State v. Mischler, 2018 KA 1352
| Decision Date | 31 May 2019 |
| Docket Number | 2018 KA 1352 |
| Parties | STATE OF LOUISIANA v. DENNIS CHARLES MISCHLER |
| Court | Court of Appeal of Louisiana — District of US |
Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany, Louisiana
Honorable August J. Hand, Judge Presiding
Warren L. Montgomery
Matthew Caplan
Butch Wilson
State of Louisiana
Gwendolyn Brown
Baton Rouge, LA
David F. Gremillion
Dennis Charles Mischler
Dennis Charles Mischler
Angola, LA
Pro Se
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
Defendant, Dennis Mischler, was charged by bill of information with oral sexual battery, violations of LSA-R.S. 14:43.3 (), molestation of a juvenile, a violation of LSA-R.S. 14:81.2 (count three), and possession of pornography involving juveniles, a violation of LSA-R.S. 14:81.11 (counts four through fifty-seven). Shortly thereafter, the State amended counts four through fifty-seven to more specifically allege possession of pornography involving juveniles under the age of thirteen. He pled not guilty to both bills. After a trial by jury, defendant was found guilty as charged on the first thirty-two counts. For the remaining twenty-five counts, the jury found defendant guilty of the lesser-included offense of pornography involving juveniles under the age of seventeen. The trial court imposed concurrent terms of ten, ten, and fifteen years imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence on the first three counts. Those terms were ordered to run consecutive to twenty-nine concurrent terms of forty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence and twenty-five concurrent terms of fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The terms for pornography involving juveniles were all to run concurrently to each other. Defendant now appeals. For the following reasons, we affirm defendant's convictions and sentences.
Following complaints to the National Center for Missing and Exploited Children, in October 2010 the United States Postal Inspector and Toronto Police Service conducted an investigation into a Canadian movie studio alternately calledthe "Toronto Company" and "Azov Films." The investigation revealed the company was producing and distributing child pornography. A search warrant was executed and the company's business records were recovered, including customer names and shipping addresses. Defendant's name, physical address, and email address were found in company records showing multiple purchases of child erotica2 and child pornography billed and shipped to defendant. A postal inspector then conducted a forensic investigation to confirm defendant was the person actually accessing the company's website. Ultimately, the inspector's investigation also determined that defendant's email address was used to set up an account on a website known for child pornography exchange. Further investigation revealed defendant had been implicated in at least two formal allegations of child sex offenses, and he was also a known "educational worker." Having developed this information, a local postal inspector, with the assistance of the St. Tammany Parish Sheriff's Office, obtained a search warrant for defendant's residence.
On May 29, 2014, upon execution of the search warrant, law enforcement officers recovered from defendant's bedroom a large amount of physical and electronic child erotica and child pornography that exclusively featured juvenile boys, in addition to items matching those listed as sold to defendant by the "Toronto Company." Specifically, there were about 5,000 images3 and 26 videos found on two thumb drives located in a nightstand next to defendant's bed. Some of the files had been accessed as recently as three to fifteen days before the search was conducted. Files had been created on the thumb drives over the course of five-and-a-half years. The creation dates, however, pertained to when the files were created on the thumb drives, not when the original image or video had been generated. Periods of relative inactivity on the thumb drive roughly corresponded with defendant's claimed medical issues that put him in repeated hospital care. The State also introduced testimony for demonstrative purposes, and over defendant's objection, about two videos that defendant was shown as ordering from Azov, but which were not physically found in his residence during the search.
Defendant, who was home at the time of the search, and after having voluntarily signed a waiver of his Miranda4 rights, explained the child pornography was not his, that he had "been hacked on," and that he had caught "William" "seeing things on that computer before[.]" Defendant claimed "William" had put the photos on the thumb drives. After ascertaining "William" was W.G.,5 defendant's nephew and victim, investigators interviewed him and obtained names of other possible victims, including J.S. and A.E. Subsequent police interviews with witnesses revealed victims M.M., G.W.,6 and A.P. Further, following media coverage of the story, two more victims, S.L. and J.B., came forward. R.L., the final victim to testify, was involved in the only prior allegation against defendant to go to trial.
J.S., 25 years old at the time of trial, testified that defendant is his great-uncle. J.S. described how he would frequently go to defendant's house in New Orleans when he was about 11 years old and continued to do so later in St. Tammany Parish. J.S. testified in detail that while at defendant's house in New Orleans, defendant, unbidden, got into a shower with him and began to soap J.S.'s genitals with his bare hands. J.S. explained that after Hurricane Katrina, whiledefendant was living in St. Tammany Parish in a FEMA trailer, defendant would give him and other boys gifts and take them to the movies "[a]ny time [they] wanted to." During one visit to defendant's trailer, J.S. testified that defendant "performed oral pleasure on a sensitive area" while J.S.'s friend was out at the store and only stopped upon the friend's return. During his testimony at trial, however, J.S. said he did not "know the specifics" of that event.
J.S. described a later incident, still within a year of Katrina, where defendant took him to a hotel and again performed oral sex on him. On that occasion, defendant also attempted to anally penetrate J.S., but stopped when J.S. told him to stop. Defendant characterized his behavior to J.S. as being "a way of expressing love." According to J.S., defendant had a desktop computer that J.S., his friends, and defendant's family could use at his house, but that defendant had a password-protected laptop that no one else was ever allowed to use. J.S. conceded he had done some prison time for felony possession with intent to distribute marijuana and also admitted that he had only recently been released from prison. J.S. also had stolen money from defendant "a couple of times." Moreover, J.S. testified that he told no one of the abuse until the prosecutor approached him to talk about it in 2014. J.S. also was aware that defendant's house had been burglarized in the month before defendant was arrested. The State presented prison records indicating that, among other periods, J.S. was incarcerated between December 20, 2013 and July 14, 2014.
Defendant stated that up until the allegations for which he was then being tried, he had a "wonderful" relationship with J.S. Defendant denied ever touching J.S. in the shower in New Orleans, contended that J.S. was never alone with him in his St. Tammany FEMA trailer and said that he never took J.S. alone to a hotel off US Hwy. 190. He acknowledged that J.S. had stolen from him.
S.L. related his experience as a Boy Scout with defendant, then a scout leader, nearly 40 years prior. At a scouting event, S.L., who was then 14 years old, was housed in a tent with defendant, who was 28 years old at the time. One evening, after defendant had pushed the bunks in the tent closer together, defendant took S.L.'s hand and placed it on defendant's penis three different times. S.L. first attempted to tell a 15 or 16-year-old about the incident, but was told by him "[d]on't say anything[,]" and "[y]ou'll get us all in trouble." The next day, S.L. was able to tell his father, a DEA agent. After no action was taken by the camp directors, S.L. and his father notified the local Sheriff's Department. Although defendant was initially arrested at the camp, the District Attorney eventually chose to not prosecute the case. Thirty years later, S.L. saw a news story about the allegations against defendant and chose to come forward with his own story.
Defendant testified at trial and reaffirmed he had been "found innocent of all of those charges." Defendant contended that S.L. had been previously caught with another staff member in bed, who was fired on the spot. He denied knowing S.L. would be in defendant's tent, and claimed that S.L. was mad at him because the staff member had been fired.
A.E., also a relative of defendant's, testified about an occasion when he was six or seven years old and spent the night with defendant at his home in New Orleans. A.E. was taking a bath, and defendant entered the bathroom asking if A.E. needed help. Defendant then used his bare hands to touch A.E.'s genitals under the pretense of washing him. A.E. also recalled that he would sit on defendant's lap, and defendant would place his hand on A.E.'s crotch. Defendant denied ever groping A.E. in the shower and stated that A.E. was infrequently at his house.
A.P., another family member of both J.S. and defendant, testified about time spent at defendant's home in New Orleans, which he confirmed was "a gathering point" for the family. A.P. explained that defendant...
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