Reversal: Child porn possessions constituted one episode of criminal conduct

The Indiana Court of Appeals has partially reversed a man’s sentence for child porn possession after finding insufficient evidence that he acquired the images during multiple episodes of criminal conduct.

In Kevin MT Edwards v. State of Indiana, 20A-CR-42, Kevin Edwards was convicted of 10 counts of possession of child pornography, with three as Level 5 felonies and seven as Level 6 felonies. The Lawrence Superior Court sentenced him to 2 ½ years behind bars for each of his Level 5 felony convictions and 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 felonies.

During sentencing, the trial court rejected Edwards’ assertion that his aggregate 13 ½ -year sentence could be no longer than seven years because his 10 acts of possession constituted a single episode of criminal conduct. Instead, it concluded Edwards’ offenses were not part of a single episode of criminal conduct.

But the Indiana Court of Appeals partially reversed that decision, noting that in the past 20 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.”

“… We conclude that the approach laid out by the majority in (Ratliff v. State, 741 N.E.2d 424 (Ind. Ct. App. 2000), trans. denied) and followed in (Deshazier v. State, 877 N.E.2d 200 (Ind. Ct. App. 2007), trans. denied) and (Akers v. State, 963 N.E.2d 615 (Ind. Ct. App. 2012), trans. denied) is the correct one,” Chief Judge Cale Bradford wrote Thursday. “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.”

In its decision, the appellate court concluded Edwards’ 10 instances of possession did not constitute more than a single episode of criminal conduct. It noted there was no indication of any nexus between any of the 10 possessions at the time of their discovery – they were unconnected images which happened to be in Edwards’ possession at the same time.

“That leaves us with timing,” Bradford wrote, “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.”

On appeal, Edwards argued the record supports an inference that he acquired all of the images simultaneously or near simultaneously, because the CyberTip reports to the Indiana State Police only indicated that two suspicious incidents occurred within four minutes of one another shortly before his email account was deactivated. The state, however, asserted the record supported an inference that Edwards acquired the images through 10 distinct acts.

“We conclude that neither inference is warranted on the record before us. 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 … 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,” the appellate court wrote.

“In the absence of sufficient 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,” it concluded.

Edwards’ convictions, however, were affirmed.

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