Opinion
2022 KA 0583
11-04-2022
STATE OF LOUISIANA v. JAMES FONTENOT
Jeffrey M. Landry, Hillar C. Moore, III Stephen C. Martin Benjamin Wallace Baton Rouge, LA Attorneys for Appellee, State of Louisiana. J. Rodney Messina Janna M. Kiefer Baton Rouge, LA Attorneys for Defendant -Appellant, James Fontenot
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 11-16-0131, Honorable Beau Higginbotham, Judge Presiding
Jeffrey M. Landry, Hillar C. Moore, III Stephen C. Martin Benjamin Wallace Baton Rouge, LA Attorneys for Appellee, State of Louisiana.
J. Rodney Messina Janna M. Kiefer Baton Rouge, LA Attorneys for Defendant -Appellant, James Fontenot
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
HESTER, J.
The defendant, James Fontenot, was charged by bill of information with four counts of possession of pornography involving juveniles, violations of La. R.S, 14:81.1 (A)(1). In Counts 1 through 3, the victim was under the age of thirteen. In Count 4, the victim was under the age of seventeen. The defendant pleaded not guilty and, following a jury trial, was found guilty as charged on all counts. He filed a motion for postverdict judgment of acquittal, which was denied. On each of Counts 1, 2, and 3, the defendant was sentenced to ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On Count 4, he was sentenced to five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The trial court ordered Count 1 to run consecutively to Count 2, Count 3 to run concurrently with Counts 1 and 2, and Count 4 to run consecutively to Counts 1, 2, and 3. The defendant now appeals, designating two assignments of error. We affirm the convictions and sentences.
FACTS
In June of 2016, Special Agent Chris Masters, with the Cyber Crime Unit (CCU) of the Louisiana Attorney General's Office, was monitoring the internet activity of the defendant, who lived on Sharlo Avenue in Baton Rouge. Through his investigative software, he learned that the defendant was on BitTorrent, a peer-to-peer network, downloading known child pornography. Special Agent Masters downloaded the video of child pornography the defendant had downloaded. Portions of the downloaded file, known as the Daphne Video, were played for the jury.
Special Agent Masters learned that Investigator Bill Sellers, with the Louisiana State Police, also had an active investigation on the defendant's IP address and had similar downloads. Investigator Sellers had already prepared a subpoena for Cox Communications to learn the defendant's identity and where he lived based on his computer IP address. Subsequent to this, a search warrant was prepared and, on September 29, 2016, several law enforcement officers went to the defendant's house and seized the defendant's computers and hard drives. The items seized were a Gateway laptop computer, an Alienware laptop computer, a Western Digital My Passport external hard drive, and a Western Digital My Passport ultra external hard drive.
Trooper Malcolm Brown, with the Louisiana State Police, assisted in the search of the defendant's house. Trooper Brown testified the two external hard drives were hidden under the bed in the master bedroom.
Trooper Randy Hidalgo, with the Louisiana State Police and supervisor of the Technical Support Unit that oversees computer forensics, was qualified as an expert in "electronics forensics examination." Trooper Hidalgo forensically examined all of the devices and generated a forensic report based on his findings. Trooper Hidalgo found ten images and one video of child pornography on the Gateway laptop. On the Western Digital My Passport external hard drive, he found 1,332 images and 44 videos of child pornography.
In his case-in-chief, the defendant called Seth Hollier, the owner of an IT company with a specialty in cyber security and management and monitoring of computers. Hollier was qualified as an expert in cyber security. Hollier testified that he also examined the defendant's devices, using the same software that the Louisiana State Police used. According to Hollier, the Western Digital My Passport external hard drive had 101 viruses on it. He mentioned seeing where 40,000 photos or files were downloaded in a particular period of about two hours, and none of them were nefarious. Regarding the files of child pornography that were found on the external hard drive, Hollier explained that the defendant had used eMule (another peer-to-peer file sharing application, similar to BitTorrent), and that the eMule application had a remote access trojan (RAT) attached to it. A RAT allows full access to a computer by some unknown person, a hacker, without the owner of the computer even knowing it. Hollier was certain there was a RAT present on the external hard drive "because the hash values told me so." According to Hollier, because of the viruses on the defendant's computer, he could not say that only the owner downloaded the items found on the external hard drive. He further testified that the downloading of the files was consistent with an automated process. Thus, Hollier noted, if there were processes running on that computer, the person who owns that computer might not realize it because they are not on the computer. When asked if the 1,332 pornographic images were opened, Hollier stated that "[o]f the ones that [he] looked at," he did not see any indication inside the structure of the data to indicate those files were ever opened.
On cross-examination, Hollier indicated he began working on the defendant's case in early 2018, yet after several years, had never generated a report of his findings. Hollier indicated that he was certain the defendant's computer was compromised to the point where there was third-party access to it, but he could not say that third-party access put those files of child pornography on the defendant's computer.
The defendant did not testify.
ASSIGNMENTS OF ERROR NOS, 1 and 2
In these related assignments of error, the defendant argues the evidence was insufficient to support the four convictions. Specifically, the defendant contends that he did not knowingly possess the child pornography found in his home because he had never opened the files.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La.App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
It shall be unlawful for a person to produce, promote, advertise, distribute, possess, or possess with the intent to distribute pornography involving juveniles. La. R.S. 14:81.1(A)(1). Pornography involving juveniles is a general intent crime. See State v. Cinel, 94-0942 (La. 11/30/94), 646 So.2d 309, 316, 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 the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). Id. at 314.
The element of possession includes both "actual" and "constructive" possession. State v. Sandifer, 95-2226 (La. 9/5/96), 679 So.2d 1324, 1331. A person who is not in physical possession may have constructive possession when the contraband is under that person's dominion and control. In determining whether a defendant exercised dominion and control sufficient to constitute constructive possession, the fact finder may consider, among other factors, the defendant's knowledge of the contraband and his access to the area where the contraband is found. State v. Becnel, 2016-1297 (La.App. 1st Cir. 4/20/17), 220 So.3d 27, 30, writ denied, 2017-1023 (La. 3/9/18), 238 So.3d 451. Guilty knowledge may be inferred from the circumstances of the case. State v. Pigford, 2005-0477 (La. 2/22/06), 922 So.2d 517, 521 (per curiam). A person may be in joint possession of contraband if he willfully and knowingly shares with another the right to control the contraband. Becnel, 220 So.3d at 30-31.
The defendant herein does not deny that his computer hard drives in his home contained child pornography. He contends, rather, that the State failed to prove that he knowingly possessed child pornography. According to the defendant, as confirmed by Investigator Sellers, there is no way for law enforcement to know who is on the "other end" of the computer, downloading the pornography. While the defendant acknowledges his cybersecurity expert conceded it was the defendant's user account that was used to log into the device downloading the pornography, he notes the testimony of defense expert Hollier, who suggested that a hacker likely used a remote access trojan (RAT) to gain access to the defendant's computer. Thus, according to the defendant, as Hollier's testimony suggested, the defendant never downloaded child pornography; instead, some unknown person used the defendant's computer, unbeknownst to the defendant, to download the child pornography to the defendant's computer. This unknown person then, since he had complete access to the defendant's computer through the RAT, presumably used the defendant's computer to download (or upload) the child pornography to his own computer. The defendant notes that Trooper Hidalgo indicated that he had not checked for any kind of cyber security issues on the defendant's equipment.
The defendant further points out that on November 9, 2015, over 38,000 files, some containing child pornography, were downloaded on his computer between 4:00 a.m. and 6:00 a.m. According to the defendant, downloading such a large number of unviewed photos at such a "strange time in the morning" is not indicative of human behavior, but of the activity of an automated virus. As Hollier notes, all of these downloads were consistent with an "automated process."
The defendant also insists that, while there was child pornography on his hard drive, he never accessed these files and, as such, the State did not prove he knowingly possessed them. According to the defendant, Trooper Hidalgo could not conclude that the defendant ever viewed any of the files' contents. Finally, the defendant notes that he shares his home with his mother. He argues that joint occupancy of a residence alone is not sufficient to establish constructive possession of images on a computer, and the state must offer "additional evidence of the defendant's knowing dominion or control of the contraband," citing to Becnel, 220 So.3d at 27.
Upon review of all the evidence presented in this case, we find the State proved the defendant was in knowing possession of child pornography. The evidence established that the defendant, through a peer-to-peer network, downloaded video files of child pornography in 2016 on whatever computer he was using, likely his Gateway laptop. The Attorney General's Office tracked the transmission of these video files during this time and learned that the IP address being used to obtain these files belonged to the defendant. The IP address was tied to the physical location of the defendant's home on Sharlo Avenue in Baton Rouge.
Trooper Hidalgo was able to identify 1,332 images and 44 videos of child pornography on the Western Digital My Passport external hard drive. He found 10 images and one video of child pornography on the Gateway laptop.
The four files that were the subject of the bill of information were two images and two videos of child pornography, all found on the Western Digital My Passport external hard drive. The charge of Count 1 was for the possession of the "Daphne Video," a video of a prepubescent girl, about nine years old, posing naked and then having oral and vaginal sex with an adult male. Trooper Hidalgo's forensic examination of the Gateway laptop identified on the hard drive torrent file fragments, which was data that was carved or parsed from torrent files used to download torrents from various networks on the internet. According to Trooper Hidalgo, remnants of the Daphne Video were found in the recycle bin of the Gateway laptop. The full Daphne Video was found on the Western Digital My Passport external hard drive. The Gateway laptop had at least one USB port. When a USB device, such as an external hard drive, is attached to a USB port, the computer system will record the attachment of that device. According to Trooper Hidalgo, both Western Digital external hard drives had at some time been connected to the Gateway laptop.
Trooper Hidalgo's forensic report revealed that the source for the file path of the Daphne Video, in pertinent part, was "My Passport\$RECYCLE.BIN\... \Young Video Models - Daphne 9y #5 ... .avi." (Emphasis added). The file was created on May 17, 2015 and last accessed on May 25, 2015. The path file indicates that the file was deleted from the Western Digital My Passport external hard drive. The deletion of the file would have occurred in the recycle bin on the Gateway laptop. Thereafter, on June 21, 2016, Special Agent Masters discovered that the Daphne Video was being downloaded by a computer using the defendant's IP address. Investigator Sellers obtained a search warrant to seize and search the defendant's devices. During the on-site execution of the search warrant, Trooper Brown found the full Daphne Video, and at least 100 other files containing child pornography, on the Western Digital My Passport external hard drive. It appears, then, that the defendant downloaded the Daphne Video, deleted it about eight days later, then downloaded it again about thirteen months later.
Trooper Hidalgo indicated that the pornographic images and videos were saved in a folder named "Rob." The defendant's middle name is Robert. James Seago, who has known the defendant for about thirty years, testified he had always known the defendant to go by the name "Robbie." On cross-examination, when Trooper Hidalgo was asked why he did not check for viruses on the Western Digital hard drive or if he thought viruses on the hard drive would affect his data or research, he responded:
So,.. . the search warrant asked me to find specific things, and I found those things, and then I found them in a folder, and then I found them in a recycle bin. And most of your malwares and anti-malwares and your viruses and stuff don't create a folder with a person's name, and then delete that file, and then move that file to an external drive, because that's all in the file paths that are in there. So, that's not consistent with what a virus does that we've seen[.]
Trooper Hidalgo's forensic report indicated that hundreds of files containing child pornography were on the Western Digital My Passport external hard drive. Trooper Hidalgo transferred his report and the files to two DVDs that were submitted into evidence. These hundreds of files, with different creation dates and "last accessed" dates all had the same file path, namely, "My Passport\New Folder\Rob\." One of the videos found on the Western Digital hard drive had the file path, "My Passport\New Folder\Rob\Movies and Clips\!!! UREAL Extremly brutal RAPE 16yo screaming teen [Full illegal movie].mpg." Other files on the Western Digital hard drive had the following file paths: "My Passport\New Folder\Rob\Check\Various teen girl movies - MOTHERLESS.COM.mp4"; "My Passport\New Folder\Rob\Check\HG - Skinny young girl fucked by old man -MOTHERLESS.COMed powers.mp4"; "My Passport\New Folder\Rob\Check\Woman boy Collection\1 .avi"; and "My Passport\New Folder\Rob\y\Sandra Orlow\nude\no name\Sandra Teen Model Asleep Pantyless.avi."
The defendant, thus, created folders and subfolders on his computer to store these images and videos. This conscious effort by the defendant to save these files, particularly those with names that clearly indicated child pornographic content was sufficient to establish that he knowingly and intentionally possessed child pornography. Moreover, Trooper Hidalgo's forensic report discredits the defendant's suggestion that the State never proved these files were opened. The hundreds of pornographic files listed in the report each has a creation date and a "last accessed" date. Most of the files were last accessed from a few days up to a week after the file was created. Trooper Hidalgo indicated that, while he could not tell how many times a file had been opened, the date that the file was last accessed was the last time it was opened. While it was conceded that it was not possible to know who was at the computer screen when the file was accessed, Trooper Hidalgo further indicated that his forensic examination of the defendant's devices established that files were "accessed by that machine and that machine" brought up the image or video.
The jury found the phantom hacker theory unpersuasive and rationally concluded that the defendant had intentionally downloaded child pornography, viewed those images and videos, and stored those files on an external hard drive.The child pornography computer images and videos that were shown to the jury were found on the defendant's Western Digital My Passport external hard drive, which was in the defendant's possession. The jury's guilty verdicts were also a refutation of the defendant's suggestion that it could have been his mother who downloaded the pornography. In explaining why he arrested only the defendant, Investigator Sellers testified that the defendant's mother very rarely, if at all, used the computers. Moreover, the child pornography was located on items that were stored under the defendant's bed.
Even if the defendant had not downloaded the child pornography, he intentionally possessed it. Downloading is not an essential element of possession of pornography involving juveniles. See La. R.S. 14:81.1 (A).
Based on the testimonial and physical evidence, the jury found the defendant guilty, which was a direct refutation of the defendant's account of ignorance or lack of knowledge. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Ford, 2017-0471 (La.App. 1st Cir. 9/27/17), 232 So.3d 576, 586, writ denied. 2017-1901 (La. 4/22/19), 268 So.3d 295. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Nixon, 2017-1582 (La.App. 1st Cir. 4/13/18), 250 So.3d 273, 291, writ denied. 2018-0770 (La. 11/14/18), 256 So.3d 290. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert, denied. 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).
Particularly, faced with conflicting expert opinions, the jury was entitled to accept whichever one, in its opinion, better explained the facts of the case. See La. Code Evid. art. 702. An appellate court should not disturb the jury's choice to accept one expert's opinion unless that opinion is patently unsound. State v. Becnel, 2017-591 (La.App. 5th Cir. 6/27/18), 250 So.3d 1207, 1229.
When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis fails, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury heard all of the testimony and viewed the evidence presented at trial and found the defendant guilty. See Moten, 510 So.2d at 61. See State v. Weary, 2003-3067 (La. 4/24/06), 931 So.2d 297, 311-12, cert, denied. 549 U.S. 1062, 127 S.Ct. 682, 166L.Ed.2d 531 (2006).
After a thorough review of the record, we find the evidence supports the jury's unanimous guilty verdicts. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of four counts of possession of pornography involving juveniles. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
These assignments of error are without merit.
CONVICTIONS AND SENTENCES AFFIRMED.