searched, was not interviewed in a locked space, and was taken

10 back home when the interview was completed). Accordingly, we hold that the district

11 court did not err in denying Defendant’s motion to suppress.

12 III.   Defendant Has Not Demonstrated Ineffective Assistance of Counsel

13        Defendant contends that he received ineffective assistance from his trial counsel

14 because (1) counsel threatened to discontinue representing Defendant if he did not

15 accept the plea agreement, thus, Defendant neither understood nor voluntarily entered

16 into the plea agreement; and (2) counsel did not preserve the issue of his ineffective

17 assistance of counsel claim in the conditional plea.

18        There is a two-fold test for proving ineffective assistance of counsel; the

19 defendant must show (1) that counsel’s performance fell below that of a reasonably


                                             11
 1 competent attorney, and (2) that the defendant was prejudiced by the deficient

 2 performance. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729.

 3 The burden of proof is on the defendant to prove both prongs. Id. “When an

 4 ineffective assistance claim is first raised on direct appeal, we evaluate the facts that

 5 are part of the record. If facts necessary to a full determination are not part of the

 6 record, an ineffective assistance claim is more properly brought through a habeas

 7 corpus petition, although an appellate court may remand a case for an evidentiary

 8 hearing if the defendant makes a prima facie case of ineffective assistance.” State v.

 9 Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.

10        To the extent Defendant claims trial counsel was ineffective for failing to

11 preserve his ineffective assistance of counsel claim, “we generally do not demand

12 preservation of the issue because effective assistance of counsel is a fundamental

13 right.” See Garcia v. State, 2010-NMSC-023, ¶ 28, 148 N.M. 414, 237 P.3d 716.

14 Moreover, turning to the allegation of ineffective assistance of counsel Defendant

15 claims should have been preserved, Defendant has pointed to nothing in the record

16 that supports his claim that trial counsel threatened to discontinue representing

17 Defendant if Defendant did not accept the plea agreement. As noted above, “[i]f facts

18 necessary to a full determination are not part of the record, an ineffective assistance

19 claim is more properly brought through a habeas corpus petition[.]”             Roybal,


                                              12
1 2002-NMSC-027, ¶ 19. As a result, we conclude that this matter is more properly

2 raised as a habeas corpus petition. See State v. Grogan, 2007-NMSC-039, ¶ 9, 142

3 N.M. 107, 163 P.3d 494 (expressing a preference for habeas corpus proceedings to

4 address ineffective assistance of counsel claims).




                                           13
 1 IV.    Prosecutorial Misconduct Was Not Preserved

 2        Defendant contends that the attorney prosecuting his case tried to improperly

 3 influence the defense’s case by intimidating a defense witness. The State responded

 4 to Defendant’s claim by asserting that (1) Defendant failed to preserve this claim, (2)

 5 Defendant has not claimed fundamental error, (3) Defendant waived his right to

 6 appeal this issue by not reserving it in his conditional plea, and (4) Defendant’s claim

 7 of prosecutorial misconduct is based on matters outside the record on appeal. The

 8 State is correct in pointing out that Defendant did not raise the issue below or reserve

 9 the issue of prosecutorial misconduct in his conditional plea agreement. Because

10 Defendant did not reserve the issue of prosecutorial misconduct in his plea agreement,

11 we conclude that Defendant waived the right to raise this issue on appeal. See State

12 v. Chavarria, 2009-NMSC-020, ¶ 9, 146 N.M. 251, 208 P.3d 896 (recognizing that

13 a voluntary guilty plea ordinarily constitutes a waiver of the defendant’s right to

14 appeal his conviction on other than jurisdictional grounds).

15 CONCLUSION

16        For the foregoing reasons, we affirm Defendant’s conviction.

17        IT IS SO ORDERED.


18
19                                         MICHAEL D. BUSTAMANTE, Judge


                                              14
1 WE CONCUR:


2
3 JONATHAN B. SUTIN, Judge


4
5 TIMOTHY L. GARCIA, Judge




                             15
