State v. Klein
| Decision Date | 22 August 2018 |
| Docket Number | NO. 2018-KA-0022,2018-KA-0022 |
| Citation | 252 So.3d 973 |
| Parties | STATE of Louisiana v. Kenneth KLEIN |
| Court | Court of Appeal of Louisiana — District of US |
LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY OF ORLEANS PARISH, MICHAEL DANON, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE/APPELLEE
HOLLI HERRLE-CASTILLO, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, Louisiana 70073, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Paula A. Brown )
The defendant, Kenneth Klein, appeals his conviction on one count of possession with intent to distribute pornography involving juveniles under the age of thirteen in violation of La. R.S. 14:81.1(E)(5)(a) and nineteen counts of possession with intent to distribute pornography involving juveniles under the age of seventeen in violation of La. R.S. 14:81.1(C)(2). For the reasons that follow, we affirm the defendant's conviction and sentence.
On June 26, 2015, the State charged the defendant with one count of possession with intent to distribute pornography involving juveniles under the age of thirteen in violation of La. R.S. 14:81.1(E)(5)(a) ; and nineteen counts of possession with intent to distribute pornography involving juveniles under the age of seventeen in violation of La. R.S. 14:81.1(C)(2). The defendant pled not guilty.
The defendant filed motions to suppress statements and physical evidence. On June 23, 2016, the trial court denied the defendant's motions to suppress and found probable cause.
On August 26, 2016, the trial court granted the state's motion to introduce evidence of other crimes pursuant to La. C.E. art. 412.2. This evidence involved prior sexual abuse allegations made against the defendant by his biological son and stepdaughter when they were minors.
On April 6, 2017, the jury returned a guilty verdict on all counts. On May 12, 2017, the trial court denied the defendant's Motion for Post-Verdict Judgment of Acquittal and Motion for New Trial. The defendant was sentenced to five years on each of the nineteen counts in violation of La. R.S. 14:81.1(C)(2), to be served concurrently. On the one count in violation of La. R.S. 14:81.1(E)(5)(a), the defendant was sentenced to twenty years to be served concurrently with his other sentences. The trial court ordered that the defendant's personal property used in the commission of the offenses be seized and impounded by law and sold at public sale or public auction in accordance with La. R.S. 15:539.1. The trial court also imposed a fine of $2,500.00 and ordered that upon completion of the defendant's term of imprisonment, he be monitored by the Department of Safety and Corrections through the use of electronic monitoring equipment for the remainder of his natural life pursuant to La. R.S. 81.1(E)(5)(e).
At the June 14, 2016 motions hearing, Louisiana State Trooper Christopher Treadaway, a detective with the Special Victims Unit, testified that in February 2014, he conducted an undercover investigation through the use of law enforcement software, which monitored peer-to-peer1 internet sites to identify individuals who were sharing child pornography. Information gleaned from monitoring the internet led Trooper Treadaway to a single IP (Internet Protocol) address2 in New Orleans that, for quite a few days, was swapping and trading child pornography. Trooper Treadaway issued a subpoena duces tecum to the internet service provider, in this case AT & T, for that IP address. He learned the subscriber on that account was identified as the defendant, residing at 2819 Carondelet Street.3
Trooper Treadaway conducted a surveillance of the Carondelet Street address to confirm that someone lived there. He then obtained a search warrant for the premises. Trooper Treadaway assembled a team of six or seven fellow law enforcement personnel - including Sergeant Joe Patout, and Agent Lisa Maher - to execute the search warrant.
Trooper Treadaway testified that when he knocked on the front door of the Carondelet Street residence no one answered, so the officers went around and knocked on the back door. At that time, the defendant called to the officers from a window, then let them in.
Trooper Treadaway stated that in his initial surveillance of 2819 Carondelet Street, the structure looked like a single residence. From the inside, it was apparent that the building had been partitioned into multiple units. The defendant's apartment was on the second floor. Upon entering the apartment, the officers encountered Lauren Devoe, the defendant's fiancée. After performing a safety sweep of the premises, the officers confiscated a Toshiba computer, a Lenovo laptop computer, a thumb drive and a USB drive found in the defendant's bedroom.
Trooper Treadaway performed an on-scene forensics examination of the computers using a program named Encase. He pulled the hard drive from the Toshiba computer and connected it to a device named Write Blocker, which prevents alteration of the computer's hard drive but allows a forensic investigator to inspect the hard drive's file system and look at the contents of the files. His examination revealed that the defendant's IP address was actively sharing child pornography. Trooper Treadaway personally viewed nineteen videos on the defendant's computer that contained child pornography, and one photo that appeared to involve a child between the age of eight and thirteen. No evidence was found to suggest that the defendant's computer had been hacked or remotely accessed. The computer was taken back to the State Police field office for further testing. Trooper Treadaway took no statements from the defendant at the scene.
Under cross-examination, Trooper Treadaway said there was no way to determine the identity of the person who downloaded the contraband to the defendant's Toshiba computer. He also stated that the fact an IP address associated with a certain name is active, does not necessarily mean that the owner of that IP address is the user or only user.
Sgt. Patout, a case agent handling child exploitation cases for approximately six years, participated in the investigation. Recounting the search of the defendant's residence, Sgt. Patout testified at the motions hearing that he and Trooper Treadaway's team had difficulty entering the home. They knocked at the front door and when they received no answer, they went to the rear and knocked. The defendant looked out the window. The officers identified themselves and informed him they had a search warrant. The defendant let them in. When the officers entered the defendant's apartment, Sgt. Patout directed the defendant and his fiancée to sit on a couch. He then conducted a safety sweep of the premises. Thereafter, Sgt. Patout escorted the defendant into a back room, where he administered Miranda warnings. The defendant acknowledged he understood his rights, and Sgt. Patout explained the nature of the investigation to the defendant. The defendant waived his rights and chose to speak to Sgt. Patout. The interview was not recorded.
Sgt. Patout explained that the defendant said he was a published journalist, doing research on child pornography for the Huffington Post. His research entailed downloading child pornography from the internet via peer-to-peer file sharing software, using search terms Sgt. Patout was familiar with through his child exploitation work. The defendant admitted downloading material the previous day. The defendant stated that he never published his work or told anyone about it. The defendant indicated he downloaded the information to his Toshiba computer, which could be found in his bedroom. The defendant did not say that the information on his computer was placed there by a hacker or via remote access. The defendant was arrested following the search.
Under cross-examination, Sgt. Patout testified the defendant admitted he was aware that the information on his computer could be seen and downloaded by others looking for child pornography on the internet. In addition, Sgt. Patout confirmed that the defendant did not request an attorney before speaking with him.
Following the motions hearing, the trial court denied the defendant's motion to suppress evidence and statements. Probable cause was found, and the case proceeded to trial.
The jury trial was conducted from April 4, 2016 to April 6, 2016. Trooper Treadaway and Sgt. Patout testified at trial, reiterating their testimony given at the motions hearing regarding the investigation and arrest of the defendant.
Agent Maher, with the forensics unit of the Attorney General's Office specializing in internet crimes against children, testified at trial that she investigated thousands of child pornography cases with the Louisiana Department of Justice. Trooper Treadaway sought her assistance in conducting a forensic review of the defendant's computers during the execution of the search warrant in this case. Agent Maher discovered that the computer located in the defendant's bedroom contained child pornography. She explained her examination procedure as removing the computer hard drive and connecting it to a write-blocker, which prevents alteration of and safeguards the data on the hard drive. She then used Encase, a forensic program, to view videos, images, text documents, etc. stored in the computer. Agent Maher located video files with titles indicative of child pornography and viewed those. Agent Maher stated that she located files on the defendant's computer titled PTHC, which is an acronym for "Pre-Teen Hard Core." She explained the videos were in a folder, within a folder and in numerous subfolders on the hard drive. Agent Maher transferred the contraband material to disks for trial purposes.4 Finally, Agent Maher stated that she observed no evidence that the defendant's computer had been hacked.
M.D.,5 the defendant's stepdaughter, testified on behalf of ...
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