STATE OF LOUISIANA NO. 22-KA-381
VERSUS FIFTH CIRCUIT
ANDRE A. BRADLEY COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 21-534, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
March 01, 2023
MARC E. JOHNSON JUDGE
Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst
AFFIRMED MEJ JGG SJW COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Monique D. Nolan Lynn Schiffman Rebecca Kehoe
COUNSEL FOR DEFENDANT/APPELLANT, ANDRE A. BRADLEY Mary Constance Hanes JOHNSON, J.
Defendant, Andre A. Bradley, appeals his 25-year sentences for his
possession of pornography involving juveniles under the age of 13 convictions
imposed in the 24th Judicial District Court, Division “N”. For the following
reasons, we affirm the convictions and sentences imposed by the trial court.
FACTS AND PROCEDURAL HISTORY
On March 3, 2021, the Jefferson Parish District Attorney filed a bill of
information charging Defendant with eight counts of pornography involving
juveniles under the age of 13. In the bill, count two was listed as being in violation
of “La. R.S. 4:81.1(E)(5)(A)” and the remaining counts were listed as being in
violation of “La. R.S. 14:81.1(E)(5)(A).” Defendant was arraigned and pleaded
not guilty to the charged offenses on March 9, 2021.
On December 3, 2021, the State amended the bill of information to nolle
prosequi counts seven and eight. The State further amended the bill of information
on December 6, 2021, correcting the statutory citation for the charged offense in
count two from “La. R.S. 4:81.1 (E)(5)(A)” to “La. R.S. 14:81.l (E)(5)(A).” The
State made those amendments by hand on the original bill of information.1
On December 6, 2021, prior to commencement of the jury trial, the trial
court considered the outstanding pretrial motions of counsel. After the pretrial
motions were disposed of, trial commenced that same day. At the one-day trial,
two State witnesses testified regarding the charged offenses.
Special Agent Randall Charles Gohn Sr. testified that in July 2020, the
National Center for Missing and Exploited Children (hereinafter referred to as
“NCMEC”)2 received a tip that an e-mail address known as “Djkiller96” was being
1 The amendments to the bill of information consisted of manually deleting counts seven and eight and correcting a typographical error in the statutory citation as to count two. 2 The NCMEC is a tip line or a clearinghouse for child exploitation operated by civilians “where the general public can call up, as well as internet or electronic service providers can provide information regarding probable crimes.”
22-KA-381 1 utilized in connection with child pornography, which was discovered and located
within a Dropbox account linked to that e-mail.3 Defendant was later determined
to be the owner of the e-mail address and the Dropbox account.
On November 4, 2020, the tip was referred to the Louisiana Bureau of
Investigation Cybercrime Unit (hereinafter referred to as “the Bureau”) for
investigation. Agent Randall Gohn, Sr., an employee of the Bureau, became
involved with the case on January 7, 2020, when he was contacted to assist in
conducting the forensic examination of any possible devices located during the
execution of a search warrant at the residence of 6826 Veterans Boulevard,
Apartment 322, which was Defendant’s residence. During the execution of the
search warrant, Agent Gohn discovered several electronic devices, including
thumb drives, external hard drives, and cellular phones, located in the bedroom of
the residence. Agent Gohn testified that he performed a “triage” of the electronic
devices, some of which revealed no child pornography content while others,
approximately five devices, required further forensic examination. The five
devices consisted of (1) an external hard drive; (2) a black dual thumb drive and
voice recorder; (3) a red thumb drive; (4) a gray thumb drive; and (5) Defendant’s
cellular phone.
Agent Gohn conducted an initial forensic examination of the five electronic
devices and discovered pornographic images and videos involving juveniles under
the age of 13, including infants and toddlers. The three thumb drives contained
individual folders with pornographic material. Additional child pornographic
materials were discovered on the five electronic devices upon further forensic
examination. Agent Gohn testified that the devices contained several images and
videos of toddlers. Agent Gohn explained that, while in the midst of executing the
3 Agent Gohn testified that he has been an expert in the field of child exploitation investigation as it relates to child pornography, child identification, and cellular and computer forensics. He also serves as a Senior Lead Instructor for the High Tech Crime Institute.
22-KA-381 2 search warrant and after Defendant was advised of his Miranda4 rights, Defendant
provided the password to access the contents of his cellular phone. Images and
videos of child pornography were discovered in the gallery of Defendant’s cellular
phone. Agent Gohn explained, “[I]n order for pictures and videos to get in the
gallery, you have to actually download those items to the phone. They can’t just
be viewed on the phone on the web. They have to reside on the phone and be
catalogued and organized in the gallery of the phone.”
Agent Gohn testified that there are millions of images and videos of child
pornography on the internet, and it is very difficult to find unless a person actually
searches for that specific content. He conceded that Defendant has not been
charged with producing or participating in the production of child pornography or
the photographing of children. Agent Gohn further agreed that Defendant had not
been accused of having knowledge of the person who recorded the productions.
Agent Gohn explained that he could neither determine who produced the
images and videos, nor identify who the adult actors were in the images and
videos. He further testified, “[Y]ou can’t just go into Google and search child
pornography. You have to be in chat groups on the dark web, if you will, and
people have to get to know you. And they have to chat with you first before they
just send you child pornography.” He further stated that child pornography would
not appear on a person’s computer as a “pop-up” advertisement, and despite his
many investigations of child pornography, it has never “pop[ped]-up” on his
computer.
Supervisory Special Agent Brian Dale Brown, employed at the Louisiana
Attorney General’s Office in the Cyber Crime Unit, who investigates internet
crimes against children, also testified. He recounted that the NCMEC became
involved in the matter against Defendant after Dropbox submitted a cyber-tip.
4 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
22-KA-381 3 Agent Brown explained that in November of 2020, he started investigating an
account with the username “Djkiller96@gmail.com,” which entailed reviewing
digital content, primarily videos, submitted by the NCMEC. Agent Brown
testified that he also reviewed images, the username, the time, and the Internet
Protocol (“IP”) address provided by Dropbox for the account associated with the
Google e-mail.5 He described the ages of the juveniles depicted and the general
content of the images as “pre-pubescent children engaged and [sic] oral, anal or
vaginal intercourse, or sexually exploited in a position to where the genitalia was
exposed.”
Agent Brown further testified that in order to identify a suspect or locate
more evidence of a crime, he prepared a search warrant for Dropbox and Google
and prepared a subpoena for AT&T. In response to the search warrant for
Dropbox, Agent Brown received a link to access 350 to 400 gigabytes6 of
information, which included catalogued video and image folders of child sexual
abuse. The content included the same images submitted to Agent Brown by the
NCMEC from the cyber-tip. Google provided several messages associated with
the Google e-mail. Agent Brown testified that he reviewed the e-mail messages
and discovered Defendant’s name and e-mail address associated with the Google
account.
After discovering that Defendant was linked to the Google e-mail account,
Agent Brown performed a search to ascertain the user’s date of birth and other
information, ran a criminal check to determine if Defendant had a criminal history,
and then applied for a search warrant for Defendant’s residence. On January 7,
5 In the search warrant for Defendant’s Dropbox account, Agent Brown attested to reviewing videos received from the NCMEC cyber-tip files of five prepubescent or under thirteen-year-old children. There were additional 55 files of other videos included in the cyber tip that showed prepubescent males and females under the age of 13 being orally, digitally, and anally raped. 6 Agent Gohn testified that a gigabyte is a data measurement unit for digital computers or media storage equal to one billion bytes or one thousand megabytes.
22-KA-381 4 2021, Agent Brown, along with Homeland Security, Jefferson Parish Sheriff’s
Office task force deputies, and other agents from his office, executed a search
warrant at Defendant’s residence. Upon execution of the search warrant,
Defendant was the only person present at the residence.
Agent Brown described Defendant’s residence as a clean, single bedroom
apartment with no furniture, except in the bedroom, with only male clothing in the
closet, and mail addressed to Defendant. Once he entered into Defendant’s
bedroom, Agent Brown discovered a laptop with a gray and a red thumb drive in it,
along with charging cables for electronic devices. Agent Brown recalled that he
also found a Western Digital external hard drive, three thumb drives, a silver
Samsung cellular phone, a video camera, and a scan disc card, all of which were
removed from the residence and brought to the forensic van for a forensic
examination. Upon forensic examination of the videos and images on the five
electronic devices – an external hard drive, three thumb drives (black, red, and
gray), and a silver Samsung cellular phone—Agent Brown testified that the content
of each electronic device contained imagery of sexual abuse of children under the
age of 13.
At some point during the execution of the search warrant, Agent Brown
recounted reading the Miranda Rights Form to Defendant, which Defendant signed
and dated. Defendant then proceeded to give a recorded statement.
In his recorded statement, Defendant admitted that he is the owner of the
email address “djkiller96@gmail.com” and that he had a Dropbox account linked
to his Google e-mail account. Defendant conceded that he has viewed child
pornography on the “dark web” while trying to locate adult pornography.
Defendant denied viewing child pornography and denied possessing any child
pornographic materials on any of the data storage devices seized from his
residence. Defendant explained that he has talked to people, on various social
22-KA-381 5 media websites, who have sent him links to pornography. In his statement,
Defendant later admitted that he has been viewing pornographic materials for the
past four to five years, and that he had several videos and images of child
pornography on his storage devices.7
Agent Brown agreed that Defendant’s charges are based on downloaded
illegal content, and Defendant has not been accused of (1) taking or participating in
the images; (2) having any knowledge of the persons in front or behind the camera;
or (3) publishing the images. In preparation for trial and for ease of publication to
the jury, Agent Brown created a PowerPoint with some of the evidence that was
collected from the Google return, the Dropbox return, the gray thumb drive, the red
thumb drive, the black thumb drive, the Samsung cell phone, and the Western
Digital hard drive, all of which were seized from Defendant’s apartment. Some of
the videos and images discovered on Defendant’s storage devices were published
to the jury at trial.
At the conclusion of the presentation of evidence, the 12-person jury
returned a unanimous verdict of guilty as charged for each of the six counts. Prior
to sentencing, on January 25, 2022, Defendant filed a Motion for the Appointment
of a Sanity Commission, which was granted by the trial court. On April 12, 2022,
Defendant filed a Motion for New Trial and a Motion for Post-Verdict Judgment of
Acquittal. The following day, on April 13, 2022, Defendant’s competency hearing
was held. At that hearing, the trial court determined that Defendant was
competent. Immediately thereafter, the trial court denied Defendant’s motions for
new trial and for post-verdict judgment of acquittal. Defendant objected to those
rulings.
7 In his recorded statement, Defendant recounted being sexually abused at the age of seven by an older male relative.
22-KA-381 6 After the motions were disposed of, the trial court proceeded with the
sentencing hearing. The trial court sentenced Defendant on each of the six counts
of pornography involving juveniles under the age of thirteen to 25 years at hard
labor without the benefit of probation, parole, or suspension of sentence. The trial
court further stated that Defendant would be given credit for all the time previously
served on those charges, and those sentences were ordered to run concurrently with
one another.
Later that same day, Defendant filed a Motion for Reconsideration of
Sentence.8 At the May 5, 2022 hearing, the trial court denied Defendant’s
reconsideration motion. Defendant objected to that ruling. On May 26, 2022,
Defendant filed a Motion for Appeal, which was granted by the trial court on
August 17, 2022. Defendant now appeals his sentences as unconstitutionally
excessive.
ASSIGNMENT OF ERROR
On appeal, Defendant alleges the trial court erred by imposing excessive 25-
year sentences for his convictions for possession of pornography involving
juveniles under the age of 13.
LAW AND ANALYSIS
On appeal, Defendant avers that his sentences, although within the statutory
limits, are excessive because the trial court failed to individualize the sentences
imposed. Defendant also contends that the trial court failed to take into
consideration that he can be rehabilitated with proper treatment such that his long
prison term serves no purpose. Lastly, Defendant argues that the trial court failed
to consider all mitigating factors, specifically, La. C.Cr.P. art. 894.1(B)(23), in that
Defendant did not realize that his criminal conduct would cause serious harm and
that no other crime, other than possession of child pornography, was shown in
8 Defendant’s motion was a generic reconsideration of sentence without specific arguments.
22-KA-381 7 Defendant’s case.
In response, the State contends that Defendant’s sentences of 25 years were
not excessive in light of the nature of the crime. The State argues that Defendant
amassed a voluminous collection of pornography involving juveniles under the age
of 13, including pornography involving toddlers and infants, in his Dropbox
account and on five electronic devices. To support its contentions, the State relies
on Special Agent Gohn’s testimony at trial, explaining that the Dropbox account
stored 400 gigabytes of files containing child pornography. The State further
emphasizes that Defendant’s download and use of child pornography re-victimizes
children and encourages and facilitates a market for the abuse as pointed out by the
trial court.
The State argues that while Defendant claims he did not intend to hurt
anyone or do anything wrong, his possession of pornography of juveniles well
under the age of 13 is reprehensible, and the nature of the crime warrants the
sentences of 25 years at hard labor on each of the six counts. The State relies on
Baker9 and Workman10 to substantiate Defendant’s sentences imposed by the trial
court. Lastly, the State emphasizes that there is no suggestion that the trial court
abused its discretion in imposing sentences of 25 years for each of the six counts,
with the sentences to run concurrently, and the record clearly supports the
sentences imposed.
April 13, 2022 Sentencing Hearing
At the April 13, 2022 hearing, Christina Bradley, Defendant’s mother, was
the sole witness to testify. Ms. Bradley requested compassion and mercy for
Defendant because an older boy, who was a family member, molested Defendant
9 State v. Baker, 51,933 (La. App. 2 Cir. 4/11/18), 247 So.3d 990, writs denied, 18-858 (La. 12/3/18), 257 So.3d 195, and 18-833 (La. 12/3/18), 257 So.3d 196. 10 State v. Workman, 14-559 (La. App. 5 Cir. 4/15/15), 170 So.3d 279, writ denied, 15-909 (La. 3/24/16), 190 So.3d 1189.
22-KA-381 8 at the age of seven; and Defendant never received any treatment or healing from
that trauma. She further apologized for not protecting Defendant from the trauma
and for her inability to discuss the trauma with him. Ms. Bradley explained that
Defendant was a victim and requested that the court give him “a chance,” instead
of taking his life with a long prison term. After being molested, Ms. Bradley
recalled Defendant became a recluse who “booby-traps” his room, so no one
comes in to do him anything. She described Defendant as a seven-year-old boy
who was robbed of his childhood, and who was mentally and emotionally unstable
because of the trauma that he endured. Ms. Bradley recounted the only reason
Defendant lived independently for six months was because she told him to do so.
After disclosing that she too was a victim of molestation, Ms. Bradley begged the
court for reduced sentences of less than ten years for Defendant.
In addition to her testimony, the trial court also considered Defendant’s
“presentencing memorandum” and Defendant’s words of remorse.11 Prior to
sentencing Defendant, the trial court stated, “Mr. Bradley, I’ve certainly taken your
mother’s testimony into consideration, as well as the uh, [m]emorandum filed on
behalf of you by your lawyer.” The trial court further explained,
[T]he Court is certainly empathetic to you for what you have, uh, had to endure, but at the same time, you more than anybody understand the impact that that type of crime has upon people, in particular, children. …And, again, in this Court’s mind, you, as a victim, more than anyone, has to be in the position to understand the horrific impact to every one of those children who were forced. None of them were there doing that, uh, consensually. They were forced into doing that. And, you, whether you’d like to believe it or not, you had a part in that, because you contributed to the fact that people make those types of videos, because you had plenty of them that you were possession. [sic]
The trial court then sentenced Defendant.
11 Defendant uttered, “I want to apologize to everyone. And just – It, it wasn’t – I didn’t – I didn’t have anything – I wasn’t trying to do anything wrong. It’s a crime, and most of all, I just want to say I’m sorry. Just, I’m sorry.”
22-KA-381 9 Motion for Reconsideration of Sentence and May 5, 2022 Hearing
In the court below, Defendant contended in his Motion for Reconsideration
of Sentence that the imposed sentences were excessive and that lower sentences
should be imposed in conformity with fairness and state and federal constitutional
standards.
At the May 5, 2022 hearing on Defendant’s Motion for Reconsideration of
Sentence, Defendant waived oral arguments and submitted on the motion. The
State argued that the trial court heard and reviewed all of the evidence presented at
trial, and the sentences imposed were appropriate and that Defendant’s request for
a reduction should be denied. In reply, Defendant contended that the trial court
heard the testimony of Defendant’s mother, recounting that he was a victim of
sexual abuse at a young age, and that the trial court should reconsider sentencing
him to a number closer to the plea offer of ten years.
At the conclusion of the hearing, the trial court denied Defendant’s motion
to reconsider the sentence. Defendant objected to that ruling. The trial court
explained the reasons for the denial, by stating:
[A]t the time of my initial sentencing gave consideration to the testimony of the Defendant’s mother who did come and testify. The Court listened to attentively to her testimony and the Court likewise took into consideration the memorandum, sentencing memorandum, filed by defense counsel. The Court did sit through the trial of this matter. I saw the countless images of pornography of children well under the age of thirteen and for the same reasons that, I articulated at the time that I sentenced the Defendant at this time [sic].
Excessive Sentences
Under La. C.Cr.P. art. 881.1, “Absent the filing of a timely written motion
for reconsideration of sentence or making of an oral objection at the sentencing
hearing, a defendant is precluded from urging on appeal any ground of objection to
the sentence.” The failure to state the specific grounds upon which the motion is
based precludes the defendant from raising those grounds on appeal. State v.
22-KA-381 10 Decay, 01-192 (La. App. 5 Cir. 9/13/01), 798 So.2d 1057, 1075, writ denied, 01-
2724 (La. 8/30/02), 823 So.2d 939. Such a failure limits a defendant to a bare
review of the sentence for unconstitutional excessiveness. State v. Carter, 07-270
(La. App. 5 Cir. 12/27/07), 976 So.2d 196, 203.
In the instant case, Defendant filed a written motion for his sentences to be
reconsidered in the lower court. However, Defendant failed to state the specific
grounds or the legal basis for a reduction in his sentences within his motion. At the
May 5, 2022 hearing, Defendant waived oral argument and submitted on the
motion; however, after the State’s responsive argument that the trial court should
deny Defendant’s motion in light of the evidence presented at trial, Defendant
submitted a rebuttal argument to the trial court. Specifically, Defendant
emphasized that the trial court heard the testimony of his mother, recounting that
Defendant was a victim of sexual abuse at a young age and Defendant should be
sentenced in a range closer to the ten years offered in connection with the plea
offer.
Presently, on appeal, for the first time, Defendant raises three grounds,
arguing that the sentences imposed are excessive. As previously discussed above,
on appeal, Defendant asserts the trial court failed (1) to individualize the sentence
imposed, (2) to take into consideration that defendant can be rehabilitated with
proper treatment such that his long prison term serves no purpose, and (3) to
consider defendant did not consider that his criminal conduct would cause serious
harm in accordance with La. C.Cr.P. art. 894.1(B)(23).12 The only ground raised in
Defendant’s motion to reconsider sentence was unconstitutional excessiveness.
Also, at the hearing on his motion, in oral argument, Defendant asserted he was a
12 This Court has held that when the specific grounds for objection to the sentences, including alleged non-compliance with La. C.Cr.P. art. 894.1, are not specifically raised in the trial court, these issues are not included in the bare review for constitutional excessiveness, and the defendant is precluded from raising these issues on appeal. State v. Clark, 19-518 (La. App. 5 Cir. 6/24/20), 296 So.3d 1281, 1291, writ denied, 21-62 (La. 3/9/21), 312 So.3d 585.
22-KA-381 11 victim of sexual abuse. Although Defendant’s first assertion in his motion is
encompassed in the review for unconstitutional excessiveness, his two remaining
contentions, grounds two and three, were not raised at the trial court level, as
required by La. C.Cr.P. art. 881.1. Therefore, Defendant is precluded from raising
those issues on appeal.13 Accordingly, he is limited to a bare review of his
sentences for unconstitutional excessiveness. See State v. Hernandez-Zuniga, 11-
378 (La. App. 5 Cir. 12/13/11), 81 So.3d 129, 134, writ denied, 12-28 (La.
4/20/12), 85 So.3d 1268.
The Eighth Amendment to the United States Constitution and Article I, §
20 of the Louisiana Constitution prohibit the imposition of excessive punishment.
State v. Pike, 18-538 (La. App. 5 Cir. 5/8/19), 273 So.3d 488, 498, writ denied, 19-
927 (La. 2/10/20), 292 So.3d 60. A sentence is considered excessive if it is grossly
disproportionate to the offense or imposes needless and purposeless pain and
suffering. Id. The trial judge is afforded broad discretion in sentencing, and a
reviewing court may not set aside a sentence for excessiveness if the record
supports the sentence imposed. La. C.Cr.P. art. 881.4(D). The sentence imposed
should not be set aside as excessive in the absence of a manifest abuse of
discretion. State v. Hankton, 20-388 (La. App. 5 Cir. 7/3/21), 325 So.3d 616, 623,
writ denied, 21-1128 (La. 12/7/21), 328 So.3d 425.
In reviewing a sentence for excessiveness, an appellate court must consider
the crime and the punishment in light of the harm to society and gauge whether the
penalty is so disproportionate as to shock its sense of justice, while recognizing the
trial court’s wide discretion. State v. Picard, 19-593 (La. App. 5 Cir. 3/17/21), 316
So.3d 129, 140, writ denied, 21-570 (La. 6/22/21), 318 So.3d 704.
13 A motion for reconsideration of sentence must set forth specific grounds upon which the motion is based. La. C.Cr.P. art. 881.1. The failure to state the specific grounds upon which a motion to reconsider is based precludes a defendant from raising issues relating to statutory errors or deficiencies, such as compliance with La. C.Cr.P. art. 894.1, and limits a defendant to a review of the sentence for constitutional excessiveness only. State v. Hunter, 11-787 (La. App. 5 Cir. 4/24/12), 94 So.3d 797, 800.
22-KA-381 12 In the case at bar, Defendant was convicted of six counts of pornography
involving juveniles under the age of 13, and he faced an increased sentencing
range under La. R.S. 14:81.1(E)(5)(a). However, that statute references La. R.S.
14:81.1(E)(1)(a), which provides the sentencing range regardless of the ages of the
juveniles involved. Thus, both La. R.S. 14:81.l (E)(1)(a) and La. R.S.
14:81.1(E)(5)(a) must be considered to review Defendant’s sentences in the instant
case.14
La. R.S. 14:81.1(E)(5)(a) states:
Whoever commits the crime of pornography involving juveniles punishable by the provisions of Paragraph (1), (2), or (3) of this Subsection when the victim is under the age of thirteen years and the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than one-half the longest term nor more than twice the longest term of imprisonment provided in Paragraph (1), (2), and (3) of this Subsection. The sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.
La. R.S. 14:81.l (E)(1)(a) provides:
Whoever intentionally possesses pornography involving juveniles shall be fined not more than fifty thousand dollars and shall be imprisoned at hard labor for not less than five years or more than twenty years, without benefit of parole, probation, or suspension of sentence.
At the time of the offenses in the instant case, the penalty for pornography
involving juveniles pursuant to La. R.S. 14:81.l (E)(1)(a), provided a sentencing
range of five to 20 years at hard labor, to be served without the benefit of parole,
probation, or suspension of sentence. Because Defendant was convicted of
pornography involving juveniles under the age of 13 and was an offender over the
age of 16, he faced an increased sentencing range under La. R.S. 14:81.1(E)(5)(a)
14 As a general rule, the law in effect at the time of the commission of a crime is determinative of the sentence the convicted must serve. State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 520 (citing State v. Wright, 384 So.2d 399, 401 (La. 1980)); State v. Henry, 17-516 (La. 5/26/17), 220 So.3d 706, 707 (citing State v. Mayeux, 01-3195 (La. 6/21/02), 820 So.2d 526, 530); State v. Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, 1239. Therefore, a trial court must sentence a defendant in accordance with the penalty provision of a criminal statute in effect at the time the crime took place. Sugasti, 820 So.2d at 520 (citing State v. Narcisse, 426 So.2d 118, 130-31 (La. 1983), cert. denied, 464 U.S. 865, 1045 S.Ct. 202, 78 L.Ed.2d 176 (1983)).
22-KA-381 13 of ten to 40 years, at hard labor, to be served without the benefit of parole,
probation, or suspension of sentence. Thus, in accordance with both La. R.S.
14:81.l (E)(1)(a) and La. R.S. 14:81.1(E)(5)(a), the penalty for pornography
involving juveniles under the age of 13 consists of a range of ten to 40 years, at
hard labor, to be served without the benefit of parole, probation, or suspension of
sentence.
Further, in the instant case, the trial court did not impose a fine as part of the
sentence. La. R.S. 14:81.1(E)(5)(a) does not mention a fine. However, that statute
references La. R.S. 14:81.1(E)(1)(a), which does require a fine of “not more than
fifty thousand dollars.”
A review of the record reveals that at the April 13, 2022 sentencing hearing,
the trial court imposed a mid-range concurrent terms of imprisonment of 25 years
at hard labor without the benefit of parole, probation, or suspension of sentence for
each of the six counts of pornography involving juveniles under the age of 13
convictions. Defendant could have received a sentence of 40 years imprisonment
for each conviction, instead of the 25 years imposed for each conviction.
Additionally, “one who intentionally possesses child pornography can be charged
on a separate count, and sentenced separately for each count upon which he or she
is convicted, for each child in each sexual performance captured within
photographs, films, videotapes, and/or other visual reproductions that comprise the
defendant’s collection of child pornography.” State v. Fussell, 06-2595 (La.
1/16/08), 974 So.2d 1223, 1238.15 Instead, Defendant received mid-range
sentences for each of the six convictions of pornography involving juveniles under
the age of 13.
15 In Fussell, supra, the Louisiana Supreme Court held that “since [d]efendant in the instant matter possessed at least sixteen computer-printed photographs of a different child in a different sexual performance, we hold that the Third Circuit Court of Appeal improperly reduced defendant’s convictions for the intentional possession of pornography involving juveniles to a single conviction.”
22-KA-381 14 Here, at trial, through Defendant’s recorded interview, the State established
that Defendant had several images and videos consisting of child pornography of
juveniles under the age of 13. The testimony of Agents Gohn and Brown also
supported that Defendant had at least 60 videos and images of pornography
involving juveniles under the age of 13 stored in his Dropbox account and 400
gigabytes that contained at least 10 videos and images of pornography involving
juveniles under the age of 13 on his personal storage devices.
As previously discussed, at sentencing, the trial court took into account the
testimony of Defendant’s mother, along with Defendant’s words of remorse and
acknowledgment of wrongful conduct. The trial court also considered the
presentence memorandum prepared by Defendant, which stated that Defendant had
no prior criminal history and a history of sexual abuse as a victim. However, the
trial court also took into consideration, at sentencing, that Defendant was in
possession of a large number of pornographic photographs of juveniles under the
age of 13. The trial court emphasized that Defendant contributed to the
dissemination of the imagery containing child sexual abuse. Agent Gohn testified
that the images and videos did not just appear on Defendant’s devices as a “pop-
up” advertisement, and Defendant actually communicated on the “dark web” with
others who would send child pornography to Defendant. The record further
confirms that once Defendant received the child pornography in the form of
images and videos, Defendant downloaded it to his personal data storage devices.
After review, we find Defendant’s sentences were at the midpoint of the
sentencing range, and the record shows an adequate factual basis for the sentences
imposed. We further determine that the sentences are not unconstitutionally
excessive, not out of proportion to the seriousness of the offenses, not purposely
and needlessly inflicting pain and suffering, and do not shock the sense of justice.
22-KA-381 15 Additionally, we find that the concurrent 25-year sentences imposed on Defendant
by the trial court were within the statutory sentencing range.
Errors Patent Review
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990). We found no errors that require corrective action.
DECREE
For the foregoing reasons, we affirm Defendant’s convictions for possession
of pornography involving juveniles under the age of 13 and the concurrent 25-year
sentences imposed for his convictions.
AFFIRMED
22-KA-381 16 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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22-KA-381 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE) MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE)
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