State of Louisiana Versus Andre A. Bradley

STATE OF LOUISIANA NO. 22-KA-381

VERSUS FIFTH CIRCUIT

ANDRE A. BRADLEY COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 21-534, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

March 01, 2023

MARC E. JOHNSON
JUDGE

Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Stephen J. Windhorst

AFFIRMED
MEJ
JGG
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Monique D. Nolan
Lynn Schiffman
Rebecca Kehoe

COUNSEL FOR DEFENDANT/APPELLANT,
ANDRE A. BRADLEY
Mary Constance Hanes

JOHNSON, J.

Defendant, Andre A. Bradley, appeals his 25-year sentences for his

possession of pornography involving juveniles under the age of 13 convictions

imposed in the 24th Judicial District Court, Division “N”. For the following

reasons, we affirm the convictions and sentences imposed by the trial court.

FACTS AND PROCEDURAL HISTORY

On March 3, 2021, the Jefferson Parish District Attorney filed a bill of

information charging Defendant with eight counts of pornography involving

juveniles under the age of 13. In the bill, count two was listed as being in violation

of “La. R.S. 4:81.1(E)(5)(A)” and the remaining counts were listed as being in

violation of “La. R.S. 14:81.1(E)(5)(A).” Defendant was arraigned and pleaded

not guilty to the charged offenses on March 9, 2021.

On December 3, 2021, the State amended the bill of information to nolle

prosequi counts seven and eight. The State further amended the bill of information

on December 6, 2021, correcting the statutory citation for the charged offense in

count two from “La. R.S. 4:81.1 (E)(5)(A)” to “La. R.S. 14:81.l (E)(5)(A).” The

State made those amendments by hand on the original bill of information.1

On December 6, 2021, prior to commencement of the jury trial, the trial

court considered the outstanding pretrial motions of counsel. After the pretrial

motions were disposed of, trial commenced that same day. At the one-day trial,

two State witnesses testified regarding the charged offenses.

Special Agent Randall Charles Gohn Sr. testified that in July 2020, the

National Center for Missing and Exploited Children (hereinafter referred to as

“NCMEC”)2 received a tip that an e-mail address known as “Djkiller96” was being

1
The amendments to the bill of information consisted of manually deleting counts seven and
eight and correcting a typographical error in the statutory citation as to count two.
2
The NCMEC is a tip line or a clearinghouse for child exploitation operated by civilians “where
the general public can call up, as well as internet or electronic service providers can provide information
regarding probable crimes.”

22-KA-381 1

utilized in connection with child pornography, which was discovered and located

within a Dropbox account linked to that e-mail.3 Defendant was later determined

to be the owner of the e-mail address and the Dropbox account.

On November 4, 2020, the tip was referred to the Louisiana Bureau of

Investigation Cybercrime Unit (hereinafter referred to as “the Bureau”) for

investigation. Agent Randall Gohn, Sr., an employee of the Bureau, became

involved with the case on January 7, 2020, when he was contacted to assist in

conducting the forensic examination of any possible devices located during the

execution of a search warrant at the residence of 6826 Veterans Boulevard,

Apartment 322, which was Defendant’s residence. During the execution of the

search warrant, Agent Gohn discovered several electronic devices, including

thumb drives, external hard drives, and cellular phones, located in the bedroom of

the residence. Agent Gohn testified that he performed a “triage” of the electronic

devices, some of which revealed no child pornography content while others,

approximately five devices, required further forensic examination. The five

devices consisted of (1) an external hard drive; (2) a black dual thumb drive and

voice recorder; (3) a red thumb drive; (4) a gray thumb drive; and (5) Defendant’s

cellular phone.

Agent Gohn conducted an initial forensic examination of the five electronic

devices and discovered pornographic images and videos involving juveniles under

the age of 13, including infants and toddlers. The three thumb drives contained

individual folders with pornographic material. Additional child pornographic

materials were discovered on the five electronic devices upon further forensic

examination. Agent Gohn testified that the devices contained several images and

videos of toddlers. Agent Gohn explained that, while in the midst of executing the

3
Agent Gohn testified that he has been an expert in the field of child exploitation investigation as
it relates to child pornography, child identification, and cellular and computer forensics. He also serves as
a Senior Lead Instructor for the High Tech Crime Institute.

22-KA-381 2

search warrant and after Defendant was advised of his Miranda4 rights, Defendant

provided the password to access the contents of his cellular phone. Images and

videos of child pornography were discovered in the gallery of Defendant’s cellular

phone. Agent Gohn explained, “[I]n order for pictures and videos to get in the

gallery, you have to actually download those items to the phone. They can’t just

be viewed on the phone on the web. They have to reside on the phone and be

catalogued and organized in the gallery of the phone.”

Agent Gohn testified that there are millions of images and videos of child

pornography on the internet, and it is very difficult to find unless a person actually

searches for that specific content. He conceded that Defendant has not been

charged with producing or participating in the production of child pornography or

the photographing of children. Agent Gohn further agreed that Defendant had not

been accused of having knowledge of the person who recorded the productions.

Agent Gohn explained that he could neither determine who produced the

images and videos, nor identify who the adult actors were in the images and

videos. He further testified, “[Y]ou can’t just go into Google and search child

pornography. You have to be in chat groups on the dark web, if you will, and

people have to get to know you. And they have to chat with you first before they

just send you child pornography.” He further stated that child pornography would

not appear on a person’s computer as a “pop-up” advertisement, and despite his

many investigations of child pornography, it has never “pop[ped]-up” on his

computer.

Supervisory Special Agent Brian Dale Brown, employed at the Louisiana

Attorney General’s Office in the Cyber Crime Unit, who investigates internet

crimes against children, also testified. He recounted that the NCMEC became

involved in the matter against Defendant after Dropbox submitted a cyber-tip.

4
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

22-KA-381 3

Agent Brown explained that in November of 2020, he started investigating an

account with the username “Djkiller96@gmail.com,” which entailed reviewing

digital content, primarily videos, submitted by the NCMEC. Agent Brown

testified that he also reviewed images, the username, the time, and the Internet

Protocol (“IP”) address provided by Dropbox for the account associated with the

Google e-mail.5 He described the ages of the juveniles depicted and the general

content of the images as “pre-pubescent children engaged and [sic] oral, anal or

vaginal intercourse, or sexually exploited in a position to where the genitalia was

exposed.”

Agent Brown further testified that in order to identify a suspect or locate

more evidence of a crime, he prepared a search warrant for Dropbox and Google

and prepared a subpoena for AT&T. In response to the search warrant for

Dropbox, Agent Brown received a link to access 350 to 400 gigabytes6 of

information, which included catalogued video and image folders of child sexual

abuse. The content included the same images submitted to Agent Brown by the

NCMEC from the cyber-tip. Google provided several messages associated with

the Google e-mail. Agent Brown testified that he reviewed the e-mail messages

and discovered Defendant’s name and e-mail address associated with the Google

account.

After discovering that Defendant was linked to the Google e-mail account,

Agent Brown performed a search to ascertain the user’s date of birth and other

information, ran a criminal check to determine if Defendant had a criminal history,

and then applied for a search warrant for Defendant’s residence. On January 7,

5
In the search warrant for Defendant’s Dropbox account, Agent Brown attested to reviewing
videos received from the NCMEC cyber-tip files of five prepubescent or under thirteen-year-old children.
There were additional 55 files of other videos included in the cyber tip that showed prepubescent males
and females under the age of 13 being orally, digitally, and anally raped.
6
Agent Gohn testified that a gigabyte is a data measurement unit for digital computers or media
storage equal to one billion bytes or one thousand megabytes.

22-KA-381 4

2021, Agent Brown, along with Homeland Security, Jefferson Parish Sheriff’s

Office task force deputies, and other agents from his office, executed a search

warrant at Defendant’s residence. Upon execution of the search warrant,

Defendant was the only person present at the residence.

Agent Brown described Defendant’s residence as a clean, single bedroom

apartment with no furniture, except in the bedroom, with only male clothing in the

closet, and mail addressed to Defendant. Once he entered into Defendant’s

bedroom, Agent Brown discovered a laptop with a gray and a red thumb drive in it,

along with charging cables for electronic devices. Agent Brown recalled that he

also found a Western Digital external hard drive, three thumb drives, a silver

Samsung cellular phone, a video camera, and a scan disc card, all of which were

removed from the residence and brought to the forensic van for a forensic

examination. Upon forensic examination of the videos and images on the five

electronic devices – an external hard drive, three thumb drives (black, red, and

gray), and a silver Samsung cellular phone—Agent Brown testified that the content

of each electronic device contained imagery of sexual abuse of children under the

age of 13.

At some point during the execution of the search warrant, Agent Brown

recounted reading the Miranda Rights Form to Defendant, which Defendant signed

and dated. Defendant then proceeded to give a recorded statement.

In his recorded statement, Defendant admitted that he is the owner of the

email address “djkiller96@gmail.com” and that he had a Dropbox account linked

to his Google e-mail account. Defendant conceded that he has viewed child

pornography on the “dark web” while trying to locate adult pornography.

Defendant denied viewing child pornography and denied possessing any child

pornographic materials on any of the data storage devices seized from his

residence. Defendant explained that he has talked to people, on various social

22-KA-381 5

media websites, who have sent him links to pornography. In his statement,

Defendant later admitted that he has been viewing pornographic materials for the

past four to five years, and that he had several videos and images of child

pornography on his storage devices.7

Agent Brown agreed that Defendant’s charges are based on downloaded

illegal content, and Defendant has not been accused of (1) taking or participating in

the images; (2) having any knowledge of the persons in front or behind the camera;

or (3) publishing the images. In preparation for trial and for ease of publication to

the jury, Agent Brown created a PowerPoint with some of the evidence that was

collected from the Google return, the Dropbox return, the gray thumb drive, the red

thumb drive, the black thumb drive, the Samsung cell phone, and the Western

Digital hard drive, all of which were seized from Defendant’s apartment. Some of

the videos and images discovered on Defendant’s storage devices were published

to the jury at trial.

At the conclusion of the presentation of evidence, the 12-person jury

returned a unanimous verdict of guilty as charged for each of the six counts. Prior

to sentencing, on January 25, 2022, Defendant filed a Motion for the Appointment

of a Sanity Commission, which was granted by the trial court. On April 12, 2022,

Defendant filed a Motion for New Trial and a Motion for Post-Verdict Judgment of

Acquittal. The following day, on April 13, 2022, Defendant’s competency hearing

was held. At that hearing, the trial court determined that Defendant was

competent. Immediately thereafter, the trial court denied Defendant’s motions for

new trial and for post-verdict judgment of acquittal. Defendant objected to those

rulings.

7
In his recorded statement, Defendant recounted being sexually abused at the age of seven by an
older male relative.

22-KA-381 6

After the motions were disposed of, the trial court proceeded with the

sentencing hearing. The trial court sentenced Defendant on each of the six counts

of pornography involving juveniles under the age of thirteen to 25 years at hard

labor without the benefit of probation, parole, or suspension of sentence. The trial

court further stated that Defendant would be given credit for all the time previously

served on those charges, and those sentences were ordered to run concurrently with

one another.

Later that same day, Defendant filed a Motion for Reconsideration of

Sentence.8 At the May 5, 2022 hearing, the trial court denied Defendant’s

reconsideration motion. Defendant objected to that ruling. On May 26, 2022,

Defendant filed a Motion for Appeal, which was granted by the trial court on

August 17, 2022. Defendant now appeals his sentences as unconstitutionally

excessive.

ASSIGNMENT OF ERROR

On appeal, Defendant alleges the trial court erred by imposing excessive 25-

year sentences for his convictions for possession of pornography involving

juveniles under the age of 13.

LAW AND ANALYSIS

On appeal, Defendant avers that his sentences, although within the statutory

limits, are excessive because the trial court failed to individualize the sentences

imposed. Defendant also contends that the trial court failed to take into

consideration that he can be rehabilitated with proper treatment such that his long

prison term serves no purpose. Lastly, Defendant argues that the trial court failed

to consider all mitigating factors, specifically, La. C.Cr.P. art. 894.1(B)(23), in that

Defendant did not realize that his criminal conduct would cause serious harm and

that no other crime, other than possession of child pornography, was shown in

8
Defendant’s motion was a generic reconsideration of sentence without specific arguments.

22-KA-381 7

Defendant’s case.

In response, the State contends that Defendant’s sentences of 25 years were

not excessive in light of the nature of the crime. The State argues that Defendant

amassed a voluminous collection of pornography involving juveniles under the age

of 13, including pornography involving toddlers and infants, in his Dropbox

account and on five electronic devices. To support its contentions, the State relies

on Special Agent Gohn’s testimony at trial, explaining that the Dropbox account

stored 400 gigabytes of files containing child pornography. The State further

emphasizes that Defendant’s download and use of child pornography re-victimizes

children and encourages and facilitates a market for the abuse as pointed out by the

trial court.

The State argues that while Defendant claims he did not intend to hurt

anyone or do anything wrong, his possession of pornography of juveniles well

under the age of 13 is reprehensible, and the nature of the crime warrants the

sentences of 25 years at hard labor on each of the six counts. The State relies on

Baker9 and Workman10 to substantiate Defendant’s sentences imposed by the trial

court. Lastly, the State emphasizes that there is no suggestion that the trial court

abused its discretion in imposing sentences of 25 years for each of the six counts,

with the sentences to run concurrently, and the record clearly supports the

sentences imposed.

April 13, 2022 Sentencing Hearing

At the April 13, 2022 hearing, Christina Bradley, Defendant’s mother, was

the sole witness to testify. Ms. Bradley requested compassion and mercy for

Defendant because an older boy, who was a family member, molested Defendant

9
State v. Baker, 51,933 (La. App. 2 Cir. 4/11/18), 247 So.3d 990, writs denied, 18-858 (La.
12/3/18), 257 So.3d 195, and 18-833 (La. 12/3/18), 257 So.3d 196.
10
State v. Workman, 14-559 (La. App. 5 Cir. 4/15/15), 170 So.3d 279, writ denied, 15-909 (La.
3/24/16), 190 So.3d 1189.

22-KA-381 8

at the age of seven; and Defendant never received any treatment or healing from

that trauma. She further apologized for not protecting Defendant from the trauma

and for her inability to discuss the trauma with him. Ms. Bradley explained that

Defendant was a victim and requested that the court give him “a chance,” instead

of taking his life with a long prison term. After being molested, Ms. Bradley

recalled Defendant became a recluse who “booby-traps” his room, so no one

comes in to do him anything. She described Defendant as a seven-year-old boy

who was robbed of his childhood, and who was mentally and emotionally unstable

because of the trauma that he endured. Ms. Bradley recounted the only reason

Defendant lived independently for six months was because she told him to do so.

After disclosing that she too was a victim of molestation, Ms. Bradley begged the

court for reduced sentences of less than ten years for Defendant.

In addition to her testimony, the trial court also considered Defendant’s

“presentencing memorandum” and Defendant’s words of remorse.11 Prior to

sentencing Defendant, the trial court stated, “Mr. Bradley, I’ve certainly taken your

mother’s testimony into consideration, as well as the uh, [m]emorandum filed on

behalf of you by your lawyer.” The trial court further explained,

[T]he Court is certainly empathetic to you for what you have, uh, had
to endure, but at the same time, you more than anybody understand
the impact that that type of crime has upon people, in particular,
children. …And, again, in this Court’s mind, you, as a victim, more
than anyone, has to be in the position to understand the horrific impact
to every one of those children who were forced. None of them were
there doing that, uh, consensually. They were forced into doing that.
And, you, whether you’d like to believe it or not, you had a part in
that, because you contributed to the fact that people make those types
of videos, because you had plenty of them that you were possession.
[sic]

The trial court then sentenced Defendant.

11
Defendant uttered, “I want to apologize to everyone. And just – It, it wasn’t – I didn’t – I
didn’t have anything – I wasn’t trying to do anything wrong. It’s a crime, and most of all, I just want to
say I’m sorry. Just, I’m sorry.”

22-KA-381 9

Motion for Reconsideration of Sentence and May 5, 2022 Hearing

In the court below, Defendant contended in his Motion for Reconsideration

of Sentence that the imposed sentences were excessive and that lower sentences

should be imposed in conformity with fairness and state and federal constitutional

standards.

At the May 5, 2022 hearing on Defendant’s Motion for Reconsideration of

Sentence, Defendant waived oral arguments and submitted on the motion. The

State argued that the trial court heard and reviewed all of the evidence presented at

trial, and the sentences imposed were appropriate and that Defendant’s request for

a reduction should be denied. In reply, Defendant contended that the trial court

heard the testimony of Defendant’s mother, recounting that he was a victim of

sexual abuse at a young age, and that the trial court should reconsider sentencing

him to a number closer to the plea offer of ten years.

At the conclusion of the hearing, the trial court denied Defendant’s motion

to reconsider the sentence. Defendant objected to that ruling. The trial court

explained the reasons for the denial, by stating:

[A]t the time of my initial sentencing gave consideration to the
testimony of the Defendant’s mother who did come and testify. The
Court listened to attentively to her testimony and the Court likewise
took into consideration the memorandum, sentencing memorandum,
filed by defense counsel. The Court did sit through the trial of this
matter. I saw the countless images of pornography of children well
under the age of thirteen and for the same reasons that, I articulated at
the time that I sentenced the Defendant at this time [sic].

Excessive Sentences

Under La. C.Cr.P. art. 881.1, “Absent the filing of a timely written motion

for reconsideration of sentence or making of an oral objection at the sentencing

hearing, a defendant is precluded from urging on appeal any ground of objection to

the sentence.” The failure to state the specific grounds upon which the motion is

based precludes the defendant from raising those grounds on appeal. State v.

22-KA-381 10

Decay, 01-192 (La. App. 5 Cir. 9/13/01), 798 So.2d 1057, 1075, writ denied, 01-

2724 (La. 8/30/02), 823 So.2d 939. Such a failure limits a defendant to a bare

review of the sentence for unconstitutional excessiveness. State v. Carter, 07-270

(La. App. 5 Cir. 12/27/07), 976 So.2d 196, 203.

In the instant case, Defendant filed a written motion for his sentences to be

reconsidered in the lower court. However, Defendant failed to state the specific

grounds or the legal basis for a reduction in his sentences within his motion. At the

May 5, 2022 hearing, Defendant waived oral argument and submitted on the

motion; however, after the State’s responsive argument that the trial court should

deny Defendant’s motion in light of the evidence presented at trial, Defendant

submitted a rebuttal argument to the trial court. Specifically, Defendant

emphasized that the trial court heard the testimony of his mother, recounting that

Defendant was a victim of sexual abuse at a young age and Defendant should be

sentenced in a range closer to the ten years offered in connection with the plea

offer.

Presently, on appeal, for the first time, Defendant raises three grounds,

arguing that the sentences imposed are excessive. As previously discussed above,

on appeal, Defendant asserts the trial court failed (1) to individualize the sentence

imposed, (2) to take into consideration that defendant can be rehabilitated with

proper treatment such that his long prison term serves no purpose, and (3) to

consider defendant did not consider that his criminal conduct would cause serious

harm in accordance with La. C.Cr.P. art. 894.1(B)(23).12 The only ground raised in

Defendant’s motion to reconsider sentence was unconstitutional excessiveness.

Also, at the hearing on his motion, in oral argument, Defendant asserted he was a

12
This Court has held that when the specific grounds for objection to the sentences, including
alleged non-compliance with La. C.Cr.P. art. 894.1, are not specifically raised in the trial court, these
issues are not included in the bare review for constitutional excessiveness, and the defendant is precluded
from raising these issues on appeal. State v. Clark, 19-518 (La. App. 5 Cir. 6/24/20), 296 So.3d 1281,
1291, writ denied, 21-62 (La. 3/9/21), 312 So.3d 585.

22-KA-381 11

victim of sexual abuse. Although Defendant’s first assertion in his motion is

encompassed in the review for unconstitutional excessiveness, his two remaining

contentions, grounds two and three, were not raised at the trial court level, as

required by La. C.Cr.P. art. 881.1. Therefore, Defendant is precluded from raising

those issues on appeal.13 Accordingly, he is limited to a bare review of his

sentences for unconstitutional excessiveness. See State v. Hernandez-Zuniga, 11-

378 (La. App. 5 Cir. 12/13/11), 81 So.3d 129, 134, writ denied, 12-28 (La.

4/20/12), 85 So.3d 1268.

The Eighth Amendment to the United States Constitution and Article I, §

20 of the Louisiana Constitution prohibit the imposition of excessive punishment.

State v. Pike, 18-538 (La. App. 5 Cir. 5/8/19), 273 So.3d 488, 498, writ denied, 19-

927 (La. 2/10/20), 292 So.3d 60. A sentence is considered excessive if it is grossly

disproportionate to the offense or imposes needless and purposeless pain and

suffering. Id. The trial judge is afforded broad discretion in sentencing, and a

reviewing court may not set aside a sentence for excessiveness if the record

supports the sentence imposed. La. C.Cr.P. art. 881.4(D). The sentence imposed

should not be set aside as excessive in the absence of a manifest abuse of

discretion. State v. Hankton, 20-388 (La. App. 5 Cir. 7/3/21), 325 So.3d 616, 623,

writ denied, 21-1128 (La. 12/7/21), 328 So.3d 425.

In reviewing a sentence for excessiveness, an appellate court must consider

the crime and the punishment in light of the harm to society and gauge whether the

penalty is so disproportionate as to shock its sense of justice, while recognizing the

trial court’s wide discretion. State v. Picard, 19-593 (La. App. 5 Cir. 3/17/21), 316

So.3d 129, 140, writ denied, 21-570 (La. 6/22/21), 318 So.3d 704.

13
A motion for reconsideration of sentence must set forth specific grounds upon which the
motion is based. La. C.Cr.P. art. 881.1. The failure to state the specific grounds upon which a motion to
reconsider is based precludes a defendant from raising issues relating to statutory errors or deficiencies,
such as compliance with La. C.Cr.P. art. 894.1, and limits a defendant to a review of the sentence for
constitutional excessiveness only. State v. Hunter, 11-787 (La. App. 5 Cir. 4/24/12), 94 So.3d 797, 800.

22-KA-381 12

In the case at bar, Defendant was convicted of six counts of pornography

involving juveniles under the age of 13, and he faced an increased sentencing

range under La. R.S. 14:81.1(E)(5)(a). However, that statute references La. R.S.

14:81.1(E)(1)(a), which provides the sentencing range regardless of the ages of the

juveniles involved. Thus, both La. R.S. 14:81.l (E)(1)(a) and La. R.S.

14:81.1(E)(5)(a) must be considered to review Defendant’s sentences in the instant

case.14

La. R.S. 14:81.1(E)(5)(a) states:

Whoever commits the crime of pornography involving juveniles
punishable by the provisions of Paragraph (1), (2), or (3) of this
Subsection when the victim is under the age of thirteen years and the
offender is seventeen years of age or older shall be punished by
imprisonment at hard labor for not less than one-half the longest term
nor more than twice the longest term of imprisonment provided in
Paragraph (1), (2), and (3) of this Subsection. The sentence imposed
shall be served without benefit of parole, probation, or suspension of
sentence.

La. R.S. 14:81.l (E)(1)(a) provides:

Whoever intentionally possesses pornography involving juveniles
shall be fined not more than fifty thousand dollars and shall be
imprisoned at hard labor for not less than five years or more than
twenty years, without benefit of parole, probation, or suspension of
sentence.

At the time of the offenses in the instant case, the penalty for pornography

involving juveniles pursuant to La. R.S. 14:81.l (E)(1)(a), provided a sentencing

range of five to 20 years at hard labor, to be served without the benefit of parole,

probation, or suspension of sentence. Because Defendant was convicted of

pornography involving juveniles under the age of 13 and was an offender over the

age of 16, he faced an increased sentencing range under La. R.S. 14:81.1(E)(5)(a)

14
As a general rule, the law in effect at the time of the commission of a crime is determinative of
the sentence the convicted must serve. State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 520 (citing
State v. Wright, 384 So.2d 399, 401 (La. 1980)); State v. Henry, 17-516 (La. 5/26/17), 220 So.3d 706, 707
(citing State v. Mayeux, 01-3195 (La. 6/21/02), 820 So.2d 526, 530); State v. Gonzalez, 15-26 (La. App. 5
Cir. 8/25/15), 173 So.3d 1227, 1239. Therefore, a trial court must sentence a defendant in accordance
with the penalty provision of a criminal statute in effect at the time the crime took place. Sugasti, 820
So.2d at 520 (citing State v. Narcisse, 426 So.2d 118, 130-31 (La. 1983), cert. denied, 464 U.S. 865, 1045
S.Ct. 202, 78 L.Ed.2d 176 (1983)).

22-KA-381 13

of ten to 40 years, at hard labor, to be served without the benefit of parole,

probation, or suspension of sentence. Thus, in accordance with both La. R.S.

14:81.l (E)(1)(a) and La. R.S. 14:81.1(E)(5)(a), the penalty for pornography

involving juveniles under the age of 13 consists of a range of ten to 40 years, at

hard labor, to be served without the benefit of parole, probation, or suspension of

sentence.

Further, in the instant case, the trial court did not impose a fine as part of the

sentence. La. R.S. 14:81.1(E)(5)(a) does not mention a fine. However, that statute

references La. R.S. 14:81.1(E)(1)(a), which does require a fine of “not more than

fifty thousand dollars.”

A review of the record reveals that at the April 13, 2022 sentencing hearing,

the trial court imposed a mid-range concurrent terms of imprisonment of 25 years

at hard labor without the benefit of parole, probation, or suspension of sentence for

each of the six counts of pornography involving juveniles under the age of 13

convictions. Defendant could have received a sentence of 40 years imprisonment

for each conviction, instead of the 25 years imposed for each conviction.

Additionally, “one who intentionally possesses child pornography can be charged

on a separate count, and sentenced separately for each count upon which he or she

is convicted, for each child in each sexual performance captured within

photographs, films, videotapes, and/or other visual reproductions that comprise the

defendant’s collection of child pornography.” State v. Fussell, 06-2595 (La.

1/16/08), 974 So.2d 1223, 1238.15 Instead, Defendant received mid-range

sentences for each of the six convictions of pornography involving juveniles under

the age of 13.

15
In Fussell, supra, the Louisiana Supreme Court held that “since [d]efendant in the instant
matter possessed at least sixteen computer-printed photographs of a different child in a different sexual
performance, we hold that the Third Circuit Court of Appeal improperly reduced defendant’s convictions
for the intentional possession of pornography involving juveniles to a single conviction.”

22-KA-381 14

Here, at trial, through Defendant’s recorded interview, the State established

that Defendant had several images and videos consisting of child pornography of

juveniles under the age of 13. The testimony of Agents Gohn and Brown also

supported that Defendant had at least 60 videos and images of pornography

involving juveniles under the age of 13 stored in his Dropbox account and 400

gigabytes that contained at least 10 videos and images of pornography involving

juveniles under the age of 13 on his personal storage devices.

As previously discussed, at sentencing, the trial court took into account the

testimony of Defendant’s mother, along with Defendant’s words of remorse and

acknowledgment of wrongful conduct. The trial court also considered the

presentence memorandum prepared by Defendant, which stated that Defendant had

no prior criminal history and a history of sexual abuse as a victim. However, the

trial court also took into consideration, at sentencing, that Defendant was in

possession of a large number of pornographic photographs of juveniles under the

age of 13. The trial court emphasized that Defendant contributed to the

dissemination of the imagery containing child sexual abuse. Agent Gohn testified

that the images and videos did not just appear on Defendant’s devices as a “pop-

up” advertisement, and Defendant actually communicated on the “dark web” with

others who would send child pornography to Defendant. The record further

confirms that once Defendant received the child pornography in the form of

images and videos, Defendant downloaded it to his personal data storage devices.

After review, we find Defendant’s sentences were at the midpoint of the

sentencing range, and the record shows an adequate factual basis for the sentences

imposed. We further determine that the sentences are not unconstitutionally

excessive, not out of proportion to the seriousness of the offenses, not purposely

and needlessly inflicting pain and suffering, and do not shock the sense of justice.

22-KA-381 15

Additionally, we find that the concurrent 25-year sentences imposed on Defendant

by the trial court were within the statutory sentencing range.

Errors Patent Review

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5th Cir. 1990). We found no errors that require corrective action.

DECREE

For the foregoing reasons, we affirm Defendant’s convictions for possession

of pornography involving juveniles under the age of 13 and the concurrent 25-year

sentences imposed for his convictions.

AFFIRMED

22-KA-381 16

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 1, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-381
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED
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