Appeal from The 22nd Judicial District Court,
Parish of Washington, State of Louisiana Trial Court No.
125300 The Honorable Martin Coady, Judge Presiding
Montgomery, District Attorney John Alford, Assistant District
Attorney Franklinton, Louisiana and Matthew Caplan Assistant
District Attorney Covington, Louisiana Attorneys for State of
C. Hanes New Orleans, Louisiana Attorney for Defendant/
Appellant, Shawn Becnel
BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
defendant, Shawn Becnel, was charged with possession of
pornography involving juveniles. See La R.S. 14.81.1. He was
convicted by a jury of the lesser offense of attempted
possession of pornography involving juveniles and sentenced
to ten years imprisonment at hard labor. See La
R.S. 14.81.1 and 14:27. The defendant appeals, arguing
insufficient evidence to support the conviction and error in
admitting evidence of other crimes. We affirm.
after receiving a complaint that the defendant had engaged in
indecent behavior with juveniles, officers with the Bogalusa
Police Department (BPD) obtained a warrant for the
defendant's arrest and took him into custody. In
furtherance of that investigation, the officers obtained and
executed a search warrant for the defendant's residence,
resulting in the seizure of several items, including two
laptop computers. Three thousand, five hundred and forty-two
images of suspected child pornography were discovered on one
of the computers, including 486 images of juveniles known to
be under the age of seventeen.
OF THE EVIDENCE
defendant first argues there was insufficient evidence to
convict him. A conviction based on insufficient evidence
cannot stand, as it violates due process. See U.S.
Const, amend. XIV; La. Const, art. I, § 2. In reviewing
claims challenging the sufficiency of the evidence, an
appellate court must determine whether any rational trier of
fact could have found tha essential elements of the crime
proven beyond a reasonable doubt based on the entirety of the
evidence, both admissible and inadmissible, viewed in the
light most favorable to the prosecution. See Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979); State v. Oliphant, 13-2973 (La.
2/21/14), 133 So.3d 1255, 1258; see also La. Code
Crim. Pro. art. 821B; State v. Mussall, 523 So.2d
1305, 1308-09 (La. 1988). When circumstantial evidence forms
the basis of the conviction, the evidence "assuming
every fact to be proved that the evidence tends to prove ...
must exclude every reasonable hypothesis of innocence."
La. R.S. 15:438; Oliphant, 133 So.3d at 1258. The
due process standard does not require the reviewing court to
determine whether it believes the witnesses or whether it
believes the evidence establishes guilt beyond a reasonable
doubt. State v. Mire, 14-2295 (La. 1/27/16), ___So.
3d___, ___(2016WL314814). Rather, appellate review is limited
to determining whether the facts established by the direct
evidence and inferred from the circumstances established by
that evidence are sufficient for any rational trier
of fact to conclude beyond a reasonable doubt that the
defendant was guilty of every essential element of the crime.
State v. Alexander, 14-1619 (La.App. 1 Cir.
9/18/15), 182 So.3d 126, 129, writ denied, 15-1912
(La. 1/25/16), 185 So.3d 748.
unlawful for a person to possess pornography involving
juveniles, which, in relevant part, is defined as "any
photograph ... or other reproduction, whether electronic or
otherwise, of any sexual performance involving a child under
the age of seventeen." See La. R.S. 14:81.1A(1)
and B(5). "Sexual performance" includes
any "lewd exhibition of the genitals or anus." La.
determine the age of an individual depicted in an image, the
trier of fact may consider: (1) the general body growth, bone
structure, and bone development of the person; (2) the
development of pubic or body hair on the person; (3) the
development of the person's sexual organs; (4) the
context in which the person is placed or the age attributed
to the person in any accompanying video, printed, or text
material; (5) available expert testimony and opinion as to
the chronological age or degree of physical or mental
maturity or development of the person; and (6) such other
information, factors, and evidence available to the trier of
fact that the court determines is probative and reasonably
reliable. La. R.S. 14:81.1G.
element of possession includes both "actual" and
"constructive" possession. State v.
Sandifer, 95-2226 (La. 9/5/96), 679 So.2d 1324, 1331. A
person who is not in physical possession may have
constructive possession when the contraband is under that
person's dominion and control. In determining whether a
defendant exercised dominion and control sufficient to
constitute constructive possession, the fact finder may
consider, among other factors, the defendant's knowledge
of the contraband and his access to the area where the
contraband is found. See State v. Gordon, 93-1922
(La.App. 1 Cir. 11/10/94), 646 So.2d 995, 1002. Guilty
knowledge may be inferred from the circumstances of the case.
State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d
517, 521 (per curiam). The mere presence in an area
where contraband is located or the mere association with one
possessing contraband does not constitute constructive
possession. See State v. Toups, 01-1875 (La.
10/15/02), 833 So.2d 910, 913. A person may be in joint
possession of contraband if he willfully and knowingly shares
with another the right to control the contraband. See
Gordon, 646 So.2d at 1002.
involving juveniles is a general intent crime. See State
v. Cinel, 94-0942 (La. 11/30/94), 646 So.2d 309,
cert, denied,516 U.S. 881, 116 S.Ct. 215, 133
L.Ed.2d 146 (1995); State v. Workman, 14-559
(La.App. 5 Cir. 4/15/15), 170 So.3d 279, 290, writ
denied, 15-0909 (La. 3/24/16), 190 So.3d 1189. General
criminal intent is present when the circumstances indicate
that the offender, in the ordinary course of human
experience, must have ...