By MAIRE O’NEILLThe Court of Appeals of the State of New Mexico has affirmed a May 18 decision by First Judicial District Judge T. Glenn Ellington to suppress evidence found on a computer belonging to Scott Mallory of White Rock.
Judge Ellington ruled that Mallory’s spousal privilege was violated and information on his computer and any statements made by Mallory to police were to be suppressed.
Mallory was arrested by Los Alamos police in January 2016 and charged with sexual exploitation of children under 18 years – visual media, after forensic searches of his computer allegedly uncovered images of young female teenagers, some of which were focused on the clothed breast area and 250 items bookmarked as “child erotica and child pornography”. A file containing a diary entry with sexual references toward a 16-year-old girl also was allegedly found.
An affidavit filed by Mallory in March claims his wife Natalia Yuschenko told Det. Matt Lyon that Mallory was “possibly viewing naked photos and/or inappropriate photos on his computer”. Lyon’s narrative states that Yuschenko had started crying and advised him that she and her daughter had found some photos on Mallory’s computer, that Yuschenko had been using Mallory’s computer and had accidentally looked in the recycle bin where she “stated she saw over several dozen photos of what looked like underage girls naked”.
Lyon’s narrative also indicates Yuschenko told him she had found photos of a clothed 16-year-old girl, which had been altered to zoom in on the breasts and buttocks as well as several folders containing naked photos of Mallory’s ex-wife during Yuschenko’s marriage to him.
The appeal filed May 24 by Assistant District Attorney Kent Wahlquist states the District Court erred in finding that Yuschenko told the police Mallory was “possibly viewing child pornography” when there was no evidence of such a statement by Yuschenko, that her statements to police were that she accidently found photos of naked girls that appeared to be underaged on Mallory’s computer.
Wahlquist also maintained that the District Court erred in ruling that Mallory’s alleged communication to his wife protects from disclosure her subsequent discovery of child pornography on Mallory’s computer.
Judge Ellington in his ruling found that Mallory and Yuschenko were engaged in a domestic dispute and that based on the affidavit of the officer, “she left the residence and took her daughter with her as well as the defendant’s computer”, that she knew or believed that he might have pornography on the computer and that she wanted to preserve it.
Ellington said there was no language in the affidavit as to whether that was done for leverage or for some other purpose. He found that Mallory did not have an opportunity to exercise his spousal privilege. He also found that the basis for Yuschenko’s knowledge and her reason for taking the computer was “the communication between her and Mallory and that Mallory had properly noticed the Court that he intended to assert his spousal privilege”.
The decision on the appeal was issued by Judge Julia J. Vargas. She stated that the District Court’s suppression order is affirmed because the state’s arguments on appeal are “either unpreserved or do not address the issue that was developed and decided in District Court.
No date has been set at this time for status of the case to be discussed in District Court.
