Opinion
NO. 23-KA-149
12-20-2023
STATE of Louisiana v. Jagon ELDRIDGE
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Juliet L. Clark, Seth W. Shute, Piper Didier COUNSEL FOR DEFENDANT/APPELLANT, JAGON ELDRIDGE, Sherry A. Watters, New Orleans
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 18-3462, DIVISION "N", HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Juliet L. Clark, Seth W. Shute, Piper Didier
COUNSEL FOR DEFENDANT/APPELLANT, JAGON ELDRIDGE, Sherry A. Watters, New Orleans
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
WINDHORST, J.
1Defendant, Jagon Eldridge, appeals his convictions and sentences for eight counts of possession of pornography involving juveniles under the age of thirteen. For the following reasons, we affirm defendant’s convictions and sentences.
PROCEDURAL HISTORY
On November 20, 2019, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Jagon Eldridge, with eight counts of distribution of pornography involving juveniles under the age of thirteen, in violation of La. R.S. 14:81.1(E)(5)(a), committed in February and March 2017 and one count of production of pornography involving juveniles where the victim was under the age of thirteen, in violation of La. R.S. 14:81.1(E)(5)(B), between April 2015 and February 2017. Defendant pled not guilty.
The State amended the bill of information multiple times and ultimately charged defendant with eight counts of possession of pornography involving juveniles under the age of thirteen, in violation of La. R.S. 14:81.1 E(5)(a), committed in February and March 2017.
On May 26, 2022, the State filed a notice of intent to introduce evidence under La. C.E. arts. 412.2 and/or 404 B, stating that it intended to introduce evidence of defendant’s downloading of child pornography over numerous years. After a hearing, the trial court granted the State’s motion to introduce the evidence of other crimes.
On November 2, 2022, defendant filed an emergency motion for a 719 report, seeking a report from the State’s expert, Special Agent David Ferris. In the motion, defendant alleged that the investigative reports the State had provided relative to Agent Ferris’ investigation did not comply with La. C.Cr.P. art. 719. Defendant 2asserted he was unable to "figure out what files are going to be used for each count." After a hearing on November 3, 2022, the trial court denied defendant’s emergency motion for a 719 report.
In essence, La. C.Cr.P. art. 719 requires the state, upon motion, to provide a report setting forth its expert’s opinion, reasoning, and a list of materials he examined.
Trial commenced on November 7, 2022. On November 9, 2022, the twelve-person jury returned unanimous verdicts of guilty as charged on all eight counts. On November 16, 2022, the defense filed a motion for new trial. After a hearing on November 17, 2022, the trial court denied the motion for new trial.
On December 1, 2022, the trial court sentenced defendant to twenty-five years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on each of the eight counts. The trial court ordered the sentences to run concurrently with one another. Defendant objected to the sentences and made an oral motion to reconsider the sentences, which the trial court denied. Defendant then filed a motion for appeal, which the trial court granted.
EVIDENCE
The child pornography charges against defendant initiated through an investigation using the peer-to-peer ("P2P") network conducted by Agent David Ferris, a Supervisory Special Agent over the Cyber Crimes Unit of the Louisiana Bureau of Investigations and Louisiana’s Internet Crimes Against Children Task Force Commander. Agent Ferris, who was accepted as an expert in online child exploitation investigations, testified that law enforcement focuses its online child pornography investigations on internet protocol addresses ("IP addresses") that have been flagged as previously seen sharing child pornography. In 2017, Agent Ferris identified defendant through a P2P network investigation as having shared child pornography and child sexual abuse material.
Agent Ferris coordinates local, state, and federal law enforcement investigations of child exploitation online, and has participated in the investigation of thousands of these types of cases over the past 15 years.
3At trial, Agent Ferris explained that individuals often use P2P networks to share and download pornography because the user does not have to create a user name or an account, providing a false sense of anonymity. Because a P2P network does not require a user name or an account, a user can quickly search for and download material. A P2P network user is identified by an IP address, which identifies the location of an electronic device’s connection to the internet.
Agent Ferris used a power point presentation that he prepared to explain the P2P network and the process of downloading material to the jury.
Agent Ferris testified that between February 16, 2017 and March 10, 2017, he conducted an undercover internet operation involving child pornography using a law enforcement program referred to as "Torrential Downpour." This program allows law enforcement to connect to targeted individuals downloading child pornography. During this undercover operation, special agents viewed a user with the IP address "68.11.41.127" with files/folders suggestive of child pornography. Agent Ferris testified that, upon connecting with the IP address "68.11.41.127," this IP address shared child pornography with him 57 times and he downloaded child pornography from it approximately 20 separate times. At trial, the State showed the eight videos that Agent Ferris viewed and downloaded, in whole or in part, on the dates identified in the bill of information: February 16, February 17, February 25, March 2, March 6, March 7, March 9, and March 10, 2017. Agent Ferris testified that the videos displayed the rape and sexual abuse of juveniles well under the age of thirteen.
Agent Ferris explained that to download child pornography from a Torrent network, the user has to first go through the process of searching and importing a Torrent file. Once the network is downloaded, a user may share a file with someone else, but only if the file is on the user’s computer or electronic device. He explained that a user cannot share a file unless that user possesses the file on his computer. Agent Ferris also testified that child pornography files are usually identifiable from 4their titles because their titles typically consist of a short description of the file contents and contain search terms indicative of child pornography. Agent Ferris identified examples of keywords used to reference child pornography, such as the acronym "PTHC" for pre-teen hard core, "CP’ for child porn, and the phrase "cheese pizza" for child porn. On the P2P network, the user can view the file description and the "sharing host," which displays the IP address of the individual offering to share the file.
An examples of a description was "five year old does this, ten year old does that."
Because he obtained child pornography from the IP address "68.11.41.127" on multiple occasions, Agent Ferris issued a subpoena to Cox Communications to request the subscriber information for the date range during which the downloads occurred. Cox responded informing the police that defendant, Jagon Eldridge, was the owner of the IP address, and provided the home address associated with defendant’s IP address, 546 Avenue G in Westwego, Louisiana. Based on this information from Cox, Agent Ferris obtained a search warrant for defendant’s residence.
During the execution of the search warrant, the police located multiple electronic devices in defendant’s residence, in particular in his bedroom that he shared with his wife, the living room area, and in a backyard shed, which appeared to be a "man cave" and "recording studio." Upon finding the electronic devices at the defendant’s residence, the police conducted a "preview" of the devices and found evidence that P2P software had been utilized on some of the devices. The devices were brought to the lab for a full forensic exam because a full forensic exam would provide more detailed information of an electronic device’s contents. Although the forensic exam did not reveal the images and the videos shared with Agent Ferris from defendant’s IP address in 2017, the exam revealed other child pornography.
5With regard to the fact that the police were unable to locate the child pornography shared in 2017, Agent Ferris testified that the images and videos could have been deleted and overwritten, or that the material could have been missed during the search. He also stated that there was one electronic device, a Mac AirPro, that the forensic examiners were unable to access. Agent Ferris reiterated that the child pornography files could not have been shared with him from that IP address unless those files had "resided behind that IP address" on the date and time he downloaded them. Agent Ferris testified that it was not uncommon in these types of cases to find individuals who had deleted these types of files from their devices.
Agent Ferris also discussed that it was highly unlikely that defendant was searching for adult pornography and accidentally found child pornography, or that defendant did not know the files contained child pornography because (1) the file names included references to child pornography; and (2) the child pornography files were viewed numerous times, were being downloaded, and were shared on the P2P network. Agent Ferris further explained that there was evidence defendant had been downloading child pornography over several years and that it was a pattern of behavior.
Jerome Johnson, a digital forensic examiner for the Louisiana Attorney General’s Office, testified at trial regarding his forensic analysis of the electronic devices taken from defendant’s residence. Mr. Johnson prepared two reports: (1) the first report reflected his examination of a Compaq computer and a Western Digital hard drive; and (2) the second report reflected his examination of an Iomega hard drive. Mr. Johnson was unable to access a fourth seized device, which was a password protected MacBook Air computer. During his examination, Mr. Johnson searched for child pornography on defendant’s devices using the forensic tool "AXIOM Process." To perform the search, he explained that he used keywords that were pertinent to the case and to child pornography. The following terms produced 6the subsequent number of hits: (1) "preteen" - 1,227; (2) "Lolita" - 1,729; and (3) "Ray Gold" - 847.
Mr. Johnson did not locate child pornography specifically related to the charges at issue in this case, but he testified that he found other child pornography videos on one of the hard drives of defendant’s electronic devices under the user "Jagon." Mr. Johnson identified the titles of the three specific videos as follows: (1) "PTHC, Pedo land, fry fam, nine-year-old Lisak girl masturbates" (dated May 2010); (2) "PTHC, pedophilia, nine-year-old abuse kids f***ing rape Latin"; (3) "PTHC, pedo, fry fam, twins, little girl new."
Mr. Johnson also testified regarding a "jump list" found on defendant’s electronic devices under the user "Jagon." He explained that a "jump list" is a list of the user’s preferences stored by Windows. Based on Mr. Johnson’s forensic analysis, the jump list for the user "Jagon" indicated that child pornography files were opened with some type of windows media player. Mr. Johnson testified that several child pornography videos, e.g. "preteen pedo PTHC, Vicki, nine year old early works rare, beautiful" and "PTHC open F33, man sucked by two preteen girls," had been viewed using a VLC, a media player similar to a windows media player. Considering the frequency in which his keyword search produced file matches, he concluded it would be highly unlikely for the items to come up the number of times that they did if the user never watched child pornography or searched for it.
Andrew Garrett, who was accepted as an expert in digital forensics, testified on behalf of defendant. Because Mr. Garrett’s company, Garrett Discovery, performs work for the Department of Justice, state and local law enforcement, his company has the same tools that law enforcement uses to analyze computers such as Torrential Downpour. In evaluating defendant’s case, Mr. Garrett reviewed the 7evidence at the Louisiana Department of Justice in Baton Rouge and analyzed evidence using the same program used by law enforcement, Magnet AXIOM program. He did not have access to Magnet AXIOM in court and, as a result had to explain the evidence to the jury instead of showing visually.
Mr. Garrett testified that Torrential Downpour Receptor is a P2P sharing network that requires a user to send files in order to receive files. Law enforcement tricks the user on the other end to believe that a file has been sent even though the program itself does not acknowledge the transfer. Law enforcement …… uses this method to avoid actually sharing any contraband and to avoid being blacklisted for not sharing any contraband.
Mr. Garrett testified that using Magnet AXIOM, he connected to the process evidence for defendant’s case and did not find evidence that defendant had searched for child pornography on the P2P network or Google search history. He stated that "there was no search history for anything involving child pornography." Mr. Garrett explained that his review of the file history indicated that adult pornography had been accessed. He agreed that a browser history could be deleted, but stated that he did not find evidence on defendant’s computers of "wholesale" deletions or flushing of web history because there was a web history of close to two years.
Mr. Garrett indicated that he did not find any child pornography related to the 2017 charges on defendant’s computer, but acknowledged the child pornography from 2010. He also testified that one of the computer logs showed that the computer had been connected to a Mac computer, but a Mac computer was not introduced into evidence at trial. Although Mr. Garrett found a program on one of defendant’s devices that allows a user to recover deleted files, he did not find any history of it being used. He stated that he could not find any deleted child pornography.
ASSIGNMENTS OF ERROR and ANALYSIS
When evaluating the sufficiency of the evidence, courts must consider the entirety of the evidence, including inadmissible evidence which was erroneously admitted, to determine whether the evidence is sufficient to support the conviction. State v. Griffin, 14-251 (La. App. 5 Cir. 3/11/15), 169 So.3d 473, 483. Thus, even though defendant separately asserts that other crimes evidence was erroneously admitted, we consider that evidence relative to this assignment of error.
[1, 2] We first address defendant’s assignment of error that the evidence presented against him was insufficient to support his conviction. When issues are raised on 8appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992).
[3–5] The constitutional standard for appellate review of the sufficiency of the evidence is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the State proved all of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Robertson, 22-363 (La. App. 5 Cir. 3/29/23), 360 So.3d 582, 589. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at the trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. State v. McKinney, 20-19 (La. App. 5 Cir. 11/4/20), 304 So.3d 1097, 1103. The trier of fact has the discretion to accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 22-383 (La. App. 5 Cir. 8/9/23), 370 So.3d 150, 157. It is not the function of the appellate court to reweigh the credibility of the witnesses on appeal. Id.; State v. Lane, 20-137 (La. App. 5 Cir. 12/23/20), 309 So.3d 886, 906, writ denied, 21-100 (La. 4/27/21), 314 So.3d 836.
[6, 7] Evidence may be direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59 (La. App. 5 Cir. 5/31/05), 904 So.2d 830, 833. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Bradstreet, 16-80 (La. App. 5 Cir. 6/30/16), 196 So.3d 876, 884-85. [8, 9] 9Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Davis, 22-281 (La. App. 5 Cir. 3/8/23), 360 So.3d 82, 89. Where a key element of the conviction is the identification, the State is required to negate any reasonable probability of misidentification to carry its burden of proof. Id.
[10] In this case, the jury unanimously found defendant guilty as charged of eight counts of intentionally possessing child pornography involving children under the age of thirteen. Under La. R.S. 14:81.1 A(1), it is unlawful for a person to produce, promote, advertise, distribute, possess, or possess with the intent to distribute pornography involving juveniles. Pornography involving juveniles is a general intent crime. State v. Workman, 14-559 (La. App. 5 Cir. 4/15/15), 170 So.3d 279, 290, writ denied, 15-909 (La. 3/24/16), 190 So.3d 1189. 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); State v. Workman, 170 So.3d at 290.
On appeal, defendant asserts the evidence was insufficient to prove that he knowingly possessed the child pornography. Specifically, defendant contends that the State failed to establish that he had physical possession of the child pornography in 2017, that he was the person using his IP address on the dates and times in question to share the child pornography, or that he had knowing possession of child pornography on each occasion in February and March of 2017 on which the modem at his residence was used to share a child pornographic file with the State’s computer.
[11–13] 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. 10 State v. Becnel, 16-1297 (La. App. 1 Cir. 4/20/17), 220 So.3d 27, 30, writ denied, 17-1023 (La. 3/9/18), 238 So.3d 451. In determining whether a defendant exercised dominion and control sufficient to constitute constructive possession, the fact finder may consider, among other factors, defendant’s knowledge of the contraband and his access to the area where the contraband is found. Id. Guilty knowledge is an essential element of the crime of possession of contraband. State v. Lewis, 04-1074 (La. App. 5 Cir. 10/6/05), 916 So.2d 294, 299, writ denied, 05-2382 (La. 3/31/06), 925 So.2d 1257. Because it is a state of mind, it need not be proven as fact; it may be inferred from the circumstances. Id.
[14] In this case, the evidence established that Agent Ferris, using a P2P network, downloaded child pornography from a device connected to defendant’s IP address on certain dates in February and March, 2017. Agent Ferris testified that the child pornography files could not have been shared with him from that IP address unless those files had "resided behind that IP address" on the date and time he downloaded them. Thus, because the IP address from which Agent Ferris downloaded the child pornography was identified as defendant’s address, the child pornography had to have been stored on an electronic device at defendant’s IP address at the time it was downloaded.
During the search of defendant’s residence, the police found defendant’s electronic devices in defendant’s bedroom, downstairs in the living room, and in a backyard shed, which Agent Ferris de scribed as a "man cave" or "recording studio." Thus, the electronic devices from which the child pornography could have been shared were found in places where defendant had access; further, that defendant had almost exclusive access to two of the places where the devices were located upon search. In addition, a "preview" of the electronic devices indicated that the P2P network had been utilized on some of the electronic devices. This was the program used to share the child pornography with Agent Ferris.
11Further, the digital forensic examination of defendant’s electronic devices revealed numerous searches with terms related to child pornography. In examining defendant’s devices, Mr. Johnson used a list of "keywords" relevant to child pornography to determine whether the devices had been used to search for child pornography. Mr. Johnson’s keyword searches performed on two hard drives contained numerous searches for terms referring to child pornography, including "child porn," "preteen," "PTHC," "R@yGold," and "Lolita." For example, Mr. Johnson detected that the term "preteen" had been searched 1,227 times, "R@yGold" 847 times, and "Lolita" 1,729 times.
Mr. Johnson also located child pornography videos dating to 2010 on one of the devices under the user name "Jagon" with titles identifying the videos as child pornography. The titles of these videos, which were played for the jury, were: (1) "PTHC, Pedo land, fry fam, nine-year-old Lisak girl masturbates" (dated May 2010); (2) "PTHC, pedophilia, nine-year-old abuse kids f***ing rape Latin"; (3) "PTHC, pedo, fry fam, twins, little girl new."
Mr. Johnson also explained that the preferences for the user "Jagon" identified in a "jump list" included child pornography. Moreover, the forensic examination of defendant’s electronic devices indicated that multiple videos with titles referencing explicit child pornographic content had been opened with a VLC player or windows media player. Consequently, the evidence showed that defendant had been viewing, downloading, and deleting files, folders, images, and videos that contain child pornography under the age of 13 years old for several years.
Considering the entirety of the record, and that defendant had the ability to view child pornography through various methods on different devices and players, we find the evidence showed that defendant knowingly possessed the child pornography. Likewise, the ability of the examiner to locate these "deleted" files on defendant’s electronic devices establishes that defendant did not accidentally come 12to possess the child pornography, but instead intentionally downloaded and viewed them, and then deleted them.
In his testimony, Agent Ferris explained a number of reasons regarding why Mr. Johnson’s forensic examination of defendant’s computers could not locate the child pornography that was shared with Agent Ferris in February and March 2017 on defendant’s computer. Agent Ferris testified that the images and videos could have been deleted and overwritten or that the devices could have been missed during the search. He also stated that there was one electronic device, a Mac AirPro, that the forensic examiners were unable to access. Agent Ferris pointed out that it was not uncommon in these types of cases to find that individuals had deleted these types of files from their devices.
[15–18] Based on the testimonial and physical evidence, the jury found defendant guilty, and rejected defendant’s theories of innocence. The jury is the ultimate factfinder of "whether a defendant proved his condition and whether the state negat- ed that defense." State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The reviewing court "must not impinge on the jury’s factfinding prerogative in a criminal case except to the extent necessary to guarantee constitutional due process." Id. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Id. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. Id. The appellate court is constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. Id.
Accordingly, we find that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found, beyond a reasonable doubt, that the evidence was sufficient to support the convictions of eight counts of possession of child pornography.
13 Evidence of other crimes
Defendant asserts that the evidence of other crimes (three videos and one image containing child pornography) was erroneously admitted into evidence. In particular, defendant claims the State relied heavily on these files downloaded in 2010 that were found on a computer found in his backyard shed. The State asserts that the evidence was admissible under La. C.E. art. 412.2, which was enacted to loosen restrictions on "other crimes" evidence and allow evidence of "lustful disposition" in cases that involved sexual offenses. The State argues that the evidence should also be admissible under La. C.E. art. 404 B because it shows that defendant has been downloading, viewing, and deleting child pornography files and folders for some time, which reflects defendant’s knowledge and intent to possess child pornography. The State further argued that the evidence was admissible under the res gestae doctrine in that the evidence shows crimes that are related and intertwined with the current charged offenses.
[19, 20] La. C.E. art. 412.2 A provides: When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
Pursuant to La. C.E. art. 412.2 A, evidence of a prior sexual offense indicating that the defendant has a "lustful disposition toward children" is admissible if it is relevant and if the probative value of the evidence outweighs its prejudicial effect. State v. Williams, 09-48 (La. App. 5 Cir. 10/27/09), 28 So.3d 357, 364, writ denied, 09-2565 (La. 5/7/10), 34 So.3d 860; State v. Olivieri, 03-563 (La. App. 5 Cir. 10/28/03), 860 So.2d 207, 218. Rulings on the admissibility of evidence will not be disturbed, absent an abuse of discretion. Id. Even independently relevant evidence may be 14excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or waste of time. La. C.E. art. 403.
[21] The State also argued that the evidence was admissible under La. C.E. art. 404 B, which permits evidence of other crimes, wrongs, or acts as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. While the State may not admit evidence of other crimes to prove defendant is a person of bad character, evidence of prior crimes may be admitted if the State establishes an independent relevance aside from providing defendant’s criminal character. State v. Taylor, 16-1124 (La. 12/1/16), 217 So.3d 283, 292; State v. Brown, 17-348 (La. App. 5 Cir. 12/20/17), 235 So.3d 1314, 1323, writ denied, 18-0158 (La. 11/5/18), 256 So.3d 276.
[22] Evidence of "other crimes" may also be introduced if it is independently relevant or when it relates to conduct, formerly referred to as res gestae, that "constitutes an integral part of the act or transaction that is the subject of the present proceeding." La. C.E. art. 404 B(1). Res gestae events constituting "other crimes" are deemed admissible because they are so nearly connected to the charged offense that the State could not accurately present its case without reference to them. State v. Taylor, 01-1638 (La. 1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).
In State v. Kiger, 13-69 (La. App. 5 Cir. 10/30/13), 128 So.3d 552, this court affirmed a trial court’s admission of evidence of prior sexual molestation in a prosecution for aggravated rape of an eight year old. The court in Kiger found that the testimony of a victim of unadjudicated child molestation was highly relevant to show the defendant’s lustful disposition and that, given the victim’s similarities in age, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Id. at 559. The court reasoned that any potentially undue 15or unfair prejudice was mitigated by the trial court’s clear jury instruction and the defendant’s ability to cross-examine the victim of the prior molestation. Id. See also, State v. Harris, 11-253 (La. App. 5 Cir. 12/28/11), 83 So.3d 269, writ denied, 12-401 (La. 8/22/12), 97 So.3d 376.
[23] In the instant case, the child pornography found on defendant’s devices from 2010 was highly relevant and probative of defendant’s charges in that it showed defendant’s lustful disposition towards children. Mr. Johnson’s testimony regarding the 2010 child pornography indicated that the 2010 child pornography offenses were separate from the 2017 charged offenses at issue here. The testimony was not so time-consuming as to risk distracting the jury from the charges at issue at the trial, and Mr. Johnson was subject to cross-examination.
Furthermore, at the close of the trial, the trial judge instructed the jury that the evidence of other crimes served a limited purpose and that it may not find defendant guilty of the present charges merely because he may have committed another crime. In sum, the probative value of the other child pornography was not substantially outweighed by the danger of unfair prejudice. See, State v. Rodgers, 16-14 (La. App. 5 Cir. 10/26/16), 202 So.3d 1189, 1202, writ denied, 2016-2189 (La. 9/15/17), 225 So.3d 479, and writ denied, 16-2093 (La. 1/29/18), 235 So.3d 1104.
Accordingly, we find no error in the admission of evidence of other child pornography offenses. This assignment of error lacks merit.
The Alleged Failure to Comply with La. C.Cr.P. art. 719
Defendant argues that the State violated his constitutional right to present a defense in that the State failed to comply with the mandatory requirement of La. C.Cr.P. art. 719. Specifically, defendant contends the State failed to provide a report setting forth their expert’s opinion, reasoning, and a list of materials he examined, which inhibited defendant’s ability to prepare his expert and for cross-examination. Defendant farther argues that because the State’s entire case was built on expert 16testimony, it was reversible error for the trial court to not require the State to produce a La. C.Cr.P. art. 719 report.
La. C.Cr.P. art. 719 A states in pertinent part:
Upon written motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of a physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. If the witness preparing the report will be called as an expert, the report shall contain the witness’s area of expertise, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor. If the expert witness has not reduced his results to writing, or if the expert witness’s written report does not contain the information required of an expert as provided in this Article, the state must produce for the defendant a written summary containing any information required to be produced pursuant to this Article but absent from a written report, if any, including the name of the expert witness, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor.
Less than a week before tidal, defendant filed an emergency motion for a 719 report, asserting that the State had not provided an expert report from Agent Ferris. The trial court denied defendant’s motion, pointing out that defendant’s case had been pending for a long time and had been through years of discovery. The trial court reasoned that defendant is charged with possession of child pornography, and thus he was well aware of the substance of the State’s expert testimony. The trial court also pointed out that the State had identified its expert, and provided defendant with the expert’s curriculum vitae and PowerPoint presentation, which he intended to use at trial.
[24] Defendant has the right, upon motion, to inspect and copy reports of physical or mental examinations or scientific tests in the possession of the State and intended for use at trial. La. C.Cr.P. art. 719. The State, however, does not have an obligation to disclose information that it does not possess. State v. McGinnis, 04-1286 (La. App. 5 Cir. 10/6/05), 917 So.2d 471, 485, writ denied, 1705-2469 (La. 4/28/06), 927 So.2d 283. The State has a continuing duty to disclose additional evidence which it discovers or decides to use at trial. La. C.Cr.P. art. 729.3.
[25] For the following reasons, we find no error in the trial court’s denial of defendant’s motion for a report under La. C.Cr.P. art. 719. First, defendant seeks a report that apparently does not exist. Agent Ferris did not conduct any physical or mental examinations or scientific tests or experiments in this matter. As a result, he did not have any data or results to analyze or to necessitate preparation of a report setting forth conclusions.
Second, Agent Ferris prepared a PowerPoint presentation that the State provided to defendant prior to trial. Agent Ferris used the PowerPoint presentation at trial to explain law enforcement’s investigatory methods for detecting and prosecuting individuals who view and download child pornography online.
Third, the record indicates that the search warrant application authored by Agent Ferris provided extensive details regarding Agent Ferris’ testimony. The warrant application stated: Information Specific to This Investigation
On 02/16/2017 through the present time, an investigation has been conducted by Special Agents of the Louisiana Attorney General’s Office Cyber Crime Unit. This investigation seeks to find those persons possessing, manufacturing and/or distributing child pornography in the jurisdictional boundaries of Louisiana, in violation of La. R.S. 14:81.1.
In particular, "peer-to-peer" undercover operations focus upon those persons using what is known as "tile sharing software" in order to both accumulate child pornography for themselves, and also to distribute child pornography to others.
* * *
As a result, on 02/16/2017, special agents were able to view, in plain sight, files of the computer with the IP Addresses "68.11.41. 127" using the free, publicly available peer-to-peer software.
Upon viewing the tiles on the computer at IP Addresses "68.11.41.127" Special Agents were able to download (sole source) files from the aforementioned Internet Protocol address and confirmed the tile to be images of pornography involving juveniles.
Special Agent David Ferris viewed the contents of the file(s) and saw them to be:
18 Seventeen (17) videos and six (6) images of juveniles between the approximate ages of two (2) to fourteen (14) being orally and vaginally rape [sic] or posing in a sexual manner with the gentials [sic] in clear display of the camera. [Emphasis in original.]
Considering the foregoing, we find the trial court did not abuse its discretion in denying defendant’s emergency motion for an expert report under La. C.Cr.P. art. 719. This assignment of error lacks merit.
The State’s Alleged Failure to Produce Evidence for Trial
Defendant argues that the State further violated his right to present a defense by failing to comply with the agreement to bring the seized devices and the computer software (Magnet AXIOM) used to search those devices to court for use by defendant’s expert at trial. Defendant asserts that the presentation of his defense without the devices seized from his house or the State’s software used to evaluate them was prejudicial.
Defendant asserted that it could not put on its defense without the Magnet AXIOM software. Defendant’s expert, Mr. Garrett, explained on the record that he could not take the evidence home with him to make exhibits because it contained contraband. He stated that he needed this evidence to show the amount of adult pornography downloads across different genres, web search history, whether a peer-to-peer software was installed, whether the logs matched the State’s logs and those types of things. He stated he could talk his way through them but would be "a little handicapped" in not having the visuals. Based on this, the trial concluded that defendant could still present his defense.
[26, 27] Even if a discovery violation occurs, the trial court has the discretion to choose an appropriate remedy for a discovery violation that will offset any possible prejudice. 19 State v. Williams, 12-305 (La. App. 5 Cir. 5/16/13), 119 So.3d 131, 144-45, writ denied, 13-1338 (La. 12/6/13), 129 So.3d 529. The Louisiana Supreme Court has previously held that discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony to permit the defense to meet the State’s case and to allow proper assessment of the strength of its evidence in preparing a defense. State v. Bradstreet, 16-80 (La. App. 5 Cir. 6/30/16), 196 So.3d 876, 892, writ denied, 16-1567 (La. 6/5/17), 220 So.3d 752. A conviction will not be reversed based on a discovery violation by the State unless prejudice is shown. State v. Harris, 00-3459 (La. 2/26/02), 812 So.2d 612, 617; State v. Lestrick, 13-289 (La. App. 5 Cir. 10/9/13), 128 So.3d 421, 431, writ denied, 13-2643 (La. 4/25/14), 138 So.3d 643. The appellate court must examine the circumstances of the case to determine whether the defendant was prejudiced and whether any prejudice resulting from the State’s non-compliance with discovery procedure caused the trier of fact to reach the wrong conclusion. Williams, 119 So.3d at 145.
When a party fails to comply with the provisions of the discovery articles, "the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate." La. C.Cr.P. art. 729.5 A.
[28] Under the facts of the present case, we find that the trial judge did not abuse his discretion in proceeding with trial without the Magnet AXIOM software. Nevertheless, even if a discovery violation occurred, we find defendant has not shown the required prejudice resulting from the unavailability of this software at trial. Defendant has not shown that his expert’s testimony was hindered such that defendant was unable to present his defense.
Excessive Sentence
In his final assignment of error, defendant contends that his twenty-five-year sentences for possession of child pornography is constitutionally excessive. Defendant acknowledges that his sentences are within statutory range, but asserts that his sentences are nonetheless excessive in that it is effectively a life sentence for him as a 49-year-old educated man with a family and no prior criminal history. Defendant argues that his sentences for mere possession are grossly disproportionate 20to the offenses, and viewed in light of the harm to society, it truly shocks the sense of justice that these sentences were imposed on this circumstantial evidence case.
The State avers that defendant received mid-range sentences and that the trial court did not abuse its broad sentencing discretion. The State argues that the trial court fully articulated the basis for the sentences imposed on defendant. The State contends that regardless, defendant attempts to downplay the vile nature of the offenses and fails to acknowledge his actual culpability and the harm caused by his criminal conduct.
[29, 30] The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Calloway, 19-335 (La. App. 5 Cir. 12/30/19), 286 So.3d 1275, 1279, writ denied, 20-266 (La. 7/24/20), 299 So.3d 69. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Woods, 18-413 (La. App. 5 Cir. 12/19/18), 262 So.3d 455, 460.
[31–33] In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice, while recognizing the trial court’s wide discretion. Calloway, 286 So.3d at 1279. 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 rele- vant question on appeal is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. See State v. Dixon, 19-7 (La. App. 5 Cir. 12/30/19), 289 So.3d 170, 174, writ denied, 20-143 (La. 7/17/20), 298 So.3d 176. The sentence imposed should not be set aside as excessive in the absence of a manifest abuse of 21discretion. 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.
[34, 35] In reviewing a trial court’s sentencing discretion, three factors are considered: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts. Woods, 262 So.3d at 460-61; State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 880. However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Tracy, 02-227 (La. App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La. 4/4/03), 840 So.2d 1213.
At the time the offenses were committed in the instant case, the sentencing range for pornography involving juveniles was five to twenty years at hard labor to be served without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:81.1 E(1)(a). Defendant was convicted of pornography involving juveniles under the age of thirteen, when defendant was over the age of seventeen. Thus, defendant was subject to the increased sentencing range under La. R.S. 14:81.1 E(5)(a) of ten to forty years at hard labor to be served without the benefit of parole, probation, or suspension of sentence. Thus, in accordance with both subsections, the sentence for pornography involving juveniles under the age of thirteen consists of a range of ten to forty years at hard labor to be served without the benefit of parole, probation, or suspension of sentence. Defendant’s sentences were mid-range considering that he could have received sentences of 40 year’s on each count for his convictions.
[36] The evidence presented against defendant at trial reflects that defendant possessed images and videos depicting naked young children that are victimized every time an individual downloads these images and videos. In addition, many of the videos and images do not simply contain disturbing images of naked children, but also depict graphic acts of rape and physical sexual abuse of those children. 22Further, Agent Ferris testified that during his brief peer-to-peer investigation of the defendant, he "connected" to defendant 57 times and was able to download child pornography 22 different times from him.
The sentencing judge in this case was the same trial judge who presided over the trial and viewed all of the evidence presented against defendant at trial. The trial judge specifically stated that while he acknowledged that defendant was "begging" for mercy, he could not help but "believe that those individuals, those five, six, seven, eight year old children that were depicted in various different disgusting positions and being subjected to various different disgusting activities perpetrated upon them" were also begging for mercy at various different times throughout. The trial judge also took into consideration that defendant was charged with eight separate counts in 2017, and that other evidence showed a long history of the defendant’s conduct. As a result, the trial judge found that a mid-range 25-year sentence was appropriate under the facts of this case.
Upon review of the record on appeal and the evidence presented against defendant at trial, we cannot say that the trial judge abused his discretion in sentencing defendant. See State v. Bradley, 22-381 (La. App. 5 Cir. 3/1/23), 360 So.3d 562, 571 (this court recently found constitutional a 25-year-sentence for possession of pornography involving juveniles under the age of thirteen.)
ERRORS PATENT
[37] The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals that the trial court did not properly advise defendant of the time delays for filing post-conviction relief. See, La. C.Cr.P. art. 930.8. If a defendant is not properly advised of the time period for seeking post-conviction relief, the appellate court may inform defendant of the applicable period for post-conviction relief by means of its opinion. See 23 state v. Perez, 17-119 (La. App. 5 Cir. 8/30/17), 227 So.3d 864. Therefore, pursuant to this court’s routine practice, we inform defendant that under La. C.Cr.P. art. 930.8, no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. art. 914 or 922.
DECREE
Accordingly, for the reasons set forth herein, we affirm defendant’s convictions and sentences.
AFFIRMED