State v. Pittman

267 So. 3d 672
CourtLouisiana Court of Appeal
DecidedApril 3, 2019
DocketNO. 2018-KA-0821
StatusPublished
Cited by1 cases

This text of 267 So. 3d 672 (State v. Pittman) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pittman, 267 So. 3d 672 (La. Ct. App. 2019).

Opinion

JAMES F. MCKAY III, CHIEF JUDGE

*674STATEMENT 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 *675to 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" pornography3 . 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.

*676Thomas 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 SD 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.

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Bluebook (online)
267 So. 3d 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pittman-lactapp-2019.