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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 33,962

 5 DAMON C.,

 6          Defendant-Appellant.


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

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Adam Greenwood, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Jorge A. Alvarado, Chief Public Defender
15 Mary Barket, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant


18                                 MEMORANDUM OPINION

19 BUSTAMANTE, Judge.
 1   {1}   Thirteen-year-old Damon C. appeals his convictions for sexual exploitation of

 2 children and criminal sexual contact with a minor. He argues that the sexual

 3 exploitation of children statute should not apply to him because he is within the class

 4 of people the Legislature sought to protect. He also argues that his right to be free

 5 from double jeopardy was violated when he was convicted of multiple counts of the

 6 same crime. Because we disagree on both issues, we affirm.

 7 BACKGROUND

 8   {2}   Defendant was convicted by a jury of two counts of sexual exploitation of

 9 children, contrary to NMSA 1978, § 30-6A-3(D) (2007), and two counts of criminal

10 sexual contact of a minor (CSCM), contrary to NMSA 1978, § 30-9-13(B)(1) (2003),

11 for taking two cell phone videos of his hand touching the unclothed vulva of a three

12 to four-year-old girl. He was sentenced to supervised probation for a period not to

13 exceed two years and ordered to complete one hundred hours of community service.

14 He was also ordered to undergo counseling and complete grade court, avoid contact

15 with children under the age of eleven, and take other rehabilitative measures. More

16 details are provided as relevant to our discussion of Defendant’s arguments on appeal.

17 DISCUSSION

18   {3}   Defendant makes two arguments. First, he argues that the sexual exploitation

19 of children statute was not meant to punish child-participants involved in the


                                              2
 1 manufacture of “obscene visual or print medium depicting any prohibited sexual act

 2 or simulation of such an act.” Section 30-6A-3(D). As part of this argument, he

 3 contends that applying the statute to children “renders an absurd result contrary to the

 4 statute’s purpose[,]” and that the statute is unconstitutionally vague because “its broad

 5 provisions, lack of distinctions, and disregard for children that might come within its

 6 ambit . . . unquestionably invite[] arbitrary and discriminatory enforcement when

 7 applied to child participants.” Second, he maintains that his right to be free of double

 8 jeopardy was violated by two convictions for a single continuous act. We address

 9 these arguments in turn.

10 A.      Section 30-6A-3(D) Applies to Defendant

11   {4}   Defendant posits a number of reasons why the statute here should not be

12 interpreted to apply to child participants. For example, he argues that the language of

13 the statute, its placement in the criminal code under the title “Crimes Against Children

14 and Dependents,” and differences between its language and that of other statutes

15 militate toward the conclusion that the Legislature wrote the statute “with adult

16 offenders in mind.” He also presents a number of factual scenarios that might fall

17 under the statute that “produce[] absurd and potentially unconstitutional results.” Such

18 scenarios include prosecution of minors for consensually participating in sexual

19 conduct and taking pictures of that conduct or minors taking nude pictures of

20 themselves. For support, Defendant cites to scholarly articles arguing against

                                               3
 1 prosecution of minors for “sexting”1 under pornography statutes and case law

 2 addressing prosecution under statutory rape statutes of minors who have engaged in

 3 consensual sex. See, e.g., Arcabascio, supra at 4 (stating that “while there is no perfect

 4 ‘one size fits all’ solution to sexting, punishing teenagers who sext as child

 5 pornographers is not the solution”); Meghaan C. McElroy, Sextual Frustrations: Why

 6 the Law Needs to Catch Up to Teenagers’ Texts, 48 Houston Lawyer 10, 11

 7 (Nov./Dec. 2010) (“While the teens who engage in sexting may be deserving of

 8 punishment, especially those . . . who exploit personal photographs meant to be kept

 9 private, these teens are not child pornographers.”); In re G.T., 758 A.2d 301, 302 (Vt.

10 2000) (holding that a child cannot be adjudicated a delinquent child under the

11 statutory rape statute prohibiting sexual intercourse with a person under sixteen

12 because “as a person within the protection of the statutory rape statute, [a minor]

13 cannot be charged with violating the statute”).

14   {5}   While these authorities point out potential problems with prosecution of minors

15 for sexual conduct under current statutes and present interesting policy arguments for

16 modifications to the law, our holding here is governed by a New Mexico Supreme



           1
17          “ ‘Sexting’ is the practice of sending or posting sexually suggestive text
18   messages and images, including nude or semi-nude photographs, via cellular
19   telephones or over the Internet.” Catherine Arcabascio, Sexting and Teenagers: OMG
20   R U Going 2 Jail???, 16 Rich. J.L. & Tech. 10, 1 (2010) (internal quotation marks
21   omitted).

                                               4
 1 Court case neither party cited in their briefs. In State v. Pitts, the seventeen-year-old

 2 defendant was convicted of contributing to the delinquency of a twelve-year-old

 3 minor (CDM), contrary to NMSA 1978, Section 30-6-3 (1990) (the CDM statute).

 4 Pitts, 1986-NMSC-011, ¶ 1, 103 N.M. 778, 714 P.2d 582. The CDM statute states that

 5         [c]ontributing to the delinquency of a minor consists of any person
 6         committing any act or omitting the performance of any duty, which act
 7         or omission causes or tends to cause or encourage the delinquency of any
 8         person under the age of eighteen years.

 9                Whoever commits contributing to the delinquency of a minor is
10         guilty of a fourth degree felony.

11 Section 30-6-3; see Pitts, 1986-NMSC-011, ¶ 3.

12   {6}   For reasons similar to those argued by Defendant here, the Court of Appeals

13 reversed the defendant’s convictions and held that “no minor can be convicted of

14 [CDM]” as a matter of law, Pitts, 1986-NMSC-011, ¶ 2, because “the legislative

15 intent in enacting [the CDM statute] was to protect children from harmful adult

16 conduct[,]” and, therefore, the words “any person” and “whoever” in the CDM statute

17 must be read “to mean any adult human being.” Id. ¶ 4.

18   {7}   The New Mexico Supreme Court reversed. It concluded that “the Court of

19 Appeals . . . exceeded its authority, for it is not the business of the courts to look

20 beyond the plain meaning of the words of a clearly drafted statute in an attempt to

21 divine the intent of the Legislature.” Id. ¶ 5. The Court determined that the terms “any

22 person” and “whoever” were not ambiguous and that the Court of Appeals’

                                               5
 1 interpretation of the statute unnecessarily and inappropriately “require[d] us to read

 2 the words ‘adult’ and ‘human being’ into phrases the Legislature used without

 3 limitation.” Id. ¶ 7. It therefore held that “a minor can be prosecuted under [the CDM

 4 statute], and can be convicted of contributing to the delinquency of a minor.” Id.

 5   {8}   But our Supreme Court did not stop there. It also held that, even if the statute

 6 were ambiguous, this Court’s construction of it was incorrect. Id. ¶ 8. It stated that

 7 “the fact that the offense in question was placed in Article 6 of the Criminal Code

 8 among ‘Crimes Against Children and Dependents’ is utterly irrelevant to our

 9 consideration of who properly may be prosecuted under the statute.” Id. It rejected

10 dicta in cases stating that the statute protects children from harmful adult conduct. Id.

11 ¶ 9; see, e.g., State v. Favela, 1978-NMSC-010, ¶ 7, 91 N.M. 476, 576 P.2d 282 (per

12 curiam), overruled on other grounds by Pitts, 1986-NMSC-011, ¶ 9. Finally, it stated

13 that “the intent of the Legislature in enacting [the CDM statute] was to extend the

14 broadest possible protection to children” and that it has “consistently rejected narrow

15 constructions of the statute that would limit its usefulness in protecting children.”

16 Pitts, 1986-NMSC-011, ¶ 10.

17   9}    The statute at issue here mirrors the CDM statute. Section 30-6A-3(D) states:

18         It is unlawful for a person to intentionally manufacture any obscene
19         visual or print medium depicting any prohibited sexual act or simulation
20         of such an act if one or more of the participants in that act is a child
21         under eighteen years of age. A person who violates the provisions of this
22         subsection is guilty of a second degree felony.

                                               6
 1 (Emphasis added.) We note that, prior to 2001, the statute read “[i]t is unlawful for

 2 any person . . .” and “[a]ny person who violates . . .” Compare § 30-6A-3(C) (1993)

 3 with § 30-6A-3(D) (2001). It is unclear why “any person” was replaced by “a person,”

 4 but this change is a distinction without a difference. Given the similarities between the

 5 statute here and the CDM statute, and the Supreme Court’s rejection of contentions

 6 nearly identical to those made by Defendant, we conclude that the holding in Pitts is

 7 dispositive of Defendant’s statutory construction arguments. Given the clear and

 8 unambiguous language of our current version of Section 30-6A-3(D) (2007), no

 9 further construction is required: a minor may be prosecuted under this statute.

10   {10}   As to Defendant’s assertion that the statute is unconstitutionally vague as

11 applied to him, we disagree. “As generally stated, the void-for-vagueness doctrine

12 requires that a penal statute define the criminal offense with sufficient definiteness

13 that ordinary people can understand what conduct is prohibited and in a manner that

14 does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson,

15 461 U.S. 352, 357 (1983).

16   {11}   Defendant argues that the statute here invites arbitrary enforcement because it

17 permits prosecution of “child-participants” who are both perpetrator and victim. He

18 points to an Ohio case in which the court held that Ohio’s statutory rape statute was

19 unconstitutionally vague. In re D.B., 129 Ohio St. 3d 104, 2011-Ohio-2671, 950

20 N.E.2d 528, at ¶ 24. In that case, although several minors engaged in sexual conduct

                                               7
 1 with each other, only one was labeled the offender and prosecuted. Id. at ¶ 25. The

 2 Ohio Supreme Court stated:

 3          As applied to children under the age of 13 who engage in sexual conduct
 4          with other children under the age of 13, [the statutory rape statute] is
 5          unconstitutionally vague because the statute authorizes and encourages
 6          arbitrary and discriminatory enforcement. When an adult engages in
 7          sexual conduct with a child under the age of 13, it is clear which party
 8          is the offender and which is the victim. But when two children under the
 9          age of 13 engage in sexual conduct with each other, each child is both an
10          offender and a victim, and the distinction between those two terms
11          breaks down.

12 Id. at ¶ 24. The Ohio court concluded that “[t]he prosecutor’s choice to charge [one

13 child] but not [the other] is the very definition of discriminatory enforcement.” Id. at

14 ¶ 26.

15   {12}   Contrary to Defendant’s assertion, however, the problem presented in In re D.B.

16 is not present here. Defendant was convicted of “manufacturing” obscene media

17 involving a participant under eighteen years of age under Section 30-6A-3(D).

18 “Manufacture” is defined as “the production, processing, copying by any means,

19 printing, packaging or repackaging of any visual or print medium depicting any

20 prohibited sexual act.” Section 30-6A-2(D) (2001). Defendant here was not a “child-

21 participant” in consensual sexual activity—he was the manufacturer of images

22 prohibited by statute. Hence, the distinction between perpetrator and victim was not

23 blurred and the statute was not arbitrarily enforced.

24 B.       Defendant’s Double Jeopardy Rights Were not Violated

                                               8
 1   {13}   As his second argument, Defendant maintains that his right to be free of

 2 multiple punishments for the same conduct was violated when he was convicted of

 3 two counts of sexual exploitation of children and two counts of CSCM. [BIC 23-25]

 4 See U.S. Const. amend. V (“[N]or shall any person be subject for the same offence to

 5 be twice put in jeopardy of life or limb[.]”); N.M. Const. art. II, § 15. “A double

 6 jeopardy claim is a question of law that we review de novo.” State v. Leeson, 2011-

 7 NMCA-068, ¶ 10, 149 N.M. 823, 255 P.3d 401 (internal quotation marks and citation

 8 omitted).

 9   {14}   “The pivotal question in multiple punishment cases is whether the defendant is

10 being punished twice for the same offense.” Swafford v. State, 1991-NMSC-043, ¶ 8,

11 112 N.M. 3, 810 P.2d 1223. In unit of prosecution cases—in which “the defendant has

12 been charged with multiple violations of a single statute based on a single course of

13 conduct”—the question is “whether the [L]egislature intended punishment for the

14 entire course of conduct or for each discrete act.” Id. Our inquiry proceeds in two

15 steps. “First, we review the statutory language for guidance on the unit of

16 prosecution.” Leeson, 2011-NMCA-068, ¶ 14 (internal quotation marks and citation

17 omitted). To determine the unit of prosecution, “we ask how the Legislature has

18 defined the scope of conduct composing one violation of the statute.” Id. (alterations,

19 internal quotation marks, and citation omitted). “If a statute’s unit of prosecution is

20 clearly defined, we must look no further than the face of the statute.” Id. (internal

                                               9
 1 quotation marks and citation omitted). If, and only if, the language of the statute is

 2 unclear as to the proper unit of prosecution, we then “determine whether the different

 3 offenses are separated by sufficient indicia of distinctness.” Id. (alteration, internal

 4 quotation marks, and citation omitted).

 5   {15}   We begin with the convictions for sexual exploitation of children. Defendant

 6 argues that, because he recorded the two videos as part of a single “continuous act,”

 7 “he can only be adjudicated on one count of [s]exual [e]xploitation (by

 8 manufacturing).” In Leeson, this Court addressed the proper unit of prosecution for

 9 Section 30-6A-3(D), the same provision at issue here. Based on our examination of

10 the statute and associated definitions, we determined that “the unit of prosecution for

11 Section 30-6A-3(D)—the scope of conduct composing one violation of the statute—is

12 readily discernible. A violation of the statute occurs where a criminal defendant

13 intentionally produces or copies a photograph, electronic image, or video that

14 constitutes child pornography.” Leeson, 2011-NMCA-068, ¶ 17. Accordingly, we

15 affirmed the district court’s refusal to merge twenty counts of manufacture of child

16 pornography into one where the defendant had taken twenty sexually explicit

17 photographs of children. Id. ¶¶ 17, 20.

18   {16}   Given the Leeson holding, we conclude that further analysis of whether the

19 evidence here indicates that the two videos were taken during “continuous conduct”

20 or not is unnecessary. State v. Bernal, 2006-NMSC-050, ¶ 14, 140 N.M. 644, 146 P.3d

                                              10
 1 289 (“If the statutory language spells out the unit of prosecution, then we follow the

 2 language, and the unit-of-prosecution inquiry is complete.”). Section 30-6A-3(D)

 3 prohibits production of a video that constitutes child pornography and each video

 4 produced supports one conviction. See Leeson, 2011-NMCA-068, ¶ 17 (stating that

 5 “it is clear to us that each photograph [the d]efendant took of the child victims was a

 6 discrete violation of the statute”).

 7   {17}   Defendant also argues that he may be convicted of only one count of CSCM.

 8 Unlike the statute just discussed, in evaluating double jeopardy challenges to CSCM

 9 convictions, “it is assumed that the [L]egislature did not intend multiple punishments

10 absent proof that each act in the course of conduct was in some sense distinct from the

11 others.” State v. Haskins, 2008-NMCA-086, ¶ 17, 144 N.M. 287, 186 P.3d 916

12 (internal quotation marks and citation omitted). Defendant’s argument hinges on his

13 assertion that there is not “sufficient indicia of distinctness” between the two acts of

14 CSCM to support two convictions. Swafford, 1991-NMSC-043, ¶ 26. Generally,

15 distinctness may be determined through assessment of “(1) the temporal proximity of

16 the acts, (2) the location of the victim during each act and whether there was

17 movement or repositioning of the victim, (3) the existence of an intervening event, (4)

18 the sequencing of the acts, (5) the defendant’s intent as evidenced by his conduct and

19 utterances, and (6) the number of victims.” Haskins, 2008-NMCA-086, ¶ 17.

20   {18}   Defendant argues that “whether there was a time delay of any significant length

                                              11
 1 between the videos was disputed” and “even if there was delay between the making

 2 of the two videos, such delay [is not] dispositive . . . since the temporal proximity of

 3 the two acts of manufacturing is but one factor to be considered.” The first assertion

 4 is an attack on the district court’s factual finding that there was a seven-hour delay

 5 between the making of the videos—and the two acts of touching depicted in the

 6 videos. “[W]e review the trial court’s fact determinations under a deferential

 7 substantial evidence standard of review.” State v. Gallegos, 2011-NMSC-027, ¶ 51,

 8 149 N.M. 704, 254 P.3d 655 (internal quotation marks and citation omitted); see also

 9 State v. Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737 (stating that

10 “where factual issues are intertwined with the double jeopardy analysis, we review the

11 trial court’s fact determinations under a deferential substantial evidence standard of

12 review”). “In doing so, we will not weigh the evidence or substitute our judgment for

13 that of the trial court, and all reasonable inferences supporting the fact findings will

14 be accepted even if some evidence may have supported a contrary finding.”

15 Rodriguez, 2006-NMSC-018, ¶ 3 (citation omitted).

16   {19}   We conclude that the district court’s finding is supported by the evidence. The

17 district court heard testimony by a “computer crimes investigator and computer

18 forensic examiner” who was admitted as an expert witness in computer forensics. The

19 expert testified that the cell phone used to record the videos also recorded metadata

20 about the videos, including the date and time the videos were created. Although he

                                              12
 1 admitted that the settings on the phone could be altered so that the date and time

 2 associated with the videos would be inaccurate, he testified that the time elapsed

 3 between the two videos would not be affected by such adjustments. He stated that he

 4 was “certain” the two videos were created approximately seven hours apart. The

 5 district court’s finding is supported by this evidence.

 6   {20}   We also conclude that the span of time between the two incidents of touching

 7 indicates that two offenses occurred and, therefore, two convictions are appropriate.

 8 The “temporal proximity” between two acts may indicate that they are part of a single

 9 course of conduct. Haskins, 2008-NMCA-086, ¶ 18. On the other hand, “the greater

10 the interval between the acts the greater [the] likelihood of separate offenses.” Id. In

11 Haskins, the defendant, a massage therapist, was convicted of three counts of CSCM

12 for touching a minor’s breasts, buttocks, and vulva during a massage session. Id. ¶¶ 1,

13 15. The Court stated that “[d]uring [the victim’s] one-hour massage, [the d]efendant

14 first massaged various parts of her body, then her breasts, then ‘finished the rest of the

15 massage,’ concluding by touching her vulva. [The d]efendant then touched [the

16 victim’s] buttocks when he gave her a hug following completion of the massage.” Id.

17 ¶ 18. Even though the touching occurred within a period just over an hour, the Court

18 concluded that “the three touchings were sufficiently separate in time to be considered

19 separate offenses.” Id. The Haskins court went on to assess the other factors, id. ¶ 17,

20 and concluded that the three convictions did not violate double jeopardy. Id. ¶ 24.

                                               13
 1   {21}   Although we agree with Defendant that generally temporal proximity is only

 2 one factor to be considered, in this case the time lapse between the two instances of

 3 touching is dispositive. In contrast to the facts in Haskins, where all of the touching

 4 occurred within a relatively short period and evaluation of the other factors was

 5 necessary, here, nearly a full work-day elapsed between the first and second instances.

 6 Defendant’s double jeopardy rights were not violated by two convictions for CSCM.

 7 CONCLUSION

 8   {22}   For the foregoing reasons, we affirm.

 9   {23}   IT IS SO ORDERED.



10
11                                         MICHAEL D. BUSTAMANTE, Judge

12 WE CONCUR:


13 __________________________________
14 JAMES J. WECHSLER, Judge


15 __________________________________
16 J. MILES HANISEE, Judge




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