The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
15-40
STATE OF LOUISIANA
VERSUS
BENGY R. COOLEY
**********
APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 80641
HONORABLE JOHN C. FORD, DISTRICT JUDGE
**********
SHANNON J. GREMILLION
JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and Shannon J. Gremillion, Judges.
CONVICTION AND SENTENCE AFFIRMED; REMANDED.
Asa Allen Skinner
District Attorney, Thirtieth Judicial District Court
Terry W. Lambright
Assistant District Attorney
P. O. Box 1188
Leesville, LA 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana
Jonathan W. Brown
Attorney at Law
1025 Mill Street
Lake Charles, LA 70601
(337) 564-6990
COUNSEL FOR DEFENDANT/APPELLANT:
Bengy R. Cooley
GREMILLION, Judge.
Pursuant to a search warrant executed on September 9, 2010, approximately
fifty-three images of child pornography were found on a computer hard drive
located at the home of Defendant, Bengy R. Cooley. In a statement to police,
Defendant admitted to searching for child pornography, viewing child
pornography, and deleting child pornography.
Defendant was charged by bill of information with one count of
pornography involving juveniles, a violation of La.R.S. 14:81.1. Defendant
initially entered a plea of not guilty to the charge but changed his plea to a plea of
no contest. Defendant later filed a motion to withdraw his no contest plea, which
was denied. Defendant then re-urged the motion to withdraw plea, and the trial
court granted the motion.
Following a three-day bench trial, Defendant was found guilty as charged.
Defendant filed a Motion for New Trial, which was denied. Defendant waived the
delays for sentencing, and the trial court sentenced him to two years at hard labor,
without benefit of probation, parole, or suspension of sentence.
Defendant now appeals alleging three assignments of error. Two
assignments of error, which involve sufficiency of the evidence, merit serious
consideration but ultimately lack merit. Additionally, Defendant‟s first assignment
of error pertaining to sex-offender registration notification lacks merit. Thus, we
affirm Defendant‟s conviction and sentence.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there is
one error patent.1
On February 1, 2013, Defendant‟s attorney filed a Motion to Elect Judge
Trial which was granted. In State v. Ray 12-1217, p. 9 (La.App. 3 Cir. 5/1/13), 157
So.3d 13, 19, this court explained in pertinent part:
Where the defendant‟s right to a jury trial was waived by his attorney,
and there was no other indication that the defendant knowingly and
intelligently waived that right, such as a confirmation in open court,
the appellate courts have remanded the matter to the trial court for a
determination of whether the defendant's waiver was knowing and
intelligent. State v. Zeringue, 03–697 (La.App. 5 Cir. 11/25/03), 862
So.2d 186, writ denied, 03–3523 (La.4/23/04), 870 So.2d 298; State v.
Morris, 607 So.2d 1000 (La.App. 3 Cir.1992), rev'd on other
grounds, 615 So.2d 327 (La.1993). See also State v. Pierre, 02–2665
(La. 3/28/03), 842 So.2d 321.
In this case, the motion requesting waiver of jury trial was signed only by
Defendant‟s attorney. Additionally, the record does not indicate Defendant
knowingly and intelligently waived this right. The clerk of court of the district
court attested in an affidavit that there were no minute entries or untranscribed
hearings discussing Defendant‟s waiver of jury trial. The clerk of court also noted
in the affidavit that “defendant was advised of his right to a judge or jury trial on
February 1, 2011 and May 16, 2011.” However, there are no minute entries or
transcripts for February 1, 2011 or May 16, 2011 in the record or provided by the
1
At sentencing, the trial court gave Defendant insufficient advice as to the time limitation
for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. The trial court stated,
“You have 30 days within which to appeal and two years within which to file an application for
post-conviction relief.” However, when Defendant entered a guilty plea, which was later
withdrawn, he signed a Waiver of Constitutional Rights which properly advised him of the
prescriptive period of art. 930.8. Thus, we do not recognize the insufficient advisement at
sentencing as an error patent.
2
clerk in the supplemental record. At a proceeding dated May 13, 2011, the
transcript indicates that Defendant was advised of his right to be tried by a jury in
the context of waiving his right at the guilty plea proceeding, which plea was later
withdrawn. Thus, this matter must be remanded to the trial court for an evidentiary
hearing.
In State v. Clark, 97-1064, p.8 (La.App. 3 Cir. 4/1/98), 711 So.2d 738, 742,
writ granted and remanded, 98-1180 (La. 9/25/98), 726 So.2d 2, this court
decreed:
For the above reasons, we remand this case with instructions that the
trial court (1) conduct an evidentiary hearing within thirty days of this
date to determine whether defendant knowingly and intelligently
waived his right to trial by jury and (2) re-lodge the appellate record,
supplemented with a transcript of the hearing, within fifteen days of
the hearing. The State and defendant will be given the opportunity to
file supplemental briefs, should either party wish to raise any issues
arising from the hearing.
See also State v. Fuslier, 06-1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866. Under
the Clark/Fuslier procedure, this case will be marked final with the issuance of the
opinion. The case will be remanded for the evidentiary hearing and the trial court
ordered to prepare and lodge an appellate record containing the transcript of the
evidentiary hearing. The new record will be issued a new docket number, and an
opinion addressing the unresolved issues will then be issued under the new docket
number.
SUFFICIENCY OF THE EVIDENCE
In assignments of error numbered two and three, Defendant challenges the
sufficiency of the evidence. We address these assignments of error first, since a
finding of merit would preclude the necessity of considering the remaining
assignments of error. State v. Hearold, 603 So.2d 731 (La.1992).
3
Defendant asserts that the trial court was presented with only circumstantial
evidence that he possessed child pornography–evidence that did not exclude every
reasonable hypothesis of innocence. Additionally, Defendant asserts that the trial
court incorrectly used the “dominion and control” standard in determining whether
he possessed child pornography. Even using that standard, however, Defendant
contends that the evidence was insufficient to find that he possessed the child
pornography in question.
Standard of Review
This court has stated the following regarding the standard for reviewing a
claim of insufficient evidence:
The standard of review in a sufficiency of the evidence claim is
“whether, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found proof beyond a
reasonable doubt of each of the essential elements of the crime
charged.” The Jackson standard of review is now legislatively
embodied in La.Code Crim.P. art. 821. It does not allow the appellate
court “to substitute its own appreciation of the evidence for that of the
fact-finder.” The appellate court‟s function is not to assess the
credibility of witnesses or reweigh the evidence.
The factfinder‟s role is to weigh the credibility of witnesses.
Thus, other than ensuring the sufficiency evaluation standard of
Jackson, “the appellate court should not second-guess the credibility
determination of the trier of fact,” but rather, it should defer to the
rational credibility and evidentiary determinations of the jury. Our
supreme court has stated:
However, an appellate court may impinge on the
fact finder‟s discretion and its role in determining the
credibility of witnesses “only to the extent necessary to
guarantee the fundamental due process of law.” In
determining the sufficiency of the evidence supporting a
conviction, an appellate court must preserve “ „the
factfinder‟s role as weigher of the evidence‟ by
reviewing „all of the evidence . . . in the light most
favorable to the prosecution.‟ ” When so viewed by an
appellate court, the relevant question is whether, on the
evidence presented at trial, “any rational trier of fact
could have found the essential elements of the crime
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beyond a reasonable doubt.” Applied in cases relying on
circumstantial evidence, . . . this fundamental principle of
review means that when a jury “reasonably rejects the
hypothesis of innocence presented by the defendant[ ],
that hypothesis falls, and the defendant is guilty unless
there is another hypothesis which raises a reasonable
doubt.”
State v. Francis, 12-1221, pp. 6-7 (La.App. 3 Cir. 4/3/13), 111 So.3d 529, 533, writ
denied, 13-1253 (La. 11/8/13), 125 So.3d 449 (citations omitted).
State’s Evidence
The first witness to testify at trial was Detective Carla Smith, a computer
forensic examiner with the Beauregard Parish Sheriff‟s Office from 1996 to 2011.
Detective Smith used a program called the Wyoming Tool Kit to search for activity
involving child pornography in her geographic area. Files that contain child
pornography are identified by a “SHA Value” or “Hash Value”–a string of
alphanumeric characters provided to law enforcement by the Missing and
Exploited Children‟s Group from Virginia. Law enforcement agencies know that
certain SHA values represent child pornography. The Wyoming Took Kit program
creates a list of files with SHA values that are known to be child pornography.
With the file list, Internet Protocol (I.P.) addresses are also assigned to each file.
Each modem has an I.P. address.
In May 2010, Detective Smith conducted an internet investigation to
determine if anyone in her area was downloading child pornography. Detective
Smith‟s attention focused on I.P. address 74194243212 because “there were [sic] a
huge amount of child pornography, known child pornography, images with that
I.P. address.” Detective Smith obtained a search warrant for Suddenlink
Communications to obtain the subscriber information for I.P. address
74194243212. Detective Smith identified State‟s Exhibit Number One as the list
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she obtained from the Wyoming Tool Kit regarding files accessed by this I.P.
address. In addition to the I.P. address, Exhibit One also contained a date stamp of
when the files were downloaded onto that computer. The date stamps ranged from
October 15, 2009, to June 7, 2010.
Detective Smith testified that a “GUID,” a “globally unique identifier,”
“identifies the computer to the file itself to that I.P. address.” Detective Smith
further testified that when LimeWire is installed on a computer, the installation
will be assigned a “GUID” number and is unique to that installation of LimeWire. 2
According to Detective Smith, all of the files on the list in S-1 were pulled up as a
result of searching for child pornography.
Detective Smith identified State‟s Exhibit Number Two as the subpoena she
sent to Suddenlink Communications to find out the subscriber information for the
I.P. address at issue. According to representatives from Suddenlink
Communications, the subscriber to the I.P. address was Defendant who lived at
296 Ambler Road, Leesville, Louisiana. When Detective Smith realized that the
address was outside of her jurisdiction, she contacted the Louisiana State Police.
Trooper Amanda Fournier of the Louisiana State Police testified that after
she received information from Detective Smith, she obtained a search warrant for
Defendant‟s residence. The search warrant was executed on September 9, 2010, at
which time Trooper Fournier and other troopers knocked on the door of
Defendant‟s residence. When no one answered the door, the troopers entered
through an unlocked door to the kitchen. The troopers located a document
indicating that Defendant worked for Probation and Parole and then contacted
2
Limewire is a program that allows users to share files over the internet.
6
Defendant at work. While waiting for Defendant to arrive, the troopers located a
laptop at the residence.
Shortly after Defendant arrived at his residence, he was advised of his rights.
When Defendant was asked if he downloaded pornography at his residence he
originally answered, “No.” At some point, however, Defendant changed his
answer. When Trooper Fournier was asked what Defendant told the troopers when
he changed his answer, the following colloquy ensued:
A: That he downloaded pornography via the Internet and that he
may have seen some pornography involving juveniles.
Q: All right and at that time was he asked about the downloading
of the pornography and utilizing LimeWire?
A: Yes.
Q: All right and did he admit to you to using LimeWire to
download pornography?
A: Yes.
Q: So, your testimony is that he admitted to downloading
pornography, he may have downloaded some involving children? Did
he say may?
A: Yes.
Q: That he may have downloaded some involving children?
A: Correct.
Since the GUID listed on the file list Trooper Fournier received from Detective
Smith matched the GUID number on the computer found in Defendant‟s residence,
Trooper Fournier concluded that the computer seized from Defendant‟s residence
was the computer being used to download child pornography.
7
Defendant was transported to the Vernon Parish Sheriff‟s Office to be
interviewed further. When Trooper Fournier was asked what Defendant said when
asked if he downloaded videos from LimeWire, the following colloquy ensued:
A: He indicated that he used search terms such as P.T.C.H. which
the actual term is P.T.H.C. which stands for pre-teen hard core and I
believe one of the other search terms he indicated was Little Teens or
Little Girls. He also indicated that some of the videos that he had
seen and he was able to describe two of those videos for us.
Q: Let me ask you about the search terms. We can just take it as
is, but you actually would have to place those terms into the computer
in order for it to search for that type of material, is that correct?
A: Yes.
Q: Would have taken some effort on his part?
A: Yes.
Q: And, I mean, the fact that he used those terms, are those terms
that in your experience and training and knowledge are terms that are
known child pornographic type search terms.
A: Yes.
Q: In fact, those are the terms that you - - the State Police uses in
order to do their investigation, is that right?
A: Yes.
Q: Was he ever asked why he used those particular search terms?
A: I don‟t recall if I asked him that specific question.
Q: All right. Was he ever asked - - did he ever indicate to you that
he was curious about anything?
A: Yes.
Q: What, if anything, did he state?
A: He stated that he had heard of several people that had gotten
arrested for child pornography and he was interested and curious as to
what child pornography was about.
8
Q: All right. Did he admit to you that he had indeed searched for
child pornography?
A: Yes.
Q: Now, did - - in interviewing him did he ever admit to you that
he viewed certain videos containing child pornography?
A: Yes.
Q: Okay. Did he provide a description?
A: Yes.
Q: Okay, explain.
A: One of the files that he described, if I remember correctly,
involved a Brazilian female child approximately ten years old that was
performing oral sex on a male‟s penis. And I believe he described
another video in where a female child was involved in sexual
intercourse with an adult.
Q: All right and did he specifically use that - - tell you that he
viewed a video of a female under the age of ten who had no pubic hair
and small breasts?
A: Yes.
Q: And he specifically said under ten?
A: I believe so.
....
Q: Did he describe a second video? Well, you mentioned two
videos, particularly, did he describe a video containing a 13 or a 14
year old performing oral sex on a male‟s penis?
A: Yes.
Q: And he provided a description of that for you?
A: Yes.
Q: Was Mr. Cooley asked how long the videos were?
A: Yes, sir, he said that they averaged approximately 30 seconds to
a minute and a half.
9
Q: Okay and was he asked about whether he downloaded the
videos and viewed them?
A: Yes.
Q: Okay and other than the two videos that you‟ve spoken about,
did he tell you whether or not he viewed any other videos? Just trying
to get what he told you at that particular moment.
A: I believe he said that he would download the videos, view the
videos, and then delete then [sic].
An audio recording of Defendant‟s statement was introduced into evidence
as State‟s Exhibit Number Eight and played for the jury. It is clear from listening
to the recording that a portion of Defendant‟s interview was accidentally
unrecorded. In the portion that was recorded, Defendant was asked if the file he
looked at was a girl younger than ten engaged in oral sex with a man. After
listening to the audio recording, it sounded like Defendant responded, “Yes.”
Defendant was then asked if he saw a file from Brazil in which several girls were
giving oral sex to a man wearing a hood. Defendant responded, “Right.” When
asked if he had looked at “fifty something” files, Defendant said “No sir, not with
underage girls.” Defendant insinuated that some of the files were of “animals and
such” that he should have never looked at. Defendant allowed the detective to look
at the photos on his phone. When asked by the detective what he did with the
“child pornography” files after he looked at them, Defendant responded, “I just
deleted them.” When asked how soon he deleted the files after he looked at them,
Defendant explained that he tried to set up his computer to erase everything.
Defendant told the detective that he never went in and did it himself but selected
the option for it to be done. Defendant said he never used anything to erase his
hard drive. Finally, Defendant stated that he “was completely innocent as far as
looking at that for any kind of stupid reason.”
10
According to Trooper Fournier, State Trooper J.D. Parker, a computer
forensic examiner with the Louisiana State Police, located fifty-three images of
child pornography on the computer seized from Defendant‟s residence. Trooper
Fournier testified that Defendant never indicated that anyone other than himself
downloaded the images.
During cross-examination, Trooper Fournier stated that when she searched
Defendant‟s residence, she did not find any materials to clean a hard drive.
Trooper Fournier described Defendant as cooperative and friendly. Trooper
Fournier agreed with Trooper Parker that neither saw pornography when
previewing Defendant‟s computer at Defendant‟s residence.
Trooper Fournier agreed that LimeWire is used to download other things
besides pornography. In fact, Trooper Fournier testified, music is a popular item to
download with LimeWire. Legal pornography is also available for downloading
with LimeWire. When asked if Defendant said he used LimeWire to download
music, Trooper Fournier believed Defendant stated that he used it to download
music and videos. Although Defendant originally denied using LimeWire to watch
legal pornography, Defendant eventually told Trooper Fournier that he did use it to
watch legal pornography. Defense counsel then asked Trooper Fournier the
following:
Q: And, I mean, we heard him just now on the tape when y‟all
were asking him about - - y‟all were describing the movies kind of
that you said he talked about off the tape and telling him about the
amount and he went on to tell you, well, actually, it‟s , you know, the
animals and some other things that he had watched, correct?
A: Yes.
Q: He was kind of embarrassed about that he kind of watched
those things, correct?
11
A: Yes.
Defendant willingly gave the trooper his cell phone, which contained
nothing prohibited.
On re-direct examination, Trooper Fournier opined that because the
computer was in her care from the time it was seized until a forensic examination
was performed on it, the pornographic images were on Defendant‟s computer at
the time it was seized. Regarding Defendant‟s admission that he searched for adult
porn, the following colloquy ensued between the State and Trooper Fournier:
Q: Now, she asked about the fact that this defendant admitted that
he searched for adult porn, but isn‟t it also true that your previous
testimony is that he specifically searched for pre-teen hard core porn?
A: Yes.
Q: That‟s - - that involves juveniles, is that correct?
A: Yes, sir.
Q: Also, you indicated he searched for under terms Little Teens, is
that correct?
A: Yes.
Q: And he also admitted to you that he did that because he was
curious?
A: Yes.
Q: And pornography involving juveniles, it includes still shots or
images or reproductions, does it not?
A: Yes.
Q: And is it also true that this defendant admitted to you that he
attempted to delete the videos, is that right?
A: Yes.
Q: So, the fact that you don‟t have any videos could be that he
attempted to delete them, is that right?
12
A: Yes.
On re-cross examination, Trooper Fournier again testified that Defendant
said he did not possess anything that would allow him to be able to clean a hard
drive or delete images. Trooper Parker examined Defendant‟s computer on
September 16, 2010. When Trooper Parker previewed Defendant‟s computer at
Defendant‟s residence, he did not see any pictures on the computer. Trooper
Parker had no doubt, however, that he found the computer they were looking for
because the computer had the same GUID (Global Unique Identifier) number that
they had been investigating. Trooper Parker further stated that it is not unusual to
find no images on the computer during a cursory preview of the computer.
On September 16, 2010, Trooper Parker started a forensic examination of
the computer. Trooper Parker explained the examination process, which begins
with removing the hard drive from the computer and making an exact copy of the
hard drive. Once the drive is copied, the copy is loaded into a Forensic Tool Kit
(FTK). Trooper Parker further explained:
A: Once I started examining the computer at some point I saw that
I wasn‟t finding the images and pictures and videos that we had saw
on the front end pursuant to our search warrant. So, I did what‟s
called data carving and what that does is that just goes through the
drive, starts from start to finish, and looks for - - every file has a
header at the beginning of it and it tells the computer what type of file
it is. So, if it, you know, starts out with these letters it‟s a picture file.
If it starts out with these letters it‟s a [sic] AVI video file. So, it - - the
data carving goes through the drive looking for those headers and then
pulls out that bit of information so you can look at it and, you know,
make sure it is what it says it is. And I was able to data carve
approximately 53 - - well, I was able to data carve a lot of picture
files, but I was - - I found 53 images of child notable - - of children
that are being sexually abused.
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The State asked Trooper Parker if the fact that he had to use this tool in
order to draw the images out of the computer meant that the fifty-three files were
not capable of being viewed without such equipment. Trooper Parker explained:
A: No, you could use any off the shelf - - there‟s software off the
shelf that you can recover files. One is called Recover, it‟s a free
utility for getting pictures back that you‟ve deleted on your camera, on
your SD card or whatever media. It will pull those files right out for
you.
Q: And the fact that you did this does this mean that the files were
not viewable at one time of this computer?
A: No, absolutely not.
Q: What is it? I mean . . .
A: It indicates that the files were on the computer, they were
viewable on the computer and that they‟d only been deleted which
when you delete a file it only deletes the portion of where the file is.
If your remember back in the days of the library, if you have the card
catalog in the library, you looked in the card catalog to find the book
you wanted to look at. Well, this would be like taking the card out of
the card catalog but the book is still sitting on the shelf. It‟s still
available. It‟s just saying to the computer if you want to write
something you can write it in this space now.
Q: I got you and once you located these images on the computer
what, if anything, did you do next?
A: I went back and I also confirmed again the GUID number and
that the GUID number was the GUID number that we had looked at
prior to the execution of the search warrant and it‟s an exact match
too.
Trooper Parker testified that he tracked the images located on the computer
with the file list obtained from Detective Smith and found images on the computer
that were identified with the file list. Trooper Parker made copies of the images,
and those images were displayed for the trial court.
On cross-examination, Trooper Parker testified that Defendant‟s computer
was password protected. Trooper Parker explained that Exhibit One was a report
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generated on the front end of their investigation, which shows the dates on which
files were available for file sharing, not necessarily downloading. Trooper Parker
explained:
A. What this report [(S-1)] shows is those are dates that they were
available for sharing, not necessarily a download. The way - - the
way file sharing software works is when you start downloading it, it
puts it in your shared folder. It comes down in chunks, so, say, I get
half of a file. Well, then somebody else wants to download that same
file it‟s in my shared folder. Well, it was half a file so it starts
grabbing from me also because when you‟re downloading the idea
behind peer to peer software is is [sic] not just two users, it‟s a whole
network of users. And, that when I download the file, if ten people
have it I get a little chunk from this person, little chunk from that
person, I get it a lot quicker. So, that‟s how peer to peer works.
The dates listed on Exhibit Number One are October 15, 2009, to June 7, 2010.
Trooper Parker explained that on these dates, the information was available for
sharing. Trooper Parker agreed that the date the computer was purchased would be
important. Although Trooper Parker was not aware of any case wherein a
computer was purchased already containing illegal information, the trooper
acknowledged that it could happen. Trooper Parker explained that this did not
happen in the present case:
A: But in this case here, you know, what you‟re saying is not what
happened because these - - the FrostWire or the LimeWire files were
downloads to - - is in the user name of Ben. So, if it had been owned
previously by - - it would have to be somebody named Ben. It‟s in his
- - it‟s in Ben‟s user name.
Q: Okay.
A: And it‟s installed in that user name, so there‟s no way that
somebody else owned it, you know, unless their name was Ben would
it be in that file.
Q: Okay. So, if there were downloads in 2009 and a computer was
purchased some time, maybe, in the spring of 2010 you would still
think that that was for Ben, so to speak, or whoever you saw the name
being associated with?
15
A: Okay. If you‟re - - if you‟re indicating from the list, and I‟m
catching kind of where you‟re going, that list depicts the I.P. address
which has nothing to do with the computer that‟s entered into
evidence.
Q: Okay.
A: The I.P. address is assigned to the modem at the house of Mr.
Cooley. So, if he buys this computer - - if you‟re saying he‟s buying
this computer after a date that‟s on the list then another computer at
his house at that time was downloading child pornography.
Q: Okay and, so, the GUID number also stays with him is what
you‟re saying?
A: No, the GUID number is assigned to the installation of the
software.
At Defendant‟s residence, Trooper Parker verified that the GUID number
provided by Trooper Fournier was on the computer. Trooper Parker testified that
he did not remember seizing any data-carving software from Defendant‟s
residence. When Trooper Parker initially examined the hard drive of the computer,
he did not find anything. Trooper Parker discovered the files only after using the
data-carving software that allowed him to view files that had been deleted.
Pursuant to defense counsel‟s questions regarding the capability to view these files,
the following colloquy took place:
Q: It‟s my understanding, sir, and correct me if I‟m wrong, that
these are files that are in unallocated space, is that correct?
A: That‟s correct.
Q: Okay. So, that means that they‟ve basically lost their
connection to the computer‟s operating system?
A: They have just - - just the - - what‟s in the operating system
saying that - - pointing to that file is what‟s lost.
Q: Okay. Does it mean that there are no identifiable artifacts that
remain when something is in an unallocated space?
A: There are no file properties associated with the files.
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Q: Okay and unless I have software that can do the carving that
you can do I can‟t view these, correct?
A: No, you can view them.
Q: Without carving software?
A: You can - - you can get Recover which is - - it‟s a carving
software. But you‟re making a point that I have to do it, but anybody
can do it. You can do it . . .
Q: I can if I possess the software, but absent the software I can
not?
A: That‟s correct.
As for being able to tell when images in unallocated space were placed on
the computer, Trooper Parker agreed that he could not tell when the images were
loaded to the computer. On re-cross examination, Trooper Parker stated that when
he examined the computer, he verified the GUID number and recovered child
pornography from an unallocated space. In summation, Trooper Parker testified
that the child pornography was on the computer “at one time or another.”
Defense Evidence
The first witness to testify for the Defense was Cody Cole, a shift manager
for Wal-Mart. Cole identified Defendant‟s Exhibit Number One as a Wal-Mart
receipt from the Deridder Wal-Mart store. The receipt was for the purchase of a
laptop computer on March 17, 2010. On cross-examination, Cole testified that his
store‟s computers are sealed and are not sold with any preinstalled software.
Maria Manuel, Defendant‟s fiancé, testified that she visited Defendant at his
home every Wednesday and Thursday. When Manuel first met Defendant in June
2010, Defendant did not keep his house locked. Manuel testified that Defendant
had a laptop, which he kept in the living room. Manuel admitted to using the
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laptop and stated that the laptop was not password protected. On cross-
examination, Manuel denied ever downloading pornography to the computer.
Manuel also stated that she had no knowledge of Defendant downloading
pornography. Manuel did remember using LimeWire on Defendant‟s computer to
download a song. When asked if she knew when Defendant purchased the
computer, Manuel said she saw the receipt dated March 2010. Although no one
else lives in Defendant‟s home, Manuel testified that his kids visit on weekends.
On re-direct, Manuel testified that Defendant kept the computer in the living room
when family and friends visited.
Robert Davis, a former neighbor of Defendant, described Defendant as a
carefree guy who did not lock his home. According to Davis, Defendant gave him
an open invitation to go into his home even if Defendant was not home.
Victor Warwick, a pastor, testified that he is Defendant‟s brother-in-law.
Warwick stated that he had known Defendant for twenty-six years and knew
Defendant to leave his doors unlocked. Warwick described Defendant as a man of
integrity.
The final witness offered by the defense was Derek Hinch, a software
developer employed by Lamar Advertising as the head of software development.
Hinch testified that he formerly worked in the United States Air Force Electronic
Warfare Research and Development and consults with the Federal Bureau of
Investigation “on technical feasibility questions.” Hinch explained technical
feasibility questions as follows:
A: Okay. Generally, it‟s technical feasibility questions. If they
have a search warrant that says that sets certain parameters down on
their investigative methods to determine who a person is. Let‟s say, a
person anonymizes themselves using some sort of file sharing
software and they receive some content. The FBI might may not
18
know who that person is because they may have used some method to
obscure themselves, technology such as Tor. I would consult with
them to help unmask, if you will, the person on the other side of the
coin while staying within those bounds of what they‟re restricted to be
able to do.
Hinch also worked with an agency called “ICE” regarding pornography cases,
evaluated reports of forensic examiners, and performed his own forensic
examination of computers. 3 When the State objected to Hinch testifying as an
expert, the trial court stated that it would allow Hinch to testify in the same
capacity as Trooper Parker because Hinch seemed to be as knowledgeable about
computers as Trooper Parker.
Hinch explained that he was given a summary analysis of a disc forensic
examination done by Trooper Parker. Hinch also gave the following “layman‟s
definition” of LimeWire:
A: Sure. People send and receive files, those files are then
indexed. When somebody searches for the files it returns the result
list of who has those files. You can browse an individual‟s share of
items that they share as well as browse other people‟s that may have
something you‟re interested in. It‟s commonly known as a pretty
nefarious place because the files are - - they‟re just - - it‟s more used
for criminal activity and the distribution of . . .
Q: But, you said it‟s known as a nefarious place and used for
criminal activity. How do you know that?
A: Okay. There have been several publications on it. Hackers
Magazine actually did an example of people who would use
LimeWire for muling. In a lot of cases . . .
Q: When you say LimeWire for muling, you know, I‟m a former
prosecutor so . . .
A: Okay.
Q: . . . when I think of muling, I think of drug trade, so I want you
to . . .
3
When asked what ICE was, Hinch simply stated, that it “was more cases involving
pornography.”
19
A: Kind of similar.
Q: . . . explain to this Court what you mean when you say
LimeWire is used for muling.
A: Okay. Let‟s say that there was a file on a web site that if I were
to access that file somebody would discover who I was. So, what I do
is I find basically what‟s trending on the Internet. Let‟s say a Miley
Cyrus video and I turn that video malicious in such that it performs an
action that goes out and gets the file that I originally wanted from the
location of the place I can‟t go. So, I give you a Miley Cyrus video
but what you don‟t know is that the user, sure you‟re watching a
Miley Cyrus video, but in the background it‟s actually installed some
software that I can now make requests through your LimeWire to go
get other types of content.
....
Q: [L]et‟s say that I‟m doing a search and I want to search for
adult porn, and, so, I might put in some key words that would get me
adult porn. Is there a way that if I‟m downloading that through what‟s
legal, through LimeWire, that illegal porn might come to me without
me asking for it?
A: Most definitely, yeah.
Later, Hinch explained that when a file is deleted, an “artifact” is left over:
A: Windows gets rid of the file name, leaves the bytes on the disc,
but it also records the action of the file deletion. That‟s called an
artifact, it‟s not a log, you don‟t delete that.
According to Hinch, these artifacts would show the creation date and modification
date of the file. When defense counsel began questioning Hinch as to Trooper
Parker‟s preview of Defendant‟s computer at his residence, the following colloquy
ensued:
Q: Okay. So, let‟s say if I had downloaded some child
pornography and kept it for a while and deleted it. Is - - is it possible
with a preview to see that on my computer?
A: Yes. It really depends - - that‟s kind of hit or miss, it depends
on what you deleted it with. If you use some form of special delete
tool you may not find it in the preview. However, you will find other
20
artifacts on the disc about the file, but a preview is - - basically what
the operating system is willing to tell you about or what the disc . . .
....
Q: Do you think it‟s probable that you should see it in a preview?
A: Yeah, yeah. I mean, typical computer usage you would see the
fact that the file once existed.
Q: Okay and, so, what you‟re saying is you‟d see some artifacts?
A: Definitely and here‟s how sensitive artifacts are, let‟s say you
got all this content, okay, from LimeWire sat down at your computer,
don‟t have a preview pane open, don‟t click on any image. It‟s simply
a - - the file folders open with the list of files that it downloaded.
Okay? Let‟s say you highlight them all and click delete. Not only is
every file name still kept, not only are the file creation times, all those
artifacts, but I also know that you only had the browser window open,
that you didn‟t click on anymore of them. I can also tell what you
didn‟t do. I can tell that you didn‟t go and open them or didn‟t
preview them. The fact that no artifacts exist whatsoever on this
system is probably the most disturbing fact in the prosecution‟s
assessment of a user participating in a action with child pornography.
Those artifacts will be left.
Q: So, and you say that‟s probably the most disturbing, why? Why
do you think that?
A: If somebody were to come to me and - - as they have before,
investigators, and say, listen, we recovered this disc, we found this
unallocated space, there were these chunks of bytes that when formed
up are pictures of child porn. However, we have no record of the user
having ever deleted them. We don‟t have a record of the user having
touched them, viewed them, previewed them, opened them. We have
no knowledge of the time that they were created, modified, edited,
anything. We don‟t know anything about these files that we can tie
back to a user or the operating system. The common person would
have no way to recover these files unless they had the same type
software that the forensic investigator did.
Q: Okay.
A: I would have advised - - I would have said, well, you‟re going
to have trouble prosecuting because this person never even opened a
window that the file was seen in. That‟s what it‟s telling me is that
the user had never had knowledge of it.
21
Q: So, are you telling me that when you go back in, you should be
able to see even if I‟ve deleted it, when I opened it, when I viewed it?
A: Yeah, when it was created. All of these things are kept.
When asked if Trooper Parker, during his initial preview of Defendant‟s
computer, should have been able detect an image that was deleted without any
special tools for deleting, Hinch replied, “You can, yes.” Hinch further stated that
“[t]here would have been some record of him interacting with any one of those 53
files which, per the State‟s own admission, do not exist.” Because no artifacts of
the fifty-three files were recovered, Hinch concluded:
A: These files were never actively used on this computer and all
that means is that we have no record of that person ever accessing
these bytes. We can not prove that the defendant in this case with
forensics touched, opened, deleted these files. Now, they‟re going to
say deleted because there‟s empty bytes left from the end of the disc
and there‟s no record of those files on the operating system. But
there‟s no artifacts showing that they were deleted either, so that‟s sort
of an intelligently dishonest statement in saying that they were deleted
files recovered because there‟s no action of deletion that‟s found in
the artifact logs.
Hinch went on to say that with a “hundred percent surety that the individual
who used that computer never accessed any one of those 53 files with certainty.”
When asked if there was any way to tell how the images found with Trooper
Parker‟s data-carving equipment were put on the hard drive, Hinch replied, “No,
because they‟re not actual files, they‟re contiguous branches of bytes.” Hinch also
opined that it was important to know when Defendant came into possession of the
computer, noting that Trooper Parker‟s report showed some of the downloads
occurred prior to the computer purchase date. When asked if Defendant could
have been using another computer, Mr. Hinch responded:
A: Well, I mean, that‟s always feasible, the I.P. address-wise you
could have any computer behind the I.P. address, but all the I.P.
22
address nowadays tells me that somebody used his Wi-Fi, doesn‟t
even tell me what computer they used.
Q: Okay. So, what you‟re saying is what an I.P. address tells is
that somebody was using my Wi-Fi . . .
....
A: Could be you, could be your neighbor, could be - - I mean, even
the most modern encryption standards can be broken with free tools
off the Internet.
Hinch further testified that there have been several cases in which computers have
been bought that already contained pornography.
On cross-examination, Hinch stated that he would need to examine
Defendant‟s computer to determine if Defendant was used as a “mule.” When
asked if he had no personal knowledge as to whether or not Defendant‟s computer
was hacked, Hinch responded, “Neither does the State.”
On re-direct examination, when defense counsel asked Hinch why he
thought something was wrong with the State‟s case against Defendant, Hinch
responded:
A: The number one thing that bothered me is that the evidence that
was presented to me showed files did exist in unallocated space, the
data did, but the user of the operating system had no knowledge of
their existence and that was further proven by no artifacts existing in
the forensic examination of those files when they were created,
modified, deleted. There was information that a person who would
normally be involved in downloading, viewing, deleting or otherwise
those particular files - - that information would have been there. And,
so, by whenever I see that if it was a law enforcement agent that came
to me with that report I‟d advise them no prosecution. It would be
intelligently and morally dishonest to prosecute when the evidence
clearly dictates forensically that the user is not the one who viewed or
deleted the files that they found at the end of the disc. That‟s my
personal conviction on it.
Hinch further testified on re-cross examination:
A: I can testify that the user on the computer did not interact with
those 53 files and that‟s based off the statement from your own
23
forensic examiner during his preview which would have detected the
interaction.
The State called Trooper Parker to testify on rebuttal. The State asked
Trooper Parker about the fact that there were downloads to Defendant‟s I.P.
address before the purchase date of his computer on March 17, 2010. Trooper
Parker responded:
A: Funny you would ask that question because if you look at the - -
you know, I‟m looking at this receipt here, it‟s bought - - this
computer was bought on 3/17/2010. Windows on that day, 3/17/2010,
was registered to Ben. Also, on that day, 3/17/2010, LimeWire was
installed with the GUID number that I previously testified about that
we found on that computer. If you look at the file list there‟s
numerous GUIDs on that file list.
When asked whether LimeWire could have been installed on another computer that
was owned by Defendant prior to March 17, 2010, Trooper Parker responded:
A: Yes, sir, by the - - by the evidence here with it being purchased
on 3/17 there would have been another computer prior to. But if you
look at this file list, this associated - - this GUID had 163 files shared
that we saw and I was able to physically verify 14 of those files shared
with that GUID number were files that we introduced into evidence
that we showed the Court. So, 14 of those files were on this file list
shared with this GUID number between 3/17/2010 and 6/17/2010.
Q: All right. So, in layman‟s terms what you‟re telling us is that
this computer with - - even after it was purchased there was 163
images of child pornography downloaded to this computer?
A: They were shared from that computer.
On cross-examination, Trooper Parker testified that he tested Defendant‟s
computer for rogue software that would cause unintentional downloads. Finally,
when asked how he could tell that fourteen of the images from the file list were on
Defendant‟s computer between March 17, 2010, and the date the computer was
seized, Trooper Parker testified that he “took a totality of all the evidence[.]”
24
Trial Court’s Decision
After hearing the above testimony and closing arguments, the trial court
found Defendant guilty as charged:
BY THE COURT:
All right, the Court has heard the case, closing arguments of
counsel, considered the evidence, the offerings and the testimony.
There‟s no question that this defendant did access these - - this site of
- - pornographic site that contained these horrible and filthy pictures.
There‟s no question about that. Looking at pictures is not proscribed
under the law, it‟s possession of child pornography. No question that
he searched for it, no question that he viewed it. His admissions were
to that effect. It was not established when he did this by his
statements. The list of Internet providers or I.P. address list indicated
that there were four computers that were used at different times. The
pictures that were introduced into evidence were not identified with
any of the - - of these I.P. searches that were introduced into evidence.
These pictures were, according to the State‟s expert, Mr. Parker, were
contained in an area of inaccessible memory that you couldn‟t get to it
without a special computer program that you would have to get off of
the Internet somewhere. No evidence that this defendant was a
sophisticated computer user, no evidence that he knew how to get this
program or was disposed to do it anyway. There‟s no evidence that he
tried to access these hidden files, for lack of a better description.
They were inaccessible. There‟s no evidence that he knew they were
even there and they don‟t know when they were put there. They got
there, they just don‟t know when or what vehicle was used to place
them there. Possession is defined as the - - as being the act of
exercising dominion and control over a thing. Certainly, the
defendant exercised dominion over these things because he had the
computer. They were in the computer and he exercised - - he had the
computer. That‟s dominion. Control is the ability to put your hands
on it, so to speak - - get it. That‟s where I think the problem lies is
that this defendant did not have control over the images contained in
the computer that were introduced into evidence. However, the I.P.
address list shows that defendant accessed child porn from the time he
purchased this computer, March 19th, extensively, or this
pornographic site. I think that site had both adult pictures and
juvenile pictures on it and the - - it shows that accessed it extensively.
He admitted looking at the pictures and he admitted deleting the
pictures. The act of deleting an image is the exercise of control.
That‟s where we had dominion and control during when these - - I
don‟t know what images they were. I don‟t know if - they weren‟t
the ones that got in this - - they found in the computer, but I find that
it‟s - - it is - - the Court can conclude that this defendant possessed
25
those items when he deleted them at the time shown on the I.P. list
after March 17th, 2010. So, I find the defendant guilty as charged.
Defendant’s Argument
Defendant asserts that the State relied solely on circumstantial evidence to
prove that he possessed child pornography, since no witness saw him viewing such
pornography and the police found no illegal material when his computer was first
examined. Defendant argues that the State failed to exclude every reasonable
hypothesis of innocence, since Defendant‟s expert explained various ways the
images could have made their way to the inaccessible memory of Defendant‟s
computer, even without his knowledge.
Defendant also argues that the trial court erred in using the “dominion and
control” standard to determine whether he possessed the child pornography in the
present case. Defendant argues that the appropriate standard is whether Defendant
intentionally possessed the child pornography.
Finally, even under the “dominion and control” standard, Defendant argues
that the evidence was not sufficient to prove that he exercised dominion and
control over the child pornography. Defendant contends that he had no knowledge
that “the pornography remained on his computer after it flashed across his screen
and was immediately deleted.” Additionally, Defendant argues that his rejection of
the images by deleting them as soon as he saw them indicates a lack of intent to
possess the child pornography. Finally, Defendant asserts that he could not
possess images he could not access.
Analysis
Although Defendant asserts that the trial court used the wrong standard
when it considered whether he exercised dominion and control over the images in
26
question, Defendant merely cites the absence of jurisprudence using such a
standard for child pornography cases.4 There is no need to address whether use of
the “dominion and control” standard was correct, since the evidence was sufficient
even under the standard asserted by Defendant as being correct.
Defendant was charged with the commission of pornography involving
juveniles between the dates of June 23, 2010, and September 9, 2010. Although
this issue was not discussed in the trial court, during that time frame, the legislature
redefined pornography involving juveniles. The pre-amendment definition was in
effect between June 23, 2010 (the beginning date charged in the bill of
information), and August 14, 2010 (the day before the post-amendment definition
became effective). At that time, the offense of pornography involving juveniles
provided, in pertinent part:
A. Pornography involving juveniles is any of the following:
(1) The photographing, videotaping, filming, or otherwise
reproducing visually of any sexual performance involving a child
under the age of seventeen.
(2) The solicitation, promotion, or coercion of any child
under the age of seventeen for the purpose of photographing,
videotaping, filming, or otherwise reproducing visually any sexual
performance involving a child under the age of seventeen.
(3) The intentional possession, sale, distribution, or
possession with intent to sell or distribute of any photographs, films,
videotapes, or other visual reproductions of any sexual performance
involving a child under the age of seventeen.
La.R.S. 14:81.1.
4
The “dominion and control” standard has been used by some federal courts. See United
States v. Romm, 455 F.3d 990, 998 (9th Cir. 2006), cert. denied, 123 S.Ct. 1335 (2003), and
United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002), Cert. Denied, __ U.S. __, 1275 S.Ct.
1024 (2007)..
27
In State v. Roberts, 01-154, p. 6 (La.App. 3 Cir. 10/3/01), 796 So.2d 779,
784, writ denied, 01-2974 (La. 9/20/02), 825 So.2d 1163, this court interpreted the
“visual reproduction” requirement of La.R.S. 14:81.1(A)(1) to be satisfied by the
defendant‟s “intentional searching for nude images of juveniles by using certain
key words to access web pages which contain such images and the pulling up and
viewing of these offensive images on the computer screen . . . .” The court in
Roberts found that such conduct constituted “visual reproduction” of child
pornography and, thus, constituted pornography involving juveniles. In the present
case, Defendant admitted to using terms to search for child pornography, to
viewing the child pornography, and to deleting the child pornography. Thus, the
“visual reproduction” requirement of the pre-amendment version of La.R.S.
14:81.1(A)(1) was satisfied.
There is an issue, however, with the date of the offense alleged in the bill of
information. The bill of information charged Defendant with committing the
offense between June 23, 2010, and September 9, 2010. According to Detective
Smith and State‟s Exhibit Number One, the latest recorded date on which
Defendant accessed pornography on his I.P. address was June 7, 2010. Thus,
although there is evidence that Defendant‟s computer hard drive contained child
pornography within the dates alleged in the bill of information, there is no
evidence that the Defendant accessed those images between June 23, 2010, and
September 9, 2010, the dates alleged in the bill of information.
Since the date was not essential to the offense, however, the State‟s proof is
not limited to the dates alleged in the bill of information. Louisiana Code of
Criminal Procedure Article 468 provides:
28
The date or time of the commission of the offense need not be
alleged in the indictment, unless the date or time is essential to the
offense.
If the date or time is not essential to the offense, an indictment
shall not be held insufficient if it does not state the proper date or
time, or if it states the offense to have been committed on a day
subsequent to the finding of the indictment, or on an impossible day.
All allegations of the indictment and bill of particulars shall be
considered as referring to the same date or time, unless otherwise
stated.
In State v. Franklin, 263 La. 344, 268 So.2d 249 (1972), overruled on other
grounds by State v. Tharp, 284 So.2d 536, 543 (La.1973) and State v. Douglas,
278 So.2d 485 (La.1973), the supreme court found the trial did not err in denying a
motion for directed verdict of acquittal based on the fact that the indictment
charged the defendant with committing murder on January 14, 1970, and the
coroner‟s report showed the victim died on January 15, 1970. The supreme court
found that this variance did not vitiate the indictment or bar proof of the correct
date. In a footnote, the supreme court stated:
When the date is not essential to the offense, the indictment is
not insufficient when it states the incorrect date, although amendment
to conform to the proof may be permitted if objection is made.
Id. at 252 n.3 (citations omitted).
In the present case, the date of the offense is not an essential element
because time is not an essential element of pornography involving juvenilles. No
objection was made to the introduction of evidence regarding access to child
pornography on Defendant‟s I.P. address prior to the date alleged in the bill of
information, and no prejudice has been alleged. Furthermore, the State answered
Defendant‟s bill of particulars with a file listing showing Defendant accessed child
pornography prior to and on May 30, 2010, dates that are clearly outside the dates
29
alleged in the bill of information. Thus, the proof that Defendant accessed child
pornography prior to the date alleged in the bill of information may be considered
in evaluating the sufficiency of the evidence. After the State rested its case,
defense counsel moved for a judgment of acquittal, arguing that the State failed to
present any evidence that Defendant intentionally possessed child pornography
between the dates set forth in the bill of information. Because the only evidence of
peer sharing was between the dates of October 2009, and June 7, 2010, defense
counsel argued that the State offered no proof that anything was placed on the
Defendant‟s computer between June 23, 2010 and September 9, 2010, the dates
listed in the bill of information. The trial court, however, denied the motion for
acquittal, finding that the State was not bound to the exact dates alleged in the bill
of information.
Considering the jurisprudence, the lack of any allegation of prejudice, and
the lack of any argument on appeal regarding this issue, we find the trial court did
not err in denying the motion for acquittal. Accordingly, the trial court properly
considered evidence that showed Defendant accessed child pornography before the
dates alleged in the bill of information. Considering the file list showing the
pornographic files accessed by Defendant and Defendant‟s own admission that he
searched for and viewed child pornography, we find the evidence was sufficient to
prove Defendant “visually reproduced” images of child pornography in violation
of La.R.S. 14:81.1(A)(1), the definition in effect until August 14, 2010.
Although the evidence was sufficient to convict Defendant using the pre-
amendment definition of child pornography, we will discuss the sufficiency of the
evidence under the post-amendment definition which was also in effect during the
dates charged in the bill of information. Effective August 15, 2010, the legislature
30
amended La.R.S. 14:81.1. 2010 La. Acts No. 516, § 1 and La.Const. art. 3, § 19.
As of that date, La.R.S. 14:81.1 provided in pertinent part:
A. (1) It shall be unlawful for a person to produce, distribute,
possess, or possess with the intent to distribute pornography involving
juveniles.[5]
Although the “visual reproduction” element was eliminated from the amended
version, both the pre-amendment and post-amendment version list possession as an
element of child pornography.6 In State v. Wright, 45,980, p. 7 (La.App. 2 Cir.
1/26/11), 57 So.3d 465, 470, writ denied, 11-421 (La. 9/2/11), 68 So.3d 520, the
second circuit stated the following regarding the standard for determining whether
possession of child pornography has been proven:
Pornography involving juveniles is a general intent crime. See
State v. Cinel, 94-0942 (La. 11/30/94), 646 So.2d 309, cert. denied,
516 U.S. 881, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995). General
criminal intent is present when the circumstances indicate that the
offender, in the ordinary course of human experience, must have
adverted the prescribed criminal consequences as reasonably certain
to result from his act or failure to act. La.R.S. 14:10(2). The words
“intentional possession,” taken in their usual sense, mean that the
individual knowingly and voluntarily possessed the pornography, in
contrast to circumstances in which a person downloads images from
the internet without realizing that some images included in the
download were child pornography. State v. Horton, 42,199 (La.App.
2d Cir. 06/20/07), 962 So.2d 459, 466, writ denied, 07-1819 (La.
01/25/08), 973 So.2d 755.
5
The definition was again amended by 2012 La. Acts. No. 446, § 1.
6
The pre-amendment version proscribes the “intentional possession” of child
pornography while the post-amendment version proscribes possession without specifying
“intentional.” In State v. Cinel, 94-942, p.6 (La. 11/30/94), 646 So.2d 309, 314, cert. denied, 516
U.S. 881, 116 S.Ct. 215 (1995), the supreme court stated that it has “frequently interpreted
statutes which on their face are silent as to any requirement of intent or scienter, to impose in fact
a requirement of intent . . . .” Citing La.R.S. 14:11, the court further stated that absent qualifying
terms, the terms “intent” and “intentional” refer to general criminal intent. Id. We note that
La.R.S. 14:95.1, possession of a firearm by a convicted felon, similarly proscribes possession as
an element without specifying that the possession be intentional. The supreme court has stated
that La.R.S. 14:95.1 is a general intent crime. State v. Godeaux, 378 So.2d 941 (La.1979).
Accordingly, even though the post-amendment version of La.R.S. 14:81.1 does not specify that
the possession is intentional, the possession must be committed with general intent.
31
In Wright, the pornographic images were actually saved to two different floppy
disks found in the defendant‟s office. Thus, the defendant‟s access to the child
pornography images was clearer than the present Defendant‟s access to the
pornographic images found on his hard drive. However, Defendant‟s own
admission makes it clear that he purposefully sought out child pornography rather
than retrieving it accidentally.
In State v. Svehla, 06-397, (La.App. 1 Cir. 12/28/06) (unpublished opinion),
writ denied, 07-285 (La. 5/4/07), 956 So.2d 607, 7 the first circuit addressed
whether there was sufficient evidence of pornography involving juveniles when the
defendant argued that there was no proof that he knew child pornography was
contained on discs found in his room. The defendant asserted that even though
some of the discs were labeled “porn,” it is not illegal to possess pornography
involving adults. The first circuit found that the “critical evidence” of the
defendant‟s “intent and/or knowledge of the existence of the pornography was
defendant‟s own statement to police.” Id. When confronted by police that he was
being charged with a probation violation for possessing child pornography, the
defendant responded that he was not aware that such material was illegal. He told
the officers “that if he had known that the material was illegal, he would have
discarded it.” Id. The first circuit concluded, “While this statement by defendant
claims lack of knowledge of the illegality of the child pornographic material, it
clearly evinces defendant‟s knowledge that the material was in fact contained on
the discs.” Id.
In the present case, Defendant admitted to police that he searched for child
pornography, downloaded child pornography, viewed the child pornography, and
7
This case is cited at 2006 WL 3804628.
32
that he either deleted the images himself or had his computer set up to delete them.
At the end of this statement, Defendant specifically stated that he was not guilty of
looking at the images for any “stupid” reason. Thus, Defendant‟s statement clearly
shows that he knew the images that he was searching for, downloading, viewing,
and deleting were child pornography. His retrieval of such images was not
accidental. Unlike Svehla, however, Defendant believed he had deleted the
images.
In State v. Longo, 08-405 (La.App. 5 Cir. 1/27/09), 8 So.3d 666, the fifth
circuit addressed the sufficiency of the evidence where twenty-five images of child
pornography were found on the defendant‟s computer in a Yahoo Messenger
account under the user name “Mounted 42.” Longo told a detective that he
“recognized” some of the images but denied purposely downloading or keeping the
images. Finding the evidence was sufficient, the fifth circuit stated the following:
Longo‟s recorded statement shows that he was aware of the images
under investigation at that point and that he had not deleted them.
In addition to the images themselves, there was evidence of
Longo‟s participation in several lascivious internet chat rooms. The
texts of the chats under Longo‟s user name, “Mounted 42,” revealed
several references to the swapping of pictures involving juveniles.
This evidence, coupled with the discovery of twenty-five different
child pornography images with different creation, modification, and
access dates spanning over several months was sufficient for a rational
trier of fact to conclude Longo did not accidentally download the
child pornography but, rather, that he intentionally possessed the
images.
Id. at 670-71.
Like the defendants in the above cases, it is clear that Defendant did not
accidentally download the child pornography images. However, unlike the images
in the above cases, the images in the present case were found on an area of
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Defendant‟s computer hard drive that was not accessible without using special
equipment or software.
Although we have found no Louisiana cases involving possession of
pornography found solely on a hard drive, there are numerous federal cases
addressing similar factual scenarios. In United States v. Moreland, 665 F.3d 137,
152-53 (5th Cir. 2011), the Fifth Circuit set forth the following summary of federal
cases dealing with possession of child pornography when the images are found in
the hard drive of the defendant‟s computer:
The proof deficiency here is underscored by a comparison with
other federal courts of appeals‟ decisions holding that, even when the
defendant has exclusive possession of his computer, evidence of
storage of child pornography images in the hard drive of a defendant‟s
computer, without more, is insufficient to sustain a conviction or
sentence for knowing possession or receipt of child pornography; and
that in exclusive possession cases in which convictions have been
upheld, the government has presented additional evidence of the
defendant‟s knowledge, access and control of the child pornographic
images.
In United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011), the
Tenth Circuit concluded that Dobbs‟ conviction for receipt and
attempted receipt of internet child pornography must be reversed
because the evidence was insufficient to support the jury‟s finding of
guilt. Id. at 1209. The prosecution proved only that two child
pornography images were found in the cache of Dobb‟s computer. Id.
at 1202. The court found that this evidence was insufficient to
support Dobbs‟ conviction because the prosecution failed to
demonstrate that Dobbs knew about his computer‟s automatic caching
function, had seen the images, or had any ability to exercise control
over them. Id. at 1205, 1207. Therefore, the Tenth Circuit
determined that while a jury could conclude from that evidence that
Dobbs – or at least his computer – received the images, no reasonable
jury could find that he knowingly received the images.
In Dobbs, the court specifically rejected the prosecution‟s
argument that proof of Mr. Dobb‟s pattern of seeking out and
downloading internet child pornography was sufficient circumstantial
evidence to support Dobb‟s conviction, because the prosecution could
not show that Dobbs conducted a search for child pornography or
visited child pornography websites “immediately prior to the creation
of those two images in the cache.” Id. at 1204. Therefore, proof of
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illegal searches was still insufficient where those searches could not
be linked to the pornographic images for the which the defendant had
been indicted.
Dobbs dealt with the offense of knowingly receiving and attempting to receive
child pornography in violation of 18 U.S.C. § 2252(a)(2). Thus, unlike the present
case, the conduct being punished in Dobbs was the intentional receipt rather than
the intentional possession of the pornography.
The Fifth Circuit continued its summary as follows:
The Ninth Circuit also has demanded more than the mere
presence of child pornography images in a computer‟s hard drive to
prove knowing possession, when those images are found in an area of
the computer that non-expert users do not know about or cannot
access. In United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006),
the defendant appealed his sentence because the court had taken into
account additional images recovered on his computer after he pleaded
guilty to receiving and possessing different child pornography images.
Id. at 857. The court vacated his sentence because the additional
images were found in the cache and the prosecution had offered no
evidence to show that Kuchinski was a “sophisticated” computer user,
had ever tried to access the cache, or “even knew of [its] existence.”
Id. at 862. The court therefore found that “[w]here a defendant lacks
knowledge about the cache files, and concomitantly lacks access to
and control over those files, it is not proper to charge him with
possession and control of the child pornography images located in
those files, without some other indication of domination and control
over the images. To do so turns abysmal ignorance into knowledge
and a less than valedunarian [sic] grasp into dominion and control.”
Id. at 863.
Cases in which we and other circuits have upheld convictions
for possession of digital images of child pornography are as telling as
the cases in which the convictions were overturned. Affirmation of
convictions have been based on substantially more evidence than a
defendant‟s mere ownership and custody of the computer. In fact, the
evidence introduced in those cases tended, independently of
ownership or custody of the computer, to prove the defendant‟s
knowledge and possession of the unlawful images or material
concealed in the computer‟s hard drive. When the images are stored
in inaccessible areas of a hard drive or could have been downloaded
and retained by a computer‟s automatic processes without the
computer owner‟s knowledge – such as temporary internet files or, as
here, in the computer‟s disk slack space – courts have treated as
determinative whether the defendant had sufficiently expert computer
35
knowledge to know about and access those files or whether there were
independent facts that showed the defendant‟s knowledge and
dominion of child pornography images on the computer.
For example, in United States v. Winkler, 639 F.3d 692 (5th
Cir. 2011), this court upheld a defendant‟s conviction for receipt and
possession of child pornography because the government had
produced sufficient evidence that “Winkler himself sought out,
downloaded, viewed and had the ability to manipulate the images at
issue in this case.” Id. at 699. The prosecution produced evidence
that illicit videos on Winkler‟s computer were “hidden … behind
password walls in his … user account” or in “unnatural locations in
the computer‟s file hierarchy rather than the normal location for
downloaded material.” Id. It also provided evidence that Winkler
paid for members-only access to a child pornography site and
transmitted videos from this site to his computer. Id.
Similarly in United States v. Tucker, 305 F.3d 1193 (10th Cir.
2002), the Tenth Circuit upheld a defendant‟s conviction for
possession of child pornography in part because the prosecution
presented evidence that Tucker admitted to the police that he viewed
several thousand images of child pornography and that he
intentionally deleted his computer‟s cache after viewing the images.
Id. at 1197, 1204. The government also showed that Tucker paid a
user fee to access newsgroups that gave him access to images of child
pornography, and that he possessed the technical ability to access and
manipulate the images stored in the cache. United States v. Tucker,
150 F.Supp.2d 1263, 1265, 1269 (D.Utah 2001), aff’d, 305 F.3d 1193
(10th Cir. 2002).
In United States v. Sanchez, 59 M.J. 566, 570
(A.F.Ct.Crim.App.2003), aff’d in part, rev’d in part on other grounds,
60 M.J. 329 (C.A.A.F. 2004), the U.S. Air Force Court of Criminal
Appeals upheld a conviction for child pornography possession based
on files located in a computer cache and on other files that had been
deleted from the hard drive but were recoverable. In that case, the
prosecution had presented evidence that the defendant was a
subscriber of “numerous e-groups described as nude teen sites,” that
the child pornography images came through emails to an account to
which only he had access, and that the defendant was “relatively
sophisticated” in computer matters, such that a jury could find that he
knew that the images were being downloaded. See id. at 570.
These cases show that courts have refused to find that a
defendant constructively possessed child pornography located on his
computer without additional evidence of the defendant‟s knowledge
and dominion or control of the images.
Id. at 153-54.
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This is not a case where the only evidence submitted was the presence of
child pornography images on Defendant‟s hard drive. The State submitted
evidence of Defendant‟s purposeful search of the pornographic images. Defendant
admitted to using LimeWire to download pornography. Defendant also admitted
to using search terms specifically designed to retrieve child pornography and
specifically described videos he watched involving child pornography. According
to Trooper Fournier, the terms used by Defendant were known child pornographic
search terms. State‟s Exhibit Number One included pages of pornographic files
retrieved by Defendant‟s I.P. address. In Defendant‟s statement to police, he stated
that he deleted child pornography files after he viewed them, and explained that he
tried to set up his computer to erase everything. Trooper Parker explained that the
files were on Defendant‟s computer at one time but had been deleted.
There was no evidence, however, that Defendant knew the images remained
on his computer after he deleted them or that he knew how to access those images.
Considering the ample evidence that Defendant‟s retrieval of numerous images of
child pornography was no accident, the evidence that the images were viewed on
the Defendant‟s computer at one time, and the evidence that Defendant either
manually deleted the images or set up his computer to automatically delete the
images, this court finds the evidence was sufficient to prove Defendant
intentionally possessed the images. Regardless, however, of the sufficiency of the
evidence as to intentional possession, the evidence was sufficient to prove that
Defendant “visually reproduced” the child pornographic images as defined in the
pre-amendment version of La.R.S. 14:81.1(A)(1).
For the foregoing reasons, these assignments ultimately lack merit.
37
SEX-OFFENDER REGISTRATION NOTIFICATION
In assignment of error number one, Defendant asserts that he was not
informed of the sex-offender notification and registration requirements as required
by La.R.S. 15:543. Thus, Defendant requests a remand so that appropriate written
notice can be given to him.
The offense of pornography involving juveniles is a sex offense for which
Defendant is required to register as a sex offender. La.R.S. 15:541(24) and La.R.S.
15:542. Pursuant to La.R.S. 15:543(A), “The court shall provide written
notification to any person convicted of a sex offense and a criminal offense against
a victim who is a minor of the registration requirements and the notification
requirements[.]” The notice must be included “on any guilty plea forms and
judgment and sentence forms provided to the defendant, and an entry shall be
made in the court minutes stating that the written notification was provided to such
offenders.” La.R.S. 15:543(A).
Defendant was notified by written notification of the sex-offender
registration requirements when he originally pled no contest. Defendant was not
notified again, however, when he was sentenced after his conviction. Additionally,
the sentencing minutes following his conviction do not indicate that Defendant was
again notified of the registration requirements. Defendant requests a remand even
though he “has already registered in an effort to avoid being arrested for a bench
warrant that was issued charging Mr. Cooley with failure to register.”
Although this court has addressed whether the failure to notify a defendant
of the registration requirements vitiates the voluntariness of a guilty plea, we have
found no cases in which this court recognized an error as to the trial court‟s failure
to advise the defendant of the sex-offender notification requirements at sentencing.
38
Both the fifth and second circuits have recognized as error patent the trial court‟s
failure to advise the defendant of his registration requirements and have remanded
cases to the trial court for the appropriate notice to be given. State v. Trice, 14-636
(La.App. 5 Cir. 12/16/14), ___ So.3d ___8; and State v. Morning, 49,300 (La.App.
2 Cir. 10/1/14), 149 So.3d 925.
Since Defendant has already been informed of the sex-offender registration
requirement, has already registered as a sex offender, and fails to cite any authority
requiring remand, remand is not necessary in this case. We note that the time
period of which Defendant was notified that he must register (twenty-five years)
has not changed since Defendant‟s written notification.
For the foregoing reasons, this assignment of error lacks merit.
DECREE
Defendant‟s conviction and sentence are affirmed. The trial court shall
conduct an evidentiary hearing within thirty days of the date of this opinion to
determine whether Defendant knowingly and intelligently waived his right to trial
by jury. The trial court is further ordered to prepare and lodge an appellate record
with this court that contains the transcript of the above-referenced evidentiary
hearing within ten days of the hearing. Once that record is lodged with this court,
the State and Defendant will be given the opportunity to file briefs should either
party wish to raise any issue arising from the hearing.
CONVICTION AND SENTENCE AFFIRMED; REMANDED.
8
This case is cited at 2014 WL 7185265.
39