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State v. Jack

Court of Appeals of Louisiana, Second Circuit

June 21, 2017

STATE OF LOUISIANA, Appellee
v.
MALCOLM JACK, Appellant

         Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Lower Court Case No. 14-F1378 Honorable Daniel J. Ellender, Judge

          LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant

          ROBERT S. TEW District Attorney Counsel for Appellee

          MADELEINE M. SLAUGHTER-YOUNG ELLEN R. EADE Assistant District Attorneys

          Before DREW, PITMAN, and GARRETT, JJ.

          GARRETT, J.

         The defendant, Malcolm Jack, was convicted by unanimous jury verdicts of 49 counts of pornography involving juveniles under the age of 13 and 45 counts of pornography involving juveniles under the age of 17. He was sentenced to concurrent sentences of ten years at hard labor without benefit of parole, probation, or suspension of sentence for each of the 94 counts. He appeals his sentences as excessive. We affirm the defendant's convictions and sentences.

         FACTS

         On May 8, 2014, members of the Internet Crimes Against Children Taskforce, composed of FBI agents, investigators with the Ouachita Parish Sheriff's Office, and investigators from the Louisiana Attorney General's Office, went to the defendant's residence after obtaining information that an Internet Protocol ("IP") address which was associated with him might have been used to download child pornography. The defendant initially denied any knowledge of child pornography, and provided consent for the officers to search his laptop computer. Officers found child pornography on the defendant's computer, and, after being advised of his rights, the defendant eventually admitted that he had been viewing and downloading child pornography for about two years. Further forensic testing revealed very extensive and graphic child pornography.

         The defendant was charged by an amended bill of information with 49 counts of pornography involving juveniles under the age of 13 and 45 counts of pornography involving juveniles under the age of 17. The charges stem from 49 images and 45 videos which were downloaded between July 10, 2013, and May 6, 2014.[1] Following a trial in April 2016, the jury unanimously found the defendant guilty as charged on all 94 counts.

         In July 2016, the defendant appeared for sentencing. Prior to imposing sentence, the trial court noted its consideration of the presentence investigation ("PSI") report and the numerous letters submitted by the defendant's family and friends requesting leniency. Although the defendant indicated he was sorry for his actions, the trial court noted that, at trial and in his statement in the PSI report, the defendant expressed his belief that his actions were not criminal and that he did nothing wrong because he was not involved in the actual production of the child pornography.

         The trial court stated that, while the defendant was only charged with and convicted of 94 counts of child pornography, investigators found more than 1, 000 images and videos on the defendant's computer. The trial court stated that it had "never seen anything as grotesque and as shocking" as it saw in the images and videos, noting that the pornography involved infants, toddlers, and young boys and girls engaged in "horrific sex acts." Although the defendant did not produce or distribute the child pornography, the trial court noted that the defendant developed a deep obsession for it, based on the substantial number of images and videos found on his computer. In mitigation, the trial court noted that the defendant had no criminal history, has been consistently employed since he was 13 years old, was married with three children (ages 20, 14, and 13), and that his incarceration would cause an undue hardship on his family.

         In reviewing the applicable sentencing ranges, the trial court noted that prior to trial, the defendant had rejected plea offers which would have substantially reduced his sentencing exposure.[2] The trial court noted that shortly before the instant offenses were committed, the Louisiana Legislature increased the penalties for possession of child pornography, [3] and that with 94 counts, imposed consecutively, the defendant faced a maximum sentence of 2, 860 years. The trial court stated that, although it could find no justification for imposing a sentence below the mandatory minimum, it believed that the defendant's actions constituted a pattern of behavior that supported concurrent sentences.

         Considering the above, the trial court sentenced the defendant to ten years at hard labor, without the benefit of parole, probation, or suspension of sentence, on each count, to be served concurrently. Further, the trial court noted that the defendant would not be eligible for good time and that this had been considered by the court in determining the appropriate sentences. The court also noted that, upon release from prison, the defendant would be subject to lifetime electronic ...


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