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State, federal double-jeopardy challenge fails

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A man’s claims of federal and state double-jeopardy violations were rejected today by the Indiana Court of Appeals, which affirmed the trial court in a case involving multiple child pornography videos.

In John Thomas Pontius v. State of Indiana, No. 29A04-1001-CR-24, John Pontius appealed two of his five convictions of possession of child pornography as Class D felonies claiming they violated double-jeopardy laws. He also claimed he received ineffective assistance of trial counsel.

In May 2007, an Indiana State Police detective investigating Internet crimes involving child exploitation detected transmission of certain suspect images to an Internet Protocol address in Carmel. The images were transmitted between Feb. 19 and March 14, 2007. The detective provided information to Noblesville Police, who determined the specific IP address to which the images had been transmitted. Authorities got a search warrant for the home of Pontius’ grandparents, who were the subscribers at the IP address at issue; Pontius lived with them at certain times in 2007. The computer seized from the home contained four pornographic videos, which were all identified as featuring underage girls.

Upon speaking with Pontius, police learned he had downloaded certain materials on two separate computers. Authorities then got a search warrant for Pontius’ parents’ home and seized the computer there. A search of the computer revealed two videos, both downloaded July 16, 2007.

The state charged Pontius July 27, 2007, with six counts of possession of child pornography, with counts 1-4 corresponding to the videos found on the computer at his grandparents’ home and counts 5 and 6 found on the computer at his parents’ home. There is no dispute, however, that videos 1 and 6, which have the same name, are identical in content.

During his bench trial in May 2009, defense counsel commented he had not watched the videos in question. The court convicted Pontius of counts 1-3, 5, and 6, and acquitted him of count 4 on the basis that the individuals pictured “could be persons who might be 18 years of age.” He was sentenced to concurrent sentences of 3 years on each count, with 545 days executed and 550 days suspended to probation.

On appeal, Pontius argued because of the identical content of videos 1 and 6, his convictions for both violate double jeopardy under the federal and state constitutions. He also argued that his trial counsel was ineffective for failing to view the videos, causing prejudice by permitting Pontius to be convicted of two allegedly identical counts, impeding defense counsel’s ability to cross-examine witnesses regarding the age of video participants, and undermining defense counsel’s argument that Pontius’ possession of the videos was not knowing or intentional.

Pontius claimed that his dual convictions pursuant to Indiana Code Section 35-42-4-4(c) for counts 1 and 6, which are based upon the same video, constitute impermissible multiple convictions in violation of double-jeopardy principles.

Court of Appeals Judge Cale Bradford noted the court recently evaluated Ind. Code Section 35-42-4-4(c) in the context of a double jeopardy challenge. See Brown v. State, 912 N.E.2d at 896. In Brown, the court first considered the plain language of the statute because the legislature had defined the crime of possession of child pornography by referencing objects in the singular – a picture, a videotape, for instance – suggesting that its clear intent was to make the possession of each separate picture or video a distinct occurrence of offensive conduct in violation of the law. The court also considered the policies behind the law: preventing the victimization of children and obstructing the growth of the child pornography industry. Because of that, the Brown court ruled that “‘multiple convictions and punishments for possession of child pornography distinguished only by the image so possessed do not violate federal double jeopardy principles.’ Id. at 896.”

But in the instant case, the two digital video files at issue are identical and can be distinguished only by the computers on which they were found, the location of the computers, and the time of their downloads. The state argued those distinctions were adequate to sustain separate convictions, citing the New Hampshire case of State v. Ravell, 922 A.2d 685 (N.H. 2007).

In agreeing with the Ravell court, the appellate panel in the instant case wrote that limiting convictions for “double” possession of duplicate copies of child pornography on different computers or hard drives dilutes the legislature’s purpose of preventing child exploitation and growth of the child pornography industry.

“Were Videos 1 and 6 in the instant case the product of data back-up protocols or procedures, perhaps the broad language of section 35-42-4-4(c) would not apply. See Ravell, 922 A.2d at 688 …” the court wrote. “But here, while two of Pontius’s convictions were based upon possession of a single digital video file, he downloaded that file at two separate times, onto two separate computers and hard drives located at two separate residences, as Videos 1 and 6. Through two different, volitional transactions, Pontius possessed the same child pornography in two separate places, and he therefore committed two separate crimes. See U.S. v. Planck, 493 F.3d 501, 504 (5th Cir. 2007)….”

The court found no federal double-jeopardy violation.

Regarding the claims of double-jeopardy violations of state law, the court noted that given the separate evidence used to prove the existence of two copies of the same, distinct digital video file, it was rejecting the double-jeopardy challenge under the Indiana Constitution.

The court also found no prejudice regarding the claims of ineffective assistance of trial counsel and that the claims do not warrant relief.
 

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  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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