STATE OF LOUISIANA NO. 2024 KW 0908 VERSUS

CHRISTOPHER JOSEPH BORNE OCTOBER 16, 2024

In Re: Christopher Joseph Borne, for applying supervisory writs, 17th Judicial District Court, Parish of Lafourche, No. 619904.

BEFORE: GUIDRY, C. J., PENZATO AND STROMBERG, JJ.

WRIT GRANTED IN PART AND DENIED IN PART. The trial court' s ruling denying relator' s motion in limine is reversed in part. With respect to the charge of pornography involving juveniles, only, relator is not prohibited from arguing he was misled about the victim' s age. The age of the performers is the crucial element separating legal innocence from wrongful conduct because non - obscene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. United States v. X- Citement Video, Inc., 513 U. S. 64, 72- 73, 115 S. Ct. 464, 469, 130 L. Ed. 2d 372 ( 1994) . Thus, La. R. S. 14: 81. 1( D) ( 1) must be severed from the remainder of the statute to prevent the State from being relieved of proving scienter as to minority.

See La. R. S. 24: 175; State v. Cinel, 94- 0942 ( La. 11/ 30/ 94), 646 So. 2d 309, 317, cert. denied, 516 U. S. 881, 116 S. Ct. 215, 133 L. Ed. 2d 146 ( 1995). Accordingly, because there is no valid provision to the contrary in La. R. S. 14: 81. 1, mistake of fact, which precludes the presence of any mental element required in pornography involving juveniles, including scienter as to minority, is a defense to prosecution for that crime. La. R. S.

14: 16. In all other respects, the writ application is denied.

JMG ARP TPS

URT OF APPEAL, FIRST CIRCUIT

PUTY CLERK OF COURT FOR THE COURT