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State v. Mischler

Court of Appeals of Louisiana, First Circuit

May 31, 2019


          Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany, Louisiana Docket Number 553758 Honorable August J. Hand, Judge Presiding

          Warren L. Montgomery Matthew Caplan Counsel for Appellee, State of Louisiana

          Gwendolyn Brown Baton Rouge, LA Counsel for Defendant/Appellant, Dennis Charles Mischler

          David F. Gremillion New Orleans, LA Dennis Charles Mischler Angola, LA Pro Se


          WHIPPLE, C.J.

         Defendant, Dennis Mischler, was charged by bill of information with oral sexual battery, violations of LSA-R.S. 14:43.3 (counts one and two), molestation of a juvenile, a violation of LSA-R.S. 14:81.2 (count three), and possession of pornography involving juveniles, a violation of LSA-R.S. l4;8l.l[1] (counts four through fifty-seven). Shortly thereafter, the State amended counts four through fifty-seven to more specifically allege possession of pornography involving juveniles under the age of thirteen. He pled not guilty to both bills. After a trial by jury, defendant was found guilty as charged on the first thirty-two counts. For the remaining twenty-five counts, the jury found defendant guilty of the lesser-included offense of pornography involving juveniles under the age of seventeen. The trial court imposed concurrent terms of ten, ten, and fifteen years imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence on the first three counts. Those terms were ordered to run consecutive to twenty-nine concurrent terms of forty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence and twenty-five concurrent terms of fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The terms for pornography involving juveniles were all to run concurrently to each other. Defendant now appeals. For the following reasons, we affirm defendant's convictions and sentences.


         Following complaints to the National Center for Missing and Exploited Children, in October 2010 the United States Postal Inspector and Toronto Police Service conducted an investigation into a Canadian movie studio alternately called the "Toronto Company" and "Azov Films." The investigation revealed the company was producing and distributing child pornography. A search warrant was executed and the company's business records were recovered, including customer names and shipping addresses. Defendant's name, physical address, and email address were found in company records showing multiple purchases of child erotica[2] and child pornography billed and shipped to defendant. A postal inspector then conducted a forensic investigation to confirm defendant was the person actually accessing the company's website. Ultimately, the inspector's investigation also determined that defendant's email address was used to set up an account on a website known for child pornography exchange. Further investigation revealed defendant had been implicated in at least two formal allegations of child sex offenses, and he was also a known "educational worker." Having developed this information, a local postal inspector, with the assistance of the St. Tammany Parish Sheriffs Office, obtained a search warrant for defendant's residence.

         On May 29, 2014, upon execution of the search warrant, law enforcement officers recovered from defendant's bedroom a large amount of physical and electronic child erotica and child pornography that exclusively featured juvenile boys, in addition to items matching those listed as sold to defendant by the "Toronto Company." Specifically, there were about 5, 000 images[3] and 26 videos found on two thumb drives located in a nightstand next to defendant's bed. Some of the files had been accessed as recently as three to fifteen days before the search was conducted. Files had been created on the thumb drives over the course of five- and-a-half years. The creation dates, however, pertained to when the files were created on the thumb drives, not when the original image or video had been generated. Periods of relative inactivity on the thumb drive roughly corresponded with defendant's claimed medical issues that put him in repeated hospital care. The State also introduced testimony for demonstrative purposes, and over defendant's objection, about two videos that defendant was shown as ordering from Azov, but which were not physically found in his residence during the search.

         Defendant, who was home at the time of the search, and after having voluntarily signed a waiver of his Miranda[4] rights, explained the child pornography was not his, that he had "been hacked on," and that he had caught "William" "seeing things on that computer before[.]" Defendant claimed "William" had put the photos on the thumb drives. After ascertaining "William" was W.G., [5]defendant's nephew and victim, investigators interviewed him and obtained names of other possible victims, including J.S. and A.E. Subsequent police interviews with witnesses revealed victims M.M., G.W., [6] and A.P. Further, following media coverage of the story, two more victims, S.L. and J.B., came forward. R.L., the final victim to testify, was involved in the only prior allegation against defendant to go to trial.

         J.S., 25 years old at the time of trial, testified that defendant is his great-uncle. J.S. described how he would frequently go to defendant's house in New Orleans when he was about 11 years old and continued to do so later in St. Tammany Parish. J.S. testified in detail that while at defendant's house in New Orleans, defendant, unbidden, got into a shower with him and began to soap J.S.'s genitals with his bare hands. J.S. explained that after Hurricane Katrina, while defendant was living in St. Tammany Parish in a FEMA trailer, defendant would give him and other boys gifts and take them to the movies "[a]ny time [they] wanted to." During one visit to defendant's trailer, J.S. testified that defendant "performed oral pleasure on a sensitive area" while J.S.'s friend was out at the store and only stopped upon the friend's return. During his testimony at trial, however, J.S. said he did not "know the specifics" of that event.

         J.S. described a later incident, still within a year of Katrina, where defendant took him to a hotel and again performed oral sex on him. On that occasion, defendant also attempted to anally penetrate J.S., but stopped when J.S. told him to stop. Defendant characterized his behavior to J.S. as being "a way of expressing love." According to J.S., defendant had a desktop computer that J.S., his friends, and defendant's family could use at his house, but that defendant had a password-protected laptop that no one else was ever allowed to use. J.S. conceded he had done some prison time for felony possession with intent to distribute marijuana and also admitted that he had only recently been released from prison. J.S. also had stolen money from defendant "a couple of times." Moreover, J.S. testified that he told no one of the abuse until the prosecutor approached him to talk about it in 2014. J.S. also was aware that defendant's house had been burglarized in the month before defendant was arrested. The State presented prison records indicating that, among other periods, J.S. was incarcerated between December 20, 2013 and July 14, 2014.

         Defendant stated that up until the allegations for which he was then being tried, he had a "wonderful" relationship with J.S. Defendant denied ever touching J.S. in the shower in New Orleans, contended that J.S. was never alone with him in his St. Tammany FEMA trailer and said that he never took J.S. alone to a hotel off U.S. Hwy. 190. He acknowledged that J.S. had stolen from him.

         S.L. related his experience as a Boy Scout with defendant, then a scout leader, nearly 40 years prior. At a scouting event, S.L., who was then 14 years old, was housed in a tent with defendant, who was 28 years old at the time. One evening, after defendant had pushed the bunks in the tent closer together, defendant took S.L.'s hand and placed it on defendant's penis three different times. S.L. first attempted to tell a 15 or 16-year-old about the incident, but was told by him "[d]on't say anything[, ]" and "[y]ou'll get us all in trouble." The next day, S.L. was able to tell his father, a DEA agent. After no action was taken by the camp directors, S.L. and his father notified the local Sheriffs Department. Although defendant was initially arrested at the camp, the District Attorney eventually chose to not prosecute the case. Thirty years later, S.L. saw a news story about the allegations against defendant and chose to come forward with his own story.

         Defendant testified at trial and reaffirmed he had been "found innocent of all of those charges." Defendant contended that S.L. had been previously caught with another staff member in bed, who was fired on the spot. He denied knowing S.L. would be in defendant's tent, and claimed that S.L. was mad at him because the staff member had been fired.

         A.E., also a relative of defendant's, testified about an occasion when he was six or seven years old and spent the night with defendant at his home in New Orleans. A.E. was taking a bath, and defendant entered the bathroom asking if A.E. needed help. Defendant then used his bare hands to touch A.E.'s genitals under the pretense of washing him. A.E. also recalled that he would sit on defendant's lap, and defendant would place his hand on A.E.'s crotch. Defendant denied ever groping A.E. in the shower and stated that A.E. was infrequently at his house.

         A.P., another family member of both J.S. and defendant, testified about time spent at defendant's home in New Orleans, which he confirmed was "a gathering point" for the family. A.P. explained that defendant purchased him clothes, shoes, and toys because his family was financially troubled. A.P. reported that he noticed defendant would be "pacing back and forth" in front of the bathroom while he showered. When A.P. was 10 or 11 years old, defendant would "rub the backside or the front side of his hand would rub up against the crack of [A.P.'s] butt." A.P. also said defendant would give him and his underage male family members alcohol to drink. During at least one of those nights, when A.P. was around 12 or 13 years old, defendant performed oral sex on A.P. and had A.P. engage in anal sex with him. Following one incident, defendant asked A.P. if he had enjoyed the night before, and defendant said to him, "You're either gay or you're not. There's no in between" and that defendant "was very happy about it."

         Defendant said he caught A.P., J.S., and W.G. smoking marijuana in his house, and he reprimanded them. He denied ever giving A.P. alcohol or engaging in sex acts with him.

         W.G., J.S.'s half-brother, was 27 years old at the time of his testimony at defendant's trial. W.G. described defendant as the "patriarch" of the family and stated that his home in New Orleans was the "family home," where holidays and summer vacations would be spent. During one such trip, when W.G. was nine years old, he and defendant were scrolling through photos on defendant's password-protected computer when a photo of a naked boy briefly popped up. The next evening, after W.G. found the photos again on the computer, defendant woke up, and began fondling and performing oral sex on W.G. W.G. said over his lifetime, defendant had engaged in sexual activities such as oral sex, masturbation, and anal sex with him more than ten times. In another evening of drinking with defendant, A.P. and W.G. engaged in sex acts with each other, with defendant eventually joining them. W.G. testified that he witnessed defendant engaging in oral and anal sex with A.P. The sexual activities with defendant stopped when W.G. was about 16 years old, but he was aware that some occurred in St. Tammany Parish.

         W.G. stated that he had never made any purchases on defendant's computer or with defendant's credit card and that defendant's computer was "locked down tight." W.G. also stated that he remembered seeing several thumb drives near defendant's computer and that defendant had once told him if defendant died, W.G. was to destroy them. W.G. acknowledged and described his five misdemeanor convictions for the jury. According to W.G., defendant would purchase alcohol and cigarettes for him and other young male acquaintances, if asked. The State presented jail records indicating W.G. was incarcerated or under close State supervision from April 30, 2012 until April 1, 2015. Among other periods within that span, W.G. was in jail from May 16, 2014 to June 12, 2014.

         Defendant described a more tumultuous relationship, where W.G. said he hated defendant because of a financial transaction gone wrong between defendant and his sister, W.G.'s mother. He claimed W.G. had stolen from him. He denied any kind of sexual relationship with W.G. and contested the dates W.G. lived at his house. Defendant claimed he never allowed alcohol in his house due to his brother being killed by a drunk driver. Defendant explained his computer was not password-protected until after a break-in in 2014, shortly before the search warrant was carried out on his house. Defendant's house was open to "a lot of people who [he] didn't know[.]"

         G.W., who was about 25 years old at the time of trial, testified about the time period when he lived in Arkansas and his family hosted evacuees from Louisiana following Hurricane Katrina. Then 12 years old, G.W. shared his bedroom with defendant during defendant's time in Arkansas. G.W. remembered defendant bringing a laptop with him on which they, and sometimes others, would watch movies together. Defendant would sit uncomfortably close to G.W., sometimes placing a hand on G.W.'s leg. On one occasion, defendant placed his hand on G.W.'s genitals on the outside of G.W.'s shorts. A couple of days after the defendant and his family left G. W.'s home, G.W. told his mother, who then helped him report the incident to police. However, the case ultimately was never prosecuted.

         Defendant suggested that he bought clothing for G.W.'s family. Defendant said G.W. stayed in another house while he was in Arkansas, that G.W. and his friends watched movies without him, and that he was never alone with G.W. Defendant said the case was dismissed because he "wasn't there." However, defendant later admitted he was "assigned to sleep" in G.W.'s room.

         R.L., who was 42 years old at the time of trial, testified regarding his interactions with defendant in fifth grade, when defendant taught math at a public school in New Orleans. One day, while helping then 12-year-old R.L. alone at his desk, defendant began to rub R.L.'s inner leg and moved his hand to R.L.'s testicles. R.L. told his parents, and although the case went to a bench trial, defendant was found not guilty. R.L. related that he had two prior misdemeanor convictions for DUI and purse snatching.

         Defendant alleged that R.L. was actually being molested by his father and claimed that he attempted to intervene to help R.L. The result of that attempted intervention, defendant posited, was the unfounded accusation against himself. Defendant testified that with the way the classroom was set up, he could not have touched R.L. without everyone else in the classroom seeing, implying they were never alone.

         J.B., who was 59 years old at trial, testified regarding his experience with defendant while in Boy Scouts. Defendant was an assistant Scoutmaster in J.B.'s troop. J.B. recounted one evening where the defendant, then 21 years old, slept between J.B., who was 13 years old, and another scout in a tent. While in the tent, defendant reached down into J.B.'s pants and began to grab and manipulate J.B.'s penis with his hand. On another occasion, during an overnight visit by defendant to J.B.'s home when he was 14 years old, J.B. woke up to defendant performing oral sex on him. J.B. was prompted to come forward after hearing a report of defendant's arrest on the instant charges.

         Defendant claimed that a storm happened on the night of the alleged incident and that the storm kept him awake all night. He denied ever sleeping in a tent with "any child" or sleeping at J.B.'s home.

         M.M., [7] who was 50 years old at trial, is defendant's nephew and godchild. M.M. described defendant as the patriarch of the family, who would at times provide financial assistance to other family members. M.M. testified that when he was about three years old, defendant took him into a room at a family home and put his penis through M.M.'s thighs from behind, but that there was no penetration. Later, after M.M. began living with defendant, defendant and defendant's brother would perform oral or anal sex on M.M. "two times a week or more," totaling "over a hundred times," until M.M. moved out at the age of 13. M.M. recounted how defendant made him swallow his ejaculate on each occasion of oral sex and how painful the anal sex was every time. Defendant told M.M. that if he told anyone, no one would believe him and that he would end up going to a boys home and would never see his mother again. M.M. testified he told no one until he disclosed the past events to his first wife, after he was having issues with alcohol and anger. Several years later, when meeting with defendant in a New Orleans restaurant, defendant confessed to both M.M. and his first wife that he had perpetrated the abuse, and that it was his "way of showing love" and "the only way he understood to show love." Defendant soon thereafter gave M.M. money to pay for therapy. M.M. admitted to three misdemeanor convictions.

         Defendant admitted that he saw M.M. frequently as a child. Defendant claimed he did not hear of M.M.'s allegations until 2015, in a recording made subsequent to M.M. coming forward. He acknowledged that M.M. had once borrowed $1, 500.00 from him and that M.M.'s ex-wife had once asked him for $400.00. He ...

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