Scott Mallory

By MAIRE O”NEILL
Los Alamos Daily Post

A decision by First Judicial District Judge T. Glenn Ellington May 18 to suppress evidence found on Scott Mallory’s computer has been appealed to the Court of Appeals of the State of New Mexico. 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 was allegedly also found.

The affidavit in support of LAPD Det. Sgt. James Rodriguez’s request of a search warrant for Mallory’s telephone, computer, and external hard drive included a narrative report by Det. Matt Lyon from August 2015. The narrative relates to Lyon’s interaction with Mallory’s wife, Nataliya Yuschenko and her daughter when Lyon communicated with them after Mallory had notified LAPD they were missing, along with his vehicle and his computer.

An affidavit filed by Mallory in March claims Yuschenko told Det. Lyon that he was “possibly viewing naked photos and/or inappropriate photos on his computer”. Lyon’s narrative actually 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.

“Rather, the narrative contained in the affidavit for the search warrant clearly states that Nataliya’s statements to police were that she accidently found photos of naked girls that appeared to be underaged on the defendant’s computer”, the appeal states.

The appeal also states that the District Court erred in the ruling that Mallory’s alleged communication to his wife protects from disclosure her subsequent discovery of child pornography on Mallory’s computer.

“Are a wife’s independent actions, conducted when the spouse is not present, protected from disclosure by a previous confidential spousal communication that the spouse may be engaged in illegal activity?” the appeal asks.

Judge Ellington in his ruling found that husband and wife were engaged in a domestic dispute. He said he found “that based on the affidavit of the officer, the wife left the residence and took her daughter with her as well as the defendant’s computer”, that the purpose as stated in the affidavit was 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.

“The basis of Ms. Yuschenko’s knowledge and her reason for taking the computer was based on the communication that was had between husband and wife. The Court finds that Mr. Mallory has now properly noticed that he intends to assert his privilege,” he said.

Mallory’s attorney, Christopher Marlowe claimed during the motion hearing that Mallory had communicated the knowledge of the photos to his wife in early 2015. He said the two had gotten into an argument because Mallory was communicating with his ex-wife, that Yuschenko was upset and she took his computer and her daughter and left. He claimed Mallory was never told when he was questioned by LAPD about the photos, that they were something Yuschenko told them about and that she was the only one who knew about them. He told the Court it was “not like she stumbled upon” the photos, that there was a reason she had taken the computer, that she knew all along there were photos on it.