State of Louisiana v. Bengy R. Cooley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-40

STATE OF LOUISIANA

VERSUS

BENGY R. COOLEY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 80641
HONORABLE JOHN C. FORD, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

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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.

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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

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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.

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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.

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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.

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