State of Louisiana v. Travis Shane Ryan

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-434

STATE OF LOUISIANA

VERSUS

TRAVIS SHANE RYAN

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 12753-19
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Candyce G. Perret, Jonathan W. Perry, and Guy E. Bradberry,
Judges.

AFFIRMED WITH INSTRUCTIONS.

Edward Kelly Bauman
LA Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Travis Shane Ryan

Hon. Stephen C. Dwight
14th JDC District Attorney
P. O. Box 3206
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

John E. Turner
Assistant District Attorney 14th JDC
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

PERRET, Judge.

Defendant, Travis Shane Ryan, was convicted of one count of computer-aided

solicitation of a minor, two counts of pornography involving juveniles, three counts

of pornography involving juveniles under thirteen, and one count of possession of

CDS II, methamphetamine. He was then charged as and adjudicated a third habitual

offender. Thereafter, Defendant was sentenced as a third habitual offender to the

following sentences: ten years for the solicitation of a minor, twenty years each for

the two counts of pornography involving juveniles, and sixty years on each of the

three counts of pornography involving juveniles under thirteen. These sentences

were to run concurrently to one another. Defendant was also sentenced to four years

on the one count of possession of methamphetamine; however, this sentence was to

run consecutively to the others.

On appeal, Defendant challenges the admission of certain evidence by the

State and the effectiveness of his trial counsel. After review, we affirm with

instructions.

FACTUAL AND PROCEDURAL BACKGROUND:

The National Center for Missing and Exploited Children (“NCMEC”) notified

the Louisiana Department of Justice that a Google user, i.e., Defendant, had

uploaded images suspected of depicting child exploitation. After an initial review,

Louisiana investigators issued subpoenas and obtained pertinent materials from

Google. The materials included pornography depicting minor victims. When

authorities arrested Defendant, they also found him to be in possession of

methamphetamine. Further, investigators seized a phone from Defendant, which

contained pornographic material involving minors.

On January 10, 2022, the State filed an amended bill of information charging

Defendant with one count of computer-aided solicitation of a minor, a violation of

La.R.S. 14:81.3; five counts of pornography involving juveniles under thirteen,

violations of La.RS. 14:81.1(A)(1) and (E)(5)(a); and one count of possession of

methamphetamine, a violation of La.R.S. 40:967(C). The parties began selecting a

jury on January 17, 2023, and jury selection was completed on January 18.

The jury began hearing evidence on January 23, 2023; on January 24, it found

Defendant guilty of computer-aided solicitation of a minor; three counts of

pornography involving victims under thirteen, and two counts of the responsive

charge of pornography involving juveniles (a violation of La.R.S. 14:81.1(A)(1));

and one count of possession of methamphetamine.

On April 26, 2023, the State filed a bill of information charging Defendant as

a third habitual offender pursuant to La.R.S. 15:529.1. On July 17, 2023, the district

court found Defendant to be a third habitual offender. At his sentencing hearing on

July 19, the district court sentenced Defendant as a habitual offender to ten years for

the solicitation conviction, twenty years each for the two counts of pornography

involving juveniles, sixty years each for the three counts of pornography involving

juveniles under thirteen, and four years for possession of methamphetamine. The

sentences for the first six counts are concurrent. The drug-possession sentence is to

run consecutively to the others.

Defendant now seeks review, assigning two errors: “I. The trial court erred in

allowing the State to admit evidence without establishing authenticity of a sufficient

chain of custody,” and “II. Trial counsel was ineffective in failing to file a motion to

quash the jury venire.”

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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 a potential

error that amounts to being harmless, and a correction that is needed to the

sentencing minutes and Uniform Sentencing Commitment Order.

The error involves the bill of information and the penalty for possession of

methamphetamine. The bill of information charged Defendant with possession of

methamphetamine but did not specify the weight of the methamphetamine found in

Defendant’s possession. The penalty for possession of methamphetamine is

determined by the weight of the methamphetamine possessed. When the charge was

read to the jury at the beginning of trial, no mention was made of the weight of the

methamphetamine. However, during its opening statement, the State asserted that

one of the elements it was required to prove was that Defendant possessed less than

two grams of methamphetamine. Despite the State’s note in the opening statement,

in its verdict, the jury made no finding as to the weight of the methamphetamine

possessed by Defendant.

Louisiana Revised Statutes 40:967(C) (emphasis added) provides the

following penalties for possession of methamphetamine:

C. Possession. It is unlawful for any person knowingly or
intentionally to possess a controlled dangerous substance as classified
in Schedule II unless such substance was obtained directly or pursuant
to a valid prescription or order from a practitioner, as provided in R.S.
40:978 while acting in the course of his professional practice, or except
as otherwise authorized by this Part. Any person who violates this
Subsection with respect to:

(1) An aggregate weight of less than two grams, shall be
imprisoned, with or without hard labor, for not more than two years
and, in addition, may be sentenced to pay a fine of not more than five
thousand dollars.

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(2) An aggregate weight of two grams or more but less than
twenty-eight grams shall be imprisoned, with or without hard labor, for
not less than one year nor more than five years and, in addition, may be
sentenced to pay a fine of not more than five thousand dollars.

Louisiana Code of Criminal Procedure Article 470 provides: “Value, price,

or amount of damage need not be alleged in the indictment, unless such allegation is

essential to charge or determine the grade of the offense.” Because the penalty for

possession of methamphetamine is dependent on the weight of the substance

possessed, the weight should have been charged in the bill.

Even so, we find the omission to be harmless. Louisiana Code of Criminal

Procedure Article 487 provides, in pertinent part:

A. An indictment that charges an offense in accordance with the
provisions of this Title shall not be invalid or insufficient because of
any defect or imperfection in, or omission of, any matter of form only,
or because of any miswriting, misspelling, or improper English, or
because of the use of any sign, symbol, figure, or abbreviation, or
because any similar defect, imperfection, omission, or uncertainty
exists therein. The court may at any time cause the indictment to be
amended in respect to any such formal defect, imperfection, omission,
or uncertainty.

Before the trial begins the court may order an indictment
amended with respect to a defect of substance. After the trial begins a
mistrial shall be ordered on the ground of a defect of substance.

This court recently addressed a similar error patent in State v. Bruner, 23-35

(La.App. 3 Cir. 10/4/23) (unpublished opinion) (2023 WL 6461435). Bruner was

charged with two counts of distribution of methamphetamine, with no specification

in the bill of information as to the weight of the methamphetamine. Bruner, 23-35,

p. 2. Finding the error was harmless, the court stated:

In State v. Carr, 52,273 (La.App. 2 Cir. 9/26/18), 256 So.3d 470,
writ denied, 18-1815 (La. 4/8/19), 267 So.3d 611, the defendant
asserted on appeal that his bill of information was defective because it
did not allege the amount of cocaine he possessed. After noting that
the defendant did not complain of the alleged error before his
conviction, the second circuit explained that he failed to demonstrate

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“how the omission misled him to his prejudice as required by
La.C.Cr.P. art. 464.” Carr, 256 So.3d at 477.

Louisiana Code of Criminal Procedure Article 464 states:

The indictment shall be a plain, concise, and
definite written statement of the essential facts constituting
the offense charged. It shall state for each count the
official or customary citation of the statute which the
defendant is alleged to have violated. Error in the citation
or its omission shall not be ground for dismissal of the
indictment or for reversal of a conviction if the error or
omission did not mislead the defendant to his prejudice.

Unlike Carr, Defendant here fails to allege any error in the bill
of information and fails to allege that he was prejudiced by the failure
of the bill of information to state the weight of the methamphetamine
distributed. Defendant also did not raise any objection or lack of notice
in the trial court.

In addition, because Defendant was tried by a six-person jury, all
parties had to have understood that Defendant was being charged under
the lower-weight penalty provision (less than twenty-eight grams).
After all, the lower-weight penalty provision is punishable by
imprisonment with or without hard labor, while the higher-weight
penalty provision (twenty-eight grams or more) is punishable by
imprisonment with mandatory hard labor. La.R.S. 40:967(B)(1). And
as stated in La.Code Crim.P. art. 782, an offense that is punishable with
mandatory hard labor shall be tried by a twelve-person jury, whereas
an offense that is punishable with or without hard labor shall be tried
by a six-person jury.

In summary, even though the bill of information failed to state
the weight of the methamphetamine distributed by Defendant, the error
in our view was harmless.

Bruner, 23-35, pp. 3–4.

Considering the State’s assertion in its opening statement that it was required

to prove Defendant possessed less than two grams of methamphetamine, it is

apparent that, like Bruner, the lower-weight penalty provision was used in the

present case. Additionally, the habitual offender sentence which was imposed for

possession of methamphetamine fell within the range for both the lower and higher

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weight sentencing provisions. Defendant does not complain of the error or allege

prejudice.

In light of the foregoing, we find that the State’s failure to allege the weight

of the methamphetamine in the charging instrument was harmless. See also State v.

Jackson, 03-1079 (La.App. 3 Cir. 2/4/04), 866 So.2d 358, writ denied, 04-1126 (La.

10/8/04), 883 So.2d 1027.

The minutes of sentencing and Uniform Sentencing Commitment Order need

correction. According to the sentencing transcript, the district court ordered the

sentences on counts one through six to be served without benefit of parole,

probation, or suspension of sentence. The sentence imposed on count seven

(possession of methamphetamine), was not imposed without benefit of parole. The

minutes of sentencing state the following, in pertinent part:

For oral reasons assigned, the Court sentences the defendant to serve
ten (10) years as to Count 1; to serve twenty (20) years as to Counts 2-
3; to serve sixty (60) years as to Counts 4-6; and to serve four (4) years
as to Count 7, in the custody of the Louisiana Department of
Corrections, with this time to be served at hard labor, without the
benefit of probation, parole, or suspension of sentence, with credit for
time served, with Counts 1-6 to run concurrently with each other and
Count 7 to run consecutively to Counts 1-6.

Because the minutes include the statement regarding the denial of benefits

after the listing of all the sentences imposed, it is not clear from the minutes if the

denial of benefits applies to all of the sentences imposed or just to the last sentence

listed, the sentence for count seven. Under either interpretation, the minutes

incorrectly reflect that the district court imposed the sentence on count seven without

benefit of parole. Additionally, the Uniform Sentencing Commitment Order

indicates the district court ordered the sentence for count seven to be served without

the benefit of parole, probation, or suspension of sentence. In the event of a conflict,

6

the sentencing transcript prevails. State v. Williams, 15-498 (La.App. 3 Cir.

12/9/15), 181 So.3d 857, writ denied, 16-26 (La. 1/13/17), 215 So.3d 242.

Considering these inaccuracies, the district court is instructed to amend both the

minutes of sentencing and the Uniform Sentencing Commitment Order to correctly

reflect that Defendant’s sentence for possession of methamphetamine, count seven,

was not imposed without benefit of parole.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, Defendant argues the district court erred by

ruling that State Exhibit S-101, a USB containing information linked to Defendant’s

Google accounts, was properly authenticated. Regarding authentication, the fourth

circuit has explained:

Authentication is a condition precedent to admissibility. La. C.E.
art. 901(A). A party satisfies this condition by providing “evidence
sufficient to support a finding that the matter in question is what its
proponent claims.” Id. A district court has great discretion in deciding
whether a party laid a sufficient foundation for the admission of
evidence. State v. Ashford, 2003-1691, p. 14 (La. App. 4 Cir. 6/16/04),
878 So.2d 798, 806. An appellate court reviews a district court’s ruling
on the admissibility of evidence under the abuse of discretion standard.
State v. Wright, 2011-0141, pp. 10-11 (La. 12/6/11), 79 So.3d 309, 316.

La. C.E. art. 901(B) provides examples of methods by which a
party may authenticate evidence, one of which is the testimony of a
witness with knowledge that the matter is what it claims to be. La. C.E.
art. 901(B)(1). In State v. Smith, this Court reviewed the admissibility
of social media evidence and applied the “reasonable juror” standard to
the authentication of evidence under La. C.E. art. 901, explaining:

[W]e find the proper inquiry is whether the proponent has
“adduced sufficient evidence to support a finding that the
proffered evidence is what it is claimed to be . . . . ” Sublet
[v. State, 442 Md. 632], 113 A.3d [695,] 717 [(2015)]
(quoting [U.S. v.] Vayner, 769 F.3d [125,] 131 [(2d Cir.
2014)]). Sufficient proof will vary from case to case, and
“[t]he ‘proof of authentication may be direct or
circumstantial.’” Id. at 716 (quoting Vayner, 769 F.3d at
130). Consequently, the type and quantum of evidence
will depend on the context and the purpose of its

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introduction. Evidence which is deemed sufficient to
support a reasonable juror’s finding that the proposed
evidence is what it is purports [sic] to be in one case, may
be insufficient in another.

[State v. Smith,] 2015-1359, pp. 9-10 (La. App. 4 Cir. 4/20/16), 192
So.3d 836, 842.

Under this standard, we must determine whether the State offered
sufficient facts from which a reasonable juror could find the evidence
authentic. Id. If so, the district court did not abuse its discretion in
ruling the social media posts admissible at trial. Id.

State v. Groves, 20-450, p. 29 (La. App. 4 Cir. 6/10/21), 323 So.3d 957, 975–76 (last

alteration added). Thus, the burden of proof for authentication is low, and the

standard of review on appeal is abuse of discretion.

At trial, the State sought to introduce a USB drive containing images collected

from a Google account. To authenticate the USB exhibit, the State called Lisa

Maher, a special agent with the Cyber Crimes Unit of the Louisiana Department of

Justice as a witness. Maher explained that the department would receive all cyber

tips from NCMEC, which she described as the “911 for the Internet.” Maher

explained that an email account was “flagged” for “possible illegal content”

involving “suspected images and/or videos of child exploitation,” turned over to

NCMEC who created the cyber tip and sent it to the department. The following

colloquy occurred:

Q. And when you learned that information, what was your first step
in the investigation?

A. We reviewed the images and videos to confirm it to be of child
sexual abuse material.

Q. And after reviewing it, what did you do next?

A. I issued subpoenas for the phone number and the upload IP
address and a search warrant for the Google account.

Q. Okay. Let’s start with the first two, if you don’t mind.

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A. Sure.

Q. So can you explain what an IP address is?

A. An IP address acts kind of like a phone number when you login
to a computer. So here at the courthouse if I were to get onto the
computer and login to my Gmail account, it would capture that
IP address because I’m connecting to the Internet here at the
courthouse. So if I were to issue a subpoena for it, it would come
back for this exact date and time to this courthouse.

Q. And you said you did that in this case. What -- did you get a
return?

A. I did.

Q. And what did you learn?

A. That it came back to a third party. Like a -- another -- not a
provider, but somebody who leased out the IP address.

Q. Okay. And so how is it possible that someone could use their IP
address?

A. IP addresses, they -- at your home address you can have it
protected or not. If you go to Starbucks, you can just logon to the
Internet at Starbucks.

Q. And so is your testimony that if somebody does not have a
password protection on their Internet service, anyone could
download something that would track back to their IP address?

A. Correct.

Q. And is that what you believe happened here?

A. Yes.

Q. So I want to ask you next, you mentioned you also got a subpoena
for the telephone number.

A. I did.

Q. What were the results on that?

A. So T-Mobile directed me to Tracfone, that they had resold the --
the information -- the phone number to Tracfone. And the
subpoena response from Tracfone for the date I subpoenaed was
not provided to me. It was provided for a date after the date of
possession.

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Q. Okay. And so for the date of possession or the date that they
provided, what -- what had happened with the phone number?
What did you learn?

A. That it was registered to a different individual.

Q. Okay. And is that common in your role, to find out that a phone
number has changed?

A. Yes. Phone numbers -- if you give up your phone number, it’s
going to be reassigned.

Q. Great. So you mentioned the IP address, the phone number, and
you mentioned the search warrant for the actual Google account.

A. That’s correct.

Q. Can you explain what happened there?

A. So we received -- I received a response from Google and it
contained things like - -

MS. TRAUB:

Object - - objection, Your Honor.

THE COURT:

I’m sorry?

MS. TRAUB:

Objection, Your Honor. Hearsay.

THE COURT:

Overruled. Go ahead.

MR. ROBINSON:

Thank you very much, Judge.

THE WITNESS:

I received the Google response, which I reviewed,
which had things like the user name, recovery email
addresses, IP logins, and the contents of the email address,
the Google photos, and Google Hangouts, which is the
chat application.

10

BY MR. ROBINSON:

Q. Great. And if I -- did -- how did this material come to you from
Google?

A. Through their law enforcement portal.

Q. And have -- did you enter that information into evidence in any
way?

A. I believe I put it on a disc or a thumb drive and entered it into
evidence.

Q. Great. And when y’all do that, do you use any type of
special packaging or barcoding or logging system?

A. The evidence item number, we put evidence tape on it, and we
put our name. And then it’s entered into evidence where it would
fall. So it would be 001A or 002A.

Q. And so if I showed you a copy of the thumb drive that you
entered into evidence from this case that you -- with the
information you received from Google, would you be able to
verify that it is what you received from Google?

A. Yes, sir.
....

BY MR. ROBINSON:

Q. Ms. Maher, I’ve handed you S-101. Do you recognize that?

A. This was the thumb drive that I put the Google return on.

Q Great. And you said, “That I put the Google return on.” Can you
just briefly, once again, synopsize what exactly is on that thumb
drive?

A. The Google response, search warrant response, for the email
address, travisshaneryan@gmail.com.

Q. And how often did you receive -- in your role, how often did you
receive data from Google and business records?

A. All the time.

Q. Does this seem to be in keeping with that practice?

A. Yes, sir.

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MR. ROBINSON:

Great. In connection with that testimony, I would
offer S-101.

....

THE COURT:

All right. Let the record reflect the jury has exited
the courtroom.

It’s my understanding that the Defense wants to
enter an objection to the introduction of S-101.

Mr. Monroe?

MR. MONROE:

That -- that’s correct, Your Honor.

The -- I mean, if the Court wants a quick title for it,
this is an objection to the authentication and foundation for
S-101.

The State purports to have a USB. They want to
introduce that USB. They do not want to introduce it as
some concrete piece of physical evidence.

That USB is merely the -- the container for a mass
of alleged files.

As Mr. Robinson said at the bench, while we were
able to view a USB, which was -- to be clear, was not that
USB. It was a copy of a report that the State Police implied
was the same thing as the report that was on this USB. We
have no way to confirm that.

....

At this point Mr. Robinson wants to submit S-101,
a USB. At that point, everything inside that then gets
deemed admissible. Which means, he has to lay a
foundation and authenticate everything on there. He’s had
this witness say, I received some stuff, allegedly from
Google, and now I want to authenticate all of that and
provide foundation as a law enforcement officer.

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Ms. Maher does not work for Google, has never
worked for Google, does not know the process by which
Google went and got that information. She just knows she
purportedly received it from them.

That is over and above the hearsay objection to
information provided by someone who is not here to
testify to the providence of that.

If the State wants to say that this is a business record
. . . . the Code is absolutely clear . . . . That requires
someone who can testify as a records custodian for Google
that they do in fact keep this in the normal course of
business. . . .

And so the State - - the State is trying to say, because
law enforcement got this from this person and this person
and this person, we’re going to skip over all of the
prerequisites and introduce it all at once with no possibility
for the Defense to object or confront any witnesses that
might claim these came from Mr. Ryan’s IP address of his
phone or his person.

We don’t have access to those people to ask these
questions. And so this witness is clearly not the proper
party to authenticate the stuff inside - - and I want to be
clear, Judge. I’m not objecting to the USB itself. I’m
objecting to what’s inside it.

Over and above that, for the State to introduce
what’s inside it, we would insist that that document that
their purported evidence be plugged into some device and
then displayed, so that we are aware and the Court is aware
of what is attempting to be introduced into evidence.

Because the Court cannot know. That could be
blank. The State could be submitting a blank USB. And
not through any fault of their own or malfeasance. It’s a
USB, Judge. We’ve had hurricanes, we’ve had storms,
we’ve had -- the DA’s Office has been flooded at least
once at this point. We don’t know that there’s information
on that.

And so then if it is admitted into evidence, and then
some other version is published to the jury, using a file on
the DA’s laptop, we’re publishing things that aren’t even
in evidence. And there’s no way for me to know that it’s
in evidence or not in evidence until it’s opened and
displayed.

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So for those reasons, we’re objecting to the
introduction at this point of State’s 101.

THE COURT:

Mr. Robinson?

MR. ROBINSON:

As it relates to his objection to foundation, she did
testify, not just that she placed the USB device in
evidence, but she testified that she placed the data that’s
on the USB, which is what he’s objecting to. She’s the
one who took the data and put it on the USB before placing
the USB in evidence. And so she has laid a foundation for
the data itself, beyond just simply the storage device.

And so we feel that we have made that record. I --
I feel that’s pretty clear, Judge.

....

MR. MONROE:

....

As to the foundation issue, Your Honor, this witness
is not capable of laying the found -- I’m not arguing that
Ms. Maher did not receive something purportedly from
Google or NCMEC and then placed that data on this USB.
Certainly.

Ms. Maher may have even formatted this into the
two separate versions that are alleged, which of those two,
I don’t know, the Court doesn’t know, I don’t know that
Mr. Robinson knows which one’s on the USB. We have
no way to know that.

So the State wants you to grant them permission to
introduce whatever they want and there’s no -- the
problem is, Judge, there’s no way to take it back. Like my
-- my objection is not that I don’t think the State can
eventually get their way to proving that the only thing on
this is a -- the PDF-generated version of what was on this
phone.

The hearsay objection is separate from that Judge.
The hearsay objection is I don’t think that this witness is
capable of discussing the contents of this. There was

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another party that the State should have subpoenaed and
brought in to discuss that.

As to this witness and the foundation and
authentication of the documents on this USB without the
Court looking at it, without the Court seeing what is on the
USB before it has been admitted, there is no way that the
Court can admit this. It would be like the State saying,
Judge we have a photo here, this piece of paper that has as
photo on it. We’d like to -- we’d like to ask the witness a
question about it. Ma’am, did you take a photo? Yes.
Was that photo sent to us? Yes. Judge, this is that photo.
I’d like to submit it, without giving it to the detective
letting her look at the photograph, and saying yes, this is
in fact the document -- or the photograph that I took and I
printed and I sent to your office.

I just -- I don’t see how we can skip all of those steps
that are required for every other kind of evidence just
because this is a USB.

THE COURT:

Did you not ask of the witness, Mr. Robinson
whether or not she was familiar with exactly what you’ve
asked her to identify?

MR. ROBINSON:

I believe I did ask her, yes, sir. And she identified
that she placed the data on that USB.

THE COURT:

And she certified -- or she verified that that was
accurate?

MR. ROBINSON:

That’s -- that’s my recollection. Yes, sir. That was
the purpose of asking those questions. Yes, sir.

THE COURT:

Objection is overruled. I’m satisfied that the
requirements have been met that allow this matter to be
taken into evidence at this time.

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Mr. Monroe, I -- I’m very aware of the prior
situation that we had in this very courtroom that was a
similar situation that you’re concerned about. And I agree,
that is very concerning. And I believe that the State has -
- has laid the foundation to allow this to be put in.

Now obviously, if they -- you are correct that they
have something else on here that may not be appropriate,
based on what has been presented so far, they proceed at
their own peril. Now what is going to be shown to the jury
is -- we’ll see. If in fact it -- they show something that
shouldn’t have been shown, well then, we’ll have to
address that later. And that’s a -- would be -- that’s how
we’ll deal with it.

As the foregoing shows, Defendant made several arguments in district court:

that the State should have produced a witness from Google to describe how the

information at issue was collected, that the State should have shown the files on the

USB before admitting the drive, that the USB could have been blank and potentially

the State could later publish from its laptop some other version of a document

purportedly on the USB, that Maher could have formatted multiple versions of the

pertinent documents without anyone being sure what version was actually on the

USB, and that the district court should have viewed the documents on the USB

before admitting it.1

On appeal, Defendant argues that since the files were originally provided by

Google, an employee of that company should have been called to testify regarding

authentication and chain of custody, specifically how the pertinent information was

collected and provided to law enforcement. Further, Defendant asserts on appeal

that a Google employee could have described the system’s processes and accuracy.

1
Defendant expressed concern that admitting the USB into evidence would automatically
result in the USB’s contents also being admitted. This view was apparently based on a 2021 writ
ruling from this Court, which indicated that admission of the victim’s phone included a video the
phone contained. State v. Vice, 21-619 (La.App. 3 Cir. 9/23/21) (unpublished opinion). See also
State v. Vice, 22-512 (La.App. 3 Cir. 4/19/23), 365 So.3d 155, writ denied, 23-669 (La. 11/21/23),
373 So.3d 457.

16

Defendant also argues “proper authentication required that the person whose

equipment recorded the data on the USB be called as a witness to authenticate the

evidence and establish a chain of custody.”2

Thus, much of the set of arguments made on appeal differs from those made

in the district court. New arguments that were not raised in the district court may

not be raised on appeal. Uniform Rules—Courts of Appeal, Rule 1–3; State v.

Revish, 19-1732 (La. 10/20/20), 340 So.3d 864; State v. Perkins, 07-423 (La.App. 3

Cir. 10/31/07), 968 So.2d 1178, writ denied, 07-2408 (La. 5/9/08), 980 So.2d 688.

However, one argument remains viable for review, as it was raised below: that the

State should have produced a witness to describe Google’s process for collecting the

information at issue.

The State cites an unpublished school records case, “State ex rel. A.H., 2018-

0387 (La.App. 1 Cir. 09/28/18); 2018 La. App. Unpub. LEXIS 352,” noting that in

that case a parole officer’s testimony provided support for authentication of school

records that he had requested and personally retrieved from the school. The case

does not appear in the Westlaw database, but another apparent incarnation of that

case does:

In the sole assignment of error, A.H. notes that at the hearing his
counsel objected to the introduction of his school report on the basis of
hearsay. He notes that the report was introduced through the testimony
of the probation officer, who stated that he retrieved the document from
a school counselor. Citing La. C.E. art. 803(6), the business records
exception to the rule against hearsay, A.H. argues that since the
custodian of the report did not testify as to how the records were kept,
the report was unauthenticated hearsay and therefore inadmissible.

....

2
In context, Defendant likely had a Google employee in mind, but strictly speaking, the
quoted language describes Maher, who downloaded the data onto the USB.

17

In addition to the hearsay argument, A.H. herein further contends
that the document was not authenticated. . . . One acceptable method
of authenticating a public record is through the testimony of a witness
with knowledge that the record is what it is claimed to be. La. C.E. art.
901(B)(1). In the instant case, A.H.’s assigned parole supervisor,
Gerard Landry, testified as to the authenticity of the school records at
issue. According to Landry, A.H. had been booked into the East Baton
Rouge Parish Prison on charges of unauthorized use of a motor vehicle,
aggravated criminal damage to property, and resisting an officer.
Landry further testified that A.H. initially attended Scotlandville High
School, but was expelled due to a gang fight and was attending school
at EBR Readiness Superintendent Academy at the time of the hearing.
Landry obtained A.H.’s school records as a part of his routine duties as
a parole officer. He testified that he submitted a record request to EBR
Readiness to receive new records. Thereafter, Landry personally went
to EBR Readiness and the school guidance counselor, in fulfillment of
the request, personally gave Landry the printout of A.H.’s school
attendance, report cards, and any other requested information.
Accordingly, the report at issue was sufficiently authenticated. We find
no abuse of discretion in the juvenile court’s admission of the school
documentation in this case.

State in the Interest of A.H., 18-388, p. 3 (La.App. 1 Cir. 11/27/18) (unpublished

opinion) (2018 WL 6177431).3 The State gives the same general description of A.H.

in its brief. The State’s point appears to be that a witness from the school did not

need to testify in A.H., so a witness was not needed in the present case. However,

the two cases are not genuinely analogous. A.H. is distinguishable from the present

case, since the officer in A.H. went to a school and physically obtained the records

at issue. The agent in the instant case did not physically visit Google or obtain

tangible records. The agent in the current case obtained data via an internet portal.

3
The third footnote of this case (docket number 18-388) noted that the defendant had other
pending appeals, including the one cited by the State (docket number 18-387), that alleged the
same authentication error. The latter appeal is available on the First Circuit’s website. In docket
18-387, the first circuit noted that “under the Code of Evidence, school records are admissible
under the traditional public documents exception to the rule against hearsay rather than the
business records exception” citing La.Code Evid. art. 803(8). State in re A.H., 18-387, p. 7
(La.App 1 Cir. 9/28/18) (unpublished opinion). The court continued, “The public documents
exception to the rule against hearsay is historically based upon the principles of necessity and the
probability of trustworthiness. . . . The exception is founded primarily upon the presumption that
an individual entrusted with a duty will do his duty and make a correct statement.” Id.

18

The officer in A.H. could testify that the school records were in fact school records

because he picked them up at a school.

The State also cites State v. Smith, 04-800 (La.App. 1 Cir. 12/17/04), 897

So.2d 710, but only to contrast it with the present case, as the attempted

authentication in Smith was not supported by a witness with pertinent personal

knowledge.

We have not found any cases on point, but note some analogous federal

jurisprudence:

Generally, evidence is admissible as long as it is (1) relevant and (2)
not otherwise prohibited by the United States Constitution, a federal
statute, the Federal Rules of Evidence, or any other rules prescribed by
the Supreme Court. See Fed. R. Evid. 402.

A. Admitting the Criminal Case File for Non-Hearsay Purposes

The Government seeks to admit the Criminal Case File for non-
hearsay purposes, claiming that a number of records are relevant “both
as verbal acts with legal significance” regarding the Russian Treasury
Fraud and “because they contain numerous telltale errors and
irregularities that indicate fraud and corruption.” (Mot. at 8.) To
prevail on its request, the Government must satisfy the threshold
requirement of authentication, which requires “evidence sufficient to
support a finding that the item is what the proponent claims it is.”
Fed.R. Evid. 901(a); see also United States v. Maldonado-Rivera, 922
F.2d 934, 957 (2d Cir. 1990) (“In general, a document may not be
admitted into evidence unless it is shown to be genuine.”). This
requirement, however, is not “a particularly high hurdle and is satisfied
if sufficient proof has been introduced so that a reasonable juror could
find in favor of authenticity or identification.” Crawford v. Tribeca
Lending Corp., 815 F.3d 121, 126 (2d Cir. 2016) (internal quotations
and citation omitted).

The Government can authenticate the Criminal Case File for
non-hearsay purposes through the videotaped deposition testimony of
Mr. Gorokhov who, among other things, will describe the
circumstances by which he accessed and copied the Criminal Case File
onto SD cards. (Mot. at 7). A Department of Homeland Security agent
will also testify that the hard drive used at trial contains accurate copies
of the SD cards and their content. (Mot at 7.) The testimony of these
two qualified witnesses is sufficient to meet the requirements of Rule
901. See United States v. Vayner, 769 F.3d 125, 130 (2d Cir. 2014)

19

(“The simplest (and likely most common) form of authentication is
through the testimony of a witness with knowledge that a matter is what
it is claimed to be.”) (internal quotations citation omitted).
Accordingly, the Government’s motion to admit Criminal Case File on
non-hearsay grounds is granted.

United States v. Prevezon Holdings, Ltd., 319 F.R.D. 459, 462–63 (S.D.N.Y. 2017)

(footnote omitted).4

Another federal court stated:

The district court also did not abuse its discretion by admitting
the thumb drive. Corley objected to its admission because (he asserts)
it was not authenticated. Under Federal Rule of Evidence 901(a), an
item of evidence must “be ‘authenticated’ through introduction of
evidence sufficient to warrant a finding that the item is what the
proponent says it is.” Crawford v. Tribeca Lending Corp., 815 F.3d
121, 126 (2d Cir. 2016) (quoting Fed. R. Evid. 901(a)). Corley argues
that the Government failed to prove that the thumb drive removed from
his pocket by Detective Mark Woods was the same thumb drive as that
analyzed by the FBI and introduced at trial. But Detective Woods
identified the drive as the one that he seized from Corley’s pocket.
Special Agent John Robertson also identified the drive as the one on
which he conducted a forensic analysis. Absent any evidence to the
contrary, the district court was entitled to conclude that the thumb drive
analyzed by Special Agent Robertson was more likely than not the one
seized by Detective Woods. See United States v. Gelzer, 50 F.3d 1133,
1141 (2d Cir. 1995).

United States v. Corley, 679 F. Appx 1, 4 (2d Cir. 2017) (unpublished summary

order), cert denied, 583 U.S. 879,138 S.Ct. 205 (2017).

After review, it appears the current record does not contain an actual ruling

on the authenticity of the materials contained on the USB. The admissibility of the

USB was the issue the district court ruled on. However, the district court left open

the option for Defendant to challenge the admissibility of individual documents

contained on the USB as they were presented to the jury during the course of trial.

4
“[Louisiana Code of Evidence Article] 901 tracks Rule 901 of the Federal Rules of
Evidence.” State v. Taylor, 04-90, p.10 (La.App. 5 Cir. 5/26/04), 875 So.2d 962, 969, writ denied,
04-1649 (La. 11/19/04), 888 So.2d 193.

20

As the State observes in its brief, Defendant did not do so. Louisiana Code of

Criminal Procedure Article 841 states: “An irregularity of error cannot be availed of

after verdict unless it was objected to at the time of occurrence.” In addition, the

supreme court has stated: “[A]s a general rule, counsel’s failure to obtain a ruling on

the merits would constitute an abandonment of the motion.” State v. Walton, 06-

2553, p. 1 (La. 6/1/07), 957 So.2d 133, 134. Therefore, Defendant’s arguments were

effectively waived in district court. Based on this discussion, the assignment lacks

merit.

Also, the State notes in brief that when the documents at issue were

introduced, they contained indications that they were authentic, as many of them

involved the use of email addresses containing Defendant’s name, i.e.,

“travisshaneryan8869@gmail.com” and “travisshaneryan@gmail.com”.

The following colloquy occurred with Ms. Maher at trial after the previously

recited objection discussion:

THE BAILIFF:

Please be seated. Court will return to order.

THE COURT:

All right. Ladies and Gentlemen of the Jury, thank
you for your patience. When we left the courtroom, Mr. -
- I think the last thing that was done was Mr. Robinson on
behalf of the State was offering S-101 into evidence.

MR. MONROE:

Your Honor, at this point Defense would object to
the introduction of State’s 101.

THE COURT:

Ladies and Gentlemen, we’ve had some discussion
regarding that matter. The objection is overruled. I’m
going to allow the State to continue at this time.

21

MR. ROBINSON:

Thank you, sir.

THE COURT:

Mr. Robinson.

BY MR. ROBINSON:

Q. Great. And I think that S-101 was accepted, so I’ll leave it right
there for just a moment so that you can access it here in a moment

A. Okay.

Q. In receiving the records from Google, did you -- did it contain
data about who the account belonged to and the user
information?

[Ms. Maher]: It contained the user information; yes.

Q. Great. And if I showed you a printed copy of that same
information, would you be able to identify that for us?

A. Yes.

....

BY MR. ROBINSON:

Q. Ms. Maher, do you recognize the packet of documents I’ve
handed you marked as S-101-A in globo?

A. I do.

Q. Great. And what is it?

A. This is part of the Google search warrant return that has the
subscriber information and the IP logins.

Q. And is this a paper copy of the same data you testified to earlier?

A. Yes.

Q. Great.

MR. ROBINSON:

22

In connection with that information testimony, I
would offer S-101-

....

THE COURT:

Mr. Monroe, Ms. Traub?

MS. TRAUB:

No objection, Your Honor.

THE COURT:

Without objection. All right.

BY MR. ROBINSON:

Q. And if I -- have you reviewed for your testimony today a copy of
some email exchanges, a printed copy is S-101-B?

A. I’m sorry, can you repeat the question?

Q. Yes, ma’am. Do you recall -- let me ask you this. Did you find
some email exchanges of note with a video attachment to the
email?

A. Yes, sir.

Q. And if I showed you a paper copy of that same email exchange,
would you be able to recognize it?

A. Yes, sir.

Q. Great.

[Mr. Robinson approached with S-101-B]

....

BY MR. ROBINSON:

Q. Do you recognize S-101-B?

A. Yes.

Q. What is that information?

23

A. This is email exchanges between an Emma Spiller and -- from
Emma Spiller sent to travisshaneryan@gmail.com.

Q. And the documents I’ve handed you, are those copies of what
you’ve testified to as received from Google?

A. Yes, sir.

Q. Great.

MR. ROBINSON:

In connection with that testimony, I’d offer S-101-
B.

(Exhibit S-101-B marked for identification.)

THE COURT:

Ms. Traub, Mr. Monroe?

MS. TRAUB:

No objection.

THE COURT:

Without objection. All right.

MR. ROBINSON:

Thank you.

BY MR. ROBINSON:

Q. And then lastly, did you find any Google chats of note in your
investigation?

A. I did.

Q. And if I showed you a printout copy of those Google chats that
y’all identified as significant, would you be able to recognize
that?

A. Yes.

Q. Thank you.

[Mr. Robinson approached with S-101-C]

24

....

BY MR. ROBINSON:

Q. Ms. Maher, I’ve handed you S-101-C. Do you recognize the
documents in that packet that I’ve handed you?

A. Yes.

Q. And what do you recognize that packet of information to
contain?

A. These are Google chats between travisshaneryan@gmail.com
and different users or logos. L-O-Z-B-U-R-N-S-X-X-X
@gmail.com.

Q. Great. And the information I’ve handed you in S-101-C, is that
the information that was received from Google that we offered
as S-101?

A. Yes.

MR. ROBINSON:

In connection with that testimony, I would offer,
file, and introduce that into evidence.

(Exhibit S-101-C marked for identification.)

MS. TRAUB:

No objection, Your Honor.

THE COURT:

Without objection. All right.

MR. ROBINSON:

Thank you kindly.

And so first, if I may, I’ll move to publish S-101-

....

BY MR. ROBINSON:

Q. All right. Ms. Maher, so I’ve got published here S-101-

25

[Q]. Can you walk the jurors through what it is that we’re looking at.

A. So this is the Google subscriber information. So when you create
your Google account, this is information that’s put in: The name
is listed as Shane Ryan; the email address is listed as
travisshaneryan@gmail.com; the status at the time that I issued
the search warrant for the account is disabled, meaning it’s no
longer an active account; the end of service date is next; the
services used, so you have Gmail, Google calendar, hangouts,
payments, and so on; the recovery email -- I’m sorry, the
recovery email address of travisshaneryan8896 -- or 69 I’m
sorry, @Gmail.com; the creation date of 5/14/2018 the terms of
service IP address, which would be the -- when he agreed to the
terms and services; language code would be English; the phone
number related to the account; the Google account ID; and then
the last logins.

....

Q. And what did the recovery email here signify to you in this
investigation?

A. That it was similar to the same email address.

Q. Great.

MR. ROBINSON:

If I may have just a moment, I’ll publish S-101-B.

....

A. That is to travisshaneryan@gmail.com.

Q. And then his response, can you just read ‘em -- read ‘em
throughout and indicate who’s sending what, please?

A. From travisshaneryan@gmail.com . . . .

From the other user, “Show me a pic of a young girl you
into.”

Travis Shane Ryan, “Okay.”

Q. And then what do we have there?

A. An image of a juvenile female on a rope swing.

Q. Have you met that juvenile female?

26

A. I have.

Q. Where did you meet her?

A. At her mother’s house, which would be Mr. Ryan’s brother’s
wife.

Q. And if you would, just continue reading the messages, please.

A. From the other user, “How do you know her?”

Travisshaneryan@gmail.com, “I don’t think we will
discuss that yet. She is my brother’s wife.”

Q. Can you read that last word one more time[?]

A. “Brother’s wife’s.”

Q. And then next, continue on, please.

A. That is an image of a bedroom, sent by
travisshaneryan@gmail.com.

....

A. Okay.

Q. And just for the record, can you verify what it is that you’re looking at
here?

A. A male’s penis.

Q. Great. And then the next photograph appears to be what?

A. An image of Mr. Ryan.

Q. And who is it sent from?

A. From travisshaneryan@gmail.com.

Q. And what is the date it’s sent?

A. 12/4 of ‘18.

Q. And then the next?

A. An image of Mr. Ryan.

Q Sent from which account?

27

A. Travisshaneryan@gmail.com

After review, we find any admissibility errors are harmless. Cf. State v.

Fontenot, 23-175 (La.App. 3 Cir. 10/25/23) (unpublished opinion) (2023 WL

7009290); see also State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d

1367. The foregoing record evidence shows that even if an error occurred in the

district court’s initial ruling, it was harmless. The record contains enough

information to conclude the documents at issue were authentic. Cf. United States v.

Perez, 61 F.4th 623 (8th Cir. 2023).

Defendant also argues that the State did not establish a proper chain of custody

for the USB. “[A]ny defect in the chain of custody goes to the weight of the

evidence, not its admissibility.” State v. Celestine, 11-1403, p. 8 (La.App. 3 Cir.

5/30/12), 91 So.3d 573, 579. Thus, for the reasons discussed, this assignment lacks

merit.

ASSIGNMENT OF ERROR NO. 2:

In his second and final assignment of error, Defendant argues that his trial

counsel was ineffective in failing to file a motion to quash the jury venire. He

acknowledges that such claims are normally raised in the post-conviction relief

process but observes they can be addressed on appeal when the record contains

enough information to support an analysis. State v. Trosclair, 19-833 (La.App. 3

Cir. 6/24/20), 299 So.3d 704, writ denied, 20-949 (La. 1/20/21), 308 So.3d 1162.

Defendant argues that the jury venire was defective because the jury summons

improperly indicated that persons with felony convictions could not serve on a jury,

making the summonses “illegally restrictive.” However, instead of raising the issue

in a motion to quash, trial counsel raised the issue after the verdict, in a motion for

new trial.

28

This court has previously discussed the core analysis for ineffective assistance

of counsel claims:

The right of a defendant in a criminal proceeding to the effective
assistance of counsel is constitutionally mandated by the Sixth
Amendment of the U.S. Constitution. In order to prove that counsel
was ineffective, the defendant must meet the two-pronged test
enunciated by the Supreme Court. First, the defendant must show that
counsel’s performance was deficient. Second, the defendant must show
that this deficiency prejudiced the outcome of the trial. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947,
108 S.Ct. 337, 98 L.Ed.2d 363 (1987). To establish a claim of
ineffective assistance of counsel, a defendant must demonstrate that his
defense attorney failed to meet the level of competency normally
demanded of attorneys in criminal cases. State ex rel. Graffagnino v.
King, 436 So.2d 559 (La.1983); State v. Fickes, 497 So.2d 392 (La.App.
3 Cir.1986), writ denied, 515 So.2d 1105 (La.1987).

State v. James, 95-962, pp. 4–5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465.

The venire defect at issue stems from the 2021 amendment of La.Code

Crim.P. art. 401, which changed the law and made some convicted felons eligible

for jury duty. At the time the parties selected the jury for the present case, the law

had taken effect, but the Calcasieu Parish Clerk of Court had not modified the

language in its jury summonses accordingly. Specifically, the jury summonses

allegedly sent out included a statement that in order to qualify as an eligible juror

you must “not be under indictment for a felony nor have been convicted of a felony

for which you have not be [sic] pardoned.” In brief, Defendant asserts that his jury

venire was “improperly drawn and not representative of a fair cross-section of the

community.” Defendant further asserts that, if it were not for counsel’s error in

failing to file a motion to quash, Defendant “would have been judged by a jury of

his peers.”

The district court held a hearing on the motion for new trial and addressed the

merits, stating:

29

THE COURT:

Okay. Thank you.

I -- I don’t disagree that this could have been resolved with
a timely Motion to Quash, obviously. But then, you know, Mr.
Monroe made a statement to where if that would have been
brought up timely, I probably would have had pause to say, you
know what? Unless Mr. Ryan, with his attorneys, say, Judge, we
want to put this off or -- he might have said, look, I want to go to
trial. I want to get this over with.

MR. ROBINSON:

Uh-huh.

THE COURT:

So it doesn’t necessarily mean that it would not have gone
to trial. That would have been a decision, I think, for the
defendant to make at that time.

But I want to rule on the Motion for New Trial, because I
think that needs to be addressed here.

Based on what I’ve heard here, the Motion for New Trial
based on the suggested defect that Mr. Monroe points out here is
not a significant error in the process. I -- I just don’t find that
that would have kept Mr. Ryan from having a -- a good jury. The
prejudicial defect, if you will, was miniscule.

Again, for several other reasons. One is, I know for a fact
that the Clerk’s Office would never tell someone not to appear
because I don’t believe I qualify, possibly because I’m a
convicted felon. I don’t think that would have happened.

Because I know for a fact that the Clerk’s Office says, take
that up with the Judge.

We have the jury -- jury mark system that refers all of
those requests for excusal directly to the Judges.

Finally, I know for a fact in my trials, you know exactly
where I’m going with this, every juror I ask, do you meet the
qualifications that would allow you to serve as a juror in this
trial? Reside in Calcasieu Parish, resident of Louisiana, read,
write, and speak the English language, not under conviction for
what you haven’t been pardoned.

30

In one of our very trials, and you know which one I’m
talking about here, not -- a trial shortly after that –

MR. MONROE:

Uh-huh.

THE COURT:

-- there was someone on the jury venire that said, Judge,
hold on. I’m a convicted felon. And I’ll be honest here, I said,
oh, you can’t serve. And I don’t remember if it was you, Charles,
Conrad, Mr. Monroe, or Liz said, Judge, hold on. You have to
ask them how long it’s been. And I was corrected. And it -- so
I know we clarify [sic] that before.

So that means I’ve never kept anybody off of any one of
my juries. And that’s not to say that I believe any other Judge
has done it. But I know that that’s, again, a normal procedure in
this court.

So all said and done, I do not believe that the misstatement
in the Clerk’s summons reflects that there’s been any significant
error in the process. It has been corrected. I don’t think it’s such
a prejudicial defect that it merits a new trial in this matter.

Motion for New Trial denied.

MR. MONROE:

Thank you, Your Honor. If you’ll note our objection to the
issue for the record.

Though both briefs discuss this assignment of error at some length, a lengthy

analysis is not necessary. Defendant does not meet the second prong of Strickland,

as he does not demonstrate that the deficiency of his counsel caused prejudice, that

it “deprive[d] [him] of a fair trial, a trial whose result is reliable.” Strickland, 466

U.S. at 687. First, although Defendant raised the issue in a motion for new trial

rather than a motion to quash, the district court did not treat this discrepancy as a

31

barrier to review on the merits. 5 Second, Defendant’s argument does not

demonstrate any defects in the ruling. The court provided several practical points to

show that Defendant was not prejudiced by the Clerk of Court’s mistake, but

Defendant does not address why any of these points were wrong. Defendant merely

quotes a news article that contended diverse juries, including those with former

felons, tend to be highly deliberative.

For the reasons discussed, this assignment lacks merit. Further, the overall

analysis in this opinion supports the affirmation of the convictions and sentences.

DECREE:

Defendant’s convictions and sentences are affirmed. However, the district

court is instructed to correct both the minutes of sentencing and the Uniform

Sentencing Commitment Order to correctly reflect that Defendant’s sentence for

possession of methamphetamine, count seven, was not imposed without benefit of

parole.

AFFIRMED WITH INSTRUCTIONS.

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

5
Defendant notes another case that arose out of Calcasieu Parish, State v. Lewis, 23-616
(La.App. 3 Cir. 4/17/24), 387 So.3d 747, writ denied, 24-643 (La. 12/11/24), 396 So.3d 970, in
which Defendant’s failure to challenge the venire in a motion to quash precluded review on the
merits.

32