 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: _________________

 3 Filing Date: August 31, 2017

 4 NO. A-1-CA-34597

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 BRIAN ADAMO,

 9       Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
11 Raymond L. Romero, District Judge

12 Hector H. Balderas, Attorney General
13 Maris Veidemanis, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Bennett J. Baur, Chief Public Defender
17 Mary Barket, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1                                        OPINION

 2 VIGIL, Judge.

 3   {1}   A jury found Defendant Brian Adamo guilty of one count of sexual

 4 exploitation of children (possession) in violation of NMSA 1978, Sections 30-6A-

 5 3(A) (2007, amended 2016), under the Sexual Exploitation of Children Act (the Act),

 6 NMSA 1978, §§ 30-6A-1 to -4 (1984, as amended through 2016). This is commonly

 7 known as possession of child pornography. Defendant appeals, and concluding there

 8 was no reversible error in Defendant’s trial, we affirm.

 9 BACKGROUND

10   {2}   Following a preliminary hearing in the magistrate court in Carlsbad, New

11 Mexico, the district attorney filed a criminal information in the district court charging

12 Defendant with eighteen counts of sexual exploitation of children (possession) in

13 violation of Section 30-6A-3(A). Pursuant to State v. Olsson, 2014-NMSC-012, 324

14 P.3d 1230, an amended criminal complaint was then filed charging Defendant with

15 a single count of sexual exploitation of children (possession). At trial, the evidence

16 established the following facts.

17   {3}   Every internet subscriber has a unique Internet Protocol (IP) address that is

18 assigned by the subscriber’s internet provider and corresponds with the subscriber’s

19 residential address. Carlsbad Police Department Detective Blaine Rennie, who
 1 investigates crimes against children, testified that in March 2012, using software that

 2 detects IP addresses that have downloaded images of suspected child pornography

 3 and computers that are sharing such files, he detected “an exorbitant amount of

 4 downloads” of images that were identified as child pornography. The software

 5 monitors “SHA1 numbers,” unique number-letter combinations that are assigned to

 6 images when they are uploaded to the internet. Specifically, the software detects

 7 SHA1 numbers that are associated with child pornography and computers that are

 8 sharing such files, known as “peer-to-peer sharing.” The downloads belonged to an

 9 IP address where similar downloads had been detected in March 2011. There were

10 more than nine hundred downloads in a year at this IP address, and the majority were

11 known images of child pornography.

12   {4}   Detective Rennie contacted Agent Owen Pena of the New Mexico Attorney

13 General’s Office and asked him to try to obtain images from a single source at that

14 IP address. This is possible because images that one is willing to share with others are

15 downloaded and stored in the shared folder of the owner’s computer using peer-to-

16 peer software. Agent Pena explained that a person using peer-to-peer software must

17 download an image to the owner’s computer, then direct that the image be placed in

18 the shared folder of the computer; otherwise, the image cannot be accessed by another

19 party. The image is seen before it is downloaded and then saved in the shared folder.


                                              2
 1   {5}   On April 6, 2012, Agent Pena succeeded in downloading five images of child

 2 pornography from the shared folder of a computer at the IP address. Four of these

 3 images were admitted into evidence, and all of them had the same “pre-teen hard

 4 core” (PTHC) search term. Agent Pena said that images such as those he retrieved

 5 would be found in a file-sharing network, and to get the images, one has to use known

 6 search terms for child pornography such as “PTHC.” Normal search engines such as

 7 Google or Yahoo filter and “block” search terms for hard core child pornography

 8 images. With assistance from Agent Lisa Keyes of the Department of Homeland

 9 Security, Detective Rennie learned that the name and address of the account holder

10 was Defendant’s mother at a residential address in Carlsbad.

11   {6}   On June 19, 2012, a search warrant was executed at the home associated with

12 the IP address. Defendant, his mother, and his father were at home. Defendant’s

13 bedroom appeared as if he did not often leave the room, and it was described as

14 messy, in “disarray,” with pizza boxes, tissues, food items, clothes strewn about, and

15 sexual paraphernalia consisting of penile extenders, penile pumps, sex toys, and pills.

16 Defendant also had an operating computer in his bedroom with two hard drives, one

17 of which was an external hard drive. The computer was on at the time, depicting a

18 story with child characters and “sexual overtones.”




                                              3
 1   {7}   There were many computers in the home because Defendant’s father operated

 2 a computer repair business, and all the computers were seized. While some were non-

 3 functional and could not be analyzed, Agent Victor Sanchez of the New Mexico

 4 Department of Homeland Security searched all of the undamaged computers and

 5 devices for pornography and child pornography. The only pornography he found was

 6 on the external hard drive from Defendant’s room. Agent Sanchez testified that the

 7 external hard drive contained massive amounts of non-child pornography, including

 8 bestiality and cartoon pornography, which was highly organized and categorized by

 9 type, actors, and the like. Agent Sanchez did not find a category for child

10 pornography, nor did he find evidence that there ever had been one.

11   {8}   Agent Sanchez did not find any active or accessible child pornography when

12 he searched the external drive. However, using a process called “data carving,” he did

13 find child pornography in the deleted files. Agent Sanchez described “data carving”

14 in layman’s terms. He said to think of a computer as a library with books. The

15 computer’s master file table (MFT) is analogous to the card catalog in a library and

16 it tells the computer where the books are in the library. When the computer wants to

17 find something, it does not go through all its rows looking for the book, but it goes

18 to the MFT (the card catalog) that points to where the book is supposed to be, and

19 gets it. When a file is “deleted,” people have a misconception that the file is gone, but


                                               4
 1 it isn’t. The computer only goes into the card catalog and rips up the index card that

 2 told the computer where the file could be found. The book is still in the library, but

 3 the function of the card catalog telling the computer where the book is located is

 4 gone. Data carving tells the computer to go through every aisle in the library and look

 5 for images that were deleted, and the images are then recovered. Using this process,

 6 Agent Sanchez was able to retrieve approximately fifty-two images containing child

 7 pornography, and twelve were admitted into evidence. These were different from the

 8 four images admitted into evidence that were obtained by Agent Pena. The same

 9 analysis was performed on the computer belonging to Defendant’s parents, and no

10 images of child pornography were found.

11   {9}    Defendant did not testify, and he did not present any evidence. Additional

12 facts, necessary to address Defendant’s arguments, are set forth in our analysis of

13 Defendant’s arguments.

14 II.      DISCUSSION

15   {10}   Defendant argues on appeal that the judgment and sentence must be reversed

16 because: (1) there was insufficient evidence to support the verdict; (2) there was

17 fundamental error in the jury instructions; (3) the district court abused its discretion

18 in admitting sexual items found in Defendant’s bedroom; (4) the evidence about




                                              5
 1 Defendant refusing to speak to the police was improperly admitted; (5) ineffective

 2 assistance of counsel; and (6) other errors. We address each argument in turn.

 3 1.       Sufficiency of the Evidence

 4   {11}   Defendant contends that the evidence was not sufficient for a rational jury to

 5 conclude beyond a reasonable doubt that Defendant intentionally possessed child

 6 pornography, as required by Section 30-6A-3(A). We disagree.

 7   {12}   “Evidence is sufficient to sustain a conviction when there exists substantial

 8 evidence of a direct or circumstantial nature to support a verdict of guilt beyond a

 9 reasonable doubt with respect to every element essential to a conviction.” State v.

10 Smith, 2016-NMSC-007, ¶ 19, 367 P.3d 420 (internal quotation marks and citation

11 omitted). “Substantial evidence is relevant evidence that a reasonable mind might

12 accept as adequate to support a conclusion.” State v. Largo, 2012-NMSC-015, ¶ 30,

13 278 P.3d 532 (internal quotation marks and citation omitted). “In reviewing whether

14 there was sufficient evidence to support a conviction, [appellate courts] resolve all

15 disputed facts in favor of the [s]tate, indulge all reasonable inferences in support of

16 the verdict, and disregard all evidence and inferences to the contrary.” Id. (internal

17 quotation marks and citation omitted); see State v. Myers, 2009-NMSC-016, ¶¶ 7, 13,

18 146 N.M. 128, 207 P.3d 1105 (setting forth the standard for reviewing evidence for




                                               6
 1 sufficiency in a bench trial). We have already set forth what the pertinent evidence

 2 was at trial.

 3   {13}   The evidence supports the jury’s finding that sometime in the past Defendant

 4 knowingly possessed child pornography. The evidence showed that there were more

 5 than nine hundred downloads in a year to the IP address used by Defendant’s

 6 computer, most of which were known images of child pornography. In March 2012,

 7 exorbitant amounts of child pornography were being downloaded to that same IP

 8 address. Images of child pornography can only be obtained from a file sharing

 9 network using search terms such as “PTHC.” The following month, on April 6, 2012,

10 Agent Pena used peer-to-peer software to retrieve five images of child pornography

11 from the shared folder of a single computer at the same IP address. A person using

12 peer-to-peer software downloads the image to the owner’s computer where it is

13 viewed, then purposefully directs the image to be saved in the shared folder of the

14 computer, where it can be accessed by other computers with peer-to-peer software,

15 such as Agent Pena’s. Four of the images Agent Pena obtained were admitted into

16 evidence, and all of them had the same search term “PTHC.”

17   {14}   Two months later, on June 19, 2012, a search warrant was executed at the

18 physical address where the IP address was located. There were several computers at

19 the home because Defendant’s father operated a computer repair business at the


                                              7
 1 home. Agent Sanchez searched all of the undamaged computers and devices for

 2 pornography and child pornography, and pornography was found only on the external

 3 hard drive of Defendant’s computer. The external drive had massive amounts of non-

 4 child pornography, which was highly categorized. Although Agent Sanchez did not

 5 find any active child pornography that could be accessed on the computer, by using

 6 a process called “data carving” he was able to retrieve approximately fifty-two images

 7 of child pornography that had been “deleted” from the hard drive, and twelve of these

 8 images were admitted into evidence. A similar process failed to disclose any child

 9 pornography images on the computer belonging to Defendant’s parents.

10   {15}   A rational jury could fairly conclude from the foregoing evidence that there

11 was a single computer at the IP address downloading massive amounts of

12 pornography. Child pornography was also downloaded using peer-to-peer software.

13 Child pornography is only accessible through a file sharing network using search

14 terms specific to child pornography, and it can only be accessed by other users of

15 peer-to-peer software if it is manipulated and purposefully directed to be stored in a

16 shared folder. From the shared folder of that single computer at the IP address, Agent

17 Pena was able to retrieve five images of child pornography using peer-to-peer

18 software on April 6, 2012. Two months later, on June 19, 2012, approximately fifty-

19 two deleted images of child pornography were found on the external hard drive of


                                              8
 1 Defendant’s computer. The jury was able to look at the images retrieved by Agent

 2 Pena and Agent Sanchez, and following the instructions given by the district court,

 3 determine for itself whether the images were child pornography.

 4   {16}   We cannot overlook the fact that when the search warrant was executed, and

 5 an agent went into Defendant’s room, his computer was on, depicting children in a

 6 story with “sexual overtones.” In People v. Jaynes, 2014 IL App (5th) 120048, ¶ 57,

 7 11 N.E.3d 431, the court held that such evidence was admissible “to show intent,

 8 knowledge, and absence of mistake or accident.” “The defendant’s demonstrated

 9 interest in materials dealing with children engaged in sexual acts tended to show that

10 his accessing illicit images was knowing and voluntary rather than inadvertent.” Id.

11   {17}   Under all the evidence, a fair inference is that the sole computer at the IP

12 address that was used to download and share child pornography was Defendant’s, and

13 that Defendant had knowingly obtained, manipulated, stored, and shared the child

14 pornography using his computer.

15             In the context of prior possession of child pornography, a computer
16          user knowingly possesses the contraband when the user intentionally
17          downloads child pornography to the computer but later deletes the file
18          or when he or she performs some function to reach out and select the
19          image from the Internet. Indeed, a computer user who intentionally
20          accesses child pornography images on a website gains actual control
21          over the images, just as a person who intentionally browses child
22          pornography in a print magazine knowingly possesses those images,
23          even if he later puts the magazine down.


                                              9
 1 New v. State, 755 S.E.2d 568, 575 (Ga. Ct. App. 2014) (footnotes and internal

 2 quotation marks omitted); see State v. Santos, 2017-NMCA-___, ¶ 14, ___ P.3d ___,

 3 (No. 35,175, June 21, 2017) (concluding that by downloading, viewing, and deleting

 4 videos on his computer, the defendant possessed child pornography); Wise v. State,

 5 364 S.W.3d 900, 907 (Tex. Crim. App. 2012) (concluding that the evidence was

 6 sufficient for the jury to find that the defendant knowingly and intentionally

 7 possessed child pornography images before they were deleted); see also State v.

 8 Brown, 1984-NMSC-014, ¶ 12, 100 N.M. 726, 676 P.2d 253 (“A material fact may

 9 be proven by inference.”); State v. Stefani, 2006-NMCA-073, ¶ 39, 139 N.M. 719,

10 137 P.3d 659 (stating that a jury is free to draw inferences from the facts necessary

11 to support a conviction).

12   {18}   Defendant argues that because experts conceded that, in certain instances, it is

13 possible for child pornography to be “unwittingly” downloaded; that Defendant’s

14 computer was not directly tied to the images Agent Pena downloaded; that it was

15 possible for Agent Pena to have accessed any computer being repaired; that there is

16 no evidence that the images retrieved by Agent Sanchez were the same ones Agent

17 Pena downloaded; and that just because images had, at one time, been downloaded

18 to the external drive, does not in and of itself demonstrate that they were knowingly

19 or intentionally downloaded and then intentionally kept. In other words, Defendant


                                               10
 1 asserts that the evidence was lacking. These are all matters that the jury was free to

 2 accept or reject in its consideration and weighing of the evidence. See State v. Tapia,

 3 2015-NMCA-048, ¶ 12, 347 P.3d 738 (stating that determining the weight and effect

 4 of evidence is reserved to the jury as the fact-finder). In finding Defendant guilty, the

 5 jury rejected the propositions and conclusion that Defendant advances, and it is not

 6 within our purview to “re-weigh the evidence to determine if there was another

 7 hypothesis that would support innocence[.]” State v. Garcia, 2005-NMSC-017, ¶ 12,

 8 138 N.M. 1, 116 P.3d 72. Defendant also argues that because Agent Sanchez

 9 conceded that there was no indication Defendant could retrieve the deleted files or

10 that he had exercised any control over the deleted files other than to delete them, the

11 evidence is insufficient. Under the totality of the evidence presented, we disagree. See

12 State v. Schuller, 843 N.W.2d 626, 637 (Neb. 2014) (“It seems reasonable to infer that

13 [the defendant] deleted the files to hide evidence of his earlier knowing possession”

14 of child pornography).

15   {19}   The jury was instructed that it had to find Defendant possessed child

16 pornography on or about April 6, 2012, and/or June 12, 2012. We conclude that the

17 evidence was sufficient for a rational jury to find beyond a reasonable doubt that

18 Defendant intentionally possessed child pornography on both of these dates.




                                              11
 1 2.       Fundamental Instructional Error

 2   {20}   Defendant did not object to the jury instructions in the district court, and he

 3 therefore waived his right to argue that reversible error in the instructions requires a

 4 new trial. See Rule 12-321(A) NMRA (“To preserve an issue for review, it must

 5 appear that a ruling or decision by the trial court was fairly invoked.”). Defendant can

 6 only prevail on appeal by demonstrating that the jury instructions as given constitute

 7 fundamental error. See State v. Sandoval, 2011-NMSC-022, ¶ 13, 150 N.M. 224, 258

 8 P.3d 1016 (stating that if error in the jury instructions was not preserved in the district

 9 court, the appellate court reviews the instructions for fundamental error rather than

10 reversible error).

11   {21}   In State v. Anderson, 2016-NMCA-007, ¶ 9, 364 P.3d 306, this Court set forth

12 the standard for determining whether a jury verdict may be set aside for fundamental

13 error in jury instructions as follows:

14          [W]e first apply the standard for reversible error by determining if a
15          reasonable juror would have been confused or misdirected by the jury
16          instructions that were given. Juror confusion or misdirection may stem
17          from instructions which, through omission or misstatement, fail to
18          provide the juror with an accurate rendition of the relevant law. If we
19          determine that a reasonable juror would have been confused or
20          misdirected by the instructions given, our fundamental error analysis
21          requires us to then review the entire record, placing the jury instructions
22          in the context of the individual facts and circumstances of the case, to
23          determine whether the defendant’s conviction was the result of a plain
24          miscarriage of justice. If such a miscarriage of justice exists, we deem
25          it fundamental error.

                                                12
 1 (Alteration, internal quotation marks, and citations omitted); see also Sandoval,

 2 2011-NMSC-022, ¶¶ 13, 15, 20, 21 (describing the foregoing analytical framework

 3 for determining fundamental error in the jury instructions).

 4   {22}   We begin with an analysis of the statutory elements. The Act uses precisely

 5 defined terms to describe what is commonly understood to be pornography.

 6 Pornography under the Act is “any obscene visual or print medium” that depicts “any

 7 prohibited sexual act[.]” Section 30-6A-3(A).1 Using these defined terms, Section 30-

            1
 8              Section 30-6A-2 states:

 9          As used in the Sexual Exploitation of Children Act . . . :

10                A. “prohibited sexual act” means:

11                     (1) sexual intercourse, including genital-genital, oral-genital,
12                anal-genital or oral-anal, whether between persons of the same or
13                opposite sex;
14                     (2) bestiality;
15                     (3) masturbation;
16                     (4) sadomasochistic abuse for the purpose of sexual
17                stimulation; or
18                     (5) lewd and sexually explicit exhibition with a focus on the
19                genitals or pubic area of any person for the purpose of sexual
20                stimulation;

21                B.   “visual or print medium” means:

22                    (1) any film, photograph, negative, slide, computer diskette,
23                videotape, videodisc or any computer or electronically generated
24                imagery; or
25                    (2) any book, magazine or other form of publication or
26                photographic reproduction containing or incorporating any film,

                                                   13
 1 6A-3(A) sets forth the elements of sexual exploitation of children (possession) as

 2 follows:

 3        It is unlawful for a person to intentionally possess any obscene visual or
 4        print medium depicting any prohibited sexual act or simulation of such
 5        an act if that person knows or has reason to know that the obscene
 6        medium depicts any prohibited sexual act or simulation of such act and
 7        if that person knows or has reason to know that one or more of the
 8        participants in that act is a child under eighteen years of age.

 9 (Emphasis added). Stated in plain language, and broken down into its constituent

10 parts, Section 30-6A-3(A) makes it a crime to: (1) “intentionally possess” a “visual

11 or print medium” such as a photograph or computer image that depicts pornography

12 if: (2) a person “knows or has reason to know” that the medium depicts any

13 “prohibited sexual act;” and (3) the person “knows or has reason to know that one or

14 more of the participants in that act is a child under eighteen years of age.” In other


25            photograph, negative, slide, computer diskette, videotape,
26            videodisc or any computer generated or electronically generated
27            imagery;

15            ....

16            E.     “obscene” means any material, when the content if taken as
17                   a whole:

18                   (1) appeals to a prurient interest in sex, as determined by the
19            average person applying contemporary community standards;
20                (2) portrays a prohibited sexual act in a patently offensive
21            way; and
22                (3) lacks serious literary, artistic, political or scientific value.


                                                14
 1 words, it is not a crime under Section 30-6A-3(A) to intentionally possess

 2 pornography. However, it is a crime if a person intentionally possesses pornography

 3 and that person “knows or has reason to know” that one or more of the participants

 4 in the pornography “is a child under eighteen years of age.”

 5   {23}   The jury was instructed on the essential elements of possession of child

 6 pornography as follows:

 7             For you to find [D]efendant committed the act of sexual exploitation
 8          of children (possession) as charged in Count 1, the [S]tate must prove
 9          to your satisfaction beyond a reasonable doubt each of the following
10          elements of the crime:

11          1. [D]efendant had any obscene visual medium in his possession;

12          2. [D]efendant knew the obscene medium depicted a prohibited
13             sexual act2;

14          3. [D]efendant knew or had reason to know that one of the
15             participants was under the age of eighteen years of age;

16          4. This happened in New Mexico on or about the 6th day of April,
17             2012, and/or the 19th day of June, 2012.

18 Defendant contends the instructions suffer from fundamental error in three respects

19 in that they do not: (1) require a finding that Defendant “intentionally possessed”

20 child pornography as required by Section 30-6A-3(A); (2) require a finding of

           2
21           We note that this instruction required the jury to find that Defendant “knew”
22 the obscene visual medium depicted a sexual act, a higher standard than what is
23 required by Section 30-6A-3(A), that a person “knows or has reason to know” such
24 a fact.

                                              15
 1 recklessness, the scienter required by the First Amendment; and (3) inform the jury

 2 that merely deleting the images from the computer is not legally sufficient to

 3 constitute possession. We now turn to these arguments.

 4 A.       Intentional Possession

 5   {24}   Defendant first argues that Section 30-6A-3(A) requires a person to

 6 “intentionally possess” child pornography and that the instructions erroneously

 7 omitted this mens rea requirement. Specifically, Defendant contends that because the

 8 instruction only required the jury to find that Defendant had child pornography “in

 9 his possession,” rather than with a specific intent to “intentionally possess” child

10 pornography, it is fundamentally flawed. We disagree.

11   {25}   Defendant’s argument overlooks the structure of the statute and other

12 instructions given to the jury. The jury was instructed, first, that it had to find that

13 Defendant “had any obscene visual medium in his possession[.]” There is no dispute

14 that each of the computer images admitted into evidence constitute an “obscene visual

15 medium” that depicts a “prohibited sexual act,” that is, that they depict pornography.

16 The jury was given an instruction on “possession” that conforms with UJI 14-130

17 NMRA as follows:

18              A person is in possession of an obscene visual medium when, on
19          occasion in question, he knows what it is, he knows it is on his person
20          or in his presence and he exercises control over it.


                                              16
 1              Even if the object is not in his physical presence, he is in possession
 2          if he knows what it is and where it is and he exercises control over it.

 3             A person’s presence in the vicinity of the object or his knowledge of
 4          the existence or the location of the object is not, by itself, possession.

 5 This instruction required the jury to find that Defendant knew he had pornographic

 6 computer images, that he knew they were on his person or in his presence, and that

 7 he exercised control over them. In order to find “possession” under this instruction,

 8 the jury necessarily had to find that the possession was “knowing.” See People v.

 9 Kent, 970 N.E.2d 833, 839 (N.Y. 2012) (noting that “[t]he exercise of dominion or

10 control is necessarily knowing” (alteration, internal quotation marks and citation

11 omitted)). The jury was also instructed that it was required to find that Defendant

12 “acted intentionally” and that “[a] person acts intentionally when he purposely does

13 an act which the law declares to be a crime.” This instruction therefore required the

14 jury to additionally find that it was Defendant’s purpose to possess the pornography.

15 Taken together, these instructions required the jury to find that Defendant

16 “intentionally” possessed the pornography; that is, Defendant’s possession of the

17 pornography was both intentional and knowing.

18   {26}   It would have been preferable for the first paragraph of the jury instructions to

19 require a finding that Defendant “intentionally had any obscene visual medium in his

20 possession,” but as we have pointed out, omitting the word “intentionally” would not


                                                17
 1 cause jury confusion or misdirection because the instructions actually required the

 2 jury to find that Defendant’s possession of the child pornography was intentional.

 3 Jury instructions are “sufficient if they fairly and correctly state the applicable law.”

 4 State v. Rushing, 1973-NMSC-092, ¶ 20, 85 N.M. 540, 514 P.2d 297. Since there was

 5 no reversible error, it follows that there was no fundamental error in the instructions.

 6 B.       Scienter Requirement Under the First Amendment

 6   {27}   Secondly, Defendant argues that the essential elements instruction requiring

 7 the jury to find that Defendant “knew or had reason to know” that one of the

 8 participants was under the age of eighteen years is inconsistent with the requirement

 9 that he act intentionally and the minimum scienter required by the First Amendment

10 to the United States Constitution, which Defendant contends is recklessness. We have

11 already determined that the essential elements instruction complies with the statutory

12 requirement of “intentional possession” of a medium, visual or print, that depicts

13 obscenity. This is separate from the additional statutory requirement that a person

14 “knows or has reason to know that one or more of the participants in that act is a child

15 under eighteen years of age.” Section 30-6A-3(A). We therefore turn to Defendant’s

16 argument that the instruction on this element is flawed with fundamental error

17 because it does not require the jury to find recklessness, which Defendant contends

18 the First Amendment requires.


                                              18
 1   {28}   Possession of child pornography is not protected by the First Amendment. See

 2 Osborne v. Ohio, 495 U.S. 103, 111 (1990). States have a compelling interest in

 3 “safeguarding the physical and psychological well-being of a minor” and “[t]he

 4 prevention of sexual exploitation and abuse of children constitutes a government

 5 objective of surpassing importance.” New York v. Ferber, 458 U.S. 747, 756-57

 6 (1982) (internal quotation marks and citation omitted). Moreover, while pornography

 7 is entitled to First Amendment protection and can only be banned if deemed to be

 8 obscene under Miller v. California, 413 U.S. 15, 36-37 (1973), pornography that

 9 depicts minors can be proscribed, consistent with the First Amendment, whether or

10 not the images are obscene. Ashcroft v. Free Speech Coal., 535 U.S. 234, 240 (2002).

11 Nonetheless, the power to criminalize the possession of child pornography is not

12 without limits. See Ferber, 458 U.S. at 764. Child pornography laws, like obscenity

13 statutes, present a risk of self-censorship of constitutionally protected material.

14 Therefore, “[a]s with obscenity laws, criminal responsibility [for possession of child

15 pornography] may not be imposed without some element of scienter on the part of the

16 defendant.” Id. at 765. However, what level of scienter is constitutionally required,

17 consistent with the First Amendment, to criminalize the possession of child

18 pornography has not been decided by the United States Supreme Court. See

19 Commonwealth v. Kenney, 874 N.E.2d 1089, 1102 (Mass. 2007) (noting the absence


                                             19
 1 of a decision from the United States Supreme Court on what level of scienter is

 2 constitutionally required to convict a person of possession of child pornography);

 3 State v. Mauer, 741 N.W.2d 107, 113 (Minn. 2007) (noting that the minimum

 4 standard of scienter required for child pornography “remains unclear” because it has

 5 not yet been defined by the United States Supreme Court). Defendant would have us

 6 follow Mauer, however, we find Kenney more persuasive, and follow its reasoning.

 7   {29}   In Mauer, the Minnesota Supreme Court considered what level of scienter is

 8 required to satisfy the First Amendment under a Minnesota statute making it a crime

 9 to possess child pornography if the defendant “has reason to know” that the work

10 involves a minor. 741 N.W.2d at 109 (internal quotation marks and citation omitted).

11 The court concluded that the words “reason to know” are ambiguous in the context

12 of the First Amendment, and resorted to rules of statutory construction to determine

13 their meaning under its statute. Id. at 112-13. The court said that in Osborne, 495 U.S.

14 at 115, the United States Supreme Court “approved a recklessness standard,” and

15 concluded that the phrase “has reason to know” in Minnesota’s statute should

16 likewise require a recklessness standard. Mauer, 741 N.W.2d at 115 (internal

17 quotation marks and citation omitted). Following statutory and case law definitions

18 of “recklessness” and “recklessly,” the Mauer court held that, “a possessor of child

19 pornography has ‘reason to know’ that a pornographic work involves a minor where


                                              20
 1 the possessor is subjectively aware of a ‘substantial and unjustifiable risk’ that the

 2 work involves a minor.” Id. (quoting Minn. Stat. § 617.247 subd. 4(a)).

 3   {30}   In our view, this standard is not constitutionally required, and unnecessarily

 4 confuses what is required under Section 30-6A-3(A). Osborne does hold that a

 5 finding of recklessness satisfies the constitutional requirement of “some element of

 6 scienter” in a statute criminalizing the possession of child pornography, 495 U.S. at

 7 115, but Osborne does not require a finding of recklessness. Again, the United States

 8 Supreme Court has not established what level of scienter is required to make

 9 possession of child pornography a crime; it has only stated that “some element of

10 scienter” is required. On the other hand, in Ginsberg v. New York, 390 U.S. 629, 633-

11 34, 643 (1968), the United States Supreme Court approved of a scienter requirement

12 expressed as a “reason to know” in a statute that made it a crime “knowingly to sell”

13 material defined to be obscene to a minor under seventeen.

14   {31}   We are more persuaded by Kenney in which the court held that Massachusetts’s

15 possession of child pornography scienter requirement that a defendant “knows or

16 reasonably should know to be under the age of [eighteen] years of age” is

17 constitutionally sufficient. 874 N.E.2d at 1102-03 (internal quotation marks and

18 citation omitted). Child pornography, by definition, depicts children performing

19 sexual acts. In most cases, the image itself gives a person a “reason to know” that the


                                              21
 1 person depicted is under eighteen years of age. See United States v. Katz, 178 F.3d

 2 368, 373 (5th Cir. 1999) (“A case by case analysis will encounter some images in

 3 which the models are prepubescent children who are so obviously less than [eighteen]

 4 years old that expert testimony is not necessary or helpful to the fact finder.”); State

 5 v. Reinpold, 824 N.W.2d 713, 723 & n.20, 724 (Neb. 2013) (noting that several courts

 6 have concluded that it is not always necessary for the prosecution to present expert

 7 testimony on the minor’s age); State v. May, 829 A.2d 1106, 1118-19 (N.J. Super. Ct.

 8 App. Div. 2003) (stating that the images themselves that were admitted into evidence

 9 proved that the ages of those depicted were under sixteen years of age); State v.

10 Alinas, 2007 UT 83, ¶ 31, 171 P.3d 1046 (stating that courts have generally

11 recognized that, based on visual examination, jurors are capable of determining

12 whether the children depicted are under eighteen years of age). The statutory

13 requirement that a person “has reason to know” that a child depicted is under eighteen

14 years of age requires “some element of scienter.” The State’s “burden of proof on that

15 element may be satisfied with evidence that the physical disparity between the subject

16 of the sexually explicit material and a person who is eighteen years of age is such that

17 it would be obvious (beyond a reasonable doubt) to a reasonable person that the

18 material was proscribed.” Kenney, 874 N.E.2d at 1103. A defendant may present

19 evidence that the defendant reasonably did not know the child’s age, in which case


                                              22
 1 the state will be required to “prove that no reasonable person would not have known

 2 that the child subject was under the age of eighteen.” Id.

 3   {32}   No argument was made at trial that the children in the images admitted into

 4 evidence were not obviously under eighteen years of age, and there is no basis for us

 5 to conclude that the jury was misled or confused by the instructions they received.

 6   {33}   We hold that the scienter requirement in Section 30-6A-3(A) that a person

 7 “knows or has reason to know” that one or more of the participants depicted in the

 8 child pornography is under eighteen, is constitutionally sufficient.

 9          The fact that there will be very few cases at the margin raising doubt as
10          to the age of the child, with the vast majority of cases being self-evident
11          as to age, is sufficient, given the authority of the [l]egislature to regulate
12          in this area, to conclude that the scienter requirement of the statute is
13          constitutionally valid.

14 Kenney, 874 N.E.2d at 1103-04. Because there was no error in the jury instructions

15 on this element of the crime, there was no fundamental error.

16 C.       Deletion Does Not Equate With Possession

17   {34}   This brings us to Defendant’s last argument under this point, that the

18 instructions suffered from fundamental error because they failed to include a

19 statement that passing possession of the images for the sole purpose of deleting them

20 from a computer is not legally sufficient to constitute possession. We disagree. The

21 instructions required the jury to find that Defendant “intentionally possessed” the


                                                 23
 1 medium depicting the child pornography. Finding “intentional possession” under the

 2 instructions given required the jury to find that Defendant did more than exercise

 3 passing control over the images for the purpose of deleting them. We therefore reject

 4 Defendant’s last argument of fundamental error.

 5 3.       Admission of Sexual Items Into Evidence

 6   {35}   Before beginning his opening statement, the prosecutor approached the bench

 7 and advised the court that he intended to discuss that the investigators found bestiality

 8 on Defendant’s computer, together with sex toys and male enhancement products in

 9 Defendant’s bedroom. The prosecutor argued that this evidence was probative of

10 Defendant’s intent and that he was a sexual deviant. Defense counsel objected to the

11 sex toys and male enhancement products on grounds that it was prejudicial and

12 irrelevant to whether Defendant possessed child pornography. The district court ruled

13 that evidence of the sex toys and male enhancement products could be mentioned

14 because it was relevant to showing a prurient interest, motive, and intent. The district

15 court also ruled that this evidence could be mentioned because proving a prohibited

16 sexual act under the child pornography statute requires proof of a sexually explicit

17 exhibition for the purpose of sexual stimulation. Defendant contends that the district

18 court erred in ruling that the evidence could be mentioned in the State’s opening

19 statement, and in subsequently allowing its admission into evidence under Rules 11-


                                              24
 1 403 and 11-404 NMRA. We agree that the evidence was inadmissible but that its

 2 admission into evidence was harmless error under the circumstances.

 3   {36}   The admission of evidence under Rules 11-403 and 11-404(B) is reviewed for

 4 an abuse of discretion. State v. Otto, 2007-NMSC-012, ¶ 9, 141 N.M. 443, 157 P.3d

 5 8 (“We review the [district] court’s decision to admit evidence under Rule 11-404(B)

 6 for [an] abuse of discretion.”). “An abuse of discretion occurs when the ruling is

 7 clearly against the logic and effect of the facts and circumstances of the case.” Otto,

 8 2007-NMSC-012, ¶ 9 (internal quotation marks and citation omitted); see State v.

 9 Chamberlain, 1991-NMSC-094, ¶ 9, 112 N.M. 723, 819 P.2d 673 (“The [district]

10 court is vested with great discretion in applying Rule [11-]403, and it will not be

11 reversed absent an abuse of that discretion.”).

12   {37}   Rule 11-404(B)(1) directs that “[e]vidence of a crime, wrong, or other act is not

13 admissible to prove a person’s character in order to show that on a particular occasion

14 the person acted in accordance with the character.” However, such evidence “may be

15 admissible for another purpose, such as proving motive, opportunity, intent,

16 preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Rule

17 11-404(B)(2). Rule 11-404(B)(1) articulates a principle that evidence of other crimes,

18 wrongs, or acts should generally be excluded. State v. Jones, 1995-NMCA-073, ¶ 5,

19 120 N.M. 185, 899 P.2d 1139. However, if such evidence is offered for a proper


                                               25
 1 purpose under Rule 11-404(B)(2), a district court is required to articulate or identify

 2 the consequential fact to which the proffered evidence is directed. Jones, 1995-

 3 NMCA-073, ¶ 5; see State v. Aguayo, 1992-NMCA-044, ¶ 18, 114 N.M. 124, 835

 4 P.2d 840 (“The initial threshold for admissibility of prior uncharged conduct is

 5 whether it is [for a proper purpose] probative on any essential element of the charged

 6 crime.”). Finally, even if the evidence is ruled admissible, a district court must engage

 7 in the balancing process under Rule 11-403. See id. (“The court may exclude relevant

 8 evidence if its probative value is substantially outweighed by a danger of one or more

 9 of the following: unfair prejudice, confusing the issues, misleading the jury, undue

10 delay, wasting time, or needlessly presenting cumulative evidence.”).

11   {38}   We agree with Defendant that the sex toys and male enhancement products

12 found in Defendant’s bedroom had no particular relevance to any issue in the case.

13 Rather, the evidence served no purpose other than to portray Defendant’s character,

14 in the words of the prosecutor, as a “sexual deviant.” We therefore conclude that the

15 evidence was not admissible under Rule 11-404(B). The district court’s ruling was

16 that the evidence was relevant. Rule 11-401 NMRA mandates that in order for

17 evidence to be relevant, it must satisfy a two-part test: (1) it must have “any tendency

18 to make a fact more or less probable than it would be without the evidence,” and (2)

19 the evidence “is of consequence in determining the action.” A person’s possession of


                                              26
 1 sex toys and male enhancement products does not make it more likely that the person

 2 will search for, download, view, save, and delete child pornography using a computer.

 3 Cf. United States v. Quarles, 25 M.J. 761, 775 (N-M. Ct. Crim. App. 1987) (“We fail

 4 to see how possession of sexual aids and erotic magazines equates with being a sex

 5 fiend or deviant much less having any probative value” as to whether the defendant

 6 sodomized his children). In other words, the evidence was irrelevant and

 7 inadmissible. See Rule 11-402 NMRA (“Irrelevant evidence is not admissible.”). We

 8 therefore conclude that the district court abused its discretion in admitting this

 9 evidence. See State v. Perez, 2016-NMCA-033, ¶ 11, 367 P.3d 909 (noting that an

10 abuse of discretion arises from the exercise of discretion based on a misunderstanding

11 of the law).

12   {39}   We must still determine if the error in admitting the sex toys and male

13 enhancement products into evidence was reversible error. The admission of evidence

14 in violation of the Rules of Evidence is a non-constitutional error, and a non-

15 constitutional error is harmless unless there is a “reasonable probability” that the error

16 affected the verdict. State v. Vargas, 2016-NMCA-038, ¶ 24, 368 P.3d 1232. “To

17 determine the likely effect of the error, courts must evaluate all of the circumstances.

18 These circumstances include other evidence of the defendant’s guilt, the importance

19 of the erroneously admitted evidence to the prosecution’s case, and the cumulative


                                               27
 1 nature of the error.” Id. (citation omitted); see State v. Tollardo, 2012-NMSC-008,

 2 ¶¶ 43-44, 275 P.3d 110 (setting forth considerations for reviewing courts when

 3 assessing whether the improper admission of evidence is harmless error). The

 4 evidence, not objected to, is that there were more than nine hundred downloads in a

 5 year, most of which were known images of child pornography, to the IP address used

 6 by Defendant’s computer; that in March 2012, “exorbitant” amounts of child

 7 pornography were being downloaded to that same IP address; that in April 2012,

 8 child pornography was retrieved from a “shared” folder of a computer at that IP

 9 address; that when the search warrant was executed, “massive” amounts of non-child

10 pornography, highly categorized, were found on Defendant’s computer in addition

11 to images of child pornography. This evidence evinces an intense, excessive interest

12 in sex, and we fail to see any reasonable probability that admission of the sex toys and

13 male enhancement products impacted the verdict. We therefore hold that the

14 erroneous admission of this evidence was harmless.

15 4.       Ineffective Assistance of Counsel

16   {40}   Defendant argues that his attorney’s ineffective assistance resulted in the

17 admission of prejudicial, inadmissible evidence, and that he is therefore entitled to

18 a new trial. The framework for deciding a claim of ineffective assistance of counsel

19 is well settled.


                                              28
 1          For a successful ineffective assistance of counsel claim, a defendant
 2          must first demonstrate error on the part of counsel, and then show that
 3          the error resulted in prejudice. Trial counsel is generally presumed to
 4          have provided adequate assistance. An error only occurs if
 5          representation falls below an objective standard of reasonableness. If
 6          any claimed error can be justified as a trial tactic or strategy, then the
 7          error will not be unreasonable. With regard to the prejudice prong,
 8          generalized prejudice is insufficient. Instead, a defendant must
 9          demonstrate that counsel’s errors were so serious, such a failure of the
10          adversarial process, that such errors undermine judicial confidence in
11          the accuracy and reliability of the outcome. A defendant must show a
12          reasonable probability that, but for counsel’s unprofessional errors, the
13          result of the proceeding would have been different.

14 State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (alterations,

15 internal quotation marks, and citations omitted). We now turn to each claim

16 Defendant makes.

17 A.       Evidence of Bestiality

18   {41}   After the prosecutor advised the district court that he wanted to tell the jury in

19 his opening statement that bestiality was found on Defendant’s computer, the district

20 court disallowed the evidence of bestiality on grounds that it was too prejudicial.

21 However, defense counsel said she did not object because it was found on

22 Defendant’s computer and because similar search terms are used to find material

23 related to bestiality and child pornography. The district court therefore ruled that if

24 defense counsel had no objection, the bestiality evidence could be mentioned as well.




                                                29
 1 Agent Sanchez later testified in cross-examination from defense counsel that

 2 bestiality and child pornography search terms are mututally exclusive.

 3   {42}   Defendant argues that counsel was ineffective in allowing the highly

 4 inflammatory and prejudicial bestiality evidence to be admitted because there is “no

 5 doubt” it was inadmissible under Rules 11-404(B) and 11-403, and having agreed to

 6 its admission, she had an obligation to bring in evidence substantiating that search

 7 terms for bestiality and child pornography are similar. A reasonable trial strategy

 8 could be that the bestiality pornography evidence, together with the other evidence

 9 in the case, e.g., that Defendant had massive amounts of non-child pornography on

10 the external hard drive to his computer, which included cartoon pornography, that

11 was highly organized and categorized by type, actors, and the like, and that there was

12 no active or accessible child pornography on the hard drive demonstrated that

13 Defendant’s interest in sexual matters, while extreme and outrageous, did not include

14 an interest in child pornography. This argument was actually made in defense

15 counsel’s opening statement, as well as Defendant’s brief to this Court. Counsel’s

16 alleged error in this instance can appropriately be justified as a trial tactic or strategy.

17 B.       Sexual Child Story

18   {43}   Agent Lea Whitis from the Department of Homeland Security was present

19 during the search, primarily to catalogue the items seized, but she did walk through


                                                30
 1 the house. Upon entering Defendant’s room, she noted that the computer was on and

 2 that there was a story on it with child characters and what she characterized as “sexual

 3 overtones.” When she was asked how the story affected her, defense counsel objected

 4 on the basis that the story was not produced in discovery and Agent Whitis did not

 5 mention it in her interview. The prosecutor admitted that the story had not been

 6 disclosed or produced in discovery. The district court sustained the objection on

 7 relevancy grounds and because the story was not disclosed in discovery, while noting

 8 that some evidence relating to the story had already been admitted without objection.

 9   {44}   Defendant argues that the failure to object to evidence of the child sex story

10 until after the State discussed it in their opening statement and the State had elicited

11 testimony about the story’s contents, constituted ineffective assistance of counsel, “as

12 the evidentiary challenges [to its admission] were clearly meritorious.” Whether the

13 child sex story was admissible is, however, subject to debate. See Jaynes, 2014 IL

14 App (5th) 120048, ¶¶ 55-57 (concluding that stories about underage sex found on the

15 defendant’s computer were admissible in a prosecution for possession of child

16 pornography to show that the defendant sought out sexual material involving children

17 and that it was knowing and voluntary, rather than inadvertent). We cannot conclude

18 that defense counsel provided ineffective assistance by failing to object to its receipt

19 in evidence.


                                              31
 1 Defendant’s “Character”

 2   {45}   Agent Keyes from the Department of Homeland Security was also present

 3 when the search warrant was executed. She testified to the condition of Defendant’s

 4 room and the presence of sex toys, male enhancement products, and a weapon inside

 5 the room. Asked if she also learned anything else about Defendant, Agent Keyes said

 6 that Defendant’s mother described Defendant as someone who was not very social,

 7 did not have friends or go out, and spent most of his time in his room.

 8   {46}   Defendant contends that defense counsel’s failure to object to the testimony

 9 about what Defendant’s mother said rendered counsel’s assistance ineffective.

10 Defendant asserts the evidence was inadmissible hearsay of Defendant’s character

11 that was inadmissible under Rules 11-404(B) and 11-403. The State counters that this

12 testimony was “merely cumulative” of the testimony of Agent Keyes and other agents

13 describing Defendant’s room, and therefore was not prejudicial. In any event, the

14 failure to object may have resulted from a deliberate choice not to object in order to

15 avoid bringing attention to the testimony. See State v. Martinez, 1996-NMCA-109,

16 ¶ 26, 122 N.M. 476, 927 P.2d 31 (“Failure to object to every instance of objectionable

17 evidence does not render counsel ineffective; rather, failure to object falls within the

18 ambit of trial tactics.” (internal quotation marks and citation omitted)).




                                              32
 1   {47}   In conclusion, we are unable to adequately determine whether any of the

 2 foregoing alleged shortcomings of counsel deprived Defendant of constitutionally

 3 adequate and effective assistance of counsel. Concluding that Defendant has failed

 4 to present a prima facie case of ineffective assistance of counsel, we reject

 5 Defendant’s claims without prejudice to Defendant pursuing habeas corpus

 6 proceedings based on these arguments. See Bernal, 2006-NMSC-050, ¶¶ 33, 36

 7 (expressing a general preference for ineffective assistance of counsel claims to be

 8 brought and resolved in habeas corpus proceedings, and when a prima facie case is

 9 not made on appeal, the claim is rejected without prejudice to raise the claim in a

10 habeas corpus proceeding).

11 5.       Comment on Defendant’s Silence

12   {48}   In her opening statement, defense counsel discussed the execution of the search

13 warrant. Defense counsel said that the jury would hear that Defendant’s parents let

14 the police into the home and were in fact cooperative in asking and answering

15 questions, that there were no problems, and that Defendant “refused to talk without

16 a lawyer.”

17   {49}   During his testimony, Detective Rennie was asked how cooperative Defendant

18 and his parents were when the search warrant was executed. Detective Rennie said

19 that Defendant’s father was compliant and responsive, and that Defendant’s mother


                                              33
 1 was also cooperative and answered questions. The prosecutor asked if Defendant had

 2 been willing to talk to the officers, and Detective Rennie answered, “no.” Defense

 3 counsel objected, the parties approached the bench, and the district court immediately

 4 sustained the objection and admonished the prosecutor not to comment on

 5 Defendant’s silence. The district court noted defense counsel’s opening statement and

 6 ruled that it would not declare a mistrial, even though none was requested. The

 7 district court told the prosecutor not to mention this again and instructed the jury to

 8 disregard the question and answer.

 9   {50}   Defendant contends that the district court committed error in refusing to

10 declare a mistrial because the question asked of Detective Rennie and his answer

11 constituted an unconstitutional comment on Defendant’s silence. Because the facts

12 are undisputed, our review of Defendant’s claim is de novo. See State v. Gutierrez,

13 2003-NMCA-077, ¶ 9, 133 N.M. 797, 70 P.3d 787.

14   {51}   Like the district court, we observe that the question to Detective Rennie

15 apparently had its genesis in defense counsel’s opening statement. New Mexico

16 recognizes the doctrine of invited error. State v. Jim, 2014-NMCA-089, ¶ 22, 332

17 P.3d 870 (“It is well established that a party may not invite error and then proceed to

18 complain about it on appeal.”). This doctrine has been applied to the Fifth

19 Amendment privilege to remain silent. See, e.g., State v. Crumley, 625 P.2d 891, 894


                                             34
 1 (Ariz. 1981) (in banc); Shingledecker v. State, 734 So. 2d 483, 483-84 (Fla. Dist. Ct.

 2 App. 1999) (per curiam); State v. Batchelor, 579 S.E.2d 422, 428-29 (N.C. Ct. App.

 3 2003); However, it is not necessary for us to consider whether the doctrine and any

 4 limits to that doctrine apply in this case. Assuming that Defendant’s pre-arrest silence

 5 is entitled to constitutional protection, we conclude that Defendant’s constitutional

 6 right to remain silent was not used against him.

 7   {52}   In Greer v. Miller, 483 U.S. 756, 759 (1987), the defendant testified in his own

 8 defense, and on cross-examination, he was asked, “Why didn’t you tell this story to

 9 anybody when you got arrested?” Defense counsel immediately objected and

10 requested a mistrial. Id. The trial judge denied the motion for mistrial, sustained the

11 objection, and instructed the jury to disregard. Id. The prosecutor did not further

12 pursue the matter, and did not mention it in his closing argument. Id. The United

13 States Supreme Court held that, under the circumstances, the prosecutor had not used

14 the defendant’s silence. Id. at 764-65. Similarly, in State v. Smith, 2001-NMSC-004,

15 ¶ 36, 130 N.M. 117, 19 P.3d 254, our Supreme Court held, “We hold that there was

16 no violation of [the d]efendant’s right to silence when the prosecutor’s single

17 question was not answered, defense counsel immediately objected, the prosecutor did

18 not pursue the matter further, and defense counsel refused a curative instruction.”

19 There is no material difference here.


                                               35
 1   {53}   Although Detective Rennie answered the question, there was an immediate

 2 objection that was sustained, the prosecutor was admonished not to mention

 3 Defendant’s silence again, the prosecutor complied, and the jury was instructed to

 4 disregard the question and the answer. Under the circumstances, we hold that there

 5 was no unconstitutional, impermissible use made of Defendant’s silence.

 6 6.       Remaining Arguments

 7   {54}   We summarily answer Defendant’s remaining arguments. First, Defendant

 8 argues, pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982,

 9 and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, that the district

10 court lacked personal and subject matter jurisdiction. Defendant filed numerous pro

11 se motions asserting that the district court lacked jurisdiction. Among the grounds

12 asserted were that Defendant is a private American citizen, not a United States

13 citizen, with a private rather than a public residence in New Mexico; that he is not the

14 person named in the criminal information because his name is not spelled in capital

15 letters; that the prosecution could not proceed because there is no “flesh and blood”

16 victim. No authority is cited to us in support of Defendant’s argument, and we do not

17 consider it. See State v. Ibarra, 1993-NMCA-040, ¶ 13, 116 N.M. 486, 864 P.2d 302

18 (“We are entitled to assume, when arguments are unsupported by cited authority, that

19 supporting authorities do not exist.”).


                                              36
 1   {55}   Secondly, Defendant argues that he was denied his right to conflict-free

 2 counsel because counsel did not agree with jurisdictional arguments asserted in

 3 Defendant’s pro se motion to dismiss for lack of jurisdiction, or his motion to excuse

 4 the district court judge on the grounds that he was biased against pro se litigants.

 5 Defendant fails to cite to any authority supporting the legal validity of those motions,

 6 or to support his assertion that defense counsel has an obligation to argue in support

 7 of pro se motions that have no merit. We therefore decline to consider this argument

 8 any further. See id.

 9   {56}   Finally, Defendant argues that he was denied his constitutional right to

10 represent himself. To determine if a defendant has made a valid, knowing, intelligent,

11 and voluntary waiver of his constitutional right to counsel, State v. Reyes, 2005-

12 NMCA-080, ¶¶ 4, 9, 137 N.M. 727, 114 P.3d 407, a district court is required to

13 “inform itself regarding a defendant’s competency, understanding, background,

14 education, training, experience, conduct and ability to observe the court’s procedures

15 and protocol.” State v. Chapman, 1986-NMSC-037, ¶ 10, 104 N.M. 324, 721 P.2d

16 392. Defendant prevented the district court from making that determination when he

17 refused to answer any of the district court’s questions relating to his ability to

18 represent himself, and simply kept repeating that he is “standing on [his] documents.”

19 There was no error in denying Defendant’s request to represent himself.


                                              37
1 CONCLUSION

2   {57}   The judgment and sentence of the district court is affirmed.

3   {58}   IT IS SO ORDERED.


4                                       ________________________________
5                                       MICHAEL E. VIGIL, Judge


6 WE CONCUR:


7 ___________________________
8 JAMES J. WECHSLER, Judge


 9 ___________________________
10 JONATHAN B. SUTIN, Judge




                                             38
