COA: Trial court didn’t err in child porn case

A split Court of Appeals of Indiana has determined a trial court didn’t err when it sentenced a Dubois County man to 21 years in prison after finding thousands of videos depicting child pornography on a hard drive in his home.

In August 2019, Dubois County Prosecutor’s Office investigator Richard Chambers sought a telephonic warrant to search Nathan C. Albrecht’s apartment. Chambers was placed under oath and told the judge that during a forensic interview he observed earlier that day, 12-year-old R.R. stated that he “had been touched inappropriately in the past six to nine months” by Albrecht, who was involved with the Mentors for Youth program.

Based on R.R.’s statements, Chambers requested a warrant authorizing police to search Albrecht’s apartment for “[a] condom or packages of condoms or similar instrumentality believed to be located in the bathroom of the residence as well as to take photographs or video of the residence that was described by R.R.” and “to examine such property, or any part thereof, found on such search.”

Later that day, Ferdinand Police Department Capt. Robert Randle and another officer executed the warrant and searched Albrecht’s bathroom. Officers discovered a sandwich baggie that had “condoms in it that appeared to have been used or had a human substance inside of them” on a shelf in the bathroom. On the same shelf, they “found a large box of condoms where it had been opened, a few had been removed but there’s still a lot in there.”

Additionally, above the bathroom sink mirror, police found another baggie that contained an external computer hard drive, which they seized. Officers obtained a second warrant to search the hard drive, which contained thousands of motion pictures and photos of “prepubescent children performing sexual acts.”

Police then obtained three additional warrants to search Albrecht’s apartment and other media devices found during those searches.

In October 2019, the state charged Albrecht with 10 counts of Level 5 felony possession of child pornography based on 10 separate “motion picture[s]” found on the hard drive recovered from his bathroom.

After a bench trial, Albrecht was found guilty as charged and was sentenced to three years executed on each count, with the sentences for counts one through four to run concurrently and the sentences for counts five through 10 to run consecutively to those sentences and to each other, for an aggregate of 21 years.

A split Court of Appeals concluded that the Dubois Circuit Court didn’t abuse its discretion in admitting the evidence off the hard drive, and that Albrecht’s sentence wasn’t inappropriate.

The lone disagreement on the panel was whether count nine was criminal. That video was of a naked child standing in a shower stall being slapped 12 times in the face. The COA majority determined any reasonable factfinder could conclude the motion picture depicted “sadomasochistic abuse.”

Judge Terry Crone concurred in part and dissented in part, disagreeing on count nine.

“Albrecht’s possession of the motion picture might be objectionable, but it is not illegal based on the plain language of Indiana Code Section 35-42-4-4,” Crone opined. “The child’s incidental nudity might have been sexually stimulating or gratifying to Albrecht, but that is irrelevant for purposes of the statute.”

Crone compared the movie to the Pulitzer-Prize winning photo “The Terror of War,” which depicts a naked 9-year-old Vietnamese girl fleeing her village after being severely burned in a napalm bomb attack in 1972.

“Based on the plain language of Indiana Code Section 35-42-4-4, the child’s mere nudity is insufficient to sustain Albrecht’s conviction,” Crone wrote. “… Second, the majority’s affirmance of Albrecht’s conviction based on sexual conduct other than sadomasochistic abuse raises insurmountable due process concerns.

“… (A)lthough Count 9 of the charging information does not specifically allege that the sexual conduct depicted in the motion picture constituted ‘sadomasochistic abuse’ pursuant to Indiana Code Section 35-42-4- 4(a)(4)(D), the motion picture’s file name and content strongly suggest that that was the basis of the charge, and that is obviously how Albrecht’s counsel interpreted it,” he continued.

“… And third, due process considerations aside, I do not believe that the conviction as reimagined by the majority is supported by sufficient evidence. Indiana Code Section 35-42-4-4 is written in terms of a motion picture depicting ‘sexual conduct by a child’; thus, it must be the child who exhibits his ‘uncovered genitals’ with the intent ‘to satisfy or arouse the sexual desires of any person[.]’ That is not what happened here, because the two- to three-year-old child is obviously too young to form such salacious intent,” Crone concluded.

The case is Nathan C. Albrecht v. State of Indiana, 21A-CR-1560.

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