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State v. Becnel

Court of Appeals of Louisiana, First Circuit

April 20, 2017


         On Appeal from The 22nd Judicial District Court, Parish of Washington, State of Louisiana Trial Court No. 125300 The Honorable Martin Coady, Judge Presiding

          Warren Montgomery, District Attorney John Alford, Assistant District Attorney Franklinton, Louisiana and Matthew Caplan Assistant District Attorney Covington, Louisiana Attorneys for State of Louisiana

          Mary C. Hanes New Orleans, Louisiana Attorney for Defendant/ Appellant, Shawn Becnel


          CRAIN, J.

         The 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.[1] 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.


         Shortly 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.


         The 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.

         It is 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).[2] "Sexual performance" includes any "lewd exhibition of the genitals or anus." La. R.S. 14:81.1B(7).

         To 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.

         The 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.

         Pornography involving juveniles is a general intent crime. See State v. Cinel, 94-0942 (La. 11/30/94), 646 So.2d 309, cert, denied,516 U.S. 881, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995); 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 ...

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