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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. Thanks for this article. We live in Evansville, IN and are aware of how bad the child abuse is here. Can you please send us the statistics for here in Vanderburgh, County. Our web site is: www.ritualabusefree.org Thanks again

  2. This ruling has no application to Indiana. The tail end of the article is misleading where it states criminal penalties await those who refuse a test. This is false. An administrative license suspension is what awaits you. No more, no less.

  3. Yellow journalism much??? "The outcome underscores that the direction of U.S. immigration policy will be determined in large part by this fall's presidential election, a campaign in which immigration already has played an outsized role." OUTSIZED? by whose standards? Also this: "In either case, legal challenges to executive action under her administration would come to a court that would have a majority of Democratic-appointed justices and, in all likelihood, give efforts to help immigrants a friendlier reception." Ah, also, did you forget an adjective at the *** marks ahead by any chance? Thinking of one that rhymes with bald eagle? " In either case, legal challenges to executive action under her administration would come to a court that would have a majority of Democratic-appointed justices and, in all likelihood, give efforts to help *** immigrants a friendlier reception."

  4. Definition of furnish. : to provide (a room or building) with furniture. : to supply or give (something) to someone or something. : to supply or give to (someone) something that is needed or wanted. Judge Kincaid: if furnish means provide, and the constitution says the provider in a uni is the township, how on earth are they seperated??

  5. I never filed a law suite. I had no money for a lawyer. In 2010 I presented for MRI/with contrast. The technician stuck my left arm three times with needle to inject dye. I was w/out O2 for two minutes, not breathing, no ambulance was called. I suffered an Embolism ,Myocardia infarction. Permanent memory loss, heart damage. After the event, I could not remember what I did five seconds earlier. I had no-one to help me. I lost my dental hygiene career, been homeless, etc.

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