State of Louisiana v. Michael J. Comeaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 24-597

STATE OF LOUISIANA

VERSUS

MICHAEL J. COMEAUX

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 19-K-0320-C
HONORABLE ALONZO HARRIS, DISTRICT JUDGE

**********

CLAYTON DAVIS
JUDGE

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Court composed of Elizabeth A. Pickett, Wilbur L. Stiles, and Clayton Davis,
Judges.

AFFIRMED.

Chad Patrick Pitre
District Attorney
Kathleen E. Ryan
Assistant District Attorney
P.O. Drawer 1968
Opelousas, LA 70571
(337) 948-3041
kryan@stlandryda.org
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
Ikerd Law Firm, LLC
600 Jefferson St., Suite 903
Lafayette, LA 70501
(37) 366-8994
chad@ikerdlaw.com
COUNSEL FOR DEFENDANT APPELLANT:
Michael J. Comeaux

DAVIS, Judge.

Defendant, Michael J. Comeaux, appeals his convictions for sexual battery

and pornography involving a juvenile, as well as his sentences of thirty-five years

at hard labor for sexual battery and fifteen years at hard labor for pornography

involving a juvenile. For the following reasons we affirm Defendant’s convictions

and sentences for sexual battery and for pornography of a juvenile.

PROCEDURAL HISTORY

On June 11, 2020, the St. Landry Parish District Attorney’s Office filed a

bill of information charging Defendant, Michael J. Comeaux, with sexual battery

in violation of La.R.S. 14:43.1; indecent behavior with a juvenile, in violation of

La.R.S. 14:81; and pornography involving a juvenile, in violation of La.R.S.

14:81.1. The parties selected a jury on July 19, 2023; on the same date, the court

dismissed the indecent behavior charge. The jury began hearing evidence on

August 21, 2023, and found Defendant guilty on the remaining charges on August

23, 2023.

On October 18, 2023, the district court sentenced Defendant to thirty-five

years at hard labor for sexual battery and fifteen years at hard labor for

pornography involving a juvenile. The sentences are to run concurrently and are

without benefit of parole, probation, or suspension of sentence.

Defendant now appeals his convictions, assigning three errors, although the

first two rest on the same legal basis. Defendant alleges the following.

ASSIGNMENTS OF ERROR

1. The State failed to prove that Michael Comeaux was guilty of
sexual battery.

2. The State failed to prove Michael Comeaux was guilty of
possessing pornography involving juveniles.

3. Trial Counsel provided ineffective assistance of counsel
regarding the testimony of Det. Tezeno. Counsel failed to
object on constitutional confrontation grounds to require the
State to offer evidence directly from the Attorney General’s
Office regarding the photo investigation. Counsel also failed to
object to the hearsay testimony regarding where the photos
were allegedly stored and how the manner of storage proved
knowledge and possession on behalf of Michael Comeaux.

FACTS

At the time of the events at issue, Defendant was the live-in boyfriend of

victim L.F.’s mother.1 On September 12, 2018, L.F., who was eleven years old at

the time, reported to her fourth-grade teacher that her “daddy” had been touching

private areas of her body. Upon speaking with the schools’ principal, L.F. further

reported that her “dad” had inserted his penis into her.

At the time of the trial, L.F. was sixteen years old. She testified that

Defendant abused her numerous times, and the abuse started when she was seven

years old. The abuse included penile penetration. She also testified that Defendant

took nude photographs of her.

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, the Court finds

no errors patent.

ASSIGNMENTS OF ERROR NO. 1 & 2

In his first two assignments of error, Defendant challenges the sufficiency of

the evidence adduced against him at trial. As the underlying law is the same for

both assignments of error, the Court will discuss both together.

The analysis for claims challenging the sufficiency of trial evidence is well-

settled:

1
The victim’s initials are used in accordance with La.R.S. 46:1844(W).
2

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the 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. [citation omitted] 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. [citation omitted] 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.

La.R.S.14:43.1, which proscribes sexual battery, states in pertinent part:

A. Sexual battery is the intentional touching of the anus or
genitals of the victim by the offender using any instrumentality or any
part of the body of the offender, directly or through clothing, or the
touching of the anus or genitals of the offender by the victim using
any instrumentality or any part of the body of the victim, directly or
through clothing, when any of the following occur:

(1) The offender acts without the consent of the victim.

(2) The victim has not yet attained fifteen years of age and is
at least three years younger than the offender.

At trial, L.F. testified that Defendant, a grown man, touched her buttocks,

chest, and genitals without her consent. The victim was sixteen at the time of trial

and eleven when she reported the matter at school. Defendant touched her with his

fingers and penis, even inserting his penis into her body. He also made the young

victim touch his penis. L.F. further testified that Defendant touched both her anus

and vagina.

The victim stated that the incidents occurred many times, “probably like a

hundred to like two hundred.” Often, Defendant would put a shirt or blanket over

her face so she could not see anything, but she would feel a sharp pain in her

vagina. She told him “no” multiple times, but he committed the acts anyway.

Sometimes, he would forcibly move her to another room to commit the acts.

3

During cross-examination, L.F. also stated that Defendant put his penis in

her mouth. She acknowledged that she had not revealed this act during the

investigation. Trial counsel asked her why she gave the note to her teacher on the

day she reported Defendant’s acts. The young victim replied that she was tired of

being used for sex. Counsel asked whether she made the allegations because she

was being punished at home. She denied the premise of the question and stated, “I

was tired of being used for what I had at a young age.”

On re-direct examination, some of L.F.’s responses indicated that she bled

after being penetrated by Defendant, but she thought the bleeding, along with

cramps and nausea, was a consequence of her menstrual cycle. She testified that

Defendant held her down during the various acts, that he would penetrate her with

his penis, and that he would withdraw it and ejaculate onto her. She did not report

the offenses earlier because Defendant threatened to throw her, her mother, and

their pet out of the residence.

Further, the State introduced a recorded interview that the victim gave to

forensic interviewer Jennifer Smith at Hearts of Hope, a children’s advocacy

center. The allegations L.F. made in that interview were substantially the same as

those she made on the witness stand.

The State also adduced testimony from three medical professionals. A

pediatrician, Dr. Kermen Beauchamp-Roche, examined the victim in September of

2018. He found that she had a tear in her hymen at the four o’clock position. Dr.

Beauchamp-Roche testified that such a tear was unusual for an eleven-year-old

girl. He thought sexual abuse was possible but could not say so definitively and

referred the victim to another physician, Dr. Fontenot.

Dr. Kayla Fontenot, a gynecologist, testified that she examined the victim

pursuant to a referral. The doctor found the young girl’s hymen was distorted, with
4

corresponding distortion at the bottom of her vaginal opening. There was also

some swelling and redness around the child’s vaginal opening. The doctor stated

there was no vaginal swab, as too much time had passed between the last alleged

incident and the exam for DNA to be recoverable. The victim’s injuries were

consistent with sexual assault, but Dr. Fontenot did not definitively state that the

injuries were caused by sexual assault. Dr. Fontenot also testified that a breached

hymen does not usually heal.

Rebecca Havlik, a Sexual Assault Nurse Examiner, also testified. She

examined the victim about eighteen days after the last reported date of sexual

assault. Nurse Havlik found an irregular area in the victim’s hymen in an area

between the six and seven o’clock areas. However, Nurse Havlik did not make a

finding of sexual assault. She acknowledged that the irregularity in the victim’s

hymen could have been a “normal variant.” Also, she found no injuries to L.F.’s

anus. Nurse Havlik testified that the tissue of the vagina and anus can heal quickly.

Further, she testified that “[o]nly about ten percent” of young sexual abuse victims

will present “definitive findings on exam.”

On cross-examination, defense counsel asked about the discrepancy between

Nurse Havlik’s testimony in which she identified a hymenal irregularity at the six

or seven o’clock position and Dr. Beauchamp’s testimony that he had seen a

hymenal tear at the four o’clock position. Nurse Havlik acknowledged the

discrepancy but again noted that the relevant tissues can heal quickly. In response

to questioning, she noted that multiple different traumas can cause different

injuries but that a particular injury will not move to a different location. She noted

there were no definitive findings of sexual assault. On re-direct examination, Nurse

Havlik noted that healing from sexual trauma can take place in as little as two

days.
5

The State presented other witnesses, but the Court notes the victim’s

testimony alone satisfied the elements of the crime. Under the jurisprudence, “It is

well-settled that a jury is free to believe some, none, or all of any witness’s

testimony.” State v. Perkins, 11-955, p. 10 (La.App. 3 Cir. 3/7/12), 85 So.3d 810,

817. Further, “a single witness’s testimony can support a conviction.” State v.

Dotson, 18-29, p. 5 (La.App. 3 Cir. 10/3/18), 257 So.3d 229, 232, writ denied, 18-

1821 (La. 4/22/19), 268 So.3d 296.

Defendant acknowledges as much in his brief. However, Defendant notes

the discrepancies among the expert witnesses’ various identifications of the

location of the victim’s hymenal injuries. He implies that the experts’ testimonies

made the State’s case weaker than it would have been had the State proceeded

without the experts. As noted earlier, defense counsel confronted Nurse Havlik

with these discrepancies at trial. She merely stated that she could not speak for the

other experts and was relying on her own examinations of L.F.

Much of Defendant’s appellate argument rests on the general premise that

L.F.’s vaginal and anal areas would have been much more damaged if the girl had

suffered the many instances of penile and digital penetration that she alleged. This

is not a rape case; therefore, penetration was not an element the State had to prove.

See La.R.S. 14:41. Thus, Defendant is left with the argument that the victim was

not credible. Her testimony indicated that some form of penetration occurred, but

the physical evidence, in Defendant’s view, did not support her claims. Also,

Defendant notes, albeit briefly, that Detective Jessica Tezeno of the Eunice Police

Department testified that the victim’s own mother had told Tezeno that the victim

made up stories and had a very active imagination.2

2
L.F.’s mother was dead at the time of trial.

6

As made clear by the law previously cited, the assessment of weight and

credibility of evidence lies squarely within the province of the trial jury. The

following assessment by the first circuit illustrates the point that the jury is free to

weigh conflicting testimony and draw reasonable conclusions:

The scope of appellate review for the sufficiency of the
evidence is whether, viewing the evidence in the 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.
[citation omitted].

The evidence consisted of the testimony of four eyewitnesses,
two experts for the State, and two experts for the defense. Because
some of the testimony was conflicting, the jury had to make
credibility decisions. We find no error. A rational trier of fact could
have found defendant guilty beyond a reasonable doubt, accepting
facts most favorable to the State.

State v. Davis, 451 So.2d 1, 3 (La.App. 1 Cir. 1984).

Thus, the trial jury was faced with a young girl’s allegations that an adult

male had sexually abused her and also with physical evidence that there were

unexplained injuries or irregularities in the girl’s vaginal area.3 The jury could have

assessed such evidence, including the associated conflicts and discrepancies, and

rationally concluded that Defendant was guilty as charged.4

Defendant’s second assignment of error alleges the State failed to prove

Defendant was guilty of pornography involving a juvenile. The offense is governed

by La.R.S. 14:81.1, which states, in pertinent part:

A. (1) It shall be unlawful for a person to produce, promote,
advertise, distribute, possess, or possess with the intent to distribute
pornography involving juveniles.

....

3
Defendant is correct in his assertion that the other State witnesses’ testimonies did not
present eyewitness accounts and were essentially repetitions of what the victim had told them.
4
The forensic interview of L.F. presents an eerie juxtaposition of an eleven-year-old
playing with coloring books but making statements reflecting sexual knowledge she should not
have had at her age. The Court believes this is not the sort of statement which a child would
typically have the knowledge or experience to fabricate.
7

(8) “Pornography involving juveniles” is any photograph,
videotape, film, or other reproduction, whether electronic or
otherwise, of any sexual performance involving a child under the age
of seventeen.

(9) “Produce” means to photograph, videotape, film, or
otherwise reproduce pornography involving juveniles, or to solicit,
promote, or coerce any child for the purpose of pornography
involving juveniles.

(10) “Sexual performance” means 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.

Defendant argues that the pictures do not meet the legal definition of

“pornography” because L.F.’s genitals and anus are covered by her panties in all of

the pictures. The photographs are highly sexually suggestive and imitative of

sexual positions and acts. They depict a child, naked other than her panties, posed

in sexual positions. In some images, the nearly naked victim’s genital region is the

focal point, with the victim’s legs spread wide open towards the camera, as is often

done in pornographic material. In others, the victim’s genital and anal regions are

the focus, the photographs taken from behind with the child’s projecting posterior

as the focal point, imitating a sexual position and displaying a receptiveness to

intercourse. There is no mistaking that these pictures were taken for the sexual

gratification of the author of the photographs, particularly in light of the context in

which the photos were taken, which was the repeated sexual abuse of the subject

by the author.

As illustrated above, La.R.S. 14:81.1 in part defines pornography involving

juveniles as photography of sexual performance. Sexual performance in turn is in

part defined as “actual or simulated intercourse.” According to Merriam-Webster’s

thesaurus, synonyms of “simulated” include “mimic,” “imitative,” and “pretend.”

SIMULATED Synonyms: 159 Similar and Opposite Words, Merriam-Webster

8

Thesaurus (March 13, 2025, 1:28 PM), https://www.merriam-

webster.com/thesaurus/simulated. Given that the poses appear to be sexual

positions and the victim was nearly nude, as to suggest to the viewer that sexual

acts are in the process of taking place, the images appear to be simulating, i.e.

mimicking or imitating, sexual intercourse.

Also given the graphic vulgar exposition of the victim’s genital and anal

areas, even though obscured by underwear, these photographs would also appear to

constitute a “lewd exhibition of the genitals or anus.” At the very least, they are

“simulated” exhibition of these areas. Note that under prevailing rules of syntax,

the initial modifier “will tend to govern all elements in the series unless it is

repeated for each element.” The American Heritage Guide to Contemporary Usage

and Style p. 343 (Houghton Mifflin Company 2005).

“Actual or simulated” appears to modify all the acts enumerated afterwards

in the list, including “lewd exhibition of the genitals or anus,” not only because of

the rules of syntax, but also because it would be illogical and absurd to assume that

simulated sexual intercourse would be criminal but simulating/imitating bestiality

or oral or anal sex (falling under deviate sexual intercourse) with a child would be

permitted under the law. Therefore, a fortiori, applying the modifiers to all

subsequent terms renders the clause logical and internally consistent, indicating

this was the legislature’s intent. Consequently, the statute would prohibit simulated

“lewd exhibition of the genitals or anus.”

Reviewing all the evidence presented, we conclude that a rational trier of

fact could have found every element of the offense of pornography involving

juveniles proven beyond a reasonable doubt. Consequently, the Court rejects

Defendant’s second assignment of error and affirms the jury’s conviction and the

trial court’s sentencing.
9

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, Defendant argues that his trial counsel was

ineffective for failing to raise hearsay-based and Confrontation Clause-based

grounds to testimony that led to the introduction of the pictures at issue in the

second assignment of error. Defendant states that trial counsel did attempt to use

other means to keep the picture from being admitted. However, he complains that

said counsel did not raise either the Confrontation Clause or hearsay provisions

and so did not pursue all avenues available to bar the pictures.

This court has stated the following regarding ineffective assistance of

counsel claims on appeal:

At the outset, we note that an ineffective-assistance-of-counsel
claim is more appropriately addressed in an application for post-
conviction relief. [citation omitted]. This is especially true when the
claim is based on evidence not in the record. [citation omitted]
However, when the record is sufficient, the claim may be resolved on
direct appeal in the interest of judicial economy….

In assessing a claim of ineffectiveness of counsel, the defendant
must show two things: (1) that his attorney’s performance was
deficient, and (2) that the deficiency prejudiced his defense. [citation
omitted]. Both elements must be proven. [citation omitted]

State v. Dunbar, 24-73, p. 7 (La.App. 3 Cir. 9/25/24), 394 So.3d 915, 920. The

State suggests the current appeal is not the proper place to address Defendant’s

claim, but we find that there is sufficient information in the record to enable this

court to dispose of the matter.

As the State examined Detective Tezeno, the following colloquy occurred:

Q. At some point during this investigation, did you learn about a
warrant that was being executed at that home?

A. Yes, I did.

Q. What was that concerning?

A. I don’t know what that no knock warrant was concerning. It
was the Attorney General’s Office. They came to the Eunice Police
10

Department and got with me, telling me they learned that I was doing
an investigation, and they gave me Michael Comeaux’s name, and
they gave me the address. They would not tell me what they were
doing, but they offered me photos.

Q. They offered you some photos?

A. That they dumped from an electronic device. I don’t know if it
was a computer or a PlayStation, because I don’t know what their
purpose was.

Q. Do you know what those photos were?

MR. ABSHIRE:

Your Honor, I would object. We have to get those
officers here for those photographs.

MS. DUHON CONTINUES:

Q. You saw the photos?

A. I did.

Q. Did you make those photos part of the case file?

A. It should be, because I put everything together.

MR. ABSHIRE:

Your Honor, she didn’t obtain the photos. She
can’t testify to the validity of them, the date of them, or
any –

THE COURT:

Y’all come up here a second.

WHEREUPON AN OFF THE RECORD DISCUSSION TAKES
PLACE

THE COURT:

The objection is overruled. You can ask the
question.

MR. ABSHIRE:

Let Mr. Comeaux’s objection to the ruling be
noted.

11

THE COURT:

The objection is noted.

MS. DUHON CONTINUES:

Q. Detective Tezeno, the photographs that the Attorney General’s
Office took they provided a copy of those to you?

A. Yes, they did.

Q. And those were submitted to our office with your case file?

A. Should have been.

Q. Whenever you close a case, what do you normally submit to the
District Attorney’s Office?

A. Everything that I’ve gathered, from photos to statements.

Q. And those photos that were given to you, do you remember
who was in those photos or what those photos were?

A. In the photos was [L]. One photo, her face was covered, that’s
the main one I can remember. I can’t remember them all.

MS. DUHON:

Your Honor, can I approach?

THE COURT:

Yes.

MS. DUHON:

I’ll just mark these as State, in globo, 2.

MS. DUHON CONTINUES:

Q. Could you identify what those photo is [sic]?

A. The one at the top is her with some tights or leggings or
stockings.

Q. Who is her?

A. L[.] F[.], and the one on the bottom, L[.] F[.], as well, with only
her panties on. This one -- these here is [sic] L[.] F[.], with only her
panties on.

12

Q. Is this the same child that you interviewed regarding the sexual
abuse complaint at East Elementary?

A. Yes.

Q. And about hold [sic] is she in those photos?

A. Eight or nine. I’m not sure. I don’t remember.

Q. Okay. The next photo.

A. The next photo here is also L[.] F[.]. She’s in her nighty and her
panties. This one here is L[.] again with a straw in her mouth in her
panties and her house slippers. This one here is also L[.] in her
nightgown the first three, and the last one she’s in her panties with
some high heels. The top one is her in a pajama set. The third one
she’s still in her pajama set. The last one is just the one I remember
with the face covered and only her panties and some kind of shirt.

Q. Detective Tezeno, once you received those photos from the
Attorney General’s Office, did you charge Mr. Comeaux with any
additional charges?

A. No, I did not. No, I did not.

Q. Do you remember what he was charged with?

A. Sexual battery.

Q. No other charges?

A. Not from me.

MS. DUHON:

Your Honor, at this time, I would like to publish
the photographs to the jury.

MR. ABSHIRE:

Your Honor, again, I’m going to raise my
objection for foundation. The detective did not take the
photographs. She can identify them as presented to her,
but the Attorney General are [sic] the ones who acquired
them. How they required them they [sic] shouldn’t be
published or permitted. She can describe what she was
received [sic] in her investigation. But as far as for that,
there was no foundation laid as to how those were
obtained through the Attorney General’s Office.

13

THE COURT:

The objection is overruled. Let it be noted for the
record. You can publish the photos.

THE PHOTOS ARE PUBLISHED TO THE JURY

THE COURT:

State, you may continue.

MS. DUHON CONTINUES:

Q. Detective Tezeno, did the Attorney General’s Office indicate
where those photographs came from?

A. I don’t remember if it was an Xbox game or a computer. I don’t
remember.

Q. Did they say who it was belonging to [sic]?

A. He told me that he retrieved this –

MR. ABSHIRE:

Your Honor, I’ll object hearsay. He told me.

THE COURT:

Sustain.

MS. DUHON CONTINUES:

Q. Where was that search warrant executed?

A. 731 East Vine; Eunice, Louisiana.

MR. ABSHIRE:

Your Honor, again, objection. It was -- she hasn’t
testified that she was part of that or even reviewed that
search warrant.

THE COURT:

If she knows, overrule.

MS. DUHON CONTINUES:

Q. Who lives at that address?

14

A. At the time, it was [the victim’s mother] and Mr. Michael
Comeaux.

Due to the unrecorded discussion regarding Defendant’s objection, this court

could elect to relegate the issue to the post-conviction relief process, in which the

parties would have an opportunity to develop the record. In particular, they would

be able to establish whether Defendant raised a confrontation issue at the bench.

Some of the discussion in the colloquy just cited suggests that Defendant’s

objection alleged a lack of foundation for the pictures. However, it is not possible

to know with certainty what was discussed in the unrecorded conference.

However, the record reveals there is enough information in evidence to show

that Defendant would not be able to establish ineffectiveness of trial counsel even

if it were demonstrated that he did not raise a confrontation-based objection at trial.

Photographs are admissible when a witness establishes that they are accurate

depictions of a given subject. The fifth circuit has explained:

Generally, photographs are admissible if they illustrate any fact,
shed light upon any fact or issue in the case, or are relevant to
describe the person, place or thing depicted. [citation omitted]. For
admission of a photograph, the proper foundation is laid when a
witness having personal knowledge of the subject depicted by the
photograph identifies it as such. [citation omitted]. To be admissible, a
photograph need not be identified by the person who took it. [citations
omitted] Further, “[a] defect in the chain of custody goes to the weight
of the evidence rather than to its admissibility.” State v. Frank, 549
So.2d at 405 (citing State v. Sam, 412 So.2d 1082 (La.1982); State v.
Williams, 447 So.2d 495 (La.App. 3 Cir.1984), writ denied, 450 So.2d
969 (La.1984)).

State v. Becnel, 04-1266, p. 16 (La.App. 5 Cir. 5/31/05), 904 So.2d 838, 851.

In the above exchange, Detective Tezeno identified the little girl in the

photographs as the victim. The detective had personal knowledge of the young

girl’s appearance due to personal contact during the investigation. Also, the

pictures were clearly relevant to the case, as they were the basis of one of the

charges. Thus, the pictures met the baseline for proper foundation and admissibility.
15

In view of the established regime for admissibility of photographs, the

confrontation of any officers who initially located the pictures was superfluous, as

their testimony was unnecessary. Tezeno gave testimony that established the

foundation for admissibility, and Defendant had the opportunity to confront her

through full cross-examination.

Based on the foregoing discussion, the Court finds that Defendant would not

be able to demonstrate that his trial counsel’s performance was deficient. There

was no necessity for trial counsel to raise a confrontation claim, as confronting the

investigators who initially found the pictures was not pertinent to their

admissibility.

Defendant argues that he should have been able to confront the officers who

initially located the pictures because without their testimony, he could not establish

who had access to the device or location where they were found. This was

potentially pertinent to the question of possession of the pictures. This argument,

however, is more in the nature of weight and the establishment of the elements of

the crime.

Defendant also argues that trial counsel should have raised a hearsay

objection to the information Tezeno provided about receiving the pictures from the

Attorney General’s Office. In the testimony quoted earlier, trial counsel objected to

the detectives’ testimony on this subject. Although he did not use the words

“hearsay” or “confrontation,” trial counsel clearly asserted to the court that

personnel from the Attorney General’s Office should have been present to testify.

Also, the detective was frank about her lack of information regarding the finding

and seizure of the pictures. Again, Defendant has failed to show deficient

performance. Consequently, the Court need not address whether Defendant’s case

was unduly prejudiced, but briefly, there was no such prejudice. Moreover, the
16

prejudice allegation dovetails with Defendant’s arguments regarding the

possession element of La.R.S. 14:81.1, and can be succinctly addressed.

The victim, L.F. herself testified not only that she was the child in the

pictures, but also that Defendant is the person who took them. Thus, the jury heard

evidence that Defendant possessed the pictures in some sense, even if briefly.

Consequently, he clearly “produced” them, which like possession is prohibited by

La.R.S. 14:81.1. Defendant has not shown that trial counsel’s alleged deficiencies

in performance improperly prejudiced his case.

For the reasons discussed, this assignment of error lacks merit.

DECREE

Defendant’s convictions and sentences for sexual battery and for

pornography are affirmed.

AFFIRMED.

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