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State v. Pittman

Court of Appeals of Louisiana, Fourth Circuit

April 3, 2019

STATE OF LOUISIANA
v.
DAN C. PITTMAN

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 528-092, SECTION "K" Honorable Arthur Hunter, Judge

          LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY ORLEANS PARISH SCOTT G. VINCENT ASSISSANT DISTRICT ATTORNEY IRENA ZAJICKOVA ASSISTANT DISTRICT ATTORNEY COUNSEL FOR STATE/APPELLEE

          CHRISTOPHER A. ABERLE LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins

          JAMES F. MCKAY, III CHIEF JUDGE

         STATEMENT OF CASE

         The defendant, Dan Pittman, appeals the judgment of the district court, finding him guilty of ten counts of possession of pornography involving juveniles in violation of La. R.S. 14:81.1. For the reasons that follow, we affirm his conviction and sentence.

         On February 5, 2016, the State filed a bill of information charging defendant, Dan C. Pittman, with eighty-four counts of illegal possession of pornography involving juveniles under the age of thirteen when the offender is seventeen years of age or older, violations of La. R.S. 14:81.1(E)(5)(a). On February 23, 2016, the defendant appeared for arraignment and entered a plea of not guilty on all counts.

         On March 14, 2016, the defendant filed an omnibus motion for inter alia, suppression of statements and for a preliminary examination. The court held hearings on defendant's motions on April 20, 2017, and May 26, 2017, and denied the defendant's suppression motion and found probable cause on only ten of the charges. The defendant waived his right to a trial by jury and elected to have a judge trial on June 12, 2017. On February 5, 2018, the State tried the defendant on the first twenty counts contained in the bill of information. The same day, the court found defendant guilty on ten counts and not guilty on ten counts.[1]

         On March 6, 2018, the State entered a nolle prosequi on each of the sixty-four remaining charges contained in the bill of information. On the same date, the defendant filed motions for a new trial and post-verdict judgment of acquittal, which the court denied. The defendant also filed a motion for a downward departure from the statutory minimum sentence, which pursuant to La. R.S.14:81.1 is ten to forty years, arguing that this defendant was exceptional. After reviewing the transcript of the March 6, 2018 sentencing hearing, although the matter was argued, the court failed to grant or deny the motion on the record. Instead, the court proceeded to sentence the defendant to thirteen years on each count of the ten counts for which the defendant was found guilty to run concurrently. By immediately sentencing the defendant, the court implicitly denied the defendant's motion for downward departure from the statutory minimum.

         Immediately after sentencing, counsel for the defendant expressed an objection; the basis for this objection is unclear. Despite entering this contemporaneous objection, the defendant failed to seek review in this appeal of his sentence and the denial of his motion for downward departure from minimum sentence. Therefore, although the defendant arguably presented a plausible argument for a downward departure from the statutory minimum sentence, and we consider his sentence to be harsh under the facts of this case, we are unable to address those issues on appeal.

         STATEMENT OF FACT

         Louis Ratcliff testified that he was employed as "an investigator with the Louisiana Attorney General's Office, Cyber Crime Unit" in March of 2015, and assigned to investigate child exploitation and human trafficking.[2]One such investigation led to the arrest of the defendant for "possession/uploading child pornographic images to the internet, a Twitter account." Detective Ratcliff further testified that Twitter had reported to the National Center for Missing and Exploited Children ("NCMEC") that one of its users had uploaded child pornography and that the internet protocol ("IP") address was determined to have come from Louisiana. The complaint contained approximately eighty images, discovered in multiple folders, of children aged eight to twelve posing nude and performing sexual acts. The folders also contained images of bestiality and animated representations of child pornography.

         In response to a subpoena, AT&T was able to determine from the Twitter user's login information and IP addresses associated with the uploads that the account belonged to the defendant. Detective Ratcliff testified that he applied for a search warrant and began surveilling defendant's home located on Arts Street in New Orleans. On September 9, 2015, Detective Ratcliff executed the search warrant accompanied by several federal agents and Louisiana police officers. He observed two individuals sitting on the front porch and learned that they were the defendant's aunt and uncle and that they owned the home. They told the officers that the defendant was at the Delgado college campus in Gretna, and they directed the officers to the defendant's bedroom. Once the defendant returned to the residence (accompanied by police officers), he signed a waiver of rights form and agreed to speak to the investigators.

         On cross-examination, Detective Ratcliff testified that the defendant was cooperative with the investigation and provided his passcodes to a "Red Eagle cell phone." The defendant initially told the investigators during the search that he was not aware of any child pornography located on any of his electronic equipment, but stated that he downloaded several large "zip files" containing hundreds of various pornographic images which included adult, animal, and "hentai" pornography[3]. The defendant admitted that he observed several child pornographic photos among the various images but he explained to the officers that he began to delete them if and when he came across them. He subsequently admitted, however, that, at some point, he stopped deleting the child pornography.

         Detective Ratcliff testified that he did not perform a search of the defendant's computer to determine what, if any, specific search terms the defendant used when searching for internet pornography. He also admitted that a search of two of the defendant's laptop computers and two external hard drives, as well as a box of CDs and DVDs, revealed no child pornographic files. The only child pornographic images recovered during the search were located on the defendant's "Evo" cell phone. On re-direct examination, Detective Ratcliff confirmed that the defendant had admitted he was aware that he was in possession of several images containing child pornography, that he knew it was illegal to possess them, and that he chose not to delete them.

         Thomas Ferguson testified that he was employed with the Louisiana Attorney General's Office in September and October of 2015, and was stipulated as an expert in computer forensics. Mr. Ferguson testified that he analyzed the defendant's laptops, hard drives and cell phones, and discovered twenty images of what he believed was "pornography involving juveniles" on one of the defendant's cell phones. In his report, Mr. Ferguson indicated that he discovered images number one, and numbers three through twenty on a Secured Digital ("SD") memory card (that had been inside the cell phone) in a folder labeled "pictures," under a sub-heading labeled "Twitter." He located image number two on the same S.D. card in a folder labeled "downloads." He further testified that files twelve and eighteen were photographs of the same child, who had been positively identified as a NCMEC victim, and had been flagged by Twitter in their initial complaint. Each of the illegal files appeared to have been created on separate dates ranging from January to February of 2015.[4]

         Mr. Ferguson testified that he performed an analysis of the Twitter account associated with defendant's IP address and user login information and discovered a conversation with another Twitter user which discussed shared "interests" and exchanged photographs.[5] Among the photos the defendant contributed were images number nineteen and one that had been flagged by Twitter as an NCMEC victim under the age of thirteen. In exchange, he received a photo of a nude "young male." Mr. Ferguson also testified that, according to Twitter's records, the Twitter account associated with the defendant's IP address had been opened on December 31, 2014, which coincided with the earliest dated pornographic images discovered in the "Twitter" folder on the S.D. memory card discovered in the defendant's cell phone.

         Mr. Ferguson testified that he sent the twenty images of suspected child pornography discovered on the defendant's cell phone to NCMEC for identification purposes. NCMEC was able to positively identify victims under the age of thirteen in ten of the recovered images. Mr. Ferguson stated it was his expert opinion that, although the identities of the others in the remaining ten photographs were unknown, he was confident that they were also of children under the age of thirteen. According to Mr. Ferguson, a remote user could have potentially hacked into a defendant's twitter account; however, it would have been unlikely that a remote user would have the same IP address as the defendant when utilizing the account, nor would a remote user have access to the photographs contained on the defendant's personal cell phone to upload them into the account.

         On cross-examination, Mr. Ferguson admitted that the defendant's two hard drives, two laptops and box of CDs and DVDs which he examined did not contain any images of suspected child pornography, and a review of the defendant's internet history revealed no specific searches for child pornography. He also stated that the S.D. memory card that contained the twenty images of children also contained over 500 pornographic images that did not involve children. On redirect examination, Mr. Ferguson testified his analysis of the defendant's other electronic equipment (hard drives and laptops) appeared to contain many pornographic photographs involving minors, but he had not flagged them because they did not appear to Mr. Ferguson to have been under the age of thirteen. He also had not flagged the animated representations of child pornography.

         In the defendant's case-in-chief, the defendant testified on his own behalf. He stated that he was taking welding classes at Delgado when the police arrested him on September 9, 2015. He denied that he ever "intentionally…purposefully…[or] deliberately" possessed any child pornography. He admitted that he did search for bestiality and animated pornography he called "hantai," but insisted he only searched for animated representations of adults, not children. The defendant testified that he would search for "anime," "bukkake," and "hentai," and would download large zip files containing thousands of pornographic images, but did not intend to possess the images of child pornography also contained therein. He explained that when he browsed through the zip folders, the files were labeled numerically and he could not see the images unless he opened each file individually.

         The defendant recalled telling the investigating officers that he was aware that he had possessed images of child pornography, but that he had been deleting them because he "did not want them on [his] device" or "be associated with that." He further explained that he would manually transfer the downloaded images from his computer to his cell phone, but that somehow he apparently carelessly/accidentally included the child pornography with the manual transfers of the other files, ...


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