State of Louisiana v. Daniel E. Hedrick, II

Judgment rendered January 12, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,169-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

DANIEL E. HEDRICK, II Appellant

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Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 231,792

Honorable Michael Owens Craig, Judge

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ERIC GERARD JOHNSON Counsel for Appellant
RACHEL WIGGINS BAYS

JOHN SCHUYLER MARVIN Counsel for Appellee
District Attorney

JOHN MICHAEL LAWRENCE
ANDREW C. JACOBS
ALEXANDRA AIELLO
Assistant District Attorneys

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Before MOORE, COX, and ROBINSON, JJ.

ROBINSON, J.

Having been convicted of possession of pornography involving

juveniles and attempted possession of pornography involving juveniles,

Daniel Hedrick, II, appeals the denial of his motion in arrest of judgment.

We affirm the denial of his motion. Noting on error patent review that

Hedrick’s sentences are illegally lenient, we vacate his sentences and

remand this matter to the trial court for resentencing.

BACKGROUND

In October of 2018, the Bossier Parish Sheriff’s Office received a

complaint that Hedrick had molested his minor stepdaughter as well as two

of her minor friends. His stepdaughter’s date of birth was March 21, 2001.

Hedrick denied the allegations, but admitted that in 2015 he had found a

video on his stepdaughter’s phone of her masturbating and that he had

downloaded the video to his computer before giving copies of the video to

his attorney at that time and his counselor. The attorney the video was given

to was representing Hedrick in a domestic matter involving an unsuccessful

attempt by the stepdaughter’s biological father to obtain a protective order.

Hedrick’s residence was searched pursuant to a search warrant. Law

enforcement officers found the cell phone containing the stepdaughter’s

video, as well as the computer to which it had been downloaded. In

addition, officers recovered a CD containing a video labeled “preteen girl

gets fingered.” That video was later determined to be child pornography as

the young girl shown in it was a known victim in the National Center for

Missing and Exploited Children’s database.

On June 10, 2019, Hedrick was charged by bill of information with

two counts of possession of pornography involving juveniles. Regarding the

counts, the bill stated:

COUNT ONE:
R.S. 14:81.1 POSSESSSION OF PORNOGRAPHY
INVOLVING JUVENILES, Daniel E. Hedrick II, on or about
October 24, 2018, did unlawfully possess pornography
involving juveniles; and
COUNT TWO:
R.S. 14:81.1 POSSESSION OF PORNOGRAPHY
INVOLVING JUVENILES, Daniel E. Hedrick II, on or about
October 24, 2018, did unlawfully possess pornography
involving juveniles.

The language in the counts was identical.

A jury trial was held in March of 2020 with the jury receiving

testimony over four days. Hedrick was convicted by a unanimous jury as

charged on Count One. He was convicted by a unanimous jury of attempted

possession of child pornography involving juveniles on Count Two. The

jury found Hedrick not guilty of: (1) first degree rape of his stepdaughter; (2)

molestation of a juvenile under 13 involving his stepdaughter; (3)

molestation of a juvenile under 13 involving his stepdaughter’s friend; (4)

molestation of a juvenile involving another friend of his stepdaughter; and

(5) indecent behavior with a juvenile under 13 involving his stepdaughter.

On June 22, 2020, Hedrick filed a motion in arrest of judgment. He

argued that although the charges referred only to the masturbation video and

to the preteen girl video, it was impossible for the jury to discern which

count referred to which video. Furthermore, he argued he was prejudiced

because he could not determine for purposes of appealing his conviction

precisely what he was convicted of possessing and of attempting to possess.

He contended there was no identifying information in the bill of information,

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in anything provided to him through discovery, or in evidence presented at

trial concerning what image was the subject of Count One and what image

was the subject of Count Two. He further argued that the trial court was

required by La. C. Cr. P. art. 859 to arrest the judgment not only because the

bill of information was substantially defective in that an essential averment

was omitted, but the verdict was not responsive to the information or was

otherwise so defective that it will not form the basis of a valid judgment.

The motion was denied. Hedrick was sentenced to 12 years at hard

labor on the possession conviction and 6 years at hard labor on the attempted

possession conviction. The sentences were ordered to be served

concurrently.

DISCUSSION

La. C. Cr. P art. 859 sets forth the grounds for an arrest of judgment.

It states:

The court shall arrest the judgment only on one or more of the
following grounds:
(1) The indictment is substantially defective, in that an
essential averment is omitted;
....
(5) The verdict is not responsive to the indictment, or is
otherwise so defective that it will not form the basis of a valid
judgment[.]

Hedrick first argues on appeal that the bill of information was

substantially defective in that an essential averment was omitted. He

maintains that because the bill of information stated only that he possessed

pornography involving juveniles on or about October 24, 2018, he did not

know what evidence at trial matched with each specific count. He adds that

he was prejudiced by the absence of language distinguishing the counts.

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La. Const. art. I, § 13 states that in a criminal prosecution, an accused

shall be informed of the nature and cause of the accusation against him. La.

C. Cr. P. art 464 requires that the indictment shall be a plain, concise, and

definite written statement of the essential facts constituting the offense

charged.

The bill of information must contain all the elements of the crime

intended to be charged in sufficient particularity to allow the defendant to

prepare for trial, to enable the court to determine the propriety of the

evidence that is submitted upon the trial, to impose the appropriate penalty

on a guilty verdict, and to protect the defendant from double jeopardy. State

v. Washington, 41,182 (La. App. 2 Cir. 09/01/06), 939 So. 2d 557, writs

denied, 06-2320 (La. 5/18/07), 957 So. 2d 148, and 06-2468 (La. 5/18/07),

957 So. 2d 149.

At the time the search warrant was executed, La. R.S. 14:81.1 stated,

in relevant part:

A. (1) It shall be unlawful for a person to produce, promote,
advertise, distribute, possess, or possess with the intent to
distribute pornography involving juveniles.
(2) It shall also be a violation of the provision of this Section
for a parent, legal guardian, or custodian of a child to consent to
the participation of the child in pornography involving
juveniles.

Hedrick emphasizes that the offense of pornography involving

juveniles has as its essential elements: (1) an act such as possession, (2) a

medium such as a photograph, video, or film, (3) a sexual performance, and

(4) that the person depicted in the performance was under the age of 17. He

maintains that the only element mentioned in both counts was the act of

possession. According to Hedrick, the remaining essential facts underlying

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the charges were missing, which made the bill of information substantially

defective on its face.

The time for testing the sufficiency of an indictment or bill of

information is before trial by way of a motion to quash or an application for

a bill of particulars. State v. Draughn, 05-1825 (La. 01/17/07), 950 So. 2d

583. A post-verdict attack on the sufficiency of an indictment should be

rejected unless the indictment failed to give fair notice of the offense

charged or failed to set forth any identifiable offense. Id.

Hedrick concedes that he did not file an application for a bill of

particulars, and that he was provided with open-file discovery by the

prosecution which included the two videos in question. However, he

contends that it was not his duty to inform the State of any deficiencies or

errors in the charge, nor should he be forced to eliminate a possible defense.

The bill of information gave Hedrick fair notice of the offenses

charged and it set forth identifiable offenses. Furthermore, the decision not

to seek a bill of particulars may have been trial strategy by defense counsel.

We find no merit to Hedrick’s argument.

Hedrick next argues on appeal that the verdict was not responsive to

the bill of information and was otherwise so defective that it could not form

the basis of a valid judgment. He contends that similar to the bill of

information, the verdict forms lacked features to distinguish the counts.

According to Hedrick, the verdicts instantly became defective once he was

found guilty of possession on one count and guilty of attempted possession

on the other count.

Hedrick maintains that under the circumstances of this case, the

conviction of attempted possession presupposes a delineation of the counts,
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yet neither the counts nor the verdicts indicate any delineation between the

two videos at issue. He adds that it is pure speculation to attribute either

verdict to a specific video, and, thus, he will be prejudiced when challenging

his convictions on appeal.

Hedrick’s argument on this point is also without merit. Hedrick was

well aware of the video evidence following open-file discovery. There is

nothing in this record indicating that Hedrick objected to the verdict form as

being possibly vague regarding the possession charges or nonresponsive to

the bill of information. See La. C. Cr. P. art. 841; State v. McNair, 597 So.

2d 1096 (La. App. 2 Cir. 1992), writ denied, 605 So. 2d 1113 (La. 1992).

Error patent review

La. R.S. 14:81.1(E)(1)(a) states, “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.” Hedrick was not fined, and his sentences were not ordered to

be served without benefits.

A defendant in a criminal case does not have a constitutional right or a

statutory right to an illegally lenient sentence. State v. Williams, 00-1725

(La. 11/28/01), 800 So. 2d 790. An illegal sentence may be corrected at any

time by the court that imposed the sentence or by an appellate court on

review. La. C. Cr. P. art. 882(A). This correction may be made despite the

failure of either party to raise the issue. See State v. Williams, supra; State v.

Leday, 2005-1641 (La. App. 3 Cir. 5/3/06), 930 So. 2d 286.

This Court is not required to correct an illegally lenient sentence.

State v. Dock, 49,784 (La. App. 2 Cir. 6/3/15), 167 So. 3d 1097.
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Nevertheless, this Court in its discretion vacates Hedrick’s sentences and

remands this matter to the trial court to impose legal sentences.

We additionally note that Hedrick was not given sex offender

registration and notification instructions as required in La. R.S. 15:543. This

error can be corrected upon resentencing.

Finally, we note that under La. C. Cr. P. art. 873, unless waived,

sentence shall not be imposed until at least 24 hours after a motion in arrest

of judgment is overruled. Hedrick was sentenced on the same date that his

motion in arrest of judgment was denied. He did not waive the delay.

Nevertheless, this error is rendered moot because the sentences are vacated

and the matter remanded for resentencing.

CONCLUSION

For the foregoing reasons, the trial court properly denied the motion in

arrest of judgment. That ruling is affirmed. Hedrick’s sentences are vacated

and this matter is remanded to the trial court to impose legal sentences and

to inform Hedrick of his sex offender registration and notification

requirements.

AFFIRMED, SENTENCES VACATED, AND REMANDED.

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