Kevin MT Edwards v. State of Indiana ( 2020 )

FILED
Apr 30 2020, 6:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin MT Edwards, April 30, 2020
Appellant/Defendant, Court of Appeals Case No.
20A-CR-42
v. Appeal from the Lawrence
Superior Court
State of Indiana, The Hon. John M. Plummer, III,
Judge
Appellee/Plaintiff.
Trial Court Cause No.
47D01-1903-F5-518
Bradford, Chief Judge.
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Case Summary
[1] In early 2019, Kevin Edwards was determined to be in possession of ten
pornographic images of minors and eventually pled guilty to ten counts of
possession of child pornography, three as Level 5 felonies and seven as Level 6
felonies. The trial court imposed an aggregate sentence of thirteen and one-half
years of incarceration with one and one-half years suspended to probation.
Edwards contends that because his ten possession charges constituted a single
episode of criminal conduct, the trial court erred in imposing an aggregate
sentence of longer than seven years. Because the State failed to produce enough
evidence to allow a finding that Edward’s crimes did not constitute an episode
of criminal conduct, we affirm Edwards’s convictions but remand for the
imposition of a sentence of no longer than seven years.
Facts and Procedural History
[2] In December of 2018, Google LLC reported an incident of suspected possession
of child pornography to the National Center for Missing and Exploited
Children (“the NCEMC”), which forwarded a CyberTip report to the Indiana
State Police, which forwarded it to Detective Kevin Getz. (Appellant’s App.
Vol. II p. 17). According to the CyberTip report, the person suspected of
downloading pornographic images had used an email address of
zombiebait0419@gmail.com, which was determined to belong to Edwards.
Two further CyberTip reports indicated suspected incidents of downloading
child pornography on December 7, 2018, at 16:30:04 hours Greenwich mean
time and on December 7, 2018, at 16:26:39 Greenwich mean time. Four
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images associated with the two incidents were forwarded along with the
CyberTip reports. On January 15, 2019, Detective Getz forwarded a search
warrant to Google requesting information and content related to the account
associated with zombiebait0419@gmail.com. Google forwarded an additional
six images of child pornography in the search-warrant return. Another search
warrant was executed on Edwards’s Bedford residence on March 21, 2019.
[3] On March 22, 2019, the State charged Edwards with ten counts of possession of
child pornography, three as Level 5 felonies and seven as Level 6 felonies. On
November 13, 2019, Edwards pled guilty as charged without a written plea
agreement. On December 9, 2019, the trial court held a sentencing hearing,
during which neither party presented any evidence and Edwards argued that his
aggregate sentence could be no longer than seven years because his ten acts of
possession constituted a single episode of criminal conduct. Without providing
a rationale, the trial court rejected this argument, finding that Edwards’s
offenses were not part of a single episode of criminal conduct. The trial court
proceeded to sentence Edwards to two and one-half years of incarceration for
each of his Level 5 felony convictions and to one year for each of his Level 6
felony convictions, with all sentences to be served consecutively with the
exception of one of the Level 6 felony sentences. The trial court suspended one
and one-half years of Edward’s aggregate thirteen-and-one-half-year sentence to
probation.
Discussion and Decision
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[4] The determination of a defendant’s sentence is within the trial court’s
discretion, and will be reversed only upon a showing of abuse of discretion.
Pritscher v. State, 675 N.E.2d 727, 729 (Ind. Ct. App. 1996). The legislature
prescribes penalties for crimes and the trial court’s discretion does not extend
beyond the statutory limits. Id. Therefore, in reviewing a sentence, we will
consider whether it was statutorily authorized. Id.
[5] Indiana Code section 35-50-1-2 provides, in part, that “except for crimes of
violence, the total of the consecutive terms of imprisonment […] to which the
defendant is sentenced for felony convictions arising out of an episode of
criminal conduct […] may not exceed seven (7) years [… i]f the most serious
crime for which the defendant is sentenced is a Level 5 felony[.]” Because none
of Edwards’s convictions were for “crimes of violence” (as defined by Indiana
Code section 35-50-1-2(a)),1 if they all arose from “an episode of criminal
conduct[,]” his aggregate sentence cannot exceed seven years of imprisonment.
Ind. Code § 35-50-1-2(d)(2).
1
Indiana Code section 35-42-4-4 provides, in part, as follows:
[A] person who knowingly or intentionally possesses or accesses with intent to view […]
a photograph […] that depicts or describes sexual conduct by a child who the person
knows is less than eighteen (18) years of age or who appears to be less than eighteen (18)
years of age, and that lacks serious literary, artistic, political, or scientific value commits
possession of child pornography, a Level 6 felony. […] However, the offense of
possession of child pornography […] is a Level 5 felony if […] the [photograph] depicts or
describes sexual conduct by a child who the person knows is less than eighteen (18) years
of age, or who appears to be less than eighteen (18) years of age, who […] is less than
twelve (12) years of age[.]
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[6] The statutory definition of an “episode of criminal conduct” is that it “means
offenses or a connected series of offenses that are closely related in time, place,
and circumstance.” Ind. Code § 35-50-1-2(b). Although we have stated that
“‘the singleness of a criminal episode should be based on whether the alleged
conduct was so closely related in time, place and circumstances that a complete
account of one charge cannot be related without referring to details of the other
charge[,]’” Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1990) (quoting
State v. Ferraro, 800 P.2d 623, 629 (Haw. Ct. App. 1990)), the Indiana Supreme
Court has since said that “this is a bit of an overstatement” and elaborated as
follows:
We are of the view that although the ability to recount each charge
without referring to the other can provide additional guidance on
the question of whether a defendant’s conduct constitutes an
episode of criminal conduct, it is not a critical ingredient in
resolving the question. Rather, the statute speaks in less absolute
terms: “a connected series of offenses that are closely connected in
time, place, and circumstance.” I.C. § 35-50-1-2(b). And as we
have observed, “Tedlock emphasizes the timing of the offenses”
and “refers to the ‘simultaneous’ and ‘contemporaneous’ nature of
the crimes which would constitute a single episode of criminal
conduct.” Smith v. State, 770 N.E.2d 290, 294 (Ind. 2002) (citing
Tedlock, 656 N.E.2d at 276).
Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006).
[7] All the convictions in this case were for possession of child pornography, ten
items of which, the parties seem to agree, were discovered to be in Edwards’s
possession at the same time. Edwards argues that this simultaneity renders all
ten possessions a single episode of criminal conduct, even if all ten items were
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acquired at different times. Edwards also argues that, even if the time of
acquisition matters, the record indicates that he acquired all images at the same
time. The State argues that, despite the Reed Court’s emphasis on the
simultaneous nature of the crimes at issue, simultaneous possession is not
determinative if the images were acquired separately, as it argues they were.
I. The Interaction Between Possession Crimes
and Indiana Code Section 35-50-1-2(b)
[8] Over the past twenty years, a split has developed in this court regarding the
interaction between possession crimes and the consecutive-sentence limitations
in Indiana Code section 35-50-1-2. In Ratliff v. State, 741 N.E.2d 424 (Ind. Ct.
App. 2000), trans. denied, the defendant was operating a vehicle while
intoxicated and fled when police attempted to make a traffic stop. Id. at 427–
28. When Ratliff was apprehended, he was found to be in possession of
marijuana. Id. at 428. The State charged Ratliff with, and he was convicted of,
operating a vehicle while intoxicated, resisting law enforcement, and marijuana
possession; the trial court imposed an aggregate sentence in excess of that
allowed pursuant to the then-current version of Indiana Code section 35-50-1-
2(b), if it applied. Id. Ratliff argued on appeal that it did apply because all three
of his convictions were part a single episode of criminal conduct. The majority
disagreed:
Although it may be true that Ratliff’s OWI and resisting law
enforcement convictions could not be related without referring to
both crimes, the possession of marijuana conviction is wholly
separate, related only by the fact that the crime was discovered in
the course of pursuing a fleeing drunk driver. […] That the three
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criminal acts were “part of a larger or more comprehensive series”
of acts which were discovered simultaneously does not distract
from the fact that they are distinct acts, not all of which bear a
direct relation to the others. Therefore, we hold that Ratliff’s
actions did not constitute a single episode of criminal conduct, and
the trial court was not limited by Indiana Code section 35-50-1-
2(b) in sentencing Ratliff to consecutive terms of imprisonment.
Id. at 434.
[9] Judge Mathias dissented on this point, focusing on the fact that Ratliff had
committed other crimes while simultaneously in possession of contraband:
The majority holds that the OVWI and resisting law enforcement
convictions, each of which required a volitional act, are part of the
same criminal episode but that “the possession of marijuana
conviction is wholly separate, related only by the fact that the
crime was discovered in the course of pursuing a fleeing drunk
driver.” Op. at 434. The possession of marijuana offense, which
does not require a volitional act, occurred at the same time and
place as the other offenses. Nevertheless, the majority excludes
the possession offense from the criminal episode because the
marijuana was merely “discovered” at the time of the other
offenses. Under the majority’s rationale, every possession offense,
by virtue of its non-volitional nature, will never be part of any
criminal episode. I believe such a result contravenes both the
language and intent of the statute, although I fully acknowledge
that there is no authority on the issue.
Ratliff’s possession of marijuana was directly and inextricably
connected to the other offenses, as the marijuana would never
have been discovered had Ratliff not been driving while
intoxicated.
Id. at 436 (Mathias, J., concurring in part, dissenting in part).
[10] Since Ratliff, two panels of this court have adopted the majority’s approach,
while two have adopted the dissent’s. In Johnican v. State, 804 N.E.2d 211 (Ind.
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Ct. App. 2004), a panel followed the dissent, holding that “where, as in this
case, a defendant possesses contraband on his person as he simultaneously
commits other criminal offenses, the offenses should be deemed part of a single
episode of criminal conduct.” Id. at 218. In June of 2006, we issued our
opinion in Cole v. State, 850 N.E.2d 417 (Ind. Ct. App. 2006), in which a panel
again followed Judge Mathias’s approach from his dissent in Ratliff:
In other words, Cole possessed the ammonia as he simultaneously
committed the crime of resisting law enforcement. We therefore
conclude that the actions underlying Cole’s convictions were one
episode of criminal conduct.
Id. at 423.
[11] In December of 2007, we issued our opinion in Deshazier v. State, 877 N.E.2d
200 (Ind. Ct. App. 2007), trans. denied, in which we followed the Ratliff
majority:
Here, no evidence exists as to when Deshazier came into
possession of the handgun or marijuana. Possession is inherently
a “continuing offense,” which occurs from the time the defendant
comes into possession of the contraband until the time he
relinquishes control. See State v. Phillips, 172 N.C. App. 143, 615
S.E.2d 880, 882 (2005); cf. United States v. Medina-Ramos, 834 F.2d
874, 876 (10th Cir. 1987) (“[T]he acts that define the crime [of
unlawful possession of a controlled substance] are the acts by
which a defendant possesses the drug. The location at which the
acts constituting possession occur is therefore the location at
which the crime is committed for purposes of venue.”). However,
the evidence indicates that he must have come into possession of
the handgun and marijuana at some point before he encountered
the officers. […] Although the marijuana was in Deshazier’s jacket
while he resisted the officers, we do not find this fact to bring his
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act of possession into the same episode of conduct as his
resistance.
Id. at 212–13.
[12] Finally, in March of 2012, we issued our opinion in Akers v. State, 963 N.E.2d
615 (Ind. Ct. App. 2012), trans. denied. Following Deshazier and Ratliff, we
concluded that Indiana Code section 35-50-1-2(b) did not apply to Akers’s case
because, inter alia, his crimes were not all part of an episode of criminal
conduct:
Here, Akers’ possession of paraphernalia conviction is related to
his other convictions only in the sense that his possession was
discovered by police officers immediately after or during his other
criminal acts. However, as in Deshazier, it is unclear from the
evidence when Akers came into possession of the paraphernalia,
making the timing of the offenses more distinguishable than at first
glance. Further, unlike in Johnican, where the criminal actions of
resisting law enforcement and pointing a firearm at another person
resulted largely due to Johnican’s possession of cocaine, here there
is no evidence to suggest that Akers’ battery of the victim or
resisting arrest were fueled by his possession of paraphernalia.
Thus, even putting chronological relation aside, Akers’ conviction
for possession of paraphernalia was not related in circumstance to
his other convictions. There is no nexus between the acts of
battery and the subsequent resisting arrest, and Akers’ possession
of paraphernalia.
Id. at 619–20.
[13] Because “[p]ossession is inherently a continuing offense, which occurs from the
time the defendant comes into possession of the contraband until the time he
relinquishes control[,]” Deshazier, 877 N.E.2d at 212 (citation omitted), such
crimes require an approach different than the one used to evaluate more
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ephemeral crimes. We conclude that the approach laid out by the majority in
Ratliff and followed in Deshazier and Akers is the correct one. Indeed, we believe
that that approach is mandated by Indiana Code section 35-50-1-2(b)’s
requirement that a number of crimes which constitute an episode of criminal
conduct must be “a connected series of offenses that are closely connected in
time, place, and circumstance[,]” not just time and place. (Emphasis added).
With this requirement in mind, we agree with the Akers court’s conclusion that
what is required is a “nexus” between the illegal possession and another
crime—that the crimes must be “related in circumstance” as well as time and
place. 963 N.E.2d at 620.
[14] In cases where a nexus does exist between a possession crime and another
offense is committed while the possession continues, it is appropriate to find
that the crimes are connected in time, place, and circumstance. For example,
we agree with the result in Johnican because it is clear that Johnican committed
the crimes of pointing a loaded firearm and resisting law enforcement because he
was in possession of cocaine. In other words, his crimes were closely connected
by circumstances, not just by time and place. For the same reason, we agree
with the result in Massey v. State, 816 N.E.2d 979 (Ind. Ct. App. 2004), trans. not
sought, in which we concluded that the simultaneous illegal possessions of a
handgun and a large amount of cocaine were both part of the same episode of
criminal conduct. Id. at 991. Again, this result is correct not only because the
two possessions happened to be simultaneous, but because it was reasonable to
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assume, under the circumstances, that Massey was carrying the handgun for
protection while dealing cocaine.
[15] As for cases where there is no nexus between a continuing possession and
another continuing possession, there is still a way to evaluate whether those
possessions are part of an episode of criminal conduct. While we agree with
Judge Mathias’s observation in his Ratliff dissent that continued possession does
not require any volitional action, each possession necessarily involves at least
one volitional act, the act of acquisition. See Medina-Ramos, 834 F.2d at 876
(“[T]he acts that define the crime [of unlawful possession of a controlled
substance] are the acts by which a defendant possesses the drug.”). So, in cases
where the illegal possession at issue is completely passive and has no relation in
circumstance with other continuing, illegal possessions, we believe that it is the
act of acquisition that should be used to evaluate whether those offenses were
part of an episode of criminal conduct.
II. Whether Edwards’s Ten Possessions Constitute a
Single Episode of Criminal Conduct
[16] There does not seem to be a dispute that the images are connected by place of
possession. There is, however, no indication of any nexus between any of the
ten possessions at the time of their discovery; they were ten unconnected
images which happened to be in Edwards’s possession at the same time.2 That
2
It is possible to envision acts related to the possession of the images that could have generated a nexus with
one of the other possessions. For example, if Edwards had traded a copy of an image he already possessed
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leaves us with timing, and because there was no indication of any nexus
between any of the offenses on the date of their discovery, it is the date of
acquisition that is of paramount importance to us. Common sense dictates that
the simultaneous, or near-simultaneous, acquisition of several of the images
would most likely constitute a single episode of criminal conduct, while the
acquisition of the same images separately over the course of several days,
weeks, or months would most likely not. Edwards argues that the record
supports an inference that he acquired all of the images simultaneously or near
simultaneously, because the CyberTip reports only indicate that two suspicious
incidents occurred within four minutes of one another on December 7, 2018,
shortly before his account was deactivated. The State maintains that the record
supports an inference that Edwards acquired the images through ten distinct
acts. We conclude that neither inference is warranted on the record before us.
[17] That said, because the State was seeking the imposition of a harsher penalty, we
believe that it had the burden to produce evidence to justify that penalty, see,
e.g., J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (concluding that
“the juvenile court failed to recognize that the State held the burden to
establish” the amount of restitution), a burden that it failed to carry. To the
extent that the State could have produced evidence that Edwards acquired some
or all of the ten images separately, it did not do so. In the absence of sufficient
for a new image, we believe that that would generate a nexus between the two possessions. There is,
however, no indication that anything like this occurred.
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evidence to sustain a finding that Edwards acquired the ten images during more
than one episode of criminal conduct, we remand for the imposition of a
sentence of no longer than seven years of incarceration.
[18] We affirm in part, reverse in part, and remand with instructions.
Baker, J., and Pyle, J., concur.
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