State v. Wright

57 So. 3d 465, 2011 La. App. LEXIS 73, 2011 WL 228611
CourtLouisiana Court of Appeal
DecidedJanuary 26, 2011
DocketNo. 45,980-KA
StatusPublished
Cited by5 cases

This text of 57 So. 3d 465 (State v. Wright) 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. Wright, 57 So. 3d 465, 2011 La. App. LEXIS 73, 2011 WL 228611 (La. Ct. App. 2011).

Opinion

BROWN, Chief Judge.

12After a two-day jury trial on November 13-14, 2006, defendant, Benjamin Wright, was convicted on 23 counts of possession of child pornography in violation of La. R.S. 14:81.1(A)(3). Thereafter, defendant was sentenced as follows: on Counts 1-12, and 23-24: concurrent terms of ten years at hard labor without benefit on each count; on Counts 14-22, concurrent terms of ten years at hard labor without benefit on each count, but to run consecutive with the cumulative sentence imposed for Counts 1-12 and 23-24, for a total sentence of 20 years, with credit for time served. Defendant now appeals, urging six assignments of error. We affirm.

Facts

On March 18, 2004, Wright was arrested pursuant to an arrest warrant for public intimidation of a child protection investigator. After defendant [awas arrested, a routine inventory search of his vehicle revealed 17 videotapes in the trunk, some of which were labeled as pornographic.

After a search warrant was obtained, closer inspection of the videotapes seized during defendant’s arrest revealed that many were pornographic, and some were of female customers changing clothes in the dressing room of defendant’s clothing store. Specifically, several videotapes contained footage of women and young girls changing clothes and in various stages of undress.1

These videotapes served as the basis for a second search warrant of defendant’s place of business for evidence of electronic devices for photographing unknown customers while in the dressing room or restrooms of the business without their consent, for tapes of past customers, and for any electronic devices used for editing, viewing and transmitting such images of unknown customers. A cursory search of a computer at the business revealed three different audio/video files of young girls involved in child pornographic acts. Electronic storage media (CDs and 3½ inch floppy disks) was found around the computer and in a private office area of the store. Also found in the back area was a piece of paper with a list of websites. All of these items were seized. A search of the dressing rooms at the store revealed that cameras had been present but had been removed.

[469]*469^Officers then obtained a search warrant for a forensic search of the computer, monitor, media and electronic storage devices located at defendant’s business, and in the search, child pornography was discovered. Specifically, 24 images were found on two of the seized 3½ inch floppy disks. Certain websites were listed on paper found in'defendant’s private office. These sites were devoted to child pornography.

On May 10, 2004, defendant was charged by bill of information with 50 counts of possession of child pornography in violation of La. R.S. 14:81.1(A)(3). Counsel was appointed to represent defendant and he was arraigned and entered a plea of not guilty that same day. On February 7, 2005, the court heard.and denied a motion to suppress evidence seized during the search of defendant’s clothing store. On September 30, 2005, defendant’s court-appointed attorney made an oral motion to withdraw as counsel which was granted the same day. Another attorney was appointed to represent defendant. On April 26, 2006, defendant filed a pro se motion to quash the indictment alleging that charges against him should be dismissed for lack of prosecution pursuant to the delays provided in La. C. Cr. P. art. 532(7). After a contradictory hearing was held on June 26, 2006, this motion was denied.

|sOn July 7, 2006, the state filed an amended bill of information charging 24 counts of possession of child pornography in violation of La. R.S. 14:81.1 (A)(3). Defendant was arraigned on the amended bill and maintained his plea of not guilty. Defendant’s second appointed attorney made a motion to withdraw which was granted. The trial court appointed another attorney to represent defendant. Trial was then set for August 7, 2006; however, the trial court granted defendant’s request for a continuance on that date, despite opposition from the state. Accordingly, trial was reset for November 13, 2006. On October 18, 2006, defendant filed another pro se motion to quash the indictment for lack of prosecution. The trial court denied this motion.

On November 13, 2006, the case proceeded to trial. That morning, defendant filed a motion for change of venue. Jury selection took five- hours; several challenges for cause were granted by the trial court. The state used 6 peremptory challenges, and the defense used its allotted 12 peremptory challenges. The trial court supported its denial of defendant’s motion to change venue with extensive reasons. Thereafter, following presentation of testimony and evidence by both sides, the jury found defendant guilty as charged on Counts 1-12 and 14-24 and not guilty on Count 13. On February 21, 2007, defendant was sentenced as stated herein above.

| ^Defendant filed a pro se post-judgment motion for acquittal, motion for a new trial, and motion to reconsider/modify sentence, all of which were denied by the trial court. Following a writ to the supreme court, the trial court granted defendant’s motion for an out-of-time appeal. State ex. rel. Wright v. State, 09-1215 (La.03/26/10), 29 So.3d 1256.

Discussion

Sufficiency of the Evidence

According to defendant, the evidence failed to show that he intentionally possessed pornography involving children under the age of 17. He claims that because the information contained on the computer disk is virtually invisible to the naked eye, and meaningless unless decoded by way of an appropriate computer device, one could quite innocently possess a ¡disk containing child pornography and be completely unaware of its criminal content.

[470]*470As it read at the time of defendant’s arrest, La. R.S. 14:81.1(A) provided in pertinent part:

La. R.S. 14:81.1. Pornography involving juveniles

A. Pornography involving juveniles is any of the following:

[[Image here]]
|7(3) The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.

Pornography involving juveniles is a general intent crime. See State v. Cinel, 94-0942 (La.11/30/94), 646 So.2d 309, cert. denied, 516 U.S. 881, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995). General criminal intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). The words “intentional possession,” taken in their usual sense, mean that the individual knowingly and voluntarily possessed the pornography, in contrast to circumstances in which a person downloads images from the internet without realizing that some images included in the download were child pornography. State v. Horton, 42,199 (La.App.2d Cir.06/20/07), 962 So.2d 459, 466, writ denied, 07-1819 (La.01/25/08), 973 So.2d 755.

La. R.S. 14:81.1(E)(1), at the time of defendant’s arrest, provided that:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Of Louisiana v. Randall K. Sturdivant
Louisiana Court of Appeal, 2024
Benjamin Wright v. Sandy McCain, Warden
703 F. App'x 281 (Fifth Circuit, 2017)
State v. Jack
224 So. 3d 492 (Louisiana Court of Appeal, 2017)
State v. Cooley
165 So. 3d 1237 (Louisiana Court of Appeal, 2015)
State of Louisiana v. Bengy R. Cooley
Louisiana Court of Appeal, 2015
State v. Moore
134 So. 3d 1265 (Louisiana Court of Appeal, 2014)
State of Louisiana v. Ronald Millard Irby
Louisiana Court of Appeal, 2014

Cite This Page — Counsel Stack

Bluebook (online)
57 So. 3d 465, 2011 La. App. LEXIS 73, 2011 WL 228611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wright-lactapp-2011.