- Associated Press - Monday, April 21, 2014

SANTA FE, N.M. (AP) - New Mexico’s highest court on Monday overturned more than two dozen convictions in separate child pornography cases in a ruling that drew sharp criticism from Republican Gov. Susana Martinez, a former prosecutor.

The state Supreme Court said the defendants can be charged with only one felony count of possessing child pornography despite having many pornographic images of children.

A Martinez spokesman, Enrique Knell, said the court’s ruling “will place children at risk.”

“Hundreds of children, including infants, can be repeatedly abused and exploited by these predators, with images and videos preserved on a single computer, and prosecutors should have the ability to charge those individuals with multiple crimes,” Knell said in a statement. “This decision allows predators to victimize kids over and over again, for an extended period of time, without fear of additional jail time.”

The court said state law is unclear about the circumstances under which prosecutors can bring more than one charge against someone for possessing multiple pornographic images of children.

In its 4-1 decision, the court recommended the Legislature rewrite the law against possession of child pornography.

Rick Tedrow, president of the New Mexico District Attorneys Association, said the ruling was a “major setback to the prosecution” of child pornography possession cases.

“In an era where such disturbing materials can be shared easily via digital Internet, it has been our goal to enforce punishment and to protect minor children,” said Tedrow, district attorney for San Juan County.

He said it’s unclear how the ruling will affect previously prosecuted cases in which offenders have been sentenced.

Tedrow said district attorneys will meet with Attorney General Gary King and law enforcement to consider how to handle cases until a change in law can be proposed to the Legislature next year.

The court, in separate cases from the Clovis area, said James Michael Olsson and William Ballard can each be charged with only one count of possession of child pornography.

Olsson pleaded guilty to six counts after initially being charged in 2005 with 60 counts and later having that increased to 152 counts. He was sentenced to eight years in prison. Authorities said he had photographs in three binders and images on a computer.

A jury convicted Ballard of 25 counts of child pornography possession in 2009, but the Court of Appeals later reduced the convictions to five counts. He had video files and digital photographs on a computer’s external hard drive, authorities said. Ballard was sentenced to 37 years in prison, with all but nine years suspended.

Possession of child pornography is a fourth-degree felony, with convictions carrying a sentence of up to 18 months in prison.

The court’s majority said state law doesn’t clearly indicate the “unit of prosecution,” such as whether there’s a separate violation of the law for possessing each individual pornographic photograph or digital image of a child in a prohibited sex act.

Because state law is “insurmountably ambiguous,” the court said it was applying the “rule of lenity” to decide the cases in favor of the two men and conclude that they could be charged with only one count of the crime - each count covering all of their pornographic images.

The justices recommended the Legislature change the law to reflect modern advances in technology that allow the electronic storage of large amounts of data and images.

The Court of Appeals had reduced Ballard’s convictions to five - one for each time he used his computer to download pornographic video clips and photographs of children. The state Supreme Court rejected that reasoning, however.

Justice Edward Chavez disagreed with the court’s majority decision and outlined his view of when prosecutors could bring multiple charges.


Follow Barry Massey at https://twitter.com/bmasseyAP .

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