APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON, NO. 80641. HONORABLE JOHN C. FORD, DISTRICT JUDGE.
Asa Allen Skinner, District Attorney, Thirtieth Judicial District Court, Terry W. Lambright, Assistant District Attorney, Leesville, LA, COUNSEL FOR APPELLEE: State of Louisiana.
Jonathan W. Brown, Attorney at Law, Lake Charles, LA, COUNSEL FOR DEFENDANT/APPELLANT: Bengy R. Cooley.
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
[15-40 La.App. 3 Cir. 1]
Pursuant to a search warrant executed on September 9, 2010, approximately fifty-three images of child pornography were found on a computer hard drive located at the home of Defendant, Bengy R. Cooley. In a statement to police, Defendant admitted to searching for child pornography, viewing child pornography, and deleting child pornography.
Defendant was charged by bill of information with one count of pornography involving juveniles, a violation of La.R.S. 14:81.1. Defendant initially entered a plea of not guilty to the charge but changed his plea to a plea of no contest. Defendant later filed a motion to withdraw his no contest plea, which was denied. Defendant then re-urged the motion to withdraw plea, and the trial court granted the motion.
Following a three-day bench trial, Defendant was found guilty as charged. Defendant filed a Motion for New Trial, which was denied. Defendant waived the delays for sentencing, and the trial court sentenced him to two years at hard labor, without benefit of probation, parole, or suspension of sentence.
Defendant now appeals alleging three assignments of error. Two assignments of error, which involve sufficiency of the evidence, merit serious consideration but ultimately lack merit. Additionally, Defendant's first assignment of error pertaining to sex-offender registration notification lacks merit. Thus, we affirm Defendant's conviction and sentence.
[15-40 La.App. 3 Cir. 2] ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent.
On February 1, 2013, Defendant's attorney filed a Motion to Elect Judge Trial which was granted. In State v. Ray 12-1217, p. 9 (La.App. 3 Cir. 5/1/13), 157 So.3d 13, 19, this court explained in pertinent part:
Where the defendant's right to a jury trial was waived by his attorney, and there was no other indication that the defendant knowingly and intelligently waived that right, such as a confirmation in open court, the appellate courts have remanded the matter to the trial court for a determination of whether the defendant's waiver was knowing and intelligent. State v. Zeringue, 03-697 (La.App. 5 Cir. 11/25/03), 862 So.2d 186, writ denied, 03-3523 (La.4/23/04), 870 So.2d 298; State v. Morris, 607 So.2d 1000 (La.App. 3 Cir. 1992), rev'd on other grounds, 615 So.2d 327 (La.1993). See also State v. Pierre, 02-2665 (La. 3/28/03), 842 So.2d 321.
In this case, the motion requesting waiver of jury trial was signed only by Defendant's attorney. Additionally, the record does not indicate Defendant knowingly and intelligently waived this right. The clerk of court of the district court attested in an affidavit that there were no minute entries or untranscribed hearings discussing Defendant's
waiver of jury trial. The clerk of court also noted in the affidavit that " defendant was advised of his right to a judge or jury trial on February 1, 2011 and May 16, 2011." However, there are no minute entries or transcripts for February 1, 2011 or May 16, 2011 in the record or provided by the [15-40 La.App. 3 Cir. 3] clerk in the supplemental record. At a proceeding dated May 13, 2011, the transcript indicates that Defendant was advised of his right to be tried by a jury in the context of waiving his right at the guilty plea proceeding, which plea was later withdrawn. Thus, this matter must be remanded to the trial court for an evidentiary hearing.
In State v. Clark, 97-1064, p.8 (La.App. 3 Cir. 4/1/98), 711 So.2d 738, 742, writ granted and remanded, 98-1180 (La. 9/25/98), 726 So.2d 2, this court decreed:
For the above reasons, we remand this case with instructions that the trial court (1) conduct an evidentiary hearing within thirty days of this date to determine whether defendant knowingly and intelligently waived his right to trial by jury and (2) re-lodge the appellate record, supplemented with a transcript of the hearing, within fifteen days of the hearing. The State and defendant will be given the opportunity to file supplemental briefs, should either party wish to raise any issues arising from the hearing.
See also State v. Fuslier, 06-1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866. Under the Clark/Fuslier procedure, this case will be marked final with the issuance of the opinion. The case will be remanded for the evidentiary hearing and the trial court ordered to prepare and lodge an appellate record containing the transcript of the evidentiary hearing. The new record will be issued a new docket number, and an opinion addressing the unresolved issues will then be issued under the new docket number.
SUFFICIENCY OF THE EVIDENCE
In assignments of error numbered two and three, Defendant challenges the sufficiency of the evidence. We address these assignments of error first, since a finding of merit would preclude the necessity of considering the remaining assignments of error. State v. Hearold, 603 So.2d 731 (La.1992).
[15-40 La.App. 3 Cir. 4] Defendant asserts that the trial court was presented with only circumstantial evidence that he possessed child pornography-evidence that did not exclude every reasonable hypothesis of innocence. Additionally, Defendant asserts that the trial court incorrectly used the " dominion and control" standard in determining whether he possessed child pornography. Even using that standard, however, Defendant contends that the evidence was insufficient to find that he possessed the child pornography in question.
Standard of Review
This court has stated the following regarding the standard for reviewing a claim of insufficient evidence:
The standard of review in a sufficiency of the evidence claim is " whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged." The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the
appellate court " to substitute its own appreciation of the evidence for that of the fact-finder." The appellate court's function is not to assess the credibility of witnesses or reweigh the evidence.
The factfinder's role is to weigh the credibility of witnesses. Thus, other than ensuring the sufficiency evaluation standard of Jackson, " the appellate court should not second-guess the credibility determination of the trier of fact," but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Our supreme court has stated:
However, an appellate court may impinge on the fact finder's discretion and its role in determining the credibility of witnesses " only to the extent necessary to guarantee the fundamental due process of law." In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve " 'the factfinder's role as weigher of the evidence' by reviewing 'all of the evidence . . . in the light most favorable to the prosecution.'" When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, " any rational trier of fact could have found the essential elements of the crime [15-40 La.App. 3 Cir. 5] beyond a reasonable doubt." Applied in cases relying on circumstantial evidence, . . . this fundamental principle of review means that when a jury " reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt."
State v. Francis, 12-1221, pp. 6-7 (La.App. 3 Cir. 4/3/13), 111 So.3d 529, 533, writ denied, 13-1253 (La. 11/8/13), 125 So.3d 449 (citations omitted).
The first witness to testify at trial was Detective Carla Smith, a computer forensic examiner with the Beauregard Parish Sheriff's Office from 1996 to 2011. Detective Smith used a program called the Wyoming Tool Kit to search for activity involving child pornography in her geographic area. Files that contain child pornography are identified by a " SHA Value" or " Hash Value" --a string of alphanumeric characters provided to law enforcement by the Missing and Exploited Children's Group from Virginia. Law enforcement agencies know that certain SHA values represent child pornography. The Wyoming Took Kit program creates a list of files with SHA values that are known to be child pornography. With the file list, Internet Protocol (I.P.) addresses are also assigned to each file. Each modem has an I.P. address.
In May 2010, Detective Smith conducted an internet investigation to determine if anyone in her area was downloading child pornography. Detective Smith's attention focused on I.P. address 74194243212 because " there were [sic] a huge amount of child pornography, known child pornography, images with that I.P. address." Detective Smith obtained a search warrant for Suddenlink Communications to obtain the subscriber information for I.P. address 74194243212. Detective Smith identified State's Exhibit Number One as the list [15-40 La.App. 3 Cir. 6] she obtained from the Wyoming Tool Kit regarding files accessed by this I.P. address. In addition to the I.P. address, Exhibit One also contained a date stamp of when the files were downloaded onto that computer. The date stamps ranged from October 15, 2009, to June 7, 2010.
Detective Smith testified that a " GUID," a " globally unique identifier," " identifies the computer to the file itself to that I.P. address." Detective Smith further testified that when LimeWire is installed on a computer, the installation will be assigned a " GUID" number and is unique to that installation of LimeWire. According to Detective Smith, all of the files on the list in S-1 were pulled up as a result of searching for child pornography.
Detective Smith identified State's Exhibit Number Two as the subpoena she sent to Suddenlink Communications to find out the subscriber information for the I.P. address at issue. According to representatives from Suddenlink Communications, the subscriber to the I.P. address was Defendant who lived at 296 Ambler Road, Leesville, Louisiana. When Detective Smith realized that the address was outside of her jurisdiction, she contacted the Louisiana State Police.
Trooper Amanda Fournier of the Louisiana State Police testified that after she received information from Detective Smith, she obtained a search warrant for Defendant's residence. The search warrant was executed on September 9, 2010, at which time Trooper Fournier and other troopers knocked on the door of Defendant's residence. When no one answered the door, the troopers entered through an unlocked door to the kitchen. The troopers located a document indicating that Defendant worked for Probation and Parole and then contacted [15-40 La.App. 3 Cir. 7] Defendant at work. While waiting for Defendant to arrive, the troopers located a laptop at the residence.
Shortly after Defendant arrived at his residence, he was advised of his rights. When Defendant was asked if he downloaded pornography at his residence he originally answered, " No." At some point, however, Defendant changed his answer. When Trooper Fournier was asked what Defendant told the troopers when he changed his answer, the following colloquy ensued:
A: That he downloaded pornography via the Internet and that he may have seen some pornography involving juveniles.
Q: All right and at that time was he asked about the downloading of the pornography and utilizing LimeWire?
Q: All right and did he admit to you to using LimeWire to download pornography?
Q: So, your testimony is that he admitted to downloading pornography, he may have downloaded some involving children? Did he say may?
Q: That he may have downloaded some involving children?
Since the GUID listed on the file list Trooper Fournier received from Detective Smith matched the GUID number on the computer found in Defendant's residence, Trooper Fournier concluded that the computer seized from Defendant's residence was the computer being used to download child pornography.
[15-40 La.App. 3 Cir. 8] Defendant was transported to the Vernon Parish Sheriff's Office to be interviewed further. When Trooper Fournier was asked what Defendant said when
asked if he downloaded videos from LimeWire, the following colloquy ensued:
A: He indicated that he used search terms such as P.T.C.H. which the actual term is P.T.H.C. which stands for pre-teen hard core and I believe one of the other search terms he indicated was Little Teens or Little Girls. He also indicated that some of the videos that he had seen and he was able to describe two of those videos for us.
Q: Let me ask you about the search terms. We can just take it as is, but you actually would have to place those terms into the computer in order for it to search for that type of material, is that correct?
Q: Would have taken some effort on his part?
Q: And, I mean, the fact that he used those terms, are those terms that in your experience and training and knowledge are terms that are known child pornographic type search terms.
Q: In fact, those are the terms that you - - the State Police uses in order to do their investigation, is that right?
Q: Was he ever asked why he used those particular search terms?
A: I don't recall if I asked him that specific question.
Q: All right. Was he ever asked - - did he ever indicate to you that he was curious about anything?
Q: What, if anything, did he state?
A: He stated that he had heard of several people that had gotten arrested for child pornography and he was interested and curious as to what child pornography was about.
[15-40 La.App. 3 Cir. 9] Q: All right. Did he admit to you that he had indeed searched for child pornography?
Q: Now, did - - in interviewing him did he ever admit to you that he viewed certain videos containing child pornography?
Q: Okay. Did he provide a description?
Q: Okay, explain.
A: One of the files that he described, if I remember correctly, involved a Brazilian female child approximately ten years old that was performing oral sex on a male's penis. And I believe he described another video in where a female child was involved in sexual intercourse with an adult.
Q: All right and did he specifically use that - - tell you that he viewed a video of a female under the age of ten who had no pubic hair and small breasts?
Q: And he specifically said under ten?
A: I believe so.
. . . .
Q: Did he describe a second video? Well, you mentioned two videos, particularly, did he describe a video containing a 13 or a 14 year old performing oral sex on a male's penis?
Q: And he provided a description of that for you?
Q: Was Mr. Cooley asked how long the videos were?
A: Yes, sir, he said that they averaged approximately 30 seconds to a minute and a half.
[15-40 La.App. 3 Cir. 10] Q: Okay and was he asked about whether he downloaded the videos and viewed them?
Q: Okay and other than the two videos that you've spoken about, did he tell you whether or not he viewed any other videos? Just trying to get what ...