State of Louisiana v. Kendarius Dewayne Sewell A/K/A Kendarius Sewell

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-798

STATE OF LOUISIANA

VERSUS

KENDARIUS DEWAYNE SEWELL
A/K/A KENDARIUS SEWELL

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 347,244
HONORABLE MARY DOGGETT, DISTRICT JUDGE

**********

GUY E. BRADBERRY
JUDGE

**********

Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Guy E. Bradberry,
Judges.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

Jeff Landry
Attorney General
Christopher N. Walters
Grant L. Willis
Assistants Attorney General
P.O. Box 94005
Baton Rouge, LA 70804
(225) 326-6276
COUNSEL FOR:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P. O. Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Kendarius Dewayne Sewell

Kendarius Dewayne Sewell
Rapides Parish Detention Center #3
7400 Academy Drive
Alexandria, La 71303

BRADBERRY, Judge.

Defendant, Kendarius Dewayne Sewell, was originally charged by bill of

information with three counts of pornography involving juveniles under the age of

thirteen years, in violation of La.R.S. 14:81(A)(1), E(1)(a), and E(5)(a).

Subsequently, two amended bills were filed with the final charges being three

counts of pornography involving juveniles under the age of thirteen and three

counts of pornography involving juveniles under the age of seventeen. By a

unanimous vote, a jury convicted Defendant of the charged offenses. For each

conviction involving juveniles under the age of thirteen, Defendant was sentenced

to ten years at hard labor without the benefit of parole, probation, or suspension of

sentence. For each conviction involving juveniles under the age of seventeen,

Defendant was sentenced to serve five years at hard labor without the benefit of

parole, probation, or suspension of sentence, all sentences to run concurrently with

credit for time served. Defendant was required to register as a sex offender for

twenty-five years. Defendant is before this court appealing his convictions.

FACTS

At trial, Supervisory Special Agent Randall Gohn, Sr., of the Attorney

General’s Office, Louisiana Bureau of Investigation, testified he works in the

cybercrime unit dealing mostly with child sex exploitation. The majority of his

cases have been based on National Center for Missing and Exploited Children

(NCMEC) cyber tip referrals. In this case, NCMEC was advised that child sexual

exploitation material (child pornography) had been transmitted or sent from an

account to an unknown person via Instagram and Twitter. When it is believed that

child pornography is being trafficked through Twitter and Instagram, the abuse

material along with the subscriber information (username or email address) is sent

to NCMEC. Also sent is the internet protocol address (IP address) associated with

the account, whether that be the IP address used to upload the material or the IP

address used to log into the account. When NCMEC obtained the information in

this case, they forwarded the information to the Louisiana Internet Crime Against

Children Task Force. Agent Gohn reviewed the actual images/videos that were

received, and he testified that there were quite a few videos and images of

“prepubescent children engaging in sexual acts or lewdly displaying their vaginal

or anal regions.” He issued a subpoena to Suddenlink Communications providing

the pertinent IP address and exact time that he was told the account was used to

upload or transmit the material. In response, he received documentation revealing

that the customer was Defendant, and the residential address was provided.

Agent Gohn testified that he applied for and obtained a search warrant for

the residence. When the search was executed on the morning of January 9, 2020,

Defendant and his father were home. Defendant agreed to speak with Agent Gohn.

About two minutes and thirty seconds into their talk, Defendant was Mirandized

out of an abundance of caution, and no promises or threats were made. Defendant

provided the password for his phone prior to, and then again after, being

Mirandized.1 According to Agent Gohn, Defendant, who was up, wide awake, and

had showered, was very polite to deal with the entire time. He did not appear to be

under the influence of drugs or alcohol, appeared to be under no duress or stress,

and he understood why law enforcement was there. While the search was being

executed in the house, Agent Gohn and Special Agent Scott Woodrow of the

Department of Homeland Security spoke to Defendant in the back of their van for

1
The trial court denied a motion to suppress the giving of the password prior to
Defendant’s Miranda rights being given because at the point that the information was given,
Defendant was not subject to custodial interrogation.

2

about forty minutes. This was done because it was cold outside, and the residence

was small. The interview was recorded, although this was not known to Defendant

at the time. At the point the agents spoke to Defendant, he was not under arrest

because they did not know he was the suspect; the only thing known was that the

IP address was registered to the residence. The agents did not know who was

using the internet service.

The recording of Defendant’s interview was played for the jury. In it,

Defendant said he had three cell phones, one which worked, and two older ones

that did not. He provided agents the password to his working phone. Agents told

him he was not under arrest. They read him his Miranda rights, and shortly

thereafter, Defendant again provided the password to his cell phone. Defendant

said he dropped out of school in ninth grade. He said he did not drink or smoke, so

he was not under the influence of anything. He had never been arrested. He

admitted he had Mega, an encrypted cloud storage app, and Dropbox on his phone,

and he used them a month or two ago. He had Instagram and Facebook and had

Twitter in the past. He admitted to looking at porn, stating he got it from

Pornhub.com and X videos. He said he saw young porn on Twitter “a while back”

and on Tumblr. He was asked how “young” the porn was, and he said he had no

idea. He said he could have seen child porn a couple of days ago, but he was not

entirely sure; if he saw it, it had to be on Twitter. He confirmed that he viewed all

child porn on his phone, and he may have saved it by accident not knowing it was

child porn. He was then asked if he ever saved child porn anywhere and he said,

“I’m just going to say yes.” When asked where this would be, he said it would

probably be videos in his phone gallery. He had no idea how many, but he guessed

about ten. The last time he viewed child porn was “maybe” in the last month, and

3

then when asked to respond yes or no, he said, “Let’s just say yes. Apparently y’all

have more information than I do.” The agents explained that they had a lot of

information, but not all, and Defendant stated that was why they were asking

questions.

Defendant said he was getting child porn from Twitter, and he provided the

agents his “handle.” He provided passwords to his other two phones but stated he

had no child porn on those, only Hentai (a term he used in the interview which he

explained was animated porn) and Anime. He said he had downloaded a bunch of

old “vines” on his phone, and he was not sure if it was child porn or not. Agents

asked whether he saw child porn when he downloaded, and he said it was hard to

tell because there were no faces, but he confirmed there were vaginas and

undeveloped prepubescent boobs shown. Defendant said he also used Telegram,

an app from which he could send “stuff,” and it automatically downloaded to his

phone. He confirmed that his father did not know he was doing this, and no one

else used Defendant’s phone. Defendant admitted he had been looking at child

porn for a while, adding he may have a problem with it. He said he did not

masturbate to child porn, only to Hentai or regular porn. Defendant stated he

talked to the guys he traded child porn with online only through his cell phone.

When Agents asked why he looked at child porn, Defendant said he did not know.

They asked what excited him about it, and he said, “nothing in particular . . . just

download it I guess.” He said, “I’m not sure what I’m turned on by. Guess I must

be turned on by something because I keep looking at it. Maybe it’s addiction?”

When asked if he thought he was addicted, he said, “not particularly, but I see how

it can be viewed as that.” Agents asked what other sites he was getting child porn

from, and Defendant said Telegram, Tumblr (although Tumblr had removed

4

everything), and Pornhub. When asked how old the children were, Defendant first

said, “no clue,” then when asked roughly how old, he said “thirteen, seventeen.”

Agents asked where he was getting his “young young young” pre-teen child porn

with no breast development or pubic hair. He responded that he had downloaded

some Megas, and Mega was where he obtained it. He said some were on his SD

card, and they came in folders. When asked how much child pornography he

thought he had in his Mega, Defendant said, “a good bit,” and he had not looked at

it. He explained that he imported it when people online sent him a link through

Telegram. Agents asked what ages he searched when trying to find child porn, and

Defendant explained that he did not use search terms. He just used Mega which

had some of all ages, typically listed by name or a date.

Defendant confirmed that the internet account at the home was in his name,

and his father gave him the money to pay for it. He said his cell phone was the

only electronic device in the house that officers would find child porn on.

After the interview was played in court, Agent Gohn confirmed that during

his interview of Defendant, there was a buzzing noise in the background which

was a generator on the van that provided heat. He explained that a Mega account

(referred to extensively in the interview) is based overseas and is encrypted. When

material is uploaded to Mega, it has a password so that only the user can access it.

On cross-examination, he explained that Mega is a website and an online cloud

storage location. A person must create an account to download from it, and the

only way to know the material is encrypted is to read the end user license

agreement. Agent Gohn confirmed that to obtain information from Mega, a person

must log in, download something, and click on it; it was not automatic.

5

Defendant’s phone was taken during the execution of the search warrant.

Agent Gohn performed the search of the phone and found approximately one

hundred “[e]xtremely young child pornography videos that are, in my plus 20 years

of experience, extremely egregious and graphic including sadomasochistic.” Six

of the one hundred formed the basis for the charges in this case and were shown to

the jury; according to Agent Gohn, these six videos were representative of the

others. The images obtained from Defendant’s phone were obtained from the

folders on the SD card.

According to Agent Gohn, there were three different NCMEC tips in this

case, and one of them contained approximately ninety videos. On cross-

examination, Agent Gohn confirmed that he was unable to determine with any

specificity the names or birth dates of the children in the videos.

On redirect examination, Agent Gohn confirmed that Defendant was twenty-

one years old on January 9, 2020, the date he was interviewed. During the

interview, Defendant told Agent Gohn that he got child pornography on his own

from four different sources, Pornhub, Twitter, Instagram, and Mega. On recross

examination, Agent Gohn confirmed that he checked Defendant’s phone via

“digital forensics” for irregularities or software (sometimes unknown to the

owner/user) that would indicate evidence of manipulation by outside sources, i.e.,

hacking; there were none.

Michael Sewell, Defendant’s father, testified that he had lived at his home

for thirty years, and only he and Defendant lived there at the time of the search.

Other people would occasionally stop by and sometimes stay a night.

6

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 one

error patent. Additionally, we note the minutes of sentencing are in need of

correction.

We find the trial court exceeded its authority when it stated that Defendant

was “being sentenced under 15:537.” This court has stated the following regarding

the trial court’s authority to sentence a defendant pursuant to La.R.S. 15:537:

We first address whether the trial court “denied” diminution of
sentence. Such a denial by the trial court would constitute error as the
supreme court has held that the provisions of La.R.S. 15:537(A),
which prohibits diminution of sentence for certain sex offenders, and
the provisions of La.R.S. 15:571.3, which sets forth the guidelines for
diminution of sentence for all prisoners, do not form part of the
sentence. State v. Prejean, 08-1192 (La. 2/6/09), 999 So.2d 1135 (per
curiam). The guidelines are instead directives to the Department of
Corrections in computing an inmate’s sentence. Id. See also State v.
Fallon, 15-1116, p. 4 (La.App. 3 Cir. 4/6/16), 189 So.3d 605. Both the
supreme court and this court have repeatedly stated that trial judges
lack authority to deny diminution of sentence. See State v. Narcisse,
97-3161 (La. 6/26/98), 714 So.2d 698; Fallon, 189 So.3d 605. In
cases in which the trial court has been found to deny diminution
sentence [sic], this court has corrected the sentencing error. See, e.g.,
State v. Davis, 19-562 (La.App. 3 Cir 2/5/20), 291 So.3d 246, writ
granted on other grounds, 20-392 (La. 6/3/20), 296 So.3d 1041;
Fallon, 189 So.3d 605.

State v. Monceaux, 22-28, p. 6 (La.App. 3 Cir. 6/1/22), 340 So.3d 201, 206.

In the present case, the State asked the trial court to “take judicial notice and

make a record that . . . the sentence . . . is also pursuant to Revised Statute 15:537

which does not permit good time for a sentence for pornography involving

juveniles.” Apparently reading from La.R.S. 15:537, the trial court stated: “If a

person is convicted of 14:81.1 pornography involving juveniles and is sentenced to

imprisonment for a stated number of years and months, the person shall not be

7

eligible for dimunition [sic] of sentence or good time. So we’ll let the record

reflect that he’s being sentenced under 15:537.”

The State thanked the trial judge and stated “[t]hat should be included on the

committal – your reference to that statute.” Although we do not find any reference

to good time on the Uniform Commitment Order, the minutes of sentencing state

that the sentences were imposed “without good time.”

In Monceaux, 340 So.3d at 207, this court found the trial court’s statement

regarding good time was merely an advisement that did not need correction. The

trial court in Monceaux stated the following at sentencing:

Under 15:571.3, is the defendant subject to
diminution for good behavior[?]

It’s the Court’s position he is not.

Id. at 206 (alteration in original).

In State v. Broussard, 22-507 (La.App. 3 Cir. 11/30/22), 354 So.3d 167, this

court distinguished Monceaux and found Broussard’s sentence needed correction.

In Broussard, the trial court stated the following at sentencing:

Your sentence is not entitled to diminution for good
behavior, under the provisions of 15:537, because you
stand convicted of a violation of Subpart A(1) of Part 5
of Title 1 of - - I’m sorry - - of Chapter 1 of Title 14 - -
namely, molestation of a juvenile.

Id. at 168.

The court in Broussard, 354 So.3d at 169-71 (alterations in original),

discussed cases wherein this court found the trial courts’ statements regarding

diminution of sentence were merely advisements and cases where this court found

the trial courts’ statements were improper denials of diminution of sentence:

As recently explained in State v. Monceaux, 22-28, p. 6
(La.App. 3 Cir. 6/1/22), 340 So.3d 201, 206, this court is often called

8

upon to determine whether a trial court’s statement constituted an
actual denial of diminution of sentence or whether it was merely an
advisement:

....

Finding the statement was merely an advisement, this court in
Monceaux stated:

We conclude the trial court’s reference to
diminution of sentence in the present matter was likewise
merely an advisement and, therefore, not an error
requiring correction. Namely, the trial court’s passing
reference, including its offering of its “position,”
differentiates this matter from one in which a trial court’s
reference to diminution of sentence was found to be a
denial of that benefit. See, e.g., Davis, 291 So.3d at 251
(wherein the trial court definitively stated: “You are not
entitled to diminution for good behavior.”). Moreover, in
Davis, the minutes of sentencing indicated that
Defendant was not entitled to diminution for good
behavior. Id. In contrast, the minutes of the sentencing
in the present case are silent as to diminution.

Id.at 207.

In State v. Samuel, 19-408, p. 9 (La.App. 3 Cir. 2/5/20), 291
So.3d 256, 262-63, writ denied, 20-398 (La. 7/24/20), 299 So.3d 77,
this court also found the trial court’s statement was merely an
advisement:

At sentencing, the trial court stated the following
regarding diminution of sentence:

[T]he law tells me I have to sentence you
under [La.R.S.] 14:42[(B) 2] and through
C(b) (sic) to life imprisonment at hard labor
without benefit of parole, probation or
suspension of sentence; this is a crime of
violence and a sex offense and is not subject
to diminution for good behavior; it is not an
enhanced sentence[.]

The trial court’s statement that the sentence is not
subject to diminution could be interpreted as a denial of
diminution of sentence by the trial court. In State v.
Burton, 18-935, p. 2 (La.App. 3 Cir. 6/5/19), 274 So.3d
122, 126-27, this court held:

9

Although La.Code Crim.P. art.
894.1(D) previously required the trial court
to advise a defendant of whether his
sentence was subject to diminution for good
behavior, the article was amended in 2010 to
delete that requirement. 2010 La. Acts. No.
350, § 1; See also State v. D.G.H., 07-524
(La.App. 3 Cir. 10/31/07), 969 So.2d 1254.
Thus, at the time the trial court imposed the
present sentences, La.Code Crim.P. art.
894.1(D) no longer required such an
advisement. Prior to the amendment this
court distinguished between an advisement
and an actual denial of diminution of
sentence, finding no corrective action was
needed if the trial court merely advised a
defendant that his sentence was not subject
to diminution. State v. James, 09-606, p. 3
(La.App. 3 Cir. 12/9/09), 26 So.3d 915, 917.

We interpret the trial court’s statement simply as
an advisement that Defendant’s sentence was not subject
to diminution and not as a denial by the trial court of
diminution of sentence. We further note that the trial
court is no longer required to “advise” a defendant as to
whether his sentence is subject to diminution. La.Code
Crim.P. art. 894.1(D).

See also State v. Watson, 21-725, p. 7 (La.App. 3 Cir. 4/27/22), 338
So.3d 95, 100, where this court found the trial court’s statement
“[t]hese sentences are crimes of violence and are not subject to
diminution for good behavior” was merely advisory.

In State v. Davis, 19-562, pp. 8-10 (La.App. 3 Cir 2/5/20), 291
So.3d 246, 251-52, writ granted on other grounds, 20-392 (La.
6/3/20), 296 So.3d 1041, reversed and remanded on other grounds,
19-562 (La.App. 3 Cir. 7/29/20), 304 So.3d 559 (footnote omitted),
this court treated the trial court’s statement as an actual denial of
diminution of sentence:

After stating the number of years imposed for
Defendant’s sentence, the trial court informed Defendant
that upon his release, he would be required to register as
a sex offender for the remainder of his life and that he
would be required to be electronically monitored in
accordance with La.R.S. 14:43.1(C)(4). The trial court
then stated:

10

Mr. Davis, your sentence has not been
enhanced pursuant to the provisions of the
Habitual Offender Act, nor has it been
enhanced because there was no evidence of
any use of firearm. You are not entitled to
diminution for good behavior.

The minutes of sentencing also state that
Defendant is not entitled to diminution for good
behavior.

....

Although we could find that the trial court’s
statement was merely an advisement, we will proceed as
if it was an actual denial of diminution of sentence. The
trial court was no longer required by La.Code Crim.P.
art. 894.1(D) to advise Defendant of whether his sentence
was subject to diminution of sentence. Thus, the trial
court’s statement regarding diminution of sentence could
be regarded as an actual denial of diminution of sentence.
See State v. Burton, 18-935 (La.App. 3 Cir. 6/5/19), 274
So.3d 122, where this court found a similar statement by
the trial court was an actual denial of diminution of
sentence rather than a mere advisement.

Accordingly, Defendant’s sentence should be
amended to delete such statement, as the trial court was
not authorized to deny diminution of sentence. The
supreme court has held that the provisions of La.R.S.
15:537(A), which prohibits diminution of sentence for
certain sex offenders, and the provisions of La.R.S.
15:571.3, which sets forth the guidelines for diminution
of sentence for all prisoners, do not form part of the
sentence but are directives to the Department of
Corrections in computing an inmate’s sentence. State v.
Prejean, 08-1192 (La. 2/6/09), 999 So.2d 1135 (per
curiam). See also State v. Fallon, 15-1116 (La.App. 3
Cir. 4/6/16), 189 So.3d 605. “This court and the supreme
court have repeatedly stated that trial judges lack
authority to deny good time eligibility.” State v. Toups,
17-792, p. 1 (La.App. 3 Cir. 11/22/17) [2017 WL
5627774] (unpublished opinion.) Accordingly,
Defendant’s sentence is amended to delete the trial
court’s statement regarding diminution eligibility, and the
trial court is instructed to make an entry in the minutes
reflecting the amendment. See State v. Drummer, 17-790
(La.App. 3 Cir. 6/6/18), 245 So.3d 93, writ denied, 18-
1139 (La. 2/11/19), 263 So.3d 413.

11

See also State v. Burton, 18-935, p. 2 (La.App. 3 Cir. 6/5/19), 274
So.3d 122, 126, reversed on other grounds, 19-1079 (La. 6/30/21),
320 So.3d 1117 (emphasis in original), where this court found that the
trial judge’s statement, “Those are going to be concurrent with one
another. Okay. The sentence is not subject to diminution for good
behavior, sir. Was not enhanced upon any type of habitual offender
or any commission of firearm while in the possession[,]” amounted to
a denial of diminution of sentence.

We find that the trial court’s statement in the present case was
an actual denial of diminution of sentence as it is more like the
statements at issue in Davis and Burton, and it also references La.R.S.
15:537, which, according to Prejean and Fallon, is directed to the
Department of Corrections. For these reasons and as discussed below,
we vacate Defendant’s sentence and remand the case for resentencing
due to an illegality.

Although the trial court in the present case did not state that Defendant was

ineligible for good time or that good time was otherwise denied, the trial court

referenced La.R.S. 15:537 when it stated that Defendant was “being sentenced

under 15:537.” Additionally, the minutes of sentencing state that Defendant’s

sentences were to be served without good time. Consequently, we find the trial

court improperly sentenced Defendant “under 15:537” and hereby order the

sentences be amended to delete the trial court’s statement. Additionally, the trial

court is instructed to make an entry in the minutes reflecting the amendment.

Lastly, the minutes of sentencing should be corrected to clearly reflect that

the trial court imposed a sentence on each count. The minutes of sentencing state

the following, in pertinent part:

Court sentenced accused for (3) COUNTS PORNOGRAPHY W/
JUVENILES (under the age of 13). Court sentenced accused to be
committed to the Louisiana Department of Corrections. Accused to
serve 010 Year(s). Sentence is to be served at Hard Labor. Sentence
is to run concurrent. Sentence is to be without benefit of parole,
probation, suspension of sentence and without good time. Defendant
is given credit for time served. Furthermore, Court ordered defendant
to register as a sex offender for 25 YRS. Court also sentenced
accused for (3) COUNTS PORNOGRAPHY W/ JUVENILES (under
the age of 17). Court sentenced accused to be committed to the

12

Louisiana Department of Corrections. Accused to serve 005 Year(s).
Sentence is to be served at Hard Labor. Sentence is to run concurrent.
Sentence to be without benefit of parole, probation, suspension of
sentence and without good time.

Although the minutes state that there are three counts of each offense, the

minutes indicate that a single sentence was pronounced for each set of convictions.

According to the transcript of sentencing, however, the trial court specified that the

sentence it pronounced applied to “each count” of pornography involving a

juvenile under the age of thirteen and “each count” of pornography involving a

juvenile under the age of seventeen. “[W]hen the minutes and the transcript

conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir.

6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.

Accordingly, the trial court is ordered to correct the minutes of sentencing to

accurately reflect that the trial court imposed the sentences on “each count.”

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the State did not prove he knowingly and intentionally

possessed child pornography; thus, his convictions should be reversed and

acquittals entered. Defendant contends that the audio quality of his recorded

interview with law enforcement was much clearer than the sound clarity in the van

where he was being questioned. According to Defendant, the engine, generator

noise, and music playing in the background prevented him from clearly hearing

and understanding the wording of the officers’ questions. Defendant contends that

he thought he was admitting to having pornography in general; thus, he did not

actually admit to having child pornography on his phone.

In addition, Defendant contends that of the videos he did watch, he could not

tell the ages of the children because their faces were obscured. Further, he notes

13

that the State’s witness Agent Gohn could not confirm that Defendant viewed any

particular video. He contends that because the State did not prove he intentionally

possessed the child pornography, his convictions should be reversed.

Alternatively, he contends that even if there was sufficient evidence presented to

show he possessed child pornography, the evidence was insufficient to prove the

children in the videos in Counts 1-3 were under the age of thirteen. There was no

proof Defendant actually viewed the videos, and even if he had, Agent Gohn

conceded that the actual ages of the girls in the videos were unknown. Defendant

contends that although the girls in the videos appear young, the State did not prove

beyond a reasonable doubt that they were under the age of thirteen. Accordingly,

Defendant contends his convictions for these counts should be reversed and his

case remanded for resentencing under La.R.S. 14:81.1(E)(1)(a).

The State contends that the six videos found in Defendant’s possession along

with his admission to possessing the child pornographic materials were sufficient

to show intentional possession. As for the six videos, the State contends they

clearly met the elements of the offenses, both for the children under the age of

thirteen (Counts 1-3) and under the age of seventeen (Counts 4-6).

Louisiana Revised Statutes 14:81.1(A)(1) makes it illegal for a person to

possess pornography involving juveniles. “Pornography involving juveniles” is

defined in La.R.S. 14:81.1(B)(8) as “any photograph, videotape, film, or other

reproduction, whether electronic or otherwise, of any sexual performance

involving a child under the age of seventeen.” “Sexual performance” is defined in

La.R.S. 14:81.1(B)(10) as “any performance or part thereof that includes actual or

simulated sexual intercourse, deviate sexual intercourse, sexual bestiality,

masturbation, sadomasochistic abuse, or lewd exhibition of the genitals or anus.”

14

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 to 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.

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 ages of the victims determine which penalty provision applies. In

Counts 1-3, the State alleged the children were under the age of thirteen, while in

Counts 4-6, the State alleged the children were under the age of seventeen.

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing
evidence in light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d. 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 Led.2d. 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d. 559 (La. 1983); State v. Duncan, 420 So.2d. 1105 (La.
1982); State v. Moody, 393 So.2d. 1212 (La. 1981). It is the role of
the fact finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d. 559 (citing State v. Richardson, 425 So.2d. 1228 (La.
1983)). In order for this Court to affirm a conviction, however, the
record must reflect that the state has satisfied its burden of proving the
elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

When asked about the morning of the search, Defendant testified that he got

up, bathed, and was about to play “[his] game” when officers knocked on the door.

15

When his father opened the door, officers hit the door. He testified that during his

interview, the truck (van) was really loud, Agent Gohn and the other officer were

laughing, and at one point, music was playing, making it hard for him to hear what

Agent Gohn was saying. Defendant said he did not hear the words “child porn”

used. Defendant explained that he sounded “clear and convincing” on the audio

recording played in court, but he had trouble with his words, and it was hard for

him to express his thoughts. He said he did not hear his Miranda rights being read

due to Agent Gohn speaking fast and the noise level in the van. Even if he heard

them, he testified he would not know what they meant because he had had no

previous interaction with law enforcement.

Defendant admitted he sometimes looked at pornography, catching a

glimpse on Twitter or seeing it on the television screen when he passed through the

living room when his father was watching it. That was how he learned the names

“Pornhub, X videos and stuff like that.”

Defendant was asked whether he said during the interview that he was

addicted to porn, but he explained he did not hear Agent Gohn say “child” porn.

He testified that he had possibly viewed child porn by accident, but he did not

know what “the children or adult like female bodies look like.” He testified that he

had never intentionally saved porn on his phone. He was asked why in the

interview he said that he may have viewed child porn within the past month; he

explained that he was not sure what “pops up” on his father’s screen, and because

he did not really pay much attention, he was not able to see if it was child

pornography or not. Also, when scrolling on Twitter, random pictures of porn

show up, but he said he would not look at them. When asked why, he said, “let’s

16

just say yes.” When he was asked if he had viewed child porn within the past

month, Defendant responded:

I was unsure of what to say but I felt like if I didn’t say it, bad
things may happen to me or my dad or you know just like that I felt
pressured into saying it. Because I really [do not] talk to that many
people. And especially not law officers, special agents.

Defendant was asked why he responded that he could see how someone

could view him as being addicted to porn, and he explained:

Because dealing with sexual topics and stuff, if people like watch it a
bunch and stuff, people tend to view it – they’re addicted just like
with drugs and stuff. If you watch it or use it a lot of time, people just
think that you’re addicted to using or viewing said things I’m not sure
that makes any sense.

Defendant recalled telling Agent Gohn that the only electronic device in the

house that would have child porn on it was his phone, explaining:

And the reason why I said that is because he was having like all the
information – I thought he had like all the information for I was just
saying yes, this is where you should. Like the only place you would
find it because I don’t use my other phones. Apparently he – it’s hard
to explain but I don’t use my other phones. They’re, as I stated on the
tape, one you can’t turn on. It doesn’t have a battery. The charging
port is broken. And the other one I used when I was in middle school.
And I don’t use my computer because it was also broken. So that
would probably be the only place he will have it. I know it’s weird
not probably explaining it right. But I’m trying my best. A person
with no social experience.

Defendant denied ever touching a child or being addicted to porn or child

porn. He testified that although he told Agent Gohn that he talked to guys that he

traded porn with, he explained he did not hear Agent Gohn say “child

pornography”; he could only hear the “orn part” because of the noise created by

the generator. About the noise in the van, Defendant explained:

Sometimes I didn’t hear the whole sentence. Sometimes I only heard
the last sentence. Sometimes I only heard like the middle of a
sentence. The engine is weird. But you guys fully must have heard it

17

on the audio. I may, I know it may not seemed loud then, but it was
really loud in person.

As stated above, during the interview, Defendant was asked why he looked

at child porn and what excited him about it; Defendant said, “I don’t know.

Nothing in particular.” When asked at trial about this answer, Defendant said he

did not recall hearing this. He again referred to the noise and his inability to hear,

adding that the officers would emphasize the word “porn” and speak lower when

they said “child.” Near the end of his testimony, Defendant explained that the

truck engine or generator prevented him from hearing most of what the agents

were saying and that he was responding because he felt he had to. He said he was

pressured and he was not really thinking about what he was saying; it was not

because he did not hear the world “child.”

On redirect examination, Defendant testified that importing meant

everything was downloaded from Mega to his phone, and he did not have to view

it. He said he did not see everything, only the name of a folder and three videos

that were related to gaming, and he imported them because he thought all the

content was gaming related. He said the only time he viewed Pornhub was when

he occasionally walked past the television at night to get a drink or something to

eat, and his dad was watching porn. When counsel asked Defendant if he knew the

difference between pornography and child pornography, Defendant replied:

I can’t really say I did. Cause like I said I was just trying to
seem normal when I said I masturbated and said I watched porn like
all the time. But I’m really not a normal person. The only things I
really like doing is [sic] playing my game, watching Animae,
watching Netflix occasionally. I don’t like talking to people. I don’t
like watching porn. I just, I like to stay to myself and because of that,
I’ve never really had any interactions with women so I would not be
able to tell the difference especially in the videos that y’all were
shown. I don’t think they had any faces or anything like that. So I
really would not be able to tell if I saw them. Like you guys had to.

18

I’m really sorry about that. I’m really sorry that you guys had to see
that.

There were six videos forming the basis for the six charges in this case. In

the first three videos (Counts 1-3), there is no question that the child in each video

is under the age of thirteen, and in the second three (Counts 4-6), there is no

question that the child in each video is under the age of seventeen.

This court reviewed the audio recording of the interview between Defendant

and the agents. It was clear, and although the background hum of the generator

could be heard early on, it was not loud and did not take away from the clarity of

the words said by anyone. Even if the noise level in the van was not accurately

reflected on the recording, there was no indication that Defendant did not

understand what was being asked. He provided relevant responses to the

questions, and he never expressed confusion/misunderstanding or inability to hear

the question being asked of him. During the interview, Defendant admitted that he

watched child pornography and that he possessed it on his cell phone. At trial, he

was able to explain his responses to the agents’ questions and describe his

fear/confusion due to the situation. The jury was presented with this evidence and

made a credibility determination which was resolved against Defendant. It is not

this court’s place to second-guess that determination, and considering the evidence

presented, we find sufficient evidence was presented by the State to prove

Defendant intentionally possessed three pornographic videos involving a child

under the age of thirteen and three pornographic videos involving a child under the

age of seventeen beyond a reasonable doubt. We find this assignment of error has

no merit.

19

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, Defendant claims trial counsel was ineffective in

failing to object to the jury instructions which included the provision that “lack of

knowledge of the juvenile’s age shall not be a defense,” which has been found

unconstitutional. La.R.S. 14:81.1(D)(1).

To establish an ineffective assistance of counsel claim, a
petitioner must show that: (1) his defense counsel’s performance was
deficient, which requires a showing that counsel’s errors were so
serious that he failed to function as that “counsel” guaranteed by the
Sixth Amendment; and (2) the deficient performance so prejudiced
the defense that the defendant was deprived of a fair trial, which is
one “whose result is reliable.” Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Both
showings must be made before it can be found that the defendant’s
conviction “resulted from a breakdown in the adversary process that
render[ed] the trial result unreliable.” Id. The proper standard for
attorney performance is not perfect assistance. Rather, it is
“reasonably effective assistance” of counsel. Id.

An accused cannot prove ineffective assistance of counsel by
merely making allegations of ineffectiveness. Instead, “the accused
must couple these allegations with a specific showing of prejudice.”
State v. James, 95-962, p. 5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461,
465 (emphasis in original). In order to determine whether the alleged
ineffectiveness prejudiced the defendant, the defendant “must show
that but for counsel’s unprofessional errors, there is a reasonable
probability the outcome of the trial would have been different.” State
v. Jones, 33,657, p. 11 (La.App. 2 Cir. 8/23/00), 765 So.2d 1191,
1199, writ denied, 00-2779 (La. 6/29/01), 794 So.2d 825.

State v. Deville, 22-350, pp. 23-24 (La.App. 3 Cir. 11/23/22), 354 So.3d 99, 112-13

(alteration in original).

Generally, an ineffective assistance of counsel claim is most
appropriately addressed through an application for post-conviction
relief filed in the district court, where a full evidentiary hearing can be
conducted, if necessary, rather than by direct appeal. State v. Ferrera,
16-243 (La. App. 5 Cir. 12/14/16), 208 So.3d 1060, 1066-67.
However, when the record contains sufficient evidence to rule on the
merits of the claim and the issue is properly raised in an assignment of
error on appeal, it may be addressed in the interest of judicial
economy. Id. at 1067. If, on the other hand, the record does not
contain sufficient evidence to fully explore a claim of ineffective

20

assistance of counsel, the claim should be relegated to post-conviction
proceedings. Id.

State v. Jennings, 20-97, p. 20 (La.App. 3 Cir. 7/15/20), 304 So.3d 494, 506, writ

denied, 20-1251 (La. 3/9/21), 312 So.3d 586, cert. denied, __ U.S. __, 142 S.Ct.

146 (2021).

Defendant correctly asserts that the provision regarding lack of knowledge

of the juvenile’s age unavailability as a defense has been ruled unconstitutional:

In [State v.] Cinel [94-942 (La. 11/30/94), 646 So.2d 309], this Court
upheld a district court ruling striking the portion of the child
pornography statute, R.S. 14:81.1, that, like subpart (C)(2) here,
precluded the defendant from asserting lack of knowledge of the
victim’s age as a defense. Cinel, 94-0942, p. 1, 646 So.2d at 311. The
Court found that, notwithstanding the considerable leeway afforded to
the state to prohibit child pornography, First Amendment
considerations preclude the state from dispensing with the scienter
element regarding the performer’s age. Id., 94-0942, p. 11, 646 So.2d
at 317. See [State v.] Granier, 99-3511, p. 5, [(La. 7/6/00)], 765 So.2d
[998] at 1001 (distinguishing Cinel). Cinel is also in accord with
United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct.
464, 130 L.Ed.2d 372 (1994), in which the Supreme Court held that
knowledge of the age of the performer for purposes of a child
pornography charge was an “elemental fact” to which the scienter
requirement must be applied, because non-obscene, sexually explicit
materials involving adults are protected by the First Amendment. Id.
at 72, 115 S.Ct. 464. In other words, absent the presence of the
underage performers, the conduct itself is not illegal.

State v. Sims, 15-2163, pp. 10-11 (La. 6/29/16), 195 So.3d 441, 448.

In the present case, the trial court instructed the jury as to the factors which

may be considered to determine the age of an individual, set forth in La.R.S.

14:81.1(G). The court then, with no objection by the defense, instructed the jury

that “[l]ack of knowledge of the juveniles age shall not be a defense.”

This court previously addressed a similar issue in State v. Frinks, 18-899,

pp. 16-18 (La.App. 3 Cir. 6/12/19), 274 So.3d 635, 647-48 (last alteration in

21

original), writ granted on other grounds, 19-1145 (La. 6/3/20), 296 So.3d 1021,

and writ granted on other grounds, 19-1217 (La. 6/3/20), 296 So.3d 1031, stating:

In his third assignment of error, Defendant contends he was
deprived of a fair trial because the trial court incorrectly instructed the
jury that the State needed to prove he had specific intent to kill or
commit great bodily harm in order to convict him of either the
charged offense of attempted second degree murder or the lesser
included offense of attempted manslaughter. Defendant observes that
the trial court mentioned specific intent to commit great bodily harm
in its initial instruction and again when the jury asked to hear the
definition of manslaughter again. Defense counsel did not object, but
this is not necessarily fatal to the argument. State v. Cavazos, 610
So.2d 127 (La.1992.)

As noted in [State v.] Lambert [, 52,004 (La.App 2 Cir.
5/23/18), 248 So.3d 621], a conviction for attempted manslaughter
requires the State to prove specific intent to kill; intent to cause great
bodily harm is not sufficient. Furthermore:

The defendant was charged with attempted second
degree murder. The jury returned a compromise
responsive verdict of attempted manslaughter, as allowed
under La.C.Cr.P. Art. 814. If the evidence adduced at
trial was sufficient to support a conviction of the charged
offense, the jury’s verdict is authorized. State v. Holland,
544 So.2d 461 (La.App. 2d Cir.1989), writ denied, 567
So.2d 93 (La.1990).

A specific intent to kill is an essential element of
the crime of attempted second degree murder, and also of
the responsive crime of attempted manslaughter. State v.
Dean, 528 So.2d 679 (La.App. 2d Cir.1988); State v.
Turner, 440 So.2d 834 (La.App. 2d Cir.1983). A
conviction for an attempted offense must rest upon
sufficient proof that the offender actively desired to cause
the proscribed criminal consequences to follow his act or
failure to act and that the offender committed or omitted
an act for the purpose and tending directly toward the
accomplishing of his object. State v. Dean, supra;
La.R.S. 14:10 and 14:27.

State v. Sellen, 28,191, p. 5 (La.App. 2 Cir. 6/26/96), 677 So.2d 578,
581.

However, all constitutional errors are not structural
and indeed, most are amenable to harmless error analysis.
Sullivan [v. Louisiana], 508 U.S. [275] at 278-79, 113

22

S.Ct. [2078] at 2081 (citing to Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967);
Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246,
113 L.Ed.2d 302 (1991)). An invalid instruction on the
elements of an offense is harmless if the evidence is
otherwise sufficient to support the jury’s verdict and the
jury would have reached the same result if it had never
heard the erroneous instruction. E.g., Rose v. Clark, 478
U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); State v.
West, 568 So.2d 1019 (La.1990) (following Rose). The
determination is based upon “whether the guilty verdict
actually rendered in this trial was surely unattributable to
the error.” Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081;
State v. Bourque, 622 So.2d 198, 241 n. 20
(La.1993)(citing Sullivan). As repeatedly stated by the
United States Supreme Court, “[a] defendant is entitled to
a fair trial but not a perfect one.” E.g., Bruton v. United
States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20
L.Ed.2d 476 (1968).

State v. Hongo, 96-2060, p. 4 (La. 12/2/97), 706 So.2d 419, 421
(footnote omitted).

Defendant’s brief includes Hongo and acknowledges the
harmless error analysis but contends the error here was not harmless.
As already discussed, we find that the evidence was sufficient to
satisfy the State’s burden, beyond a reasonable doubt, of proving
Defendant had specific intent to kill Mr. James, who suffered a serious
chest wound and had a collapsed lung. Under Hongo, the trial court’s
inaccurate instruction regarding specific intent in the instant case is
harmless error because the jury would have reached the same verdict
given the sufficiency of the evidence. Accordingly, this assignment of
error lacks merit.

While an erroneous jury instruction on reasonable doubt is not subject to a

harmless error analysis, it is distinguishable from other types of erroneous

instructions:

In State v. Cage, 583 So.2d 1125 (La.1991), cert. denied, 502
U.S. 874, 112 S.Ct. 211, 116 L.Ed.2d 170 (1991), the Louisiana
Supreme Court stated that an improper jury instruction is a trial error
and is subject to a harmless error analysis. We are mindful that the
United States Supreme Court held that an erroneous jury instruction
on reasonable doubt is not subject to harmless error. See Sullivan v.
Louisiana, [508] U.S. [275], 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
Nonetheless, we do not believe that the reasoning and analysis used
by the Sullivan court are applicable in this instance. In Sullivan, the

23

court held that a constitutionally deficient reasonable doubt instruction
vitiates the jury’s findings and will always result in the absence of an
appropriate “beyond a reasonable doubt” jury finding. Such a
structural defect in the trial mechanism is not subject to a harmless
error.

However, the erroneous instruction in the instant case
concerned self-defense, and the existence of self-defense merely
presents exculpatory circumstances which defeat culpability without
negating the state’s proof beyond a reasonable doubt of all the
essential elements of the offense. See State v. Barnes, 491 So.2d 42
(La.App. 5 Cir.1986). As such the instruction is subject to a harmless
error analysis.

The proper analysis for determining harmless error as stated by
the Supreme Court is, “not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in the instant trial was surely
unattributable to the error”. Sullivan v. Louisiana, supra, [508] U.S. at
[279], 113 S.Ct. at 2081; State v.Code, 627 So.2d 1373 (La.1993),
cert. denied, [511] U.S. [1100], 114 S.Ct. 1870, 128 L.Ed.2d 491
(1994).

In the instant case the evidence overwhelmingly established that
the defendant fired upon police officers as they attempted to enter the
building to execute a search warrant, thereby negating any claim of
self-defense. Therefore, we do not find that the defendant’s
conviction was attributable to the erroneous instruction. Thus, we
find the erroneous instruction to be harmless error.

State v. Richardson, 92-836, pp. 5-6 (La.App. 5 Cir. 12/14/94), 648 So.2d 945,

948, writ denied, 95-343 (La. 6/23/95), 656 So.2d 1011.

We find the improper jury instruction in this case was harmless error. As

discussed in the previous assignment of error, the evidence was sufficient to prove

beyond a reasonable doubt that Defendant intentionally possessed child

pornography involving children under the ages of thirteen (Counts 1-3) and

seventeen (Counts 4-6). We find the jury’s verdicts were not attributable to the

erroneous instruction, but to the evidence before it. Thus, while counsel’s

performance may have been deficient due to his failure to object to the erroneous

24

instruction, Defendant suffered no prejudice, rendering his claim of ineffective

assistance of counsel meritless. Accordingly, this assignment of error has no merit.

PRO SE BRIEF

In his pro se brief, Defendant contends his trial counsel was ineffective in

failing to inform him of the amended bill of information filed by the State and in

failing to use witnesses Charlie and Curtis Gunter at trial. Additionally, Defendant

contends counsel was ineffective in withdrawing his motion to suppress because it

denied Defendant a chance to challenge the admissibility of his statement at a

suppression hearing. He contends that if “the motion to suppress went through my

trial would have gone differently.”

We find Defendant’s claims that counsel failed to inform him of the filing of

the amended bill of information and failure to explain its meaning as well as his

failure to call two witnesses for trial can be addressed on appeal. Defendant

simply makes these allegations without any specific showing of prejudice.

Accordingly, these claims of ineffectiveness are denied as meritless.

As for Defendant’s claim concerning the withdrawal of his motion to

suppress, we note defense counsel filed a motion to suppress Defendant’s

statement on May 5, 2021. The matter was set for hearing on June 2, 2021. Five

days later, the State filed a response. Court minutes dated June 2, 2021, indicate

defense counsel waived Defendant’s presence and withdrew his motion to suppress

and motion to produce records. Later, at trial, defense counsel stated there had

been a ruling on the suppression motion, but he was supposed to reurge the motion

at trial. The State noted that the motion had been withdrawn, but some confusion

ensued as to whether both the suppression motion and the motion for production

were withdrawn, or whether it was only the motion for production. The trial judge

25

encouraged defense counsel to reurge the motion to suppress. She subsequently

denied the motion finding Defendant’s statement was not the result of a custodial

interrogation. Defense counsel objected to the court’s ruling.

We find Defendant’s claim has no merit. To show counsel was ineffective

Defendant must show counsel’s performance was deficient and that the deficient

performance was so prejudicial that he was deprived of a fair trial. Defendant has

shown neither. While counsel may have withdrawn the motion to suppress, he

reurged it at trial where it was considered and denied.

CONCLUSION

Defendant’s convictions and sentences are hereby affirmed. We order the

sentences amended to delete the trial court’s statement that Defendant was “being

sentenced under 15:537” and instruct the trial court to make an entry in the minutes

reflecting this amendment. Additionally, this court orders the trial court to correct

the minutes of sentencing to accurately reflect that the trial court imposed the

sentences on “each count.”

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

26