State v. McMahon

349 So.3d 654

STATE of Louisiana, Appellee

v.James Cody MCMAHON, Appellant

No. 54,740-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered September 21, 2022.

LOUISIANA APPELLATE PROJECT, Lake Charles, By: Edward Kelly Bauman, Counsel for Appellant

ROBERT STEPHEN TEW, District Attorney, JUSTIN A. WOOLEY, Assistant District Attorney, Counsel for Appellee

Before MOORE, PITMAN, and COX, JJ.

COX, J.

This case arises out of the Fourth Judicial District Court, Ouachita Parish, Louisiana. James Cody McMahon was charged and unanimously convicted in violation of La. R.S. 14:91.5, unlawful use of a social networking site. McMahon appealed, and this Court vacated his sentence and remanded for resentencing. On remand, McMahon was sentenced to his original sentence of three years at hard labor without probation, parole, or suspension of sentence. He now argues La. R.S. 14:91.5 is unconstitutional and his Fourth and Fourteenth Amendment rights were violated. For the following reasons, we affirm.

FACTS

McMahon was charged by amended bill of information of one count of unlawful use of a social networking site in violation of La. R.S. 14:91.5. At the time of his charge, he was on supervised probation for an indecent behavior with a juvenile conviction. During a visit with his probation officer, Amanda Peoples, he was asked to submit to a random drug test. Before the drug test, he was asked to submit his cell phone for a search. Officers found applications for Facebook, Snapchat, Twitter, and Instagram on his cell phone. Officers then requested a search warrant to search McMahon's phone, including social media accounts, emails, and chats on any social media accounts.

On February 10, 2020, McMahon filed a motion to suppress prior to the start of voir dire . He argued his phone "was seized and searched without a warrant and without probable cause or reasonable suspicion in violation of the Fourth Amendment" and his consent to search the phone was coerced. The parties agreed that the motion would be heard on the merits.

During trial, Deputy Peoples testified that as a condition of McMahon's probation, he could not have social media accounts. She stated that she reminded him of this when she would visit his home but did not personally review this condition with him in 2016 when he was convicted.

Deputy Peoples testified that on August 6, 2019, she decided to give McMahon a random drug screen. She stated that when he was going through the metal detector, he had to place his cell phone on the counter. She testified that when he set his cell phone down, she told him she would like to look at it. She stated that she asked him if there was anything on it he was not supposed to have, he said no, and she had him unlock the passcode on the cell phone.

She stated that he did not hesitate to put the passcode into the phone.

Deputy Peoples testified that after McMahon typed the passcode, he handed her his cell phone, she looked at the phone, and it was "quite obvious" that he had Facebook and Snapchat icons. She testified that when she asked McMahon if he knew he was not supposed to have social media accounts, he said he did know that.

Deputy Stacy Morrison testified that she is in charge of sex offender registrations for Ouachita Parish. She stated that individuals who come through her office are required to fill out a sex offender contract, which outlines rules and prohibits the use of social media. She stated that when an offender first comes to her office, she explains the rules. Deputy Morrison was shown a copy of McMahon's sex offender contract and verified that he initialed the bottom of every page, signifying that he understood all the rules.

Officer Corey Bennett testified that he is a supervisor for probation and parole for the State of Louisiana. He stated that he originally set up McMahon's case in 2016 and supervised him from May of 2017 until sometime in 2019. He testified that he reviewed the rules of probation with McMahon. He stated that the rules include a prohibition on social media use and provide for an inspection of computers and electronic devices. He testified that in sex offender cases, cell phones are randomly checked. Officer Bennett stated that McMahon could have refused the search and put his cell phone in his vehicle.

On February 11, 2020, while the jury deliberated, the trial court denied McMahon's motion to suppress. McMahon was found guilty by a unanimous jury of unlawful use of a social networking site. He was sentenced to three years at hard labor. McMahon appealed. His sentence was vacated, and his case was remanded on July 21, 2021.¹ In that per curiam opinion, McMahon's sentence was vacated and the matter remanded for further proceedings because the trial court failed to rule on his motion for post-verdict judgment of acquittal and motion in arrest of judgment prior to sentencing. On July 28, 2021, the trial court held a hearing to correct the minutes. The trial court stated that McMahon's motion for post-verdict judgment of acquittal and motion in arrest of judgment had been ruled on. The trial court supplemented the record with transcripts of the sentencing where both motions were addressed and ordered the minutes be corrected to reflect the disposition of the motions.

McMahon's resentencing hearing was held on December 30, 2021. At that hearing, the trial court discussed the remand from this Court. The trial court stated and defense counsel agreed that the motions had been ruled upon or waived at the prior sentencing. McMahon agreed on the record that his motion for post-verdict judgment of acquittal had been ruled upon. He then waived his motion in arrest of judgment and motion for new trial. McMahon stated he believed these motions were taken care of prior to his original sentencing. The trial court sentenced McMahon to his original sentence of three years. McMahon now appeals.

DISCUSSION

Constitutionality of La. R.S. 14:91.5

McMahon argues that the trial court erred in denying his pro se motion in arrest of judgment and in ruling La. R.S. 14:91.5 is constitutional. He points out that in Packingham v. North Carolina , ––– U.S. ––––, 137 S. Ct. 1730, 198 L.Ed. 2d 273 (2017), the Supreme Court held that a similar North Carolina statute was unconstitutional.

McMahon argues that La. R.S. 14:91.5 is unconstitutional because it infringes on his First Amendment right to freedom of speech. He asserts that an absolute restriction on his internet access may derail his chances of seeking gainful employment or maintaining networking capabilities to keep employment. He argues that the statute, as written, is not narrowly written to prevent illicit communications between sex offenders and minors but is a blanket restriction on First Amendment rights. He requests the trial court be reversed and La. R.S. 14:91.5 be declared unconstitutional.

The State argues that the trial court was correct in its ruling regarding the constitutionality of La. R.S. 14:91.5. It argues that the Louisiana statute is not a broad statute like the statute discussed in Packingham v. North Carolina, supra , which had broad language to not only bar social media sites but also websites like Amazon and Webmd. Additionally, Louisiana's statute applies only to those who are required to register as a sex offender. For these reasons, the State asserts that Louisiana's statute can be distinguished from the North Carolina statute.

Legislation is deemed a solemn expression of legislative will. La. C.C. art. 2. Statutes are presumed to be constitutional and their constitutionality will be preserved when it is reasonable to do so. Pesnell v. Sessions , 51,871 (La. App. 2 Cir. 2/28/18), 246 So. 3d 686. Since statutes are presumed to be constitutional, "the party challenging the validity of a statute generally has the burden of proving unconstitutionality." Moore v. RLCC Techs., Inc ., 95-2621 (La. 2/28/96), 668 So. 2d 1135 ; Pesnell v. Sessions, supra . To satisfy this burden, the challenging party must cite the specific constitutional provision that prohibits the legislative action. Pesnell v. Sessions, supra .

In order to survive intermediate scrutiny, a law must be "narrowly tailored to serve a significant governmental interest." In other words, the law must not "burden substantially more speech than is necessary to further the government's legitimate interests." Packingham v. North Carolina, supra .

In Packingham v. North Carolina, supra , the Supreme Court held that the North Carolina statute impermissibly restricted lawful speech, in violation of the First Amendment. The North Carolina statute provided, in pertinent part:²

(a) Offense.--It is unlawful for a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.

(b) For the purposes of this section, a "commercial social networking Web site" is an Internet Web site that meets all of the following requirements:

(1) Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.

(2) Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.

(3) Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site.

(4) Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board,

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